As the Supreme Court noted in Guillen, to construe § 409 to cover all facts and documents that ultimately end up in such federally mandated reports would go far beyond the congressional intent, and would hide otherwise discoverable information essential to supporting claims that could have been proven had there been no safety enhancement project:
[T]he text of § 409 evinces no intent to make plaintiffs worse off than they would have been had § 152 funding never existed. Put differently, there is no reason to interpret § 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to § 152, held by government agencies not involved in administering § 152, if, before § 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies. Guillen, 537 U.S. at 146 (emphasis added).
Following Guillen, raw data, accident reports, and most other documents that were accessible by the public prior to the enactment by Congress of 23 U.S.C. § 152 back in 1973 are to still be provided to plaintiff’s counsel because, according to the U.S. Supreme Court, “the text of § 409 evinces no intent to make plaintiffs worse off than they would have been had §152 funding never existed.” Guillen, 123 S.Ct. at 731. However, even after Guillen, argument as to the scope of 23 U.S.C. § 409 persists. Some municipalities continue to assert that Guillen authorizes them to withhold all raw data and information, including police accident reports and the accident history of a location, from citizens seeking this information in potential or current highway cases against governmental entities. This was, however, precisely the position taken by Defendant Pierce County in Guillen that the U.S. Supreme Court expressly rejected. As indicated above, this has resulted in some municipalities insisting that anyone seeking an accident history for a section of road must, as a condition precedent to receiving the accident reports, ign a form promising that the accident reports will not be used in litigation against any governmental entity.
Plaintiffs in Guillen and Whitmer brought suit against Pierce County for unsafe county roads. Dick Benedetti of Davies Pearson and I represented the Whitmer sisters whose VW Beetle was struck and knocked into a utility pole at an unsignalized intersection. The Guillen family sued Pierce County for the death of Clementina Guillen-Alejandre, which they contended was caused in part by a dangerous county road.
In our separate actions, the Guillen* and Whitmer** Plaintiffs sought an accident history for our respective accident locations. In both cases, Pierce County refused to produce the requested accident reports that had been collected by the Sheriff’s Office, relying on its own interpretation of 23 U.S.C. § 409.
Division II of the Court of Appeals held that the accident reports should be produced. The Washington Supreme Court agreed, going so far as to hold that a portion of § 409 was unconstitutional. Pierce County petitioned the United States Supreme Court for review.
So, in Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003), the U.S. Supreme Court addressed the extent to which the privilege created by § 409 applies to accident reports. Defendant Pierce County argued that, under § 409, virtually everything in its possession was privileged and need not be produced. The Guillen Plaintiffs contended that § 409 protected only materials created by an agency in the process of applying for federal funding. The U.S. Solicitor General took a middle position that §409 protected data actually compiled or collected just for purposes of hazard elimination, but should not protect information that was originally compiled or collected for purposes unrelated to a specific hazard elimination project.
The U.S. Supreme Court adopted the Solicitor General’s position, observing that the police traffic collision reports and accident history being sought by the Plaintiffs were collected by the Pierce County Sheriff’s Office, rather than the Public Works Department. It held that the police reports therefore were not covered by the § 409 privilege, even though the Pierce County Public Works Department subsequently analyzed the same police reports for highway improvement projects:
The United States, as intervenor, proposes a third interpretation: § 409 protects all reports, surveys, schedules, lists, or data actually compiled or collected for § 152 purposes, but does not protect information that was originally compiled or collected for purposes unrelated to § 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point “collected” by anotheragency for § 52 purposes…. Under this interpretation, an accident report collected only for law enforcement purposes and held by the county sheriff would not be protected under § 409 in the hands of the county sheriff, even though that same report would be protected in the hands of the Public Works Department, so long as the department first obtained the report for § 152 purposes. We agree with the Government’s interpretation of the statute.
Guillen, 537 U.S. at 146 (citations omitted).
By adopting the Solicitor General’s interpretation of the statute, the Supreme Court placed significant limits on the interpretation of 23 U.S.C. § 409 by striking a balance between blanket assertions of the § 409 privilege and
claims at the opposite extreme that § 409 only protects materials and reports created by an agency in the act of seeking federal funding for a particular project. As Guillen makes clear, the privilege created by § 409 does not apply to documents compiled or collected for purposes unrelated to § 152 (hazard elimination projects) and held by agencies that are not pursuing a specific § 152 objective, even though this information or data may later be included in a federally mandated report, survey, schedule or list. Thus, the privilege does not apply to accident reports, nor to documents and information originally gathered for other purposes.
In the next blog post, I will continue this discussion. Stay tuned…
* Guillen v. Pierce County, Pierce County Cause No. 96-2-13404-5; 98-2-06119-2.
** Whitmer v. Pierce County, Pierce County Cause No. 97-2-07236-6.
We were last talking about getting accident reports, so I’ll continue where I left off….
The Washington State Patrol has a statutory duty to collect and compile accident reports. WSP is a public agency. See RCW 42.56.010(1). The accident reports are public records. See RCW 42.56.070. Both WSP and these accident reports are subject to the Public Records Act (see Chapter 42.56 RCW), which requires public agencies to make public records available to the public. Nevertheless, WSP, WSDOT, and a number of municipalities have refused to provide accident reports for a particular location unless the person seeking the reports signs a form promising that the records will not be used in litigation brought against any governmental entity. That promise not to sue, as a condition of accessing accident reports, has been repeatedly rejected by our trial courts. But the battle is not over.
I will discuss a brief history of the fight for accident reports in my next blog post.
Most practitioners have no idea of the difficulty accessing something as fundamental as accident reports for a given location in a highway accident case. This is true even when the accident history is essential to a proper and complete analysis.
Transportation and traffic engineers in fact determine the need for a traffic signal at an intersection on the basis of several factors, among them gaps in cross-traffic and, most importantly, accident history.
Similarly, a concentration of collisions at a given section of highway provides evidence of an unsafe condition that repeatedly produces property damage, bodily injury and even death. Again, this concentration of collisions is demonstrated through the accident history for this location.
Because the accident history for a given location is critical evidence of a dangerous condition, a number of governmental entities are trying to shield themselves from liability for their mistakes by refusing to make accident reports for their roads available to plaintiffs, even though the reports are public records.
Over the past few years, these governmental entities have tried to use a federal statute–23 U.S.C. § 409–as a basis for denying plaintiffs and their attorneys access to these traffic collision reports and related information. The federal statute provides:
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-high 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.
23 U.S.C. § 409.
More in this in my next post…