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Adversaries in 2015 Philly Amtrak derailment case fight together for federal records

The latest question in the prosecution of an Amtrak engineer who derailed a train: Can lawyers get documents from the NTSB? /

Amtrak engineer Brandon Bostian
Amtrak engineer Brandon BostianRead more / File Photograph

The people prosecuting the engineer responsible for the 2015 Amtrak derailment in Philadelphia and his defense attorney have found common ground over a frustration with federal authorities who are seemingly loath to part with records about the deadly crash.

Last July, Christopher Phillips, the deputy attorney general handling the prosecution of Brandon Bostian, filed a records request with the National Transportation Safety Board for all documents not included in its public docket on the derailment.

Phillips' request for documents from the federal agency that investigates transportation accidents has not been answered, he said Thursday during a status conference at the Philadelphia Criminal Justice Center. He also said the NTSB informed him Congress has established that the board cannot be compelled to release the documents through a subpoena from the Philadelphia criminal court.

The NTSB does not have the power to prosecute or order actions, but its reviews, which are informed by voluminous dockets released before an investigative finding, are designed to provide a full accounting of how an accident happened and what steps could be taken to prevent a similar accident. The docket on the 2015 derailment includes 2,700 pages.

The docket includes materials that establish the facts of the crash and are the basis for investigative findings, and anything left out is "duplicative or extraneous," the NTSB reported in a statement Thursday. Documents left out can in some cases be provided through public records requests, but the NTSB confirmed a subpoena alone would not force the release of documents. Any request would be reviewed by the NTSB's general counsel, according to regulations.

The restrictions on information release exist to protect the NTSB's deliberative process, keep the agency from becoming embroiled in controversy, and ensure the agency's impartiality, regulations state.

Bostian is charged by the Pennsylvania Attorney General's Office with 200 counts of reckless endangerment, eight counts of involuntary manslaughter, and one count of causing a catastrophe. On May 12, 2015, Amtrak Train 188 operated by Bostian derailed at the Frankford Curve, killing eight people and injuring almost 200. The NTSB found the train was traveling 106 mph, more than twice the speed limit for that track, as it approached the curve. Bostian was found to have no drugs or alcohol in his system at the time and was not using a cellphone.

The NTSB attributed the crash to Bostian's losing track of where he was on the route to New York City, possibly due to radio chatter about a nearby SEPTA train being hit with a rock.

Prosecutors have argued Bostian still bears criminal responsibility for the derailment. His defense attorney, Brian McMonagle, has said what happened was a tragic accident.

Bostian was not in court for Thursday's hearing.

Phillips did not specify in court what information he was seeking from the NTSB documents, but McMonagle said he was equally interested in obtaining the records for discovery.

"This is something far different than anything I've been involved with, with both the prosecution and the defense both being walled off," McMonagle said after the hearing.

Common Pleas Court Judge Kathryn Streeter-Lewis scheduled the next conference on the case for Aug. 22.