TALLAHASSEE (CBSMiami/NSF) – Nearly 20 weeks have passed since the deadly bridge collapse at Florida International University.
A Tallahassee judge is set to decide by the end of the week whether records related to the collapse must be released to the Miami Herald.
The newspaper sued the Florida Department of Transportation in May, after officials with the agency refused to turn over some documents related to the March 15 collapse of the pedestrian bridge that resulted in six deaths.
Using Florida's broad public-records law, the Herald requested a wide range of documents related to the bridge and the subsequent collapse, but state officials refused to provide records from Feb. 20 and later because of an ongoing investigation by the National Transportation Safety Board. State and federal officials say a federal regulation regarding accident investigations makes the records off-limits.
Lawyers for the state asked the court to dismiss the case, but a judge delayed a decision to give the NTSB time to respond.
Representing the NTSB during a hearing Tuesday, Assistant U.S. Attorney Andrew Grogan argued that state officials are barred from releasing the documents until they get the go-ahead from the investigator in charge because of a regulation that applies to "any information collected or compiled by the NTSB as part of its investigation."
"Investigative information can be anything relevant to the NTSB investigation, regardless of when the information was developed," Grogan wrote in a statement filed with the court Monday.
The NTSB crafted the rule because the agency wants to be the "sole disseminator of factual information," which "could include stuff that happened before the accident," Grogan said.
"There is a temporal limitation, for a period of time, while the NTSB conducts its investigation, this information is prohibited from disclosure so that the NTSB can get to the bottom of what happened, determine the probable cause of the accident, and issue recommendations that will prevent similar accidents in the future," he said.
But Scott Ponce, an attorney representing the Herald, argued that the regulation prohibits parties, like the state Department of Transportation, from publicly releasing information "obtained during an investigation." The regulation doesn't apply to documents that were created before the investigation began, Ponce told Leon County Circuit Judge Kevin Carroll during Tuesday's hearing.
"Our position is because those documents were obtained by the department before the investigation, under the language of this, they clearly weren't obtained during the investigation. To read into this (that) what it really means is information obtained by NTSB during the investigation, that's rewriting the regulation. That's not what the regulation says," Ponce argued.
But Latasha Johnson, assistant general counsel for the Florida Department of Transportation, said the regulation covers documents related to the bridge during any period of time.
"Everyone understands that there was an incident, a tragedy, where the bridge at FIU collapsed," Johnson said. "It didn't collapse in a vacuum. The NTSB is looking at a series of events, a series of facts and circumstances that may have led to this incident."
The history of the bridge --- a 950-ton, 174-foot span that collapsed days after being positioned across an eight-lane road in Miami --- dates back several years, to when the bridge was being designed and funded, Johnson said.
"It didn't start on the day the incident happened," she said.
Carroll said Tuesday he would have to decide on what "is essentially a kind of pre-emption issue."
Under Florida law, the records would have to be made available to the public, the judge indicated.
"In Florida, if this was strictly a matter of Florida issues, handing the document to someone else would not change the nature of them, but because we have this federal issue here, I've got to decide if that changes that," he said.
Carroll asked lawyers from both sides to submit proposed recommended orders by Thursday and said he wanted to issue a decision before he leaves for a conference on Sunday.
Carroll will have to weigh the effect of the federal regulation on the state's open-records law, Ponce told reporters after the hearing.
"He noted that under Florida law, the answer would be resoundingly that, yes, they're public records," Ponce said.
"So, it's almost like with the snap of a finger, they went from being public records to not being public records by simple virtue of the fact that the department gave them to the NTSB," he said, describing the defendants' position.
The bridge collapse is the subject of two federal criminal investigations, several federal regulatory investigations and a criminal investigation by Miami-Dade police, according to court documents.
The federal agency allowed the release of all materials that existed on or before Feb. 19 but has argued that premature release of information "can lead to witnesses refusing to talk to us, changing their stories, or potentially destroying evidence," according to court records.
The News Service of Florida's Dara Kam contributed to this report.
(©2018 CBS Local Media, a division of CBS Radio Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. The News Service of Florida contributed to this report.)
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