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Suggested Citation:"Executive Summary." National Academies of Sciences, Engineering, and Medicine. 2018. Admissibility and Public Availability of Transit Safety Planning Records. Washington, DC: The National Academies Press. doi: 10.17226/25144.
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Page 1
Page 2
Suggested Citation:"Executive Summary." National Academies of Sciences, Engineering, and Medicine. 2018. Admissibility and Public Availability of Transit Safety Planning Records. Washington, DC: The National Academies Press. doi: 10.17226/25144.
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Page 2
Page 3
Suggested Citation:"Executive Summary." National Academies of Sciences, Engineering, and Medicine. 2018. Admissibility and Public Availability of Transit Safety Planning Records. Washington, DC: The National Academies Press. doi: 10.17226/25144.
×
Page 3
Page 4
Suggested Citation:"Executive Summary." National Academies of Sciences, Engineering, and Medicine. 2018. Admissibility and Public Availability of Transit Safety Planning Records. Washington, DC: The National Academies Press. doi: 10.17226/25144.
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Page 4

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1 Executive Summary In the Moving Ahead for Progress in the 21st Century Act of 2012 (MAP-21), Congress for the first time gave the Federal Transit Adminis- tration (FTA) the obligation and authority to establish and enforce a new comprehensive framework to oversee the safety of public transit systems receiving federal aid. The statute requires, among other things, that public transit agencies engage in more rigorous and concerted safety planning. In response to a request by Congress, this report considers whether granting state and local transit agencies evidentiary protections allowing them to withhold from civil litigation all records generated in compliance with this federal planning requirement would further the public interest, including public safety and the legal rights of persons injured in public transporta- tion accidents. Safety planning was first required for highways constructed with fed- eral funds more than 40 years ago. Subsequently, Congress granted eviden- tiary protections to state highway agencies in response to complaints that their planning records were being used by plaintiffs in tort cases to create financial liabilities, which undermined the incentive to engage in such planning. During the past decade, Congress, through the Federal Railroad Administration, has granted similar evidentiary protections to public agen- cies providing commuter and intercity passenger rail services in response to concerns that requirements for safety planning would be less effective if agencies feared that their planning records could be used against them in court. Before the MAP-21 requirements in 2012, public transit agencies were not subject to federal safety regulation. The primary means by which tran-

2 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS sit safety performance was regulated was through tort litigation and its potential to deter unsafe behaviors and conditions. A series of high-profile transit accidents prompted Congress to supplement the tort system with a new federal regulatory regime. A key element of that regime is the mandate for transit agencies to engage in safety planning. Thus, in passing the safety provisions of MAP-21, Congress decided that the public interest would be enhanced through a combined safety regulation and tort regime as opposed to previous reliance on the latter only. In asking for this study, Congress sought advice on whether the public interest would be furthered by adding the kinds of evidentiary protections granted in the other public transporta- tion modes subject to similar safety planning requirements. The public safety rationale for evidentiary protections hinges primarily on the degree to which the protections would increase the ability and will- ingness of transit agencies to develop and implement higher-quality safety plans without reducing the effectiveness of the tort system in deterring un- safe behaviors and conditions. Some transit agencies consulted during this study maintained that protections against admission of safety records at trial would allow them to engage in more rigorous and effective safety plan- ning (as intended by Congress) without fear of the planning records being used against them in court. In contrast, some plaintiffs’ lawyers and labor union officials consulted claimed that evidentiary protections for the gener- ated records would weaken both the deterrence effect of the tort system and its other nonsafety functions, such as its compensatory role, by restricting the ability of plaintiffs who have suffered injuries to support their cases. Neither the notion that safety planning leads to safer outcomes nor the claim that evidentiary protection leads to higher-quality safety planning is supported by a strong base of empirical evidence. Similarly, empirical evi- dence concerning the deterrence effect of torts is mixed and has long been controversial. These data shortcomings complicate determinations of the safety effects to be expected from a decision to grant or forgo evidentiary protections. Even if unequivocal evidence of public safety effects could be found, any decision about the “public interest” of granting evidentiary protections would require a balancing of such safety effects against other potential impacts, such as those on the tort system’s role in compensating injured parties. Ultimately, judgments about where the public interest bal- ance lies must be made by Congress. The evidentiary protections afforded state highway and passenger rail- road systems indicate a desire on the part of Congress that its safety plan- ning mandates be carried out faithfully. Their extension to multiple modes can also be viewed as suggesting a congressional concern that inconsistent treatment of safety planning requirements across parts of the transporta- tion system could be disruptive, especially in cases where public agencies administer and operate multiple modes. The study committee is not aware

EXECUTIVE SUMMARY 3 of all the public interest considerations that have led Congress to grant evi- dentiary protections, but their existence in the other public transportation modes creates a rationale for extending them to transit. In considering the conflicting views of those favoring and opposing such protections and the paucity of empirical evidence supporting either side, the committee could find no compelling reason to advise Congress to contravene current practice by treating transit agency safety planning records differently. The committee therefore recommends, in accordance with congressio- nal practice, extension of evidentiary protections to public transit agencies. In a refinement to that practice, the committee also recommends that the protections target the specific concern of liability and that they be accom- panied by other complementary measures that will promote the goal of high-quality safety planning and implementation. Specific recommendations follow. Congress should prohibit, by establishing an admissibility bar, the in- troduction of the records generated by public transit agencies in fulfilling the safety planning requirements of MAP-21 into legal proceedings. This bar should apply only to data, analyses, reports, and other similar informa- tion prepared in response to or used in support of the MAP-21 mandate and FTA’s corresponding safety program requirements. Records that existed before the establishment of the bar should not be covered, inasmuch as the bar is intended to promote behavior that leads to higher-quality safety planning and implementation. Because not all transit agencies believe that such admissibility protec- tions are needed to ensure high-quality safety planning, or because they want to use their safety planning records to defend themselves in court, the committee further recommends that Congress allow states to opt out of the admissibility bar altogether through enactment of state law applicable to all transit agencies within the state. To ensure that transit agencies do not try to waive these protections on a selective basis according to their level of confidence in the strength and quality of their safety planning, the committee recommends that Congress ensure that the admissibility bar cannot be waived on a record-by-record or lawsuit-by-lawsuit basis and that it be applicable to all parties in the litigation, including the defendant transit agency. The committee does not believe that Congress or the states should restrict the ability of plaintiffs to obtain the protected safety planning records to inform their cases. Decades of experience with highway safety data protections, which include discovery restrictions but not additional restrictions on access through open records laws, suggest that high-quality safety planning and implementation can be expected even when plaintiffs are able to obtain safety planning records that are otherwise subject to admissibility restrictions. The committee therefore recommends that, in an

4 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS effort to encourage high-quality safety planning, Congress not reduce the public availability of protected records under federal and state open records laws. (The committee recognizes that more comprehensive confidentiality protections may apply to workers in close call reporting systems.) Some committee members believe that if such public disclosure means are preserved, restrictions on discovery can be imposed without a significant burden on plaintiffs and that transit agencies will be provided additional latitude to engage in effective safety planning. Other committee members believe that admissibility restrictions are likely to be sufficient by them- selves to enable high-quality safety planning and implementation without imposing restrictions on the discovery of information that can already be obtained through open records laws. The committee believes that transit agencies enjoying the recommended evidentiary protections should also be obligated to demonstrate to oversight authorities and to the public that, as a result, they are complying with the MAP-21 safety planning mandates in a manner that is rigorous and not per- functory. Thus, along with evidentiary protections, the committee recom- mends that Congress provide FTA and state safety oversight agencies with the mandate, resources, and sanctioning authorities needed to ensure that the MAP-21 safety planning, analysis, and improvement requirements are carried out in a highly competent and rigorous manner and that FTA, state safety oversight agencies, and transit agencies make the safety plans and data—even when subject to an evidentiary protection—freely available to the public. Because the largest two dozen or so transit systems account for most of the country’s ridership and because implementation of MAP-21’s safety planning requirements across thousands of smaller systems will be challenging, the committee recommends that FTA concentrate its initial implementation and oversight on the largest systems.

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In 2012, Congress gave the U.S. Federal Transit Administration (FTA) the authority to establish a new comprehensive framework to oversee the safety of the country’s public transit systems. As part of that framework, state and local transit agencies are required to engage in safety planning. In the Fixing America’s Surface Transportation Act of 2015, Congress asked the National Academies of Sciences, Engineering, and Medicine to evaluate and provide recommendations on whether it is in the public interest for transit agencies to be allowed to withhold from civil litigation all records developed in compliance with this new federal safety planning requirement.

TRB Special Report 326: Admissibility and Public Availability of Transit Safety Planning Records considers the arguments favoring and opposing evidentiary protections for safety planning records and the rationale for Congressional decisions to grant such protections in other transportation modes. The report examines factors that Congress must consider when deciding where the public interest balance lies. They include a desire for transit agencies to engage in high-quality safety planning without fear of the planning records being used against them in court and the preservation of a tort system that deters unsafe conditions and allows injured parties to be justly compensated. Recommendations to Congress and FTA are offered with these and other important factors in mind.

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