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Company Sues Feds For Release Of Safety Data

Taxpayer-Owned Information Hidden from the Public

March 27, 2007

• NHTSA Posts "Early Warning" Safety Data on the Web • Court Upholds Public Access to Crash Data • Company Sues Feds For Release Of Safety Data • Feds Asked to Reverse Auto Safety "Secrets" Rule • NHTSA's Dirty Little Secrets • Consumer Group Sues For Release of Recall Data --- • Auto Safety News

A safety research company has filed a Freedom of Information Act lawsuit in federal District Court in Washington, seeking publicly-owned data about deaths and injuries that is being concealed by the National Highway Traffic Safety Administration (NHTSA).

R.A. Whitfield, Director of Quality Control Systems Corp., said that the public needs access to the Early Warning Reports collected under the Transportation Recall Enhancement Accountability and Documentation (TREAD) Act to better understand why so many deaths and injuries related to tire failures in the Ford Explorer have continued long after the well-known tire recalls that affected the vehicle.

The data was gathered at taxpayers' expense and is being withheld from public view by federal employees whose salaries are paid by the taxpayers from whom the information is being withheld.

The TREAD Act was passed in October 2000 in response to Ford Explorer-Firestone tire-related rollover deaths in the U.S. and Ford's overseas recalls. TREAD amended federal transportation law to require vehicle and equipment manufacturers to report safety recalls or campaigns on vehicles and components in a foreign country if they also sold substantially similar products in the U.S.

The law also required NHTSA to create regulations governing quarterly Early Warning Reports -- information on property damage and warranty claims, consumer, dealer and field reports, production numbers and deaths and injuries collected by manufacturers -- with the intent of using the data to spot defect trends.

When President Bill Clinton signed the bill into law, he directed NHTSA "to implement the information disclosure requirements of the [TREAD] Act in a manner that assures maximum public availability of information."

But after six years of crafting regulations, and after three years worth of data, the public has consistently been denied access to the information, the suit charges.

Between July 1994 and January 15, 2007, at least 420 persons have been killed in tire-related, Ford Explorer, Mercury Mountaineer, and Mazda Navajo crashes, including 396 deaths found in NHTSA's Fatality Analysis Reporting System (FARS) and 24 recent deaths found in news accounts. For more than a year, Whitfield has been seeking Ford's EWR death and injury data on Explorers to better analyze the rise in tire-related Explorer fatalities.

While available fatal crash data frequently do not report vehicle component failures, the TREAD Act requires manufacturers to separately report claims about deaths and injuries related to alleged component failures. Whitfield wants to merge the two sets of information together to get a better picture of the problem.

Whitfield and others, most notably Public Citizen, seeking Early Warning Reports say they have been stymied by NHTSA's decision to keep nearly all the data secret.

"It is truly outrageous that the Bush administration would move to seal such essential auto safety information from the public," said Joan Claybrook, president of Public Citizen and former NHTSA administrator. "Public access to this type of data could mean the detection of problems like the deadly Ford Explorer/Firestone tire combination and could save lives."

Since 2000, safety and consumer advocates and manufacturers have fought over what -- if any -- of the information collected under the TREAD Act is public. The safety community has pushed for maximum accessibility.

"The government shouldn't be the sole arbiter of safety -- with a small staff and limited budget NHTSA should welcome independent evaluations of the EWR data as part of its mandate to protect the public," says Sean Kane, president of Safety Research & Strategies, which commissioned Quality Control Systems to examine the increase in Explorer tire-related fatal crashes.

"Data are critical to understanding and seeking solutions to safety problems -- Explorer tire-related crashes is just one of many issues that would benefit from evaluation of the data NHTSA is keeping secret."

Tire Makers Object

The Rubber Manufacturers Association (RMA) has insisted that the TREAD Act specifically exempted EWR data from public view under Exemption 3 of the Freedom of Information Act. (Exemption 3 states that information is not public under FOIA if Congress specifically passes a law preventing its release.)

NHTSA has consistently argued that some EWR information should be kept confidential under FOIA's Exemption 4 -- information that may cause competitive harm. In January 2001, when the agency began to establish the EWR regulations, it envisioned making much of the information -- including death and injury data -- public and received few requests from manufacturers for confidentiality. But as some manufacturers fought tenaciously for secrecy, NHTSA designated more classes of information private under Exemption 4.

In March 2004, Public Citizen sued Secretary of Transportation Norman Mineta over the confidentiality of EWR data. The suit claimed that NHTSA had deviated substantially from its initial proposal when it passed a final rule that broadly determined that whole classes of tire data are confidential.

The Rubber Manufacturers Association, which represents tiremakers, filed counter claims. In March 2006, U.S. District Judge Robert Leon ruled in favor of Public Citizen and directed NHTSA to revisit the rule. Judge Leon ruled a week later that EWR data was not subject to FOIA Exemption 3. The RMA appealed.

As the rule stands today, only death and injury and property damage claims filed with the government through EWR are supposed to be made public. But NHTSA has refused to release any of the data until RMA's appeal is resolved.

In the meantime, the death toll in Ford Explorer, tire-related crashes rose in 2005, at the rate of about one death per week, and other potential safety problems loom without public knowledge.

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