New Richmond News v. City of Richmond

370 Wis.2d 75

881 N.W.2d 339

NEW RICHMOND NEWS and Steven Dzubay, Plaintiffs–Respondents,

v.CITY OF NEW RICHMOND, Defendant–Appellant.

No. 2014AP1938.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 16, 2016.

Opinion Filed May 10, 2016.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Remzy D. Bitar, Timothy M. Johnson and Samantha R. Schmid of Crivello Carlson, S.C., Milwaukee.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Robert J. Dreps and Dustin B. Brown of Godfrey & Kahn, S.C., Madison.

A nonparty brief was filed by Brad D. Schimel, attorney general, Andrew C. Cook, deputy attorney general, and Delanie Breuer, assistant attorney general, for the Wisconsin Department of Justice.

A nonparty brief was filed by Claire Silverman of Madison, for League of Wisconsin Municipalities, and Andrew T. Phillips of von Briesen & Roper, S.C., of Milwaukee, for Wisconsin Counties Association.

A nonparty brief was filed by Michael J. Modl, Timothy M. Barber and Gesina M. Seiler of Axley Brynelson, LLP, of Madison, for Wisconsin County Mutual Insurance Corporation and Community Insurance Corporation.

A nonparty brief was filed by Christa Westerberg of McGillivray Westerberg & Bender LLC, of Madison, for Wisconsin Newspaper Association, and Reporters Committee for Freedom of the Press.

Before STARK, P.J., HRUZ and SEIDL, JJ.

STARK, P.J.

¶ 1 New Richmond News and its publisher, Steven Dzubay, (collectively, the Newspaper) requested two accident reports and two incident reports from the City of New Richmond Police Department, pursuant to Wisconsin's public records law. The police department ultimately provided the reports, but it redacted information identifying individuals referenced in both of the accident reports and one of the incident reports. Relying on Senne v. Village of Palatine, 695 F.3d 597 (7th Cir.2012), the police department contended these redactions were required by the federal Driver's Privacy Protection Act (DPPA). The Newspaper then sued the City of New Richmond, alleging the police department's failure to provide unredacted copies of the requested reports violated the public records law. The circuit court granted the Newspaper judgment on the pleadings, concluding the DPPA did not prohibit the department from providing unredacted copies of the reports.

¶ 2 We conclude the police department was permitted to release unredacted copies of the accident reports requested by the Newspaper, pursuant to the DPPA exception allowing disclosures specifically authorized under state law, if such use is related to the operation of a motor vehicle or public safety. See 18 U.S.C. § 2721(b)(14). Wisconsin law specifically requires police departments to release accident reports upon request. See Wis. Stat. § 346.70(4)(f).¹ We therefore affirm the circuit court's decision with respect to the accident reports.

¶ 3 However, we 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. The circuit court concluded 18 U.S.C. § 2721(b)(1), the DPPA exception allowing disclosure for use by a government agency in carrying out its functions, permitted the police department to release the incident report in response to the Newspaper's public records request because responding to public records requests is a “function” of the police department. However, as we explain below, accepting that conclusion would lead to results that are in direct conflict with the DPPA. We therefore reverse the circuit court's determination that release of the incident report was permissible under § 2721(b)(1) by virtue of the public records law. Nevertheless, we remand for a determination of whether release of the incident report serves some other function of the police department, beyond mere compliance with the public records law, such that release of the unredacted report was otherwise permitted under § 2721(b)(1).

¶ 4 In addition, we observe there is a factual dispute regarding whether the redacted information in the incident report was obtained from department of motor vehicle (DMV) records, or merely verified using those records. If the redacted information was obtained from other sources and was only verified using DMV records, it is not protected by the DPPA in the first instance. We therefore direct the circuit court on remand to determine, as a threshold matter, whether the redacted information in the incident report was obtained from DMV records.

RELEVANT AUTHORITIES

I. DPPA

¶ 5 The DPPA was enacted in 1994 to “limit the release of an individual's personal information contained in his [or her] driver's license record to those who had a legitimate and lawful need for the information.” Kehoe v. Fidelity Fed. Bank & Trust, 421 F.3d 1209, 1210 (11th Cir.2005). In particular, the DPPA “responded to at least two concerns over the personal information contained in state motor vehicle records.” Maracich v. Spears, ––– U.S. ––––, 133 S.Ct. 2191, 2198, 186 L.Ed.2d 275 (2013). The first of these concerns was “a growing threat from stalkers and criminals who could acquire personal information from state [departments of motor vehicles].” Id. “The second concern related to the States' common practice of selling personal information to businesses engaged in direct marketing and solicitation.” Id.

¶ 6 In response to these concerns, Congress established a regulatory scheme that restricts disclosure of drivers' personal information without their consent. Id. First, the DPPA sets forth the following prohibition regarding the release of certain types of information from motor vehicle records kept by state DMVs:

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:

(1) personal information ... about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or

(2) highly restricted personal information ... about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9)....

18 U.S.C. § 2721(a). For purposes of the DPPA, “personal information” means

information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5–digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status.

Id., § 2725(3) (footnote omitted). “Highly restricted personal information” means “an individual's photograph or image, social security number, medical or disability information.” Id., § 2725(4). “Motor vehicle record” means “any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles.” Id., § 2725(1).

¶ 7 The DPPA's disclosure prohibition is then subject to fourteen exceptions, or “permissible uses,” listed in subsec. (b).² See 18 U.S.C. § 2721(b) ; see also Senne, 695 F.3d at 605 (“Against the backdrop of the general rule prohibiting disclosures in subsection (a), subsection (b) provides ... several categories of permissive disclosures.”). As relevant here, subsec. (b) provides that personal information “may be disclosed”:

(1) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.

....

(14) 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).

¶ 8 The prohibition and exceptions set forth in 18 U.S.C. § 2721(a) and (b) also extend to “authorized recipients” of personal information from state DMVs, who may “resell or redisclose the information only for a use permitted under subsection (b),” subject to certain exceptions not applicable here. See id., § 2721(c). The DPPA creates a private right of action for any individual whose personal information is unlawfully disclosed. See id., § 2724(a) (“A person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court.”). Available remedies for the violation are: (1) actual damages, but not less than liquidated damages of $2,500; (2) punitive damages for willful or reckless violations; (3) attorney fees and costs; and (4) “such other preliminary and equitable relief as the court determines to be appropriate.” Id., § 2724(b).

II. Wisconsin's public records law

¶ 9 Wisconsin's public records law is a “fundamental concept[ ] in our state's history of transparent government” and was enacted “to promote public access to actions of governmental bodies.” Journal Times v. City of Racine Bd. of Police & Fire Comm'rs, 2015 WI 56, ¶ 45, 362 Wis.2d 577, 866 N.W.2d 563. Wisconsin Stat. § 19.31 provides:

In recognition of the fact that a representative government is dependent upon an informed electorate, it 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 and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose

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