Archive for June, 2013

Privacy Wins in Two Cases re Release of Personal Info from Driver’s Licence Records

Monday, June 24th, 2013

The Driver’s Privacy Protection Act (“DPPA”), 18 U. S. C. §§2721et seq. is a federal statute which regulates the disclosure of personal information contained in the records of state motor vehicle departments.  The general rule of thumb (policy) of the DPPA is that disclosure of personal information is prohibited, unless the disclosure is allowed by an exception.  There is an exception in the DPPA for use in connection with “investigation in anticipation of litigation.”

A recent U.S. Supreme Court decision has held that “Solicitation of prospective clients is not a permissible use “in connection with” litigation or “investigation in anticipation of litigation” under (b)(4) of the DPPA.”  In Maracich v. Spears, the Supreme Court held that a law firm may not use department of motor vehicle records to solicit or market their services to clients.  A law firm had been seeking clients to join in a lawsuit against a car dealership, and sent out thousands of letters to people based on information it had received from the South Carolina department of motor vehicles.  Note that this is NOT a blanket policy against releasing records to attorneys.  It is still a legally recognized exception and a legitimate request if a lawyer makes it in the context of a specific case for which he or she is providing representation, and there may be some complicated judgments to be made if a lawyer is “investigating” a potential case.

The Spears case is of special interest in Wisconsin, where in general, it has been the practice of police departments to release accident reports when they were requested by a law firm, pursuant to Wisconsin Statute 346.70(4)(f), as interpreted by case law, State ex rel. Young v. Shaw, 165 Wis. 2d 276, a Wisconsin Attorney General’s opinion (I-02-08), and the Wisconsin Attorney General’s Public Records Compliance Outline. It would appear that the DPPA and Spears will preempt Wisconsin law.

In a related DPPA case, Senne v. Village of Palatine, the 7th Circuit Court of Appeals held that placing a parking ticket on a car’s windshield which contained information which was obtained from the Illinois Department of Motor Vehicles violated the prohibition on disclosure.  The Supreme Court has denied certiorari on June 24, 2013, which means that they will not hear the case.  Thus Senne remains the law in the 7th Circuit, which includes Wisconsin; police may not “disclose” personal information they got from their respective motor vehicle departments, which would include placing a citation on a car where any passerby could see it.

The Wisconsin League of Municipalities has requested updated guidance from the Wisconsin Attorney General. As soon as there is any news I will post it here.  In the meantime, Police Departments faced with a request for accident reports or any other type of document which contains personal information obtained from the department of motor vehicles should consult with their municipal attorney before releasing any such documents.

Special Assessments and Notice Pleading

Thursday, June 6th, 2013

In a recently published case that is perhaps most important to attorneys as a caution to make sure you say what you want when you sue or appeal a municipality, CED Properties LLC appealed a special assessment charged to it for roadwork done in front of a property it owns.  The property was on a corner, and in fact, the City of Oshkosh had imposed two special assessments, one for the portion on one street at $19,241, the other for the portion on a different street at $19,404.  When CED appealed, it only listed one special assessment for $19,241.  Many months later, long after the 90 day appeal period had passed, CED attempted to amend their appeal to add the second amount.  The circuit court allowed the first amount, but not the second, saying CED was too late on the second -  unfortunately for CED, because its case apparently had merit as the court ruled in its favor on the first amount, but not the second due to untimeliness.

CED attempted to argue that under Wisconsin’s liberally construed pleading laws, the initial appeal should have been considered as encompasing both special assessments, and the amended appeal should have been allowed to “relate back.”  But under the facts of this case, the City had clearly made two different special assessments, not one, and CED had clearly only appealed the initial $19,241, and had not mentioned the $19,404 until after the time to appeal had passed.  CED had not pled any facts in its initial appeal that would have put the City on notice that it was appealing the full amount, over $38,ooo.  CED had only stated $19,241.

Although not discussed in the case, one can speculate that CED perhaps was initially confused since both amounts were similar, and it had not paid careful attention to the special assessments perhaps thinking there was only one?  Of course I’m speculating, but given the facts in the appeallate ruling, this seems plausible.  Nevertheless, the City had followed the property procedures for two special assessments and clearly indicated they were for two different strees, and the court would not “merge” them together.