MARK LEONARD MILLIGAN, Appellee, vs. OTTUMWA POLICE DEPARTMENT and CITY OF OTTUMWA, IOWA, Appellants.
No. 17–1961
IN THE SUPREME COURT OF IOWA
Filed January 3, 2020
Randy DeGeest, Judge.
A city appeals a district court judgment ordering it to release to a citizen the identities of all individuals detected as speeding by its automated traffic enforcement program under the Iowa Open Records Act. REVERSED AND REMANDED.
David E. Schrock and Skylar J. Limkemann of Smith Mills Schrock Blades Monthei P.C., Cedar Rapids, for appellants.
Steven Gardner of Denefe, Gardner & Zingg, P.C., Ottumwa, for appellee.
Brent L. Hinders, Eric M. Updegraff, and Alex E. Grasso of Hopkins & Huebner, P.C., Des Moines, for amicus curiae Iowa League of Cities.
I. Introduction.
This case requires us to interpret provisions of the Driver‘s Privacy Protection Act of 1994 (DPPA),
A city police sergeant was driving a patrol vehicle while off-duty. He received an automated traffic enforcement (ATE) citation for speeding from the city. As a private citizen, he then served a chapter 22 open records request. He specifically asked for the names of all persons who had and had not been issued ATE citations by the city after their vehicles were detected as speeding by an ATE camera.
The city denied the request for the names, contending the DPPA and
On appeal, the city contends that the district court erred in ordering the production of records whose disclosure is prohibited by the DPPA and
We agree with the city‘s first argument. Because the personal identifying information sought by this citizen comes from a vehicle registration and driver‘s license database, its public disclosure is presumptively prohibited under the DPPA and
II. Facts and Procedural Background.
The facts in this case are lаrgely undisputed. To enforce its speeding ordinances, the City of Ottumwa uses an unmanned ATE vehicle provided by RedSpeed, a third-party contractor. After the ATE vehicle detects and photographs a speeding vehicle including its license plate number, RedSpeed documents the violation, accesses the National Law Enforcement Telecommunications System (NLETS) database to obtain the name of the registered owner of the vehicle, and uploads that information to an Internet portal. This enables a City police officer to review the materials and approve or reject the issuance of a citation. The reviewing officer also verifies the vehicle owner information. If the officer approves the issuance of a citation, RedSpeed relies оn the registered owner‘s information obtained from NLETS to mail the owner a citation, including the photographs of the violation and information on the vehicle‘s speed.
As noted, the City‘s ATE enforcement program is supported by use of the NLETS database. The NLETS database is a clearinghouse used nationally by law enforcement agencies. It contains motor vehicle, registration, and driver information submitted by state departments of motor vehicles.
On the night of May 24, 2016, an ATE camera detected an off-duty patrol car going forty-one miles per hour in a twenty-five miles-per-hour zone. It was later determined that the driver was Mark Milligan, a police sergeant who worked for the City. After discovering that Milligan was the driver, the City forwarded the citation to him, although the City was of
On August 1, Milligan—acting as a private citizen—submitted a written public records request to the City under
The names of violators issued citations from the Ottumwa Police Department once the violation is reported by Red Speed to the City of Ottumwa[,] Iowa.
The names of violators not issued citations after being reported as violations by Ottumwa Police Department.1
On the advice of counsel, the City refused to release either set of requested names. The reason it gave for the denial was that “[i]nformation obtained by Red Speed is accessed through the NLETS portal and is confidential information under state and federal law.” The City did, however, provide the other requested items.
On September 12, Milligan filed in the Wapello County District Court a petition in equity and request for an order of mandamus pursuant to
On February 9, 2017, the City filed a motion for summary judgment. It asserted it was entitled to judgment as a matter of law because Milligan‘s “requests seek confidential information that is prohibited from being disclosed under federal and state law“—meaning, the disclosure is prohibited by the DPPA,
Following a hearing, the district court denied the City‘s motion. Later, the district court also denied a revised version of the City‘s motion for summary judgment.
Two days later, on December 7, Milligan submitted an application for attorney fees and nontaxable expenses. See
III. Standard of Review.
We review the district court‘s interpretations of the DPPA,
We review the amount of an award of attorney fees and costs for an abuse of discretion. City of Riverdale v. Diercks, 806 N.W.2d 643, 652 (Iowa 2011).
IV. Did the District Court Err in Ordering the City to Produce the Names of Individual Vehicle Owners Requested by Milligan?
We must determine whether the DPPA and its Iowa counterpart,
A. The Iowa Open Records Act. At the outset, we acknowledge that the Open Records Act embodies “a liberal policy in favor of access to public records.” Mitchell v. City of Cedar Rapids, 926 N.W.2d 222, 229 (Iowa 2019) (quoting Hall v. Broadlawns Med. Ctr., 811 N.W.2d 478, 485 (Iowa 2012)). The Act provides, “Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.”
B. The Driver‘s Privacy Protection Act of 1994. The DPPA “regulates the disclosure and resale of personal information contained in the records of state motor vehicle departments (DMVs).” Reno v. Condon, 528 U.S. 141, 143, 120 S. Ct. 666, 668 (2000); see also Locate.Plus.Com, Inc. v. Iowa Dep‘t of Transp., 650 N.W.2d 609, 614 (Iowa 2002) (“Congress also sought to curb the common practice by many states of selling information in motor vehicle records to businesses, marketers, and individuals.“). The genesis of the DPPA was the 1989 murder of a television actor at her home. Locate.Plus.Com, 650 N.W.2d at 614 n.2; Maureen Maginnis, Note, Maintaining the Privacy of Personal Information: The DPPA and the Right of Privacy, 51 S.C. L. Rev. 807, 809 (2000) [hereinafter Maginnis]. The actor was killed by a stalker who had hired a private detective to obtain her unlisted apartment address from the California Department of Motor Vehicles. Locate.Plus.Com, 650 N.W.2d at 614 n.2;
In pertinent part, the DPPA provides,
(a) In general.—A State department of motor vehicles, and any officer, еmployee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity:
(1) personal information, as defined in
18 U.S.C. § 2725(3) , about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section[.]
For DPPA purposes, the “State department of motor vehicles” in Iowa is the Iowa Department of Transportation (IDOT). See
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
informаtion, but does not include information on vehicular accidents, driving violations, and driver‘s status.
Section 2721(b) of the DPPA, however, carves out several exceptions to the nondisclosure rule.
(b) PERMISSIBLE USES.—Personal information referred to in subsection (a) shall be disclosed for use in connection with matters of motor vehicle or driver safety and theft, motor vehicle emissions, motor vehicle product alterations, recalls, or advisories, performance monitoring of motor vehicles and dealers by motor vehicle manufacturers, and removal of non-owner records from the original owner records of motor vehicle manufacturers to carry out the purposes of titles I and IV of the Anti Car Theft Act of 1992, the Automobile Information Disclosure Act (
15 U.S.C. 1231 et seq. ), the Clean Air Act (42 U.S.C. 7401 et seq. ), andchapters 301, 305, and 321–331 of title 49 . . . .
(b) PERMISSIBLE USES.—Personal information referred to in subsection (a) . . . subject to subsection (a)(2), may be disclosed as follows:
(1) For use by any government аgency, 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.
. . . .
(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.
. . . .
(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.
In addition to restricting the initial disclоsure and sale of personal information derived from motor vehicle records by state motor vehicle departments and their contractors, the DPPA “regulates the resale and redisclosure of drivers’ personal information by private persons who have obtained that information from a state DMV.” Condon, 528 U.S. at 146, 120 S. Ct. at 669. Simply stated, an authorized recipient may redisclose personal information in connection with a motor vehicle record obtained directly or indirectly from a state motor vehicle department only for a use that would have been a permissible basis for obtaining the information in the first place. See
Finally, the DPPA establishes civil and criminal penalties for violations. E.g.,
C.
1. All records of the department [of transportation], other than those made confidential or not permitted to be open in accordance with
18 U.S.C. § 2721 et seq. , adopted as of a specific date by rule of the department, shall be open to public inspection during office hours.2. Notwithstanding subsection 1, personal information shall not be disclosed to a requester, except as provided in
18 U.S.C. § 2721 , unless the person whose personal information is requested has provided express written consent allowing disclosure of the person‘s personal information. As used in this section, “personal information” means information that identifies a person, including a person‘s photograph, social security number, driver‘s license number, name, address, telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver‘s status or a person‘s zip code.3. Notwithstanding other provisions of this section to the contrary, the department shall not release personal information to a person, other than to an officer or employee of a law enforcement agency, an employee of a federal or state agency or political subdivision in the performance of the employee‘s official duties, a contract employee of the department of inspections and appeals in the conduct of an investigation, or a licensed private investigation agency or a licensed security service or a licensed employee of either, if the information is requested by the presentation of a registration plate number. In addition, an officer or employee of a law enforcement agency may release the name, address, and telephone number of a motor vehicle registrаnt to a person requesting the information by the presentation of a registration plate number if the officer or employee of the law enforcement agency believes that the release of the information is necessary in the performance of the officer‘s or employee‘s duties.
D. Answering the Question. As the foregoing demonstrates, the DPPA limits the City‘s ability to redisclose personal information obtained by its contractor from NLETS, a clearinghouse of state department of motor vehicle information. Generally speaking, redisclosure is allowed only when initial disclosure would have been permitted on that basis. See
As we have already noted, relevant to our inquiry are the DPPA exceptions “[f]or use by any government agency,” “[f]or use in connection with any civil, criminal, administrative, or arbitral proceeding,” and “[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.”
The United States Supreme Court has directed that DPPA exceptions should be construed narrowly. Maracich v. Spears, 570 U.S. 48, 60, 133 S. Ct. 2191, 2200 (2013). In Maracich, the Court held that § 2721(b)(4) does not authorize the disclosure of vehicle owners’ names and addresses to attorneys who wanted to use the information to solicit persons to join pending South Carolina litigation. 570 U.S. at 52, 133 S. Ct. at 2196. The Court acknowledged that § 2721(b)(4)‘s “language, in literal terms, could be interpreted to its broadest reach to include the personal information
We believe none of these three exceptions applies here.
First, Milligan is not a government agency, and he does not seek the records to carry out a governmental function. See
Second, there is insufficient proof that the names were needed for use in another proceeding. See
Q. And did you also seek this information for purposes of having it available for your federal lawsuit against the City of Ottumwa and the Chief of Police? A. Yes.
However, there was no testimony explaining why the names of persons cited or not cited for ATE violations were relevant or how they would be used in that case. No information about the federal lawsuit was offered into evidence.
Third, Milligan‘s use of the records was not specifically authorized by a state law relating to motor vehicle or public safety. See
In this case, the district court did not rely on any of the three exceptions found in §§ 2721(b)(1), (4), or (14) of the DPPA. Instead, it relied on the DPPA‘s and section 321.11(2)‘s language permitting disclosure of “driving violations.”
We disagree with the district court. ATE camera citations do not involve “driving violations.” Our court has recognized several features of ATE camera citations that distinguish them from traditional tickets for moving violations issued in person by a law enforcement officer. Most importantly, the ATE camera citatiоn is issued to the vehicle owner, not the driver. See City of Davenport v. Seymour, 755 N.W.2d 533, 537 (Iowa 2008). The cited individual may or may not be a driver.
In addition, citations “are not reported to the Iowa Department of Transportation (IDOT) for the purpose of the vehicle owner‘s driving record.” Id. By contrast, traditional citations are issued to the driver and reported to the IDOT, and go on the recipient‘s driving record, which can result in higher auto insurance premiums or suspension of driving privileges after multiple moving violations.4 In Seymour, we relied on these
Accordingly, the redisclosure of the names of vehicle owners is prohibited by fеderal and state law. We find persuasive the court‘s reasoning in New Richmond News v. City of New Richmond, 881 N.W.2d 339 (Wis. Ct. App. 2016). In that case, a police department relied on the DPPA in redacting personal identifying information such as names and addresses from two accident reports and one incident report it produced to a newspaper under the Wisconsin public records law. Id. at 347–48. The newspaper sued challenging the redactions. Id. at 348. The Wisconsin Court of Appeals framed the issue as follows:
It is undisputed that the Wisconsin DMV disclosed personal information from motor vehicle records to the police department. It is further undisputed that this initial disclosure of personal information was for a permissible use under the DPPA—namely, the police department‘s officers used the information in the course of their duties to complete accident and incident reports. See
18 U.S.C. § 2721(b)(1) (disclosure of personal infоrmation permitted “[f]or use by any government agency . . . in carrying out its functions“). The disputed issue is whether the police department‘s subsequent redisclosure to the Newspaper of personal information contained in two accident reports and one incident report created by its officers would have been permissible under § 2721(c), which regulates the “redisclosure” of personal information by an “authorized recipient.” As relevant here,
the City‘s ATE ordinance is not a “violator of the traffic laws” within the meaning of
such redisclosure is permissible “only for a use permitted under subsection (b).”
Id. § 2721(c) .
The court went on to hold that the police department‘s redisclosure of the personal information in the accident reports was authorized by § 2721(b)(14) of the DPPA because Wisconsin had a separate law specifically mandating that law enforcement agencies provide the public with access to uniform accident reports. Id. at 352; see
[A]ccepting the Newspaper‘s argument wоuld lead to untenable results. If disclosure of personal information in response to public records requests constituted a “function” of government agencies, for purposes of the DPPA‘s agency functions exception, then any time an “authority” under the public records law received a public records request for personal information protected by the DPPA, it could disclose that information. This would include the Wisconsin DMV, which is an authority under the public records law. Permitting the DMV to disclose personal information every time a public records request was made would eviscerate the protection provided by the DPPA, which was enacted to limit the circumstances in which state DMVs could disclose drivers’ personal information in order to protect their safety and privacy.
Id. at 354 (citation omitted). The court also found unpersuasive the newspaper‘s argument that “redaction of personal information in police reports would prevent the public from verifying, and law enforcement from
[T]he agency functions exception to the DPPA cannot be interpreted to permit the disclosure of personal information based solely on the fact that a public records request has been made. . . . [A] public records request is not, in and of itself, a sufficient basis to obtain personal information protected by the DPPA.
Id. “Thus, in circumstances where the DPPA prohibits the release of personal information obtained from DMV records, the public records law exempts that information from disclosure.” Id. at 356.
An Arkansas Supreme Court opinion upholding disclosure in Arkansas State Police v. Wren, 491 S.W.3d 124 (Ark. 2016), spotlights the same distinсtion between accident reports and other motor-vehicle-related records. In Wren, the requester sought access to certain accident reports under the Arkansas Freedom of Information Act (AFOIA) to solicit clients for his law practice. Id. at 125. Prior to disclosure of the reports to the requester, the Arkansas State Police redacted the names from the reports as personal information protected by the DPPA. Id. The Arkansas Supreme Court agreed with the requester that this was improper because vehicle accident reports created by police officers were not “motor vehicle records,” and therefore, names and addresses in such reports were not protected from disclosure by the DPPA. Id. at 128.
Our case is different from Wren. Milligan did not seek information on accident reports.6 As already discussed, he did not seek information
When a legal proceeding for a traffic violation is initiated in the Iowa courts, then subject to certain redactions the record is and should be publicly available from the courts. See Lucas v. Moore, ___ F. Supp. 3d ___, 2019 WL 4346344, at *4 (S.D. Ohio Sept. 12, 2019) (holding that a municipal court‘s disclosure of certain personal information relating to a minor misdemeanor traffic offense on the public judicial website was permissible under the DPPA exceptions found in § 2721(b)(1) and (b)(4)), appeal docketed, No. 19-4010 (6th Cir. Oct. 17, 2019). This principle applies when a city brings a municipal infraction proceeding in court for violation of an ATE ordinance. Court dockets historically in Iowa have been open to the public, predating the Open Records Act. See Judicial Branch v. Iowa Dist. Ct., 800 N.W.2d 569, 575 (Iowa 2011), superseded in part by statute, 2015 Iowa Acts ch. 83, § 1 (codified at
Note also that if we were to adopt Milligan‘s position, then law enforcement in Iowa could be required under the Open Records Act to
Also, in Iowa, a separate statute makes accident reports filed by a law enforcement officer confidential subject to certain exceptions. See
Because we are reversing the district court‘s order that the names of individuals cited and not cited for ATE violations must be disclosed by the City to Milligan, we also reverse the supplemental order awarding attorney fees and costs to Milligan.
V. Conclusion.
For the foregoing reasons, we reverse the district court‘s judgment and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
All justices concur except Wiggins, C.J., and Appel, J., who dissent.
WIGGINS, Chief Justice (dissenting).
I respectfully dissent. Because I conclude that the Iowa Open Records Act requires the City to disclose the information Milligan sought and that neither the Driver‘s Privacy Protection Act of 1994 (DPPA),
My analysis begins with an examination of the Iowa Open Records Act,
The DPPA limits the City‘s ability to redisclose personal information it obtained from the Iowa Department of Transportation (IDOT). In order for the City to redisclose the information sought by Milligan, which it obtained from the IDOT, redisclosure must be allowed under the permissible use section of the DPPA. See
The DPPA allows the disclosure or redisclosure of pеrsonal information for the following purposes:
(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.
. . . .
(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of judgments and orders, or pursuant to an order of a Federal, State, or local court.
. . . .
(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.
It is clear to me that under any one of these exceptions, the City is allowed to disclose the information sought by Milligan. Under § 2721(b)(1), disclosure is allowed because the City is exercising a lawful function under its ordinances when it issues a notice of violation to a person accused of or under investigation for failing to obey a speed limit. See City of Tallahassee v. Federated Publ‘ns, Inc., No. 4:11cv395–RH/CAS, 2012 WL 5407280, at *2 (N.D. Fla. Aug. 9, 2012) (finding a city‘s issuance of “a violation notice to a person accused of, or under investigation for, running a red light” was a lawful function of the city and, therefore, § 2721(b)(1) allowed the disclosure of the person‘s name on the notice). The names of the persons not given a notice of violation are persons under investigation for failing to obey the speed limit.
Under § 2721(b)(4), disclosure is allowed because the City initiatеs an administrative proceeding, albeit as an informal process. See id.; see also Gilday v. City of Indianapolis, 54 N.E.3d 378, 384–85 (Ind. Ct. App. 2016) (holding § 2721(b)(4) allowed disclosure of a vehicle owner‘s name and address on a parking ticket left on the vehicle because the disclosure was “for use in connection with” the administrative proceeding whereby the city finds parking violations and imposes fines).
The majority concludes that ATE citations are not “driving violations” under the DPPA and, impliedly, that ATE citations are, therefore, not “personal information.” See
The accident-report cases are inconsistent—some allow disclosure, some do not. See Wilcox v. Batiste, 360 F. Supp. 3d 1112, 1125 (E.D. Wash. 2018) (acknowledging the unsettled question of whether personal information in accident reports is protected under the DPPA). Compаre Mattivi v. Russell, No. Civ.A. 01–WM–533(BNB), 2002 WL 31949898, at *4 (D. Colo. Aug. 2, 2002) (holding disclosure of an accident report did not violate the DPPA because such reports are not a “motor vehicle record” under § 2725(1) of the DPPA), Ark. State Police v. Wren, 491 S.W.3d 124, 128 (Ark. 2016) (same), and New Richmond News v. City of New Richmond, 881 N.W.2d 339, 352 (Wis. Ct. App. 2016) (finding disclosure of
They are also distinguishable from the factual situation in this case. Here, Milligan was not looking for all the details contained in accident reports—e.g., license plate numbers; driver‘s date of birth, sex, license number, or home address; or the vehicle owner‘s home address. See, e.g., Iowa Dep‘t of Transp., Investigating Officer‘s Crash Reporting Guide 3–4, 11–12 (2015), https://iowadot.gov/mvd/driverslicense/InvestigatingOfficersCrashReportingGuide.pdf (providing instruction to law enforcement on completing accident reports, including what personal information to obtain); Iowa Dep‘t of Transp., Form 433003, Investigating Officer‘s Report of Motor Vehicle Accident 1 (2013), https://one.nhtsa.gov/nhtsa/stateCatalog/states/ia/crash.html (follow “Iowa Crash Report Form 433003, Rev. 11/2013” hyperlink) (IDOT‘s accident report form for law enforcement). Rather, he just wanted the names of vehicle owners who were and were not issued ATE citations following a report of a violation. See Federated Publ‘ns, Inc., 2012 WL 5407280, at *3 (noting redaction of some personal information on a violation notice may be required if that personal information is not necessary to the administrative proceeding or to the violation notice).
In any event, because I find that the information Milligan sought cоuld be disclosed under the exceptions found in § 2721(b)(1), (4), and (14), my analysis does not change regardless of whether the information sought is personal information because, as the majority reasons, it does
Accordingly, I also find that
Having found that the Iowa Open Records Act requires the City to redisclose the information sought by Milligan and that neither the DPPA nor
I also emphasize that Milligan is asking for only the names of persons, not extraneous information such as license numbers, plate numbers, or addresses. The release of this limited information will not be contrary to the purpose of the DPPA, which is to address public safety concerns regarding stalkers’ and other criminals’ easy access to the personal information in IDOT records and to restrain the sale of that information to businesses and individuals. Cf. Senne v. Village of Palatine, 784 F.3d 444, 447–48 (7th Cir. 2015) (balancing the utility of the disclosure against the risk of the harm that was the impetus for the DPPA); Ark. State Police, 491 S.W.3d at 128 (considering Congress‘s intent in
Accordingly, I would hold the Iowa Open Records Act requires disclosure of the information sought and neither the DPPA nor
Appel, J., joins this dissent.
Notes
- The contractual agreement between Red Speed and the City of Ottumwa.
- All information provided to the City of Ottumwa, Ottumwa Police Department regarding all speed violations from Red Speed.
- . . . .
- Any and all policies and procedures established by the City of Ottumwa in regards to the issuance of citations by the Ottumwa Police Department once the violation is reported to the City by Red Speed.
- Any records or recorded conversations of Ottumwa Police Department personnel issuing verbal warnings for Red Speed Violations in lieu of actual citations.
- The individuals authorized to determine whether a citation is to bе issued or not to be issued and any criteria established for such issuance or non-issuance of the citation.
- The calibration records of the Red Speed vehicle.
- The personnel authorized and trained to set up, calibrate, and have access to the Red Speed vehicle deployed in Ottumwa, Iowa by the Ottumwa Police Department.
- Any training records, and or certificates of training, specific to the set up and use of the Red Speed vehicle deployed in Ottumwa, Iowa.