An Overview of 23 USC 409 Dan Magri, P.E. Louisiana Department of Transportation and Development 30th International Traffic Records Forum – Nashville, TN

Is Traffic Records Data Protected? The Question??? Is Traffic Records Data Protected?

Please choose the correct answer. Yes No Maybe so I don’t know All of the above

The Answer! Depends on who you ask Plaintiffs – believe that data collected for highway improvements should be available Defendants – believe that data collected for highway improvements is protected

Highway Safety Responsibilities States have numerous responsibilities for highway safety Imposed by statute and in the Code of Federal Regulations Federal Aid Highway Act, 23 U.S.C. 101 Imposes an obligation on the states to create and maintain Highway Safety Improvement Programs (HSIP)

23 U.S.C. 152 Each state shall conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations, sections, and elements, including roadside obstacles and unmarked or poorly marked roads, which may constitute a danger to motorists and pedestrians, assign priorities for the correction of such locations, sections, elements, and establish and implement a schedule of projects for their improvement.

Highway Safety Improvement Program In order for the highway safety improvement program to operate, a state must properly identify, evaluate, plan, and implement projects in order to enhance the safety of potential accident sites in a deliberate fashion.

The Problem We are required to collect data in order to select highway improvements Crash Data Geometric Data Roadway Characteristic Data High Crash Location List Needs List Traffic Safety Studies Complaint Letters

Key Point Highway Departments must know that they can perform these task honestly and without fear of litigation.

The Solution! 23 USC 409

23 USC 409 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 this title or for the purpose of developing any highway safety construction improvements 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, Sec.323, 109 Stat. 591.)

What did Congress do? Prohibited the introduction of the history of state and federal highway improvement projects into evidence in private litigation concerning accidents occurring at these sites Prohibited the introduction of such matters in private litigation These matters include studies, reports, petitions, traffic counts, correspondence, political demands and accident records which have been “complied or collected”

Why did Congress do it? Congress weighed the competing policy considerations and concluded that the greater public good is accomplished by prohibiting the introduction of such matters in private litigation Every roadway in the country has some “history” and it should not be the function of the judge or jury to second guess the decision to upgrade that roadway (conversely, not to upgrade) and the means which it is, or is not, accomplished

Intent of Congress Foster the free flow of safety-related information by precluding the possibility that such information later would be admissible in civil suits

What is Protected? All data “collected or complied” for the purpose of planning any safety enhancement of potential accident sites pursuant to sections 130, 144, and 152 or For the purpose of developing any highway safety improvement project which may be implemented utilizing Federal-aid highway funds

How is it Protected? Shall not be subject to discovery Admitted into evidence in a Federal or State court Or considered for other purposes

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