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New case highlights clash of dueling public policies

By Remzy Bitar and Timothy Johnson

bitar-johnsonRecent developments interpreting the protections and limitations of the Drivers Policy Protection Act signal that conflict may be on the way between the DPPA and Wisconsin’s Open Records Law – a reality that may require more resources expended by information-hungry entities and municipalities in their attempts to navigate both laws.

The DPPA

Passed by Congress after a slew of concerns with mass marketing and crimes connected to the release of personal information by state Departments of Motor Vehicles – including the murder of Hollywood actress Rebecca Schaeffer – the DPPA is a federal law that protects the privacy of personal information assembled by DMVs.

The federal prohibition provides that “a state department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity” personal information including: an individual’s photograph, social security number, driver identification number, name, address, telephone number, and medical or disability information.

This federal prohibition applies to municipalities whose law enforcement departments have access to such DMV information.

The DPPA limits the release of a driver’s personal information for certain enumerated uses such as: legitimate government agency functions; matters of motor vehicle safety, theft, emissions, and product recalls; use in connection with civil, criminal, or administrative proceedings; research activities and statistical reports; insurance activities; notice for towed or impounded vehicles; use by licensed investigators or security service; in response to requests if there is express consent from the individual; and for any other legitimate State use if it relates to motor vehicle or public safety.

Where violations occur, the DPPA allows for penalties, punitive damages, and attorney’s fees. Violators may be liable in a civil action.

Recent developments

Recent case law demonstrates the potentially ubiquitous reach of the DPPA in routine matters.

This summer, the U.S. Supreme Court decided Maracich v. Spears, a case in which attorneys used federal Freedom of Information Act requests to acquire names and addresses of individuals from the South Carolina DMV for the purpose of soliciting new business. This personal information was acquired without the express consent of the individuals, who sued under the DPPA.

The high court ruled that attorney solicitation of clients is not a permissible purpose covered by the exception to the DPPA, which allows disclosure for use in connection with a civil proceeding. Allowing disclosure of personal information for solicitation of potential business would substantially undermine the general purpose of the DPPA to protect the right to privacy in motor vehicle records.

In a case closer to home, Senne v. Village of Palatine, a police officer left a parking ticket on a car that included the owner’s personal information. The person who was the subject of the ticket sued on behalf of a class under the DPPA. The 7th Circuit Court of Appeals ruled that placement of such protected information in the public view constituted a disclosure regulated by the DPPA.

In reasoning that could have wide implications, the court found that the DPPA does not provide unlimited authority for law enforcement to access or disseminate personal information. The court stressed that the DPPA allows such information to be released only “for use” within the enumerated exceptions contained therein. The U.S. Supreme Court denied review of the case.

The consequences for non-adherence to the DPPA were foreshadowed before Senne and Spears.

In Parus v. Germantown Mut. Ins. Co., a law enforcement officer ran a license plate to obtain personal information about the vehicle’s owner. The officer claimed he sought the information for legitimate law enforcement purposes, but the plaintiff introduced evidence suggesting the officer ran the plate for personal motives. The court found triable issues regarding the officer’s true motive for obtaining the information.

In Schierts v. City of Brookfield, a law enforcement officer provided a local parent with information on the parent’s ex-spouse. The court granted summary judgment against the officer and the municipality for violating the DPPA.

Clashes with Open Records Law

As is evident by its language, the DPPA starts from a point of broad restriction regarding public access to information assembled by a DMV. The statute then describes limited circumstances allowing disclosure.

The foundation of Wisconsin’s Open Records Law reverses these principles, stating: “[I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government.”

These divergent policies clash when citizens make open records requests for DMV-assembled information. Thus, every open records request may be subject to its own balancing test weighing the facts and circumstances and the important interests in favor of public disclosure.

Depending on the circumstances of a records request, a municipality may conclude that the DPPA’s restrictions on allowing access to personal information may be an exception to the presumption granting the public access to records. “Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under s. 19.35 (1), except that any portion of that record which contains public information is open to public inspection as provided in sub. (6).” This subsection (6) may require that some or all of the personal information be redacted before disclosure, depending on the circumstances.

Whether municipalities are being overly sensitive to records requests for such information also depends on an April 2008 advisory opinion from the Wisconsin attorney general, who opined that full disclosure of personal information may be a permissible use under the DPPA’s exception for “use by any government agency . . . in carrying out its functions.” The AG’s opinion advises that this exception and the DPPA’s legislative history indicate the scope of an agency’s function should not be narrowly drawn to impede the abilities of law enforcement and other government agencies to carry out their duties, including those under Wisconsin’s Open Records Law.

This clash of policies, and whether the AG’s advisory opinion survives the analysis in Senne and Spears, lies at the heart of a recently filed Wisconsin case. In New Richmond News v. City of New Richmond, a local newspaper sued the municipality claiming violations of the state’s Open Records Law.

In response to the newspaper’s open records request, the municipality, relying upon Senne, provided redacted personal information from two state accident reports and an incident report regarding theft from a local gas station. Relying at least in part upon the AG’s April 2008 advisory opinion, the newspaper’s complaint argued that the DPPA “was not intended to, and does not, require removal of identifying information from law enforcement records, nor otherwise alter the [municipality’s] responsibilities, under the Open Records Law.”

The case brings to a head the interplay between the policies of the DPPA and the Open Records Law. At this time, it awaits a decision from the federal court as to whether the case should be adjudicated by the federal court (under the theory that it principally involves the interpretation of a federal statute) or should be remanded to state court (under the theory that it involves the interpretation of the state’s Open Records Law).

The New Richmond case is one to watch since there is still much to be decided in navigating the clash between the DPPA and Wisconsin’s Open Records Law, not the least of which is the legal and financial liability for one misstep in either direction. The decision could help local governments settle concerns in trying to appease two laudable goals: protecting privacy and open government.

Remzy Bitar and Tim Johnson are attorneys with Crivello Carlson SC whose primary practices involve municipal and civil rights litigation.

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