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Sunday, July 12, 2009

Maryland AG, SHA block access to key records

From Richard D. Boltuck of Maryland:
Most residents of West Bethesda in the neighborhoods near Whitman High School are well aware of the hazardous and chaotic Braeburn Parkway/River Road intersection used as one of the main entrances to the Whitman parking lot. Many of those turning on or off River before and after school are high school students, among the least experienced drivers anywhere. Many dangerous accidents have occurred at this intersection, including one recently noted on some local listservs; the lack of anyone being killed in such an accident to date is a product of good luck rather than precautionary measures.

For well over a decade, the community has sought installation of a traffic light at the intersection to regulate traffic and tame the hazards. River, of course, hosts numerous traffic signals already, including at the entrances to country clubs and other schools. The community's efforts have always been supported strongly by members of our General Assembly delegation. And as you might recall, last year we collected hundreds of local signatures on a petition urging the Maryland State Highway Administration (SHA) to install a light. Thus far, however, the SHA, which owns River Road, has rejected our pleas.

Typically, when periodic concerted efforts were underway in past years, SHA engineers would meet with the community or its representatives and inform them that a recent scientific engineering study required by law before a signal could be approved indicated that a signal was not warranted. At that point, the community was left with few immediate options, except to request another examination a few years later. In the meantime, students, faculty, and staff at Whitman, together with other drivers, continued to risk life and limb every day. And, of course, the next study by SHA simply echoed the prior one, starting the cycle over again. In short, no progress.

In the past year, I have worked on breaking this unproductive cycle by taking a somewhat different approach -- with great advice and assistance from others, including particularly Peter and Christina Sklarew, and Seth Guggenheim. My hypothesis was that part of our historical ineffectiveness arose from a lack of symmetry in the information we possessed. We had never actually obtained any of the SHA traffic-signal warrant analyses and the accident data on which they were, in part, based, let alone studied them carefully. Consequently, last summer I filed a request for these analyses and data with the SHA, based on the Maryland Public Information Act (PIA), the state's version of the Federal Freedom of Information Act. I had assumed that the analyses were not previously reviewed simply because they had never been requested. I was surprised, however, that my request was rejected on a variety of grounds asserting alleged exceptions to general disclosure requirements of the PIA.

Over the past year, I have challenged this rejection through the administrative review process set out in Maryland's Administrative Procedures Act (APA). Last September, the case was heard before an administrative law judge in the Maryland Office of Administrative Hearings. Shortly before that hearing, SHA partially backed down, sending me copies of the various warrant analyses, but continuing to withold the compiled accident data. These data are important in verifying the validity of that aspect of the analyses, and in better understanding SHA's perception of how dangerous the intersection is.

The administrative review process is now at its tail end, and I am awaiting a "final decision" by SHA Administrator Neil Pedersen no later than the end of August. Last week, Peter Sklarew and I attended a hearing before Mr. Pedersen and I presented oral arguments in favor of disclosing the requested accident data. The PIA case has been interesting in itself as a public-interest project. Maryland's highway and road system, after all, touches all of our lives, and constitutes one of the most significant uses of public tax funds in the state.

Despite the democratic public interest in understanding how our money is used and on what decisions about our road system are based, and despite the fact that the SHA is not a national-security agency, SHA and its legal advisors from Attorney General Gansler's office have devised a theory that they argue prevents them from disclosing a very significant share of public highway records to members of the public. Highway accident data, paid for by taxpayers and relied on in improving highway safety, are among those records. The legal position taken to date by AG Gansler and his staff is at the core of the problem. AG Gansler's office has thus far (up through Mr. Pedersen's "Proposed Decision") adopted a needlessly expansive and unjustified interpretation of a 2003 Supreme Court decision as a key part of its theory, an interpretation directly at odds with the two state appellate courts (in Kansas and New York) that have addressed this exact issue after 2003. In doing so, Mr. Gansler has, in effect, invalidated rights established for Maryland citizens (and others) by the General Assembly, instead preferring an interpretation where Federal law broadly preempts Maryland's own PIA. I would have thought the job of the AG is to defend the state's statutes, and the rights they create, to the greatest extent possible. If I were in the General Assembly, I would be furious that the laws I had participated in passing were being treated in this manner by the state's own chief attorney.
View related case documents here.


Richard said...

Thanks, Charles, for sharing this with the FOI community.

For those interested in understanding this dispute in greater detail, I would suggest that you download from the web site linked at the end of the article the file named, "2.0 Oral argument 6 30 09 SHA Boltuck as read 6 29 09.pdf". The oral argument I presented summarizes the case and sets out my principal argument in seeking release of the accident data I requested in May 2008.

Anonymous said...

nice post and thanks for sharing....

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