United States District Court, D. Minnesota
Randolph Pentel, Kim Povolny, Michelle Povolny, and Michael Povolny, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
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);
Iverson, Stephanie A. Angolkar, and Susan M. Tindal, Iverson
Reuvers Condon, (for Defendant City of Mendota Heights); and
J. Larson, Assistant Attorney General, (for Respondent
Minnesota Department of Public Safety).
N. Leung United States Magistrate Judge
matter is before the Court, United States Magistrate Judge
Tony N. Leung, on Plaintiffs Randolph Pentel and Michael
Povolny's 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”).
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.)
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.)
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.)
Determining the Source of a LEMS Access
“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.)
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.)
LEMS Audit Returns
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.)
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). 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.” (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.).
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