April 12, 2012
Safety Research & Strategies, a Massachusetts safety research firm that advocates for consumers on safety matters, has filed its third Freedom of Information Act lawsuit against the U.S. Department of Transportation alleging that the National Highway Traffic Safety Administration (NHTSA) has improperly withheld documents – this time related to in the Evenflo infant seat recall of 2008.
“NHTSA is the DOT’s only designated public health agency,” says Sean Kane, president of SRS, “Decision-making on important safety matters should not be a private affair between the agency and the regulated. We will continue to press for the release of documents that should be in the public domain.”
Evenflo recalled the Discovery infant carriers in February 2008 – one year after Consumer Reports, a Consumer Union (CU) publication, printed a controversial story rating rear-facing infant car seats in front and side-impact sled tests. The CU tests showed that only two of the 12 seats performed well in tests and most failed. And as part of the story, CU urged the recall of the Evenflo Discovery.
NHTSA conducted its own sled tests to check CU’s results and found that the organization’s testing contractor, Calspan, had assessed the seats under conditions that represented a more-than 70-mph impact, instead of the 38.5 mph intended. CU profusely apologized and withdrew its report.
One year later, NHTSA and Evenflo simultaneously released brief announcements that the juvenile products company would recall 1.1 million Discovery infant seats. Using strikingly similar language, 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.”
The agency provided little other information about what led to the recall. The NHTSA tests that influenced the recall were not in the agency’s publicly accessible crash test database; also missing from the public record were the basic documents, routinely filed in any recall. For example, manufacturers recalling a vehicle or component must submit a Part 573 Defect and Noncompliance Report to the agency. As part of that report, manufacturers are required to “provide a dated, chronological summary of all the principle events that were the basis for the determination that the defect is related to motor vehicle safety, including a summary of all warranty claims, field or service reports, and other information such as numbers of crashes, injuries and fatalities.” There was no such chronology.
In January, SRS filed a FOIA request for 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 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. NHTSA claimed that there were no other communications from the agency to Evenflo, nor was there any Evenflo chronology.
This civil action, filed in U.S. District Court for the District of Columbia (Civil Action No. 1 :12-cv-00551), follows two others also alleging that NHTSA violated the Freedom of Information Act by withholding public records. In December, SRS sued the agency for withholding public records involving an unintended acceleration incident reported by a 2007 Lexus RX owner in Sarasota Florida, and requests the court to order their release. In January, 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.
Both suits are pending. (see Government Officials Video Electronic Unintended Acceleration in Toyota: NHTSA Hides Information, SRS Sues Agency for Records and Safety Research & Strategies Takes DOT and NHTSA Transparency Battle to Court; Sues for Toyota Investigation Documents)