DPPA Exception Allows Law Enforcement Agencies to Release Unredacted Accident Reports
Wisconsin law enforcement agencies will benefit from the partial measure of clarity provided in an important Wisconsin Court of Appeals decision issued yesterday, New Richmond News v. City of New Richmond, 2014 AP 1938 (Ct. App. 5/10/2016, publication recommended).
The case addresses the interaction between the federal Drivers Privacy Protection Act (DPPA), which prohibits disclosure of personal information obtained from Department of Motor Vehicle Records unless pursuant to a specific exemption, and requests under the Wisconsin public records law for law enforcement records where some of the record’s fields have been automatically populated using a system that pulls DPPA-protected information directly from Department of Motor Vehicle (DMV) records.
New Richmond News (the Newspaper) sued the City of New Richmond (City) after the City’s police department responded to its request for two accident reports and two incident reports by redacting information identifying individuals referenced in both of the accident reports and one of the incident reports. The city lost in circuit court. The parties jointly requested that the Supreme Court accept the case, bypassing the court of appeals. The Supreme Court agreed to the bypass but deadlocked following Justice Crooks’ death and ultimately sent the case back the court of appeals to decide.
The court of appeals decision provides clarity for law enforcement agencies with regard to requests for uniform traffic accident reports but less clarity regarding when other types of records containing personal information obtained from DMV records must be redacted or when they can be released without redaction under a DPPA exception which allows disclosure of personal information from DMV records “[f]or use by any government agency, including any court of law enforcement agency, in carrying out its functions.” The court rejected the Newspaper’s argument that law enforcement agencies can provide unredacted records pursuant to that exception because providing access to public records is a function of police departments. The court of appeals said interpreting the agency functions exception to allow unfettered disclosure of personal information in response to public records requests would be “inconsistent with the manifest purpose of the DPPA and would therefore be unreasonable.”
League attorneys will analyze and attempt to explain the court’s decision with regard to those other records and the agency functions exception after we have had an adequate opportunity to digest the decision and discuss it with others but the key takeaway from the case that municipalities need to know right now is that law enforcement agencies can release unredacted accident reports under DPPA exception 18 U.S.C. §2721(b)(14) which allows disclosure of personal information from DMV records “[f]or any other use specifically authorized under the law of the State that holds the record, if such use is related to the operation of a motor vehicle or public safety.” The court said that Wis. Stat. sec. 346.70(4)(f), which provides that any person may “with proper care … and subject to such orders or regulations as the custodian thereof prescribes, examine or copy … uniform traffic accident reports … retained by local authorities … or any other investigating law enforcement agency” is a use specifically authorized under Wisconsin law and is related to the operation of a motor vehicle or public safety. Accordingly, a law enforcement agency’s disclosure of personal information contained in accident reports is permissible under 18 U.S.C. § 2721(b)(14).
LWMMI, the League’s insurance program, funded the appeal on behalf of the City of New Richmond to gain clarity for law enforcement agencies which have been in the untenable position of facing potential liability regardless of how they respond to requests for records populated by DMV records -- either for wrongful release of DPPA-protected information or wrongful redaction under Wisconsin’s Public Records Law.