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Long v. State6/29/2005
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We find the reasoning of Guillen and our language in Reichert and Palacios particularly instructive to our inquiry in this case, and therefore consider that instruction in our analysis of the letters introduced by the plaintiffs. In particular, we must keep in mind Congress' goal in enacting § 409, i.e. fostering candor and diligence in information gathering. States must be allowed to compile information without hesitation and fear that information collected may be used against them in private litigation.
Letter 1, written by the mayor, advises the DOTD that there had been two (2) accidents at the crossing in the last eight (8) years. Letter 2 advises the mayor that the DOTD planned to signalize the railroad crossing from funds available through a federal safety program and requested a commitment from the mayor as to whether the municipality would agree to maintain both pavement striping and signs. Letter 3 is the mayor's response, agreeing to the terms set forth in Letter 2. The letters evidence the commencement of the process in selecting the roadway/railway crossing for improvement and can be compared to the letter in Guillen which was originally prepared and maintained by the county sheriff. In fact, the letters herein bear a strong resemblance to the letters held inadmissible in Reichert.
In the case sub judice, two of the three letters were originally prepared by the mayor and maintained by his office. In addition, the DOTD's response, while prepared by the DOTD, was likewise maintained by the mayor's office. The fact that two of the letters were not specifically created by the DOTD does not render the letters admissible. Rather, as required by Guillen, we must examine the letters for their content and purpose.
In Letter 1, the mayor stated that he was advised that the DOTD was "in charge of determining whether warning lights or gates are needed at grade crossings...and request an on-site review of the situation by your office." The letter suggests that the mayor was referring to the evaluation process undertaken by the state as required by the federal government. Thus, the initial letter can be construed as a request by the mayor that the process of obtaining federal assistance for a railroad upgrade pursuant to § 130 be initiated.
This conclusion is further supported by the DOTD's reply, Letter 2, which states: the Department plans to signalize the railroad crossing from funds available through a federal safety program. In order to comply with Federal Highway Administration requirements... .
The language of Letter 2 reveals that the DOTD intended to utilize funds pursuant to a federal safety program; however, the mayor had to agree to provide the local commitment required by the federal safety program. The mayor agreed that the local government would provide pavement markings and signs as required, and his commitment to do so is contained in Letter 3.
Hence, we find these three letters represent information necessary for the commencement of the upgrade for this roadway/railroad crossing, and thus, the letters effectuate the purpose of the federal safety program. Taken as a whole, and in the context of the framework of the purpose of § 409, we find the letters were compiled and collected by the DOTD for purposes related to funding through § 130, a federal safety program. Thus, we find the letters are protected from discovery and are inadmissible under 23 U.S.C. § 409.
However, we caution, as we did in Palacios, that all letters in the file of the DOTD are not protected by virtue of being in its possession. Rather the purpose of the document, no matter in whose possession, must relate to purposes as defined in 2
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