A federal law protecting driver’s license data does not allow Wisconsin police departments to withhold driver information from accident reports, the Court of Appeals ruled Tuesday.
But whether that law might require such censure in other kinds of reports would depend on what function police are serving by releasing the records, and whether the information was obtained directly from the Wisconsin Department of Motor Vehicle records, or merely verified with that information.
The 30-page ruling will likely trigger continued litigation and confusion over access to routine public records that Wisconsin authorities began to restrict in light of a failed class action 2010 lawsuit in Illinois filed under the federal Drivers Privacy Protection Act, or DPPA.
“Interpreting the agency functions exception in the manner advocated by (the New Richmond News) — that is, that the exception allows 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,” the decision reads.
But the court also called “misplaced” the City of New Richmond’s argument that the DPPA always pre-empts Wisconsin’s public records law.
Despite assurances from Wisconsin’s attorney general that the federal law did not require wholesale redacting of information from public records just because it might also be on driver’s license records, state municipalities’ insurers advised their customers to err on the side of secrecy to avoid being subject to any similar class actions under the federal law.
In 2013, the newspaper sued New Richmond over the issue, and a judge ruled that the DPPA and the Illinois federal case were never meant to overrule the state’s public records law.
The city appealed and the Court of Appeals tried to pass the case directly to the Supreme Court, citing its importance. But the death of Justice Patrick Crooks, and the abstention of his successor, Rebecca Bradley, resulted in a 3-3 tie on whether to affirm the trial court decision, which sent it back to the Court of Appeals.
In its ruling Tuesday, the court reversed St. Croix County Circuit Judge Howard Cameron’s finding that complying with the public records law was a police function that met an exception under the DPPA.
The Court of Appeals, however, left open the possibility that a different reason might meet the exception, and sent the case back to Cameron for more litigation on that point.
Congress passed the Drivers Privacy Protection Act in 1994 after a stalker got a Hollywood actress’ home address through motor vehicle records, then killed her. The DPPA restricts use of personal information obtained from motor vehicle departments but lists several permissible uses, though none specifically for news reporting.
For decades, no one dreamed it was meant to undo states’ open records laws, until lawyers and marketers began buying whole state databases of drivers and car owners, and a few successful claims for penalties under the DPPA prompted class-action lawyers to explore new lawsuits.
A resident of Palatine, Ill., sued the village under the DPPA because his personal information was on a parking ticket Palatine police had left on his windshield in 2010. Jason Senne wanted his case declared a class action on behalf of all the drivers who got tickets from Palatine. Theoretically, that exposed the village to $80 million in penalties — the statutory $2,500 penalty to every person who got a ticket since the DPPA passed.
The case was thrown out, reinstated and thrown out again by federal courts. But along the way, it set off a panic among lawyers for Wisconsin’s League of Wisconsin Municipalities and its self-insurance company. They advised clients to err on the side of censorship. If something as innocuous as a parking ticket could violate the DPPA, they feared, any number of police records could.
Police agencies all over Wisconsin suddenly began blacking out names, addresses and ages of people in even the most routine traffic accident reports and other records if the information was obtained from or confirmed by driver’s license and motor vehicle records.
The redactions came even though in 2008, then-Attorney General J.B. Van Hollen expressly said that the DPPA did not require such redactions, and other police agencies in Illinois and Indiana, the other states covered by the 7th Circuit, did not resort to such practices after the Palatine cases.
Source: www.postcrescent.com
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