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28th International Forum on Traffic Records Highway Information Systems August 4-8, 2002 Orlando, FL

4/17/2012. 2. If you write down only one thing,write this:. 4/17/2012. 3. DawsonJ@ag.state.la.us. 4/17/2012. 4. Introduction. . 4/17/2012. 5. Introduction. States collect a significant amount of data in their attempt to enhance highway safety23 U.S.C.

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28th International Forum on Traffic Records Highway Information Systems August 4-8, 2002 Orlando, FL

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    1. 4/17/2012 1 28th International Forum on Traffic Records & Highway Information Systems August 4-8, 2002 Orlando, FL “Is our Data Protected? A Discussion of 23 USC 409 and 23 USC 402(k)(1) Issues” By James R. Dawson Assistant Attorney General State of Louisiana, Department of Justice

    2. 4/17/2012 2 If you write down only one thing, write this:

    3. 4/17/2012 3 DawsonJ@ag.state.la.us

    4. 4/17/2012 4 Introduction

    5. 4/17/2012 5 Introduction States collect a significant amount of data in their attempt to enhance highway safety 23 U.S.C. § 152(a)(1): “Each State shall conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations…assign priorities for the correction of such locations…and establish and implement a schedule of projects for their improvement.”

    6. 4/17/2012 6 Introduction States collect a significant amount of data in their attempt to enhance highway safety 23 U.S.C. § 144 (c): “The Secretary, in consultation with the States, shall (1) inventory all those highway bridges on public roads…(2) classify them according to…safety…(3)…assign each a priority for replacement or rehabilitation.”

    7. 4/17/2012 7 Introduction States collect a significant amount of data in their attempt to enhance highway safety 23 U.S.C. § 130(d): “Each State shall conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose.”

    8. 4/17/2012 8 Introduction States collect a significant amount of data in their attempt to enhance highway safety All this data is used to identify potentially hazardous locations

    9. 4/17/2012 9 Introduction States collect a significant amount of data in their attempt to enhance highway safety All this data is used to identify potentially hazardous locations This data is used to prioritize the expenditure of state and federal funds

    10. 4/17/2012 10 Introduction States collect a significant amount of data in their attempt to enhance highway safety All this data is used to identify potentially hazardous locations This data is used to prioritize the expenditure of state and federal funds Much of this data is used in obtaining federal funding for highway safety projects

    11. 4/17/2012 11 Introduction States collect a significant amount of data in their attempt to enhance highway safety All this data is used to identify potentially hazardous locations This data is used to prioritize the expenditure of state and federal funds Much of this data is used in obtaining federal funding for highway safety projects How can a state collect that data yet prevent it from being used against it in a lawsuit for damages?

    12. 4/17/2012 12 Topics of Discussion 23 U.S.C §409

    13. 4/17/2012 13 Topics of Discussion 23 U.S.C §409 23 U.S.C. §402(k)(1)

    14. 4/17/2012 14 23 U.S.C.A. ? 409 “Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.”

    15. 4/17/2012 15 23 U.S.C.A. ? 409 - Purpose 23 U.S.C. §409 forms part of a comprehensive federal plan to promote highway safety.

    16. 4/17/2012 16 23 U.S.C.A. ? 409 - Purpose 23 U.S.C. §409 forms part of a comprehensive federal plan to promote highway safety. §409 encourages participation in a scheme that ensures, by prioritization, deliberative spending of federal funds.

    17. 4/17/2012 17 23 U.S.C.A. ? 409 - Purpose 23 U.S.C. §409 forms part of a comprehensive federal plan to promote highway safety. §409 encourages participation in a scheme that ensures, by prioritization, deliberative spending of federal funds. Its purpose is to foster the free flow of safety-related information by precluding the possibility that such information later would be admissible in civil suits.

    18. 4/17/2012 18 23 U.S.C.A. ? 409 - Purpose The interest to be served is to obtain information about the safety of roadways. Such information is collected or compiled to protect the public by ensuring that safety measures are routinely explored by the states

    19. 4/17/2012 19 23 U.S.C.A. ? 409 - Purpose The interest to be served is to obtain information about the safety of roadways. Such information is collected or compiled to protect the public by ensuring that safety measures are routinely explored by the states Congress has determined that the effect of the prohibition would be to enhance the safety of the nation’s highways and, in the long run reduce the number of people killed and injured in accidents that could be avoided by systematic analysis, and that this goal outweighs the barriers that it creates for litigants attempting to prove that a state’s negligence contributed to their injuries.

    20. 4/17/2012 20 23 U.S.C.A. ? 409 – Purpose - Citations

    21. 4/17/2012 21 23 U.S.C.A. ? 409 – Purpose - Citations Palacios v. Louisiana and Delta R.R. Inc., 98-2932 (La. 7/2/99), 740 So.2d 95

    22. 4/17/2012 22 23 U.S.C.A. ? 409 – Purpose - Citations Palacios v. Louisiana and Delta R.R. Inc., 98-2932 (La. 7/2/99), 740 So.2d 95 Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193, 197

    23. 4/17/2012 23 23 U.S.C.A. ? 409 – Purpose - Citations Palacios v. Louisiana and Delta R.R. Inc., 98-2932 (La. 7/2/99), 740 So.2d 95 Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193, 197 Martinolich v. Southern Pacific Transportation Company, 532 So.2d 435 (La.App. 1 Cir. 1988)

    24. 4/17/2012 24 23 U.S.C.A. ? 409 – Purpose - Citations Palacios v. Louisiana and Delta R.R. Inc., 98-2932 (La. 7/2/99), 740 So.2d 95 Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193, 197 Martinolich v. Southern Pacific Transportation Company, 532 So.2d 435 (La.App. 1 Cir. 1988) Fry v. Southern Pacific Transportation Co., 30,540 (La.App. 2 Cir. 6/24/98), 715 So.2d 632

    25. 4/17/2012 25 23 U.S.C.A. ? 409 – Purpose - Citations Palacios v. Louisiana and Delta R.R. Inc., 98-2932 (La. 7/2/99), 740 So.2d 95 Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193, 197 Martinolich v. Southern Pacific Transportation Company, 532 So.2d 435 (La.App. 1 Cir. 1988) Fry v. Southern Pacific Transportation Co., 30,540 (La.App. 2 Cir. 6/24/98), 715 So.2d 632 Coniker v. State of New York, 695 N.Y.S.2d 492 (N.Y.Ct.Cl. 7/26/99)

    26. 4/17/2012 26 23 U.S.C.A. ? 409 - “Notwithstanding any other provision of law… shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages…” Important to note that this does not make the documents private, secret, or non-public; it only prohibits their discovery through a suit for damages and their use or admissibility in such a suit. Miller v. Grand Trunk Western R.R., Inc., 727 N.E.2d 488 (Ind.App. Apr 26, 2000)

    27. 4/17/2012 27 23 U.S.C.A. ? 409 - “Notwithstanding any other provision of law… shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages…” Despite the State's substantial interest, §409’s explicit preemptive language overrides conflicting state law by virtue of the Supremacy Clause of the United States Constitution.

    28. 4/17/2012 28 23 U.S.C.A. ? 409 - “Notwithstanding any other provision of law… shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages…” Despite the State's substantial interest, §409’s explicit preemptive language overrides conflicting state law by virtue of the Supremacy Clause of the United States Constitution. Wiedeman v. Dixie Electric Membership Corporation, 627 So.2d 170 (La. 1993)

    29. 4/17/2012 29 23 U.S.C.A. ? 409 - “Notwithstanding any other provision of law… shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages…” Despite the State's substantial interest, §409’s explicit preemptive language overrides conflicting state law by virtue of the Supremacy Clause of the United States Constitution. Wiedeman v. Dixie Electric Membership Corporation, 627 So.2d 170 (La. 1993) Claspill v. Missouri Pacific Railroad Company, 793 S.W.2d 139, 140 (Mo. 1990)

    30. 4/17/2012 30 23 U.S.C.A. ? 409 - “Notwithstanding any other provision of law… shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages…” Despite the State's substantial interest, §409’s explicit preemptive language overrides conflicting state law by virtue of the Supremacy Clause of the United States Constitution. Wiedeman v. Dixie Electric Membership Corporation, 627 So.2d 170 (La. 1993) Claspill v. Missouri Pacific Railroad Company, 793 S.W.2d 139, 140 (Mo. 1990) Seaton v. Johnson, 898 S.W.2d 232 (Tn.App. Middle Section, 1995)

    31. 4/17/2012 31 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” National Railroad Passenger Corp. (Amtrack) v. Transwood, Inc., 2001 WL 930855 (E.D. La. Aug. 15, 2001): “…any reports, surveys schedules, lists or data relevant to the planning of the gate installations pursuant to the safety enhancement purposes of § 409 are inadmissible.” Walden v. Department of Transp., 27 P.3d 297 (Alaska Jul 13, 2001) – Highway Design Study Report

    32. 4/17/2012 32 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Taylor v. St. Louis Southwestern Ry, Co., 746 F.Supp. 50, 54 (D.Kan.1990): “[A]ny ‘reports, surveys, schedules, lists or data’ pertaining to the evaluation of crossings, including the crossing at issue here, undertaken pursuant to the safety enhancement-related purposes discussed in the statute, whether obtained from the Kansas Department of Transportation (‘KDOT’), the Kansas Corporation Commission (‘KCC’), Jefferson County or Union Pacific, are inadmissible.”

    33. 4/17/2012 33 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports ?

    34. 4/17/2012 34 23 U.S.C.A. ? 409 - “….compiled or collected….” “§409 was amended to include the words ‘or collected’ after ‘compiled’ to effectively eliminate the admissibility of ‘accident reports, traffic counts, and other raw data collected by the Department’ allowed by the holding in Wiedeman v. Dixie Electric Membership Corporation, 627 So.2d 170 (La. 1993). This clarification was added in response to state court decisions, like Wiedeman, that in the view of Congress, misinterpreted the term ‘data compiled.’” Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193, 197

    35. 4/17/2012 35 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …”

    36. 4/17/2012 36 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” There is no requirement that the information compiled is linked to a particular federally funded safety project in order to qualify for the privilege.

    37. 4/17/2012 37 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” There is no requirement that the information compiled is linked to a particular federally funded safety project in order to qualify for the privilege. “To the contrary, the information gathered by the state as part of its general examinations of all railroad crossings in the state, in order for the appropriate state and federal administrators to determine which crossings may need improvement and to qualify for federal funding for these improvements, falls within the protective scope.”

    38. 4/17/2012 38 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” There is no requirement that the information compiled is linked to a particular federally funded safety project in order to qualify for the privilege. “To the contrary, the information gathered by the state as part of its general examinations of all railroad crossings in the state, in order for the appropriate state and federal administrators to determine which crossings may need improvement and to qualify for federal funding for these improvements, falls within the protective scope.” Palacios v. Louisiana and Delta R.R. Inc., 98-2932 (La. 7/2/99), 740 So.2d 95, 101

    39. 4/17/2012 39 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” “Each State shall conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations…which may constitute a danger to motorists…assign priorities for the correction of such locations…and establish and implement a schedule of projects for their improvement.” 23 U.S.C. §152(a)(1).

    40. 4/17/2012 40 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” “Each State shall conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations…which may constitute a danger to motorists…assign priorities for the correction of such locations…and establish and implement a schedule of projects for their improvement.” 23 U.S.C. §152(a)(1). Surface Transportation Program (STP) - 23 U.S.C. §133

    41. 4/17/2012 41 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” - citations

    42. 4/17/2012 42 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” - citations Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193

    43. 4/17/2012 43 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” - citations Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193 Beecher v. Keel, 607 So.2d 549 (La. 1992)

    44. 4/17/2012 44 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” - citations Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193 Beecher v. Keel, 607 So.2d 549 (La. 1992) Rothermel v. Consolidated Rail Corporation, 1998 WL 110010 (Del.Super. 1998)

    45. 4/17/2012 45 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” - citations Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193 Beecher v. Keel, 607 So.2d 549 (La. 1992) Rothermel v. Consolidated Rail Corporation, 1998 WL 110010 (Del.Super. 1998) Rodenbeck v. Norfolk & Western Railway Company, 982 F.Supp. 620 (N.D. Ind. 1997)

    46. 4/17/2012 46 23 U.S.C.A. ? 409 - “….for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds …” - citations Reichert v. State, DOTD, 94-1419 (La. 5/20/97), 694 So.2d 193 Beecher v. Keel, 607 So.2d 549 (La. 1992) Rothermel v. Consolidated Rail Corporation, 1998 WL 110010 (Del.Super. 1998) Rodenbeck v. Norfolk & Western Railway Company, 982 F.Supp. 620 (N.D. Ind. 1997) Mackie v. Grand Trunk Western Railroad Co., 544 N.W.2d 709 (Mich.App. 1995)

    47. 4/17/2012 47 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” §409 precludes the testimony of experts, eyewitnesses, or officers, if that testimony was based upon privileged documents or information

    48. 4/17/2012 48 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (state cases) §409 precludes the testimony of experts, eyewitnesses, or officers, if that testimony was based upon privileged documents or information Palacios v. Louisiana and Delta Railroad, Inc., 98-2932 (La. 7/2/99), 740 So.2d 95

    49. 4/17/2012 49 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (state cases) §409 precludes the testimony of experts, eyewitnesses, or officers, if that testimony was based upon privileged documents or information Palacios v. Louisiana and Delta Railroad, Inc., 98-2932 (La. 7/2/99), 740 So.2d 95 Miller v. Bailey, 621 So.2d 1174 (La.App. 3 Cir. 1993)

    50. 4/17/2012 50 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (state cases) §409 precludes the testimony of experts, eyewitnesses, or officers, if that testimony was based upon privileged documents or information Palacios v. Louisiana and Delta Railroad, Inc., 98-2932 (La. 7/2/99), 740 So.2d 95 Miller v. Bailey, 621 So.2d 1174 (La.App. 3 Cir. 1993) Stephens v. Town of Jonesboro, 25,715 (La.App. 2 Cir. 8/19/94), 642 So.2d 274

    51. 4/17/2012 51 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (state cases) §409 precludes the testimony of experts, eyewitnesses, or officers, if that testimony was based upon privileged documents or information Palacios v. Louisiana and Delta Railroad, Inc., 98-2932 (La. 7/2/99), 740 So.2d 95 Miller v. Bailey, 621 So.2d 1174 (La.App. 3 Cir. 1993) Stephens v. Town of Jonesboro, 25,715 (La.App. 2 Cir. 8/19/94), 642 So.2d 274 Fry v. Southern Pacific Transportation Co., 30,540 (La.App. 2 Cir. 6/24/98), 715 So.2d 632

    52. 4/17/2012 52 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (state cases) §409 precludes the testimony of experts, eyewitnesses, or officers, if that testimony was based upon privileged documents or information Palacios v. Louisiana and Delta Railroad, Inc., 98-2932 (La. 7/2/99), 740 So.2d 95 Miller v. Bailey, 621 So.2d 1174 (La.App. 3 Cir. 1993) Stephens v. Town of Jonesboro, 25,715 (La.App. 2 Cir. 8/19/94), 642 So.2d 274 Fry v. Southern Pacific Transportation Co., 30,540 (La.App. 2 Cir. 6/24/98), 715 So.2d 632 Sawyer v. Illinois Central Gulf Railroad Company, 606 So.2d 1069 (Miss. 1992)

    53. 4/17/2012 53 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (federal cases)

    54. 4/17/2012 54 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (federal cases) Harrison v. Burlington Northern Railroad Company, 965 F.2d 155 (7th Cir. (Ill.) 1992)

    55. 4/17/2012 55 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (federal cases) Harrison v. Burlington Northern Railroad Company, 965 F.2d 155 (7th Cir. (Ill.) 1992) Shots v. CSX Transportation, Inc., 887 F.Supp. 204 (S.D. Ind. 1995)

    56. 4/17/2012 56 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (federal cases) Harrison v. Burlington Northern Railroad Company, 965 F.2d 155 (7th Cir. (Ill.) 1992) Shots v. CSX Transportation, Inc., 887 F.Supp. 204 (S.D. Ind. 1995) Robertson v. Union Pac.R.R., 954 F.2d 1433, 1435 (8th Cir. (Ark.) 1992) - newspaper article which, using state compiled data, identified a crossing as the most hazardous in the state. The article, and testimony relying on that article, was precluded from being introduced under 409

    57. 4/17/2012 57 23 U.S.C.A. ? 409 – “…shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes….” – citations (federal cases) Harrison v. Burlington Northern Railroad Company, 965 F.2d 155 (7th Cir. (Ill.) 1992) Shots v. CSX Transportation, Inc., 887 F.Supp. 204 (S.D. Ind. 1995) Robertson v. Union Pac.R.R., 954 F.2d 1433, 1435 (8th Cir. (Ark.) 1992) - newspaper article which, using state compiled data, identified a crossing as the most hazardous in the state. The article, and testimony relying on that article, was precluded from being introduced under 409 Lusby v. Union Pacific R. Co., 4 F.3d 639, 641 (8th Cir. (Ark.) 1993) - “We reject Lusby’s contention that because some of the data the expert used was available from other sources, admission of the expert’s opinion was harmless error”

    58. 4/17/2012 58 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports ?

    59. 4/17/2012 59 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Cannot be ordered produced or used – Coniker v. State of New York, 695 N.Y.S.2d 492, (N.Y.Ct.Cl. 7/26/99) Sevario v. State ex rel. Dept. of Transp. and Development, 98-1302 (La.App. 1 Cir. 11/10/99), 752 So.2d 221 Can be ordered produced and can be used - Irion v. State ex rel. Dept. of Transp. and Development, 98-2616 (La.App. 1 Cir. 5/12/00), 760 So.2d 1220 Dowell v. State Dep't of Transp. & Dev., 33,094 (La.App. 2 Cir. 2/1/00), 750 So.2d 498

    60. 4/17/2012 60 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Guillen v. Pierce County, 31 P.3d 628 (Wash. Sep 13, 2001):

    61. 4/17/2012 61 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Guillen v. Pierce County, 31 P.3d 628 (Wash. Sep 13, 2001): 1. Plaintiffs entitled to the accident history

    62. 4/17/2012 62 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Guillen v. Pierce County, 31 P.3d 628 (Wash. Sep 13, 2001): 1. Plaintiffs entitled to the accident history 2. Plaintiffs entitled to accident reports

    63. 4/17/2012 63 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Guillen v. Pierce County, 31 P.3d 628 (Wash. Sep 13, 2001): 1. Plaintiffs entitled to the accident history 2. Plaintiffs entitled to accident reports 3. 23 U.S.C. § 409 is UNCONSTITUTIONAL

    64. 4/17/2012 64 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Guillen v. Pierce County, 31 P.3d 628 (Wash. Sep 13, 2001): 1. Plaintiffs entitled to the accident history 2. Plaintiffs entitled to accident reports 3. 23 U.S.C. § 409 is UNCONSTITUTIONAL a. No legitimate federal interest

    65. 4/17/2012 65 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Guillen v. Pierce County, 31 P.3d 628 (Wash. Sep 13, 2001): 1. Plaintiffs entitled to the accident history 2. Plaintiffs entitled to accident reports 3. 23 U.S.C. § 409 is UNCONSTITUTIONAL a. No legitimate federal interest b. Conflicts with state law

    66. 4/17/2012 66 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Guillen v. Pierce County, 31 P.3d 628 (Wash. Sep 13, 2001) The United States Supreme Court has granted writs to review the decision of the Washington State Supreme Court: Pierce County v. Guillen, 122 S.Ct. 1788, 152 L.Ed.2d 648, 70 USLW 3553, 70 USLW 3664, 70 USLW 3668 (U.S. Wash. Apr 29, 2002)

    67. 4/17/2012 67 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “Each State shall conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations…which may constitute a danger to motorists…assign priorities for the correction of such locations…and establish and implement a schedule of projects for their improvement.” 23 U.S.C. §152(a)(1).

    68. 4/17/2012 68 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “Each State shall conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations…which may constitute a danger to motorists…assign priorities for the correction of such locations…and establish and implement a schedule of projects for their improvement.” 23 U.S.C. §152(a)(1). Implemented by Code of Federal Regulations: 1. 23 C.F.R. ? 924.9 2. 23 C.F.R. ? 924.13

    69. 4/17/2012 69 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports 23 C.F.R. ? 924.9 Planning (Highway Safety Improvement Program). ?(a) The planning component of the highway safety improvement program shall incorporate: ?(2) A process for analyzing available data to identify highway locations, sections and elements determined to be hazardous on the basis of accident experience or accident potential.?

    70. 4/17/2012 70 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports 23 C.F.R. ? 924.13 Evaluation (Highway Safety Improvement Program) ?(a) The evaluation component of the highway safety improvement program in each State shall include…: ?(2) A record of accident experience before and after the implementation of a highway safety improvement project.?

    71. 4/17/2012 71 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports The Transportation Equity Act for the 21st Century, Public Law 105-178, provided an additional and supplemental program, 23 U.S.C. § 411, to encourage states to follow uniform guidelines in collecting crash information as required under 23 U.S.C. § 402 for the implementation of the numerous federal-aid highway safety improvement programs (i.e, § 152). These guidelines are found at 23 C.F.R. § 1335.1 et seq.

    72. 4/17/2012 72 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports 23 C.F.R. § 1335.3(e): “As used in this part: (a) Highway safety data and traffic records means data and records relating to crashes, roadways, drivers, vehicles, traffic offense citations/convictions, emergency medical services, locations and other data and records relating to highway safety.

    73. 4/17/2012 73 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports 23 C.F.R. § 1335.3(e): “As used in this part: (e) Model data elements means the data elements contained in the final Model Minimum Uniform Crash Criteria (MMUCC) published by the National Highway Traffic Safety Administration and the Federal Highway Administration (DOT HS 808 745, August 1998).

    74. 4/17/2012 74 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports MMUCC, August 1998, Executive Summary: ?MMUCC includes 75 minimum data elements that need to be collected by police at the crash scene and an additional 38 data elements that can be derived (11 data elements) from those that are collected at the scene or obtained by linking (27 data elements) to other data files, e.g., roadway data, injury data, etc. The total 113 data elements represent a ?model? data set which can be expanded as necessary to meet a state?s specific needs.?

    75. 4/17/2012 75 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports The US Supreme Court brief of Pierce County and the amicus briefs are on Westlaw at: Pierce County - 2002 WL 1467401 State of Louisiana - 2002 WL 1484390 States of Washington, Alaska, Florida, Hawaii, Illinois, Indiana, Maryland, Nevada, Ohio, Oregon, Pennsylvania, Utah, Vermont, and The Commonwealth Of The Northern Mariana Islands - 2002 WL 1484393 Association of American Railroads -  2002 WL 1484384 Product Liability Advisory Council, Inc - 2002 WL 1484387

    76. 4/17/2012 76 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Amicus Brief For The United States - 2002 WL 1560236 Department of Transportation Federal Highway Administration

    77. 4/17/2012 77 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Amicus Brief For The United States - 2002 WL 1560236 Department of Transportation Federal Highway Administration The DOT and FHWA side with the plaintiffs and take a position that is contrary to Pierce County and the states and other amicus curiae:

    78. 4/17/2012 78 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports Amicus Brief For The United States - 2002 WL 1560236 Department of Transportation Federal Highway Administration The DOT and FHWA side with the plaintiffs and take a position that is contrary to Pierce County and the states and other amicus curiae: Although § 409 is constitutional, the accident report is not protected by § 409

    79. 4/17/2012 79 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “§ 409 does not provide a privilege for records held by a local government agency that compiled or collected those records for routine local purposes entirely unrelated to federal highway safety programs such as 23 U.S.C. 152, even if that agency subsequently provided copies of those records to another agency for the transferee agency's Section 152-related purposes.”

    80. 4/17/2012 80 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “There is no evidence to suggest that Congress intended to place potential tort plaintiffs in a worse position than they would have occupied if Section 152 had never been enacted, by extending the privilege to records in files routinely maintained by an agency that had never collected or used those records for a Section 152-related purpose.”

    81. 4/17/2012 81 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “The existence of a single, networked, computer based system for storage of accident report information to be used by agencies for several purposes-- including Section 152-related purposes-- is protected by § 409.” “FN26. Indeed, the Department of Transportation's regulations implementing Section 152 require the States to have ‘[a] process for collecting and maintaining a record of accident, traffic and highway data.’ 23 C.F.R. 924.9(a)(1).”

    82. 4/17/2012 82 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports 23 C.F.R. ? 924.9 Planning (Highway Safety Improvement Program). ?(a) The planning component of the highway safety improvement program shall incorporate: ?(2) A process for analyzing available data to identify highway locations, sections and elements determined to be hazardous on the basis of accident experience or accident potential.?

    83. 4/17/2012 83 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports 23 C.F.R. ? 924.9 Planning (Highway Safety Improvement Program). ?(a) The planning component of the highway safety improvement program shall incorporate: ?(1) A process for collecting and maintaining a record of accident, traffic, and highway data, including, for railroad-highway grade crossings, the characteristics of both highway and train traffic.”

    84. 4/17/2012 84 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “FN27. The Department has also assisted the States in identifying the information needed for such a computer-based system and the format in which such information should be prepared. See 23 U.S.C. 411(a)(2) (directing the Secretary to determine the ‘model data elements necessary to observe and analyze national trends in crash occurrences’). The Department has, for example, prepared a report identifying model minimum uniform crash criteria to be used for statewide motor vehicle traffic crash data systems.”

    85. 4/17/2012 85 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “Evidence in the record suggests that the County Public Works Department obtained paper copies of accident reports from the state patrol, the county sheriff, and other local law enforcement agencies. As we have explained, any versions of those accident reports that were still maintained by the transferor agencies would not be privileged under Section 409, if the originating agencies collected and compiled them for purposes entirely unrelated to Section 152.”

    86. 4/17/2012 86 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “A law enforcement officer who enters accident report information into the system may not be subjectively aware, at the time that he does so, that that information will be available on the system for a planning agency's Section 152-related needs. The information exists in one place, and it exists there in part for a Section 152-related purpose. That information is therefore covered by the Section 409 privilege. [FN29]”

    87. 4/17/2012 87 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports “FN29. If the information on the computer system were privileged under Section 409, it would remain privileged even if a local law enforcement agency subsequently printed out a copy of that information for its own, non-Section 152-related purposes. Just as information contained in paper records that were once ‘collected’ by a planning agency for Section 152- related purposes would remain privileged even after those records were transferred to another agency using them for other purposes, so also information that has been ‘collected’ on a networked computer-based system for Section 152-related purposes remains ‘collected’ for that purpose even after it has been printed out.”

    88. 4/17/2012 88 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports DOT and FHWA argument is that the accident report form completed by the police officer is not a § 409 document even though it is the only means by which the “model data” is collected.

    89. 4/17/2012 89 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports DOT and FHWA argument is that the accident report form completed by the police officer is not a § 409 document even though it is the only means by which the “model data” is collected. The information on the accident report, once entered into a computer system, is protected by § 409.

    90. 4/17/2012 90 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports DOT and FHWA argument is that the accident report form completed by the police officer is not a § 409 document even though it is the only means by which the “model data” is collected. The information on the accident report, once entered into a computer system, is protected by § 409. If the officer then prints out the information on the computer system, that print out is protected by § 409.

    91. 4/17/2012 91 23 U.S.C.A. ? 409 - “….reports, surveys, schedules, lists, or data….” Accident history and reports DOT and FHWA argument is that the accident report form completed by the police officer is not a § 409 document even though it is the only means by which the “model data” is collected. The information on the accident report, once entered into a computer system, is protected by § 409. If the officer then prints out the information on the computer system, that print out is protected by § 409. Therefore, the original data collection form is not protected by § 409 but the second report is when it is reprinted.

    92. 4/17/2012 92 If §409 is subject to such controversy, is there another solution?

    93. 4/17/2012 93 If §409 is subject to such controversy, is there another solution? 23 U.S.C. §402(k)(1)

    94. 4/17/2012 94 23 U.S.C. §402(k)(1) specifically provides that: “23 U.S.C. §402(k)(1) Subject to the provisions of this subsection, the Secretary shall make a grant to any State which includes, as part of its highway safety program under §402 of this title, the use of a comprehensive computerized safety recordkeeping system designed to correlate data regarding traffic accidents, drivers, motor vehicles, and roadways. Any such grant may only be used by such State to establish and maintain a comprehensive computerized traffic safety recordkeeping system or to obtain and operate components to support highway safety priority programs identified by the Secretary under this section…”

    95. 4/17/2012 95 23 U.S.C. §402(k)(1) specifically provides that: “…Notwithstanding any other provision of law, if a report, list, schedule, or survey is prepared by or for a State or political subdivision thereof under this subsection, such report, list, schedule, or survey shall not be admitted as evidence or used in any suit or action for damages arising out of any matter mentioned in such report, list, schedule, or survey.”

    96. 4/17/2012 96 23 U.S.C. §402(a) provides that: (a) Each State shall have a highway safety program approved by the Secretary, designed to reduce traffic accidents and deaths…The Secretary shall establish a highway safety program for the collection and reporting of data on traffic-related deaths and injuries by the States. Under such program, the States shall collect and report such data as the Secretary may require…The Secretary shall establish minimum reporting criteria for the program…In addition such uniform guidelines shall include, but not be limited to, provisions for an effective record system of accidents (including injuries and deaths resulting therefrom), accident investigations to determine the probable causes of accidents, injuries, and deaths,…highway design and maintenance,…traffic control,…as necessary to improve highway safety, and emergency services...”

    97. 4/17/2012 97 Important points about 23 U.S.C. §402(k)(1):

    98. 4/17/2012 98 Important points about 23 U.S.C. §402(k)(1): Grants are made to the Highway Safety Commission in each state for the purpose of creating and maintaining this system

    99. 4/17/2012 99 Important points about 23 U.S.C. §402(k)(1): Grants are made to the Highway Safety Commission in each state for the purpose of creating and maintaining this system The accident/crash reports are the sole source of the traffic crash information required to be maintained by §402 and §402(k)(1)

    100. 4/17/2012 100 Important points about 23 U.S.C. §402(k)(1): Grants are made to the Highway Safety Commission in each state for the purpose of creating and maintaining this system The accident/crash reports are the sole source of the traffic crash information required to be maintained by §402 and §402(k)(1) The Uniform Motor Vehicle Traffic Accident/Crash Report is in actuality a compilation of 140+ separate data fields

    101. 4/17/2012 101 Important points about 23 U.S.C. §402(k)(1): Only two cases have interpreted 23 U.S.C. §402(k)(1) -

    102. 4/17/2012 102 Important points about 23 U.S.C. §402(k)(1): Only two cases have interpreted 23 U.S.C. §402(k)(1) – 1. Gaubert v. Denton, 1999 WL 350103 (E.D.La. May 28, 1999), affirmed, 210 F.3d 368 (5th Cir.(La.) Feb 17, 2000): “The Federal Highway Safety Act (‘FHSA’), 23 U.S.C. § 401, et seq., directs the United States Secretary of Transpor-tation to ‘make a grant to any State which includes, as part of its highway safety program under Section 402(k) of this title, the use of a comprehensive computerized safety record keeping system designed to correlate data regarding traffic accidents, drivers, motor vehicles, and roadways.’ 23 U.S.C. § 402(k)(1). The FHSA specifically prohibits the use of these traffic safety records as evidence in a civil action.”

    103. 4/17/2012 103 Important points about 23 U.S.C. §402(k)(1): Only two cases have interpreted 23 U.S.C. §402(k)(1) – 2. Department of Transportation v. Superior Court, 47 Cal.App.4th 852, 55 Cal.Rptr.2d 2, (Cal.App. 1 Dist. Jul 22, 1996): “FN8. Some of the information required by section 402 is protected by its own privilege (see § 402, subd. (k)(1)), a privilege that Caltrans did not assert in this case.”

    104. 4/17/2012 104 Important points about 23 U.S.C. §402(k)(1): 23 C.F.R. ? 924.9 Planning (Highway Safety Improvement Program). ?(c) The planning component of the highway safety improvement program may be financed with funds made available through 23 U.S.C. Sections 402, 307(c), and, where applicable, 104(f).”

    105. 4/17/2012 105 Suggestions

    106. 4/17/2012 106 Suggestions Assert the protection afforded by 23 U.S.C. §409

    107. 4/17/2012 107 Suggestions Assert the protection afforded by 23 U.S.C. §409 Begin to assert the protection afforded by 23 U.S.C. §402(k)(1)

    108. 4/17/2012 108 Suggestions Assert the protection afforded by 23 U.S.C. §409 Begin to assert the protection afforded by 23 U.S.C. §402(k)(1) Insure that the attorneys defending the state are made aware of appropriate statutes

    109. 4/17/2012 109 Suggestions Assert the protection afforded by 23 U.S.C. §409 Begin to assert the protection afforded by 23 U.S.C. §402(k)(1) Insure that the attorneys defending the state are made aware of appropriate statutes Establish a network of individuals, engineers and attorneys, to keep up to date with changes and with new cases

    110. 4/17/2012 110 DawsonJ@ag.state.la.us

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