What rules apply to searching DMV database?

Answer

Your query poses a couple of issues.The first seems to be whether police officers who run driver’s license numbers through the DMV database to access personal information for individuals not currently under investigation is a violation of the law.

To the extent that police officers are using their access to the system for their own benefit, this may be a violation of the right to privacy of those individuals.

You may want to raise this issue with the district attorney in your area, or, if that is not satisfactory, the attorney general.You may also want to talk to an attorney who specializes in privacy issues about whether you or any of the other individuals who feel their privacy as been invaded by this practice have a viable case against the police department.

Your second issue relates to fees permitted under the Public Records Act for duplication of records.

As a preliminary matter, the information you are requesting seems to required to be disclosed under the Act.Although the Act exempts certain law enforcement records, such as investigative records, Gov’t Code section 6254(f), information such as the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response is required to be disclosed.Gov’t Code section 6254(f)(2).

Also, certain information is required to be released to the “victims of an incident” under section 6254(f)
(“state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation.
However, nothing in this division shall require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.”).

The Act specifically provides that the local agency may charge a fee for a copy of a Public Record pursuant to Gov’t Code section 6253.Gov’t Code section 54957.5(d).

The Act also provides that copies of records must be made available “upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.”Govt. Code § 6253(b).

In the context of paper copies, a California court has said that “[t]he direct cost of duplication is the cost of running the copy machine, and conceivably also the expense of the person operating it.

‘Direct cost’ does not include the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.”North County Parents Org. v. Department of Educ., 23 Cal. App. 4th 144, 148 (1994).

There is little additional authority as to what agencies can charge for copies and, in particular, what they can charge for staff time in making copies.North County suggests that agencies can charge for the cost of operating the copy machine, though there may be room to argue about whether a particular hourly charge for copying is reasonable.

There is also very little authority interpreting the “statutory fee” alternative of Government Code § 6253(b).The most relevant case would seem to be Shippen v. Department of Motor Vehicles, 161 Cal. App. 3d 1119 (1984), in which the Court of Appeal considered whether the DMV could charge $30 per thousand records, pursuant to a provision of the Vehicle Code authorizing the DMV to sell copies of records “at a charge sufficient to pay at least the entire actual cost to the department,” with the director to determine specific charges.

The court determined that the then-existing cost provision of the PRA (equivalent in substance to current provision) did permit the DMV to impose charges that exceeded actual costs.

In doing so, the court suggested that the fact that the plaintiff requester would sell the records as part of a commercial venture lessened its concern that the fee in excess of actual costs would undermine “the fundamental right” of “access to information,” concluding that it was “not persuaded that charges in excess of actual cost by DMV will unduly impede plaintiffs’ access to DMV’s records or violate the spirit of the Act” and noting that the plaintiff did “not contend DMV’s fee of $30 per thousand is an abuse of the agency’s discretion.”Id. at 1126-27.

It appears that the agency is charging you a fee of $50 an hour to run your search, thereby arguably charging you simply for making your request.This would seem to violate not only the spirit but also possibly the clear language of the PRA, which provides that “[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.

Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.”Govt. Code § 6253(a).

As to the fees for copies themselves, it seems that $32 for an audio recording and $15 for a copy of a report (the length of which is unknown at the time of the request) may be unreasonable, as they do not appear to bear any relationship to the direct costs of duplication, which means that it should only be permissible if it represents a “statutory fee” under Government Code § 6253(b).

It is possible that there is a statutory fee that would permit the sheriff’s office to charge fees that go above and beyond duplication costs, but I am not aware of any.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.