Citing a federal law that has been on the books for 21 years, the Arkansas State Police began earlier this month withholding nearly all personal information from vehicle crash reports available to the public.
The agency contends the 1994 Drivers Privacy Protection Act, which prohibits personal information from motor vehicle reports from being made public, also covers police crash reports.
New reporting software makes it reasonable for the department to begin complying with the law, spokesman Bill Sadler said. Before, manually redacting the information on thousands of crash reports was too much of an administrative burden.
The new policy means the only personal information available on state police crash reports are the names and hometowns of fatalities. All other information, including the names of other drivers and passengers, is withheld.
Critics of the new practice, which has already been included in a lawsuit against the state police over its records disclosures, are skeptical about the application of the federal law and the 21-year delay in enforcing it.
"Did they not have Magic Markers before?" said Robert Steinbuch, an expert in the state's Freedom of Information Act and a University of Arkansas at Little Rock law professor. "We understood this law applied before but we simply didn't comply with it. The thing about the law is it's not discretionary."
The move comes in the wake of a January policy change in which the state police stopped releasing accident reports to the general public after state lawmakers passed a law requiring that all information on minors be redacted. The agency argued redacting minors' information was overly burdensome on its employees. As a result, state police no longer allow "indiscriminate inspection of bulk or selected groups of crash reports collected by date or location."
Now, with the agency's adherence to the Drivers Privacy Protection Act, unredacted reports are available only if those making the request meet exceptions, which include people involved in the crash, parents or legal guardians requesting reports for minors, insurance companies and law enforcement.
Spokesmen for the Pulaski County sheriff's office and the Little Rock Police Department both said with the exception of minors, accident reports from both agencies still include personal information about drivers. However, both spokesmen said the departments are aware of the new state police policy and Drivers Privacy Protection Act and are looking into it.
The Drivers Privacy Protection Act was passed in 1994 after a stalker hired a private detective to use California motor vehicle records to find the address of actress Rebecca Schaeffer. Using the address, the stalker killed Schaeffer at her West Hollywood home in 1989.
The law restricts disclosure of certain information in driver records by motor vehicle departments, but the way the law operates in each state can differ significantly, said Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press.
"However, generally speaking, we take the position that it's not appropriate for law enforcement agencies to argue that any of their records are exempt from disclosure under a state open records law by virtue of the DPPA," Townsend said in an email.
State police implemented the policy change in compliance with the Drivers Privacy Protection Act on June 4, but Sadler said some of the first discussions about the act occurred in 2009 and 2010. The change in policy is being rolled out now because new technology has given state police the means to reasonably make the redactions.
A program the state police began implementing this summer allows troopers to input crash reports from their patrol cars. Developed by the University of Alabama, the program eliminated the need to manually redact personal information from the reports.
Little Rock attorney Daniel Wren sued state police in May after his Freedom of Information request for access to unredacted reports was denied. He and other lawyers have protested the January policy not allowing bulk inspection of crash reports because it prevents them from seeking potential clients. In court documents Wren's attorney, M. Keith Wren, argues that Arkansas Code 27-53-202 mandates the redaction of information regarding minors, but does not allow for blanket denial of inspection of crash reports.
In a June 5 brief the day after the state police began citing the federal drivers' privacy law in withholding personal information in the reports, Wren further argued that the Driver's Privacy Protection Act does not apply to crash reports.
That position is backed up by a 2014 Wisconsin ruling in which a judge said accident reports created by local police did not meet the definition of personal information under the federal law.
The Reporters Committee for Freedom of the Press filed an amicus brief in that case. The brief says in part, "The DPPA applies to a variety of information that 'identifies an individual,' but it specifically and expressly carves out 'information on vehicular accidents, driving violations, and driver's status' from the definition of 'personal information.'"
"Our position is if Congress had wished to include accident reports under DPPA with just a few dots of ink they would've done so," Wren said.
Delena Hurst, assistant attorney general and a lawyer for Arkansas State Police, wrote in court documents the requested accident reports pertains to motor vehicle records and is protected by the Drivers Privacy Protection Act, which "supersedes the Arkansas FOIA and is an exemption to it."
Hurst said she could not comment on the pending case. The state police argue in its hearing brief that because a driver in an accident hands a state trooper his driver's license, the personal information came from motor vehicle records and should be protected by the Drivers Privacy Protection Act.
In arguing against the state police, the Wrens also cited a 2002 Colorado case in which the court found accident reports are not motor vehicle records.
Steinbuch, the law professor, doesn't think accident reports can be considered motor vehicle records.
"They're clearly not," he said. "The DMV never touches them. Those accident reports are created by police officers on a police system and sent to police."
Last week, Pulaski County Circuit Judge Morgan Welch heard arguments from Wren and the state. A ruling could be delayed because three lawyers from the Brad Hendricks Law Firm have asked to be added as plaintiffs to the case.
The case is being watched closely not only by lawyers, but also by members of the press. Tom Larimer, head of the Arkansas Press Association, said members of the media didn't get any notice before the new policy popped up.
"This is not a new law they're responding to," Larimer said, referring to the federal law. "I don't know why it's suddenly a priority."
Depending on the outcome of the case, Larimer said, there's a possibility the press association would take legal action.
Metro on 06/22/2015