The Florida Department of Transportation went to court Monday in an attempt to keep the public and the news media from examining records that might reveal what caused the bridge collapse that killed six people at Florida International University in March.
The agency asked Leon County Circuit Court Judge John Cooper to dismiss a lawsuit by the Miami Herald to compel the state to turn over emails, meeting minutes and other records relating to the bridge's design and construction.
The Miami Herald sued after trying for two months to get the agency to release documents that could shed light on the tragic accident.
FDOT has stated that the records are public documents but has refused to release them, arguing that a federal law that shields the release of documents relating to a National Transportation Safety Board investigation preempts the Florida public records law.
At a hearing Monday, Cooper refused to dismiss the case and instead gave federal investigators two weeks to decide whether they want to defend themselves in a Florida courtroom before he rules.
The NTSB is investigating the collapse of the 950-ton bridge and has ordered FDOT not to release documents from after Feb. 19, arguing that federal law shields the documents from public view while the investigation is pending. But lawyers for the Miami Herald dispute the NTSB's interpretation of the federal statute as it applies to the Florida case.
"I think it's unfair, in the context of public record law, for NTSB to cause all these delays…just to delay the release of this information that was and always has been public record in Florida," said Sandy Bohrer of Holland and Knight, the Miami law firm representing the Miami Herald in the case.
The bridge collapsed at 1:47 p.m. March 15, just days after cracks had been observed in the $14.3 million structure. On the morning of the bridge failure, FIU held a two-hour meeting with its engineers and FDOT to discuss whether cracks in the structure presented a safety risk. The Miami Herald requested records from that meeting, as well as other relevant documents.
In a letter to Cooper on Friday, NTSB attorney Benjamin T. Allen argued that the federal law shields the release of any documents "related to the accident or incident" if that information was gathered by NTSB as part of the pending investigation.
But Bohrer argues that the prevailing federal statute applies only to documents that originated as a result of the investigation and does not apply to documents that originated before the bridge collapse.
"Public records made and received by the Department 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 an accident," he wrote in a response to the FDOT motion to dismiss the lawsuit.
"Florida law is clear that if an agency's record is a public record at the time it is made or received, then that document does not lose its character as a public record if the document is later given to an investigative agency in the course of a subsequently initiated investigation. "
Bohrer urged the judge to disregard the letter from the NTSB, which has not sought to become a party in the case, did not ask to appear at the hearing, and did not cite on what authority it has based its interpretation.
"The purpose of the letter is to tell you something that isn't in the regulation," he said. He cited a letter from the NTSB's general counsel, who said in 2008 that investigative material "only refers to materials developed as part of the investigation."
Cooper concluded: "Seems to me this is purely an interpretation of a federal agency regulation." He said that as a result, NTSB was an "indispensable party" in the case. He rejected FDOT's argument that the case should be dismissed because the federal agency wasn't included in the case and ordered FDOT to send the letter asking NTSB to join the lawsuit as a party or file an amicus brief to defend its legal reasoning.
If NTSB declines to do either, Cooper said, the state will tell it "we're going to continue the party without you."
FDOT said in a statement after the trial that the agency "has released hundreds of pages of records relating to this case" and has also asked for an advisory opinion from Florida Attorney General Pam Bondi about whether it is required to release the documents included in the investigation. It did not say whether Bondi has agreed to issue the opinion.
"Last month we were also advised that the bridge collapse is subject to several criminal investigations," said Tom Yu, FDOT spokesperson. "We will make every record available as soon as the law allows."
FDOT's lawyers also cited a previous version of the federal regulation as justification for not releasing the documents but, Bohrer argued, that "very broad exemption" did not contain the "obtained during an investigation" limitation that is included in the new regulation.
The decision in the case could have broader implications for records sought from other public officials. FIU and the city of Sweetwater were also involved in the project and have claimed the same exemption from Florida's broad public records laws. The parties have released records to the media that were generated earlier than the Feb. 19 cut-off date.
Contractors working for FIU designed and built the bridge. Although Gov. Rick Scott distanced the state from the project immediately after the disaster, FDOT officials attended regular planning meetings, helped approve the design-build team and had input on the bridge's design and location. The bridge was designed by Tallahassee-based FIGG Bridge Group and built by a major Miami firm, Munilla Construction Management.