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.

OHP did NOT tell Nowata County sheriff to withhold information

The Oklahoma Highway Patrol didn't order the Nowata County Sheriff's Office to withhold from the public the bail amount or the mugshot of a man arrested and jailed in connection with a hit-and-run fatality, contrary to what was reported a week ago.

Last Monday, the Tulsa World said Nowata County Sheriff’s Sgt. Donald Lynn declined to release the bail amount or a mugshot of Roy Dale Cheatham, 46, of Delaware, Okla., upon orders of the OHP local division.

But Tulsa World news editor Mike Strain said that turned out not to be the situation.

According to Strain, OHP Capt. Chris West told the newspaper that no such order was issued and, indeed, that the Highway Patrol doesn't have any authority over that information.

Meanwhile, Nowata County Sheriff's officials told the newspaper there had been a misunderstanding and released the information Tuesday, Strain said Wednesday.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

OHP orders Nowata County sheriff not to release bail amount, mugshot of man arrested in connection with hit-and-run fatality

The Oklahoma Highway Patrol ordered the Nowata County sheriff not to release the bail amount or the mugshot of a man arrested and jailed in connection with a hit-and-run in which a pedestrian was killed, the Tulsa World reported early Monday evening.

The OHP's explanation for why such information should be kept secret and under what statute OHP has the authority to issue such an order were not explained in the story.

The Tulsa World said only that Nowata County Sheriff’s Sgt. Donald Lynn declined to release the bail amount or a mugshot of Roy Dale Cheatham, 46, of Delaware, Okla., upon orders of the OHP local division.

NewsOn6 and KTUL each used a previous mug shot of Cheatham in their stories posted online.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Terrill bill exempts public employee ID. numbers, birth dates from Open Records Act, restricts access to OHP dash cam recordings when most needed, allows DPS to charge more for records

Government employees' identification numbers and birth dates would be exempted from the state Open Records Act, under a bill filed by Rep. Randy Terrill, R-Moore.

Terrill failed to close off the information last legislative session.

His legislation this year, House Bill 2097, includes an emergency clause, meaning that it would take effect immediately after being signed by the governor. Getting the bill signed by Gov. Mary Fallin, however, could be another hurdle for Terrill.

As a gubernatorial candidate last spring, Fallin said she would veto legislation exempting state and local government employees' birth dates from personnel files.

The Republican also signed FOI Oklahoma's Open Government Pledge in which she promised "to support at every opportunity the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government so that they can efficiently and intelligently exercise their inherent political power."

Exempting government employees' birth dates and identification numbers would severely hamper the ability of Oklahomans to know and be fully informed about their government. The public would find it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions. The public also would find it virtually impossible to track workers across government jobs.

Terrill's attempt to exempt the information last session became intertwined with legislation originally intended to restore public access to the dash cam videos of Oklahoma Highway Patrol troopers. So it has again.

HB 2097 also keeps OHP recordings closed during "an ongoing criminal or internal investigation to which the video or audio recording is relevant."

It also would require the Department of Public Safety to censor "all content which depicts, expressly or implicitly, the death of any person."

The bill also would allow DPS to charge $1 for the first page of a record and 25 cents for subsequent pages of a report. It sets the fee for copies of DPS videos and still images at $50.

In addition to Terrill's bill, access to the birth dates and employee identification numbers is being fought over in the courts.

In December 2009, then-Attorney General Drew Edmondson issued a formal opinion that government employees' birth dates in their personnel files are presumed open. Officials may refuse to release the information only if they determine that disclosing the birth date would constitute an “unwarranted invasion of privacy” that outweighs the public interest in disclosure, Edmondson said. (2009 OK AG 33, ¶ 11)

Edmondson said public bodies must decide each case individually and may not enact policies blocking access to all employee dates of birth.

Last spring, the Oklahoma Public Employees Association filed a lawsuit seeking to stop the state Office of Personnel Management from releasing state workers' birth dates to The Oklahoman.

Oklahoma County Judge Bryan C. Dixon allowed The Oklahoman to intervene as a defendant and FOI Oklahoma, Tulsa World, KWTV, KOTV, the Oklahoma Press Association and the Reporters Committee for Freedom of the Press to file briefs in support of the public's right to the information.

Dixon also granted requests by the Oklahoma State Troopers Association and the Oklahoma Department of Public Safety to join with the Oklahoma Public Employees Association.

In late September, Dixon agreed with the balancing approach set forth in Edmondson’s opinion. However, Dixon said, in effect, that state employees were not entitled to individually challenge the disclosure of their birth dates by their state agencies. (Okla. Pub. Employees Ass’n v. Oklahoma Office of Pers. Mgmt., No. CJ-2010-2623 (Okla. Co. Dist. Ct.) (Sept. 21, 2010))

“The employing agencies shall not give notice or conduct a hearing as to individual employees on the issue of whether this is an unwarranted invasion of personal privacy,” Dixon said.

He also ruled that employee identification numbers were not subject to disclosure.

In October, the employees association and the newspapers appealed Dixon's ruling to the state Supreme Court.


Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications

Senate revives bill closing public access to gov't workers' DOBs, employee ID. numbers; Sets $50 fee for copies of DPS recordings, photos

Legislative slight of hand has resurrected an attempt to restrict access to the birth dates of Oklahoma's government employees and to their employee identification numbers.

The language was added to a bill originally intended to open access to the dash cam videos of the Oklahoma Highway Patrol.

The original bill on dates of birth had failed to make it out of the House by a deadline last month after Rep. Lucky Lamons, D-Tulsa, added an amendment requiring the state Legislature to follow the Open Records Act. Fellow lawmakers didn't want to vote on that issue.

But Mark Thomas of the Oklahoma Press Association warned that the language on birth dates in personnel files might be added to another bill.

Sure enough, that's what happened. The restriction was added to HB 3382.

On Wednesday, the Senate General Conference Committee on Appropriations approved HB 3382, which heads to the House, the Tulsa World reported today.

HB 3382 was originally intended to make public once again recordings by the Oklahoma Highway Patrol.

The state Department of Public Safety’s audio and video recordings were public records until legislators exempted them in May 2005. (OKLA. STAT. tit. 51, § 24A.3(1)(h)(3))

Previous postings on this blog have further explained the history of that legislation: Oklahoma Highway Patrol dash cam videos should be public; OHP releases dashboard camera video; Are Oklahoma Highway Patrol dashboard camera videos a public record?

Now, the public is faced with regaining access to OHP videos or losing access to needed information about its employees.

Thomas told the Tulsa World that the OPA is recommending that HB 3382 be killed.

"The public will just have to live without having access to the dash cam recordings of their state troopers," he said.

Given HB 3382's exemptions and other flaws, that seems best.

The bill would keep recordings closed during "an ongoing criminal or internal investigation to which the video or audio recording is relevant."

It also would require DPS to censor "all content which depicts, expressly or implicitly, the death of any person."

The bill also would allow DPS to charge $1 for the first page of a record and 25 cents for subsequent pages of a report. It sets the fee for copies of DPS videos and still images at $50.

State law already already exempts public employees' Social Security numbers, home addresses and telephone numbers.

But HB 3382, revised by Rep. Randy Terrill, R-Moore, and Sen. Anthony Sykes, R-Moore, would make it virtually impossible to determine if government employees have committed crimes, evaded paying taxes, filed for bankruptcy or made political contributions.

Eliminating access to the employee identification numbers would make it virtually impossible to track workers across government jobs.

The Oklahoma Public Employees Association and Oklahoma Troopers Association will get want they want either way: No public access to the video of their actions on patrol, or no way for the public to know about its own employees.

The public, on the other hand, will be the big loser this legislative session.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

Tulsa World donates $2,500 of reimbursed legal fees to FOI Oklahoma Inc.

The Tulsa World's years-long court battle to obtain public records from a state agency will help fund open government training for reporters, the newspaper announced Sunday.

The state Department of Public Safety has agreed to pay $60,000 to reimburse the Tulsa World for legal fees incurred by the newspaper during its successful effort to obtain records from the agency.

The newspaper's legal fees totaled more than $90,000.

The Tulsa World will donate $2,500 of the reimbursed fees to FOI Oklahoma to pay for open government training for professional and student journalists.

Thank you to the Tulsa World not only for the donation but also for its tenacity in obtaining the records.

Bill would make OHP dash cam videos public records

A bill to remove Oklahoma Highway Patrol dash cam videos from the list of records exempted under the state Open Records Act was filed Monday by state Sen. Jim Wilson.

The Tahlequah Democrat said the legislation is in response to “controversial incidents in the state involving the suggestion of officers abusing their power.”

“Our public safety officers are public servants who work at the will of the public, so why shouldn’t the public have access to video of them doing their jobs? It seems to me that releasing these digital records will help dispel the suspicion that they have something to hide,” said Wilson in a press release Monday.

“Unfortunately, we’ve had incidents where officers have abused their power while on duty. There have also been instances where the media has exaggerated or provided inaccurate information about a case because they didn’t have the video and, therefore, didn’t have all the facts,” Wilson said.

The state Department of Public Safety’s audio and video recordings were public records until legislators exempted them in May 2005. (OKLA. STAT. tit. 51, § 24A.3(1)(h)(3))

Previous postings on this blog have further explained the history of that legislation: Oklahoma Highway Patrol dash cam videos should be public; OHP releases dashboard camera video; Are Oklahoma Highway Patrol dashboard camera videos a public record?

Wilson’s legislation, SB 1252, would make the dashboard camera videos public once again.

In explaining why the media and general public should have access to the videos, Wilson noted altercations involving Oklahoma Highway Patrolman Daniel Martin.

Wilson added, “Transparency in government offers the public performance measures and accountability which can be monitored and reported by the media.”

In June, this blog called on legislators to close the exemption and undo the damage they did in 2005.

Let your state legislators know that you support SB 1252 and that they should restore the public's right of access to these important government records.

Joey Senat, Ph.D.

Associate Professor

OSU School of Journalism

OHP releases trooper reports but not complaint

The Oklahoma Highway Patrol on Friday released the incident report on an Oct. 3 arrest in Holdenville that led to two troopers being put on paid administrative leave, the Tulsa World reported Friday night.

OHP refused to release a copy of the complaint filed against the troopers, saying it is part of the investigation and not a public document, the newspaper reported.

The Tulsa World had requested the records on Monday.

Other media, including the Associated Press and FOX23, also obtained copies of the records Friday.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

OHP slow to release incident report of a traffic stop in which troopers are accused of behaving improperly

The Tulsa World requested on Monday but had not received by late Thursday the incident report dealing with a weekend arrest that led to two state troopers being placed on paid administrative leave, the newspaper reported today.

The newspaper also hadn't received requested copies of the complaint filed against the troopers and the videotapes taken from the dashboard cameras on the troopers' cars.

Police incident reports are public information under the state Open Records Act. (OKLA. STAT. tit. 51, § 24A.8)

The Tulsa World reported having being told by Oklahoma Highway Patrol Capt. Chris West that the incident report and complaint record might be released Thursday. They weren't.

The good news: West said OHP will release copies of the videotape to reporters when investigators are through with them. Thanks to state legislators, OHP dashcam videos have been exempted from the state Open Records Act since 2005.

Access to OHP dashcam videos became news in June after a scuffle between a trooper and a Creek Nation paramedic. After repeatedly refusing to do so, OHP officials released the video, saying "it was in the best interest of the public" to do so. By that time, a cell phone video of the incident had been posted on YouTube.

The OHP trooper involved in that scuffle is one of the two troopers placed on administrative leave pending an internal affairs probe into the arrest on Saturday in Holdenville.


Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

Oklahoma Highway Patrol dash-cam videos should be public

More than $1.4 million in Oklahoma taxpayers' money has been spent outfitting the Highway Patrol with state-of-the-art digital dash-cams in the past year but keeps such videos secret unlike most other states in the region, The Oklahoman and Tulsa World reported this week.

As noted in earlier posting by this blog, legislators closed access to the videos in 2005 at the request of the OHP and Department of Public Safety.

In Sunday's Tulsa World, OHP spokesman Capt. Chris West said the agency requested the recordings be closed to the public largely out of concerns for both trooper safety and the privacy of residents.

"I can assure you it's not about secrecy; it's confidentiality," West said.

Then why are such videos public elsewhere in the country?

There is a clear, legitimate and compelling public interest in making such videos open for public inspection. Access to police dash-cam videos in other states have revealed abusive behavior by law enforcement agents and also exonerated officers of such claims.

In Oklahoma, DPS officials release the videos when it suits them.

West told The Oklahoman that the only other time he could recall OHP voluntarily releasing video was in the 2003 killing of Trooper Nikky Green in Cotton County.

"In our opinion, that was night and day,” West said. "We were trying to catch a cop killer.”

But DPS recently denied a request by The Oklahoman to review video footage of a November 2008 incident in Henryetta where a trooper faces a misdemeanor assault and battery charge in the alleged beating of a handcuffed female suspect.

DPS officials can choose which videos it releases because the state statute limiting public access says the department "may" keep them secret.

Oklahomans rightfully should expect state legislators next session to undo the damage they did to the public's right to know in 2005. Close the exemption.

If legislators won't do it, then let's hope the next governor will order his Department of Public Safety to make all the videos public as a matter of routine.

Let's not forget that the DPS works for the governor and the governor works for us.

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism

OHP releases dashboard camera video

Late Friday, the Oklahoma Highway Patrol released the dashboard camera video showing a scuffle between a trooper and a Creek Nation paramedic. An OHP spokesman said "it was in the best interest of the public" to release the video.

The OHP had repeatedly denied reporters access to the video during the week even though the public interest was just as obvious then.

Perhaps the video was released because a cell phone video of the incident had been posted on YouTube.

Why are OHP dashboard camera videos not considered public records? Because, as an earlier posting on this blog explained, state Department of Public Safety officials persuaded legislators to block public access in 2005. (OKLA. STAT. tit. 51, § 24A.3(1)(h)(1-3) (effective Nov. 1, 2005))

That came after an Oklahoma County district judge had barred OHP "from keeping videotapes of traffic arrests secret.” (Nolan Clay, Highway patrol ordered to stop withholding tapes, THE OKLAHOMAN, Mar. 3, 2005, at A6)

Public Safety Commissioner Kevin Ward believes in transparency, an OHP spokesman said this week. That comment came after the Oklahoma County district attorney received an internal OHP investigation into claims that Ward and an OHP official had patrol helicopter pilots take them, friends and family members on personal rides.

If Ward and other DPS and OHP officials believe in transparency, that would be a welcomed change. In the past, DPS officials have successfully sought statutory exemptions blocking public access to records.

In May 2005, legislators specifically exempted DPS records relating to “training, lesson plans, teaching materials, tests, and test results;” tactical policies, procedures and operations; and from radio logs, any telephone numbers, personal information protected by the federal Driver’s Privacy Protection Act and “addresses other than the locations of incidents to which officers are dispatched.” (OKLA. STAT. tit. 51, § 24A.8(G)) (effective Nov. 1, 2005)).

The exemptions were a compromise between DPS and the Oklahoma Press Association. DPS originally sought to keep secret a number of records the Tulsa World had won access to during a three-year court battle with the agency.

In February 2005, an Oklahoma County district judge had ordered DPS to release “a list of documents and computerized data including records concerning the use of force by state troopers, a database of police dog searches, a list of lawsuits and other legal actions involving the agency.” (Marie Price, House gets bill on data access, TULSA WORLD, Mar. 13, 2005, at A19. See also Ziva Branstetter, Judge orders OHP parent agency to give records to World, TULSA WORLD, Feb. 5, 2005, at A13)

As originally drafted, the subsequent legislation would have limited public access to only single-incident reports and not sets of computer data that could be used to determine demographic or other law enforcement trends.

If Ward truly now believes in transparency, perhaps he would support legislative efforts to reverse the exemptions, starting with making all OHP dashboard camera video available to the public.

It was a mistake for the Legislature to hide those records from the public. Perhaps the 11 House members who have signed FOI Oklahoma's Open Government Pledge will attempt next session to strip away the statutory shroud of secrecy wrapped around the DPS and OHP in 2005. The public should expect them to do so.

By Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism and Broadcasting
"Mass Communication Law in Oklahoma"
joey.senat@okstate.edu

Are Oklahoma Highway Patrol dashboard camera videos a public record?

(Question received today from a reporter.)

No. Public access to the state Department of Public Safety’s audio and video recordings was curtailed by legislators in May 2005. (2005 O.S.L. 199, § 4 (adding OKLA. STAT. tit. 51, § 24A.3(1)(h)(1-3) (effective Nov. 1, 2005))

In March 2005, an Oklahoma County district judge had “barred the Oklahoma Highway Patrol from keeping videotapes of traffic arrests secret.” (Nolan Clay, Highway patrol ordered to stop withholding tapes, THE OKLAHOMAN, Mar. 3, 2005, at A6) An attorney specializing in drunken-driving cases had sued DPS after it refused to release the videotape of such an arrest without the driver’s written consent first.

“We continue to find that many officers make up evidence and exaggerate their testimony about the events. These tapes are extremely important to a citizen who is wrongly accused,” said attorney Stephen G. Fabian Jr.

Fabian had used the Open Records Act to gather hundreds of such videotapes from police departments and OHP.

The subsequent legislative changes to the Act exempted DPS’s audio and video recordings.

In June 2005, Fabian told me he would still be seeking – and likely receiving – the tapes in criminal proceedings via subpoenas.

(Telephone Interview with Stephen G. Fabian Jr., Senior Partner, Fabian & Associates Inc., P.C. (June 16, 2005))

Joey Senat, Ph.D.
Associate Professor
OSU School of Journalism and Broadcasting
“Mass Communication Law in Oklahoma”
joey.senat@okstate.edu