Public transit agencies should not have to disclose safety planning records in court, similar to laws for state highway agencies and passenger railroads, says new report

May 30, 2018

WASHINGTON - To enable public transit agencies to engage in more rigorous and effective safety planning, their safety planning records should not be admissible as evidence in civil litigation, says a new report from the National Academies of Sciences, Engineering, and Medicine. State highway agencies and commuter railroads have been granted such "evidentiary protections," and the committee that conducted the study and wrote the report found no compelling reason to advise Congress against current practice by treating transit agencies differently.

While the public transit industry in the U.S. has a generally strong safety record, several high profile incidents in recent years raised concerns over inadequate state and federal oversight and an absence of safety management systems and weak safety cultures within transit agencies. To address this issue, the 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21) ordered the Federal Transit Administration (FTA) to establish and enforce a new comprehensive framework to oversee the safety of the thousands of public transit systems receiving federal aid.

As part of their MAP-21 obligations, the FTA intended to require public transit systems to develop comprehensive safety plans, including risk management plans, reports, and other data. However, transit agencies expressed concern that this information, although collected with the objective of improving public safety, could be used against them as evidence, exposing them to significant financial liabilities. Given this liability risk, they might be less ambitious in their data collection and analysis efforts, thus undermining the safety promoting intent of MAP-21.

"Shielding certain safety planning and management records from use in court would help transit agencies critically analyze and improve the safety of their systems," said committee chair Michael Townes. "In turn, transit agencies should strengthen their public accountability by improving their transparency, making their records freely available to outside safety analysts and the public at large."

Although the committee saw no reason not to extend evidentiary protections to public transit agencies, it recommended that, with the goal of spurring high-quality safety planning and implementation in mind, the admissibility protections be narrowly construed to target the specific concern of liability. The planning records produced by transit agencies in response to the MAP-21 mandate should not be shielded from public disclosure generally, and indeed FTA should encourage such public disclosure.

To further promote transparency, the committee urged that there should be no changes made to reduce the availability of safety planning records under federal and state open records laws, and every effort should be made to ensure that safety plans and data, even when subject to evidentiary protections, be made freely available to the public.

Federal legislation should be enacted, ensuring that an admissibility bar applies to both plaintiffs and defendant transit agencies alike and is not allowed to be waived by transit agencies on a record-by-record or lawsuit-by-lawsuit, the report states. These checks will help ensure that transit agencies do not invoke the bar only in situations where their safety planning is deficient. The committee recommended that in cases where transit agencies want to use their planning records in court to defend themselves, they should be able to do so if their state passes legislation rescinding the bar for all lawsuits and for all transit agencies in the state.

Additionally, the committee believed it necessary for Congress to provide FTA and state safety oversight agencies with the mandate, resources, and sanctioning authority needed to ensure that the high-quality, data-driven safety planning and action programs that Congress envisioned under MAP-21 are carried out by transit agencies.

The report notes that while 6,800 public transit agencies receive federal funds, FTA should concentrate its initial implementation and oversight on the country's largest two dozen or so transit systems, which account for the majority of the country's ridership.
-end-
The study was sponsored by the U.S. Department of Transportation. The National Academies of Sciences, Engineering, and Medicine are private, nonprofit institutions that provide independent, objective analysis and advice to the nation to solve complex problems and inform public policy decisions related to science, technology, and medicine. The National Academies operate under an 1863 congressional charter to the National Academy of Sciences, signed by President Lincoln. For more information, visit http://national-academies.org. A committee roster follows.

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Resources: Download the report at https://www.nap.edu/catalog/25144/admissibility-and-public-availability-of-transit-safety-planning-records

Contacts:
Joshua Blatt, Media Relations Associate
Jennifer Walsh, Director of Media Relations
Office of News and Public Information
202-334-2138; e-mail news@nas.edu
Newsroom

Copies of Admissibility and Public Availability of Transit Safety Planning Records are available from the National Academies Press on the Internet at http://www.nap.edu or by calling 202-334-3313 or 1-800-624-6242. Reporters may obtain a copy from the Office of News and Public Information (contacts listed above).

THE NATIONAL ACADEMIES OF SCIENCES, ENGINEERING, AND MEDICINE

Transportation Research Board
Consensus and Advisory Studies Division

Committee to Review Evidentiary Protection for Public Transportation Safety Program Information

Michael S. Townes (chair)
Former Senior Vice President and National Transit Market Sector Leader
HNTB Corp. (retired)
Hampton, Va.

Edward K. Cheng
Professor of Law
Vanderbilt Law School
Nashville, Tenn.

Thomas B. Deen*
Independent Consultant
Washington, D.C.

Julie S. Hile
Founder and President
Hile Group
Normal, Ill.

Gerald Kelley
Independent Consultant
Boston

John C. Milton
Director of Transportation System Safety, Quality, and Enterprise Risk and State Safety Engineer
Washington State Department of Transportation
Olympia

Alan B. Morrison
Lerner Family Associate Dean for Public Interest and Public Service Law
School of Law
George Washington University
Washington, D.C.

STAFF

Katherine Kortum
Study Director

* Member, National Academy of Engineering

National Academies of Sciences, Engineering, and Medicine

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