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Suggested Citation:"5 Evaluation and Advice." 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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Suggested Citation:"5 Evaluation and Advice." 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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Suggested Citation:"5 Evaluation and Advice." 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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Suggested Citation:"5 Evaluation and Advice." 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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Suggested Citation:"5 Evaluation and Advice." 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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Suggested Citation:"5 Evaluation and Advice." 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 45
Page 46
Suggested Citation:"5 Evaluation and Advice." 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 46
Page 47
Suggested Citation:"5 Evaluation and Advice." 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 47
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Suggested Citation:"5 Evaluation and Advice." 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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40 5 Evaluation and Advice In the Moving Ahead for Progress in the 21st Century Act of 2012 (MAP-21), Congress gave the Federal Transit Administration (FTA) the responsibility for establishing and enforcing a new comprehensive frame- work to oversee the safety of public transportation. The statute provides, among other things, that FTA require all transit agency recipients of federal funding to develop a safety plan and certify through state oversight agen- cies that the plan meets FTA specifications. At the least, the transit agency plans must include systems and strategies for identifying risks and minimiz- ing exposure to hazards. Prior to the MAP-21 requirements, public transit agencies were not subject to federal safety regulation, and the primary means for regulating transit safety performance was through tort litigation and its potential to deter unsafe behaviors and conditions. Safety planning and management systems are required by safety regula- tors in a number of transportation modes, included in many international standards, and widely perceived to be best practice across industries. The emphasis these systems place on safety-related reporting, documentation, and analysis is generally believed to enhance system safety. However, the study committee was not asked to examine whether the safety planning required by Congress in MAP-21 is sound policy promising significant safety benefits through implementation. For the purposes of this study, the committee presumes that such planning is desirable to increase public safety and that Congress remains interested in the ability of transit agencies to engage in high-quality planning. The report reviews the origins and use of safety planning and manage- ment systems to reveal the methods used by organizations in undertaking

EVALUATION AND ADVICE 41 such activities, including the kinds of data, documents, and records gener- ated. However, the focus of the report is on the question asked by Congress: whether it is in the public interest—including public safety and the legal rights of persons injured in public transportation incidents—to permit state and local transit agencies to withhold from discovery or admission into evidence any information used or generated in complying with the MAP-21 requirement for transit safety planning. Safety planning was first required for highways constructed with federal funds more than 40 years ago. Subsequently, Congress granted such evidentiary 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 high-quality planning. During the past decade, Congress, through the Federal Railroad Administration, has granted similar evidentiary protections to public agencies 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. The key points in this report pertaining to Congress’s question are summarized next, since they inform the committee’s recommendations that follow. SUMMARY OF KEY POINTS The public interest debate about evidentiary protections arises in the con- text of the civil law of torts, under which a person claiming injury in a public transportation incident sues the transit agency for compensation and seeks information from the transit agency to use in support of his or her suit. The compensatory role of the tort system is important from a societal standpoint. Another public interest argument for the system rests on the no- tion that tort liability deters unsafe behaviors and hazardous conditions and encourages preventive actions by transportation providers that will lead to fewer safety problems overall. Conversely, the public interest rationale for allowing an agency to withhold safety-related information from tort litigants is that the agency will be more inclined to engage in high-quality safety data gathering and analysis—of a kind that will confer greater public safety benefits—if the records generated cannot be used against the agency in court. Because the integrity of the judicial process depends on accuracy, the traditional legal rule is that protections of information from discovery and admissibility are constructed as narrowly as possible to achieve their pur- pose. Plaintiffs’ lawyers and labor union officials consulted by the study committee made this point, maintaining that some valid claims of injured parties could go uncompensated because of an inability to obtain support-

42 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS ing records. They also expressed opposition to evidentiary protections for transit safety planning records on the grounds that the broader deterrent and preventive effects of tort would be weakened if plaintiffs are not able to obtain and use the information they need. The empirical evidence supporting either of these two competing public interest claims is limited. Claims that a stronger tort system leads to greater public safety benefits appear to have been derived largely from deterrence theory rather than being supported by quantitative empirical evidence of a causal relationship between torts and improved safety outcomes. The public safety rationale for evidentiary protections hinges primarily on the degree to which the protections would increase the ability and willingness of tran- sit agencies to develop and implement higher-quality safety plans without reducing the effectiveness of the tort system in deterring unsafe behaviors and conditions. While some transit agencies consulted during this study maintained that the protections against admission at trial of safety records would allow them to engage in more rigorous and effective safety planning, the support for these arguments is largely anecdotal. Other transportation modes offer examples of evidentiary protection. Congress has provided such protections for highways, passenger railroads, ferries, and aviation. Evidentiary protections applying to state highway safety planning activities were enacted by Congress because of state com- plaints about the chilling effect that discovery and admissibility of these records was having on state highway safety programs. Some transportation agency officials who briefed the committee claimed that a reduction in tort liability exposure (resulting from evidentiary protections) leads to more rigorous data collection, analysis, and safety planning and thus to more robust safety programs and better outcomes. As stated before, these claims were not accompanied by strong empirical evidence. Furthermore, despite an absence of evidentiary protections, some transit authorities who briefed the committee reported having high-quality safety management programs consisting of extensive data collection and record-keeping systems, hazard analyses, and safety prioritization strategies. The ability of evidentiary protections to allow or encourage an agency to engage in higher-quality safety planning is not the only potential pub- lic safety argument favoring such protections. If agencies are reluctant to make their safety information publicly available because of concerns about litigation, the granting of evidentiary protections that counteract this reluc- tance could promote a number of beneficial responses. Among them is the potential for disclosure to inform more effective oversight of public agen- cies, public debate about agency resource needs to promote safety, and the development of advances in methods and approaches to improving safety. Some transit officials who briefed the committee maintained that such pub-

EVALUATION AND ADVICE 43 lic dissemination of safety records is much more likely to occur when the records are protected from discovery and admission into evidence. The effects of evidentiary protections, both on a litigant’s ability to pur- sue a tort claim and on an agency’s ability to engage in high-quality safety planning, must also be considered with regard to how the protections are designed and whether they are accompanied by other avenues for informa- tion disclosure. In general, state law is the primary determinant of discovery and admissibility in civil cases except in areas such as state highway and passenger rail safety planning, where Congress has granted protections. The evidentiary protections provided by Congress to state highway agencies per- tain both to discovery and to admissibility. In this instance, the main effect of the discovery restrictions is to hinder plaintiffs in (but not preclude them from) obtaining safety program records. Much of the information can be obtained through other means, including the widely available tool of open records requests. Accordingly, the effect of discovery protections in allay- ing an agency’s concern about liability will depend to a large degree on the extent to which these other public disclosure avenues, as implemented in practice, hinder the ability of plaintiffs to obtain planning records. The effects of discovery protections in the presence of open records laws can be difficult to gauge; the effect of admissibility restrictions is more direct because the restricted records cannot be used in court. The plaintiff cannot introduce the barred records irrespective of whether they were obtained through discovery or open records requests. However, the same admissibility bar may apply to the defendant agency and thus limit its ability to defend itself by introducing its own barred records. In the case of the evidentiary protection for state highway planning records, the courts have generally understood the protection to be a two-way bar: neither the highway agency nor the plaintiff can use the record in its case. Some transit agencies who briefed the committee indicated an interest in using records from their safety programs in defense of a tort claim and that such a two- way restriction could be problematic for this purpose. While the committee was asked to advise on federal policy, it ob- serves that states also have tools for pursuing the outcomes that prompted Congress to provide evidentiary protections for state highway agencies and passenger railroads. States could address the potential chilling effect caused by the availability of safety records by changing the nature or degree of an agency’s tort liability. For example, public transit agencies could be pro- vided with sovereign immunity or damage caps. In addition, states could impose their own protections applying to discovery procedures, admissibil- ity, and open records laws. Combining such tools in various measures is a state prerogative.

44 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS RECOMMENDATIONS 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 evidence of the deterrence effect of torts is mixed and has long been con- troversial. These data shortcomings complicate determinations of the safety effects to be expected from a decision to grant or forgo evidentiary protec- tions. 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 balance 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 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

EVALUATION AND ADVICE 45 the bar is intended to promote behavior that leads to higher-quality safety planning and implementation.1 The recommended admissibility bar is intended to prompt more rigor- ous and self-evaluative safety planning and hazard mitigation and action programs that will benefit the safety of transit riders, employees, and the general public. Agency records that have long been exempt from public dis- closure for reasons other than allowing agencies to engage in better safety planning—such as confidentiality for individual privacy, security, and the free reporting of safety matters by workers—would not be affected by the absence or existence of such an evidentiary protection. With confidence that their safety records cannot be introduced as evidence in legal proceedings, transit agencies should develop the kind of high-quality, data-driven safety planning and action programs that Congress envisioned. Some transit agencies may believe that admissibility protections are not essential in motivating high-quality safety plans and programs. Such agencies may have confidence in the quality of their programs and would rather be able to use their records in their defense. In effect, they would be willing to waive the protections fully and permanently. If states believe that the admissibility protections are not needed to ensure high-quality safety planning by their transit agencies, there is no valid reason for those protec- tions and the burdens they place on plaintiffs. To accommodate the wishes of such agencies, the committee 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. (In the case of multistate, regional transit agencies, each state may be required to enact the same law.) The committee acknowledges that the imposition of evidentiary pro- tections to bring about a broader public safety benefit comes with costs: plaintiffs would have a reduced ability to support their cases, and the ef- fectiveness of the tort system in deterring unsafe behavior and hazardous conditions may be eroded. These costs may be justified only inasmuch as a transit agency needs the evidentiary protections to engage in high-quality safety planning and improvement activity. The ability of a defendant agency to waive the admissibility bar for some records and not for others or for some lawsuits and not for others brings into question the need for the evidentiary protections in general. A concern is that an agency might use the waiver in instances when its planning and incident prevention efforts are of the highest quality and use the protections to shield efforts that are underperforming. The purpose of the recommended protections is to create incentives for higher-quality safety planning generally, and the prospect of an agency using the waiver in a selective manner, to shield from view only the weaker aspects of its program, is troubling. In the committee’s view, 1 Newly developed reports using these preexisting data would presumably be covered.

46 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS an agency that elects to waive its protections should be required to do so fully for all records and in all cases. Such a requirement would shed light on any instances of underperformance and create an incentive for an agency to minimize such weakness if it believes that waiving the protections fully is in its interest. Therefore, the committee recommends that Congress ensure that the admissibility bar cannot be waived by the defendant transit agency on a record-by-record or lawsuit-by-lawsuit basis. If transit agencies are relieved of the concern that their safety records will be admissible in court and thus expose them to financial liability, they should be freer to engage faithfully in the kind of high-quality, data-driven safety planning and hazard mitigation that Congress presumably envisioned in enacting the safety planning requirements of MAP-21. That faithful response—and the public safety interest it is intended to further—may or may not be materially affected by the ability of the inadmissible records to be obtained by plaintiffs through discovery. Access to such records by means of discovery can increase the ability of a plaintiff to support a claim and thereby cause concern among transit agencies that their safety planning and improvement records will be used against them. Accordingly, whether and by how much the public safety interest would be affected by adding discovery protections to an admissibility bar is an empirical question. For example, information would be desirable concerning the effect of the dis- covery protection on the likelihood of agencies improving their safety plan- ning and programming. The question is whether the likely improvement would justify any erosion of the tort deterrence effect caused by plaintiffs encountering more difficulty in obtaining records to support their claims. The relevance of discovery protections will depend on whether the pro- tected records can be obtained by plaintiffs through other means, including open records act requests. In this regard, the decades of experience with highway safety data protections could be enlightening. When Congress gave state highway agencies discovery protections for their safety plan- ning records, it did not restrict plaintiff access to such records through open records laws. State highway agencies appear to be satisfied that their ability to identify, plan, and implement safety improvements is not being compromised by the plaintiffs obtaining the protected information through such means, but they also see the protections as valuable. With this experi- ence in mind, the committee believes that discovery protections would be in the public safety interest as long as they do not affect records that can be obtained through state open records laws. Therefore, the committee recommends that Congress make no changes to reduce the availability of such 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 public disclosure means are

EVALUATION AND ADVICE 47 preserved, restrictions on discovery can be imposed without a significant burden on plaintiffs and that transit agencies will be allowed additional latitude for engaging in effective safety planning. Other committee members believe that admissibility restrictions are likely to be sufficient by them- selves in enabling high-quality safety planning and implementation without imposing restrictions on the discovery of information that can already be obtained through open records laws. Finally, as a general matter, two lines of reasoning are possible. Under one, if transit agencies are confident that their data will not be admissible, they will be more willing to share their safety data, plans, and evaluation records, which could strengthen public accountability and confer broader safety benefits by making the data available to outside safety analysts. Un- der the other, if safety planning records are not subject to the scrutiny of liti- gation, transit agencies may have a greater tendency to become complacent in their safety planning and improvement efforts over time. The committee cannot evaluate the validity of these competing claims. However, state high- way agencies that enjoy evidentiary protections do engage in such public sharing of records—for example, at public project meetings and by posting safety data and reports on their websites. In the committee’s view, such openness and accountability are desirable and should not depend solely on the goodwill of transit agencies. Instead, the committee believes that transit agencies enjoying evidentiary protections should be obligated to demon- strate to oversight authorities and the public that they are complying with the MAP-21 safety planning mandates in a manner that is rigorous and not perfunctory. Thus, the committee recommends that, along with evidentiary protections, 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. Exceptions would apply to confidential close call reporting sys- tems, sensitive security information, and police and security enforcement activities. 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. CONCLUDING COMMENTS By passing MAP-21, Congress made clear its view that the tort system by itself was not promoting public safety sufficiently and that this purpose

48 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS would be furthered by transit agencies engaging in more proactive safety planning and programming. To promote such planning in other modes, Congress has provided various evidentiary protections, including long- standing protections for state highway agency safety planning records. Inasmuch as Congress has maintained these protections for years and ap- pears to be satisfied with their effects, the committee finds no reason for Congress to treat public transit agencies differently, and it recommends carefully constructed evidentiary protections. In return for evidentiary protections, the committee recommends that Congress require that transit agencies make their planning records freely available to the public. No longer worried that plaintiffs can use these records against them, transit agencies should not object to such a transpar- ency requirement, which should provide additional incentive for the kind of high-quality safety planning and programming that Congress envisioned in MAP-21.

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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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