2007 Louisiana Transportation 2007 Louisiana Transportation Engineering ConferenceEngineering Conference

February 12, 2007February 12, 2007Baton Rouge, LABaton Rouge, LA

““Is our Data Protected? A Discussion Is our Data Protected? A Discussion of 23 USC 409of 23 USC 409””

In Memory of James R. DawsonIn Memory of James R. DawsonPresented by Judy Williams, Assistant Attorney General, Presented by Judy Williams, Assistant Attorney General,

State of Louisiana, Department of JusticeState of Louisiana, Department of Justice

Why does a state collect safety data?

• To enhance highway safety

• To identify potentially hazardous locations

• To prioritize funds

• To obtain federal funding for highway safety projects

• Federally required to be collected

“…“…reports, surveys, schedules, lists, or data reports, surveys, schedules, lists, or data compiled or collected compiled or collected

for the purpose of identifying, evaluating, or for the purpose of identifying, evaluating, or planning the safety enhancement of potential planning the safety enhancement of potential accident sitesaccident sites

……pursuant to sections 130, 144, and 152pursuant to sections 130, 144, and 152

……or for the purpose of developing any highway or for the purpose of developing any highway safety construction improvement project safety construction improvement project

which may be implemented utilizing Federalwhich may be implemented utilizing Federal--aid aid highway funds highway funds

23 U.S.C.A. §409§§130130States shall maintain a survey States shall maintain a survey of all highway railroad of all highway railroad crossings on public roadscrossings on public roads§§144144States shall inventory all States shall inventory all highway bridges on public highway bridges on public roadsroads§§152152States shall maintain an States shall maintain an engineering survey of all engineering survey of all public roadspublic roads

shall notshall not

be subject to discovery or admitted into be subject to discovery or admitted into evidenceevidence……

or considered for other purposes in any or considered for other purposes in any action for damages...action for damages...””

•§409 ensures deliberative spending of federal funds

•Protects the public by ensuring that safety measures are routinely explored

•Fosters the free flow of safety-related information

this does not make the documents this does not make the documents private, secret, or nonprivate, secret, or non--publicpublic

it only prohibits their discovery it only prohibits their discovery through a suit for damages and through a suit for damages and theirtheir use or admissibility in such a use or admissibility in such a suitsuit

Important to noteImportant to note

§§409 protects409 protects

the information that the the information that the governmental agency compiled for governmental agency compiled for §§152 purposes 152 purposes

any information that the agency any information that the agency collects from other sources for collects from other sources for §§152 purposes152 purposes

According to the U.S. Supreme Court According to the U.S. Supreme Court in Pierce County, 123 S.Ct. at 730-731,

In In Newsday Inc. vs. State DOTNewsday Inc. vs. State DOT

the information is sought by a the information is sought by a newspaper newspaper that is not engaged in a court that is not engaged in a court proceeding involving an accident proceeding involving an accident occurring at a location mentioned occurring at a location mentioned in such datain such data

§§409 does not prohibit disclosure of 409 does not prohibit disclosure of priority intersection and highway location priority intersection and highway location data wheredata where

Long v. DOTDLong v. DOTD

Correspondence between local village Correspondence between local village and DOTD concerning an upgrade to and DOTD concerning an upgrade to an offan off--system railroad grade crossing system railroad grade crossing is protected under 23 USC is protected under 23 USC §§409409

Long v. DOTDLong v. DOTDThe Court found, The Court found, ““Hence, we find these three Hence, we find these three

letters represent information necessary for the letters represent information necessary for the commencement of the upgrade for this commencement of the upgrade for this roadway/railroad crossing, and thus, the letter roadway/railroad crossing, and thus, the letter effectuate the purpose of the federal safety effectuate the purpose of the federal safety program. Taken as a whole, and in the context of program. Taken as a whole, and in the context of the framework of the purpose of the framework of the purpose of §§409, we find 409, we find the letters were compiled and collected by the the letters were compiled and collected by the DOTD for purposes related to funding through DOTD for purposes related to funding through §§130, a federal safety program. Thus, we find the 130, a federal safety program. Thus, we find the letters are protected from discovery and are letters are protected from discovery and are inadmissible under 23 U.S.C. inadmissible under 23 U.S.C. §§409.409.”” LongLong at 10.at 10.

Long v. DOTDLong v. DOTDThe purpose is to encourage states to actively The purpose is to encourage states to actively and thoroughly investigate the railroad crossings and thoroughly investigate the railroad crossings within their borders, free from the fear that data within their borders, free from the fear that data compiled to serve this purpose might be later compiled to serve this purpose might be later used to establish tort liability. used to establish tort liability. LongLong at 8.at 8.This Court has instructed courts not to rule on This Court has instructed courts not to rule on the admissibility of documents in a vacuum, but the admissibility of documents in a vacuum, but rather to examine the documents to determine rather to examine the documents to determine whether the information was amassed pursuant whether the information was amassed pursuant to the federal highway safety evaluation to the federal highway safety evaluation programs. programs. IdId..

PreemptionPreemption

The principle that a federal law can The principle that a federal law can supersede or supplant any inconsistent supersede or supplant any inconsistent state law or regulation.state law or regulation.

The Louisiana Supreme Court in The Louisiana Supreme Court in WiedemanWiedeman found that 23 U.S.C.A. found that 23 U.S.C.A. §§409 preempts Louisiana state law.409 preempts Louisiana state law.

Additional requirements have been added Additional requirements have been added by by ShanklinShanklinTo preempt state law the federal To preempt state law the federal regulation must cover the same subject regulation must cover the same subject matter and not merely touch upon or matter and not merely touch upon or relate to the subject matter, relate to the subject matter, thus preemption will lie only if the federal thus preemption will lie only if the federal regulations substantially subsume the regulations substantially subsume the subject matter of the relevant state law.subject matter of the relevant state law.

So –Can crash reports be protected under §409?

If so, how?

Proof of the crash reportProof of the crash report’’s s §§152152 purpose:purpose:

1.1. Historical connection of the crash report Historical connection of the crash report and improving highway safetyand improving highway safety

2.2. Development of the crash report in Development of the crash report in response to federal requirementsresponse to federal requirements

3.3. Current use of the crash report in Current use of the crash report in improving highway safetyimproving highway safety

4.4. OnOn--going development of improved data going development of improved data collection (i.e., FHWA video, oncollection (i.e., FHWA video, on--board board computers, etc.)computers, etc.)

SuggestionsSuggestionsAssert the protection afforded by 23 Assert the protection afforded by 23 U.S.C. U.S.C. §§409409Begin to assert the protection Begin to assert the protection afforded by 23 U.S.C. afforded by 23 U.S.C. §§402(k)(1)402(k)(1)Insure that the attorneys defending Insure that the attorneys defending the state are made aware of the state are made aware of appropriate statutes and case lawappropriate statutes and case lawEstablish a network of individuals, Establish a network of individuals, engineers and attorneys, to keep up engineers and attorneys, to keep up to date with changes and with new to date with changes and with new casescases

TOTAL SUMMARY Fiscal Contract Contract Contract In-House In-House In-House GrandYear Open Closed Total Open Closed Total Total

FY00-01 451 119 570 479 749 1228 1798FY01-02 521 56 577 559 532 1091 1668FY02-03 561 28 589 664 300 964 1553FY03-04 316 2 318 915 116 1031 1349

2054 4314 6368

ROAD HAZARDS HISTORYFiscal Contract Contract Contract In-House In-House In-House GrandYear Open Closed Total Open Closed Total Total

FY00-01 97 12 109 123 78 201 310FY01-02 140 7 147 130 49 179 326FY02-03 148 4 152 161 21 182 334FY03-04 99 0 99 160 4 164 263

507 726 1233

williamsju@ag.state.la.uswilliamsju@ag.state.la.us