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New Richmond News vs. City of New Richmond: Appeals Court rules in favor of newspaper, with exception

Dreps cites 'significant victory' for open records

City's legal representative prepared statement is included here ... scroll to the bottom of the story.

The District III Court of Appeals Tuesday, May 10, released its decision regarding the ongoing New Richmond News lawsuit against the City of New Richmond pertaining to the release of information in police accident and incident reports -- and it appears to be a win for the newspaper -- but not entirely.

That said, The News' attorney, Robert Dreps of Godfrey & Kahn, S.C., indicated the court's hesitance in providing a full ruling for the newspaper was couched in the notion that in the end their reservations would apply to a very small window of incidents reported by police.

According to the ruling, the court determined that the police release accident reports as unredacted documents, but reversed the circuit court's determination that incident reports could be released as a "function" of the police department and should be public "by virtue of the public records law."

Instead the Appeals Court remanded back to the circuit court the task of determining "... as a threshold matter, whether the redacted information in the incident report was obtained from DMV records."

"We think this is a significant victory and we are very pleased that it restores routine public access to accident reports," Dreps said.

"We think that it will be a very rare circumstance where law enforcement obtains information for an incident report from the DMV. About the only circumstance where that would arise is where all they know about the suspect is the license plate [number] ... they find out whose car it is by using the license plate from the DMV. Beyond that, they are going to be verifying information ... [an individual] hands them their driver's license ... they should verify that it's accurate with the DMV ... but that's not subject to the DPPA under this ruling." 

City officials and attorneys were sifting through the 30-page ruling this morning and said an official statement would be issued later today or on Wednesday.

But in the meantime, City Administrator Mike Darrow said, "We received the Court of Appeals findings earlier today and are in the process of reviewing the decision. This decision, which focused on the data privacy practices of the City of New Richmond and New Richmond Police Department and the requests made by the New Richmond News, will allow municipalities throughout the State of Wisconsin to have greater clarity as it relates to various police reports and redaction practices.  We’ll provide a more in-depth opinion on the court’s findings in the coming days."

The decision from the Appeals Court was issued today following a circuitous route through the court system, which included stops at the circuit court level, a review by the state's Supreme Court before a tie vote at that level remanded the case back to the Appeals Court.

The main issue in the case was whether police are prohibited from releasing the names and addresses of those referenced in law enforcement and motor vehicle accident records in specific situations.

The Driver's Privacy Protection Act, (DPPA) was enacted in 1994 in response to privacy concerns and regulates how states use and disclose driver information.

The city has contended that it is required by DPPA to black out personal information from police records when such information comes from the state’s Division of Motor Vehicles. The newspaper disagreed with that assertion.

Today's ruling affirmed the newspaper's argument pertaining to accident reports, but sided with the city's argument when it pertained to incident reports of crimes ... at least until the circuit court sounds off on the issue.

"The circuit court ruled for the newspaper without needing to address those factual issues," Dreps said. "So, the record doesn't show whether the names removed from the incident report were obtained from the DMV. We think reading the report shows that they were most certainly not, but we'll need to ask the people involved how they obtained the information ... if the city chooses to dispute that going forward."

In June 2014, a St. Croix County Circuit Court judge ruled that the DPPA does not require police departments to redact identifying information gathered from driver’s licenses that are documented in official reports.

A 2012 decision by the 7th Circuit Court of Appeals in Senne v. the Village of Palatine led many municipalities’ law enforcement to begin to redact the information when reporters asked for the public records.

The city appealed the ruling, which then sent the case to the state Court of Appeals.

However, the Wisconsin Supreme Court agreed in May 2015 to hear the case, bypassing the Court of Appeals.

The Wisconsin State Supreme Court, in a decision issued Friday, Dec. 18, vacated the petition to rule on New Richmond News vs. City of New Richmond, and remanded the case back to the State Appellate Court.

Justices on the court tied 3-3 on whether to uphold or reverse St. Croix County Court Judge Howard W. Cameron's ruling in favor of the New Richmond News.

Because the late Justice N. Patrick Crooks died just days after the case was heard in front of the court in September and he didn't participate in the case, and because the newest justice, Rebecca G. Bradley, was appointed after the case was heard, the court was deadlocked at 3-3.

According to the opinion of the full court filed per curiam, Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice David T. Prosser had voted to uphold Cameron's ruling, while Chief Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman all voted to reverse Cameron's circuit court ruling.

Today's Appeals Court decision is one that has statewide ramifications for all agencies and newspapers.

In ruling about the accident reports, the court wrote, "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. Wisconsin law specifically requires police departments to release accident reports upon request. We therefore affirm the circuit court’s decision with respect to the accident reports."

But the court ruling continued, stating, "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 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 ... 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)."

In further explaining its reasoning for remanding the incident report issue back to the circuit court, the judges on the Appeals Court wrote: "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."

Background on the case

In 2013, former New Richmond News publisher Steven Dzubay tested the waters by filing a public records request with the New Richmond Police Department for several police reports.

The department, however, redacted identifying information of the owners of vehicles in two motor vehicle accident reports, and also withheld identifying information of those referenced in an incident report about gas theft.

Dzubay's arguments with the city and its police department fell on deaf ears and when Mark Samelstad, the city's former police chief, decided to continue the practice of redaction, Dzubay and the newspaper sued the city in March 2013.

A year later, St. Croix County Circuit Judge Howard Cameron ruled in favor of the newspaper, concluding that DPPA does not prohibit release of drivers’ names and addresses for several reasons.

According to Cameron, DPPA allows a police department to release names and addresses when “carrying out its functions,” stating that an essential function of police and all other units of government in Wisconsin is to comply with the state’s public records law.

Cameron went on to say that information about motor vehicle accidents is specifically exempted from DPPA’s definition of “personal information.”

The city appealed Cameron’s ruling to the state Court of Appeals, but the city and newspaper later asked the state Supreme Court to review the case directly.

The Supreme Court accepted that request and heard arguments this past September.

Prepared statement from city legal representative

The City of New Richmond received a decision from the Wisconsin Court of Appeals involving New Richmond News’ lawsuit against the City involving the State’s Public Records Law and the federal Drivers Privacy Protection Act (DPPA).

The City is aided in its defense by the League of Wisconsin Municipalities Mutual Insurance Trust (LWMMI) which has agreed to fund the appeal because this issue has important statewide implications and needs clarification. 

The court issued a split decision, finding the police department was permitted to release unredacted copies of the accident reports requested by the Newspaper.

However, the City believes the balance of the decision affirms its handling of other records and vindicates its interpretation of the complex privacy interests between the DPPA and the State’s public records law.

The DPPA is a federal law that protects the privacy of personal information assembled by Departments of Motor Vehicles. The federal law provides that DMVs and other users “shall not knowingly disclose or otherwise make available” either “personal information” or “highly restricted personal information” including an individual’s photograph, social security number, driver identification number, name, address, telephone number, and medical or disability information.

New Richmond News requested copies of motor vehicle accident reports and other records from the City’s Police Department. The records were disclosed but with redactions for personal information pursuant to the DPPA.

One of the issues on appeal involved whether the DPPA yields to the Public Records Law due to an exception in the DPPA authorizing disclosure “for use by any . . . law enforcement agency in carrying out its functions.”

Tuesday's decision sides with the City of New Richmond in this regard and in other ways. The court recognized access to public records is not absolute and may have to yield to this important federal law guarding privacy. The court also agreed with the City that interpreting the “agency function” in a broad fashion would allow disclosure of personal information based solely on the fact a public records request has been made. In this way, the court acted appropriately in vindicating the City’s concern with protecting privacy and avoiding liability exposure to municipalities.