COLUMBUS (TDB) -- A state lawyer at the Ohio Bureau of Motor Vehicles says the agency cannot comply with a federal subpoena that seeks access to the driver's license photos of 1,419 Ohioans. The lawyer, Joshua Engel, contends a privacy law blocks release of the photographs. The U.S. Equal Employment Opportunity Commission subpoenaed the photos on Feb. 15 for an investigation into allegations of hiring discrimination by two Toledo companies, Modern Builders' Supply Inc. and Polaris Technologies. The EEOC says "examination of the job applicants' license photographs will allow the Commission to statistically analyze the job applicant flow by race and sex. The result of such analysis will assist EEOC in completing its investigation and make its determination on the race and sex hiring allegations."
Earlier this week, U.S. Magistrate Mark R. Abel scheduled a May 30 show cause hearing in Columbus federal court. The judge gave the state until May 16 to explain why it has not complied with the subpoena. The case is EEOC v. Ohio Bureau of Motor Vehicles, 2:08-mc-00015.
EEOC lawyers contend Ohio is hampering a federal investigation. But Engel, chief legal counsel for the Ohio Department of Public Safety, parent of the BMV, said in a letter to the EEOC that, "We are not permitted to prove the records in response to this Subpoena. The Subpoena requests photographs of approximately 1.500 Ohio drivers. However, Ohio law prohibits the release of such records."
EEOC lawyers say that amounts to legal bunkum:
"Respondent grounds its refusal to comply with the subpoena on an Ohio law which prohibits release of digitized license photographs, except for criminal justice purposes or to a court . . . State laws which frustrate federal investigations under federal laws such as Title VII, however, are preempted by federal law under the Constitution's Supremacy Clause. The federal courts have rejected state privacy and other laws as defenses to EEOC Title VII subpoena enforcement actions because Title VII is the supreme law of the land, preempting those state laws . . . The Commission is proceeding with an investigation which is within its Congressionally-mandated authority."