Mickey Gendler Adds Another Victory for Cyclists

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On Thanksgiving Eve, Seattle attorney and paralyzed cyclist Mickey Gendler won again in court — in a case that could have ramifications for others seeking justice in transportation-related accidents.

The Washington State Court of Appeals unanimously upheld a Thurston County judge’s ruling giving Gendler, injured in a 2007 mishap when his bike wheel wedged in a too-wide gap on Montlake Bridge steel grating, access to information on previous bicycle accidents there.

Gendler, 58, who in a separate suit won an $8 million settlement from the state over the accident, sought the records to show that the state had known of the danger since 1999, when it was created during a seismic retrofit of the bridge. Even before the retrofit was finished, a cyclist suffered a similar — although not as injurious — accident in the same gap.

The state argued it was prevented from turning over accident records by federal law financing gathering and analysis of accident data but barring the information from being used in lawsuits against the state.

The Appeals Court disagreed:

The WSP [Washington State Patrol] claims that federal law, 23 U.S.C. § 409 (2005), prohibits it from disclosing the records to Michael Gendler unless he agrees not to use the information in litigation against the State. Because RCW [state law] 46.52.060 imposes a duty on the WSP to create and provide such public records, and because the federal privilege applies only to the Washington State Department of Transportation (WSDOT) not the WSP, we affirm. We also award Gendler his attorney fees and costs for this appeal.

As attorney Mike Schechter puts it in the Local Open Government blog, the ruling means “that the State Patrol cannot hide behind a memorandum of understanding (“MOU”) with the State Department of Transportation (“WSDOT”) and WSDOT’s federal privilege under 23 U.S.C. §409, barring use of collision data in lawsuits.”

Beyond Gendler’s case, the ruling has ramifications for any citizen seeking to show that faulty construction or maintenance of roadways contributed to an accident. In that sense, Gendler’s victory is a win for us all.

As Schechter further notes:

The federal privilege is intended to allow WSDOT to compile and analyze accident data to better implement highway safety measures funded by the federal government without concern that such analysis would be used to support lawsuits against the State.

While we understand the thinking behind such a provision — the state’s “analysis,” after all, could certainly be faulty or biased — we are pleased that the court drew its distinction. Raw data, collected with taxpayer funds by public agencies, should be available to the citizens who footed the bill in the first place. And on principle in a democracy, government information should be transparent in all forms.

Another reason to give thanks on this holiday of 2010.

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