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State Supreme Court hears NR News v. city of NR case

 Citizens cannot effectively monitor how the government exercises police power because a federal privacy law is being misapplied, a lawyer representing the New Richmond News told the Wisconsin Supreme Court on Friday, in a case that could have statewide implications for how law enforcement agencies release information to the public and the press.

“Congress did not intend to tell police they could not treat accident reports as public information,” Robert Dreps, a Madison attorney who represents the New Richmond News said in an open records lawsuit the newspaper filed more than two years ago against the city of New Richmond.

At issue in the case is whether police are prohibited from releasing the names and addresses of those referenced in law enforcement and motor vehicle accident records in certain situations.

The Driver's Privacy Protection Act, or DPPA, was enacted in 1994 in response to privacy concerns and regulates how states use and disclose driver information.

The city contends it is required by DPPA to black out personal information from police records when such information comes from the state’s Division of Motor Vehicles, while the newspaper disagrees with that claim.

Up until a few years ago, police in Wisconsin had routinely released the names and addresses of those involved in traffic accidents and other incidents.

But that came to a halt in many communities in the state after a 2012 federal appeals court ruling that prompted municipalities and their insurers to be concerned they could face significant liability for unauthorized disclosure of information.

It is in that context from which the lawsuit stems: Two years ago, New Richmond News and Hudson Star-Observer publisher Steven Dzubay filed a public records request with the New Richmond Police Department for several police reports.

Citing DPPA and that federal court ruling, the department redacted identifying information of the owners of vehicles in two motor vehicle accident reports, and also withheld identifying information of those referenced in an incident report about gas theft.

Dzubay and the newspaper sought to convince the city it was wrong, but when unsuccessful, they sued in March 2013.

A year later, after legal wrangling over whether the case should be heard in state or federal court, St. Croix County Circuit Judge Howard Cameron ruled in favor of the newspaper, concluding that DPPA does not prohibit release of drivers’ names and addresses for several reasons.

Cameron held that DPPA allows a police department to release names and addresses when “carrying out its functions,” noting that an essential function of police and all other units of government in Wisconsin is to comply with the state’s public records law.

Further, Cameron said, information about motor vehicle accidents is specifically exempted from DPPA’s definition of “personal information.”

The city appealed Cameron’s ruling to the state Court of Appeals, but the city and newspaper later asked the state Supreme Court to review the case directly.

The Supreme Court accepted that request.

In arguments before the high court’s justices on Friday, Remzy Bitar, an attorney representing the city, disagreed with the circuit court’s decision and sought to frame the case as a fundamental conflict between two competing values: transparency and privacy.

While the city cannot release personal information because of DPPA, Bitar argued, other information about accident reports can still be released, such as the nature of car accidents, where and when they occur, whether anyone was injured and road conditions.

“There’s still a lot of information that can be released,” Bitar said.

But Dreps, the newspaper’s attorney, cautioned against the city’s reading of DPPA, telling the justices that without releasing identifying information of people involved in cases, police cannot show they are sufficiently or fairly enforcing laws.

Dreps also noted that municipalities in other states are not raising the same argument the city of New Richmond is making.

While not every state allows for public access to motor vehicle accident reports, Wisconsin has done so dating back to 1965, Dreps said.

That remark drew a response from Supreme Court Justice Shirley Abrahamson, who noted a shift over the past 50 years in how information is shared and accessed.

“Life has changed since 1965,” Abrahamson said.

Government officials and freedom of information advocates are watching the case closely. Municipal and county associations filed friend-of-the-court briefs backing the city of New Richmond’s position, while the Wisconsin Newspaper Association and Reporters Committee for Freedom of the Press filed a brief arguing in support of the New Richmond News.

The state attorney general’s office also filed a brief reaffirming a 2008 AG opinion, which found DPPA does not prohibit access to names and addresses in police reports.

A decision from the state Supreme Court could come in the next few months.

--by Jonathan Anderson, special to the Hudson Star-Observer