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Secret Metro Safety Commission Proposed: Post Says “Cloak of Invisibility” Is “Simply Untenable”

dcogcadmin | June 16, 2016

UPDATE: A slightly revised version of the legislation was introduced in the D.C. Council July 11 as Bill B21-828 and referred to the Committee on Finance and Revenue. The committee chair, Jack Evans (D-Ward 2), has also served since January 2015 as the chair of the board of WMATA, the transit agency. The Council returns from its summer recess September 15. Open government advocates in the three states comprising the proposed safety commission are reviewing the new text closely as it still does not provide for clear and enforceable access to meetings and records.

Unveiled in late May, a plan by regional leaders will create a Metrorail safety oversight body with power to investigate problems but also the power to meet in secret and withhold its findings from the public.  See press coverage from the Post and WTOP; the draft legislation is here.

In D.C., the Council could vote on the proposal this summer, but the other two legislatures have ended their 2016 sessions so no action is expected until 2017.

The D.C. Open Government Coalition is casting a skeptical eye on the proposal, and reviewing the history of other interstate bodies to determine if the secrecy provisions are unprecedented.

The new Metrorail Safety Commission would replace a dysfunctional Tri-State Oversight Committee (the Post quoted a Virginia legislator that it “failed miserably”).  And Obama administration officials sent signals that federal funds were likely to be withheld unless there were stronger safety oversight in place.

The new commission can adopt rules, inspect operations (including through subpoena power if needed), order corrective actions to address problems, impose citations and fines and compel Metro to prioritize spending on safety-critical needs.

Virginia governor Terry McAuliffe told a WTOP radio audience May 25 he was “sick and tired of” Metro’s problems and hailed the consensus among the three leaders on the proposal as “a big deal.”

Open government advocates raised questions, however. Secrecy concerns stem from provisions in paragraph 21of the draft legislation that the new body will not be subject to open records and open meetings laws but instead would “adopt its own policies” (with a vague nod they should be “based on” federal law).

In addition, investigation reports could be withheld from the public and given only to the D.C. mayor and the Maryland and Virginia governors.

Writing June 2, the Washington Post editorial board welcomed a new era of trust and accountability that could result, but questioned why the region’s political leaders would “subvert” the project by “carving out a zone of secrecy in which to shroud the new commission’s work.” The board concluded, “It’s doubtful there is any surer way to accelerate the loss of public confidence in an agency already reeling from it” and that “It is simply untenable that Metrorail, already the subject of intense scrutiny, should have its safety overseers granted a cloak of invisibility.”

Accident investigations of the National Transportation Safety Board are traditionally held closely, often for months or years, until finally made public. A Post letter-writer from the air safety field on June 3 argued the same is needed in Metro, since “full transparency is the enemy of safety” and internal sharing of information between employees, executives and regulators needs to flow freely “without reprisal.”  

The Coalition drew attention to the conflict–between this practice and the need to reassure the transit-riding public–in a panel discussion a year ago at an Open Government Summit in the wake of the fatal January 2015 Metro tunnel fire. The NTSB report on the fire, its causes and the shaky Metro response, while presented in part in May is still not completely released.