Attorneys from Sapientia Law Group — Kenn Fukuda, Larry Fett, Sonia Miller-Van Oort and Mark Zitzewitz. The files on the table are from a case that had more than 750 DVS lookups.
GLEN STUBBE • email@example.com,
Larry Fett is an attorney from Sapientia Law Group, one of the main law firms driving litigation against local governments.
Glen Stubbe • Star Tribune,
Aug. 19: Driver's license snooping gets costly for taxpayers
- Article by: ERIC ROPER
- Star Tribune
- August 19, 2013 - 10:06 AM
Already about 18 individual suits wading through federal court claim that public employees — mostly in law enforcement — snooped into the sensitive records, while at least another 23 people have alerted governments they intend to sue. More are likely on the way.
“We haven’t seen anything like this in the city’s history,” said St. Paul City Attorney Sara Grewing. The city is named in six lawsuits and 16 notices of claim — an alert that typically precedes a lawsuit — seeking $3.5 million in damages.
The claims target about 200 governments in all corners of the state, from the Twin Cities to small towns like Slayton. The largest cities and counties would be on the hook for their own damages, while most others are covered under joint insurance plans that would likely grow more expensive.
Attorneys are eagerly anticipating key rulings from federal judges later this year that could determine whether cases move forward and more are filed.
One central question is whether merely viewing someone’s driver’s license data without an official purpose qualifies as misuse under federal law, which provides for at least $2,500 in damages per violation. The one known Minnesota ruling on that question so far, issued in June, said it does.
The Driver and Vehicle Services (DVS) database contains historical photographs, addresses and driving records on Minnesotans with a license. It is protected by federal law against misuse, but a state audit in February found it has been routinely abused by law enforcement personnel.
A Star Tribune survey of major cities and counties and the insurers for smaller government bodies show the total number of inappropriate lookups being claimed now surpasses 8,400. That count excludes a lawsuit seeking class-action status against the state involving a Department of Natural Resources employee who allegedly made about 19,000 lookups.
“This is unprecedented for us, both in terms of magnitude, in terms of number of departments, and, frankly, in terms of the potential financial exposure,” said Tom Grundhoefer of the League of Minnesota Cities Insurance Trust, which is representing about 148 cities in DVS suits.
New claims come in daily. Some seek damages of $10,000 per violation, while some suits seek more than $1 million altogether. “The single greatest factor driving the cost of these claims is the plaintiff’s attorneys fees, which will only increase as litigation continues,” said Robyn Sykes with the Minnesota Counties Intergovernmental Trust, which is representing 45 counties. Sykes said the expenses could be passed along to governments as higher rates.
The plaintiffs, most of them women, include former police officers, TV news personalities and ex-partners of public employees. Many requested audits of their driver’s license files and were shocked to find hundreds of lookups, despite few if any run-ins with the law. More than 650 people have asked for audits of their files, according to the Department of Public Safety.
The rash of litigation began in 2012 with former cop Anne Marie Rasmusson, who eventually won more than $1 million in settlements — plus reforms to the database — in an ongoing case. Her law firm, Sapientia Law Group, said last week it is now handling upward of 30 DVS matters.
One Sapientia attorney, Larry Fett, said he was surprised that few employees were disciplined in the wake of the Rasmusson case and hopes that civil damages will act as a deterrent. He asserted that officers are already wasting taxpayer dollars by spending public time misusing the database. “We want to change that.”
What is a violation?
The civil complaints follow a similar script, alleging that employees violated the Driver’s Privacy Protect Act (DPPA), a federal law passed in 1994 after an actress was murdered by a stalker who located her using driver records. The law outlines permissible uses of the data and says users cannot “knowingly … obtain or disclose personal information, from a motor vehicle record” without a permitted use.
Government defendants argue that merely viewing the data without a permitted purpose does not violate the act, and that plaintiffs should have to prove they were injured. Finding otherwise would subject Minnesota governments to “potentially overwhelming financial exposure” and have a chilling effect on normal use of the database in law enforcement work, attorneys wrote in a recent case involving a former police union attorney.
A federal judge recently weighed in in an ongoing suit involving a man who says the Onamia police chief accessed his DVS data inappropriately and provided it to a third party who harassed him. Harassment or not, “a person may still violate the DPPA if he retrieves motor vehicle records and does not misuse the information; simply retrieving records without a permitted purpose is a violation,” Judge Ann Montgomery wrote in an order denying a motion to dismiss.
The Onamia ruling could offer a preview of other DVS cases. “It’s the first that I’m aware of that a federal judge in Minnesota has had to actually issue a substantive decision in a [DVS] case against a law enforcement officer,” said Brandon McDonough, the plaintiff’s attorney. The league countered that the ruling is unique to that case and “we don’t learn much from it that will impact any other cases.”
‘Proving a negative’
Even if the plaintiffs’ legal arguments are upheld, proving whether DVS queries from years ago were not police work could be a herculean task.
“It becomes very burdensome to try to … be proving a negative on something that happened a long time ago that may not be easy to prove either way,” said Duluth City Attorney Gunnar Johnson.
Attorneys at Sapientia say they’ve done all they can to eliminate legitimate lookups, such as only including lookups of a name — rather than license plate. “Beyond that, though, it’s the state … or individual officers who … have the information of whether or not it was looked up for a permissible purpose,” said Sapientia attorney Mark Zitzewitz. “That’s why the burden is on them.”
Other questions involve how lookups should be counted and whether older incidents qualify under the statute of limitations. Government attorneys say the suits have so far taken the most expansive view.
“We’re asking ourselves, ‘$2,500 per lookup, plus attorneys fees, is that really what Congress intended when it set out to protect people’s very legitimate privacy interests?’ ” Grewing said. “I think we want to clarify what ‘lookup’ means.”
What appears likely is that the issue will be playing out for some time.
“It’s the tip of the iceberg,” Johnson said. “If there’s some money to be made here, it’s going to dredge up a lot of claims.”
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