Herald, state argue over FIU bridge records

TALLAHASSEE, Fla. – Saying he wants federal transportation-safety officials to weigh in first, Leon County Circuit Judge John Cooper on Monday declined to dismiss a public-records lawsuit filed by the Miami Herald after the deadly collapse in March of a pedestrian bridge at Florida International University.

The Herald filed the lawsuit May 4 against the Florida Department of Transportation, saying the agency refused to provide requested documents from Feb. 20 and later.

Using the state’s broad public-records law, the newspaper requested a wide range of documents related to the March 15 bridge collapse that killed six people.

The Department of Transportation has argued that it cannot release the documents from Feb. 20 and later because of an ongoing investigation by the National Transportation Safety Board.

In a letter to Cooper last month, a lawyer for the NTSB said the federal agency has prohibited Florida transportation officials “from releasing investigative information in response to public records requests absent NTSB approval.”

The bridge collapse is the subject of two federal criminal investigations, several federal regulatory investigations and a criminal investigation by Miami-Dade police, NTSB assistant general counsel Benjamin T. Allen wrote in the May 3 letter.

The federal agency allowed the release of all materials which existed on or before Feb. 19, Allen wrote.

“This restriction remains in place as to all investigative information, not limited to information developed during the course of the investigation after the accident,” Allen wrote, arguing that the pre-mature release of information “can lead to witnesses refusing to talk to us, changing their stories, or potentially destroying evidence.”

Lawyers for the state asked Cooper to dismiss the case, saying transportation officials are following federal law governing the release of the records.

But Sandy Bohrer, a lawyer who represents the Herald, argued during a hearing Monday that the NTSB, which is not a part of the lawsuit, should not be able to hamper Florida’s broad public records law.

“I think it’s unfair in the context of public records law for NTSB to cause all these delays … just to delay release of information that was and always has been public record in Florida,” Bohrer said.

Cooper declined to dismiss the case and asked that the NTSB be given the option of becoming a party to the lawsuit either as an amicus -- or “friend of the court” -- or as a defendant.

“It seems to me that they have a right to be advised of the case and they have a right to make a defense of their regulations,” Cooper said.

The federal board also could choose to remain on the sidelines, the judge noted.

“I just want to cut to the chase. Are you willing, NTSB, to be a defendant? If not that, are you willing to be an amicus? If not that, well fine, you’ve had your chance and now we’re going to go forward,” he said.