Safety Research & Strategies Sues U.S. DOT in (Another) FOIA Dispute

Safety Research & Strategies, an automobile and product safety research and consulting firm, today filed its fourth Freedom of Information lawsuit against the U.S. Department of Transportation, alleging that it has improperly held documents regarding Early Warning Reports.

The lawsuit emanates from two instances in which manufacturers allegedly did not report serious injury claims against them to NHTSA, as required under the Transportation Recall Enhancement Accountability and Documentation (TREAD) Act’s Early Warning Reports (EWR) provision. One crash occurred in April 2009, involving a tire tread separation which resulted in an occupant sustaining a serious closed head injury. The second crash occurred in June 2010, involving the apparent failure of Harmony Lite Rider child restraint, which caused severe injuries to two young children.

“EWR data is supposed to alert the agency investigators to defect trends,” says SRS President Sean E. Kane. “But if manufacturers don’t report complete and accurate information, the system doesn’t work.”

Harmony, which manufactured the child safety seat and Nankang, the Taiwanese tire manufacturer, and Tireco, the tire importer, were notified of these claims via civil lawsuits in August 2010 and November 2011, respectively. Neither, however, showed up in a search of the manufacturer’s quarterly reports to NHTSA.

In March, SRS informed the director of the Office of Defects Investigation Frank Borris, and NHTSA’s Senior Associate Administrator for Safety, Daniel C. Smith, of these apparent omissions. The memo requested confirmation that these claims should have been submitted to the agency via a quarterly EWR submission, and “what actions the agency plans to take.” After receiving no reply, SRS submitted, in May, a Freedom of Information Act request, seeking any documentation that NHTSA followed up with Harmony, Nankang or Tireco, as well, as the agency’s policies and procedures around EWR, and a manufacturer’s failure to submit a reportable incident.  

SRS received only a draft copy of the agency’s EWR Data Analysis Plan from 2008. The agency claimed it had no other records relevant to the request. SRS appealed the response, and in September, NHTSA counsel Kevin O. Vincent denied the appeal.

The EWR requirement is the outgrowth of the 2000 TREAD Act, passed by the Congress in the wake of Ford Explorer/Firestone tire controversy as an additional tool for the agency to spot defect trends before they become greater public health issues. Under NHTSA’s regulations implementing the TREAD Act, motor vehicle, child safety seat and tire manufacturers and importers are required to submit to the agency detailed EWR data each quarter. NHTSA touted the importance these data play in a 2012 Preliminary Regulatory Evaluation on a proposed amendment to the EWR rule:

Though benefits in terms of lives saved and injuries prevented are nearly impossible to quantify, the agency believes that EWR data possess valuable predictive and monitoring information that may assist in the identification of potential safety-related defects in motor vehicles and motor vehicle equipment.

The failure to follow the provisions of the TREAD Act can trigger serious civil and criminal penalties. The agency, for example, has fined Toyota four times for its failure to report defects in a timely manner.

“Congress put those penalties in the TREAD Act for a reason – to make crystal clear that manufacturers and importers have a serious, legal obligation to tell NHTSA about incidents that could be a sign of a developing defect trend. Manufacturers can’t treat this obligation as voluntary,” Kane added.

SRS has sued the Department of Transportation three times over FOIA requests in which the agency failed to produce responsive documents.

In December 2011, SRS sued the agency for withholding public records involving an unintended acceleration incident reported by a 2007 Lexus RX owner in Sarasota Florida. On December 2, 2010, Timothy Scott, 47, experienced a UA event as he drove into his apartment complex. ODI looked into the Scott incident, generating photos, videos and other documents. SRS sought this material as part of its ongoing research into Toyota UA, but NHTSA withheld all but a few records related to the Scott investigation, claiming it was shielded under FOIA’s “deliberative process” exemption.

In January 2012, SRS sued NHTSA over its refusal to release records involving the agency’s investigation into Unintended Acceleration incidents experienced by Joseph McClelland, the owner of a 2003 Prius. Two ODI engineers examined the Prius in McClelland’s presence. According to a sworn statement by McClelland, they witnessed several instances of UA, gathered data from the ECM and took videos of the UA incidents as they happened. SRS sought this material.

In April 2012, Safety Research & Strategies filed its third Freedom of Information Act lawsuitagainst the agency, alleging that NHTSA violated the law when it withheld communications between child products manufacturer Evenflo and NHTSA regarding the January 2008 recall of the Discovery infant carrier. In February 2008, NHTSA and Evenflo simultaneously released brief announcements that the juvenile products company would recall 1.1 million Discovery infant seats. Both press releases referenced recent tests conducted by NHTSA and Evenflo which showed that “this car seat has the potential to separate from its base.” SRS had sought the missing pieces of the public file – the reports, videos and photographs of the NHTSA tests that formed the basis of the recall; communications from NHTSA to Evenflo, and Evenflo’s detailed account of the events leading up to the recall. The agency released to SRS some test photos and data, with no context; two NHTSA letters granting confidentiality to Evenflo, NHTSA’s press release, and Evenflo’s notice to consumers, and claimed it had no other responsive records. (see The Safety Record Special Report: How Consumer’s Union Shocking Child Seat Tests Forced the Recall of the Evenflo Discovery)

SRS and the Department of Transportation eventually settled all three lawsuits, after the federal government agreed to release more materials and pay SRS’s legal fees.

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