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Advocates For Highway and Auto Safety v. Federal Highway Administration

October 13, 2011


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Advocates for Highway and Auto Safety ("AHAS"), a public interest, safety research, and lobbying organization, challenges the decision of defendant Federal Highway Administration ("FHWA"), a modal administration of the United States Department of Transportation ("DOT"), to withhold access to videotapes requested under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). The parties have filed cross-motions for summary judgment. Because the factual record is insufficient to find that either side is entitled to judgment as a matter of law, both motions will be denied.


In 1989, FHWA initiated "The Commercial Motor Vehicle Driver Fatigue and Alertness Study" ("the study") to observe and measure the development of fatigue by Commercial Motor Vehicle ("CMV") drivers under authentic road conditions. (Def.'s Mem. of P. & A. Supp. Mot. Summ. J. ("Def.'s Mem.") at 2.) The purposes of the study were to research CMV driver fatigue and to inform a review of FHWA's regulations on hours of service for CMV drivers. (Def.'s Mem. at 2; Def.'s Reply Mem. Supp. Summ. J. ("Def.'s Reply") at 3.)

As a part of the study, video cameras were mounted in the trucks of certain qualified CMV drivers. (Def.'s Mot. Summ. J. ("Def.'s Mot."), Decl. of Paul L. Brennan ("Brennan Decl.") ¶ 5.) These cameras simultaneously recorded the driver's face and the road extending out before him, with the results captured on videotape in a split-screen format. (Id.) The study collected over 4,000 hours of such "driver face" information. (Id. ¶ 8.) Several of the videotapes revealed drowsy drivers, some of whom appeared to be drifting off the road. (Id. ¶ 14.) However, no accidents occurred during the study. (Id.)

The subjects of the study were eighty male CMV drivers employed by three motor carriers. (Id. ¶ 3.) Every subject signed a form which read:

Each driver's results will be used only for the scientific goals of this research. Your name will not be used. Your results will be identified in the data base [sic] by a code number to maintain your privacy. (Id.) The tapes contain no information personally identifying the drivers other than the images of their faces. (Id. ¶ 8.) It is impossible, for purposes of AHAS's FOIA request, to redact the identifying features of the subject drivers because the informational value of the videotapes lies in the appearance of these features. (Id. ¶ 14.)

The study ran from 1989 to 1996. (Pl.'s Mot. Summ. J. ("Pl.'s Mot."), Pl.'s Statement of Facts ("Pl.'s Facts") ¶ 1; Def.'s Opp. to Pl.'s Mot. Summ. J., Def.'s Resp. to Pl.'s Statement of Facts ("Def.'s Resp. Facts") ¶ 1.) The Essex Corporation of Goleta, California collected the videotape data in 1993 under a contract with FHWA. (Id.) The study cost an estimated $4.5 million. (Pl.'s Mem. of P. & A. Supp. Mot. Summ. J. ("Pl.'s Mem.") at 5; Def.'s Mem. at 2.)

AHAS filed a FOIA request for access to 199 hours of driver face videotapes. (Pl.'s Facts ¶ 10; Def.'s Mot., Def.'s Statement of Facts ("Def.'s Facts") ¶ 1.) FHWA denied the request, citing FOIA Exemption 6 and stating that release of the information would constitute an invasion of the privacy of the drivers who participated in the study. (Pl.'s Facts ¶ 10; Def.'s Facts ¶ 2.) AHAS appealed FHWA's decision through the appropriate DOT administrative procedures.*fn1 (Def.'s Facts ¶ 3).

FHWA denied AHAS's administrative appeal. (Def.'s Facts ¶ 7.) AHAS filed this action, and both sides have moved for summary judgment.


Summary judgment is appropriate where the record shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment must provide the district court with a factual record sufficient to demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party may support its motion successfully if it "'inform[s] the district court of the basis for its motion, and identif[ies] those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C. Cir. 1988) (citing Celotex, 477 U.S. at 323). In this case involving cross-motions for summary judgment, the inquiry is whether either party, as a movant, has provided sufficient evidence that no factual dispute exists concerning the application of FOIA Exemption 6 to the videotapes requested by AHAS.

FOIA facilitates open access to federal government documents by members of the public. Dep't of Air Force v. Rose, 425 U.S. 352, 360-61 (1976); see also U.S. Dep't of Defense v. Fed. Labor Relations Bd., 510 U.S. 487, 494 (1994). It is "basic policy that disclosure, not secrecy, is the dominant objective" of FOIA. Rose, 425 U.S. at 361. Full disclosure serves crucial twin objectives: to ensure an informed public and to subject government activity to "the critical lens of public scrutiny." Alliance for the Wild Rockies v. Dep't of the Interior, 53 F. Supp. 2d 32, 35 (D.D.C. 1999); Southern Utah Wilderness Alliance, Inc. v. Hodel, 680 F. Supp. 37, 39 (D.D.C. 1998).

Congress recognized, however, that not all government information should be made available for disclosure under FOIA. Alliance for the Wild Rockies, 53 F. Supp. 2d at 35. Specifically, FOIA Exemption 6 permits a government agency, such as FHWA, to withhold "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. ยง 552(b)(6). The primary purpose of Exemption 6 is "to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." United States Dep't of State v. Washington Post Co., 456 U.S. 595, 599 (1982). Because FOIA's central purpose is to ensure public scrutiny of government activities, and not information about private citizens that "happens to be in the warehouse of ...

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