Some common public records like traffic accident reports and tickets would remain off limits to news outlets, under an argument made to the state Supreme Court on Friday in a case that could drastically alter long-standing Wisconsin law, based on a failed class action lawsuit in Illinois.
Stories like former Wisconsin Attorney General Peg Lautenschlager's 2004 drunken driving arrest, or other moving violations involving prominent drivers, might not ger reported without access to names and addresses in the records.
In 2013, the New Richmond News sued the city of New Richmond because its police department routinely blacked out names, addresses and other information from reports the paper requested, citing the federal Drivers Privacy Protection Act. Congress passed the 1994 law 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 DMVs, 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 databases of drivers and car owners, and a few successful claims for penalties under the DPPA prompted class action lawyers to explore new lawsuits.
Then 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.
Jasone 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.
It was thrown out, reinstated and thrown out again by federal courts. But along the way, it set off a panic among lawyers for the 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.
This even though in 2008, then-Attorney General J.B. Van Hollen expressly said that the DPPA did not require such redactions,.
Last year, St. Croix County Circuit Judge Howard Cameron ruled in favor the Richmond News, citing two exceptions in the federal law he said clearly allow Wisconsin agencies to release public records under state law.
One of the permissible uses under DPPA is by a government agency "while carrying out its functions." Complying with state public records law is one of the New Richmond police functions, Cameron said.
The city appealed directly to the Wisconsin Supreme Court to "definitively resolve this growing statewide controversy."
Several groups have filed amicus briefs with the Supreme Court, further illustrating the high stakes and wide interest in the case where parties each claim "absurd results" follow from the other's interpretation of the law.
The forces favoring censorship say the DPPA pre-empts Wisconsin's open records law. They say Congress wanted to keep DMV data about drivers and vehicle owners out of the hands of potential stalkers. They cite privacy and safety, and other federal cases where courts have upheld violations of DPPA.
During oral arguments Friday, New Richmond's attorney, Remzy Bitar, said Congress was deeply concerned about informational privacy, and that if the newspaper's view was correct, the exception for state law would "swallow the entire DPPA."
To some justices' concerns that the current municipal interpretation makes a huge workload for clerks and record keepers who handle "Carl Sagan numbers" of common accident reports and tickets, Bitar said the massive redactions are just part of their duties.
Arguing for the newspaper, Madison attorney Robert Dreps said Congress could have pre-empted states' public record laws with the DPPA, but would have had to be extremely clear that it was doing so, and was not.
He said the fact it went unnoticed for nearly 20 years -- before class action plaintiffs' lawyers saw large potential payoffs in that interpretation -- is pretty clear evidence Congress had no problem with police agencies continuing to use driver's license data in reports that were routinely released as public records.
He noted no other state has taken the approach favored by Wisconsin municipalities.
"When it comes to federal law, the cheese should not stand alone," he said, to chuckles from the court.
Also, the newspaper argues, none of the cases where DPPA violations were found involved public records, but usually sale of the entire DMV database to lawyers or direct marketing firms.
Wisconsin stopped selling its DMV database -- worth about $8 million a year -- after the DPPA.
But police agencies didn't stop releasing accident reports. Collecting such information and responding to public records requests is part of their normal functions -- a main exception to the DPPA limits use of DMV data, according to the newspaper and Judge Cameron.
Dreps argued that news outlets are getting information directly from the DMV but via reports prepared by police who have valid access to the DMV info under exceptions to the DPPA ban on release.
The county mutual insurance group says the 14 exceptions don't only apply to the police, but to the ultimate users of information the police "re-disclose," in a ticket or accident report and that none apply to news media.
"A categorical exception for information obtained from state DMVs via such (public record) laws would result in the exception swallowing the general rule of nondisclosure," their brief states.
By that argument, the news media counters, names of arrestees, criminal defendants and even prisoners could never be disclosed if they originally came or were confirmed via DMV records.
The state Supreme Court could follow the interpretation of the DOJ, the newspaper and the 7th U.S. Circuit Court of Appeals in the Senne case -- that police can put personal information from DMV databases into other reports and make them public without violating the DPPA.
Or it could hew to the belief put forth by New Richmond and the government insurance groups: that Congress really meant to stop release of driver's addresses to prevent stalking, and also intended the DPPA restrictions to override states' public records laws.
The same argument carries this collateral consequence: a broader ban on release of DMV records through police reports might more effectively insulate governments from class action suits -- even it exposes them to far cheaper open records litigation.
(c)2015 the Milwaukee Journal Sentinel