July/August 2016 Issue
Also in this issue: Significant Home Rule Case Invalidates Milwaukee’s Residency Requirement | Beware: The Duty to Preserve Electronic Evidence
Appellate Court Rules on Police Departments’ Disclosure Obligations Under the Driver’s Privacy Protection Act
Brian P. Goodman | 06.30.16
The Wisconsin Court of Appeals has held that the Driver’s Privacy Protection Act (DPPA) does not protect from disclosure under Wisconsin’s Public Records Law personal information obtained from the Department of Motor Vehicles (DMV) contained in vehicle accident reports but that personal information obtained from the DMV that is contained in police incident reports may possibly be subject to disclosure. New Richmond News v. City of New Richmond, Appeal No. 2014AP1938 (Wis. Ct. App. May 10, 2016).
New Richmond News made public records requests for two accident reports and two police incident reports from the City of New Richmond Police. The Police Department redacted certain personal information contained in the reports before providing the newspaper with the records, claiming that the DPPA prevented the Department from disclosing the personal information. The newspaper responded by suing the City of New Richmond for violating the state public records law.
At issue, was the interaction between the Federal DPPA and state law. The DPPA prohibits the release of personal information obtained by or from the DMV, unless the release falls under one of several exceptions. One exception allows the disclosure of personal information “for 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.” 18 U.S.C. § 2721(b)(14). Wisconsin law provides that any person may examine or copy uniform traffic accident reports retained by local authorities. Wis. Stat. § 346.70(4)(f).
The court held that mandatory disclosure of accident reports pursuant to this state law is a use specifically authorized by state law and that use is related to the operation of a motor vehicle or public safety. Therefore, police departments do not violate the DPPA if they release personal information obtained from the DMV that is contained in accident reports. The court did not decide whether the balancing test required by the Wisconsin public records law might have permitted the Department to redact the personal information. This issue was not raised by the parties.
The court reached a different conclusion regarding the release of personal information obtained from the DMV contained in police incident reports. Unlike accident reports, no state law authorizes the disclosure of police incident reports, so that exception to the DPPA did not apply. Instead, the court looked to the agency functions exception, which permits disclosure of personal information obtained from DMV records “[f]or use by any government agency including any court or law enforcement agency, in carrying out its functions.” 18 U.S.C. § 2721(b)(1). The court held that this exception did not apply here. A law enforcement agency’s disclosure of records pursuant to public records requests cannot constitute a “function” of a law enforcement agency. Such a result would require all governmental agencies, including the DMV, to disclose personal information contained in or from DMV records pursuant to public records requests. This requirement would eviscerate the protection provided by the DPPA. The court asked the circuit court on remand to consider if disclosure of police incident reports serves another function of the police department, other than compliance with public records requests. If disclosure serves another function of the police department, the police department may be required to disclose personal information obtained from the DMV in response to public records requests.
Finally, the court held that information that is obtained from another source and is verified, but not altered, by the Police Department using DMV records is not subject the DPPA. There was a factual question in this case about whether the information contained in the requested police incident reports was obtained from DMV records or merely verified, without alteration, using DMV records. The circuit court was directed to consider this issue as a threshold matter on remand.
— Brian Goodman
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