November 9, 2012 Minnesota Police Chief Magazine Mona Dohman, Commissioner of Public Safety

Using Minnesota’s DVS Database: an Issue of Law, Trust and Integrity As police chiefs and officers, you may be aware of a number of recent news stories covering the misuse of the Driver and Vehicle Services (DVS) database. “Police and other public employees in Minnesota,” said the Minneapolis Tribune, “have routinely abused their access to the massive state drivers’ license database, looking up personal information on citizens thousands of times for their own purposes, records show.” The most well-known case may be the one involving an ex-St. Paul police officer who was reported by the Star Tribune to be suing at least 16 cities and counties, and more than 140 police officers whom she accused of illegally accessing her information in the DVS database as many as 550 times. The investigation into that incident, at this writing, is still underway. Excuses are being made; explanations are being offered. Questions are being raised about who knew what, and whether those who admitted breaking the law were adequately punished for it. As this sad drama plays out in the media, the reputation of law enforcement officers across Minnesota is being tarnished. Public reaction, as revealed by reader comments, is intense and understandably negative. This is terribly disappointing to me, personally, as a leader in law enforcement and as Commissioner of Public Safety. I know we can’t undo it; we can’t turn back the clock. But certainly, as a profession — as a proud group of people dedicated to protection and service — we can resolve to stop the problem in its tracks. Let me be clear: no one is above the law; we are all accountable for our actions. Those of us entrusted with protecting the public, along with its rights, are especially accountable, in my view. And the law is very clear. The Driver’s Privacy Protection Act (DPPA) can be found online at accessreports.com/statutes/DPPS1.htm, while Minnesota Statute 171.07 lists very specific, legal purposes for driver’s license photos. Police chiefs are obligated to make these laws known to their officers, and every officer has the responsibility to report illegal use of the database. By fulfilling those responsibilities, the Minnesota law enforcement community can stop the abuse and secure the public’s trust — which, considering work you do, is one of your most valuable assets. Robert E. Lee was an Army general most famous for his role in the Civil War. He said, “I cannot trust a man to control others who cannot control himself.” Lee’s military strategy may have failed, but his ideas about trust were true and sensible. People who see enforcement officers failing to control the impulse to access information illegally will probably lose their trust in those officers. They could legitimately ask, “How can you tell me to obey the law when you’re not obeying it, yourself? Why should I trust you?”

The badge is not enough. That’s a symbol of all the good things law enforcement officers are, but it can be easily tarnished by dishonest behavior. Integrity is what our constituents expect from law enforcement. It’s what they deserve. With regard to the DVS database, you know what’s legal, and you know what’s right. Acting on that knowledge and displaying the integrity do what’s right makes you worthy of the badge. I respectfully call on you to honor the trust placed in you by the people of Minnesota, and respect the rights of those you swore to protect on the day you chose to serve.

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O L A OFFICE OF THE LEGISLATIVE AUDITOR

STATE OF MINNESOTA

Evaluation Report Summary / February 2013

Law Enforcement’s Use of State Databases

BCA’s practices to limit access to Key Facts and Findings: CIBRS have not prevented some

During fiscal year 2012, over searches by law enforcement staff 11,000 law enforcement personnel without proper certification, and its accessed driver information of more audit practices have not adequately than 1.4 million individuals through detected and addressed violations of

state law. the Driver and Vehicle Services (DVS) Web site.

Key Recommendations: The Legislature authorized

Minnesota’s Comprehensive DPS and chief law enforcement Incident-Based Reporting System officers need to increase awareness (CIBRS) in 2005 to facilitate among law enforcement staff about information sharing among law the classification and allowed uses

The state’s enforcement agencies, but its use has of driver’s license data. approach to been limited. In fiscal year 2012,

DPS should strengthen controls managing law only 62 users searched the database. over access to driver’s license

enforcement’s use Some law enforcement personnel information, particularly access of state databases have used their access to driver’s through the DVS Web site. is reasonable, but license data for non-work purposes

DPS should consider increasing its monitoring and or work purposes that are not

resources for monitoring use of allowed by state law. accountability driver’s license data, and chief lawneed to be The Department of Public Safety enforcement officers should consider strengthened. (DPS) has not had adequate training doing a greater number of proactive

policies for all law enforcement audits of their employees’ use. users of driver’s license data, and

BCA should ensure that only access controls have not always certified users have access to been effectively implemented. CIBRS and should explicitly

DVS and the Bureau of Criminal address in training the recurring Apprehension (BCA) maintain misuses of CIBRS. records of law enforcement queries

BCA should improve of driver’s license data, but neither implementation of its CIBRS audit division does much monitoring of program and use the system’s audit the records to identify misuse or has trail to identify inappropriate use a written policy for sanctions when between audits. misuse is found.

The Legislature should amend the Law enforcement personnel have CIBRS section of statutes so that used CIBRS in ways that statutes do some information about agencies not permit. that participate in CIBRS, such as their names, is public.

Room 140 Centennial Building, 658 Cedar Street, St. Paul, Minnesota 55155‐1603 • Tel: 651‐296‐4708 • Fax: 651‐296‐4712

E‐mail: auditor@state.mn.us • Web Site: www.auditor.leg.state.mn.us • Through Minnesota Relay: 1‐800‐627‐3529 or 7‐1‐1

2 LAW ENFORCEMENT’S USE OF STATE DATABASES

Law enforcement personnel’s misuse of state databases has included non-work-related and work-related uses that are not permitted by law.

Report Summary

Law enforcement agencies use a wide variety of information to protect public safety and enforce the law. Some of the information they access is in state databases that contain a significant amount of personal data. The Department of Public Safety (DPS) provides law enforcement personnel with access to driver’s license data and the Comprehensive Incident-Based Reporting System (CIBRS), among other databases.

The state driver’s license database contains information, including photographs, for every person who has a Minnesota driver’s license or identification card. The Driver and Vehicle Services Division (DVS) collects and maintains driver’s license data. Law enforcement personnel access these data through a DVS Web site or through systems operated by the Bureau of Criminal Apprehension (BCA).

CIBRS is a database to which Minnesota law enforcement agencies voluntarily submit data about incidents that may be of interest to other Minnesota law enforcement agencies. For a given incident, CIBRS can contain information about the date, time, location, and type of offense, as well as information about any persons or property involved. BCA manages CIBRS.

Law enforcement personnel make extensive use of driver’s license information, but less use of CIBRS.

During fiscal year 2012, law enforcement users performed about 3.8 million queries of driver’s license information through the DVS Web site. They made even greater use of driver’s license information through BCA systems. Between January and March 2012, law enforcement staff performed more than three times as many queries of driver’s license information through

BCA systems as through the DVS Web site.

Personnel from 29 law enforcement agencies performed 333 CIBRS searches in fiscal year 2012. As of July 2012, 150 of the state’s roughly 435 law enforcement agencies had had access to CIBRS at some point since the first agency began participating in December 2006.1

Some law enforcement personnel have accessed driver’s license data for impermissible purposes.

With some exceptions, federal and state laws classify personal driver’s license data as private and limit their permissible uses.2 The permissible law enforcement use is broad for most driver’s license information, but uses of photographs are more limited.

We defined inappropriate use as accessing the driver’s license database using invalid privileges or without a permissible purpose. It includes non-work-related use or work-related use that is not permitted by law. Use does not need to be malicious or for personal gain to be inappropriate.

DVS records of fiscal year 2012 investigations into possible misuse of its Web site showed that 88 law enforcement personnel misused DVS data. We also identified some misuse. For example, some users continued to access the Web site using usernames and passwords associated with their previous employment. In interviews, some law enforcement officials described work-related uses of driver’s

1 There were approximately 450 law enforcement agencies in Minnesota in 2012, but state statutes authorize only some law enforcement agencies to participate in CIBRS. Minnesota Statutes 2012, 299C.40, subd. 1(c). 2 18 U.S. Code 2721-25 (2006); and Minnesota Statutes 2012, 171.07, subd. 1a; and 171.12, subds. 7(a) and 7a.

3 SUMMARY

Reducing misuse of state databases by law enforcement staff will require efforts by the Department of Public Safety and law enforcement officials.

license photographs that are inconsistent with state law.

Other queries of driver’s license information appeared questionable. For example, the DVS “audit trail,” which records queries of driver’s license information, showed that over half of the law enforcement users queried information of people with their same name or same surname, or disproportionately queried records of individuals of one sex or the other during fiscal year 2012.

DPS and law enforcement officials need to strengthen training and access controls for driver’s license data and consider increasing resources to monitor their use.

Chief law enforcement officers should consider requiring all of their employees who use driver’s license data to take DVS’s training. Currently, sworn officers who use the Web site are not required to do so. Law enforcement personnel who access driver’s license information through BCA systems must take training, but it does not specifically cover proper use of driver’s license information. The DVS training released in January 2013 covers classification and permissible uses of driver’s license data, including photographs, and possible consequences for misuse.

DPS should also work with the Sheriffs’ Association and Chiefs of Police Association to develop a model policy on law enforcement use of driver’s license data.

DVS needs to strengthen access controls. Authorized users can access its Web site from any computer with Internet access, so it is important that only persons who need access have it, and that they have access to only the information they need. DVS should obtain user agreements from law enforcement agencies that use the Web site, work with agencies to make sure

user accounts are disabled when no longer needed, and work toward granting access to historical driver’s license photographs more selectively.

Currently, chief law enforcement officers provide the best opportunity for effective proactive monitoring of their employees’ data use. They are in the position to know employees’ work schedules and responsibilities and thus have a greater chance of recognizing uses inconsistent with those required by their job. We recommend that law enforcement agency leaders consider doing more proactive monitoring.

Finally, DPS should consider (1) increasing its resources—personnel and technology—for monitoring use of driver’s license information and (2) formalizing its approach to handling inquiries about use of this information.

Some law enforcement personnel have searched CIBRS for work purposes that are not among those allowed by law.

State statutes classify CIBRS data as not public and limit their use to six purposes.3 However, some personnel have used CIBRS for other work-related purposes, such as gun permit checks and some employment background checks. CIBRS can be used for employment background checks only for sworn officers or positions that could lead to employment as a sworn officer.

BCA needs to increase the information it provides about appropriate uses of CIBRS, ensure that only certified users have access to the system, and improve the CIBRS audit program.

BCA requires training of CIBRS users that covers appropriate use of the system, but some users still access CIBRS for inappropriate purposes.

3 Minnesota Statutes 2012, 299C.40, subds. 2 and 4.

4 LAW ENFORCEMENT’S USE OF STATE DATABASES

Laws and policies that regulate law enforcement’s use of state databases must balance needs and interests that often conflict.

BCA should include in its training not only authorized uses, but also explicit discussion about the inappropriate uses that have been found. BCA should also monitor the CIBRS audit trail between regularly scheduled audits to identify and halt misuse, and should periodically remind CIBRS users about the permissible uses of the system.

BCA needs to better control access to CIBRS. State statutes require that only certified users have access to the system.4 BCA implements this by requiring each law enforcement agency to ensure its users are trained and tested. Law enforcement agencies have not always accurately recorded users’ test information, though. As a consequence, users who have not completed certification have had access to CIBRS.

Finally, BCA needs to improve the CIBRS audit program. Although BCA has a goal of auditing all CIBRS agencies within their first six months, it has missed this goal numerous times. Several agencies have never been audited. In addition, auditors’ reviews of CIBRS searches do not always require complete justifications for the searches. State law limits CIBRS uses, and it is important that compliance with these limited uses be monitored.

Creating policy surrounding law enforcement’s use of state databases involves the difficult task of balancing public safety needs with civil liberties, privacy, and transparency interests.

Law enforcement agencies need to collect, create, and share information to protect public safety. At the same time, law enforcement’s use of personal data raises civil liberties, privacy, and transparency concerns.

To balance these sometimes conflicting needs and interests, the Legislature, DPS, and law enforcement agencies use various tools, including data collection and retention rules, data classification, and access and use restrictions. Training and audits, two additional tools, provide ways to inform users about classifications, rules, and restrictions, and monitor users’ compliance with them.

The Legislature and DPS have used many of these mechanisms for driver’s license data and CIBRS. Overall, we think the approaches the state has taken are reasonable. But as implemented, the mechanisms do not adequately address privacy and transparency concerns about law enforcement’s use of driver’s license data. The classification of CIBRS data limits transparency about the system. In addition, the cumulative effect of mechanisms to address privacy, transparency, and civil liberties interests may be limiting CIBRS’ potential to meet public safety and information-sharing needs.

4 Minnesota Statutes 2012, 299C.40, subd. 5.

Summary of Agency Response In a letter dated February 5, 2013, Department of Public Safety (DPS) Commissioner Ramona Dohman said sensitive data must be available to law enforcement officers for them to carry out their public safety responsibilities and solve crime. She said DPS strongly agrees that these data “should not be accessed in a manner that violates the trust the citizens of our state have a right to expect.” The commissioner said DPS commits to strengthening oversight and user training, and she listed several efforts already underway. She noted, however, that “no amount of oversight or training is a substitute for an individual honoring his or her professional and ethical obligation as an officer of the law,” and said DPS “will continue to stress to all users the importance of accessing this data in a legal and ethical manner.”

The full evaluation report, Law Enforcement’s Use of State Databases, is available at 651-296-4708 or: www.auditor.leg.state.mn.us/ped/2013/ledatabase.htm

March, 2013 MPPOA Police Journal Mona Dohman, Commissioner of Public Safety

Protecting Minnesota’s DVS Database with Training, Oversight and Integrity As law enforcement professionals, you may be aware of a number of news stories covering the misuse of the Driver and Vehicle Services (DVS) database. “Police and other public employees in Minnesota,” said the Minneapolis Tribune, “have routinely abused their access to the massive state drivers’ license database, looking up personal information on citizens thousands of times for their own purposes, records show.” The most well-known case may be the one involving an ex-St. Paul police officer reported by the Star Tribune to be suing at least 16 cities and counties, along with more than 140 police officers whom she accused of illegally accessing her information in the DVS database as many as 550 times. As a result of these cases and others, the Minnesota Office of the Legislative Auditor (OLA) conducted an investigation, results of which were released in February. His findings included:

• More than 11,000 law enforcement personnel accessed driver info on more than 1.4 million individuals through the Department of Public Safety DVS website in FY 2012.

• Law enforcement personnel have used their DVS access for non-work purposes, or for work-related purposes not allowed by state law. In interviews, some law enforcement officials described work-related uses of driver’s license photographs that are inconsistent with state law.

• Other queries of driver’s license information appeared questionable. For example, the DVS “audit trail,” which records queries of driver’s license information, showed that over half of the law enforcement users queried information of people with their same name or same surname, or disproportionately queried records of individuals of one sex or the other during fiscal year 2012.

The OLA recommended that DPS increase training for users of the system. Currently, the department is offering online training in proper use of DVS data for authorized users; all police officers with access will be expected to complete it. We’re also working cooperatively with chiefs and sheriffs to develop formal, written policies and routine auditing procedures — and make sure former police employees can no longer access the data. The BCA will incorporate lessons on permissible use of driver license information into their standard training, and over time, complete development of an auditing tool to monitor database use. At the same time, DVS is implementing a new information system that includes Identity Access Management to strengthen oversight of data use. With regard to the Comprehensive Incident-Based Reporting System (CIBRS), the BCA will increase training focus on appropriate and inappropriate database use, and strengthen CIBRS audits by starting in the first six months of an agency’s use and monitoring between full audits.

DPS is committed to keeping Minnesota citizens’ private data private, and we’ll do our part to make that happen. Your part is as important. No amount of training or oversight will substitute for the personal choice, on the part every law enforcement officer, to honor professional and ethical obligations. The Department of Public Safety will continue to ask for cooperation and support, stressing the importance of legal, ethical use of private data. We can’t erase what’s already happened. But certainly, as a profession, we can resolve to stop this problem in its tracks. We can all agree that no one should be above the law; we are all accountable for our actions. Those of us entrusted with protecting the public, along with its rights, are especially accountable, in my view. I trust that you are working to ensure that your officers know the law regarding access to driver and vehicle data. We need to work to stop the abuse and secure the public’s trust once again. Our badge is a symbol of all the good things law enforcement officers are, but it can be easily tarnished by inappropriate behavior. Integrity is what our constituents expect from law enforcement. It’s what they deserve. With regard to the DVS database, we all know what’s legal, and we know what’s right. I respectfully call on you to work with us on securing private data. We must honor the trust placed in us by the people of Minnesota, and respect the rights of those we swore to protect on the day we chose to serve.

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