Is there Privilege for Safety Information Compiled by State and Local Governments?

Decided January 14

Pierce County v. Guillen
No. 01-0229

There are few absolutes in public policy.  In the modern world of federal/state relations, however, one generalization is apropos: when the rallying cry for "states' rights" rises up from the states, it is probably sung by a coalition of state officials and plaintiff's lawyers extolling tort experimentation. Guillen is interesting, among other reasons, because this interest group alliance was sharply split. The case pitted the search and destroy methods of the plaintiffs' bar squarely against state interests.

Guillen concerns provisions of the Federal Highway Act designed to promote traffic safety. States and towns provide information about (potentially) dangerous road conditions; in return, the feds allocate money and shield the reports from public examination. Congress realized that few states and municipalities would offer self-incriminating information unless they were assured the confessions would be kept safely out of court.

Trial attorneys and their clients have urged courts to overturn the confidentiality provisions, appreciating how valuable government mea culpas are in tort litigation. States and towns have urged the courts to uphold the law--a national confidentiality rule saves lives and prevents unfair negligence litigation. The Supreme Court, in Guillen, bought some order to this mess by deciding, unanimously, that Congress may protect state/local government reports from scrutiny under its Commerce Clause authority.

According to Justice Thomas, Congress could "reasonably believe" that eliminating the litigious side effects of the information-gathering requirement of the FHA "would result in more diligent efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decision making, and, ultimately, greater safety on our Nation’s roads." He continues: "Consequently, both the original (act) and the (confidentiality) amendment can be viewed as legislation aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce."

The Federalism Project finds much to cheer in this decision. It does, however, leave an interesting question (and one granted cert on) unanswered: do private plaintiffs have standing to assert “states’ rights” under the Tenth Amendment if their state has expressly approved and accepted the benefits and terms of a federal statute?

Decision here

Washington Supreme Court decision, Guillen v. Pierce County

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