Admissibility and Public Availability of Transit Safety Planning Records (2018) / Chapter Skim
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Pages 40-48
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From page 40... ...
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)
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EVALUATION AND ADVICE 41 such activities, including the kinds of data, documents, and records generated. 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.
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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.
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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 pursue 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 information disclosure.
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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 controversial.
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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 rigorous 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 disclosure 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.
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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.
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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 themselves 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.
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From page 48... ...
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 longstanding protections for state highway agency safety planning records.
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