Lakeville private eye latest to sue over misuse of DVS records

A Twin Cities newspaper featured private investigator Hilary DeVary's picture on its front page seven years ago for her work catching cheating spouses. It wasn't long, however, before the tracker was being tracked.

Within two days of the article's publication, employees at 11 law enforcement agencies, two state departments and even the U.S. Postal Inspector's office accessed DeVary's driver's license file 35 times, according to records that form the basis of a lawsuit DeVary plans to file Thursday. It marks the 10th federal lawsuit over misuse of driver's license data filed in Minnesota against local governments and state agencies in just over a year.

DeVary, of Lakeville, checked into her file after learning recently that her records were among thousands breached by a former employee at the Department of Natural Resources (DNR). State documents showed that 166 queries — some of them duplicates — had been made by a variety of agencies on her file since 2003, plus 56 on her husband and business partner, Jon. "I couldn't believe what I saw," said DeVary, who believes many of the lookups were inappropriate.

The state's Driver and Vehicle Services (DVS) database, which contains photographs, addresses and driving records, is protected by state and federal law against unauthorized use. Legislators are now seeking more transparency surrounding misuse after state records and a recent legislative auditor's report showed that abuse is common among public employees.

Former St. Paul police officer Anne Marie Rasmusson sued a year ago claiming that more than 140 officers throughout Minnesota had breached her file; she won more than $1 million in settlements from local governments, as well as reforms to the system. Since then, the litigation has become rampant.

Minneapolis City Attorney Susan Segal said the federal statute that protects driver data has not been widely interpreted by the courts nationally. Questions remain, for example, about how damages are calculated.

"We are going to try to get some reasonable rulings out of the court," Segal said, speaking generally. "Because while people have an absolute right to expect that private information in the hands of governmental agencies is only going to be accessed appropriately, it's another thing for people to get a windfall out of taxpayer dollars."

More could be on the way. The Department of Public Safety, which oversees the database, said Wednesday that "approximately" 144 people since Jan. 1 have asked to see the queries on their DVS files.

DeVary's attorney, Marshall Tanick, said this case stands out "because of its pervacity. Because it's unusual insofar as Hilary is a licensed private investigator … and is in the public eye to a significant extent."

Just how much the lawsuits will cost the state and local governments remains to be seen. Many of the cities have insurance through the League of Minnesota Cities, which helped cover the Rasmusson settlement.

"Obviously there's a limited amount of public dollars and [it will] probably impact some other things as well," said Tom Grundhoefer, general counsel for the league.

William McGeveran, a law professor specializing in data privacy at the University of Minnesota, said the overwhelming majority of federal class action lawsuits are settled. Civil damages — federal law allows for damages of at least $2,500 per DVS misuse — are meant to replace other penalties such as fines, he said.

Since 2003, data show that various agencies, including police departments, looked into various parts of DeVary's driving record 166 times. Some of the inquiries were only a few minutes apart, suggesting that the same officer may have been looking at various parts of her driving information, including her photo.

Calculating that any inquiry by one agency within a single hour might have been performed by a one official doing multiple searches, the Star Tribune estimates that DeVary's motor vehicle records were searched on at least 113 separate occasions over the past decade.

Some of these searches had legitimate purposes, as DeVary acknowledges, such as when she renewed her detective license or when motor vehicle authorities checked her records when she renewed her driver's license. Several of the lookups appeared to be from when she was stopped several times for driving infractions.

But many other searches appear to have no legitimate reason, as happened after the St. Paul Pioneer Press featured her in the story about her detective agency when her last name was Kost.

"Why, if there's a photo [in the paper], do you want to go further and find out where I live?" she said. "And that is what is so incredibly frightening."

DeVary acknowledges that there are "many ways of finding people" and she frequently performs "locates" in the course of her work. She said the goal of the lawsuit, however, is to hold people accountable.

The Department of Public Safety conducts monthly audits of the top 50 users of the DVS database, and has recently started performing random audits as well. As part of the Rasmusson settlement, the department agreed to continue the existing audits, do new audits on top search targets and augment law enforcement training.

Eric Roper • 612-673-1732