The Wisconsin Court of Appeals issued a decision in the ongoing case of New Richmond News v. City of New Richmond, 2014AP1938 on May 10, 2016. The decision provides much anticipated instruction on the interplay between the Wisconsin Public Records Law and the Driver’s Privacy and Protection (DPPA). However, the decision also leaves many questions unanswered.
In January 2013, the New Richmond News made a public records request to the City of New Richmond Police Department for two accident reports and two incident reports. The Police Department had provided only redacted versions of the documents on the grounds that the DPPA prohibited disclosure of personal identifying information obtained from department of motor vehicle records. When the Newspaper filed suit challenging the redactions, the St. Croix County Circuit Court held that the Newspaper was entitled to unredacted accident reports as well as incident reports from the police department. More information regarding the circuit court decision and decision to appeal is available here.
After receiving the circuit court decision, the parties filed a joint petition to bypass the Wisconsin Court of Appeals and move directly to review by the Wisconsin Supreme Court. The Wisconsin Supreme Court accepted the petition for review in May and held oral arguments. Following the death of Justice Crooks, the Justices were evenly split so the order to bypass was vacated, and the case was remanded to the court of appeals.
The court of appeals affirmed in part and reversed in part the decision of the circuit court. First, the court analyzed the Newspaper’s request for disclosure of unredacted accident reports. One of the multiple exceptions outlined in the DPPA allows disclosure of personal information obtained 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.” 18 U.S.C. § 2721(b)(14). The court noted that Wis. Stat. § 346.70(4)(f) expressly provides that any individual may obtain copies of uniform traffic accident reports. Therefore, disclosure of accident reports is expressly authorized under Wisconsin law and is directly related to the operation of a motor vehicle or public safety. As a result, the court concluded that the Newspaper’s request for unredacted accident reports falls squarely within the exception to the DPPA and affirmed the circuit court on this issue.
With respect to the incident reports, however, the court of appeals reversed the decision of the circuit court. The court of appeals’ analysis of the incident reports focused on the exception to the DPPA that allows disclosure of personal information 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 Newspaper argued that this exception should apply because by providing incident reports in response to public records requests, the police department is complying with its essential function of disclosing information to the public. The court rejected this argument as untenable as it would allow personal information to be disclosed every time a public record request was made, which would wholly undermine the purpose of the DPPA. Similarly, the court found no basis for the Newspaper’s argument that police departments have a heightened need to comply with the public records law to the extent that such responses are a unique function of policing. While the court found that responding to public records requests is not a “function” of the police department such that it would qualify under the DPPA disclosure exemption, it did leave open the question of whether disclosure of the incident report may serve some other function of the police department. As a result, the case was remanded to the circuit court to address this issue.
Finally, the court of appeals noted that to the extent information included in a record was obtained from a source other than DMV records, it is not subject to the DPPA. For example, if DMV records were used to verify information obtained from another source, the information can be disclosed. In this case, however, the circuit court made no findings regarding the source of the information redacted from the incident reports. As a result, the court of appeals instructed the circuit court to make a finding on this issue on remand.
While this decision provides clear instruction on the disclosure of accident reports going forward, it also leaves some questions unanswered. In fact, in addition to the two issues the circuit court will address on remand, the court of appeals’ decision is replete with references to related issues that remain unresolved. For example, the decision does not address whether another DPPA exception may apply to allow disclosure of the redacted information in the incident reports, nor does it address the application of the public records law balancing test analysis to the police department’s redaction of the incident reports. Therefore, while police departments and other authorities now have some clarity in responding to certain information requests, there will no doubt be more litigation needed to resolve these unanswered questions.