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Suggested Citation:"V. TIPS FOR PRACTITIONERS." National Academies of Sciences, Engineering, and Medicine. 2016. Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation. Washington, DC: The National Academies Press. doi: 10.17226/24646.
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Suggested Citation:"V. TIPS FOR PRACTITIONERS." National Academies of Sciences, Engineering, and Medicine. 2016. Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation. Washington, DC: The National Academies Press. doi: 10.17226/24646.
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21 normally handled media requests, while other requests were routed through a system that gath- ered input from several divisions, including the counsel’s office, before providing a response to the request. Texas indicated that it seeks an opinion from the Attorney General’s office when it receives a request for protected information from an outside party. The Delaware Department of Transportation (DelDOT) provided its Crash Data Release Guide- line Matrix, which sets out the type of information that is provided to different types of requestors, such as members of the public, legislators, consultants, other state agencies, and internal requestors. Depending on the requestor, different types of data are provided, including raw data, crash rates, crash summaries, crash reports, and whether a location appears on its hazard list. Consultants that request information from DelDOT are required to provide proof that the work they are doing involves state- maintained roadways. An important emerging issue is whether poten- tially protected information found on a State’s Web site is still protected once it has been posted on the agency’s Web site. The State of Ohio posts data and maps identifying its most hazardous locations and predicts how many accidents will occur at a particu- lar location. North Carolina reported that poten- tially protected information was available on its Web site, and under state law it was required to be produced by the agency in response to public records requests. Its respondent also noted that plaintiffs frequently try to use that information against the agency in court proceedings. In Delaware, reports that enumerate, analyze, map, and otherwise dis- cuss crash data for specific road areas or projects are available on the DelDOT Web site. Although the data are posted on the Web sites, the sites clearly explain that the data are collected for purposes out- lined in federal law. It seems likely that courts would rule that the privilege attached to the information has not been waived for litigation purposes based on the waiver cases cited earlier in this digest. Tennessee noted that although it formally objected to the release of accident reports during the discovery phase, it facilitated the release of the documents through the highway patrol records sys- tem. Other states commonly tell requestors that although they cannot release accident reports, they are available from other sources such as local or state law enforcement. The representative from the State of Arkansas expressed an interest in seeing the scope of the law expanded so that safety data requested by the media or the public were also protected and not required to be released. The representative who responded on behalf of the State of Louisiana, however, suggested that the prohibitions found in § 409 were antiquated and do not benefit the public it serves. He also com- mented that the law complicates the gathering and dissemination of important safety information that would be helpful to the public. V. TIPS FOR PRACTITIONERS This section, derived from the responses to the survey in this digest, is intended to provide informa- tion as to common practices for public counsel, although it is not to be construed as the author’s rec- ommendations. It includes the following items: • Illustrative testimony, showing the appropri- ate way to lay an evidentiary foundation for the protection of data under federal law. • Sample objections used in discovery. • Practical approaches to responses to public records requests. • Reference to 23 U.S.C. § 148(h)(4). The following is suggested as an outline for an evi- dentiary hearing on the issue of whether data gath- ered by the state or local agency can be protected from discovery or admission at trial. Counsel should always follow these basic rules when conducting a direct examination of a witness: use simple words and terms; ask short, nonleading questions; be pre- pared and make sure the witness is prepared; and be courteous to all—opposing counsel, the witness, and the judge. Please state your name. Jim Smith. What kind of work do you do? I’m a civil engi- neer. I work in the Traffic Department of the State Department of Transportation. What is your educational background? I have an undergraduate degree in civil engineering from the University of Missouri in Rolla, Missouri. Have you obtained any postgraduate certifi- cations? Have you continued your education? Yes, I am a Professional Engineer. In addition, I have attended hundreds of seminars and continuing edu- cation classes involving civil engineering, traffic engineering, and construction engineering topics. What are your responsibilities at work? I’m the safety engineering supervisor. My engineering section is responsible for the compilation and analy- sis of accident data. We identify and address problem or hazardous locations in the state highway system. We make site visits, conduct speed studies, inter- view local enforcement officers, identify trends, and

22 make recommendations for safety improvements. Those improvements might include the addition of guardrails or guard cable, median barriers, or other safety improvements. How do you do that? As part of an overall safety program, we prepare a document called a Hazard List. The state highway department receives acci- dent reports from state and local law enforcement officers. We scan those reports into a database and then review the information contained in the database, looking for locations that appear to have higher-than-normal accident rates. We look at traffic counts, posted and actual speeds of vehicles, the geo- metrics of the roadway, the presence or absence of side roads or driveways, and other pertinent data. Problem areas may be caused by design geometrics, road conditions such as slick pavement, trees that are very close to the road, lack of adequate warning of potential hazards, or numerous other conditions. We then prepare documentation of our studies and recommendations in the form of reports, surveys, schedules, or lists of data that are used to identify potential locations for safety improvements. Does the Federal Highway Administration require your agency to complete this list of hazardous locations? Yes. Collection and compila- tion of these data is done to comply with federal statutory and regulatory requirements. What regulations or laws are you talking about? The Federal Highway Administration administers the Highway Safety Improvement Pro- gram, which is found in 23 C.F.R. 924. This program requires each state to compile and maintain a list of all highways and railways that may require safety improvements. We collect and compile accident reports and other safety data pursuant to 23 U.S.C. § 409 so that we can support mandatory, federally regulated safety programs. The Hazard Elimination Program, found in 23 U.S.C. § 152, provides federal funding to improve the most dangerous sections of highways in the nation and requires the state to conduct and systematically maintain an engineer- ing survey of all public roads to identify hazardous locations, prioritize the locations for improvement, and then conduct the recommended improvements. What do you do with the information after you gather it? Once we identify locations that are statistically more likely to have accidents, those locations are placed on a Hazard List, which is dis- tributed internally so that potential projects can be identified and placed on a priority list. The inven- tory and collision data are used for the planning and evaluation of safety programs for the improvement of locations around the state. Why are the materials collected? Pursuant to the federally mandated safety improvement pro- grams I discussed earlier, or for the purpose of devel- oping a safety improvement program that may be implemented using federal funds. What entities may fund the necessary improvements? Federal funding may be used to collect and compile data, to analyze priority loca- tions, and to fund improvements that have been identified through the process I described. Objections to Interrogatories. The following objections were submitted in response to a request for sample objections to requests for accident reports, accident history, or speed or location studies. The first response goes beyond simply objecting to providing the information based on the federal law. It provides information that defense counsel will likely argue at trial and in any motions in limine that are filed. Defendant denies that there have been numerous accidents on the eastbound Meteor Crater exit ramp involving vehi- cles going off the paved surface of the roadway. There are some accidents on all freeways and all exit ramps of all free- ways involving vehicles leaving the roadway no matter how carefully the roadway is constructed. ADOT [Arizona Department of Transportation] gathers accident informa- tion which is compiled in a computerized database known as the Accident Identification and Surveillance System (ALISS). This system is maintained for periodic review by ADOT’s Hazard Elimination Section (HES) to identify potentially hazardous roadway conditions. Defendant objects to providing any data on the number and nature of accidents occurring on the Meteor Crater Exit 233 off-ramp because all such data is compiled for purposes of identify- ing, evaluating, and planning safety enhancements and for the purpose of developing highway safety improvement projects utilizing federal and state highway funds. This data is not subject to subpoena or admission in evidence pursuant to 23 U.S.C. § 409; Pierce County, Washington v. Guillen, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). The person most knowledgeable regarding the sta- tistics in this system is ADOT Engineer Mike Smith, who may be reached in care of the Attorney General’s Office. This response is fairly generic and simply relies on state case law and the federal statute: Defendant objects to this Interrogatory because it requests information which is protected from discovery pursuant to 23 U.S.C. 409. See, Claspill v. Missouri Pacific R. Co., 793 S.W.2d 139, 140 (Mo. 1990) (En Banc) and Pierce County, Washington v. Guillen, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). In response to a question about how many acci- dents have occurred at a certain location: Defendant objects as over broad. Without waiving the objec- tion, there are only three ways to determine the number.

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TRB's National Cooperative Highway Research Program (NCHRP) Legal Research Digest 72: Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation explores the origins and provisions of 23 U.S.C. § 409, Discovery and Admission as Evidence of Certain Reports and Surveys, which prohibits the use, in tort litigation, of highway safety data created for purposes related to safety improvements on roads qualifying for federal safety improvement funding. The digest explores the amendments to the law, development of caselaw interpreting and applying the law, a 2003 Supreme Court decision, and current interpretation and application issues.

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