Amicus Curiae Brief — Pierce County v. Guillen

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No. 01-1229 JUL 3 Mp

In The

Supreme Court of the Ani ates —

PIERCE COUNTY,

Petitioner,

IGNACIO GUILLEN, AS LEGAL GUARDIAN FOR

JENNIFER GUILLEN AND ALMA GUILLEN, MINORS;

AND MARIANO GUILLEN, AS LEGAL GUARDIAN FOR

PAULINA GUILLEN,

Respondents.

On Writ Of Certiorari To The

Supreme Court Of Washington

AMICUS BRIEF OF THE STATE OF LOUISIANA AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

RICHARD P. IEYOUB

Attorney General

JOHN C. YOUNG*

JAMES R. DAWSON

Assistant Attorneys General

626 N. 4th Street, Fifth Floor -

Baton Rouge, Louisiana 70804-9095

(225) 342-8717

and

LAWRENCE A. DURANT

General Counsel, State of Louisiana,

Department of Transportation and

Development

P. O. Box 94245

1201 Capitol Access Road

Baton Rouge, Louisiana 70804-9245

(225) 379-1207

*Counsel of Record for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 al)

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TABLE OF CONTENTS ~—

Page

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TAs OF ALTER E EEE ccccccccvcccceccccccccscvcccccocccesene iv

INTEREST OF AMICUS CURIAE .............ccccseceeeeees 1

FO 2

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1. Congress has the constitutional right to create

national highway safety improvement pro-

grams and to condition the voluntary partici-

pation in those programs on the acceptance of

the terms of a contractual agreement that is in

furtherance of a relevant and valid interest

reasonably related to a specific worthwhile na-

I ccentarisniisinnnininneemnntiiienntenen 4

a. The right of Congress to create federal-

aid programs and to condition the volun-

tary participation in those programs........ 4

b. The valid interest of Congress in promot-

ing highway safety and the effective

spending of public funds.......................... 5

c. The constitutionality of § 409................... i)

2. A state’s public record law is preempted by

i EP darcennenninasnnemsisenninnatitarideansnineeniiietiaaiie 11

3. The accident reports sought by the plaintiffs

are the type of document protected from dis-

covery or other use contemplated by § 409..... 14

TABLE OF CONTENTS - Continued

Page

4. The accident report sought by the plaintiffs

in this suit for damages is protected from

discovery or other use, regardless of whether

it was prepared exclusively for safety im-

provements or whether it is available for

other uses in non-tort proceedings and re-

gardless of whether it was prepared by

highway officials or is in their custody ..........

a. The rules of statutory construction..........

b. Accident reports need not be created

solely for federal reporting requirements

SS TS

The federal statute (§ 409) is but one of

several federal statutes that impose exact or

similar discovery and evidentiary restric-

tions in suits in tort, and if the decision of

the Washington State Supreme Court is al-

lowed to stand, the validity of those statutes

would become at issue, attacking the legiti-

macy of Congress to determine terms to ef-

fectuate the implementation of its programs.

ann ENTITY sicectritenntcntendnssencestosssssceensscnesonssscsossees

“oie

TABLE OF CONTENTS - Continued

APPENDICES:

Proposed Amendment to Highway Safety

Legislation, U.S. Department of Transporta-

tion, Federal Highway Administration, May 4,

1983, Memorandum of Marshall Jacks, Jr.......... App. 1

Final Model Minimum Uniform Crash Criteria

(MMUCC), U.S. Department of Transportation,

National Highway Traffic Safety Administra-

tion, Federal Highway Administration, August

TABLE OF AUTHORITIES

Page

CASES

Baldrige v. Shapiro, 455 U.S. 345 (1982) ..........cccccccccceeeeee 23

Carter v. U.S., 530 U.S. 255 (2000) ..........ccccccccccceseceeeeeeees 18

Claspill v. Missouri Pacific R. Co., 793 S.W.2d 139

(Mo. 1990), cert. denied, 498 U.S. 984 (1990)................. i)

Coniker v. State of New York, 695 N.Y.S.2d 492

REET Ronee SY a 19

Connecticut Nat. Bank v. Germain, 503 U.S. 249

Ee ee NN Ee Le i ek TO 18

Davis v. Monroe County Bd. of Educ., 120 F.3d 1390

(11th Cir. (Ga.) Aug. 21, 1997), reversed on other

grounds, Davis Next Friend LaShonda D. v.

Monroe County Bd. of Educ., 526 U.S. 629 (1999)......... 5

Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

iia iiaieninta intellect ite 18

Ex parte Alabama Dept. of Transp., 757 So.2d 371

SO Ds Sn a 11, 12

Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985) ............ccccccccccceseseceeeeeeeees i)

Gaubert v. Denton, 1999 WL 350103 (E.D.La. May

28, 1999), affirmed by, 210 F.3d 368 (5th Cir.

RRR EL 10, 11, 24

Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S.

UIT hacsnieshceitaniiinieshdeemeemaietaiaetiatiahal iiatanatchciacan anh 5

Guillen v. Pierce County, 31 P.3d 628 (Wash. Sep.

a See ecitatierenrehenienricetntentmectsemiattaitatinatatsetanienaininitiiaaeiiaattis 5

Hartford Underwriters Insurance Co. v. Union

Planters Bank, N.A., 530 U.S. 1 (2000) .........cccccccceceeeces 18

TABLE OF AUTHORITIES — Continued

Page

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432

NEESER ene acter coco ene ne 18

John Doe Agency v. John Doe Corp., 493 U.S. 146

I anaemia tear antl alae taal 21

Lusby v. Union Pacific R. Co., 4 F.3d 639 (8th Cir.

eee assoseesenessescsssnssnsensseses 20

Mackie v. Grand Trunk Western Railroad Co., 544

N.W.2d 709 (Mich. App. 1995) ...........:cccccccscsscceeeeseeeeeerees 20

Martinolich v. Southern Pacific Transp. Co., 532

So.2d 435 (La.App. 1 Cir. 1988), writ denied, 535

So.2d 745 (La. 1989), cert. denied, Louisiana

Dept. of Transp. and Development v. Nick

Martinolich, Inc., 490 U.S. 1109 (1989)................cccceeees 10

New York v. United States, 505 U.S. 144 (1992).............. 4,5

Palacios v. Louisiana and Delta R.R., Inc., 2000-

00971 (La.App. 3 Cir. 12/29/00), 775 So.2d 698,

writ denied, 2001-0565 (La. 5/4/01), 791 So.2d

cen ishinieniesetecimmceseetantanietllaieataitaieatearraasimsainaas ie bianamamnemengans 10

Pennhurst State School and Hospital v. Halderman,

PO 4

People of State of Cal. ex rel. Dept. of Transp. v.

U.S., 27 Fed.Cl. 130 (Fed.Cl. Oct. 30, 1992)...............0++. 6

Powers v. CSX Transp., Inc., 177 F.Supp.2d 1276

eee 20

Reichert v. State, Dept. of Transp. and Development,

96-1419 (La. 5/20/97), 694 So.2d 193.......... seceeenneeeenennees 10

Robertson v. Union Pacific R. Co., 954 F.2d 1433

CN ONS Se 20

TABLE OF AUTHORITIES -— Continued

Page

Sawyer v. Illinois Cent. Gulf R. Co., 606 So.2d 1069

eee En 9

Seaton v. Johnson, 898 S.W.2d 232 (Tenn.Ct.App.

Jan 27, 1995), appeal denied (May 01, 1995)................ 12

South Carolina v. Baker, 485 U.S. 505 (1988) ................... 9

South Dakota v. Dole, 483 U.S. 203 (1987).................000- 4,5

St. Regis Paper Co. v. U. S., 368 U.S. 208 (1961)........ 19, 25

Taylor v. St. Louis Southwestern Ry. Co., 7

Gs Gs Ste tevescnnnnesnesennssnintemneieenneennecel 20

Tennessee Electric Power Co. v. Tennessee Valley

Authority, 306 U.S. 118 (1939).................cccccsssseesssreeeees 11

United States v. Weber Aircraft Corporation, 465

Se CET crcrssrrecitentncnessiinarinmcensnaiinetaiaetaiaiinaaintieaaiiaaes 13

Wiedeman v. Dixie Elec. Membership Corp., 627

So.2d 170 (La. Nov. 29, 1993), cert. denied,

Louisiana Dept. of Transp: and Development v.

Wiedeman, 511 U.S. 1127 (1994)..............ccccesessseseceeeees 10

STATUTES AND REGULATIONS

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By Se hrranerenmsnsencsnnsienemnunnemmeneemel 23

ES 23

Se DAI, © ee ccrcscescssesesecussncsnsssscescccnsemmsesscssnnssencens 23

Vii

TABLE OF AUTHORITIES -— Continued

Page

NO —————————————— a 7

, Lis Coe )) Rn passim

Ls Oe fo 15, 16, 23, 24

QB U.S.C. § 402K 1)......cceeerccccesssccsscrerecseeeseesesneenessseeesssess 24

BS U.S.C. § 4OD........ccccccccscsssesssssscccsccvevscenseesesesesescones passim

BB U.GA.C. © ELL .....ccccccccccccceseessscccrssscccsscsessrssensssocnssscossssess 16

3B U.S.C. § GBO(C).......cccssccccessrcrsssecsenseeseeerscssnseesseesessnnenenss 23

49 U.S.C. § BOMB) .......cccccescrccessrcsssssessereessennessssersssnsssenesens 23

49 U.S.C. § 1154(a( SD) ......ccccccccreeceeseesrenentnnerenenenereneees 23

49 U.S.C. § 115 4(D)...........ccccccssssssscrsssereeeessseessseeessnenseseneeens 23

49 U.S.C. § 20703(c)...........:ccscesesesssrereseereeenenseseresssensenensens 23

49 U.S.C. § 20903...........:ccccccccosrsserseesreseersseneessnensnsnsssneeenes 23

49 U.S.C. § 47507.........ccccccesccccssssossssscesereseseressserssssonsssrscsees 23

BB CBR. © 1.1 .......ccccccccssscvessessscccsccscoscssssccsessessssosssssoossscsses 6

BB CBR. © 1.9 .....c.cccccccresscccesecscsrsccesccesosssesssesessssesosscoossoosess 6

23 C.BR. § 924.9 .......cccccescsccsssecssssesssesreceesreesssessssssssnnees 6, 14

23 C.FR. § 924.18 ...........ccccceeeeeeeeeeeeeseesenesesenseneenenennnnnnes 6,14

23 CFR. § 1335.1 ef. S€q......cccccecseeeeeeeeeeseeenssnnenssneerenennnens 16

23 C.BR. § 1335.3(e) .........cccccsscsescersseeeeeneeeseseseneessnensenees 16

INTEREST OF AMICUS CURIAE

This amicus brief is filed on behalf of the State of

Louisiana and submitted by its Attorney General, Richard

P. Ieyoub. Under Rule 37(4) consent of the parties and

leave of this Honorable Court for this filing is not required.

This Honorable Court has granted certiorari to review

a decision of the Supreme Court of the State of Washing-

ton wherein that court declared a federal statute (23

U.S.C. § 409) unconstitutional. This statute is a proce-

dural rule that provides that records and reports that have

been collected and compiled as part of the voluntary

participation in federal highway safety improvement

programs cannot be either discovered or ultimately used in

any manner in any suit for damages.

In pursuit of a lawsuit for damages, the plaintiffs had

sought in pre-trial discovery materials and data relating to

the accident history for the intersection where their

accident occurred. Pierce County interposed § 409 in

opposition to the release of the requested accident reports,

accident history and associated data within the context of

this tort action.

On an eventual appeal, the Washington State Su-

preme Court ordered the production, holding that § 409

was unconstitutional.

This brief is submitted in support of Pierce County

and the State of Louisiana asks that this Honorable Court

reverse the decision of the Washington State Supreme

Court.

Louisiana, like the State of Washington, receives

substantial sums under various federal highway safety

improvement programs. To participate in these voluntary

programs, it collects, compiles, and utilizes a significant

amount of information, including the types of data and

records sought to be discovered by the plaintiffs in this

case.

| To facilitate candid evaluation and highway safety

improvement planning, Congress implemented § 409,

creating a discovery and evidentiary bar in tort litigation

and thereby choosing to preempt state and federal discov-

ery and evidentiary rules to the contrary that would

otherwise allow either the discovery of the material sought

by the plaintiffs in this case or its use for any purpose in a

suit for damages.

Louisiana is one of the few states whose courts have

addressed the constitutionality of this federal statute. Its

courts have found the statute to be a permissible preemp-

tion of its state discovery and evidentiary rules as Con-

gress has a relevant and valid interest reasonably related

to a specific worthwhile national program.

Louisiana recognizes that this preemption is in the

exercise of the worthy goal of Congress to improve the

safety of this nation’s highways. Louisiana asserts, as does

Pierce County, that the accident reports, accident history,

and other data requested by the plaintiffs are protected by

the statute from discovery or other use in this trial for

damages.

SUMMARY OF THE ARGUMENT

. In its brief, Pierce County, presents valid reasons why

this Honorable Court should reverse the decision of the

Washington State Supreme Court.

There are other equally valid reasons why this Honor-

able Court should reverse the decision of the Washington

State Supreme Court as Congress has a valid federal

interest in preempting state court discovery and eviden-

tiary rules in the furtherance of promoting the safety of

our nation’s highways.

States are required to collect and compile accident

information in order to obtain federal-aid funding for

highway safety improvements and to insure that those

funds are being obtained and utilized in a priority manner.

The sole source of the data required to be collected and

compiled is the accident report completed by the investi-

gating officers.

As such, these accident reports and the accident

histories generated from those reports are the necessary

antecedents to the planning and evaluation process and

are specifically the type of document protected by § 409

from discovery or other use in a civil suit for damages such

as this.

Further, an accident report is protected from use

regardless of whether such a report was prepared exclu-

sively for safety improvements or whether such a report is

available for other uses in non-tort proceedings, regardless

of whether the report was prepared by highway officials or

by police, and regardless of which public agency maintains

custody of the report. To hold otherwise would circumvent

the clear expression of the intent of Congress to limit to

the use of such a report.

It is crucial to note that § 409 is but one of several

federal statutes that impose exact or similar discovery and

evidentiary restrictions in suits in tort. If the decision of

the Washington State Supreme Court is allowed to stand,

the validity of those statutes would become at issue,

attacking the legitimacy of Congress to determine terms

and inducements to effectuate the implementation of its

programs.

ARGUMENT

1. Congress has the constitutional right to

create national highway safety improvement

programs and to condition the voluntary par-

ticipation in those programs on the accep-

tance of the terms of a contractual agreement

that is in furtherance of a relevant and valid

interest reasonably related to a specific

worthwhile national program

a. The right of Congress to create federal-

aid programs and to condition the volun-

tary participation in those programs

This Honorable Court has long recognized, that

pursuant to Congress’ power to legislate under the Spend-

ing Clause (U.S. Const. Art. I, § 8, cl. 1), Congress may fix

the terms on which it may disburse federal money to the

states. Pennhurst State School and Hospital v. Halder-

man, 451 U.S. 1, 17 (1981).

Legislation enacted pursuant to the spending power is

in the nature of a contract. Pennhurst, supra at 17. In

return for federal funds, the states agree to comply with

the conditions that Congress has attached to its offer.

Pennhurst, supra at 17; South Dakota v. Dole, 483 U.S.

203, 206 (1987).

A prospective recipient state is free to decline a grant

of federal funding. New York v. United States, 505 U.S.

144, 168 (1992). Similarly, a current recipient may withdraw

ene reer

from a federal program and decline further funding if it so

chooses. Davis v. Monroe County Bd. of Educ., 120 F.3d

1390, 1399 (11th Cir. (Ga.) Aug. 21, 1997), reversed on

other grounds, Davis Next Friend LaShonda D. v. Monroe

County Bd. of Educ., 526 U.S. 629 (1999), citing Guardi-

ans Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 596 (1983).

The freedom of recipients to decline a grant of federal

funding ensures that they will remain responsive to the

preferences of their local constituents. New York v. U.S.,

supra at 168.

Valid conditions imposed with federal funding bear a

relationship to the purpose of the federal spending. New

York v. U.S., supra at 168, citing South Dakota v. Dole,

supra at 207-208.

b. The valid interest of Congress in promot-

ing highway safety and the effective

spending of public funds

While any number of federal highway safety programs

are available to the states and to local governments, the

one most applicable in the instant case is the Hazard

Elimination Program (23 U.S.C. § 152).’

The Code of Federal Regulations implementing § 152

and other federal highway safety programs require that

' Pierce County had identified this intersection as especially

hazardous and applied for federal hazard elimination funds under

§ 152. That application was denied. The County then reapplied on —

3, 1996, and on July 26, 1996, three weeks after this fatal accident,

application was granted. See, decision of Washington State Supreme

Court, Guillen v. Pierce County, 31 P.3d 628, 633 (Wash. Sep. 13, 2001).

the states comply with certain conditions to receive fed-

eral-aid funds. 23 C.F.R. §§ 1.1, 1.9; People of State of Cal.

ex rel. Dept. of Transp. v. U.S., 27 Fed.Cl. 130 (Fed.Cl. Oct.

30, 1992): “This regulation, in mandatory terms, prohibits

federal fund participation in any cost incurred in violation

of federal or state law, the regulations set forth in the

C.F.R., or as prescribed by policies and procedures of the

Administrator of FHWA.”

Among these regulations are ones that require that

the states collect and compile accident histories, which are

of course dependent upon the collection and compilation of

accident reports, for analysis of locations for planning

potential improvements and evaluating the proposed

measures at those locations.’

This obligation to conduct and systematically maintain

an engineering survey is for all public roads, not just those

that may be part of a state highway system (§ 152(a\1)),

as funds authorized to carry out the hazard elimination

* See, ie., 23 C.FR. § 924.9 Planning (Highws

ae , anning (Highway Safety Improve-

“(a) The planning component of the highway safety im-

provement program shall incorporate:

“(2) A process for analyzing available data to identify

highway locations, sections and elements determined to be

hazardous on the basis of accident experience or accident po-

tential.”

See, also, 23 C.F.R. § 924.13 Evaluation (Highway Safety Im

: Highway Safety Improvement

“(a) The evaluation component of the highway safety im-

provement program in each State shall include a, including:

“(2) A record of accident experience before and after the im-

plementation of a highway safety improvement project.”

program are available for expenditure on any public road

(§ 152(c(1)).*

An additional condition imposed in order to secure the

federal funds is that the states report to the Secretary of

Transportation on a yearly basis the progress being made

to implement safety improvement projects for hazard

elimination and the effectiveness of those improvements.

Each state report shall contain, among other things, “the

previous and subsequent accident experience at these

locations.” (§ 152(g)). This report shall also contain “the

previous and subsequent accident experience at improved

locations.” (§ 152(g)).

The trade-off for these requirements that such acci-

dent experience be compiled, collected, and utilized to plan

and evaluate safety improvements and then that those

evaluations be systematically reported to the Secretary of

Transportation is the protection afforded by § 409 that the

enforced compilation and collection of such data not then

be subject to either discovery (as at issue in this case) or

otherwise used in a tort action (which is, of course, the

ultimate result of the Washington State Supreme Court’s

decision).

*In addition to the local projects authorized under § 152, numerous

highway safety improvement programs also address the additional

ability of local governments to apply for federal funding of local projects

for hazard elimination on their roads and bridges, see, i.e., 23 U.S.C.

§ 133 (Surface Transportation Program). These additional hazard

elimination projects, and the availability of federal funding, are also

conditioned on the analysis of justifying data to affect a proper prioriti-

zation in the expenditure of both federal and local funds and are often

under the administration of the states.

8 .

. This trade-off was expressly recognized by the Federal

Highway Administration in its attempts to implement

§ 409.

In a May 4, 1983, memorandum regarding the “Pro-

posed Amendment to Highway Safety Legislation” (re-

printed in full at Appendix A), the Associate Administrator

for Safety, Traffic Engineering, and Motor Carriers at the

time, Marshall Jacks, Jr., argued:

“For the past several years, we have attempted

to include in the Department’s legislative pro-

gram a provision to protect from disclosure in-

formation compiled by States to identify and

prioritize roadway hazards. It has been consis-

tently brought to our attention that highway de-

partments are reluctant to undertake such

efforts (as required by 23 USC 152, for instance)

for fear that acknowledging the existence of haz-

ardous conditions would expose them to liability.

It is noted that our suggestion was included in

DOT's Legislative Program for the 97th Con-

gress, 2nd Session, in the second category. We

also note that highway safety legislation is being

introduced in this legislative session. In the

event such safety legislation receives serious

consideration, it is recommended that an

amendment be included to protect information

compiled for purposes of safety enhancement.”

The memorandum went on to set out proposed lan-

guage for such an amendment, language virtually identi-

cal to that of the subsequently enacted § 409.

c. The constitutionality of § 409

By determining that there is no relevant and valid

federal interest reasonably related to a specific worthwhile

national program, the Washington State Supreme Court

reached a decision in direct conflict with contrary deter-

minations by the state supreme courts of Missouri, Missis-

sippi, and Louisiana.

In Claspill v. Missouri Pacific R. Co., 793 S.W.2d 139,

141 (Mo. 1990), cert. denied, 498 U.S. 984 (1990), the

Missouri State Supreme Court held, that in creating § 409,

Congress was acting in constitutional concert with the

Commerce Clause (U.S. Const., art. I, § 8, cl. 3), citing

Garcia v. San Antonio Metropolitan Transit Authority, 469

U.S. 528, 554 (1985) and South Carolina v. Baker, 485

U.S. 505 (1988).

A constitutional challenge was also rejected by the

Mississippi State Supreme Court in Sawyer v. Illinois

Cent. Gulf R. Co., 606 So.2d 1069 (Miss. 1992). In finding

no basis for a constitutional rejection of § 409, that court

noted:

“(Nlobody made Mississippi get into the railroad

crossing safety enhancement program. It is a

voluntary program. Duly authorized officials of

this state, however, have committed us to the

program — in exchange for ninety percent federal

funding — and it does not strike us outrageous

that we should accede to the federal govern-

ment’s rules and regulations appertaining

thereto. We have it on good authority that Mis-

souri and Louisiana have rejected challenges to

Section 409. See Claspill v. Missouri Pacific

Railroad Co., 793 S.W.2d 139 (Mo. 1990); Marti-

nolich v. Southern Pacific Transportation Co.,

532 So.2d 435 (La. Ct.App. 1988). We accept Sec-

tion 409 as controlling, as well.” 606 So.2d at

1074.

In Wiedeman v. Dixie Elec. Membership Corp., 627

So.2d 170 (La. Nov. 29, 1993), cert. denied, Louisiana Dept.

of Transp. and Development v. Wiedeman, 511 U.S. 1127

(1994), the Louisiana State Supreme Court noted, that

despite the State’s substantial interest in the application

of its discovery and evidentiary rules:

“§ 409’s explicit preemptive language overrides

conflicting state law by virtue of the Supremacy

Clause. U.S. Const. art. VI, cl. 2; Jones v. Rath

Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305,

1309, 51 L.Ed.2d 604, 613 (1977). Section 409

controls. Beecher v. Keel, 607 So.2d 549

(La.1992). See also Claspill v. Missouri Pacific

Railroad Company, 793 S.W.2d 139, 140 (Mo.

banc 1990).” 627 So.2d at 172.‘

A federal court for Louisiana, Gaubert v. Denton, 1999

WL 350103 (E.D.La. May 28, 1999), affirmed by, 210 F.3d

368 (5th Cir. (La.) Feb. 17, 2000), has also found that § 409

violates neither procedural due process nor the right of

access to the courts.

* The Louisiana State Supreme Court also rejected a constitutional

challenge to § 409 in Reichert v. State, Dept. of Transp. and Develop-

ment, 96-1419, p.7 (La. 5/20/97), 694 So.2d 193, 199, as have Louisiana

state appellate courts. See, i.e., Martinolich v. Southern Pacific Transp.

Co., 532 So.2d 435 (La.App. 1 Cir. 1988), writ denied, 535 So.2d 745 (La.

1989), cert. denied, Louisiona Dept. of Transp. and Development v. Nick

Martinolich, Inc., 490 U.S. 1109 (1989), and Palacios v. Louisiana and

Delta R.R., Inc., 2000-00971 (La.App. 3 Cir. 12/29/00), 775 So.2d 698,

writ denied, 2001-0565 (La. 5/4/01), 791 So.2d 653.

In rejecting the challenges to § 409 under the First,

Fifth, Tenth, and Fourteenth Amendments to the United

States Constitution, the Gaubert court commented that

“every court that has considered the privilege, both federal

and state, has concluded that it serves the legitimate

purpose of fostering the collection and evaluation of

highway safety information free from the threat of future

tort actions.”

That court, in applying the holding of Tennessee

Electric Power Co. v. Tennessee Valley Authority, 306 U.S.

118 (1939), to the facts at hand, further found that the

plaintiff lacked standing to bring his Tenth Amendment

challenge.

2. A state’s public record law is preempted by

§ 409

The Washington State Supreme Court also held, that

as to the requested accident reports, history and associ-

ated data, prohibiting discovery under § 409 was in con-

travention of that state’s Public Disclosure Act.

In Ex parte Alabama Dept. of Transp., 757 So.2d 371

(Ala. Dec. 17, 1999), the Alabama Supreme Court faced a

similar situation. After finding that § 409 preempted state

discovery statutes, that court further found that the

statute also preempted that state’s public document laws

as to the rights of citizens to inspect and copy public

* Gaubert v. Denton, supra at p.9.

In so holding, that court noted:

“[U)nder the facts of this case, the application of

§ 36-12-40 [the Alabama public inspection law]

would make it impossible for ALDOT to comply

with § 409, as amended in 1995, and with the

expressed intent of Congress with regard to the

amended § 409. See California v. Federal Energy

Regulatory Comm’n, 495 U.S. 490, 110 S.Ct.

2024, 109 L.Ed.2d 474 (1990). Thus, where § 36-

12-40 ‘stands as an obstacle to the accomplish-

ment of the full purposes and objectives of Con-

gress’ (id., at 506, 110 S.Ct. 2024), that section is

preempted by the federal law. See, also, CSX

Transp., Inc. v. Easterwood, 507 U.S. 658, 113

ne 1732, 123 L.Ed.2d 387 (1993).” 757 So.2d at

A Tennessee state appellate court also rejected a

Tenth Amendment challenge to the supremacy of § 409

and found that § 409 did constitutionally bar the discovery

of a location’s accident history despite that state’s Public

Records Act. See Seaton v. Johnson, 898 S.W.2d 232, 236

(Tenn.Ct.App. Jan. 27, 1995), appeal denied, (May 01,

* It is also noted that in Ex parte Alabama Dept. of Transp., supra

the Alabama Supreme Court added in dicta that: aati

“{Tyhe information sought by Hitchcock — reports of acci-

dents occurring at the site of Hitchcock's accident — is under

the custody and control of the Alabama Department of Pub-

lic Safety. Hitchcock is not without a source for the informa-

San Se Gaeee Se euueaan & eueey to Co cil to geament

with any legal action to recover for his injuries.”

757 So.2d at 374. — —

For the reasons expressed herein, it is submitted that this gratuitous

comment on an issue not before that court was erroneous.

1995): “It would be an anomaly for this Court to deny

access to the State’s copy of its report to the federal gov-

ernment only to require the State to compile from its

records a report to plaintiff identical with that furnished

to the federal government.”

The present situation is analogous to one faced by this

Honorable Court before.

In United States v. Weber Aircraft Corporation, 465

U.S. 792 (1984), this Court held that an investigative

report conducted pursuant to Air Force regulations provid-

ing that such safety investigations were not to be used for

any purpose other than accident prevention was exempt

from discovery in a civil suit as an exception under the

Freedom of Information Act.’ This Court also stated that

to allow the obtaining through the FOIA of material that

was normally privileged would create an “anomaly” in that

the FOIA could then be used to supplement civil discovery,

a construction of the FOIA that the Court had consistently

. a

rejected.

Nothing in § 409 takes public information about

accidents and converts it to private, secret information.

The analysis can be, and often is, publicized widely.

However, this analysis, and the material gathered to

formulate that analysis, just cannot then be subject to

discovery within the context of this suit for damages or

otherwise used in a courtroom to obtain a money judgment

*" 5 U.S.C. § 552.

* United States v. Weber Aircraft Corporation, 465 U.S. at 801.

for damages, whether against a state, municipal govern-

ment, or private entity.

8. The accident reports sought by the plaintiffs

are the type of document protected from dis-

covery or other use contemplated by § 409.

To comply with the planning and evaluation require-

ments of § 152 to provide a “process for analyzing avail-

able data to identify highway locations, sections and

elements determined to be hazardous on the basis of

accident experience or accident potential” and a “process

for determining the effect that highway safety improve-

ment projects have in reducing the number and severity of

accidents and potential accidents,”” states such as Wash-

ington (and Louisiana) use an accident report form.

This report form is actually a data collection form

with over 110 separate data fields that are entered by an

investigator. As noted by Pierce County, these reports are

completed not by highway department employees, but by

investigating state, county, or municipal police officers.

The original reports themselves are maintained by those

entities.

In Louisiana, copies of these reports are forwarded on

a periodic basis to the Louisiana Highway Safety Commis-

sion which in turn forwards the reports to the Hazard

Elimination Program Section of the Department of Trans-

portation and Development for “spotting.” Spotting is a

* See 23 C.F.R. § 924.9% aX2), supra.

” See 23 C.F.R. § 924.13(aX2), supra.

process by which DOTD employees place information on

the report to identify that report with a specific section of

highway. The reports are then returned to the safety

commission which, using 23 U.S.C. § 402 funding, enters

the collected data into a computer program. The copies of

the reports are usually discarded after completion of the

entry process by the safety commission.”

After entry, the completed program is then made

available to the DOTD and other highway and traffic

agencies in the state, including parish and municipal

highway engineering sections, for use in identifying areas

of safety concerns (whether they be in highway design or

maintenance or motorists behavior) and, when combined

with highway descriptive criteria maintained by the

highway departments in separate databases, in obtaining

and justifying appropriate funding. Because of the high

matching nature of federal-aid funding (approximately 75-

90% in most cases), federal funds for any highway safety

improvement are almost always sought under either § 152

or one of the other over 70 federal-aid programs. Every

state, including Washington, follows a similar process,

using similar forms, and making application for federal

funds under the same federal-aid programs.

The beneficial use of such accident reporting forms in

identifying highway safety concerns is recognized by the

Federal Highway Administration and required through its

- In Louisiana, the larger metropolitan areas have the capacity to

directly enter the data fields into a local computer program and then

forward the program to the safety commission on a periodic basis.

Model Minimum Uniform Crash Criteria (MMUCC)”

program:

“MMUCC includes 75 minimum data elements

that need to be collected by police at the crash

scene and an additional 38 data elements that

can be derived (11 data elements) from those that

are collected at the scene or obtained by linking

(27 data elements) to other data files, e.g., road-

way data, injury data, etc. The total 113 data

elements represent a ‘model’ data set which can

be expanded as necessary to meet a state’s spe-

cific needs.”

The criteria for the MMUCC is that criteria for the

completion of the accident report by the investigating

officer.‘ This completed accident report is the sole source

“ The Transportation Equity Act for the 21st Century, Public Law

105-178, provided an additional and supplemental program, 23 U.S.C.

§ 411, to encourage states to follow uniform guidelines in collecting

crash information as required under 23 U.S.C. § 402 for the implemen-

tation of the numerous federal-aid highway safety improvement

programs (i.e., § 152). These guidelines are found at 23 C.F.R. § 1335.1

et seq. The Model Minimum Uniform Crash Criteria (MMUCC), found

in part at Appendix B, is provided for by 23 C.F.R. § 1335.3(e). See,

also, Federa’ Register, August 10, 2000 (Volume 65, Number 155),

pages 48905-48911.

* See App. 7, MMUCC, August 1998, Executive Summary. See

also, App. 12, MMUCC, Introduction:

“Data recorded on crash reports are computerized into a

central, electronic crash data file at the state level. These

statewide motor vehicle crash databases provide the basic

information necessary for developing effective highway and

traffic safety programs. Data from state crash data systems

are used by local, state and federal agencies to: identify and

prioritize highway and traffic safety problem areas.”

“ See App. 18, MMUCC, List of Model Minimum Uniform Crash

Criteria.

of the information necessary for planning, evaluating, and

prioritizing highway safety improvements and justifying

the applicability of federal-aid funds.

The guidelines for the MMUCC specifically note that:

“Statewide motor vehicle traffic crash data sys-

tems provide the basic information necessary for

effective highway and traffic safety efforts at any

level of government — local, state or federal.

State crash data are used to perform problem

identification, establish goals and performance

measures, determine progress of specific pro-

grams, and support the development and evalua-

tion of highway and vehicle safety counter-

measures.”

It should also be noted that the State of Washington’s

Traffic Safety Commission was involved in the develop-

ment of the MMUCC guidelines.”

4. The accident report sought by the plaintiffs

in this suit for damages is protected from dis-

covery or other use, regardless of whether it

was prepared exclusively for safety im-

provements or whether it is available for

other uses in non-tort proceedings and re-

gardless of whether it was prepared by high-

way officials or is in their custody.

There is no limiting requirement in § 409 that the

information obtained by the investigating officer in com-

pleting the accident report be solely available for use by

* See App. 7, MMUCC, August 1998, Executive Summary.

* See App. 9, MMUCC, Acknowledgments.

highway officials. Nor is there any requirement that the

report be compiled by highway officials. And there is no

requirement that the report sought be exclusively in the

custody of highway officials and not in the custody of

third-parties such as local or state police.

a. The rules of statutory construction

To allow the Washington Supreme Court to create

such requirements, and such requirements would need to

be created as they do not exist in the language of § 409,

would be to create an “anomaly” and a failure to follow the

established rules of statutory interpretation.

This Honorable Court has consistently noted that in

any case of statutory construction, the Court’s analysis

begins with an examination of the language of the statute.

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999),

citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 475 (1992); Carter v. U.S., 530 U.S. 255, 271 (2000).

And where the statute’s language provides a clear answer,

the analysis ends there as well. Hughes Aircraft Co. v.

Jacobson, 525 U.S. at 438, citing Connecticut Nat. Bank v.

Germain, 503 U.S. 249, 254.

In statutory interpretation, it is understood that

Congress says in a statute what it means and means in a

statute what it says there. Hartford Underwriters Insur-

ance Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6

(2000), citing Connecticut National Bank v. Germain,

supra at 254. As a corollary, courts cannot create require-

ments in the statute that are not expressed and specifi-

cally should not create requirements that would

contravene the clear expression of congressional intent.

Congress clearly expressed its intent in § 409 that the

material collected and compiled in the furtherance of

improving highway safety was not subject to use in a civil

suit for damages. As this Honorable Court has noted,

when Congress has intended materials and reports not to

be subject to compulsory process, it has said so. See, ie.,

St. Regis Paper Co. v. U. S., 368 U.S. 208, 219 (1961).

b. Accident reports need not be created

solely for federal reporting requirements

to fall within § 409

Accident reports do not fall outside the scope of § 409

merely because they are not compiled solely for federal

reporting purposes and are available for other uses.

An argument that the records of previous accidents

were not protected by § 409 because accident reports had

been collected by the state for many years prior to the

adoption by Congress of § 409 and were available for other

uses was eloquently rejected by the court in Coniker v.

State of New York, 695 N.Y.S.2d 492 (N.Y.Ct.Cl. 7/26/99).

That court noted that nothing in the language of § 409

supports the contention that it was only intended to apply

in those states that were not enlightened enough to adopt

such a program of data collection without the federal

carrot-and-stick:

“(Ijndeed its [§ 409] purpose — to encourage

states to fully and honestly compile and analyze

accident data without fear that either its conclu-

sions or its work product would be used against

it in subsequent litigation — is equally fostered

regardless of whether a particular state decided

to initiate such a program before or after the

Federal government became involved.” 695

N.Y.S.2d at 496.

Numerous other cases support this position. See, i.e.,

Lusby v. Union Pacific R. Co., 4 F.3d 639, 641 (8th Cir.

1993); Robertson v. Union Pacific R. Co., 954 F.2d 1433

(8th Cir. 1992); Powers v. CSX Transp., Inc., 177

F.Supp.2d 1276 (S.D. Ala. 2001);” Taylor v. St. Louis

Southwestern Ry. Co., 746 F.Supp. 50 (D. Kan. 1990);” and

Mackie v. Grand Trunk Western Railroad Co., 544 N.W.2d

709, 711 (Mich.App. 1995).”

This Honorable Court has faced similar situations in

the past and has not based its decisions upon who pre-

pared a specific document or in whose custody the docu-

ment resided.

” “Contrary to Lusby's assertion, state materials do not fall outside

the scope of § 409 merely because they are not compiled solely for

federal reporting purposes and are available for other uses.” Lusby v.

Union Pacific R. Co., supra at 641.

* “FN3. Appellants’ assertion that the formula and automobile

count were admissible because such information was not collected or

utilized solely for federal funding projects is without merit. Although

such information was available for other uses and purposes, the

statute’s mandatory language requires exclusion of such evidence at

trial. 23 U.S.C. § 409.” Robertson v. Union Pacific R. Co., supra at 1435.

* “The Court agrees with those authorities holding that Section

409 does not require that the sole purpose for compilation or collection

—— specified in the statute.” Powers v. CSX Transp., Inc., supra at

* “Given the clear mandate of Section 409, the court finds that any

‘reports, surveys, schedules, lists or data’. .. whether obtained from the

Kansas Department of Transportation (KDOT”), the Kansas Corpora-

tion Commission (‘KCC’), Jefferson County or Union Pacific, are

inadmissible.” Taylor v. St. Louis Southwestern Ry. Co., supra at 54.

* “To promote these goals, a document that otherwise falls within

the ambit of § 409 must be considered inadmissible even though it

fulfills a state as well as a federal function.” Mackie v. Grand Trunk

Western Railroad Co., supra at 711.

In John Doe Agency v. John Doe Corp., 493 U.S. 146,

(1989), a contractor argued that the FOIA exemption/

privilege interposed by a governmental agency was not

applicable as not that agency but another had prepared or

compiled the documents sought. The contractor also

argued that the exemption/privilege did not apply as the

documents were not originally prepared for the purpose

stated in the exemption.

This Honorable Court rejected both arguments:

“As is customary, we look initially at the lan-

guage of the statute itself. The wording of the

phrase under scrutiny is simple and direct: ‘com-

piled for law enforcement purposes.’ The plain

words contain no requirement that compilation

be effected at a specific time. The objects sought

merely must have been ‘compiled’ when the Gov-

ernment invokes the Exemption. A compilation,

in its ordinary meaning, is something composed

of materials collected and assembled from vari-

ous sources or other documents. See Webster's

Third New International Dictionary 464 (1961);

Webster’s Ninth New Collegiate Dictionary 268

(1983). This definition seems readily to cover

documents already collected by the Government

originally for non-law-enforcement purposes. See

Gould Inc. v. General Services Administration,

688 F.Supp. 689, 698 (DC 1988).

“The Court of Appeals, however, throughout its

opinion would have the word ‘compiled’ mean

‘originally compiled.’ See 850 F.2d, at 109. [Foot-

note omitted] We disagree with that interpreta-

tion for, in our view, the plain meaning of the

word ‘compile,’ or, for that matter, of its adjecti-

val form ‘compiled,’ does not permit such refine-

ment. This Court itself has used the word

‘compile’ naturally to refer even to the process of

gathering at one time records and information

that were generated on an earlier occasion and

for a different purpose. See FBI v. Abramson, 456

U.S., at 622, n. 5, 102 S.Ct., at 2060, n. 5; Re-

porters Committee, supra.” 493 U.S. at 153-154.

As such, it does not logically follow that if the reports

themselves may have been prepared by others and avail-

able for other uses that the question of their protection

from discovery and use by § 409 would then be dependent

upon their custodian. To hold otherwise is to place a

restrictive condition upon § 409 that does not exist in the

statute and impedes giving the statute its full meaning.

This restrictive condition would result in § 409 being

construed in a nonfunctional way.”

5. The federal statute (§ 409) is but one of sev-

eral federal statutes that impose exact or

similar discovery and evidentiary restric-

tions in suits in tort, and if the decision of the

Washington State Supreme Court is allowed

to stand, the validity of those statutes would

become at issue, attacking the legitimacy of

Congress to determine terms to effectuate the

implementation of its programs

The provision of § 409 that the “reports, surveys,

schedules, lists, or data compiled or collected” pursuant to

a highway safety improvement program “shall not be

* John Doe Agency v. John Doe Corp., supra at 157: “The statutory

provision that records or information must be ‘compiled for law

enforcement purposes’ is not to be construed in a nonfunctional way.”

subject to discovery or admitted into evidence in a Federal

or State court proceeding or considered for other purposes

in any action for damages” is not unique. Several other

federal statutes or regulations contain similar restrictions

on either the discovery or evidentiary use of such material

or reports compiled or collected pursuant to federal re-

quirements.”

This Honorable Court has held such a restrictive

statute to be constitutional. See Baldrige v. Shapiro, 455

U.S. 345 (1982), upholding 13 U.S.C. § 9a) which pro-

vides: “Copies of census reports which have been so re-

tained shall be immune from legal process, and shall not,

without the consent of the individual or establishment

concerned, be admitted as evidence or used for any pur-

pose in any action, suit, or other judicial or administrative

proceeding.”

Of specific import is a similar discovery and evi-

dentiary restriction established by 23 U.S.C. § 402, the

* See, ie., 13 U.S.C. § Xa) (census reports); 10 U.S.C. § 1102(b)

and 14 U.S.C. § 645(b) (medical quality assurance records created by or

for the Department of Defense); 21 U.S.C. § 360i(bX3) (medical device

user facility reports); 15 U.S.C. § 2055 (consumer product safety

reports); 20 U.S.C. § 9007(b\1) (national educational statistical

reports); 33 U.S.C. § 930(c) (injury reports for longshore and harbor

workers’ compensation); 49 U.S.C. § 504(f) (motor carrier accident

oports); 49 U.S.C. § 1154(aX(5\b) (discovery and use of cockpit and

surface vehicle recordings and transcripts); 49 U.S.C. § 1154(b) (“[njo

part of a report of the [National Transportation Safety) Board, related

to an accident or an investigation of an accident, may be admitted into

evidence or used in a civil action for damages resulting from a matter

mentioned in the report.”); 49 U.S.C. § 20703(c) (locomotive accident

reports); 49 U.S.C. § 20903 (railroad carrier accident and incident

reports); and 49 U.S.C. § 47507 (nonadmissibility of noise exposure map

and related information as evidence).

implementing statute for Congress’ highway safety pro-

grams. This statute requires that each state “shall have a

highway safety program approved by the Secretary,

designed to reduce traffic accidents and deaths.”

Further, § 402 provides that state programs:

“... Shall ioc but not be limited to, provi-

sions for an effe...ze record system of accidents

(including injuries ani deaths resulting there-

from), accident investigations to determine the

probable causes of accidents, injuries, and

deaths, .. . highway design and maintenance (in-

cluding lighting, markings, and surface treat-

ment), traffic control, ... surveillance of traffic

for detection and correction of high or potentially

high accident locations . . . ” (emphasis supplied)

Again, as part of the trade-off for being required to

collect and compile such information as part of the federal

program to improve highway safety, a provision restricting

the discovery and use of that information identical to § 409

is provided by § 402(k\1):

“Notwithstanding any other provision of law, if a

report, list, schedule, or survey is prepared by or

for a State or political subdivision thereof under

this subsection, such report, list, schedule, or

survey shall not be admitted as evidence or used

in any suit or action for damages arising out of

any matter mentioned in such report, list, sched-

ule, or survey.” (emphasis supplied)

This statute has not been the subject of much litiga-

tion but was found to be constitutional by the federal

Eastern District of Louisiana court in Gaubert v. Denton,

supra.

As noted earlier, when Congress has intended materi-

als and reports not to be subject to compulsory process, it

has said so. St. Regis Paper Co. v. U. S., supra at 219.

Congress has said so about the material sought to be

discovered by the plaintiffs in this tort suit. As with the

similar statutes, this explicit expression of Congress’

intent should be enforced by this Honorable Court by revers-

ing the decision of the Washington State Supreme Court.

CONCLUSION

The decision of the Washington State Supreme Court

holding § 409 unconstitutional and allowing the discovery

of the reports of previous accidents at this accident site

should be reversed so as to give § 409 the full measure of

congressional intent protecting such reports, to prevent a

disparate interpretation of similar federal statutes, and to

provide clear guidance on this important federal question.

Respectfully Submitted,

RICHARD P. IEYOUNG

Attorney General

JOHN C. YOUNG*

JAMES R. DAWSON

Assistant Attorneys General

626 N. 4th Street, Fifth Floor

Baton Rouge, Louisiana 70804-9095

(225) 342-8717

and

LAWRENCE A. DURANT

General Counsel, State of

Louisiana, Department of

Transportation and Development

P. O. Box 94245 -

1201 Capitol Access Road

Baton Rouge, Louisiana 70804-9245

(225) 379-1207

*Counsel of Record for Amicus Curiae

APPENDIX A

The Proposed Amendment to Highway Safety Legis-

lation, U.S. Department of Transportation, Federal

Highway Administration, May 4, 1983, Memorandum

of Marshall Jacks, Jr.

App. 1

Memorandum

' [LOGO]

- US Department

' of Transportation

Federal Highway

Administration

Date May 4, 1983

) Reply to

' Attn of: HSA-1.1

Subject:

Proposed Amendment to Highway Safety Legislation

From:

Associate Administrator for Safety, Traffic Engineer-

ing, and Motor Carriers

To:

HCC-1

Mr. D. L. Ivers

Chief Counsel

For the past several years, we have attempted to in-

clude in the department’s legislative program a provi-

sion to protect from disclosure information compiled

by States to identify and prioritize roadway hazards.

It has been consistently brought to our attention that

highway departments are reluctant to undertake such

efforts (as required in 23 USC 152 for instance) for fear

that acknowledging the existence of hazardous condi-

tions would expose them to liability. The issue has once

App. 2 -

more been raised, this time by the American Associa-

tion of Railroads, in connection with requirements

placed on them by States in identifying hazardous

rail-highway crossings pursuant to Sec. 203(a) of the

Highway Safety Act of 1973.

It is noted that our suggestion was included in DOT’s

Legislative Program for the 97th Congress, 2nd ses-

sion, in the second category. We also note that high-

way safety legislation is being introduced in this

legislative session. In the event such safety legislation

receives serious consideration, it is recommended that

an amendment be included to protect information

compiled for purposes of safety enhancement. The fol-

lowing language is suggested:

“Notwithstanding any other provision of law, no

report, list, schedule or survey compiled by or for

a State for the purposes of complying with any

requirement of Title 23, United States Code, or

the Highway Safety act of 1973 concerning the

evaluation of hazardous roadway conditions or

rail-highway crossings in order to plan and pri-

oritize projects to enhance safety, shall be re-

quired to be made available under 5 USC 552

(Freedom of Information Act), or admitted to evi-

dence or used for any other purpose in any suit or

action for damages arising out of any matter men-

tioned in such report, list, schedule or survey.”

It is the intent of this provision to prevent the unau-

thorized disclosure of information that States compile

in good faith to meet the purposes of Federal-aid

highway programs to eliminate or reduce hazardous

roadway conditions. (e.g. 23 USC 152 and Sec. 203 of

the Highway Safety Act of 1973). It is also the intent to

protect information that may be compiled by railroads

or utility companies for States in identifying hazards

in connection with these programs. Precedent for such

App. 3

protection is found in sec. 220(f) of the Interstate

Commerce Act (49 USC 320(f), recodified as 49 USC

504(f).

We will be pleased to provide any additional assis-

tance that may be necessary to implement this rec-

ommendation.

MARSHALL JACKS, JR.

Marshall Jacks, Jr.

Fret,

APPENDIX B

Excerpts from Final Model Minimum Uniform Crash

Criteria (MMUCC), U.S. Department of Transporta-

tion, National Highway Traffic Safety Administra-

tion, Federal Highway Administration, August 1998.

' The entire document (127 pages) can be found at

: http://www/nhtsa.dot.gov/people/ncsa/Codes/MinData/

MMUCCaugust98. pdf.

App. 4

[LOGO]

U.S. Department of Transportation

National Highway

Traffic Safety

Administration

Federal Highway Administration

[LOGO]

FINAL

Model

Minimum Uniform

Crash Criteria

(MMUCC)

August 1998

App. 5

TABLE OF CONTENTS

ESE 1

Ec 3

crite aratceesanccteconnanonnonsers 4

EEE 4

EEE SEL 4

Benefits of MMUCC to the Highway Safety

EE EET Le 6

MMUCC Development Process................cccccccceeeeeeees 7

Development Criteria for MMUCC Data Elements... 10

Deciding Which Data Elements to Collect...... 10

I cesenens 1]

EEE 11

Which Crashes Should Be Reported? ....... 11

Types of Reporting Thresholds................. 11

Recommended Minimum Reporting Thresh-

ices SAAeeideenNneeERenneeuneerontentbecesees 12

Data Linkage to Other Data Sources to

Minimize Data Collection ................ccccccceee00s 12

Example of a Data Linkage System ......... 12

Benefits of Linkage .................ccccccceseeeeeees 13

Voluntary Implementation of MMUCC........... 14

Potential Barriers and Their Solutions at

ic circa 14

Analysis of Current Use of MMUCC Data

EEE 16

Organization of MMUCC...............cccccceccceeeeeees 17

List of Minimum Uniform Crash Criteria....... 18

> SeeT

—_—— ry

App. 6

Crash Data Elements Collected at the

PRRIIID.. ccccocaccsenescsennscsesneqetasncsseensenenemesenentns 21

Vehicle Data Elements Collected at the

RII... .ccosccsnssesesnenesecnsensenseossemensaneseneetns 29

Person Data Elements Collected at the

IN... ssssanadnensenenendasnsunniatnusdanesatenseeennant 41

Crash Derived Data Elements ................. 53

Vehicle Linked Data Element .................. 57

Vehicle Derived Data Elements................ 57

Person Linked Data Elements ................. 61

Roadway Linked Data Elements.............. 63

EOD —occccccncscsnsncssessnssnsneneoescsossnsnssssnsonessenseesens 72

LIST OF APPENDICESG.............ccsssscccssseseeereesseeeeesers 102

Appendix A: State and Province Codes........... 102

Appendix B: Dates and Times .................0:+++++ 105

Appendix C: Names .............:ccccccceeeeeeeeeeeeeeeeees 106

Appendix D: Addresses...............::ccsseseeeeeeeeees 108

Appendix E: Vehicle Damage Areas................ 110

Appendix F: Violation and Conviction Codes.. 111

Appendix G: Data Elements Useful for Data

LAM AGO...0.00ccscccccccccescccccesscorccccsessssooecssessssoosese 118

Appendix H: Diagram of Trafficway ............... 120

Appendix I: Definitions for Truck Configura-

tions and Placards ..............cccceccccrcccreceeseeeeeess 121

Appendix J: Diagram of Work Zone Area........ 122

* - -

App. 7

Executive Summary

Statewide motor vehicle traffic crash data systems provide

the basic information necessary for effective highway and

traffic safety efforts at any level of government — local,

state or federal. State crash data are used to perform

problem identification, establish goals and performance

measures, determine progress of specific programs, and

support the development and evaluation of highway and

vehicle safety countermeasures.

Unfortunately, the use of state crash data is often hin-

dered by the lack of uniformity between and within states.

While standards exist for collection of crash data, their use

and application is inconsistent. For example, states do not

collect the same information on their crash reporting

forms, crash and data element definitions may differ,

similar data elements may have different meanings,

and/or others may have the same meanings but different

values. Inconsistent data within a state, or between

multiple states, can result in incorrect interpretations,

thus limiting the usefulness of the information.

Many states have recently revised their crash data report-

ing form, and others are now in the process of doing so.

Several states, during their revision process, have con-

tacted National Highway Traffic Safety Administration

(NHTSA) or Federal Highway Administration (FHWA)

seeking guidance. At national meetings, there have been

informal] requests for national guidelines for states to use

when revising crash forms or working with software

vendors. The Intermodal Surface Transportation Effi-

ciency Act (ISTEA) of 1991 required DOT to “ensure

national uniform data” and to “establish minimum crite-

ria” for reporting of highway deaths and injuries. Renewal

of this legislation as the 1998 Transportation Equity Act

for the Twenty First Century (TEA21) provides incentives

App. 8

for states developing plans that include implementation of

model data elements approved by the Secretary of Trans-

portation. |

NHTSA and FHWA are cooperating with the National

Association of Governors’ Highway Safety Representatives

(NAGHSR) to develop model minimum uniform crash

criteria (MMUCC). Development of MMUCC has been

structured to obtain maximum input from all sectors of the

highway safety community. Over a 20 month period, a

straw model was proposed and then revised according to

feedback received at meetings, via the Web, email, phone,

MMUCC includes 75 minimum data elements that need to

be collected by police at the crash scene and an additional

38 data elements that can be derived (11 data elements)

from those that are collected at the scene or obtained by

linking (27 data elements) to other data files, e.g., roadway

data, injury data, etc. The total 113 data elements repre-

sent a “model” data set which can be expanded as neces-

sary to meet a state’s specific needs.

A study of the feasibility of implementing MMUCC evalu-

ated the data elements collected by the 17 states providing

crash data to NHTSA for its State Data System. These

seventeen states are currently collecting about 60% of the

75 MMUCC data elements needing to be collected by

police at the scene. And on average, they collect an addi-

tional 28 data elements not included in MMUCC.

Implementation of MMUCC will facilitate improved crash

data for highway and traffic safety injury control and

public health purposes at the local, state, and federal

levels.

* - *

App. 9

Acknowledgments

The development of the Model Minimum Uniform Crash

Criteria (MMUCC) is being sponsored by the National

Association of Governors’ Highway Safety Representatives,

the National Highway Traffic Safety Administration, and the

Federal Highway Administration. Numerous state and local

agencies and organizations have contributed staff to its

development. The participation of the following individu-

als is recognized.

Frank Carlile Florida Department of Trans-

portation

David Dickens Charleston West Virginia

Police

Doug Donscheski Nebraska State Patrol

Scott Falb Iowa Department of Trans-

portation

Rosa Gill North Carolina State Division

of Motor Vehicles

Dick Harmon Iowa Bureau of Emergency

; Medical Services

Don Hillis Missouri Department . of

Transportation

David Kleppe North Dakota State Highway

Patrol

David Lawrence California Center for Child-

hood Injury Prevention

Lance Mathess Ohio State Patrol

Creighton Miller South Dakota Office of Acci-

dent Records

Virginia Department of Motor

Vehicles

Washington Traffic Safety

Commission

Maryland State Highway Ad-

ministration

David Mosley

Phil Salzberg

Manu Shah

a+ Powe

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en -

— <r | ee -

App. 10

James Templeton Texas Department of Public

Robert Thompson

John Watson

Ralph Craft

Dennis Flemons

Carl Hayden

Mike Griffith

Janet Johnson

Sandy Johnson

Janet Kumer

Tina Morgan

Ed Milton

Jack Oates

Barbara Rhea

Jackie Schraf

David Sleet

Carol Tan Esse

Dennis Utter

Safety

Iowa Governor’s Traffic Safety

Bureau

New York State Department

of Transportation

Federal Highway Administra-

tion