May 10, 2016 – Federal law does not prohibit police departments, upon request, from releasing unredacted copies of “accident” reports, a state appeals court has ruled. But federal law may prohibit the release of unredacted “incident” reports.
The New Richmond News requested accident and incident reports from the City of New Richmond Police Department, which ultimately issued redacted copies of both types of reports. The individuals involved in the accidents and incidents could not be identified.
The police department said redaction was required by the federal Driver’s Privacy Protection Act (DPPA), which protects against releases of personal information found in department of motor vehicle (DMV) records. The circuit court, in a judgment on the pleadings, ruled that the DPPA did not require redaction of accident or incident reports.
In New Richmond News v. City of New Richmond, 2014AP1938 (May 10, 2016), a three-judge panel for the District III Appeals Court ruled that the DPPA allowed release of unredacted “accident” reports. But it remanded on the issue of “incident” reports.
The panel noted that a DPPA exception allows disclosures authorized by state law, and public records law specifically requires the release of accident reports upon request.
But it reversed regarding incident reports. “[W]e reverse the circuit court’s decision that the DPPA did not prohibit the department from releasing an unredacted copy of the incident report requested by the Newspaper,” wrote Judge Lisa Stark.
This case had landed in the Wisconsin Supreme Court in a joint petition to bypass the Court of Appeals, but the court split 3-3 on whether to affirm or reverse. Thus, the case was remanded to the court of appeals.
DPPA and Senne
The DPPA protects personal information contained in motor vehicle records. The law is designed to protect information from criminals and also addresses the sale of personal information by motor vehicle agencies to third parties engaged in marketing.
In most circumstances, personal information in DMV records cannot be released without consent. But the DPPA also contains numerous exceptions.
One exception, under 18 U.S.C § 2721(b), allows personal information to be disclosed for any uses “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.”
Another exception says information may be disclosed for use by local law enforcement agencies “in carrying out its functions,” the so-called “agency functions” exception. Another provision regulates redisclosure of information by authorized recipients.
In 2012, in Senne v. Village of Palatine, the U.S. Court of Appeals for the Seventh Circuit interpreted the agency functions exception in the context of personal information on parking tickets that law enforcement obtained from motor vehicle records.
Ultimately, the court ruled that listing personal information on parking tickets – including names, addresses, height, weight, gender, driver’s license numbers, and date of birth – satisfied the agency function of providing notice and inducing violators to pay
After Senne, the New Richmond Police Department changed its policy regarding the disclosure of accident and incident information derived from DMV records, requiring personal information to be redacted before released under a public records request.
The issue, as stated by the panel, was whether the police could redisclose personal information obtained from DMV records to a newspaper requesting the documents.
The panel noted that Wis. Stat. section 346.70(4)(f) requires law enforcement to disclose traffic “accident” reports pursuant to public records requests and thus state law clearly falls within the DPPA exception for authorized disclosures under state law.
But the more complicated question was whether the DPPA’s “agency functions” exception allows unredacted “incident” reports to be disclosed upon request. In this case, the “incident” report related to the theft of gas from a gas station.
The city argued that such disclosures depend on how the newspaper will use the information. The newspaper argued that disclosing “incident” reports that include personal information derived from DMV records serves a police department function, and redaction would prevent the public from verifying that traffic laws are fairly enforced.
The appeals court did not agree with the newspaper. “[I]nterpreting the agency functions exception in the manner advocated by the Newspaper – 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,” Judge Stark wrote for the three-judge panel.
However, the panel remanded the case for a determination of whether disclosing unredacted incident reports serves some other police department function.
“If so, disclosure of the unredacted incident report may nevertheless have been permissible under [the DPPA],” Judge Stark wrote.
The panel also concluded that the DPPA does not apply if DMV records are used to “verify” personal information obtained from another source, unless the information is substantively altered to conform to DMV records. That will be another issue on remand.