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Some state records custodians are misinterpreting a federal law that bars state transportation safety records from litigation, but not from…

Some state records custodians are misinterpreting a federal law that bars state transportation safety records from litigation, but not from the public.

From the Summer 2005 issue of The News Media & The Law, page 21.

By Ryan Lozar

When a chunk of the 50-year-old Tappan Zee Bridge broke loose and splashed into the Hudson River in February, reporter Bruce Golding of The Journal News, north of New York City, knew he wanted a piece of the story.

But getting information wasn’t easy. The New York State Thruway Authority’s heavy redactions of bridge safety reports rendered them nearly useless, forcing Golding to use a Federal Highway Administration database instead.

Unfortunately, the data were a poor substitute for the state reports because “the states compile so much more information than the feds require,” said Golding, whose paper covers Putnam, Rockland and Westchester counties in New York.

Homeland security is frequently cited, as it was to Golding, in denying access to state transportation safety analyses. But there is also a little known federal highway Hazard Elimination Program law prohibiting the use of certain state transportation safety reports as litigation discovery and evidence. The law has been liberally &#151 and improperly &#151 interpreted by records custodians as exempting highway safety reports from state open records laws.

New York’s highest court in early June clarified the issue for record holders: The law cannot be used as an exemption to the state open records law when the requester is a journalist. Kansas’ high court has ruled similarly.

Cramping freedom of information

Under the federal highway Hazard Elimination Program, states are eligible to receive federal funds for improving dangerous railway crossings, bridges and intersections if they submit reports to the federal government identifying potentially hazardous locations.

In 1987, Congress responded to concern that the traffic safety reports could be used against states in personal injury litigation if an accident occurred on a road that the state had identified as dangerous, but had not yet fixed. The resulting law bars the reports from being “subject to discovery or admitted as evidence” in any court proceeding.

The “evidence ban” says nothing about creating an exemption to state open records laws. But government records custodians frequently claim just that.

In a 1999 case, Ex parte Alabama Department of Transportation, the Alabama Supreme Court ruled that a personal injury plaintiff &#151 injured when his car hydroplaned at a frequently flooded intersection &#151 could not use the state open records law to gain access to hazard reports that the evidence ban barred him from getting in court discovery. Justice Ralph Cook wrote for the unanimous court that allowing access would position the state’s open records policy “as an obstacle to the accomplishment of the full purposes and objectives of Congress.” An intermediate appellate court in Tennessee reached a similar conclusion in 1995.

New York victory

When the New York Department of Transportation denied Newsday access to the hazard reports in 2003 citing the evidence ban, the newspaper sued, winning at the trial and intermediate appellate courts. The department appealed to the New York Court of Appeals, the state’s highest court.

In its brief, Newsday argued that “there is a difference between rendering information inadmissible and prohibiting its discovery in litigation” &#151 as the law explicitly does &#151 “and designating such information confidential or exempt from disclosure under freedom of information laws,” which the evidence ban does not mention.

Writing for the unanimous court in Newsday v. Department of Transportation, Justice George Bundy Smith found Newsday‘s argument compelling, at least when the requester is a reporter. “This is not a case in which a tort plaintiff is using a [Freedom of Information Law] request to circumvent what [the evidence ban] was specifically designed to avoid,” he wrote.

Smith acknowledged the transportation department’s concern that a Newsday article on the hazard reports could give personal injury plaintiffs “the equivalent of discovery” that the evidence ban prohibits. But, he noted, courts still wield power to exclude documents from evidence.

The U.S. Court of Appeals in St. Louis (8th Cir.) reached the same solution in 1992 in affirming a trial court decision barring a mother from introducing into evidence a newspaper article written using hazard reports in a personal injury lawsuit she filed on behalf of her son, a victim of a car-train collision. The hazard report cannot find its way into evidence in violation of the ban “simply because it is reported by an indirect, secondary source,” Judge Donald Roe Ross wrote in Robertson v. Union Pacific Railroad.

The Kansas Supreme Court also found that the evidence ban does not imply a public records exemption for journalists. The Kansas Department of Transportation denied The Garden City Telegram access to railroad crossing hazard reports in1998 after an accident at one particular crossing. “We decided to see how the department of transportation determines which intersections get flashing lights, crossbucks, and things like that,” said Steve Delaney, former editor-publisher of The Garden City Telegram in Kansas. The paper sued and won. The trial court also ordered the transportation department to pay the newspaper’s attorney fees.

The attorney fees issue was appealed to the Kansas Supreme Court, which ruled unanimously in Telegram Publishing Co., Inc v. Kansas Department of Transportation in 2003 that the department had to pay the newspaper’s legal bills because invoking the evidence ban as a state freedom of information exemption was “unreasonable.”

“[The evidence ban] clearly prohibits disclosure only for discovery or evidentiary purposes in a court proceeding” but bears “no prohibitions against disclosure upon a request by a newspaper reporter,” Judge Lawton R. Nuss wrote for the court.

The government’s attempt to use the evidence ban to close records is a classic example, Delaney said, of “bastardizing what the law says for the sake of secrecy.”

Delaney noted that when The Telegram finally received the hazard reports, they showed that railroad crossings with the lowest safety ratings were not the always the first improved.

“We’ve got to stay on top of this stuff,” he said. Departments of transportation “across the country like to invoke it as a means of getting people out of their hair.”

Next best alternative

Journalists outside New York or Kansas denied access to hazard reports under the evidence ban may have ammunition in a 2003 U.S. Supreme Court decision, Pierce County, Washington v. Guillen. The court ruled that a personal injury plaintiff can access raw historical accident data under Washington state open records law when the information is collected for a state purpose independent of the federally mandated hazard reports.

Justice Clarence Thomas hypothetically suggested that a county sheriff might prepare accident reports for an independent purpose. “The text of [the evidence ban] evinces no intent to make [records requesters] worse off” in terms of information access rights than they would have been in a world without hazard reports, Thomas wrote for a unanimous court.

In a friend-of-the-court brief supporting the government in the case, 13 states and a U.S. territory explicitly disavowed any belief that the evidence ban should be invoked against journalists.

The evidence ban, the states argued, does not “prohibit a newspaper . . . from requesting highway data [using open records laws] to do a story on highway safety.”

Journalists living in Alaska, Florida, Hawaii, Illinois, Indiana, Maryland, Nevada, Ohio, Oregon, Pennsylvania, Utah, Vermont, Washington and the Commonwealth of the Northern Mariana Islands &#151 which signed onto the brief &#151 might advise an agency invoking the evidence ban against them that its state attorney general disagrees.