By DARA KAM
THE CAPITAL, TALLAHASSEE, May 20, 2014……….Acting in his capacity as a litigator and not as a legislator, Rep. Matt Gaetz is accusing state transportation officials of stonewalling on a public records request made by a client seeking information about potentially dangerous guardrails.
In a lawsuit filed Monday in Tallahassee, Gaetz asked a judge to give the Department of Transportation 48 hours to turn over 1,000 emails that were the product of a public records request made in February but which the agency has refused to turn over.
Instead, the agency is allowing guardrail vendor Trinity Industries to inspect the documents to determine if they are exempt from public scrutiny.
Florida’s broad “government in the sunshine” laws make most communications issued or received by state officials a public record, but “trade secrets” are exempt from public scrutiny. Florida law also requires that agencies cite specific statutory exemptions when refusing to provide public records.
Gaetz’s client, Massachusetts-based Safety Research & Strategies, Inc., is seeking the records “in part, to determine whether millions of drivers in Florida are currently at risk of injury or death due to FDOT’s use of Trinity’s likely defective guardrail systems,” according to the lawsuit.
State transportation officials said Tuesday they had not yet been served with the lawsuit.
On Feb. 10, Safety Research’s Melanie MacDonald requested records related to the guardrails going back to 2004, according to exhibits included in the lawsuit. The agency initially gave MacDonald 13 files. When MacDonald questioned the number of documents, FDOT Assistant General Counsel Kimberly Clark Menchion told her she also had a CD with over 1,000 emails.
“We will mail it to you,” Menchion wrote to MacDonald on April 24.
Two weeks later, MacDonald messaged Menchion because she had not received the disk. Menchion wrote back on May 12 saying that the agency was taking “due diligence” to make sure MacDonald received all the information she requested.
“Due to these emails including possible confidential and exempt information, a review by one of the manufactures (sic) has been requested. Once the review is completed, we will send you the CD with the emails,” Menchion wrote.
The same day, MacDonald requested that the agency provide the statutory citation for the exemption but never received a response.
Last year, Trinity sought and received a protective order from a judge identifying two documents as trade secrets and therefore exempt from disclosure as part of separate public records request.
But none of the emails responsive to Safety Research’s request were stamped or labeled as trade secrets, according to the lawsuit.
“Had Trinity labeled documents as trade secrets, those documents would have been easily identifiable by FDOT for redaction in a cursory review of the requested records. There would never be legal justification allowing Trinity to review emails following the Safety Research Request prior to their production,” Gaetz, a Fort Walton Beach Republican, wrote.
“Thus, FDOT lacks even an imaginable basis for the claim that public records, including correspondence regarding customer complaints, injuries, guardrail failures, accidents, design, purchases, testing, manufacturing and the like would qualify as exempt or confidential,” Gaetz continued.
Gaetz, who is seeking legal fees, also asked that the judge appoint a special master to monitor the agency’s compliance with the public records request.
First Amendment Foundation President Barbara Petersen said the law does not allow a private vendor to scrub the emails. (Disclosure: The News Service of Florida is a member of the First Amendment Foundation.)
“Trinity has no role in determining what records will be released by DOT,” she said. “To allow a private company to review the records prior to the release is an unlawful delay of production.”
The burden is on the agency to provide the exemption to the public records law and to ensure that information a company claims is exempt or confidential meets the statutory criteria for an exemption, Petersen said.
“I would say that what DOT has done is highly irregular and may well be a violation of the public records law. The delay is impermissible,” she said.