Confidentiality Snag Delays Late-Trains Case

by Jim Mathews / President & CEO

A resolution in Amtrak’s 2022 STB late-trains case against Union Pacific has hit a snag, with a dispute over the release of what Amtrak says is commercially sensitive information delaying more action in the case until at least mid-March.

Amtrak is accusing UP of releasing proprietary Amtrak information in its final reply brief to the docket on Dec. 23, while UP says the information is UP’s to release and not Amtrak’s to block. That kind of dispute really isn’t in the Surface Transportation Board’s scope, so STB said today it is giving Amtrak until March 13 to go to a Federal court to press its case that UP has no right to disclose whatever it disclosed in that Dec. 23 brief.

If Amtrak files a motion in Federal court to block the information before March 14, STB says it will order Union Pacific to submit a public, redacted version of the Dec. 23 brief by March 17; if Amtrak doesn’t go to court, however, “the Board will treat that as an abandonment or waiver of the claim that the protective order restricts UP’s ability to publicly disclose the information that is the subject of Amtrak’s motion in this proceeding.”

I know it's a lot of legalese, and a lot of head-scratching since what precisely is being challenged remains a secret. But one thing is very clear: STB intends to keep pressing on with this proceeding regardless of this dispute: “Any action regarding this confidentiality dispute will not operate to stay, or otherwise delay, the proceeding before the Board,” STB said today in its order.

The dispute temporarily held up releasing non-party replies in this case to the public docket – including the non-party reply your Association filed in this case. STB wanted to be sure that none of the nine non-party replies that were filed implicated the confidential information that’s in dispute. UP and Amtrak looked over all the filings and concluded that none of them, including ours, touched on those issues so STB released all the replies to the public docket.

You can read ours by clicking here.

How the STB will handle this very first-ever Section 213 case, accusing a host railroad of violating the metrics and standards authorized in the 2008 Passenger Rail Investment and Improvement Act, or PRIIA, could decide how regulators treat all late-trains cases in the future.

PRIIA created the framework that permits the Federal government to set standards for measuring host railroads’ performance in hosting passenger trains, to investigate potential violations, and to impose remedies or penalties. Just before Christmas two years ago, Amtrak brought a claim to the STB against Union Pacific for consistently poor on-time performance on the Sunset Limited running on UP territory, blaming preference-clause violations and intentional dispatching discrimination.

A little more than a month ago, Amtrak asked the Surface Transportation Board in a motion to remove Union Pacific’s reply brief from the public docket, citing the risk of commercial harm to Amtrak, and the Board agreed to remove it temporarily while it considered Amtrak’s motion.

Today the STB agreed to put a protective order in place on the filings from UP and Amtrak, removing them from the public docket, until the two can “resolve their dispute in an appropriate forum.”

STB’s order permits any party in the case to file their materials with the “CONFIDENTIAL” stamp if they believe in good faith that the information really is confidential or sensitive. But the Board made a point of emphasizing that publicly available information or information obtained “outside of this proceeding from a person with a right to disclose it publicly” isn’t covered by the protective order, whether than information is labeled or not.

If Amtrak goes to court, UP will have to file its reply brief to the public docket by March 17, “with the information contained in Table 1 of Amtrak’s January 17 motion redacted,” STB ordered today.

The Board also told UP and Amtrak they must file joint status updates on the confidentiality dispute every 30 days, and within three days of the conclusion of any action around the dispute they both must notify STB.

You can review all of the filings to the case docket, including data submitted by the parties about specific delays and incidents, by clicking here to visit the Surface Transportation Board website. Search for “Dockets,” and then enter the docket NOR 42175.