Disclosure deadline passes as dispute over NHTSA data continues.

Until the U.S. District Court for the District of Columbia resolves a lawsuit and a counterclaim filed against the National Highway Traffic Safety Administration (NHTSA), the agency has decided not to make product safety information gathered for its early-warning reporting database available to the public, despite a promise to do so by October 1. (Public Citizen v. Mineta, No. 1:04-cv-00463-RJL (D.D.C. filed Mar. 22, 2004); answer and counterclaim of proposed intervenor Rubber Mfrs. Ass'n (D.D.C. filed June 4, 2004).)

NHTSA created the database after Congress passed the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act in November 2000, in the wake of deaths and injuries associated with Bridgestone/Firestone tire-tread separations on Ford Explorers.

To ensure that NHTSA can identify auto product defects more quickly in the future, the TREAD Act requires vehicle and the manufacturers to supply the agency with information on deaths, injuries, property damage, consumer complaints, warranty' claims, and field reports from dealers and company employees. The manufacturers must also supply production data, including the number of tires, vehicles, or child restraint systems they make.

In a January 2001 notice seeking comments on how to implement the TREAD Act's early-warning requirements, NHTSA said it would not limit public disclosure of information it gathered. It noted that in signing the TREAD Act, the president had directed the agency to "implement the information disclosure requirements of the act in a manner that assures maximum public availability of information."

But in July 2003, NHTSA amended its disclosure plan, saying it would release only information on deaths, injuries, and property damage. Citing an exemption to the Freedom of Information Act (FOIA), the agency determined that public release of any warranty claims, field reports, consumer complaints, and certain production numbers would cause vehicle and tire manufacturers competitive harm or impair NHTSA's ability to get similar information in the future, or both.

Public Citizen's lawsuit against the U.S. Department of Transportation (DOT), NHTSA's parent agency, claims that "there is no history of case-by-case determinations that early warning data categorically satisfy the requirements of Exemption 4 [of FOIA]. No prior judicial decisions hold that this information is categorically exempt." By finding certain categories of records exempt, NHTSA exceeded its authority, the complaint alleges.

In a counterclaim, the Rubber Manufacturers Association--whose members include makers of rubber auto parts such as belts, hoses, and tires--argues that the law requires NHTSA to keep all database information confidential. If NHTSA releases records, "it will be acting contrary to an express provision of the TREAD Act that prohibits the routine disclosure of this information, and contrary to the Data Quality Act, which requires that information disseminated by agencies to the public be objective and possess utility," the suit claims.

NHTSA spokesman Rae Tyson noted that the data "is getting into the hands of those it was intended to reach, and that's our defect investigators. They have full access to all the early-warning data, and I believe that was the primary intent of Congress when they created the requirement in the first place."

But Scott Nelson, a Public Citizen Litigation Group lawyer, said this assurance is not sufficient to justify withholding safety information from the public.

"FOIA takes the view that even if information is principally intended for the government's own use, the public has a right to it unless it falls within the statutory exemptions of FOIA," he said. Nelson added that NHTSA's argument is also "contrary to the [purpose of the] TREAD Act, which was to make sure that auto manufacturers have accountability to the public as a whole.

"It's important that we be able to look over the shoulders of regulators, because sometimes they don't do their jobs as well as they should. So having the information public is important to both the industry and the agency," he said.

In a September audit assessing the agency's progress in implementing the TREAD Act, DOT's Office of the Inspector General did not formally take a position on NHTSA's decision to limit disclosure. However, it noted that "limiting the release [of database information] makes it more critical for NHTSA to ensure it is carefully analyzing the information to protect the public from safety defects at as early a stage as possible."

At press time, a briefing schedule in the court case was yet to be set.