Richard Boltuck did not plan to spend most of his waking hours fighting with public officials. He just wanted the state to install a left-turn traffic light at an accident-prone intersection near his home in Bethesda, Maryland.
This request would drag on for more than eight years, and place Boltuck, an economist, squarely in the center of a national debate over just how transparent state and local governments should be when members of the public request information about dangerous roads, bridges and intersections.
His efforts took on new urgency earlier this year, when three members of a family – en route to a high school play – died in a horrific accident at the very intersection that was the target of Boltuck’s complaints.
As the father, Michael Buarque de Macedo, attempted a left turn on the four-lane state road, his Chevy Volt was hit broadside by a BMW driven by Ogulcan Atakoglu, 20, who police said had been speeding at 115 miles per hour, 70 miles per hour above the speed limit.
Buarque de Macedo, 52; his wife, Alessandra, 53; and their 18-year-old son, Thomas, were killed in the February crash; daughter Helena, who was 15 at the time of the accident, survived with substantial injuries. Atakoglu pleaded guilty to vehicular manslaughter and was sentenced to 12 years in prison, which he is appealing.
“This tragedy,” Boltuck said, “highlights the need for the engineering studies we have been requesting.”
But Boltuck’s efforts to get those studies from the state were delayed for years. He and others in his neighborhood began asking for the information in 2008, as they sought data to challenge the state’s conclusions that no left-turn light was needed. They were stymied by a little-known provision of federal law that gives states wide latitude to keep important engineering studies and other data secret from members of the public.
Often these studies and data form the basis of a ranking system that states use to determine which roads, bridges and intersections merit urgent attention and federal dollars.
Known as Section 409, a term well understood by state transportation officials across the country – but by few others – federal law 23 U.S. 409 has been interpreted by many state governments and state courts to allow their agencies to keep secret studies, surveys and other data about dangerous roads, bridges and intersections if there is even a remote possibility that someone might one day sue the government for failing to make needed redesigns or repairs.
Boltuck bumped up against this barrier when he asked for what he thought were “garden-variety public records” from Maryland’s highway department.
“We wanted to level the playing field so that both we and the State Highway Administration had the same information,” he said.
Instead, his request opened up a legal fight that he ultimately lost. A state administrative law judge said the state was within its rights to withhold certain accident data, analyses and engineering studies, noting that Boltuck might well “widely disseminate” the information, and that they could eventually find their way into the hands of someone who might sue the state for failing to fix the intersection.
But then, state officials – comfortable that they did not have to provide the documents – gave Boltuck some of them anyway. With those documents, he and his neighbors, sitting around his kitchen table and examining piles of documents, found that the state had not included seven of 13 accident reports from 2004 to 2007.
“There were several accidents missing from the reports that the state had compiled to decide not to install a turning light,” he said.
In July, the Maryland General Assembly approved a bill that backers said would make the selection process for road improvements and repairs more transparent, making public a new ranking system for projects. The measure was vetoed by Gov. Larry Hogan, who said it actually would have the opposite effect and would politicize the process. The legislature overrode Hogan’s veto.
But the measure does not address the type of document Boltuck was seeking – the backup documents and data that inform the selections of projects.
Information gap leaves drivers vulnerable
Like Maryland, many states shield this information from public disclosure, making it difficult for individuals, corporations and communities to make informed decisions about state spending, public safety and driving patterns.
“This really restricts the ability to hold governments accountable,” said Keith Kessler, a Seattle lawyer who has handled many accident cases and relies on Washington state’s public records law. Kessler said when he does get access to accident data and other information, he mostly gets it piecemeal and then hires an expert to crunch the data, something community groups or individuals rarely can afford.
In many states, individual accident reports are available to the public, but the cumulative data and the rankings by the state of specific sites are usually not obtainable.
This information gap leaves drivers, school bus dispatchers, truckers, cyclists and pedestrians at a disadvantage, without information that would enable them to avoid dangerous routes. It opens the possibility that the decisions about which site gets fixed and when could be based on favoritism, not objective data.
It also forces the public to rely on third parties – such as insurance companies – that scrape state accident databases for information about individual accidents, and then offer up their own lists of dangerous intersections, roads and bridges.
Without data and access to state studies such as those Boltuck sought, residents who think their community may have been overlooked cannot compare reports to decide whether those third-party sources are accurate and whether states’ decisions are meritorious or misguided.
As with most state open government laws, where you live will determine how much information you can get.
A few states, notably Kansas and New York, have seen state court rulings that make the documents and data available to the public. In a case brought by the newspaper Newsday, New York state’s highest court, the Court of Appeals, found in 2005 that the federal law doesn’t require that dangerous locations lists “shall be confidential” – only that they cannot be used in discovery in lawsuits. And the court noted that “if the information is published, it still cannot be entered into evidence,” a step beyond discovery, or the information exchange that takes place before trial.
“Congress evidently did not think that the possibility that some plaintiffs would indirectly obtain information justified requiring nondisclosure of the documents for all purposes. If it had wanted to achieve that result, it could have said so,” the New York high court said.
That perspective is the exception, not the rule.
Most states keep the information out of public view and away from tenacious residents who might use the information as leverage, to lobby the government to fix the routes.
The U.S. Supreme Court endorsed that position in 2003, in a unanimous opinion written by Justice Clarence Thomas. In Pierce County v. Guillen, the high court concluded that the public interest in getting the roads repaired overcame any efforts by the public to obtain the information a state might collect when it is applying for federal funds.
Along with Washington state, a dozen states had sought that ruling: Alaska, Florida, Hawaii, Illinois, Indiana, Maryland, Nevada, Ohio, Oregon, Pennsylvania, Utah and Vermont, and the Northern Mariana Islands, which signed onto an amicus brief supporting the secrecy statute. Other states have litigated the issue, such as Tennessee, which exempts the information specifically from its public records law. Some states, including Arizona, Massachusetts, Michigan and Pennsylvania, are making some of the data public, but usually note that it cannot be used in a court case, and usually leave it to the individual to analyze it.
The Supreme Court’s decision said that it was ultimately in the public interest to exempt the studies from discovery, because the studies and data collection systems had been devised to encourage candor among public officials.
Congress could reasonably believe, Thomas wrote, that allowing states to collect the information and keep it secret could result in “more candid discussions of hazardous locations, better informed decisionmaking, and, ultimately, greater safety on our Nation’s roads.”
For Michael Gendler, a client of Kessler’s, and also a Seattle lawyer, the fight to get state highway data about a bridge had particular significance.
Gendler became a quadriplegic after a 2007 bike accident on a local bridge. He soon discovered that there had been other similar accidents on the bridge. But he was stymied in the same way that Boltuck was. A state agency insisted that Gendler had to certify that he would not use the records in a lawsuit against the state or other government agency. Gendler refused.
“I … do not want to waive my right as a citizen to have access to these public records to promote my ability to become fully informed about the history of this bridge and about the conduct of the governmental agency or agencies responsible for providing a reasonably safe road,” he wrote.
Gendler said he knew he had to find a work-around, and was fortunate to be able to get the raw data and employ experts, something that is out of reach of most community activists, such as Boltuck.
“Our position was we will use our own experts, we just want the accident record, we don’t want any analysis of it, or records,” he said, recounting his legal battle. “If you are asking for raw data, the states allow you to gather and analyze the raw data.”
But he and Kessler relied heavily on the state’s public records law, he said. And getting records, Gendler noted, depends on how effective those laws are.
“If you have a weak public records act, you might not get the records, notwithstanding the obvious horror of your learning that there was that kind of accident so close in time to what happened without corrective action being done or prioritized,” he said.
Gendler said that his original request was for accident reports at the same location, Seattle Montlake Bridge, that were held by the Washington State Patrol. He had suspected that the bridge was unsafe for cyclists for almost 10 years, following replacement and repairs of the bridge. The police agency refused unless he would certify that he would not use the records in a lawsuit against the state, a suit he actually was getting ready to file.
His refusal to agree was critical to his eventual success in securing an $8 million settlement. The state had maintained that the records were protected under federal law and did not have to be disclosed because they were part of a database, maintained by the state Department of Transportation, that it used to apply for federal funds.
Gendler and Kessler, his lawyer, eventually got the information, but not until the case went all the way to the Washington state Supreme Court. That 2012 ruling found that because the state police had to collect the data anyway, and even though another state agency might use it for the secret dangerous roadways ranking system, the data were still subject to public disclosure under the state public records act.
In Bethesda, there is still no left-turn signal at the intersection of Braeburn Parkway and River Road. However, after public outcry following this year’s fatal accident the state said in August that it planned to install a flashing light that alerts oncoming drivers that someone ahead in the opposite lane is attempting a left turn. State highway spokesman Dave Buck said at the time, that studies did not warrant the left-turn light that Boltuck had sought. Last month, there was another accident at the site involving high school students, injuring two. But by year’s end, there was no flashing light yet installed.
Boltuck says the plan is too little too late. Now he’d prefer to see the left turn prohibited, and the intersection closed.
Even if a flashing warning light is installed, he said, the intersection remains “inherently dangerous.”
Clarification: This story has been updated to reflect the nature of Michael Gendler’s injuries. He is quadriplegic.