Missouri Press Association
Serving Missouri Newspapers Since 1867
The more I dig into the Missouri State Highway Patrol’s decision to stop providing access to online crash reports, the more I believe its decision was a wrong turn.
The Driver’s Privacy Protection Act (DPPA) should have no bearing on this matter. The DPPA prohibits a state DMV from releasing personal information. The purpose of the DPPA was to stop the wholesale selling of personal information to third parties. That is simply not implicated in the Sunshine context. The origin of the DPPA was the 1989 murder of an actor in her home by a stalker who had used a private investigator to obtain her address from DMV records.
Notably, the DPPA specifically excludes state agencies from its definition of a “person” subject to a civil action. Reno v. Condon, 528 U.S. 141 (2000). The Missouri State Highway Patrol should have no fear of being sued.
Moreover, Courts have treated DPPA protections differently in the context of open records. Back in 2002, the Connecticut Supreme Court held that law enforcement records are not DMV records for purposes of open records.
In 2001, the Court of Appeals of Wisconsin held that an open records request to a school district for bus driver information was not precluded by the DPPA, even though the school district’s records contained information derived from the state DMV. In that case a local television station had requested names and birth dates of all bus drivers from the local school district. The court held that the DPPA only applied to the DMV, not the school district. The court also held that the DPPA’s exception for disclosure in connection with matters of driver safety would also have allowed disclosure.
More recently in 2016, Arkansas Supreme Court held that names should not be redacted from accident reports because an accident report is not a record the DPPA covers and it does not matter that some of the information in the accident was derived from DMV information. In 2020, the Iowa Supreme Court also indicated that accident reports may be exempt from the DPPA and highlighted that the DPPA would not apply to disclosure of records permitted by a state law related to public safety. That is precisely what Missouri has – the Sunshine Law, and additionally, a specific provision for news media to obtain the information for reporting on such matters.
Beyond this, the DPPA itself excludes its provisions from precluding disclosure of information related to accidents.
Now, there is authority to the contrary out there – particularly some recent cases out of North Carolina that miss the mark. But the North Carolina cases do not address action by a state agency; they don’t address the DPPA’s own concession that accident reports are fair game; they don’t address the DPPA’s permission to disclose under state law if the disclosure is regarding public safety; and they don’t address the superior situation in which journalists find themselves in Missouri: We have a law that says the DMV must share this information with journalists working on public safety stories.
Your association is gearing up for this fight. As I type this, a letter has been prepared that will go to the Highway Patrol to give them a last opportunity to work with us on this issue.
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With respect to Sunshine requests, I frequently receive Hotline questions regarding whether a city must produce information. Most of the time the answer I give is this: The Sunshine Law only applies to documents or data, not to verbal responses from an official. The Sunshine Law cannot be used (directly) to force an official to answer a question.
But what about data on cell phones, such as call logs or texts? In this case, the data presumably exists. However, there’s another wrinkle you should bear in mind: Not only does this Sunshine Law apply only to documents or data, it applies only to documents that already exist and that the public body has “maintained.”
That word maintained was interpreted to mean to be in the “agencies’ possession or under their control.” Sansone v. Governor of Missouri, 648 S.W.3d 13, 22 (Mo.App.W.D. 2022). So the public body has to have possession or control. Keep that word “control” in mind.
If you recall, the Sansone case dealt with Missouri Governor Greitens’ use of an application, Confide, to send and receive disappearing messages. The Missouri Court of Appeals suggested that in part because the governor’s office did not maintain the Confide data, the Sunshine Law did not apply.
The Sansone decision also found relevant to its decision that the data requested did not exist on the cell phone anymore. This suggests that if the data is contained on the cell phone, it would clearly “exist” and also be in the agency’s possession and therefore fair game for a Sunshine request.
But what about cell phone data that is not in the possession of the public body, but instead in the possession of a cell phone provider? This shifts from a question of “possession” to one of “control.” The Sansone decision unfortunately fumbles this issue, in my opinion, suggesting that it would be “absurd” to interpret the Sunshine Law to require a public body to provide access to records it does not maintain.
However, the Missouri Supreme Court has already interpreted what the word “control” means more than just possession: “‘Control’ does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party’s control when that party has the right, authority, or practical ability, to obtain the documents from a non-party to the action.” Hancock v. Shook, 100 S.W.3d 786, 797 (Mo.banc 2003).
If a public body can request cell phone data from its cell phone provider, it has the “practical ability” to obtain that information. That means, according to the Missouri Supreme Court, the public body has control over those records, even if those records are not in its immediate possession. If the word “maintain” includes the concept of “control,” then a public body should not be able to dodge delivery data or records that it can easily obtain from a third party.
