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Rollins v. City of Albert Lea

United States District Court, D. Minnesota

November 17, 2016

Summer Michelle Rollins, Plaintiff,
City of Albert Lea, et al., Defendants.

          Sonia L. Miller-Van Oort, Jonathan A. Strauss, and Lorenz F. Fett, Jr., Sapientia Law Group, for Plaintiff.

          Stephanie A. Angolkar, Jon K. Iverson, and Susan M. Tindal, Iverson Reuvers Condon, for Defendants Cities of Anoka, Champlin, Coon Rapids, and Howard Lake, and Tony Jackson, Roxanne Affeldt, Michael Sternquist, MariBeth Parks, and Ken Rollins.

          Judy L. Hedin, pro se Defendant.


          SUSAN RICHARD NELSON United States District Judge.

         This matter is before the Court on cross motions for summary judgment. Defendant Cities of Anoka and Howard Lake and individual Defendants Tony Jackson and Ken Rollins (collectively, the “Moving Defendants”)[1] filed a Motion for Summary Judgment (“Moving Defs.' Mot. for Summ. J.”) [Doc. No. 200]. Plaintiff Summer Michelle Rollins also filed a Motion for Partial Summary Judgment (“Pl.'s Mot. for Partial Summ. J.”) [Doc. No. 207] as to her claims against Defendants Judy Hedin, Ken Rollins, and the City of Howard Lake. For the reasons set forth below, the Moving Defendants' Motion for Summary Judgment is granted in part and denied in part and Plaintiff's Motion for Partial Summary Judgment is granted in part and denied in part.

         I. BACKGROUND

         This suit stems from Plaintiff's allegations that Defendants improperly accessed and disclosed her personal driver's license information in violation of the Driver's Privacy Protection Act (“DPPA”). On the parties' cross motions for summary judgment, the Court recounts the facts that are undisputed between the parties and notes where material disputes arise.

         A. Facts

         1. Plaintiff Summer Michelle Rollins

         Plaintiff Summer Michelle Rollins (“Summer”)[2] is a single mother of two children. (Aff. of Sonia Miller-Van Oort (“First Van Oort Aff.”) [Doc. No. 208], Ex. A (“Summer Depo.”) at 7, 14-15[3] [Doc. No. 208-1].) Her parents, Defendant Judy Hedin (“Judy”) and Dean Rollins[4] (“Dean”), separated when she was young, but maintained an on-again-off-again relationship. (Summer Depo. at 7; First Van Oort Aff., Ex. B (“Judy Depo.”) at 160-61 [Doc. No. 208-1]). After her parents separated, Summer lived with Judy until she was approximately sixteen, at which point she moved in with Dean. (Summer Depo. at 7-8.) Summer admits she used drugs during her adolescence, but claims that she has not used them since that time. (See id. at 28-29.)

         Summer and Judy have not gotten along for many years and have been largely estranged from one another. (Id. at 12-13; Judy Depo. at 36-37.) In fact, Summer has had minimal contact with much of her extended family. (See Summer Depo. at 22.) When she did have contact with her extended family, it was primarily with her father's brother, Defendant Ken Rollins (“Ken”). (Id.)

         In 2003, Plaintiff married Phil Krause (“Krause”) and they had two children together. (See id. at 6-7, 14-15.) Summer and Krause were divorced in 2010. (Id. at 6.) Initially, Summer had full custody of the children, but that changed over time and by January of 2014, Krause and Summer split custody 50/50. (See id. at 15-17.)

         Shortly before her divorce was finalized, Summer began a relationship with William McDonnell (“McDonnell”). McDonnell and his mother moved into Summer's house in Coon Rapids, Minnesota in the summer of 2010. (Id. at 14.) Summer's family members-including Judy and Ken-were not happy about her divorce or her relationship with McDonnell. (Id. at 23-24, 26-27; Judy Depo. at 40, 95.) Summer's relationship with her uncle Ken deteriorated after her divorce and she has had minimal contact with him since 2010. (See Summer Depo. at 23-26.)

         Judy and other members of Summer's family believed McDonnell and Summer were involved with drugs together in the past and possibly again in 2010 and after. (See Summer Depo. at 26-28, 30; Judy Depo. at 165.) Summer's family-including Judy, Dean, and Ken-were also concerned by what Summer's children allegedly told them about the behavior of McDonnell and Summer and their living environment. (See Judy Depo. at 66-68, 140, 148-49; Summer Depo. at 30-31.) In fact, between 2010 and 2012, Judy and Dean contacted local officials and caused them to conduct welfare checks on Summer and her children. (Judy Depo. at 68-71, 144-49; Summer Depo. at 30-31.) Summer has also contacted law enforcement regarding child custody and visitation disputes with Krause. (See Summer Depo. at 15-16.)

         In April of 2012, Summer moved with McDonnell to Maplewood, Minnesota. (Id. at 17-20.) However, she did not tell her family-including Judy, Dean, Ken, and Krause-her new address and did not want them to know where she lived. (See id. at 43, 47-49, 80; Judy Depo. at 72-73.)

         2. Defendant Judy Hedin

         As described above, Judy is Summer's mother and their relationship has been tumultuous for many years. Since Summer's divorce in 2010 and her ensuing relationship with McDonnell, Judy has worried about Summer's welfare as well as the welfare of Summer's children. (Judy Depo. at 66-67, 74.) Judy and other Rollins family members have asked that law enforcement check on the welfare of Summer and her children, but these checks did not result in any legal action. (Id. at 68-71.)

         From 2002 until May of 2011, Judy worked as a license clerk specialist at the Columbia Heights License Center. (Id. at 57-58.) In this role, she would help Minnesota residents with a variety of issues related to their driver's licenses such as changing names and addresses and renewing or replacing licenses. As part of her job, Judy regularly accessed Minnesota's Driver and Vehicle Services' (DVS) database (“DVS Database”). (Id. at 61, 65.) The DVS Database contains personal information about Minnesota drivers including photos, a physical description of the individual, date of birth, vehicle information, driving record, home address, driver's license number, and more. (Aff. of Stephanie Angolkar (“Second Angolkar Aff.”) [Doc. No. 221], Ex. 10 (“Jacobson Depo.”) at 176-80 [Doc. No. 221-10].)

         Starting in May of 2012, Judy worked as a license clerk specialist at the Coon Rapids License Center and performed the same duties. (Judy Depo. at 57-59.) However, Judy does not believe she ever served or otherwise assisted Summer as a license clerk specialist. (Id. at 60.) Since at least 2008, Judy was aware that using the DVS Database for personal reasons was not allowed. (See id. at 86-88.)

         Judy accessed Summer's personal information on the DVS Database numerous times between 2003 and 2012. (Id. at 76.) Particularly relevant to this matter, Judy accessed Summer's DVS Database information once on November 11, 2011 and twice on August 14, 2012. (Id. at 76; First Van Oort Aff., Ex. D (“DVS Database Audit Report”) at 1-2[5] [Doc. No. 208-2].) Judy explains that she looked up Summer's information purely out of concern for her grandchildren. (Judy Depo. at 65-66, 72, 74.) Specifically, she claims that she wanted to know where Summer had moved in 2012 in case law enforcement or the Rollins family needed to check on Summer and her children. (Id. at 65-66, 72.) Judy does not allege that she had any other purpose in accessing Summer's DVS Database information and was aware that Summer did not wish for Judy, other Rollins family members, or Krause to know where she lived. (See id. at 72-73.) On at least some occasions, Judy shared the information she obtained from the DVS Database with Dean. (Id. at 75.) Important here, there is no evidence Judy actually used the information she obtained from the DVS Database in 2011 and 2012 to have a welfare check performed on Summer.

         In July of 2013, Summer reported Judy to DVS based on her suspicion that Judy was improperly accessing Summer's driver's license information. (See First Van Oort Aff., Ex. G at 21-23 [Doc. No. 208-2].) An investigation ensued and resulted in Judy's suspension from her job for thirty days without pay “for multiple unauthorized lookups of Department of Public Safety-Driver and Vehicle Services (DVS) information on family members and acquaintances.” (See First Van Oort Aff., Ex. H at 24-26 [Doc. No. 208-2]; Judy Depo. at 77-87.) Judy signed a Last Chance Agreement wherein she admitted to the unauthorized lookups, agreed to the suspension, and acknowledged that her employer would not defend her if any litigation arose out of those lookups. (See First Van Oort Aff., Ex. I at 27-28 [Doc. No. 208-2]; Judy Depo. at 88.)

         3. Defendants Ken Rollins and the City of Howard Lake

         Ken is Summer's uncle, but has had limited interaction with her in her adult years. (See Second Angolkar Aff., Ex. 3 (“Ken Depo.”) at 74-75, 82 [Doc. No. 221-3].) Their relationship has been especially limited since Summer's divorce in 2010 because Ken does not approve of McDonnell. (See id. at 82-84.) Ken was aware of-and shared- Judy's and Dean's concerns about the welfare of Summer and her children. (See id. at 83-93.)

         At all relevant times, Ken worked as a part-time patrol police officer for the City of Howard Lake (“Howard Lake”). (Id. at 6-7, 12-15.) As a police officer, Ken had access to personal information on people that the general public does not have. (See Id. at 73-74, 139-40.) One source of such information is the DVS Database, which Ken typically used to run license plates to determine if drivers' licenses were valid, identify witnesses and suspects, and other law enforcement-related activities. (See id. at 30-34.) Another is the Minnesota Bureau of Criminal Apprehension's Database (“BCA Database”), which also allows law enforcement to access motor vehicle and driver's license records.[6] (Jacobson Depo. at 30-32, 252 (explaining how the DVS and BCA Databases are separate, but closely related in terms of the information they contain).) Ken knew that he was prohibited from sharing personal information he had access to with the public. (Ken Depo. at 73-74.) He also understood that he was not to access the databases when off-duty and should not “abuse” his access to those systems. (See id. at 34-36.)

         Ken recounted a situation where a mother asked that a police officer do a welfare check on her daughter who lived in Howard Lake because the daughter was suicidal. (Id. at 62.) Ken performed the welfare check, but refused to tell the mother where her daughter lived because disclosing that sort of information, even under those circumstances, was improper. (Id. at 62-64.) When asked what he would have done had the daughter lived in a jurisdiction other than Howard Lake, Ken replied that he would have contacted a law enforcement agency where the daughter lived and requested that they perform the check. (Id. at 66.)

         In September of 2012, Dean provided Ken with Summer's license plate number and asked that Ken find Summer's new address.[7] (Ken Depo. at 115-18, 137-38.) Ken accessed Summer's information on September 14, 2012 through the BCA Database. (Id. at 131-32; see First Van Oort Aff., Ex. E (“BCA Database Audit Report”) at 3 [Doc. No. 208-2].) He then relayed to Dean that the system still listed Summer's former Coon Rapids address and suggested they try again later. (Ken Depo. at 131-32) On March 3, 2013, Ken accessed Summer's information on the DVS Database and believes he provided Dean with Summer's new address. (Id. at 134-37; DVS Database Audit Report at 2.) Ken also accessed Summer's information through the BCA Database on March 3, 2013. (BCA Database Audit Report.) Ken was on-duty as a Howard Lake police officer each time he accessed Summer's information. (Id. at 117, 133-34.)

         Ken explained why he obtained Summer's information as follows:

Q: Okay. So why is it that your brother [Dean] needed you to look up this information as opposed to a jurisdiction where she [Summer] might live?
A: Because I was a cop and I was accessible. I suppose he didn't want to go up to some strange cop and ask because he probably would have got the same response like I gave the one guy that - you know, I don't know that you're family. He was family, I knew he was family. And he knew I was family and he knew he could trust me and I knew I could trust him.
Q: So the bottom line is that you did it because he was your brother and you wanted to help your brother?
A: Yes.
Q: Okay. Even though in similar circumstances you might not have given it to somebody else?
A: I wouldn't, of course not.
Q: Okay. So this was personal?
A: Yes. Well, it is personal from a law enforcement perspective, you know, he came to an officer that he could trust, that he knew he could get probably get the information to see if it's correct. If it's, you know - and maybe he didn't want to feel like a fool if he went to somebody else and just said, hey, I don't know if you can do this for me, but you know, will you run my daughter, and again, how do they know that that really is family.
Q: Okay. When I say its personal I mean you did it - you provided this information to your brother because he was your brother and he asked you for it, correct?
A: Yes
Q: That's what I mean by personal; it was because of your personal relationship, correct?
A: It was a personal relationship as a police officer though.
Q: Well, as a brother?
A: A brother who is a police officer who has the access.
Q: Exactly.
A: Yes.

(Id. at 140-41.) Important here, there is no evidence that anyone ever requested that Ken do a welfare check on Summer and her children, or that he cause other law enforcement officers to perform such a check. Nor is there any allegation that Ken had any other law enforcement reason to obtain Summer's information in the DVS Database (e.g., that Summer requested he do so, that Summer was pulled over for a traffic violation in Howard Lake, that Summer was the target of a Howard Lake police investigation, etc.).

         4. Defendants Tony Jackson and the City of Anoka

         Tony Jackson (“Jackson”) is an officer with the City of Anoka's (“Anoka”) police department. (See Aff. of Stephanie Angolkar (“First Angolkar Aff.”) [Doc. No. 203], Ex. 2 (“Jackson Depo.”) at 6-7 [Doc. No. 203-2].) He does not know Summer or her family. (Jackson Depo. at 54-55, 97.) In 2010, Jackson was assigned to the Anoka-Hennepin Drug Task Force where he investigated drug-related tips. (Id. at 8.) As part of that process, Jackson would access the DVS Database to look up complainants, suspects, and confidential informants related to the Task Force's investigations. (See id. at 48-49, 53.)

         At some point in 2010 or 2011, Jackson received training instructing him that he could not access the DVS Database for personal reasons. (Id. at 13.) Before this training, Jackson claims he was unaware of any such restriction. (Id. at 14-17.) Jackson admits that prior to receiving this training, he accessed the DVS Database numerous times for personal reasons (e.g., to look up family members and celebrities, and based on his curiosity about people he had met). (See id. at 17-18.)

         On September 13, 2010, Jackson accessed Summer's personal information in the DVS Database. (Id. at 69-70, 73; DVS Database Audit Report at 1.) Jackson does not remember the specific reason why he accessed her information, but based on the other individuals whose information he looked up at that same time, believes it could have been connected to a drug-related tip. (See Jackson Depo. at 71-75, 97, 112-13.) However, Jackson does not specifically recall Summer making any drug-related complaint, being the subject of a drug-related investigation, or serving as a confidential informant. (See id. at 55-57, 104-05.) He does not believe he ever interacted with Summer in a law enforcement capacity and is not aware of any law enforcement investigations or interactions with Summer generally. (See id. at 58, 105-08.)

         5. How the Audit Reports Track Database Accesses

         The DVS and BCA Databases track when an individual's information is accessed and, upon request, an audit report provides information about these accesses-such as the date and time the access occurred, the agency and specific user accessing the information, and the type of information viewed.[8] (See DVS Database Audit Report; BCA Database Audit Report; Jacobson Depo. at 152-53.) Law enforcement using the DVS Database can find an individual in a variety of ways, including by name, driver's license number, or license plate number. (See Jacobson Depo. at 61-62, 138-39, 242.) Once an officer locates the individual's record within the database, he/she can make further “queries” or select various “tabs” depending on the particular information he/she wishes to view for that individual (e.g., photos, addresses, driving record, motor vehicle information, etc.) (Id. at 144-48, 150-51, 247.)

         Important here is how audit reports track and present accesses of information in the DVS Database. An officer's initial access of an individual's record appears as one “line” on the audit report. (Id. at 139-40, 245-46.) From the “main page” for that individual, the officer can then select a tab or run a query for particular information. (Id. at 144-45, 247-48.) If a query is made or a tab selected within the same minute of the initial access, it does not appear as an additional line on the audit report. (Id. at 145-46, 227-28, 255, 259-60.) As a result, any and all activity on an individual's DVS Database profile within a given minute is displayed as a single line on an audit report, regardless of how many tabs within the profile are selected. (Id. at 258-60.) However, if an officer views a particular tab of information from one minute to the next (e.g., 9:37am into 9:38am), or selects a new tab more than one minute after his/her last selection, this fact will be displayed as another line on the audit report.[9] (See id. at 150-52, 247-48, 254- 55, 258-60.)

         The audit report for Summer's DVS record shows three lines related to Judy-one on November 16, 2011 and two on August 14, 2012. (DVS Database Audit Report at 1- 2.) That audit report shows three lines associated with Ken, all on March 3, 2013. (Id. at 2.) That same report shows two lines representing Jackson's access of Summer's information on September 13, 2010. (Id. at 1.) The BCA audit report shows three lines associated with Ken accessing Summer's information-two lines on September 14, 2012 and one on March 3, 2013. (BCA Database Audit Report.) The parties do not dispute how the audit reports track and present accesses of information within the databases. However, as described below, they do dispute how these reports should be used to calculate the number of DPPA violations-if the accesses were improper.

         B. Procedural History

         In January of 2014, Summer brought suit against a variety of municipal entities (including Anoka and Howard Lake) and John and Jane Doe defendants alleging that they violated the DPPA by accessing her driver's license information without a permissible purpose. (See Compl. [Doc. No. 1].) Initially, Summer could not name specific individuals as defendants because the Department of Public Safety (“DPS”)- which oversees DVS-would not provide that information without a subpoena or court order. (See id. at ¶ 37; Aff. of Sonia Miller-Van Oort in Supp. of Opp. to Defs.' Mot. for Summ. J. (“Van Oort Aff. in Opp.”) at ¶¶ 4, 5 [Doc. No. 219].) Summer's counsel explains that-based on her unsuccessful attempts to obtain discovery in another DPPA case while motions to dismiss were pending-she did not serve a subpoena on DPS until March of 2015, after Defendants' motions to dismiss were resolved and the parties held their Rule 16(f) conference. (Van Oort Aff. in Opp. at ¶ 4.) However, DPS continued to refuse to identify individual accessors until after Summer obtain a court order in June of 2015. (Id. at ¶ 5.)

         Once DPS identified the individual accessors, Summer sought a stipulation from Defendants allowing her to amend her complaint to identify individual Defendants. (Id. at ¶ 6.) Defendants initially refused and it was not until August of 2015, after Summer filed a motion for leave to amend her complaint, that they finally acquiesced to her amendment. (Id.) Summer's amended complaint, filed in ...

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