Will we know more about self-driving vehicle tests if the state starts collecting data?

That depends on what’s considered a trade secret.

Uber's fleet of autonomous Ford Fusions from 2016

Uber's fleet of autonomous Ford Fusions from 2016

Jared Wickerham/ For The Incline
MJ Slaby

Experts are taking a wait-and-see approach when it comes to proposed policy on self-driving car testing and whether the legislation will release testing details to the public.

In a report given to PennDOT Secretary Leslie S. Richards last month, the state Autonomous Vehicles Testing Policy Task Force, made up of industry members, government officials and academics, recommended that testers give specific information —some mandatory and some voluntary — to PennDOT on a semi-annual basis.

The mandatory information included:

  • total miles driven by the self-driving vehicles
  • total hours of testing in Pennsylvania
  • the number of self-driving vehicles that the tester has
  • if applicable, the number of reportable crashes the self-driving vehicle is in
  • if applicable, the number reportable where the self-driving vehicle was at fault

Voluntary information would be:

  • A list of counties where the self-driving vehicles were tested
  • the percentage of testing that happened on limited-access traffic ways
  • if applicable, the number of times the self-driving vehicle had to come to a safe stop due to some failure 
  • the number of employees a tester has involved with testing
  • the number of new jobs in the state as a result of the testing
  • if applicable, the number of new facilities constructed, purchased or rented in the state as result of the testing

Currently, private organizations and companies like Uber and Carnegie Mellon University are not required to give this information to the state or to publicly release it.

These policy recommendations are subject to legislation proposed by state lawmakers. But if the recommendations were to be included in new state law, the information could be public record.

Public record vs. trade secrets

It all depends on what actually makes it into the law, said Donald Gilliland, president of the Pennsylvania Freedom of Information Coalition.

The policy recommendations include paragraphs that say that PennDOT wouldn’t disclose confidential information (aka trade secrets), except to those who agree it’s confidential, such as employees and professional advisors. And that confidential information could be “information about and on the Tester’s products, customers, and business operations and strategy.” However the task force pointed out that PennDOT is subject to Right to Know law that would make the information public.

And that’s common, added Melissa Melewsky, media law attorney with the Pennsylvania NewsMedia Association. She said when a government agency is working with a private company, it’s usually written into the contract that trade secrets would be protected, but that the state is subject to Right to Know law. (The example contract in the recommendations includes this information too.)

Melewsky said trade secrets are things that competitors could use to damage a company financially. For example, the recipe for Coca-Cola. In this case, she said if a Right to Know request came to PennDOT, it would be up to PennDOT to decide if the request included trade secrets.

But, Melewsky said government agencies often make that decision in consultation with the contractor who it is about, so, in this case, PennDOT would ask the self-driving vehicle tester. That contractor is allowed to submit evidence and explain why they think something is a trade secret, she said.

Tester pushback

Included with the self-driving car policy recommendations were comments from task force members who disagreed.

When it came to the data collected by PennDOT, both Wayne Weikel, senior director of state government affairs for Alliance of Automobile Manufacturers and Jeffrey Perry, director of public policy for General Motors, wrote that specific miles and specific hours have proprietary value. They said that instead those numbers should be reported in broad ranges.

Shari Shapiro, Uber’s head of public affairs for Pennsylvania and Delaware, also disagreed with the collection of miles and hours saying it wasn’t relevant to the safety issues that PennDOT would oversee and “could reveal commercially sensitive information.”

Melewsky said she didn’t see how total miles or hours would be protectable as trade secrets if requested, because she doesn’t know how competitors could use that information to damage testers.

Shapiro added in her comments that she thought all of the reporting should be voluntary instead of some mandatory, and the voluntary items about employment and facilities “would impose an administrative burden unrelated to safety or testing.”

Testing of self-driving cars is already happening in the state, with Uber launching its public pilot program in September in Pittsburgh. But the company has yet to release ridership numbers or share an exact area of the city where the pilot is happening.

After several media reports of fender benders involving self-driving cars, Uber officials said in November that they were working internally on ways to release information about these incidents to the public. On Friday, an Uber spokesman confirmed that was still the case.

Gilliland said he wouldn’t be surprised if Uber puts up a fight about the data. He said it will likely take time to determine what is eventually public and what would be trade secrets. First, there will have to be new laws, then records requests that are likely followed by a court process that isn’t cheap and can take up to two years, he said.

Melewsky added that she’s seen cases on trades secrets go both ways, sometimes in favor of the public record and sometimes in favor of the company. Just because the company says, “this is a trade secret” doesn’t mean thats what the government agency or state Office of Open Records will say, she said.

Read the policy recommendations here:

A public comment period ended last week, and PennDOT plans to respond to each one before deciding if edits are needed.