January 6, 2017
For more than two years, The Safety Record had sought to report the results of a 2014 National Highway Traffic Safety Administration keyless ignition compliance investigation that involved seven major automakers, and to have our Freedom of Information Act request to the agency be awarded media status.
It has taken dogged persistence – and a lawsuit – but as 2016 drew to a shuddering close, we got our answers. And now (for those of you old enough to remember Paul Harvey’s famous radio show) the rest of the story: the agency closed the keyless ignition investigation after five months, with no findings of non-compliance. And, in the eyes of U.S. District Judge Ketanji Brown Jackson of the D.C. Circuit, The Safety Record is most definitely a legitimate news entity that pursued a legitimate journalistic objective in trying to report to our readers the conclusion of an agency action. (Judge Jackson spared the agency no quarter in her 35-page decision. The Safety Record found it delightful reading.)
Of course, there is much more to the plot, which we will recount in greater detail below.
But, we pause here to reflect on the real story: the failure of the agency to anticipate the consequences of a technological shift and to deal with them post-design and production, the utter failure of FOIA to serve as a tool to help citizens and journalists understand the innerworkings of their government, and the failure of NHTSA to put aside its petty antagonisms to answer some simple questions on a safety issue of genuine public interest.
Compliance Probe Closes with a Whimper
In August 2013, with a 2011 proposal to upgrade Federal Motor Vehicle Safety Standard 114 to address the rollaway and carbon monoxide poisoning hazards caused by keyless ignitions on the table, NHTSA began testing 34 recent model-year vehicles to determine if these new push-button systems allowed the vehicle to be turned off in a gear other than park, or the key fob to be removed from a running vehicle with no warning to the driver, or allowed vehicles to be restarted without the key fob present.
This probe grew out of a compliance investigation involving rollaways in Ford vehicles. On February 25, 2013, a 2013 Ford Focus EV failed the agency’s FMVSS 114 compliance test, because “When the vehicle is started, shifted out of “park”, turned off, and the Driver’s door is opened no audible alert is given.” This violated a provision in the regulation requiring the vehicle to issue an audible alert when the driver exits and leaves the key in the ignition. (Manufacturers self-certify that their vehicles are compliant with all federal motor vehicle safety standards. Each year, the agency submits a small sampling of the fleet to test their compliance with various FMVSSs.)
In late June 2013, the agency contacted Ford to convey the following observations:
“When the vehicle is turned off using the push-button while not in “park” and the key fob is out of range of the vehicle:
1. It does not appear that the electronic key code remains present in the vehicle because it cannot be restarted. Section S5.2 of the Regulation states that if the key is able to be removed from the vehicle while the transmission is not locked in “park”, the vehicle’s transmission should become locked in “park” as a direct result of key removal. Like the Focus, the C-MAX was able to roll in this circumstance showing that the transmission had not locked itself in ‘park’.
2. If, like in the Focus, Ford states that the electronic key is still in the vehicle though not authorized to start the vehicle, the issue becomes that there is no door chime when the driver’s door is opened. Section 55.1.3 of the Regulation states that if the key is present in the vehicle and the driver’s door is opened, an audible warning to the vehicle operator must be activated.”
The agency asked Ford in an email to provide information regarding the 2013 Ford C-MAX’s certification to FMVSS 114, including test reports or video documentation of the door chime upon opening the driver’s door with the invisible electronic key still present in the vehicle.
This led the agency to expand the scope of its inquiry to look at other keyless ignition vehicles’ compliance with FMVSS 114, running a series of unofficial field tests on models manufactured by Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia in late summer of 2013. (The Safety Record obtained documents associated with the opening of this compliance investigation via a FOIA request and reported this story in March 2014.)
NHTSA’s field survey showed that many of the vehicles could be turned off, with the fob outside of the vehicle without automatically locking the transmission into Park, and could be rolled out of position. It also showed that there was no consistency among manufacturers, or even among models produced by the same manufacturer in terms of the types of visual warnings to drivers, the decibel level of audible warnings, or the scenarios under which a driver was warned that the key was not present or that the transmission was not in the Park position.
By September 30, Ford decided to recall 23,000 2012-2013 Ford Focus and 2013 Ford C-Max keyless vehicles to add an audible warning when the driver exited the vehicle.
The agency officially launched the larger compliance probe in January 2014. The agency’s Information Requests sought a host of details related to manufacturers’ keyless ignition systems, ranging from the electronic architecture of the system, when the electronic code that now constitutes NHTSA’s two-part key schema is purged from the system and the audio and visual telltales used to alert the driver when he or she has exited the vehicle. NHTSA also asked for complaint data and the safety information manufacturers provide to their customers about keyless systems.
The agency actually sent two IR letters. The first, sent on January 15, 2014 contained this sentence: “During testing it was determined that there may have been a non-conformance based on 49 CFR § 571.114 Section 5.1, and possibly Section 5.2, detailed below:”
A second version of the IR letter went out on January 28. The sentence alleging a non-compliance was removed.
In early June, the Office of Vehicle Compliance closed the probes with no findings of noncompliance. For example, in its closing report regarding potential non-compliances in Kia vehicles, Amina Fisher, the safety compliance engineer who conducted the investigation, notes:
“Each vehicle was started with the push button control and the transmission selection control was placed in Drive. The starting system was deactivated with the push button control and the key fob was removed from the vehicle. We verified that the vehicle was not in Park by pushing it.”
After conversations with Kia, NHTSA’s Office of Vehicle Compliance learns:
“The information and test data provided by Kia indicates the vehicles listed above meet all requirements of FMVSS No. 114. Regarding SS .2.1, if the vehicles’ starting system is deactivated when the transmission is not in Park, the starting system will be in the accessory position, the key (electronic code) has not been removed, and the transmission control is not required to be in Park. In addition, drivers are provided audible and, for some vehicles, visual warnings about the key and transmission position.”
And just like that – it’s over.
Where’s the @#&)+! Key?
Let’s unpack this.
One of the great downsides to electronic key systems is the transition of the key from a physical object to an invisible electronic code. We have complained to anyone who will listen that the average consumer doesn’t really understand this, and conflates the fob with the key, because you need the former to start the vehicle, and because manufacturers brand the fob with names like Smart Key, or the visual alerts in the vehicle say “Key not Detected” in reference to the fob. However, as we have noted many times, unlike a traditional key, the fob plays no role in turning off the vehicle.
The consumer doesn’t always realize where the “key” is, and it turns out neither did NHTSA or experienced compliance testers. In email exchanges, NHTSA officials discuss their inability to determine exactly where the “key” is, and Ford’s inability to demonstrate its location. In fact, Ford had to create a special tool to show when the key was actually still in the vehicle.
From a March 27 email from NHTSA to Ford:
“Patrick Culkeen from Ford called. He said that since our last conversation with them Ford has been working with their engineers in Germany to create a tool to determine if the key code is present within the vehicle. Ford is currently validating the tool to make sure it is functioning correctly. Per his understanding this tool plugs into the diagnostic port of the vehicle and gives readouts (to a computer with the software installed) saying whether or not the key code is present in the vehicle.”
From a May 23 email from NHTSA to Ford:
“A question came up regarding the electronic key code. Where in the vehicle’s system is this code housed after pressing the start button with the key fob inside the vehicle? Is there anything else you can tell me about how long the key code remains in the vehicle and/or under what circumstances?”
And maybe most importantly, some at NHTSA didn’t believe that these systems satisfied the intent of FMVSS 114. From an April 25 email:
“Eric [Britton of Ford] sent me their 114 reports. For SS.2.1 [in the Test Report 2] it specifies that in when the vehicle is turned off (and door opened) in all positions other than Park the status remained “Key Approved” as required. As I mentioned before, when they brought the device that determines the status of the key code to GTL, it also said the key was still in the vehicle when turned off (and door opened) in all positions other than Park. The instrument cluster always read “No key detected” during those tests. Christie lanetta [sic] [then senior trial attorney for Litigation and Enforcement at NHTSA, now at King & Spaulding representing manufacturers] said that she wanted to discuss our Compliance Test results with Lloyd [Guerci, an attorney in NHTSA office of Chief Counsel], because though this vehicle may meet each individual requirement, it does not meet the intent of the standard (to prevent accidental rollaway).”
The Question of Question 9
One of the things we were most eager to learn in asking for the documents related to the investigation, was: How often are consumers reporting rollaways, carbon monoxide near-misses or injuries, or simply complaining that they forgot to turn off the vehicle, but the engine kept running, even though they had the fob?
Vehicle owners have been lodging such complaints (Vehicle Owners Questionnaires – VOQs) with NHTSA, which we know is a tiny sub-set of the customer contacts that manufacturers are getting directly.
Still capable of wide-eyed innocence as The Safety Record is, we thought that NHTSA would want to know, too. Question 9 in NHTSA’s January Information Request to the seven manufacturers asked for each vehicle model the number of consumer complaints about the starting system, including those from fleet operators; field reports, property damage and warranty claims, injuries, fatalities crashes and third-party claims.
This information would have been particularly helpful to the agency’s rulemaking efforts. Six years ago, the agency published a Notice of Proposed Rulemaking that would standardize engine termination procedures during panic stops (a legacy of the Toyota Unintended Acceleration crisis), and mandate loud auditory alerts to mitigate the rollaways and the carbon monoxide hazard. The Final Rule has been pushed off at least three times, and is still pending.
Among the many complaints the Alliance of Automobile Manufacturers had about the proposal was its basis. Manufacturers complained that it was illegal for the agency to use Vehicle Owner Questionnaires (VOQs) to promulgate a rule. Its objections ranged from the lack of information about each consumer complaint, the small numbers of VOQs, the difficulty in locating the VOQs mentioned in the Federal Register Notice, to the use of VOQs as a violation of the DOT’s data quality guidelines. A sample of the disdain dripping from AAM’s multiple submissions to the NPRM docket:
“In the case of keyless ignitions and the risks of carbon monoxide poisoning and rollaway from leaving the engine running when the vehicle is exited, the Alliance contends that the anecdotal reports referenced in the NPRM do not show that any new hazard is emerging, and thus cannot provide the safety justification for an FMVSS that is legally required under the statute.”
By February, NHTSA was revising Question 9, as it was deemed to be too broadly written. But by April 1, the agency lost all interest in the answer. Each manufacturer got an email like this: “This email is to inform you that we are no longer requesting a response to Question 9 of the FMVSS 114 IR letter dated January 28, 2014.”
The Safety Record’s FOIA Journey
It took The Safety Record 831 days – two years, three months, and eight days – to get a response to our inquiry about the conclusion to the compliance probe. Running in the background was a dispute with the agency over whether The Safety Record would be considered a member of the news media for the purpose of assessing fees. Under the FOIA laws, commercial requesters can be charged for the number of hours a government agency spends gathering and reviewing the documents and for reproducing documents. Media requesters are only responsible for paying copying fees. NHTSA wanted to charge The Safety Record $2,070 to get the materials that served as the basis for this story.
The Safety Record actually started to examine what NHTSA had learned about the rollaway or carbon monoxide poisoning problems introduced by keyless ignition systems on October 30, 2013, when we submitted a FOIA request for any investigations the agency might have conducted into this issue. (Safety Research & Strategies had been studying the safety hazards associated with keyless ignitions since 2009 and had met with the agency in August 2010 to raise its concerns). So, it’s taken us basically about three years to report a simple story about a five-month investigation.
Our organization, Safety Research & Strategies, files many, many FOIA requests with a number of government agencies.
While we get adequate responses to some of our queries within a reasonable time frame, our FOIA requests to NHTSA are rarely promptly, simply or straightforwardly satisfied. Much of the delays are the result of the lack of FOIA staff at NHTSA. It’s a small handful of people trying to satisfy nearly 300 FOIA requests in a year. In its latest FOIA report to Congress, NHTSA reported starting the fiscal year with 77 pending requests, and received another 262 during that fiscal year. It finished with 249 responses and 90 pending.
Nonetheless, we usually find the first production wanting. After combing the documents, we find lots missing, such as documents referenced in emails or other documents, but not produced, or a suspicious dearth of communications with a manufacturer. We regularly file appeals. When we aren’t satisfied with the response, we take litigate, and that has proven to be a great motivator.
Since 2010, we have launched seven FOIA lawsuits – six against the Department of Transportation and one against the State of Florida seeking public records on a variety of safety issues – child safety seats, guardrails, unintended acceleration and keyless ignitions. All of these cases have been settled to our satisfaction. The four against NHTSA have ended with the agency agreeing to turn over more records and paying our fees, before a court judgement was rendered. (You can read about some of them HERE.)
The Safety Record, seeking information for stories to post on our blog, makes far fewer requests. Our newsletter and blog have been recognized as a news entity for FOIA purposes by other government agencies, such as the U.S. Consumer Product Safety Commission, and we have been credentialed as media by other entities such as the Society of Automotive Engineers. And while we have unsuccessfully sought media status from NHTSA in the past, this time, we took the DOT to court over it.
The suit was filed in July 2015, after the agency denied our administrative appeal to be considered a news entity. Two months later, the lawsuit was on hold. The agency said it would re-consider its decision, in light of another lawsuit, Cause of Action v. FTC, which made it pretty clear that The Safety Record would be considered a news entity for FOIA purposes. But, the agency denied our request a second time, and everybody got busy on their briefs.
We argued in U.S. District Court that The Safety Record satisfied FOIA’s five-part standard to be considered news media, and that we intended to use the information as the basis of a news story. The Department of Transportation argued that SRS and The Safety Record are virtually indistinguishable, and that the blog only served as a marketing tool for the business, so any FOIA request The Safety Record might make would necessarily be considered commercial use.
Over 35 well-reasoned and somewhat pointed pages, Judge Jackson told the government that they had nothing. There were only two questions at issue: Did The Safety Record qualify under the terms set by FOIA as a news entity, and did The Safety Record intend to use the information for a journalistic purpose? The government, she noted, wisely tried to avoid the first question, since Cause of Action v. FTC made it pretty clear it was an argument they couldn’t win. And she called the government’s efforts to persuade her otherwise “utterly misguided.”
For example, here’s Judge Jackson’s take on the issue of whether The Safety Record uses “its editorial skills to turn raw materials into a distinct work”—The Safety Record again easily passes muster. “The Safety Record blog and newsletter are replete with opinionated articles that report on and editorialize about information relating to regulatory developments at NHTSA and other agencies.” (Opinionated – that’s definitely us.)
She rapped government lawyers for characterizing everything in The Safety Record published as “commercial speech,” and dismissed their evidence – an article talking about a FOIA request SRS submitted and another announcing a new staff member – as outliers.
“This Court also rejects DOT’s contention that Liberman’s publication of FOIA information in The Safety Record is necessarily a “commercial use” because the content of The Safety Record expressly promotes SRS’s services. (See Def.’s Mem. at 19–20.) This line of attack is substantively indistinguishable from DOT’s argument that The Safety Record is an advertising vehicle for SRS rather than a news media entity (see id. at 23–26; Def.’s Reply at 13–16), and thus, once again, DOT has veered away from the evaluation of “use” that is the proper focus of the “commercial use” analysis and wandered back into the thicket of its misguided concerns about the status of this records requester.” (Thicket of misguided concerns – we love that.)
Finally Judge Jackson chastised the government for failing to offer any evidence that The Safety Record sought this information for commercial use. In fact, she noted that the DOT said in oral arguments: “I have no reason to think it is not in good faith what they say they plan to do with it,”
“Third, and finally, to the extent that DOT’s requester-burden argument is actually a veiled attack on Liberman’s veracity (Tr. of Oral Arg. at 22 (counsel stating that Plaintiff “purport[s] they’re going to” publish the requested information on The Safety Record blog)), DOT has done little to demonstrate that such doubt is warranted. The Safety Record has a long history of requesting documents under the FOIA and then disseminating them to the public through its articles, and this Court sees no basis in the record for drawing an inference that Liberman did not, in fact, intend to do the same when she made the request at issue here.”
Our longtime FOIA attorney, David Sobel, noted the painstaking nature of Judge Jackson’s opinion:
“Judge Jackson’s careful and thorough decision makes clear that the agency had no basis for its refusal to recognize The Safety Record as an established news entity,” he said.
This memorandum opinion – filed on the last day of 2016 — does not end the matter. The government has 60 days – but, really, no basis – to appeal the judge’s decision.
To read more of our coverage on keyless ignition:
Keyed up With Anticipation: Smart Key Hazards Still Unresolved
The Keyless Ignition Litigation Solution
Another CO Smart Key Death… and what Happens when Smart Keys Collide?
A Funny Thing Happened on the Way to My Car…