Fun With FOIA & “The Free State” of Maryland.

Background

The corridor of 295 and 95 between Baltimore City and BWI Thurgood Marshall Airport is used by thousands of commuters on a daily basis.  Anecdotally, it seems the average speed is at least 65MPH and frequently I’ve found myself doing 80-85MPH in order to keep up with traffic.

Except the speed limit is 55MPH.  55.  On 95, which is, at minimum, 3 lanes in each direction.  On 295, which is minimum 2 lanes in each direction.

To give a comparison, Rt. 64 in Virginia is two lanes in each direction and has a speed limit of 70MPH, reflecting the speed that normal, safe, drivers actually drive on the road.  According to the National Motorists Association speed limits should be set to the 85th percentile of free-flowing traffic.  That is, 85% of traffic is going slower than this speed.

Of course, objectively setting speed limits based on data requires 1) Collecting the data in the first place and 2) being willing to give up a source of revenue for the state.

My intention was to find out if the speed limit is artificially low in this area, and that it could lead to the State exploiting those it supposedly serves by dipping into their wallets with no rational basis.

FOIA Request

I’ve attached my original FOIA request to the state of Maryland for the raw data they’ve captured involving volume and speed data.  Typically, this is done with the boxes you’ll see on the side of the road with two air-filled rubber strips crossing the road.   When cars hit the strip, the puff of air triggers a volume count, and based on the timing of the two strips being hit, one can gauge speed.

The original rationale I gave was in relation to the casino being built, though that was not my true reason for the request, I just thought it was mundane enough and considered that rationale for FOIA requests typically doesn’t matter.  Somehow I don’t trust the state government to provide me with data if I tell them I intend to use it in ways that have the potential to make them look bad.  It’s understandable — everyone, government included, acts in their own self-interest.

First Denial

I’ve also attached the original denial to my request (MD295 FOIA Response), which references several exemptions indicating (surprise!) the state does not have to produce the data for me.

However, the rationale given, and presumably this was written by a lawyer, are incoherent at best, given my request and the actual text of the referenced statues.

Basically, they claimed that “some of the data” were compiled into intra- and inter-agency memos which are not available via FOIA if they are not available to private party litigation or within the interest of the public.  Except you’ll note my original request did not ask for memos or associated materials, but simply the raw traffic (volume and speed) data.  So off the bat, this was irrelevant.  Further, the statement that “some of” the request was compiled into memoranda implies that there are some other records that are in fact, not compiled into memoranda, yet were still not produced.  Presumably, they failed to release the “other” records because of the following:

The exemption referenced that producing this information for me would violate a US statute stating that highway safety data cannot be produced in discovery for “…any action arising from an occurrence…” on a highway, but more broadly related to highway safety and limiting government liability.  Well, great, because generally FOIA isn’t a legal action arising from an occurrence and is specifically separate from discovery, though it can be used similarly.  So again, this is irrelevant.

There was an associated Supreme Court case which had the incredible holding that suppressing data collection efforts actually serves the public interest!  The idea is that officials don’t feel accountable to constituents which means they are able to adhere to better data collection standards.  Quite frankly, I find this argument bordering on the absurd — we peer review scientific studies where the entire process is open, including data collection standards, so others can point out where deficiencies lie or where methodology is flaw.  The fact that we don’t for government statistics is absolutely beyond me.  The Supreme Court’s argument cannot even be validated or verified since the data collected in secrecy cannot be reviewed for accuracy or methodology flaws.

Furthermore, I don’t even have standing to initiate legal action on the stretch of road — I have no accidents there nor speeding tickets, hence there is no risk of me using the data for such purposes.  Even if I did have standing though, releasing the data still wouldn’t violate the code, because it states that the data would be inadmissible as evidence during legal action anyway.  So there is no harm in releasing the data.  Period.

Next Steps

I’m currently sending in the attached response letter (FOIADenialChallenge).  I intend to pursue judicial remedy if I am again denied, up to and including record custodian reprimand, damages, and fees, since this request was clearly improperly denied.

I also amended my request to include data collection methodologies including what devices and data scrubbing are performed on traffic volume and speed data.  Don’t want to give me the data?  Then I’ll do a meta-analysis on how it is collected to inspect any flaws that may exist there.

Do I expect the state of Maryland to respond with the data I requested?  No.  They have no incentive to do so — in fact, it makes more sense for them to waste as much of my time as possible.  I have a day job.  I can’t dedicated a ton of time to this pursuit, which unfairly tilts the playing field towards the government, yet again.

Ultimately, I expect to have to take this for judicial review, in front of a judge and make my arguments, something I’d prefer not to do as I am not a lawyer, and I abhor the protocol involved in court proceedings.   However, it’s something I’m willing to do if it means I get to stick it to the state of Maryland and ratchet back the expanse of the State in general one tiny bit, simply by using logical analysis.

Once I receive the data, or in the absence of receiving it, I will be writing a Baltimore Sun editorial either about my findings within the data (if provided), or about the unfairness of the FOIA process.  In either case, I intend to name and shame all officials involved in the process.  People generally only respond to incentives, and embarrassment is a fairly powerful incentive.  They may be immune to providing me data collected on the tax payers dime, but they are not immune from me publicizing the shady proceedings involved in extracting the fruits of my tax dollars from bureaucracy.

Time will tell whether there is any remnant of Maryland’s motto left in state government.  Are we really still “The Free State”?  Updates to come once a further response is received.

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