Admissibility and Public Availability of Transit Safety Planning Records (2018)

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5 1 Introduction Information on the circumstances leading to and on the congressional re- quest for this study is given in the following two subsections. MOTIVATION FOR THIS STUDY From 2004 to 2013, the National Transportation Safety Board (NTSB) reported on nine transit incidents that, collectively, resulted in 15 fatalities, 297 injuries, and more than $30 million in property damage. The June 22, 2009, collision of two Washington Metropolitan Area Transit Authority trains near the Fort Totten station, which killed 9 people and injured 52 (NTSB 2016), was the most notable. In the aftermath of those incidents, Congress sought to strengthen state safety regulation and enforcement through the imposition of federal requirements and oversight functions. In the Moving Ahead for Progress in the 21st Century Act of 2012 (MAP-21), Congress amended federal transit law by mandating that all states with one or more rail transit recipients of federal grants (awarded under 49 U.S.C. Chapter 53) create a state safety oversight agency to review and approve each system’s safety plan. The 30 states with rail transit systems are required to have their safety oversight programs reviewed and certified by the Federal Transit Administration (FTA). Before being assigned major responsibilities for safety oversight and enforcement, FTA had primarily served as a grant-making agency. It administered nearly half of all capital expenditures by public transit systems in the United States. From its found- ing in 1964 to 2012, FTA’s role in overseeing transit safety was limited. Any

6 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS third-party oversight and monitoring of transit agency safety during this period was provided almost exclusively by the states. In an accompanying provision of MAP-21 [49 U.S.C. § 5329(d)], Congress mandated that each state and local recipient of Chapter 53 funds (including nonrail systems) establish a comprehensive safety plan that in- cludes, among other things, methods for identifying and evaluating safety risks across all elements of the system, strategies for minimizing exposure to hazards and unsafe conditions, performance targets based on well- defined safety performance criteria, and comprehensive safety education and training programs for transit personnel. To implement this industry- wide requirement, FTA issued an advance notice of proposed rulemaking on October 3, 2013, that would require transit systems receiving federal aid to establish safety plans, performance goals, and risk management programs comparable with the safety management system (SMS) approach used in several other transportation modes and high-hazard industries.1 According to this proposal, which was updated to a notice of proposed rulemaking on February 5, 2016,2 each transit system would need to develop and imple- ment a safety plan that systematically identifies the factors contributing to unsafe events and that seeks to prevent or minimize the likelihood of their occurrence. According to the proposed rule, a compliant plan would need to set clear safety goals and objectives; define levels of accountability and responsibility for safety; and establish proactive approaches for identify- ing hazards and managing safety risks by using management processes, integrated data analysis, and decision-making tools to prioritize safety in making operating and capital investment decisions. In commenting on the proposed rule, some transit agencies expressed concern that requirements for disclosing information developed as part of the mandated safety plans, including risk management plans, reports, and other data, could discourage an operator from setting ambitious safety per- formance goals and from undertaking the kinds of safety analyses needed to further these goals (FTA 2015). Of particular concern was the prospect of SMS information being obtained by plaintiffs in legal disputes with agencies through pretrial discovery devices such as interrogatories, docu- ment requests, and subpoenas. The fear was that this information would be used against them as evidence in tort cases and expose them to significant unwarranted financial liabilities. Accordingly, many requested that such 1 On October 3, 2013, FTA issued an advance notice of proposed rulemaking for the Na- tional Public Transportation Safety Plan, the Safety Certification Training Program, and the Public Transportation Agency Safety Plans. See 78 FR 61251; https://www.regulations.gov/ docket?D=FTA-2013-0030. 2 On February 5, 2016, FTA issued a notice of proposed rulemaking for the National Public Transportation Safety Plan, the Safety Certification Training Program, and the Public Trans- portation Agency Safety Plans. See 81 FR 6343.

INTRODUCTION 7 information be barred from disclosure in judicial proceedings. The follow- ing are examples: • Long Beach Transit commented that “in order to fully utilize the SMS for the purposes of proactively and reactively analyzing haz- ards, and evaluating and prioritizing safety risks, there must be protections against the use of this safety analysis from discovery and use in judicial proceedings.” • The Massachusetts Bay Transportation Authority commented that “the current proposed rule, and related MAP-21 rulemakings, offer no clear forms of protection against public scrutiny or legal li- ability. This lack of protection can inhibit an agency’s ability to effectively conduct the safety risk management process and mea- sure safety performance, if identified risks can be used against the agency in cases of legal liability.” • Sacramento Regional Transit commented that it “is concerned with the disclosure of sensitive data and analysis prepared for its Public Transportation Agency Safety Plan. An effective Safety Manage- ment System, particularly Safety Risk Management, requires robust data gathering and candid analysis of safety hazards. If this infor- mation cannot be withheld from public disclosure or use against an agency in judicial proceedings it will discourage transit agencies from pursuing full and frank safety hazard analysis.” • The Metropolitan Atlanta Rapid Transit Authority commented that “FTA must take all authorized actions to safeguard safety sensitive information in federal, state, and local forums. While MAP-21 did not provide explicit federal preemption, FTA should aggressively act to maximize the safeguarding of safety information.” The American Public Transportation Association summed up the rationale for the data protections requested by its member agencies with the follow- ing comment (FTA 2015): FTA must maximize protection of data and press for explicit authority to protect data from discovery or admission into evidence in judicial proceed- ings. SMS, by its nature, requires full and frank review, evaluation, and prioritization of risk. The possibility that the product of this process will be released through the Freedom of Information Act (FOIA), state sun- shine laws, or obtained and used against an agency in judicial proceedings clearly serves as a barrier to such documented self-examination. While provided no explicit authority to preserve the confidentiality of documents, FTA should affirmatively state its intent to protect agency safety analyses to the maximum extent authorized under current law. Moreover, FTA should unequivocally state its intent to pursue full authority to exempt

8 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS safety analyses from discovery and use in judicial proceedings, and follow through on that intent. Similar requests for the protection of safety data, particularly from disclo- sure and use in judicial proceedings, had been made decades earlier by state departments of transportation (DOTs) in implementing federal statutory requirements to create highway safety improvement programs (HSIPs). As part of these programs, state DOTs are expected to use analytical and data- driven processes to identify hazardous locations, prioritize highway and bridge projects to address them, and evaluate the safety effectiveness of the projects.3 States argued that these data were being used to create evidence for plaintiffs in dangerous condition cases and that the risk of liability for motor vehicle crashes taking place at locations identified as being hazard- ous but before improvements could be made was increased (TRB 2016). The U.S. Department of Transportation (USDOT), which reviews state compliance with HSIP requirements, likewise asserted that, because of this liability risk, states were being less ambitious in their data collection and analysis efforts, which undermined the effectiveness of HSIPs (TRB 1995). To enable state DOTs to engage in more candid and rigorous safety planning and management without fear of added liability exposure, USDOT asked Congress to allow states to protect HSIP information from plaintiffs in civil litigation. In passing the Surface Transportation and Uniform Re- location Assistance Act of 1987 (Public Law 100-17)—and in subsequent amendments to federal highway law—Congress gave recipients of federal highway aid broad protections to prevent the discovery or admission into evidence of certain HSIP information in litigation. Under the current version of 23 U.S.C. § 409 and § 148(h)(4), any “reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings . . . or for the purpose of developing any highway safety construction improvement project . . . shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding.” As Congress has extended HSIP-like requirements for safety planning and management to other transportation modes, similar requests have been made for data protections. In 2008, when Congress required commuter and intercity passenger railroads to establish system safety programs (SSPs) (Rail Safety Improvement Act of 2008, Public Law 110-432), the Federal Railroad Administration (FRA) was tasked with determining the need for 3 The HSIP is legislated under Section 148 of Title 23, United States Code (23 U.S.C. 148) and regulated under Part 924 of Title 23, Code of Federal Regulations (23 CFR Part 924). 23 U.S.C. § 148(a)4.

INTRODUCTION 9 protections of the type provided by 23 U.S.C. § 409 by studying “whether it is in the public interest, including public safety and the legal rights of per- sons injured in railroad accidents, to withhold from discovery or admission into evidence in a Federal or State court proceeding for damages involv- ing personal injury or wrongful death against a carrier any report, survey, schedule, list, or data compiled or collected for the purpose of evaluating, planning, or implementing a railroad safety risk reduction program.”4 FRA’s study on SSP data protection was conducted by the law firm of Baker Botts (2011). After a review of public comments on the desirability of such protections, the study concluded that substantial support exists for a rule shielding “railroad safety risk information from use in civil litigation” and that such a rule “would serve the broader public interest.” Baker Botts alluded to the many comments received from passenger railroads arguing that shielding SSP data from litigation would serve the broad public interest by encouraging the timely and complete disclosure of safety information to FRA. In response, FRA issued a regulation in 2012 stipulating that “infor- mation that is generated solely for the purpose of developing, implement- ing, or evaluating a SSP is protected from (1) discovery, or admissibility into evidence, or use for other purposes in a proceeding for damages involving personal injury, wrongful death, or property damage, and (2) state discov- ery rules and sunshine laws which could be used to require the disclosure of such information” (Federal Register 2012). The latter restriction on disclosure via sunshine (open records) laws was not a recommendation of Baker Botts, but rather a requirement by Congress in Section 109 of the Rail Safety Improvement Act of 2008 (codified at 49 U.S.C. 20118–20119). The basis for Baker Botts’ conclusion in favor of data protection was that SSPs “implicate public interest considerations similar to those Congress has protected through other statutory limitations on the use of information in civil litigation or discovery . . . and those provisions have been upheld by the courts.” The firm argued that FRA’s statutory duty is ultimately to protect the broader public interest in improving and ensuring rail safety through effective railroad safety risk reduction program plans, and that broad public interest outweighs the individual interests of future litigants who may assert damage claims against railroads. However, the firm noted that the docket of public comments included requests by labor unions, attorneys representing injured workers and pas- sengers, and consumer protection organizations to forgo or tightly limit any SSP data protections. While many of these opposing comments pointed out the disadvantages that such protections would create for individual plaintiffs 4 49 U.S.C. § 20119(a).

10 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS in meeting the burden of proof that a railroad had violated a standard of care, some also alluded to the broader public interest in allowing disclo- sure to protect the role of the tort system in deterring unsafe conditions and behaviors. The American Association for Justice (AAJ) (formerly the Association of Trial Lawyers of America) maintained that the Baker Botts report offered “no empirical evidence to support the suggestion by railroads that restrictions on disclosure will lead to improved public safety” and that “the threat of disclosure—whether to the public, to affected workers, or in litigation—creates an incentive for railroads to correct hazards immedi- ately” (AAJ 2011). Likewise, a number of rail labor unions commented that sharing SMS information “will help ensure safer rails. If the [railroads] are aware that their safety [risk] reduction plans are discoverable, they will have a strong incentive to ensure that they are closely following their plan and taking all appropriate precautions to prevent accidents” (Scardeletti 2011). REQUEST FOR THIS STUDY Public transit agencies have been on the record advocating greater protec- tions for their safety program information from use in litigation, and the plaintiffs’ bar has advocated free access to information by clients in pursuit of their cases. With this backdrop, Congress asked the National Academies of Sciences, Engineering, and Medicine (the National Academies), in Section 3021 of the Fixing America’s Surface Transportation Act of 2015, to con- vene a committee of experts to evaluate whether it is in the public interest, including public safety and the legal rights of persons injured in public transportation accidents, to withhold from discovery or admission into evidence in a Federal or State court proceeding any plan, report, data, or other information or portion thereof, submitted to, developed, produced, collected, or obtained by the Secretary of Transportation or the Secretary’s representative for purposes of complying with the requirements under section 5329 of title 49, United States Code, including information related to a recipient’s safety plan, safety risks, and mitigation measures. The language of the study request is almost identical to that of the earlier congressional request that FRA study the desirability of SSP evidentiary protections. The presumed goal of the latter is to ensure that agency safety planning that promises broader benefits to the public is not inhibited by excessive concern about the potential for these plans to increase exposure to the financial risks of tort lawsuits. The language in the study request also resembles the long-standing requirement that state DOTs ensure that any “reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of

INTRODUCTION 11 potential accident sites, hazardous roadway conditions, or railway-highway crossings . . . or for the purpose of developing any highway safety construc- tion improvement project . . . shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding.” The full legislative request for the study, which constitutes the project’s statement of task, is provided in Box 1-1. To conduct the study, the Na- tional Academies appointed a committee consisting of experts in law, public policy, transit operations, and safety. The committee met four times during 2017 and gathered extensive data to inform its deliberations. The results are contained in the remaining four chapters of this report. Chapter 2 Box 1-1 Legislation Requesting This Study SEC. 3021. STUDY ON EVIDENTIARY PROTECTION FOR PUBLIC TRANSPORTATION SAFETY PROGRAM INFORMATION. (a) STUDY.—The Secretary shall enter into an agreement with the Transportation Research Board of the National Academies of Sciences, Engineering, and Medicine, to conduct a study to evaluate whether it is in the public interest, including public safety and the legal rights of persons injured in public trans- portation accidents, to withhold from discovery or admission into evidence in a Federal or State court proceeding any plan, report, data, or other information or portion thereof, submitted to, developed, produced, collected, or obtained by the Secretary or the Secretary’s representative for purposes of complying with the requirements under section 5329 of title 49, United States Code, includ- ing information related to a recipient’s safety plan, safety risks, and mitigation measures. (b) COORDINATION.—In conducting the study under subsection (a), the Trans- portation Research Board shall coordinate with the legal research entities of the National Academies of Sciences, Engineering, and Medicine, including the Committee on Law and Justice and the Committee on Science, Technology, and Law, and include members of those committees on the research commit- tee established for the purposes of this section. (c) INPUT.—In conducting the study under subsection (a), the relevant entities of the National Academies of Sciences, Engineering, and Medicine shall solicit input from the public transportation recipients, public transportation nonprofit employee labor organizations, and impacted members of the general public. (d) REPORT.—Not later than 18 months after the date of enactment of this Act, the National Academies of Sciences, Engineering, and Medicine shall issue a report, with the findings of the study under subsection (a), including any recommendations on statutory changes regarding evidentiary protections that will increase public transportation safety.

12 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS provides background on the U.S. public transit industry, its safety record, and the challenges that prompted Congress to give FTA a more prominent role in safety regulation and oversight. Chapter 3 describes SMS require- ments in other transportation modes and industries, what is known about their effectiveness, and the confidentiality and evidentiary protections that apply in some of these instances. Chapter 4 examines the function of the tort system in promoting safety and other interests and the rationale for evidentiary protections. Chapter 5 contains the committee’s evaluation and recommendations in response to the congressional charge. REFERENCES Abbreviations AAJ American Association for Justice FTA Federal Transit Administration NTSB National Transportation Safety Board TRB Transportation Research Board AAJ. 2011. Statement on the Study on Protection of Certain Railroad Risk Reduction Data from Discovery or Use in Litigation (Docket Number FRA-2011-0025). https://www. regulations.gov/document?D=FRA-2011-0025-0013. Baker Botts. 2011. Study of Existing Legal Protections for Safety-Related Information and Analysis of Considerations For and Against Protecting Railroad Safety Risk Reduction Program Information. Prepared for the U.S. Department of Transportation Federal Railroad Administration. Federal Register. 2012. System Safety Program. Federal Railroad Administration 49 CFR Part 270 (Docket No. FRA-2011-0060, Notice No. 3). https://www.federalregister.gov/ documents/2012/11/26/2012-28561/system-safety-program. FTA. 2015. Public Transportation Agency Safety Plan. Docket ID FTA-2015-0021. https:// www.regulations.gov/docket?D=FTA-2015-0021. NTSB. 2016. Improve Rail Transit Safety Oversight. https://www.ntsb.gov/safety/mwl/Pages/ mwl2-2016.aspx. Scardeletti, R. A. 2011. Statement on the Study on Protection of Certain Railroad Risk Re- duction Data from Discovery or Use in Litigation (Docket No. FRA-2011-0025). https:// www.regulations.gov/document?D=FRA-2011-0025-0012. TRB. 1995. NCHRP Legal Research Digest 33: Freedom of Information Acts, Federal Data Collections, and Disclosure Statutes Applicable to Highway Projects and the Discovery Process. National Research Council, Washington, D.C. TRB. 2016. NCHRP Legal Research Digest 72: Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation. National Academies of Sciences, Engineering, and Medicine, Washington, D.C.