Pt II - A Brief History of the Fight for Accident Reports
As the Supreme Court noted in Guillen, to construe § 409 to cover all facts and documents that ultimately end up in such federally mandated reports would go far beyond the congressional intent, and would hide otherwise discoverable information essential to supporting claims that could have been proven had there been no safety enhancement project:
[T]he text of § 409 evinces no intent to make plaintiffs worse off than they would have been had § 152 funding never existed. Put differently, there is no reason to interpret § 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to § 152, held by government agencies not involved in administering § 152, if, before § 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies. Guillen, 537 U.S. at 146 (emphasis added).
Following Guillen, raw data, accident reports, and most other documents that were accessible by the public prior to the enactment by Congress of 23 U.S.C. § 152 back in 1973 are to still be provided to plaintiff’s counsel because, according to the U.S. Supreme Court, “the text of § 409 evinces no intent to make plaintiffs worse off than they would have been had §152 funding never existed.” Guillen, 123 S.Ct. at 731. However, even after Guillen, argument as to the scope of 23 U.S.C. § 409 persists. Some municipalities continue to assert that Guillen authorizes them to withhold all raw data and information, including police accident reports and the accident history of a location, from citizens seeking this information in potential or current highway cases against governmental entities. This was, however, precisely the position taken by Defendant Pierce County in Guillen that the U.S. Supreme Court expressly rejected. As indicated above, this has resulted in some municipalities insisting that anyone seeking an accident history for a section of road must, as a condition precedent to receiving the accident reports, ign a form promising that the accident reports will not be used in litigation against any governmental entity.