Damage from data snooping hard to prove

Attorney Brook Mallak of Brainerd was mortified to discover last year that law enforcement officers had accessed private information from her driver's license records nearly 200 times, sometimes at 3 or 4 a.m.

"They could be doing this at home," said Mallak, a former public defender. "How creepy is that? I don't want to sound like a teenager but it grosses me out."

In what local lawyers consider a breakthrough decision, U.S. District Judge Donovan Frank ruled recently that Mallak's lawsuit is a plausible case that should proceed to the next step. That makes hers the first suit against law enforcement agencies for intrusions into driver's license information that hasn't been dismissed by local federal judges.

Judges Joan Ericksen and David Doty together have tossed out their first five cases on the "lookups," sending a chill through the legal community, which thought it might have struck gold when it became known about a year and a half ago that thousands of law enforcement officers across the state might be improperly looking up the driver's licenses of people, primarily women. Under U.S. law, each wrongful lookup is worth $2,500 to the victim and the payouts.

The data includes age, height, weight, address and a photo.

"This is nothing more than stalking," Charles Samuelson, president of the American Civil Liberties Union of Minnesota, said this week. But proving it is another matter.

The outcome in these cases affects everyone, because public dollars are at stake, with payouts coming from government-funded insurance trusts.

Under state data practices laws, one can obtain a list of the agencies that accessed the license data from the state Department of Public Safety. After news got out about Rasmusson and a few other cases, the department was swamped with requests and more suits followed. In 2013, the DPS got 1,186 requests from people wanting to know if their driver's license data had been searched. There have been 224 requests in 2014. At least 52 lawsuits have been filed.

The two heavyweight insurance trusts from the League of Minnesota Cities and the League of Minnesota Counties teamed up to defend their clients and have proved successful so far. In their rulings, judges Ericksen and Doty said that just because someone has been looked up by police hundreds of times does not prove the action was inappropriate.

Nor, they say, have the claims shown the individuals have been harmed. The information that officers retrieve is so basic that it does not constitute a constitutional violation or an invasion of privacy, they said.

One factor is that data disclosed by the state DPS list the number of lookups and the agencies, but not the reasons or the officers involved.

"I am surprised the judges are finding no cause of action," said Joseph Daly, professor emeritus of law at Hamline University. "But if you do not lay enough facts to show there is harm, they will dismiss it."

"It does change the game in terms of the court recognizing that these are plausible claims under the federal statute and discovery is appropriate," said Sonia Miller Van-Oort, Mallak's attorney and a member of the Sapientia Law Group, which represents hundreds of Minnesotans making similar claims.

When authorities acknowledge misconduct, it can change the legal dynamic. Rock County authorities disciplined two supervisors and fired child support officer Janet Patten, who searched the files of about 2,300 people. That paved the way for a recent $2 million settlement of a class-action suit filed by attorney Robert Bennett.

A class-action suit continues against John Hunt, fired for making about 19,000 lookups while he worked for the state Department of Natural Resources.

The U.S. Court of Appeals also will be asked to consider the issue.

Sapientia attorney Kenn Fukuda says his office is appealing three suits dismissed by Ericksen and Doty to the 8th U.S. Circuit Court of Appeals. An appeal is also expected from attorney Marshall Tanick, who had most of another suit tossed out by Ericksen. "There are enough cases around the country that it could ultimately be before the U.S. Supreme Court in a year or two," said Tanick. "The stakes are fairly large."

The state, city and county leagues' insurance trusts offer an online training program on the proper way to search driver's license information, said Tom Grundhoefer, general counsel for the League of Minnesota Cities.

So far, 3,553 employees have taken the course.