Amendment would allow car accident reports to remain in police hands

April 30--State lawmakers are moving quickly to try to overturn a new interpretation of a 19-year-old law that would put state motor vehicle officials in the driver's seat for releasing accident reports to consumers, insurance companies and the media.

Critics maintain this policy will end the long-standing practice of going to local police departments for this information and force accident victims to wait for weeks if not longer to receive these records needed to process an insurance claim.

And it would on many occasions delay the release of public information to the media and public regarding traffic accident details.

The state Division of Motor Vehicles maintains that the Driver Privacy Act that the Legislature adopted in 1996 says the DMV is the only agency that can disclose this information.

That's despite the fact that former Attorney General Peter Heed and ex-Assistant Safety Commissioner Earl Sweeney issued separate memos to police departments in 2000, assuring local chiefs they could provide these reports to the public.

"What was very clear is that, under the DPA, the only entity that is authorized to distribute accident reports to anyone, including involved parties and their insurance companies is the (DMV)," wrote Wilton Police Chief Brent Hautanen, the third vice president of the New Hampshire Association of Chiefs of Police in an email to his counterparts.

"There is no allowance in the law for any other agency to be authorized to distribute these reports, which represents a wholesale change to the way most departments have been operating since the passage of DPA."

On Tuesday, the Senate Judiciary Committee will take testimony on an amendment to the DPA that would make it clear local chiefs can disseminate this information to include "name, age and town of residence of persons involved in accidents" and any other information allowed under the Right-to-Know Law.

Sen. David Watters, D-Dover, is authoring the amendment to an unrelated bill (HB 437) that deals with the authority of local police while they are in another community other than their own on official business.

"We are going to get this done. The chiefs need to be able to disseminate this information; that is just a basic public service," Watters said.

The language will undergo further changes based on advice that Watters said he has received from executives with insurance companies and public utilities.

"We are trying to scrub this to make sure the privacy part of this act is retained; we all want to do that, but the motorist has to be able to get this information or this interpretation will cause all kinds of problems," Watters said.

This controversy arose from an April 6 meeting at the Department of Safety during which discussion focused on the dissemination of vehicle accident reports. State representatives at that meeting included the Department of Safety's assistant commissioner, the director of the Division of Motor Vehicles, a Department of Safety attorney, a State Police captain, and two members of the Attorney General's Office.

Chiefs could be charged

At that session, the police chiefs lobby said they were told they could no longer give out traffic accident reports and warned that if they continued the practice they would be charged with committing a misdemeanor. And if a local department sells an accident report to an insurance company for the traditional $25 to $50 fee, they could face a felony charge.

The instructor for the same class further counseled that police officers could no longer even facilitate the exchange of personal information between drivers involved in fender benders, according to the chiefs organization.

State officials have assured local police this isn't a change in policy but rather the proper way to carry out the Driver Privacy Act.

This state law was meant to comply with the federal Driver's Privacy Protection Act (DPPA) that in 1994 spelled out what state motor vehicle departments could disclose on information contained in their records.

The DPA states the Division of Motor Vehicles is the sole custodian of motor vehicle records.

But Greg Sullivan, legal counsel for the New Hampshire Union Leader, said traffic accident reports are generated by local police departments and as such are public records in their own right. This was how both ex-AG Heed and ex-Assistant Commissioner Sweeney had advised, Sullivan said.

"Generally speaking, accident reports are a law enforcement record and are public records that should be produced on request," Sullivan said. "There is no legal foundation for refusing to release them now, and they have to provide the information at the local level absent some legitimate reason for protecting privacy."

After reviewing the Watters amendment, Sullivan said it was unnecessary.

"Sometimes you can make things worse by trying to fix a perceived problem that doesn't exist," Sullivan said. "I like the language that states the chiefs can charge fees because that makes clear it is a public record and I certainly appreciate the intention of the sponsors."

The Attorney General's Office declined comment.

Not all chiefs complying

Gov. Chris Sununu's office also declined comment on this dispute, deferring to DMV officials.

"The Department of Safety is currently working with the Attorney General's Office on resolving the issue of the interpretation of the Driver Privacy Act and providing guidance to police departments," said Larry Crowe, public information officer for the DMV.

But not all police chiefs are honoring this new advisory.

"Portsmouth has always provided that service so people don't have to go to Concord," said Portsmouth Police Chief David Mara, adding that his office is aware of the legislative fix and will monitor its progress.

Assistant Commissioner Sweeney, who sided with the chiefs in 2000, retired from state service in late 2015 and was replaced as assistant commissioner by Rick Bailey, who had been the director of motor vehicles.

At that time, the Executive Council approved hiring as Bailey's replacement at the DMV Elizabeth Bilecki of Bedford, who had been the director of administration for the Department of Safety.

While some local chiefs maintain the state is motivated by getting all the fee money for itself, Watters said he doesn't believe that is the case.

"I don't think there is any alternative motive," Watters said. "It's all about a new set of eyes. Somebody looked at it and said, 'Wait a minute, the locals don't have this authority.' Clearly it was good for 17 years but not good any longer, and that's why we need this amendment."

The state charges $1 per page with a $5 minimum for all motor vehicle records. All fees collected are to be deposited in the Fire Standards and Training and Emergency Medical Services Fund.

Critics maintain the state gets additional revenue by selling publicly available accident record information to direct marketers.

Motor vehicle fees along with gasoline taxes support the state Highway Fund that for years has spent more money than it's taken in fees.

Correspondent Bea Lewis contributed to this report.

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