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Long v. State6/29/2005
e reluctant to compile information to identify and prioritize roadway hazards for fear that acknowledging the existence of hazardous conditions would expose them to liability."
In 1983, the Secretary recommended legislation to Congress "to prevent the unauthorized 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."
The proposed privilege was intended "to encourage greater accuracy and completeness" in complying with the 1973 Highway Safety Act, and to prevent such compliance "from being used in any judicial proceeding, thereby improving their quality as a basis for programming."
In 1984, Congress added Section (k) to 23 U.S.C. § 402, which conditioned a state's eligibility for highway safety funds under that statute on whether the state either "certifies to the Secretary that it has in operation a computerized traffic safety record keeping system" or "provides . . . a plan . . . for establishing and maintaining a computerized traffic safety record keeping system." Section (k) further provided:
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, schedule, or survey. However, since § 402 only protected raw data such as a "report, list, schedule, or survey . . . prepared by a state," Congress enacted 23 U.S.C. § 409 in 1987. See 23 U.S.C. § 409 (1987). Section 409 extended the same protection of former § 402 to all "reports, surveys, schedules, lists, or data compiled ... for the purpose of ... Sections 130, 144 and 152 of this title 'as well as to' any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds." Id. (emphasis added).
In 1995, Congress amended § 409 to include the words "or collected" after "compiled," as follows:
Notwithstanding any other provision of law, 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, pursuant to sections 130, 144 and 152 of the title or for the purpose of developing any highway safety construction improvement project which may be implemented using Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists or data. (As amended Nov. 28, 1995, P.L. 104-59, Title III, § 323, 109 Stat. 591).
This clarification was added in response to inconsistent application of § 409 in state court decisions that, in the view of Congress, misinterpreted the term "data compiled" to apply only to raw data itself and which failed to look at the purpose for which the data was compiled. Congress' intent in adopting the 1995 amendment to § 409 was articulated as follows:
It is intended that raw data compiled prior to being made part of any formal or bound report shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such data.
Thus, Congress made clear that § 409 res
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