Television personalities, a state representative and Mrs. Minnesota United States 2007 were among the local luminaries who failed to prove that police officers improperly snooped into their driver’s license records, a federal appeals court ruled this week.
The opinion is the latest blow to plaintiffs who have swamped cities and counties across the state with lawsuits in recent years, alleging that police and other public employees wrongly accessed their private data. About 50 plaintiffs are still pursuing cases, according to the League of Minnesota Cities, but successive court rulings have severely narrowed which queries of the state’s Driver and Vehicle Services database should be considered improper.
In its opinion this week, the Eighth U.S. Circuit Court of Appeals agreed with a lower court’s dismissal of nine lawsuits and allowed four others to move forward against a limited number of cities. It is the court’s second opinion on the matter, following a 2015 decision on an earlier wave of lawsuits.
“In terms of the taxpayers being benefited by this decision, it’s massive,” said attorney Jon Iverson, whose firm represents more than 150 cities named in the lawsuits. He called the opinion a “complete victory” for cities in the majority of cases.
Attorneys representing plaintiffs said it was disheartening that many of their clients won’t be able to pursue cases that might illuminate why officers were making hundreds of queries of the data.
“The Drivers Privacy Protection Act has very little meaning if the people who are in a position to hold people accountable aren’t willing to do so. And clearly that was the case here,” said attorney Sonia Miller-Van Oort — whose firm Sapientia Law Group represents many of the plaintiffs — referring to the federal law that protects driver information.
The lawsuits began several years ago after high-profile breaches of the state’s DVS database, which contains photographs, addresses and driving records of Minnesotans with a license. The state’s legislative auditor later found that many law enforcement personnel were misusing their access to the database, calling it “a real problem.”
Many plaintiffs in the lawsuits decided this week were members of the media — or people who appeared in the media — who found that officers had accessed their files hundreds of times in some cases. They include KSTP’s Jay Kolls, KMSP’s Tim Sherno and Alix Kendall, Laureen Barghini of myTalk 107.1’s “Lori & Julia” show, Cynthia Porter, formerly of the Winona Post, and Ashley Arcaro, formerly Ashley Trainer, who appeared on “Survivor: Samoa” in 2009.
Others plaintiffs were former law enforcement personnel, a frequent beauty pageant contestant and a group of southeastern Minnesota citizens that included state Rep. Steve Drazkowski, R-Mazeppa.
The Eighth Circuit has said it is not sufficient for plaintiffs to merely point to a high volume of lookups, however. “When there are no allegations of concerted activity, something more is needed to nudge the allegations across the line of plausibility and tie the conduct of specific Defendants to a more general inference of impermissible purpose,” the court ruled in 2015.
A pattern of late-night lookups, lookups tied to a significant event or multiple lookups within a short period across multiple agencies may be enough to push a case forward, the court said.
In the latest round, the court found that the allegations were insufficient to “nudge” most of the complaints forward.
Some cases advance
Enough lookups followed Arcaro’s appearance in “Survivor,” on the other hand, that part of her case was allowed to proceed.
Kendall, for example, sued 169 cities and counties after learning that law enforcement and other public employees had accessed her private information 3,844 times over nine years. She is co-host of the morning show on Fox 9, and several hundred of the lookups occurred while she was on the air — and therefore not driving or communicating with law enforcement.
But many lookups were also not within the four-year statute of limitations that courts have said they will consider. And the courts have also said they consider several lookups within a short time frame to be a single access.
A limited version of her case was allowed to move forward against Minneapolis and St. Paul, however, because of what were deemed to be suspicious patterns in those cities. In Minneapolis, one user accessed Kendall’s file 69 times.
Miller-Van Oort, whose firm represents Kendall, said that leaves about 30 lookups out of the original batch.
“It’s really hard to understand the logic and justification that 30 seem suspicious and the other 3,800 do not,” Miller-Van Oort said.
Many cases are still moving through the courts, with the first trials expected early next year. Tom Grundhoefer, general counsel of the League of Minnesota Cities, said the issue is far from over.
“You’re still talking a fair number of cases and claims, and it can add up to, objectively, a significant amount of dollars,” Grundhoefer said. “But compared to where it was … it’s obviously significantly diminished.”