March 24, 2010 Print

AGO says drug and alcohol test results of ferry workers not public

Well, today is turning into a day dominated by public records issues for me.

Last August a Seattle-Bainbridge Island ferry had a “hard landing” into Coleman Dock in Seattle. Scott St. Clair, EFF’s investigative reporter, filed a public records request with the Washington State Ferries asking for records related to the incident. The Washington State Department of Transportation provided several documents, but redacted a document that contained drug and alcohol test results for the ferry’s crew. The department explained that federal regulations (49 C.F.R. Sec. 40.321) prohibited releasing test results.

We requested a reconsideration, noting that access to records under the Public Records Act can only be denied by citing a specific statutory exemption in the PRA or in another statute. DOT had provided an administrative regulation but failed to cite a statutory citation that directly exempted the information from disclosure. We were denied a second time.

We then requested a review by the Attorney General’s Office (AGO), and today we received the AGO’s response saying it believes the agency’s decision to withhold drug and alcohol test results is proper. The letter explained that the U.S. Department of Transportation is charged with regulating the safety of marine vessels and that the regulations addressing test results were properly adopted and could fall under the “other statute” designation. Additionally, the AGO wrote that federal law would pre-empt state law in this area.

Bottom line: if you were a passenger on the ferry that crashed, you’re not entitled to find out if any of the crew tested positive.

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