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Pentel v. Shepard

United States District Court, D. Minnesota

August 7, 2019

Randolph Pentel, Kim Povolny, Michelle Povolny, and Michael Povolny, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
v.
Michael Shepard, in his individual capacity as an employee of the City of Mendota Heights, and City of Mendota Heights, Defendants.

          Charles V. Firth, Engelmeier & Umanah, PA, and Jonathan A. Strauss, Lorenz F. Fett, Jr., Robin M. Wolpert, and Sonia L. Miller-Van Oort, Sapientia Law Group, (for Plaintiffs);

          Elizabeth Peppin Ridley and Mark P. Hodkinson, Heley, Duncan & Melander, PLLP, (for Defendant Michael Shepard);

          Jon K. Iverson, Stephanie A. Angolkar, and Susan M. Tindal, Iverson Reuvers Condon, (for Defendant City of Mendota Heights); and

          Oliver J. Larson, Assistant Attorney General, (for Respondent Minnesota Department of Public Safety).

          ORDER

          Tony N. Leung United States Magistrate Judge

         I. INTRODUCTION

         This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Plaintiffs Randolph Pentel and Michael Povolny's[1] Motion to Compel Discovery (ECF No. 33). A hearing was held on June 19, 2019. (ECF No. 75.) Charles V. Firth appeared on behalf of Plaintiffs; Mark P. Hodkinson appeared on behalf of Defendant Michael Shepard; Stephanie A. Angolkar appeared on behalf of Defendant City of Mendota Heights (“the City”); and Oliver J. Larson appeared on behalf of Respondent Minnesota Department of Public Safety (“DPS”).

         II. BACKGROUND

         This is a putative class action for alleged violations of the Driver's Privacy Protection Act (“DPPA”), 18 U.S.C. § 2721 et seq., and the Minnesota Government Data Practices Act (“MGDPA”), Minn. Stat. § 13.01 et seq., based on improper accesses of “private, personal and confidential drivers' license information” by Shepard, a police officer formerly employed by the City. (Compl. ¶¶ 1, 2, 35, ECF No. 1.)

         A. LEMS Database

         In the performance of their duties, law enforcement officers have access to a number of different databases containing “license plate information and other private drivers' license information regarding Minnesota drivers, ” such as “names, dates of birth, driver's license numbers, addresses, driver's license photos, weights, heights, [and] various health and disability information.” (Compl. ¶¶ 2, 24.) These databases “may be accessed and queried by different means, including entering a person's name, license plate number, or driver's license number.” (Compl. ¶ 26; see also Compl. ¶ 25.)

         One of these databases is the Law Enforcement Message Switch (“LEMS”) database. The LEMS database is managed by the Minnesota Bureau of Criminal Apprehension (“BCA”), a division of DPS. (Decl. of Katherine A. Engler ¶ 4, ECF No. 65; DPS Opp'n at 2, ECF No. 63.) The LEMS database “was the original method of access” for this type of information “and was the only method of access for several decades.” (Engler Decl. ¶ 4.) At the hearing, counsel for DPS stated that the LEMS database dates back to the 1980s. While there are other databases available, the “LEMS [database] is heavily used by law enforcement officers because it returns criminal history and other useful data that [other databases] do not.” (Engler Decl. ¶ 5.)

         1. Determining the Source of a LEMS Access

         The “LEMS [database] is typically accessed through terminals in police stations and via devices in squad cars.” (Engler Decl. ¶ 4.) Unlike other databases, use of the LEMS database is not tied to the identity of a particular user. Instead, use of the LEMS database is tied to the access device and the agency to which it is registered. When the LEMS database is accessed, the agency identifier, device identifier, date and time of the access, type of query, and information returned are logged. This means that audits for use of the LEMS database do not return information showing accesses by a particular law enforcement officer. Rather, audits show only that the information was accessed by a particular device registered to a particular agency. (See Engler Decl. ¶ 4; Aff. of Kelly McCarthy ¶ 7, ECF No. 58; Ex. 4 at 1 to Aff. of Jonathan A. Strauss, ECF No. 37-3.)

         Accordingly, determining whether a specific law enforcement officer, i.e., Shepard, performed any one access of the LEMS database reflected in these audit returns is a multistep process. Because use of the LEMS database is not tied to the identity of a particular user, the City must undergo a series of crosschecks to determine whether Shepard was in fact the officer querying the LEMS database for each access. First, the City must contact its IT provider to determine which of its officers “was signed into the device at the time of the query.” (McCarthy Aff. ¶ 7.) Second, the City “check[s] the schedule to make sure the officer signed in was working on the date and time of the query.” (McCarthy Aff. ¶ 7.) Third, the City “check[s] squad assignment sheets to ensure the device was located in the squad the officer was assigned to.” (McCarthy Aff. ¶ 7.) This process is complicated by the fact that “[d]evices can be moved between squads[ and], therefore, [the City] . . often ha[s] to find an additional verification source such as reports or citations written around the same time.” (McCarthy Aff. ¶ 7.) For each access, the process can “take anywhere from a few minutes to an hour to verify this information.” (McCarthy Aff. ¶ 7.)

         2. LEMS Audit Returns

         LEMS audit data is also less “user-friendly” than audit data from other databases. The “average LEMS audit return” for a single access/search is two to three pages, and the data returned is difficult to decipher. (Engler Decl. ¶ 8; see Pls.' Mem. in Supp. at 4-5, ECF No. 36; see, e.g., Ex. 6 to Strauss Aff., ECF No. 39.)

         In addition, some of the information in the LEMS database-for example, federal criminal history information-is protected from disclosure by federal law. (See Engler Decl. ¶¶ 5, 9; DPS Opp'n at 4.) See, e.g., 28 C.F.R. § 20.33 (dissemination of criminal history record information).[2] An excerpted LEMS audit return submitted to the Court states in no uncertain terms, and often multiple times per page, that “THIS RETURN IS OF FEDERAL DATA. THE FBI IMPOSES RESTRICTIONS ON THE RELEASE OF THIS DATA.”[3] (Ex. 6 passim to Strauss Aff.) This LEMS audit return also reflects that the “query [w]as . . . sent to . . . the FBI, ” (Ex. 6 at 11 to Strauss Aff.), and appears to show queries of the National Crime Information Center (“NCIC”), (Ex. 6 passim to Strauss Aff.).[4]

         The NCIC is “the computerized information system, which includes telecommunications lines and any message switching facilities that are authorized by law, regulation, or policy approved by the Attorney General of the United States to link local, state, tribal, federal, foreign, and international criminal justice agencies for the purposes of exchanging NCIC related information.” 28 C.F.R. § 20.3(n). “The NCIC includes, but is not limited to, information in the [Interstate Identification Index System], ” id., which is “the cooperative federal-state system for the exchange of criminal history records, and includes the National Identification Index, the National Fingerprint File, and to the extent of their participation in such system, the criminal history repositories of the states and the FBI, ” id. § 20.3(m). (See Law Enforcement's Use of State Databases at 5, Office of the Legislative Auditor, State of Minn., Ex. A to Compl., ECF No. 1-1 [hereinafter Legislative Auditor's ...


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