PIERCE COUNTY, WASHINGTON v. GUILLEN, legal guardian of GUILLEN et al., MINORS, et al.

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
129 OCTOBER TERM, 2002
Syllabus
PIERCE COUNTY, WASHINGTON v. GUILLEN, legal
guardian of GUILLEN et al., MINORS, et al.
certiorari to the supreme court of washington
No. 01–1229. Argued November 4, 2002—Decided January 14, 2003
As part of its effort to improve the safety of the Nation’s highways, Con-
gress adopted the Hazard Elimination Program (Program), 23 U. S. C.
§ 152, which provides state and local governments with funding to im-
prove the most dangerous sections of their roads. To be eligible for
such funding, a government must undertake a thorough evaluation of
its public roads. Because of States’ concerns that the absence of con-
fidentiality with respect to § 152’s compliance measures would increase
the liability risk for accidents that took place at hazardous locations
before improvements could be made and Department of Transporta-
tion’s concerns that the States’ reluctance to be forthcoming in their
data collection efforts undermined the Program’s effectiveness, Con-
gress, in 1987, adopted § 409, which provided that materials “compiled”
for § 152 purposes “shall not be admitted into evidence in Federal or
State court.” Responding to subsequent court decisions holding that
§ 409 did not apply to pretrial discovery and protected only materials
that an agency actually generated for § 152 purposes, not documents
that the agency collected to prepare its § 152 application, Congress ex-
pressly made the statute applicable to pretrial discovery in 1991 and
added the phrase “or collected” after the word “compiled” in 1995. Sev-
eral months before respondent Ignacio Guillen’s wife died in an automo-
bile accident at an intersection in petitioner county, petitioner’s § 152
funding request for the intersection was denied. Its second request
was approved three weeks after the accident. Petitioner declined to
provide respondents’ counsel with information about accidents at the
intersection, asserting that any relevant information was protected by
§ 409. Respondents then filed an action in Washington state court, al-
leging that petitioner’s refusal to disclose violated the State’s Public
Disclosure Act (PDA). The trial court granted respondents summary
judgment, ordering petitioner to disclose five documents and pay re-
spondents’ attorney’s fees. While petitioner’s appeal was pending, re-
spondents filed another state-court action, alleging that petitioner had
been negligent in failing to install proper traffic controls at the inter-
section. Petitioner refused to comply with their discovery request for
information regarding accidents at the intersection, and respondents

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
130 PIERCE COUNTY v. GUILLEN
Syllabus
successfully sought an order to compel. The State Court of Appeals
granted petitioner’s motion for discretionary appellate review of the in-
terlocutory order, consolidated this and the PDA appeals, and in large
part affirmed, concluding that four of the documents requested in the
PDA action were not protected. On further appeal, the Washington
Supreme Court determined that disclosure under the relevant state
laws would be appropriate only if the requested materials were not pro-
tected by § 409; that protection under § 409, as amended in 1995, turned
on whether the documents were collected for § 152 purposes, without
regard to the identity of the documents’ custodian; and that the 1995
amendment’s adoption exceeded Congress’ powers under the Spending,
Commerce, and Necessary and Proper Clauses. It therefore vacated
the lower court’s judgment and remanded the case.
Held:
1. This Court lacks jurisdiction to hear the tort portion of the case
but has jurisdiction to hear the PDA portion. Certain state-court judg-
ments can be treated as final for jurisdictional purposes even though
further proceedings are to take place in the state courts. Cox Broad-
casting Corp. v. Cohn, 420 U. S. 469, 477–483 (outlining four exceptions
to the finality rule). In the tort action, the Washington Supreme Court
resolved only a discovery dispute; it did not determine the litigation’s
final outcome. And the Cox exceptions do not apply to that action.
Accordingly, this Court dismisses the writ of certiorari with respect
to that action for want of jurisdiction. However, the PDA action falls
squarely under the first Cox exception. The State Supreme Court’s
ruling that the 1995 amendment to § 409 was invalid, which left four
documents subject to disclosure under the PDA and only the amount of
attorney’s fees remaining to be decided on remand, is “conclusive” as to
the federal issue and “the outcome of further proceedings preordained,”
id., at 479. Pp. 140–143.
2. Both the original § 409 and the 1995 amendment fall within Con-
gress’ Commerce Clause power. Pp. 143–148.
(a) Before addressing the constitutional question, this Court must
determine § 409’s scope. Evidentiary privileges, such as § 409, must be
construed narrowly because they impede the search for the truth. See
Baldrige v. Shapiro, 455 U. S. 345, 360. This Court agrees with the
United States that § 409 protects only information compiled or collected
for § 152 purposes, but does not protect information that was compiled
or collected for purposes unrelated to § 152, as held by agencies that
compiled or collected that information, even if the information was at
some point “collected” by another agency for § 152 purposes. Although
respondents offer the narrowest interpretation of § 409—that § 409 pro-
tects only materials actually created by the agency responsible for seek-
ing § 152 funding—their reading leaves the 1995 amendment (changing

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
131 Cite as: 537 U. S. 129 (2003)
Syllabus
“compiled” to “compiled or collected”) with no real and substantial ef-
fect. By contrast, petitioner’s reading—that a document initially pre-
pared by an agency for purposes unrelated to § 152, and held by that
agency, becomes protected under § 409 when a copy of that document is
collected by another agency for § 152 purposes—gives the statute too
broad of a reach, thus conflicting with the rule that privileges should
be construed narrowly. The Government’s interpretation suffers from
neither of these faults. It gives effect to the 1995 amendment by mak-
ing clear that § 409 protects not just the information an agency compiles
for § 152 purposes but also any information that an agency collects from
other sources for those purposes. It also takes a narrower view of the
privilege by making it inapplicable to information compiled or collected
for purposes unrelated to § 152 and held by agencies that are not pursu-
ing § 152 objectives. The Court’s view of § 409 is reinforced by the 1995
amendment’s history. “[A]s collected” was added to address confusion
about § 409’s proper scope and to overcome judicial reluctance to protect
raw data collected for § 152 purposes. Congress wished to make clear
that § 152 was not intended to be an effort-free tool in litigation against
state and local governments, but § 409’s text evinces no intent to make
plaintiffs worse off than they would have been had § 152 funding never
existed. Pp. 143–146.
(b) Section 409 is a proper exercise of Congress’ Commerce Clause
authority to “regulate the use of the channels of interstate commerce”
and “to regulate and protect the instrumentalities of interstate com-
merce,” United States v. Lopez, 514 U. S. 549, 558. Congress adopted
§ 152 to assist state and local governments in reducing hazardous condi-
tions in the Nations’ channels of commerce, but that effort was impeded
by the States’ reluctance to comply fully with § 152’s requirements lest
those governments become easier targets for negligence actions by pro-
viding a centralized location from which would-be plaintiffs could obtain
much of the evidence necessary to sue. Because Congress could reason-
ably believe that adopting a measure eliminating an unforeseen side
effect of § 152’s information-gathering requirement would result in more
diligent collection efforts, more candid discussions of hazardous loca-
tions, better informed decisionmaking, and greater safety on the Na-
tion’s roads, both the original § 409 and the 1995 amendment can be
viewed as legislation aimed at improving safety in the channels of com-
merce and increasing protections for the instrumentalities of interstate
commerce. Pp. 146–148.
Certiorari dismissed in part; 144 Wash. 2d 696, 31 P. 3d 628, reversed
and remanded.
Thomas, J., delivered the opinion for a unanimous Court.

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
132 PIERCE COUNTY v. GUILLEN
Opinion of the Court
Daniel R. Hamilton argued the cause for petitioner.
With him on the briefs was Susan P. Jensen.
Deputy Solicitor General Clement argued the cause for
the United States as intervenor. On the briefs were Solici-
tor General Olson, Assistant Attorney General McCallum,
Deputy Solicitor General Kneedler, Malcolm L. Stewart,
Paul R. Q. Wolfson, Mark B. Stern, Alisa B. Klein, Kirk K.
Van Tine, Paul M. Geier, Dale C. Andrews, Laura C. Fen-
tonmiller, and Edward V. A. Kussy.
Salvador A. Mungia argued the cause for respondents.
With him on the brief were Darrell L. Cochran and J. Brad-
ley Buckhalter.*
Justice Thomas delivered the opinion of the Court.
We address in this case whether 23 U. S. C. § 409, which
protects information “compiled or collected” in connection
*Briefs of amici curiae urging reversal were filed for the State of Loui-
siana by Richard P. Ieyoub, Attorney General, John C. Young and James
R. Dawson, Assistant Attorneys General, and Lawrence A. Durant; for
the State of Washington et al. by Christine O. Gregoire, Attorney General
of Washington, and William Berggren Collins and Michael E. Tardif, Sen-
ior Assistant Attorneys General, and by the Attorneys General for their
respective jurisdictions as follows: Bruce M. Botelho of Alaska, Robert A.
Butterworth of Florida, Earl I. Anzai of Hawaii, James E. Ryan of Illinois,
Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Frankie
Sue Del Papa of Nevada, Robert Tenorio Torres of the Northern Mariana
Islands, Betty D. Montgomery of Ohio, Hardy Myers of Oregon, D. Mi-
chael Fisher of Pennsylvania, Mark L. Shurtleff of Utah, and William
H. Sorrell of Vermont; for the Association of American Railroads by Car-
ter G. Phillips, Stephen B. Kinnaird, and Daniel Saphire; and for the
Product Liability Advisory Council, Inc., by Kenneth S. Geller and John
J. Sullivan.
A brief of amicus curiae urging affirmance was filed for the Association
of Trial Lawyers of America by Jeffrey Robert White.
Briefs of amici curiae were filed for the Washington State Trial Law-
yers Association Foundation by Debra L. Stephens and Bryan P. Har-
netiaux; for Lynn A. Baker et al. by Ms. Baker, pro se; and for Robert
Whitmer et al. by Charles K. Wiggins, Kenneth W. Masters, and Keith
L. Kessler.

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
133 Cite as: 537 U. S. 129 (2003)
Opinion of the Court
with certain federal highway safety programs from being
discovered or admitted in certain federal or state trials, is a
valid exercise of Congress’ authority under the Constitution.
I
A
Beginning with the Highway Safety Act of 1966, Congress
has endeavored to improve the safety of our Nation’s high-
ways by encouraging closer federal and state cooperation
with respect to road improvement projects. To that end,
Congress has adopted several programs to assist the States
in identifying highways in need of improvements and in
funding those improvements. See, e. g., 23 U. S. C. §§ 130
(Railway-Highway Crossings), 144 (Highway Bridge Re-
placement and Rehabilitation Program), and 152 (Hazard
Elimination Program). Of relevance to this case is the Haz-
ard Elimination Program (Program) which provides state
and local governments with funding to improve the most
dangerous sections of their roads. To be eligible for funds
under the Program, a state or local government must under-
take a thorough evaluation of its public roads. Specifically,
§ 152(a)(1) requires them to
“conduct and systematically maintain an engineering
survey of all public roads to identify hazardous locations,
sections, and elements, including roadside obstacles and
unmarked or poorly marked roads, which may constitute
a danger to motorists, bicyclists, and pedestrians, assign
priorities for the correction of such locations, sections,
and elements, and establish and implement a schedule
of projects for their improvement.”
Not long after the adoption of the Program, the Secretary
of Transportation reported to Congress that the States
objected to the absence of any confidentiality with respect
to their compliance measures under § 152. H. R. Doc.
No. 94–366, p. 36 (1976). According to the Secretary’s re-

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
134 PIERCE COUNTY v. GUILLEN
Opinion of the Court
port, the States feared that diligent efforts to identify roads
eligible for aid under the Program would increase the risk of
liability for accidents that took place at hazardous locations
before improvements could be made. Ibid. In 1983, con-
cerned that the States’ reluctance to be forthcoming and
thorough in their data collection efforts undermined the
Program’s effectiveness, the United States Department of
Transportation (DOT) recommended the adoption of legisla-
tion prohibiting the disclosure of information compiled in
connection with the Program. See Brief for United States
as Amicus Curiae in Alabama Highway Dept. v. Boone,
O. T. 1991, No. 90–1412, p. 10, cert. denied, 502 U. S. 937
(1991).
To address the concerns expressed by the States and the
DOT, in 1987, Congress adopted 23 U. S. C. § 409, which
provided:
“Notwithstanding any other provision of law, reports,
surveys, schedules, lists, or data compiled for the pur-
pose of identifying[,] evaluating, or planning the safety
enhancement of potential accident sites, hazardous road-
way conditions, or railway-highway crossings, pursuant
to sections 130, 144, and 152 of this title or for the pur-
pose of developing any highway safety construction im-
provement project which may be implemented utilizing
Federal-aid highway funds shall not be admitted into ev-
idence in Federal or State court or considered for other
purposes in any action for damages arising from any oc-
currence at a location mentioned or addressed in such
reports, surveys, schedules, lists, or data.” Surface
Transportation and Uniform Relocation Assistance Act
of 1987, § 132, 101 Stat. 170.
The proper scope of § 409 became the subject of some dis-
pute among the lower courts. Some state courts, for exam-
ple, concluded that § 409 addressed only the admissibility of
relevant documents at trial and did not apply to pretrial dis-

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
135 Cite as: 537 U. S. 129 (2003)
Opinion of the Court
covery. According to these courts, although information
compiled for § 152 purposes would be inadmissible at trial, it
nevertheless remained subject to discovery. See, e. g., Ex
parte Alabama Highway Dept., 572 So. 2d 389 (Ala. 1990),
cert. denied sub nom. Alabama Highway Dept. v. Boone,
502 U. S. 937 (1991); Light v. New York, 149 Misc. 2d 75, 80,
560 N. Y. S. 2d 962, 965 (Ct. Cl. 1990); Indiana Dept. of
Transp. v. Overton, 555 N. E. 2d 510, 512 (Ind. App. 1990).
Other state courts reasoned that § 409 protected only materi-
als actually generated by a governmental agency for § 152
purposes, and documents collected by that agency to prepare
its § 152 funding application remained both admissible and
discoverable. See, e. g., Wiedeman v. Dixie Elec. Member-
ship Corp., 627 So. 2d 170, 173 (La. 1993), cert. denied, 511
U. S. 1127 (1994). See also, e. g., Southern Pacific Transp.
Co. v. Yarnell, 181 Ariz. 316, 319–320, 890 P. 2d 611, 614–615,
cert. denied, 516 U. S. 937 (1995) (applying the same rule in
the context of the Railway-Highway Crossings program);
Tardy v. Norfolk Southern Corp., 103 Ohio App. 3d 372, 378–
379, 659 N. E. 2d 817, 820–821 (same), appeal not allowed, 74
Ohio St. 3d 1408, 655 N. E. 2d 187 (1995) (Table).
Responding to these developments, Congress amended
§ 409 in two ways. In 1991, Congress expressly made the
statute applicable to pretrial discovery, see Intermodal Sur-
face Transportation Efficiency Act of 1991, § 1035(a), 105
Stat. 1978, and in 1995, Congress added the phrase “or
collected” after the word “compiled,” National Highway
System Designation Act of 1995, § 323, 109 Stat. 591. As
amended, § 409 now reads:
“Notwithstanding any other provision of law, reports,
surveys, schedules, lists, or data compiled or collected
for the purpose of identifying, evaluating, or planning
the safety enhancement of potential accident sites, haz-
ardous roadway conditions, or railway-highway cross-
ings, pursuant to sections 130, 144, and 152 of this title
or for the purpose of developing any highway safety con-

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
136 PIERCE COUNTY v. GUILLEN
Opinion of the Court
struction improvement project which may be imple-
mented utilizing Federal-aid highway funds shall not be
subject to discovery or admitted into evidence in a Fed-
eral or State court proceeding or considered for other
purposes in any action for damages arising from any oc-
currence at a location mentioned or addressed in such
reports, surveys, schedules, lists, or data.”
B
Ignacio Guillen’s wife, Clementina Guillen-Alejandre, died
on July 5, 1996, in an automobile accident at the intersection
of 168th Street East and B Street East (168/B intersection),
in Pierce County, Washington. Several months before the
accident, petitioner had requested § 152 funding for this in-
tersection, but the request had been denied. Petitioner re-
newed its application for funding on April 3, 1996, and the
second request was approved on July 26, 1996, only three
weeks after the accident occurred.
Beginning on August 16, 1996, counsel for respondents
sought to obtain from petitioner information about accidents
that had occurred at the 168/B intersection.1 Petitioner de-
clined to provide any responsive information, asserting that
any relevant documents were protected by § 409. After in-
formal efforts failed to resolve this discovery dispute, re-
spondents turned to the Washington courts.
Respondents first filed an action alleging that petitioner’s
refusal to disclose the relevant documents violated the
1 In a letter dated October 28, 1996, respondents’ counsel clarified his
request as follows: “ ‘I want to make the record clear that we are not
seeking any reports that were specifically written for developing any
safety construction improvement project at the intersection at issue.’ ”
Quoted in 144 Wash. 2d 696, 703, 31 P. 3d 628, 633 (2001). The letter
further explained, however, that respondents were seeking “ ‘a copy of all
documents that record the accident history of the intersection that may
have been used in the preparation of any such reports.’ ” Quoted in id.,
at 703–704, 31 P. 3d, at 633.

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
137 Cite as: 537 U. S. 129 (2003)
Opinion of the Court
State’s Public Disclosure Act (PDA).2 The trial court
granted summary judgment in favor of respondents and or-
dered petitioner to disclose five documents 3 and pay re-
spondents’ attorney’s fees. Petitioner appealed.
While the appeal in the PDA action was pending, respond-
ents filed a separate action, asserting that petitioner had
been negligent in failing to install proper traffic controls at
the 168/B intersection. In connection with the tort action,
respondents served petitioner with interrogatories seek-
ing information regarding accidents that had occurred at the
168/B intersection. Petitioner refused to comply with the
discovery request, once again relying on § 409. Respond-
ents successfully sought an order to compel, and petitioner
moved for discretionary appellate review of the trial judge’s
interlocutory order. The Washington Court of Appeals
2 The relevant portion of the PDA provides:
“Upon the motion of any person having been denied an opportunity to
inspect or copy a public record by an agency, the superior court in the
county in which a record is maintained may require the responsible agency
to show cause why it has refused to allow inspection or copying of a spe-
cific public record or class of records. The burden of proof shall be on
the agency to establish that refusal to permit public inspection and copy-
ing is in accordance with a statute that exempts or prohibits disclosure in
whole or in part of specific information or records.” Wash. Rev. Code
§ 42.17.340(1) (2000).
3 The trial court’s judgment encompassed the following materials: (1) a
list of accidents at the 168/B intersection from 1990 through 1996, pre-
pared by the Washington State Patrol, showing the location, date, time,
and nature of the accident, which petitioner subsequently obtained for the
purpose of conducting a study of the safety of the intersection; (2) a colli-
sion diagram dated January 5, 1989, prepared by a county employee re-
sponsible for investigating accidents at the intersection; (3) another colli-
sion diagram dated July 18, 1988, prepared by the same county employee;
(4) reports of accidents at the intersection prepared by law enforcement
agencies investigating the accidents; and (5) a draft memorandum from
petitioner’s public works director to a county council member, consist-
ing of information used for petitioner’s application for § 152 funds for the
168/B intersection. See 144 Wash. 2d, at 704–705, and n. 1; 31 P. 3d, at
634, and n. 1.

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
138 PIERCE COUNTY v. GUILLEN
Opinion of the Court
granted the motion and consolidated the appeal in the tort
case with the appeal in the PDA action.
On review, the Washington Court of Appeals in large part
affirmed the decisions below. In interpreting § 409, the
court distinguished between an agency that collects or com-
piles information for purposes unrelated to § 152 and one
that collects and compiles information pursuant to § 152. In
the court’s view, documents held by the first agency would
not be protected by § 409, even if they subsequently were
used for § 152 purposes, whereas documents held by the sec-
ond agency would be protected, so long as their collection or
compilation was the result of § 152 efforts. Applying these
principles, the court concluded that only one of the docu-
ments at issue in the PDA case—the draft memorandum by
the county’s public works director, see n. 3, supra—was pro-
tected by § 409 because it had been prepared for § 152 pur-
poses. The rest were not protected because respondents
“carefully requested reports in the hands of the sheriff or
other law enforcement agencies, not reports or data ‘col-
lected or compiled’ by the Public Works Department.” 96
Wash. App. 862, 873, 982 P. 2d 123, 129 (1999). The appellate
court also expressed doubt about the constitutionality of
§ 409 as applied in state courts, but decided not to resolve
the question because it was not raised. Id., at 875, n. 26,
982 P. 2d, at 130, n. 26. Petitioner appealed once again.
The Washington Supreme Court’s decision followed a
three-step analysis. The court first determined that disclo-
sure of the information respondents sought under both the
PDA and state discovery rules would be appropriate only if
the materials requested by respondents were not protected
by § 409.
Second, examining the scope of § 409, the Washington Su-
preme Court rejected, as “unsound in principle and unwork-
able in practice,” 144 Wash. 2d 696, 727, 31 P. 3d 628, 646
(2001), the appellate court’s view that § 409 drew a distinc-
tion between documents “as held by” the Public Works De-

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
139 Cite as: 537 U. S. 129 (2003)
Opinion of the Court
partment and documents “as held by” the county sheriff.
Rather, it reasoned that § 409, as amended in 1995, purported
to protect from disclosure any documents prepared for state
and local purposes, so long as those documents were also
collected for § 152 purposes. In the court’s view, the statute
did not turn on the identity of the custodian of the document
at issue.
Having so construed § 409, the court proceeded to consider
whether the adoption of the 1995 amendment to § 409 was
a proper exercise of Congress’ powers under the Spending,
Commerce, and Necessary and Proper Clauses of Article I
of the United States Constitution. With respect to the
Spending Clause, the court found that “barring the admissi-
bility and discovery in state court of accident reports and
other traffic and accident materials and ‘raw data’ that were
originally prepared for routine state and local purposes, sim-
ply because they are ‘collected’ for, among other reasons,
federal purposes pursuant to a federal statute” did not rea-
sonably serve any “valid federal interest in the operation of
the federal safety enhancement program.” Id., at 737, 31
P. 3d, at 651. With respect to the Commerce Clause, the
court concluded that § 409 was not an “integral part” of the
regulation of the federal-aid highway system and, thus, could
not be upheld under Hodel v. Indiana, 452 U. S. 314 (1981).
144 Wash. 2d, at 742, 31 P. 3d, at 654. Finally, with respect
to the Necessary and Proper Clause, the court ruled that,
although Congress could require state courts to enforce a
federal privilege protecting materials “that would not have
been created but-for federal mandates such as . . . [§ ]152,” it
was “neither ‘necessary’ nor ‘proper’ for Congress in 1995 to
extend that privilege to traffic and accident materials and
raw data created and collected for state and local purposes,
simply because they are also collected and used for federal
purposes.” Id., at 743, 31 P. 3d, at 654–655.
In light of its conclusion that the 1995 amendment to § 409
exceeded Congress’ power under the Constitution, and,

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
140 PIERCE COUNTY v. GUILLEN
Opinion of the Court
therefore, was not binding on the States, the court held that
§ 409 protected only information originally created for § 152
purposes. But, rather than determining whether the docu-
ments or data at issue in this case would be protected under
its reading of § 409, the court vacated the lower court’s judg-
ment and remanded the case for the lower courts to consider
the record in the first instance.4
Three justices concurred only in the result. They dis-
agreed with the majority’s broad reading of the statute and
would have held that § 409 precludes a potential plaintiff only
from obtaining information from an agency that collected
that information for § 152 purposes.
We granted certiorari to resolve the question of the consti-
tutionality of this federal statute, 535 U. S. 1033 (2002), and
now reverse.
II
Before addressing the merits of petitioner’s claims, we
must first consider whether we have jurisdiction to hear the
case. Under 28 U. S. C. § 1257(a), this Court has certiorari
jurisdiction to review “[f]inal judgments or decrees rendered
by the highest court of a State in which a decision could be
had . . . where the validity of a . . . statute of the United
States is drawn in question . . . on the ground of its being
repugnant to the Constitution . . . of the United States.” As
a general matter, to be reviewed by this Court, a state-court
judgment must be final “ ‘as an effective determination of
the litigation and not of merely interlocutory or intermediate
steps therein.’ ” Jefferson v. City of Tarrant, 522 U. S. 75,
81 (1997) (quoting Market Street R. Co. v. Railroad Comm’n
of Cal., 324 U. S. 548, 551 (1945)). We have acknowledged,
however, that certain state-court judgments can be treated
as final for jurisdictional purposes, even though further
4 The court also ruled that respondents were entitled to attorney’s fees
in their PDA action. See 144 Wash. 2d, at 745, 31 P. 3d, at 655–656.

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
141 Cite as: 537 U. S. 129 (2003)
Opinion of the Court
proceedings are to take place in the state courts. Cox
Broadcasting Corp. v. Cohn, 420 U. S. 469, 477–483 (1975)
(outlining four exceptions to the finality rule). See also,
e. g., ASARCO Inc. v. Kadish, 490 U. S. 605, 611–612 (1989)
(applying the Cox exceptions); Duquesne Light Co. v.
Barasch, 488 U. S. 299, 306–307 (1989) (same).
Respondents contend the decision below did not result in
a final judgment for purposes of § 1257(a) because the Wash-
ington Supreme Court remanded the case for further pro-
ceedings. They are only partially correct.
As we have already described, we have now before us a
consolidated case consisting of two separate actions: an ac-
tion under the State of Washington’s Public Disclosure Act
and a tort action. Respondents are correct that the decision
below does not constitute a final judgment with respect to
the tort action. In that case, the Washington Supreme
Court resolved only a discovery dispute; it did not determine
the final outcome of the litigation. Nor do any of the excep-
tions outlined in Cox Broadcasting Corp. v. Cohn, supra,
apply to the tort action.5 Accordingly, we dismiss the writ
5 With respect to the first Cox exception, the Washington Supreme
Court’s interpretation of § 409 is not conclusive and does not foreordain
the outcome of the proceedings below, as petitioner might well be able to
prove that its actions regarding the 168/B intersection were not negligent.
Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 479 (1975). Moreover,
petitioner’s victory on the merits would moot the discovery issue; accord-
ingly, the second Cox exception is not implicated. Id., at 480. And, if
petitioner does not prevail on the merits, it remains free to raise the dis-
covery issue on appeal. Even if the Washington Supreme Court adheres
to its interlocutory ruling as “law of the case,” we would still be able to
review the discovery issue once a final judgment has been entered. Jef-
ferson v. City of Tarrant, 522 U. S. 75, 82–83 (1997). In short, the third
Cox exception does not help petitioner either. 420 U. S., at 481. Finally,
this is not a case where “reversal of the state court on the federal issue
would be preclusive of any further litigation,” id., at 482–483, because
respondents remain free to try their tort case without the disputed docu-
ments. Rather, the decision below controls “merely . . . the nature and

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
142 PIERCE COUNTY v. GUILLEN
Opinion of the Court
of certiorari with respect to the tort action for want of
jurisdiction.
We reach a different conclusion regarding the PDA action.
In that suit, the Washington Supreme Court was asked to
review only the appellate court’s ruling that four of the five
documents requested by respondents were not protected
under § 409 and therefore should be disclosed under the
PDA.6 Because the Washington Supreme Court held the
1995 amendment to § 409 to be invalid—thus, limiting the
privilege offered by the statute only to documents originally
created for § 152 purposes—the court effectively interpreted
§ 409 more narrowly than the Court of Appeals. Accord-
ingly, the four documents at issue before the Washington Su-
preme Court remained unprotected under § 409 and contin-
ued to be subject to disclosure under the PDA. As we read
the decision below, all that remains to be decided on remand
in the PDA action is the amount of attorney’s fees to which
respondents are entitled. The PDA action, then, falls
squarely under the first Cox exception because the Washing-
ton Supreme Court’s ruling on the federal privilege issue
is “conclusive” and “the outcome of further proceedings
preordained.” 7 Cox Broadcasting Corp., supra, at 479.
character of, or . . . the admissibility of evidence in, the state proceedings
still to come.” Id., at 483. Thus, petitioner finds no refuge in the fourth
Cox exception.
6 Respondents did not seek review of the Court of Appeals’ decision that
one of the requested documents—a draft memorandum from the public
works director to a county council member, see n. 3, supra—was in fact
protected by § 409 because it contained information derived from § 152
activities. See 96 Wash. App. 862, 874, 982 P. 2d 123, 130 (1999). See
also Reply to Brief in Opposition 2.
7 Our reading of the decision below is reinforced by the Washington Su-
preme Court’s ruling that respondents are entitled to attorney’s fees for
the PDA action. See n. 4, supra. Under state law, attorney’s fees may
not be awarded in a PDA action unless the prevailing party has “an af-
firmative judgment rendered in its favor at the conclusion of the entire
case.” Overlake Fund v. Bellevue, 70 Wash. App. 789, 795, 855 P. 2d 706,
710 (1993); see also Tacoma News, Inc. v. Tacoma-Pierce County Health

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
143 Cite as: 537 U. S. 129 (2003)
Opinion of the Court
Therefore, we have jurisdiction to hear the PDA portion of
this case.
III
We turn now to the merits. Petitioner essentially agrees
with the Washington Supreme Court’s expansive reading of
§ 409, but argues that the Washington Supreme Court erred
in concluding that Congress was without power to enact the
1995 amendment to § 409. Before addressing the constitu-
tional question, however, we must determine the statute’s
proper scope.
A
1
According to petitioner, a document initially prepared and
then held by an agency (here the county sheriff) for purposes
unrelated to § 152 becomes protected under § 409 when a
copy of that document is collected by another agency (here
the Public Works Department) for purposes of § 152. Under
petitioner’s view, for example, an accident report prepared
and held by the county sheriff for purposes unrelated to § 152
would become protected under § 409 as soon as a copy of that
report is sent to the Public Works Department to be used in
connection with petitioner’s § 152 funding application. Con-
sequently, a person seeking a copy of the accident report
either from the county sheriff or from the Public Works De-
partment would not be able to obtain it.8 Brief for Peti-
tioner 37–44.
Dept., 55 Wash. App. 515, 525, 778 P. 2d 1066, 1071 (1989), review denied,
113 Wash. 2d 1037, 785 P. 2d 825 (1990) (Table). Thus, because the Wash-
ington Supreme Court held that respondents were entitled to attorney’s
fees in the PDA action, it must have considered the merits of that action
to have been conclusively determined.
8 Indeed, petitioner’s brief could be read as suggesting that § 409 pro-
tects not only materials containing information collected for § 152 purposes
but also any testimony regarding information contained in such materials.
Brief for Petitioner 44. See also Brief for Respondents 20 (offering this
reading as a possible interpretation of the statute). Under this view, an

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
144 PIERCE COUNTY v. GUILLEN
Opinion of the Court
Respondents contend that § 409 protects only materials ac-
tually created by the agency responsible for seeking federal
funding for § 152 purposes. Brief for Respondents 22–23,
and n. 2. On their view, if the Public Works Department
collects reports of all the accidents that have occurred at a
given intersection to prepare its § 152 application, those re-
ports would not be protected by § 409, and a person seeking
them from the Public Works Department would be entitled
to obtain them.
The United States, as intervenor, proposes a third inter-
pretation: § 409 protects all reports, surveys, schedules, lists,
or data actually compiled or collected for § 152 purposes, but
does not protect information that was originally compiled or
collected for purposes unrelated to § 152 and that is currently
held by the agencies that compiled or collected it, even if the
information was at some point “collected” by another agency
for § 152 purposes. Brief for United States 28–36. Re-
spondents concede that this is a defensible reading of the
statute. Brief for Respondents 23–24, 25. Under this in-
terpretation, an accident report collected only for law en-
forcement purposes and held by the county sheriff would not
be protected under § 409 in the hands of the county sheriff,
even though that same report would be protected in the
hands of the Public Works Department, so long as the de-
partment first obtained the report for § 152 purposes. We
agree with the Government’s interpretation of the statute.
2
We have often recognized that statutes establishing evi-
dentiary privileges must be construed narrowly because
privileges impede the search for the truth. Baldrige v. Sha-
officer who witnessed an accident would not be permitted to testify about
that accident, if the officer summarized what he saw in a report that was
later “collected” for § 152 purposes. But see Brief for Petitioner 45–46
(asserting that testimony derived from sources apart from the protected
documents is permitted under § 409).

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
145 Cite as: 537 U. S. 129 (2003)
Opinion of the Court
piro, 455 U. S. 345, 360 (1982) (“A statute granting a privilege
is to be strictly construed so as ‘to avoid a construction that
would suppress otherwise competent evidence’ ” (quoting
St. Regis Paper Co. v. United States, 368 U. S. 208, 218
(1961)). See also, e. g., University of Pennsylvania v.
EEOC, 493 U. S. 182, 189 (1990). See generally United
States v. Nixon, 418 U. S. 683 (1974). Here, § 409 establishes
a privilege; accordingly, to the extent the text of the statute
permits, we must construe it narrowly.
Of the three interpretations outlined above, respondents’
clearly gives the statute the narrowest application. Never-
theless, we decline to adopt it, as that reading would render
the 1995 amendment to § 409 (changing the language from
“compiled” to “compiled or collected”) an exercise in futility.
We have said before that, “[w]hen Congress acts to amend a
statute, we presume it intends its amendment to have real
and substantial effect.” Stone v. INS, 514 U. S. 386, 397
(1995). Yet, under respondents’ view, § 409 as amended in
1995 would protect from disclosure only information that was
already protected before the amendment, i. e., information
generated for § 152 purposes. That reading gives the
amendment no “real and substantial effect” and, accordingly,
cannot be the proper understanding of the statute.
Petitioner’s reading, by contrast, while permissible, gives
the statute too broad of a reach given the language of the
statute, thus conflicting with our rule that, when possible,
privileges should be construed narrowly. See, e. g., Bal-
drige, supra, at 360.
The interpretation proposed by the Government, however,
suffers neither of these faults. It gives effect to the 1995
amendment by making clear that § 409 protects not just the
information an agency generates, i. e., compiles, for § 152 pur-
poses, but also any information that an agency collects from
other sources for § 152 purposes. And, it also takes a nar-
rower view of the privilege by making it inapplicable to in-
formation compiled or collected for purposes unrelated to

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
146 PIERCE COUNTY v. GUILLEN
Opinion of the Court
§ 152 and held by agencies that are not pursuing § 152 objec-
tives. We therefore adopt this interpretation.
Our conclusion is reinforced by the history of the 1995
amendment. As we have already noted, the phrase “or col-
lected” was added to § 409 to address confusion among the
lower courts about the proper scope of § 409 and to overcome
judicial reluctance to protect under § 409 raw data collected
for § 152 purposes. See supra, at 134–136. By amending
the statute, Congress wished to make clear that § 152 was
not intended to be an effort-free tool in litigation against
state and local governments. Compare, e. g., Robertson v.
Union Pacific R. Co., 954 F. 2d 1433, 1435 (CA8 1992) (recog-
nizing that § 409 was intended to “prohibit federally required
record-keeping from being used as a ‘tool . . . in private liti-
gation’ ” (quoting Light v. New York, 149 Misc. 2d 75, 80, 560
N. Y. S. 2d 962, 965 (Ct. Cl. 1990)), with authorities cited
supra, at 134–135. However, the text of § 409 evinces no
intent to make plaintiffs worse off than they would have been
had § 152 funding never existed. Put differently, there is
no reason to interpret § 409 as prohibiting the disclosure of
information compiled or collected for purposes unrelated to
§ 152, held by government agencies not involved in adminis-
tering § 152, if, before § 152 was adopted, plaintiffs would
have been free to obtain such information from those very
agencies.
B
Having determined that § 409 protects only information
compiled or collected for § 152 purposes, and does not protect
information compiled or collected for purposes unrelated to
§ 152, as held by the agencies that compiled or collected that
information, we now consider whether § 409 is a proper exer-
cise of Congress’ authority under the Constitution. We con-
clude that it is.
It is well established that the Commerce Clause gives Con-
gress authority to “regulate the use of the channels of inter-
state commerce.” United States v. Lopez, 514 U. S. 549, 558

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
147 Cite as: 537 U. S. 129 (2003)
Opinion of the Court
(1995) (citing United States v. Darby, 312 U. S. 100, 114
(1941); Heart of Atlanta Motel, Inc. v. United States, 379
U. S. 241, 256 (1964)). In addition, under the Commerce
Clause, Congress “is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may
come only from intrastate activities.” Lopez, supra, at 558
(citing Shreveport Rate Cases, 234 U. S. 342 (1914); Southern
R. Co. v. United States, 222 U. S. 20 (1911); Perez v. United
States, 402 U. S. 146 (1971)).
As already discussed, supra, at 133, Congress adopted
§ 152 to assist state and local governments in reducing haz-
ardous conditions in the Nation’s channels of commerce.
That effort was impeded, however, by the States’ reluctance
to comply fully with the requirements of § 152, as such com-
pliance would make state and local governments easier tar-
gets for negligence actions by providing would-be plaintiffs
a centralized location from which they could obtain much of
the evidence necessary for such actions. In view of these
circumstances, Congress could reasonably believe that adopt-
ing a measure eliminating an unforeseen side effect of the
information-gathering requirement of § 152 would result in
more diligent efforts to collect the relevant information,
more candid discussions of hazardous locations, better in-
formed decisionmaking, and, ultimately, greater safety on
our Nation’s roads. Consequently, both the original § 409
and the 1995 amendment can be viewed as legislation aimed
at improving safety in the channels of commerce and increas-
ing protection for the instrumentalities of interstate com-
merce. As such, they fall within Congress’ Commerce
Clause power.9 Accordingly, the judgment of the Washing-
9 Because we conclude that Congress had authority under the Commerce
Clause to enact both the original § 409 and the 1995 amendment, we need
not decide whether they could also be a proper exercise of Congress’ au-
thority under the Spending Clause or the Necessary and Proper Clause.

537US1 Unit: $U13 [04-19-04 19:14:27] PAGES PGT: OPIN
148 PIERCE COUNTY v. GUILLEN
Opinion of the Court
ton Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.10
It is so ordered.
10 Respondents contend in passing that § 409 violates the principles of
dual sovereignty embodied in the Tenth Amendment because it prohibits
a State from exercising its sovereign powers to establish discovery and
admissibility rules to be used in state court for a state cause of action.
See Brief for Respondents 44–46. The court below did not address this
precise argument, reasoning instead that the 1995 amendment to § 409 was
beyond Congress’ enumerated powers. We ordinarily do not decide in the
first instance issues not resolved below and decline to do so here. See,
e. g., National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999).
Moreover, in light of our disposition on this issue, we need not address the
second question on which we granted certiorari: whether private plaintiffs
have standing to assert “states’ rights” under the Tenth Amendment
where their States’ legislative and executive branches expressly approve
and accept the benefits and terms of the federal statute in question.