Pt I – A Brief History of the Fight for Accident Reports

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…

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* 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.

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