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Court Strikes Down Transportation Department Rule Denying Access to Auto Industry ‘Early Warning’ Data

March 31, 2006

Court Strikes Down Transportation Department Rule Denying Access to Auto Industry ‘Early Warning’ Data

Agency Failed to Give Public Notice It Was Considering Rule, Court Holds

WASHINGTON, D.C. – The U.S. District Court for the District of Columbia today issued an order striking down a U.S. Department of Transportation rule that exempted from public disclosure information submitted to the government by the auto industry about potential safety problems. The ruling came in a suit brought by Public Citizen against Transportation Secretary Norman Mineta challenging the rule.

The Transportation Recall Enhancement Accountability and Documentation (TREAD) Act of 2000, passed in the wake of the Firestone tire debacle, requires manufacturers of motor vehicles, tires and vehicle parts to provide the Transportation Department with detailed “early warning” data about possible safety problems. At industry’s urging, however, the Transportation Department issued a rule that categorically exempted broad swaths of that data from public disclosure under the Freedom of Information Act (FOIA), ostensibly to protect against disclosure of commercially sensitive information.

Public Citizen challenged the rule in court, arguing that the department had failed to give fair warning that it was considering a categorical exemption rule when it issued the notice of proposed rulemaking that later led to the rule.  Public Citizen also argued that the exemptions provided by the rule violated FOIA and that the department had failed to support its view that the exemptions were needed to protect confidential business information.

Industry groups intervened in the lawsuit to bolster the government’s effort to keep their data under wraps. Meanwhile, the government has refused to provide public access to any of the information.

Today, in an opinion by Judge Richard J. Leon, the federal court struck down the rule on the ground that it was not a “logical outgrowth” of the agency’s rulemaking notice, but represented a “surprise switcheroo” from what the department had originally proposed, which was not to exempt the information categorically.

The court held that the agency does have authority to issue categorical rules if it gives proper notice and the rules do not improperly expand FOIA’s exemptions.  But because of its ruling that the agency did not follow proper procedures, the court did not have to address the question of whether the particular exemptions provided by the rules violated the Freedom of Information Act, as Public Citizen had argued.

Public Citizen President Joan Claybrook hailed the court’s decision as an important step in keeping the public informed of critical information about auto safety defects. “We intend to keep fighting before the agency and, if necessary, the courts, to make sure that this vital early warning data is not wrongly withheld from the public,” she said. “NHTSA should move immediately to publish the information it has been withholding on deaths and injuries.”

The court’s ruling will require the agency to issue a new notice of proposed rulemaking, take additional public comments, and provide a detailed explanation if it wishes to continue to exempt the early warning data from disclosure.  “We hope that the conclusion of the regulatory and litigation process will be public access to this important safety information,” said Scott Nelson, Public Citizen’s attorney.