FDOT will not give up FIU docs

Agency stands behind federal law regarding pre-collapse info

Larry Caudle / July 05, 2018
Larry Caudle

Despite its tremendous importance to the industry, I have refrained from writing on the collapse of the pedestrian bridge at Florida International University that occurred on March 15, 2018, because until the National Transportation Safety Board (NTSB) concludes its investigation and project documents not currently in the public domain are released, an article on the subject would be filled with conjecture and speculation. Those documents, however, are now the very subject of a lawsuit.

Shortly after the tragedy, the Miami Herald submitted a Florida Public Records Act request to the Florida Department of Transportation (FDOT) in which it sought e-mails, meeting minutes and other records relating to both the design and construction of the bridge. Of particular interest to the newspaper is what was discussed at a two-hour meeting held the morning of the collapse between project engineers and FDOT to discuss cracks that were discovered in the base of a concrete diagonal support member. Reportedly, at that meeting the designer of record determined that although remedial work would be required to address the cracks, they posed no imminent threat to the integrity of the structure. Reports also indicate that at the time of the collapse, workers were tightening post-tensioning cables near the point of collapse. The incident is currently the subject of two federal criminal investigations, a state criminal investigation and several federal regulatory probes.

In response to the Herald’s request, FDOT produced documents created on or before Feb. 19—a little less than a month before the collapse—but nothing thereafter, including during the crucial days leading up to the collapse. FDOT’s refusal to produce documents originating after Feb. 19 was the result of a written directive it received from the NTSB, which contends that such records are protected from disclosure to the public by NTSB regulations. FDOT claims that it is compelled to comply with the directive because on March 17, 2018, it agreed to become a party to the investigation.

At a hearing on FDOT’s motion to dismiss the lawsuit held on June 4, 2018, the Leon County Circuit Court took notice of a letter received a few days earlier from an NTSB attorney indicating that the NTSB’s regulation at issue protects documents “related to the accident or incident” if they were gathered by NTSB’s investigators during an accident investigation. The letter also indicated that the release of the information “can lead to witnesses refusing to talk to us, changing their stories, or potentially destroying evidence.” Despite its significant interest in the outcome of this lawsuit, however, the NTSB did not appear in person at the hearing and has not exercised its right to intervene as a party in the lawsuit.

The legal team for the Miami Herald urged the court to disregard the NTSB’s letter and criticized the federal agency for not seeking to intervene or appear in the case, since it was the NTSB that was ultimately responsible for FDOT’s refusal to provide the requested documents, and it was an NTSB regulation it was relying upon. Lawyers for the newspaper also countered that the NTSB’s interpretation of its own regulation as set out in the letter is overly broad and contended that the law covers only those materials that were created in connection with the investigation, not those created prior to the accident which investigators may have collected from entities and individuals involved in the accident. The newspaper referred to the documents being withheld as “information that was and always has been public records in Florida.”

In a further attempt to distinguish the documents that should be protected from those that should not, lawyers for the newspaper argued that “public records made and received by [FDOT] from February 20 until the bridge collapsed on March 15 obviously were not obtained by the Department during an investigation because there had been no accident, much less an investigation into the accident.”

FDOT acknowledged that it believes the records it withheld are public records within the meaning of the Public Records Act and should otherwise be produced to the newspaper. In fact, in response to arguments it received from the Herald prior to litigation, FDOT sought a formal legal opinion from the Florida Attorney General on the matter. As of the date of the hearing, the AG had not weighed in on the issue.

Because his decision in the matter will clearly turn on the interpretation of NTSB regulations, the judge informed the parties that the NTSB was an “indispensable party.” The court thus ordered FDOT to send a letter to the agency asking it to join the lawsuit or to file a “friend of the court” brief. The court indicated that if the NTSB declines to take part, it will move forward and issue a ruling. The decision, once rendered, will determine whether the public must wait until the NTSB issues its findings to learn about the crucial days leading to the collapse.

About the Author

Caudle is a principal in Kraftson Caudle LLC, a law firm in McLean, Va., specializing in heavy-highway and transportation construction. Caudle can be contacted via e-mail at [email protected]

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