Friday, May 4, 2012

OHP says Driver's Privacy Protection Act blocks release of blood-alcohol test results

The Oklahoma Highway Patrol recently told a newspaper that blood-alcohol test results can't be released because of a federal statute blocking access to personal information on driver's licenses.
But an attorney general opinion and court cases in other states indicate that the Driver's Privacy Protection Act does not prohibit the release of such information.
In refusing the request, the OHP cited two state statutes:
  • 51 O.S. §24A.5(1)(c), which exempts "personal information within driver records as defined by the Driver’s Privacy Protection Act, 18 United States Code, Sections 2721 through 2725."

  • 47 O.S. §6-117(C)(1)(b), which says, "The Department [of Public Safety] shall not be required to furnish personal information from the collision report which is contrary to the provisions of the Driver’s Privacy Protection Act, 18 United States Code, Sections 2721 through 2725."
The Driver’s Privacy Protection Act defines "personal information" as "information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status." (18 U.S.C. § 2725(3))
It defines "highly restricted personal information" as "an individual's photograph or image, social security number, medical or disability information." ((18 USC sec. 2725(4)) This information can be disclosed "without the express consent of the person" for some purposes. ((18 U.S.C. sec. 2721(a)(2))
Medical information collected for a driver’s license would seem to be whether eyeglasses are needed.
But even if the results of a blood-alcohol test were considered "highly personal information" somehow not included in the exemption for "vehicular accidents, driving violations, and driver's status," the DPPA still wouldn't block all public access.
Under the statute, "personal information" and "highly restricted personal information" may be used "by any government agency, including any court or law enforcement agency, in carrying out its functions." (18 U.S.C. § 2721(b)(1))
In 2008, Wisconsin's attorney general concluded, "Responding to public records requests is a required function of law enforcement agencies." (2008 Wisc. AG Lexis 8, at *35)
The DPPA's "permissible use by government agencies in carrying out their functions allows disclosure of personal information and highly personal information in law enforcement records in response to public records requests -- regardless of the nature of the matter in connection with which law enforcement requested the information from the DMV, so long as it was requested in pursuance of the law enforcement agency's official duties and functions," the opinion concluded. (Id. at **33-34)
Of course, blood-alcohol tests aren't conducted when a driver's license is issued in Oklahoma. The results aren't information that law enforcement officers request from the state Department of Public Safety when making a traffic stop or investigating an accident.
Instead, breath tests can be conducted on the scene by the law enforcement agency, such as during a sobriety checkpoint. For example, the Oklahoma County Sheriff's Office, Oklahoma City police and Oklahoma Highway Patrol reported making 28 DUI arrests during a metro sobriety checkpoint and "saturation patrol" this past Saturday night.
To be covered by the DPPA, personal and highly personal information must have been collected by the state agency "in connection with a motor vehicle record," which the statute defines as "any record that pertains to a motor vehicle's operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles." (18 USC sec. 2725(1))
In 2002, a federal judge in Colorado ruled that an accident report obtained from the Colorado State Patrol was not a "motor vehicle record" within the meaning of the DPPA. (Mattivi v. Russell, 2002 U.S. Dist. LEXIS 24409 (D. Colo. Aug. 2, 2002))
The judge rejected the plaintiff's claim that "an accident report is a motor vehicle record because it pertains to a person's ability to drive and own a car and because it could affect a driver's license or title to a vehicle." (Id. at *9)
He also concluded that "the plain language of exception in section 2725(e) makes clear that Congress did not intend 'information on vehicular accidents' to be included within the Act's prohibition of disclosure of "personal information." (Id. at *14)
Relying in part on that ruling, a federal judge in Illinois in 2008 said, "Quite simply, Congress chose to specifically make the DPPA apply to records coming from the DMV and pertaining to a motor vehicle license or permit." (Lake v. Neal, 2008 U.S. Dist. LEXIS 75090, at *8 (N.D. Ill. Sept. 29, 2008))
Likewise, the Wisconsin attorney general emphasized that the DPPA pertains to information sought from a motor vehicle department by law enforcement officers as they do their jobs.
For example, the opinion said reading the DPPA "so restrictively that law enforcement agencies would be precluded from carrying out public records functions, including redisclosing personal information obtained from the state DMV and used in law enforcement reports, would serve neither of the specific purposes identified by Congress for enacting the DPPA: crime-fighting, and controlling commercial use of driver information in driver records held by DMVs." (2008 Wisc. AG Lexis 8, at *20)
"Instead, it would subvert the important governmental objective of facilitating public oversight of police investigations, impair public confidence in law enforcement activities, and do exactly what Congress intended to avoid -- impede execution by law enforcement officers of their legitimate public duties and responsibilities," the opinion said.
In other words, the statute does not block public access to information created by the law enforcement agencies in the performance of their duties and in reports related to vehicular accidents and driving violations.
The results of blood-alcohol tests would seem to fall into this category of information.

Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.

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