Protecting Railroad Risk Reduction Data
The Railroad Safety Improvement Act of 2008 (“RSIA”) was the most comprehensive rail safety legislation in several decades. Many railroads are busy with the rollout of positive train control, but there are many other rail safety initiatives underway at the same time. This is the second in a series of posts on “what else” is going on in railroad safety, besides positive train control.
FRA is in the midst of a rule making to implement the RSIA requirement that passenger and freight railroads to establish risk reduction programs. As part of the programs, railroads would be required to produce detailed analyses of current safety hazards. Congress concluded that risk reduction programs would not be effective if safety hazard data were subject to FOIA. In what some might describe as a punt, Congress left open the question of whether risk reduction data should be shielded from use in personal injury litigation. Instead, Congress mandated that FRA conduct a study on the public interest implications of shielding risk reduction data.
On May 9, 2011, FRA issued a request for public comment on the issue. FRA observed that comments received on the risk reduction rule “indicate that railroads are reluctant to … provide comprehensive risk analyses that might be used against them in litigation.” That’s an understatement.
Shielding risk reduction data would encourage railroads to candidly describe current safety hazards. Candid assessments would lead to more success in reducing railroad safety risks. So what is the issue? Pursuant to the Congressional study directive, FRA is seeking comments on whether private litigants would be disadvantaged by risk data protection. Without a doubt, private litigants could benefit in railroad lawsuits by having access to the risk reduction data. It is a separate question whether private litigants would be disadvantaged by not having that data. But for the statutory mandate, railroads would continue to conduct any safety analyses within the protection of attorney-client privilege and plaintiffs would not have the resulting data. Therefore, plaintiffs will lose nothing if data generated pursuant to the statutory mandate is protected.
FRA has asked for comments on or before July 8, 2011. Let’s hope that FRA recognizes that risk reduction analyses will not be effective unless the data is protected and that protecting the data will not deprive private litigants of information that they would have in the absence of mandated risk reduction programs.
