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Highway safety records revealing the most dangerous roadways in New York state must be kept secret because public disclosure would inevitably place those materials in the hands of tort lawyers and frustrate a law designed to foster candid assessments of road conditions, the state told a seemingly skeptical Albany appellate panel last week. Justices of the Appellate Division, 3rd Department, engaged in debate not only with counsel but with one another as they heard a first-impression case that pits New York’s historically potent Freedom of Information Law (FOIL) against a federal statute and the concept of federal pre-emption. The case is Matter of Newsday v. Department of Transportation, 94959. It stems from Newsday‘s attempt to obtain records that would identify the most dangerous intersections and stretches of highway on Long Island and in New York City. The state is required to maintain the records to qualify for federal highway aid. The federal law bars the use of the information in highway negligence actions, and an amendment makes the data unreachable through discovery. At issue before the court is whether release of those records through the state information law would undermine the federal law. Even though the Long Island newspaper intends to publish the information — not use it in a lawsuit — New York argues that once the material is in the public domain it will inevitably be exploited by personal injury lawyers. Newsday “does not genuinely confront the plain fact that, once published, the information is just as available to tort litigants or their counsel as if it had been obtained through discovery, rendering the statute entirely ineffective,” the state argued in its brief. Three of the four justices hearing the case expressed strong misgivings over the state’s position. “What’s so bad about getting this information to the public?” Presiding Justice Anthony V. Cardona asked at the outset. The fourth justice, Anthony J. Carpinello, seemed more receptive to the state’s argument, but even he appeared to waiver toward the end. Assistant Solicitor General Robert M. Goldfarb speculated that once the information was out, it would wind up in the hands of lawyers who, even if they cannot rely directly on the information, will use it as a “blueprint” for their case. He was joined on the brief by Senior Assistant Solicitor General Nancy A. Spiegel. But the presiding justice and two others on the panel, Thomas E. Mercure and John A. Lahtinen, noted that the law clearly bars introducing the information in a civil action. They asked how releasing it to Newsday would impede the goal of the federal legislation, which is to encourage accurate and thorough reports compiled without fear of litigation. “They can’t put it into evidence,” Presiding Justice Cardona said, referring to plaintiffs. “They’ll look at it and show it to their experts — I’ll give you that — but so what?” But Justice Carpinello said that disclosure of the reports would “eviscerate the whole purpose of the statute.” He wondered what the impact would be if the information was made available to everyone, including personal injury clients and their lawyers. CONGRESSIONAL INTENT Newsday‘s attorney, Stephanie S. Abrutyn, said the court need “not speculate as to the effect” and stressed that Congress did not bar disclosure of the reports under the federal Freedom of Information Act, even though it was specifically asked to do so by the Federal Highway Administration and the federal Department of Transportation. Abrutyn noted that the same data Newsday seeks from New York is disclosed by 20 other states. “These disclosures do not seem to have thwarted congressional intent or undermined the Hazard Elimination Program in any way,” she said in her brief. Abrutyn suggested that the initial law, which prohibited the use of the information in a personal injury lawsuit, and the amended version, which made the data unavailable through discovery, were designed to keep the reports at arm’s length from civil litigation. She said that if Congress had intended to seal the information from public view — as the highway and transportation agencies requested — it would have. Justice Carpinello repeatedly asked what Congress was trying to achieve through the amendment removing the highway records from the realm of discovery. He asked whether its objective would be undermined through public disclosure. At the end of oral argument, he appeared more receptive to the newspaper’s position, especially since Congress had rejected a proposal to exclude the information from the reach of the Freedom of Information Act. Carpinello remarked that the weight of authority from around the country leans toward Newsday’s position. Joining Abrutyn on the Newsday brief was Michael J. Grygiel of McNamee, Lochner, Titus & Williams in Albany. In addition, the New York Daily News, the Hearst Corp., Investigative Reporters and Editors Inc., NYP Holdings (the New York Post) and The New York Times Co. are supporting Newsday as amici curiae. This case marks the first time the issue has arisen in New York. It has been addressed, directly or indirectly, in other states, according to the briefs. Abrutyn, in her brief, said that only one court, the Kansas Supreme Court, has directly analyzed the statute in question (23 USC � 409) within the context of a newspaper’s application. The court rejected the state’s argument as lacking “a reasonable basis in fact or law” in Telegram Publishing Co. v. Kansas Department of Transportation, 275 Kan. 779 (2003). New York state’s Goldfarb, in his brief, cited a 1995 Tennessee case that said the federal statute pre-empted that state’s public records act, Seaton v. Johnson, 898 SW2d 232. Ironically, New York is relying heavily on federal pre-emption, a concept that both state Attorney General Eliot Spitzer and Solicitor General Caitlin Halligan have criticized. The trial judge, Supreme Court Justice George B. Ceresia Jr. of Troy, N.Y., found no direct conflict between New York’s Freedom of Information Law and 23 USC � 409 and ordered the state to honor Newsday’s demand. Friday’s appeal was argued before a four-judge panel rather than a more typical five-judge bench. Justice Edward O. Spain, who was on the panel for the other cases argued Friday, recused himself from the Newsday matter. Justice Spain’s brother, Michael V. Spain, is an editor with the Albany Times Union, which is owned by The Hearst Corp., one of the amici. However, there was no official explanation for Spain’s recusal.

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