Secret air bag design data defeat public’s safety interest

From the Spring 2001 issue of The News Media & The Law, page 37.

A consumer safety group will not get government-held information about the safety and effectiveness of automobile air bags, after a federal appellate court in Washington, D.C. on March 30 upheld a lower court ruling that the records do not have to be released.

The appellate court determined that the car manufacturers’ interests in protecting their air bag designs and the government’s interest in continuing to get this type of information from the manufacturers in the future trumped the public’s interest in the records.

Hoping to find ways to reduce serious and fatal injuries to children caused by vehicular air bags, safety features that it estimates have saved thousands of lives in automobile crashes, the National Highway Traffic Safety Administration in December 1997 directed nine car manufacturers and importers to answer detailed questions about air bags and their effectiveness in the automobiles they sold from 1990 to 1998.

The federal government required air bags in all vehicles, but the accidents provoked a new rule allowing some vehicle owners to install on-off switches for the air bags when children, small adults or persons with certain medical conditions were likely to be in the car.

Drawing on the information the industry provided it, NHTSA assessed overall safety standards for air bags so that it could better regulate the industry.

But that information is not enough to really let consumer groups and the public know the safety record of air bags in various makes and models of vehicles, according to the Center for Auto Safety, a Washington D.C.-based public interest group that has followed the safety habits of car manufacturers for 31 years.

The center wanted the air bag information too. It hoped the agency would make the submitted information public, that consumer protection groups could analyze it in order to help drivers and passengers know how to travel safely, how to make safe choices when they purchase a new or used car made during those years, and how to determine when and whether to install on-off switches.

The center filed a Freedom of Information Act request in Jan. 1999 for the detailed information that NHTSA had collected and not provided to the public. Some manufacturers did not object to releasing the information and the Center got some, but never all, of what it requested. The agency invoked the exemption to the FOI Act that protects certain commercial and financial information submitted to the government by outside groups.

Denials by the agency were affirmed by the federal district court in Washington, D.C., and in March by the U.S. Court of Appeals (D.C. Cir.).

The appeals panel upheld a quirky decision by the lower court that turned, not on the content of the requested records, but on how the agency came by the information in the first place.

The courts said NHTSA violated the Paperwork Reduction Act when it directed the manufacturers and importers to provide information because it had not first cleared an information collection request with the Office of Management and Budget. That law, intended to reduce government’s burden on the public, limits the way agencies can seek information even from the industries they oversee.

If an agency requires answers to its questions, it must follow certain procedures, the appeals court said. Because it had not done so, the court would regard the information as “voluntarily,” not “mandatorily” submitted, a critical distinction in determining whether FOI requesters will get the records they seek.

When a business volunteers information it enjoys some protection from disclosure so that, in theory, the government will not jeopardize its own chances of getting similar information in the future. Voluntary information that is not customarily disclosed can be withheld as exempt. On the other hand, when businesses must give the government information, the commercial exemption will protect it only when disclosure could cause substantial competitive harm.

No manufacturer or importer challenged NHTSA’s questions to them. The court, however, said it did not matter and that enforcement of the Paperwork Reduction Act could only occur if courts refused to allow collected information to be used like properly collected information.

Under case law in the D.C. Circuit, information is treated as “voluntarily” submitted even if the government could require businesses to submit it. (Critical Mass Energy Project v. NRC)

The lower court had also ruled that some of the items could be withheld as trade secrets including information on tear patterns, fold patterns, tethers, and even engineering specifications given to air bag suppliers so they could work out algorithms showing how injuries could occur. However, the appeals panel did reject some of the lower court’s analysis on trade secrets.

Clarence Ditlow, director of the center, said that in filing the request, the center wanted to know which air bags were better. It wanted to know what simple design characteristics made some bags good and some bad. It wanted to know what information about air bags should be taken into account by customers in the market for used cars.

Customers should know something about the particular air bags in their cars, he said, to know if some passengers should use an on-off switch to keep the air bag from operating.

For example, the owner of a Honda Civic, which has a good air bag safety record, may keep the air bag on, he said. On the other hand, a 1992 Ford Taurus or a 1994 Nissan Ultima owner may want to turn off the air bag. A “strange design” of the air bags in the Nissan Ultima in 1994 and early 1995 probably have caused at lease 30 cases of blindness, he said.

Injuries from air bags have almost all occurred when vehicles travel at very low speeds. A collision that causes relatively minor damage to a car can trigger the eruption of an air bag that causes serious injury.

NHTSA had analyzed the information, but had presented it only for the industry as a whole.

The center could more accurately assess the dangers of air bags if it had the details NHTSA collected — details on the kinds of sensors used to deploy the air bags, on how fast pressure comes up on impact, on the folding patterns, on the distance of air bag from the passenger when it fully inflates, on angles from the passenger when he is seat-belted, if deployment is from the passenger side.

With the help of interest groups capable of assessing these technical details, consumers could be informed of the safety of a particular car.

At the same time that the center filed its FOI request it signed a joint petition with Parents for Safer Air Bags, the American Academy of Pediatrics and other groups urging NHTSA to not only make these details available to the public, but to revise its brochure, “Air Bags and On-Off Switches,” and make that information affirmatively available. –RD