SCOW Summary: Federal Privilege Does Not Apply to Accident Reports

A strange-ish case from our Supreme Court yesterday, holding that accident reports collected by the Washington State Patrol (“WSP”) in cooperation with the State Department of Transportation (“DOT”) are subject to the Public Records Act (“PRA”) despite a potentially applicable federal privilege.

I say the case — Gendler v. Batiste (Wash., April 12, 2012) — is strange-ish because it’s unclear to me why the dispute arose at all. But before we get to that, a quick summary of opinion itself.

Michael Gendler had a serious bicycle accident on the Montlake Bridge. He was not the only one. Apparently, many other bicyclists had been injured on that bridge and Gendler wanted to find out exactly how many. So he made a public records request to the WSP for all police reports on all accidents involving bicycles on the bridge.

The WSP told Gendler that to get the records, he had to fill out a form and submit it to the DOT, which (according to the WSP) kept the responsive records. The request form included the following language:

I hereby affirm that I am not requesting this collision data for use in any current, pending or anticipated litigation against a state, tribal or local government involving a collision at the location(s) mentioned in the data.

This affirmation is supposedly based on a federal statute, 23 U.S.C. § 409, which protects certain state-collected accident-related information from discovery or admissibility at trial when that information is collected for federally mandated purposes. The reasoning behind the statute seems somewhat reasonable: If the federal government is going to mandate that states create and keep accident-related information, which could then subject the state to tort liability, then it may be fair for the feds to protect the states from that information later being used against them. Sort of like a civil liability Fifth Amendment for states. Kind of. Maybe.

But the federal statute is narrow. It only applies to information collected “pursuant to” specific federal statutes or “for the purpose of developing” a project that “may be implemented utilizing Federal-aid highway funds.” You can imagine that things are going to get messy when a statute’s applicability depends on the “purpose” of a state government’s action. Ugh.

Anyway, back to Gendler. He refused to sign the waiver and sued the WSP under the PRA, claiming that he had a right to the records without signing the waiver. Gendler argued that the accident reports were not collected for an applicable federal purpose, but for compliance with a state statute: RCW 46.52.060. As the Court explained, “WSP has a long standing duty to ‘file, tabulate, and analyze all accident reports.’”  (quoting RCW 46.52.060).

The WSP’s argument (and practices) were a bit too cute. They realized that they had to collect this data for state statutory purposes. However, they also knew that DOT needed to collect the data for a federal purpose that satisfied § 409. So here’s what they did: The WSP would create the paper accident reports, scan them into the DOT system, destroy the paper copies, and then claim that the DOT was the entity with possession of the reports. And because the DOT collected the reports for federal purposes, the federal privilege would apply. DOT and WSP hoped that (and argued that) this arrangement shielded the accident reports from PRA disclosure requirements.

The strange thing is, the U.S. Supreme Court kind of endorsed this sort of shell game in Pierce County v. Guillen (U.S., 2003). There, the Court held that if Agency X collects data for a non-federal purpose, and then provides that data to Agency Z for Agency Z’s federal purpose, then the federal statutory privilege protects Agency Z but not Agency X. So if an individual wanted to use the information, he could use it against one agency but not the other.

Well, the Washington Supreme Court wasn’t buying it. The Court held that Gendler was entitled to obtain the data from the WSP because (1) WSP still had access to the data, despite it being “kept” by the DOT, and (2) WSP had a Washington State statutory duty to collect the information, so it was collected for that purpose.

Okay, that’s all well and good, but here is my question: Why are we arguing about this? Section 409 is not an absolute privilege; it only provides that the covered information “shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding.” (emphasis added). Gendler did not ask for the information in a discovery request, nor was he seeking to admit the information into evidence. Instead, he simply refused to promise WSP that he would never do so in the future. But why would WSP need that promise or be entitled to that promise? There is already a statute barring prohibited use of the information! It’s like asking Gendler to sign a waiver stating that he will never admit the documents into evidence unless he can satisfy the business records exception to the hearsay rule. Okay!

And the whole thing seems sort of pointless. For example, suppose that instead of being a Washington litigation blog, Ziff Blog turned its attention to covering Washington traffic accidents!  (No comments, please, on whether that would be more, less, or equally interesting.) Certainly, then, Ziff Blog would be entitled to the accident reports from the DOT or the WSP or whomever, even under the WSP’s proffered reading of the statute. Gendler, clearly an avid reader of Ziff Blog, would know that I had the information, and he could then ask me for it, or subpoena me for it, or whatever. I would give it to him! Then what would WSP do? Well, my guess is that they could move in limine for an order excluding the information from trial, relying on § 409. That seems like how this should have worked itself out. There is no reason to deny a PRA request under § 409 because by its plain terms § 409 does not apply to PRA requests.

Of course, it may seem a bit silly to allow Gendler access to the information under the PRA while denying it to him not under the discovery rules. But it’s not. The discovery rules and the PRA have totally different procedures and protections. There’s no reason both rights of access need to rise and fall together. The tricky part would be how the trial judge would deal with information that Gendler had obtained via the PRA but that was inadmissible pursuant to § 409. That sort of trial management, balancing, and control of evidence, however, is the sort of thing trial judges do all the time. I don’t see why this whole dispute couldn’t have been handled that way, instead of as a big fight about the PRA.



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