Matt Gaetz files suit against FDOT over public records request

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State Rep. Matt Gaetz, working as litigator and not as a lawmaker, has accused Florida transportation officials of stalling on a public records request by a client seeking information about possibly dangerous guardrails.

At issue is more than 1,000 emails that were part of a public records request made to the Florida Department of Transportation in February. Dara Kam of the News Service of Florida reports Gaetz is asking a judge to give the FDOT 48 hours to comply.

The agency wants Trinity Industries — the guardrail vendor — to inspect the documents first, to decide if they are exempt from public records.

Under Florida’s Sunshine Laws, most communications by state officials are public record. However, “trade secrets” are exempt. Florida law requires agencies to cite specific statutory exemptions when refusing to release public records.

Gaetz is representing Massachusetts-based Safety Research & Strategies; in the suit, they are asking for 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.”

As of Tuesday, Kam writes, transportation officials have not been served with the suit.

In February, Safety Research’s Melanie MacDonald requested records as far back as 2004 that are linked to the guardrails. At first, MacDonald received 13 files.

After McDonald questioned the number of documents, FDOT Assistant General Counsel Kimberly Clark Menchion said she also had over 1,000 emails on a CD.

“We will mail it to you,” Menchion told MacDonald on April 24.

Two weeks later, after the CD had not arrived, MacDonald messaged Menchion, who wrote back on May 12 saying that the FDOT was taking “due diligence” to ensure MacDonald would receive all the requested information.

“Due to these emails including possible confidential and exempt information, a review by one of the manufactures (sic) has been requested,” Menchion wrote. “Once the review is completed, we will send you the CD with the emails.”

Later that day, MacDonald requested the agency provide the legally required statutory citation for the exemption. She never received a response.

Trinity sought and received a protective order last year from a judge recognizing two documents as trade secrets, exempting them from disclosure as public records.

However, none of the emails in response to Safety Research’s request were labeled or stamped as trade secrets, the lawsuit contends.

“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,” wrote Gaetz.

“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,” he continued.

Gaetz also is requesting the judge appoint a special master to observe the agency’s compliance with the request.

First Amendment Foundation President Barbara Petersen explains that the law does not allow private vendors to remove the emails.

“Trinity has no role in determining what records will be released by DOT,” Petersen told the News Service. “To allow a private company to review the records prior to the release is an unlawful delay of production.”

Peter Schorsch is the President of Extensive Enterprises and is the publisher of some of Florida’s most influential new media websites, including SaintPetersBlog.com, FloridaPolitics.com, ContextFlorida.com, and Sunburn, the morning read of what’s hot in Florida politics. SaintPetersBlog has for three years running been ranked by the Washington Post as the best state-based blog in Florida. In addition to his publishing efforts, Peter is a political consultant to several of the state’s largest governmental affairs and public relations firms. Peter lives in St. Petersburg with his wife, Michelle, and their daughter, Ella.