UPDATE 8/1/15: The Senate passed the Transportation bill on July 30, after deleting the several proposed exemptions to the Freedom of Information Act. We “were able in this final bill to remove unnecessary and harmful exemptions to the Freedom of Information Act, which remains the public’s first line of defense in the right to know what their government is doing, ” Senator Patrick Leahy (D-VT) said in a statement. “Nowhere is the free flow of information more important than when the safety and wellbeing of every Vermonter – of every American – is at stake.”
FOIA is under attack in the Transportation Bill. We were alerted late last week that the Transportation Bill currently under debate in the Senate exempts information that should be available to the public from the Freedom of Information Act. A hastily assembled coalition sent the letter below to the Senate over the weekend. Patrice McDermott at OpentheGov.org told Dissent NewsWire that Senator McConnell has filed a substitute to the bill which strikes two of the problematic provisions. However, his substitute is still not acceptable, because two of the worst provisions remain.
McConnell substitute strikes these two provisions: Sec. 35436 § 20168(i) concerns accident footage from audio or video cameras in intercity rail and commuter trains. The bill requires that intercity rail and commuter trains install cameras in their cabs. This provision would exempt from disclosure the audio or video from that the Secretary “obtains as part of an accident or incident investigated by the Department of Transportation.” This exemption is unnecessary – such information would already be covered by Exemption 7 (investigation/law enforcement exception), and, if there are privacy implications, these would be covered under Exemption 6. Sec. 35438(3) concerns information related to tank cars used in high hazard flammable train service. The bill requires the Secretary to collect information to implement a new reporting requirement to monitor progress toward modifying tank cars used in high hazard flammable train service. This provision exempts from disclosure data that the secretary collects from shippers and tank owners related to how many tank cars have been modified and what the modifications are, and information related to the facilities doing the modifications. This exemption is also unnecessary – much of this information would already be covered under Exempt 4 (confidential commercial information and trade secrets).
BUT, these two provisions remain, even in McConnell’s substitute: Sec.21015 (a)(4), covering Public Safety Transportation information, exempts records provided to the Secretary of Transportation pursuant to the review or audit of a public transportation agency safety plan, if the information contains information detailing safety risks and information about how these risks would be mitigated. While the specifics of safety risks – such as vulnerabilities in rail systems – and the steps that should be taken to mitigate these risks might merit temporary protection, there is no justifiable reason to keep such information secret permanently. Risk to public safety is exactly the type of information that FOIA is intended to prevent being shielded from the public. Information about what the government knew and what it did about these risks is essential to accountability. Sec. 32003(a) covers the safety scores assigned to motor vehicle/trucking companies and their drivers on the basis of the seven BASIC categories. The safety scores assigned to motor vehicle/trucking companies and their drivers are essential consumer safety information and should not be exempt from FOIA, under any circumstances. As written, the provision blocks both publishing the scores, rankings and alerts on the agency website for public viewing and prohibits the release of records containing the same information through FOIA. The public has a right to know the safety scores of companies hauling often dangerous material through their communities and near their homes and schools, and also the scores of the drivers so the companies hiring them are able to be held accountable for accidents and deaths those drivers cause. Coalition Letter Against FOIA Exemptions in Transportation Bill