Miami Herald Media Co. v. Fla. Dep't of Transp.

• Court: U.S. District Court — Northern District of Florida
• Writing for the Court: WILLIAM STAFFORD, SENIOR UNITED STATES DISTRICT JUDGE
• Citation: Miami Herald Media Co. v. Fla. Dep't of Transp., 345 F.Supp.3d 1349 (N.D. Fla. 2018)
• Decision Date: 05 October 2018
• Docket Number: 4:18cv392–WS/CAS
• Parties: MIAMI HERALD MEDIA COMPANY, Publisher of The Miami Herald, Mary Ellen Klas, and Elizabeth Koh, Plaintiffs, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Defendant.

345 F.Supp.3d 1349

MIAMI HERALD MEDIA COMPANY, Publisher of The Miami Herald, Mary Ellen Klas, and Elizabeth Koh, Plaintiffs,

v.FLORIDA DEPARTMENT OF TRANSPORTATION, Defendant.

4:18cv392–WS/CAS

United States District Court, N.D. Florida, Tallahassee Division.

Signed October 5, 2018

Sanford Lewis Bohrer, Scott Daniel Ponce, Holland & Knight LLP, Miami, FL, for Plaintiffs.

Jacob Arthur Malcolm, Latasha N. Johnson, William Edward Foster, Florida Dept. of Transportation, Tallahassee, FL, for Defendant.

ORDER DENYING PLAINTIFFS' MOTION TO REMAND AND GRANTING THE UNITED STATES'S MOTION TO QUASH STATE COURT PRODUCTION ORDER AND TO DISMISS AMENDED COMPLAINT

WILLIAM STAFFORD, SENIOR UNITED STATES DISTRICT JUDGE

The Miami Herald Media Company, as publisher of The Miami Herald , and two of its journalists (collectively "Plaintiffs") initiated this action against the Florida Department of Transportation ("FDOT") in Leon County Circuit Court on May 2, 2018. Invoking Florida's public records laws, Plaintiffs sought to compel FDOT to produce certain records related to a bridge collapse that occurred in Miami-Dade County on March 15, 2018, killing and injuring a number of people. Although not a party to the case, the United States of America, on behalf of the National Transportation Safety Board ("NTSB" or the "Board"), filed a Statement of Interest with the state court, explaining—among other things—that FDOT is temporarily prohibited by federal regulation and by NTSB directive from producing the records sought by Plaintiffs. On August 21, the state court ordered FDOT to produce the requested records, effectively overturning the NTSB's directive to FDOT not to disclose the requested investigative information.

On August 23, the United States of America ("United States" or the "Government") removed the action to this court, alleging that, "because Plaintiffs were indirectly challenging the NTSB's administrative decision, the NTSB is an indispensable party that, under state law, could not be joined because of sovereign immunity." ECF 2 ¶ 3. With its notice of removal, the United States filed an emergency motion to stay the state court's production order "pending ruling on forthcoming motion to quash." ECF 3. After hearing argument from the parties by telephone, the undersigned granted the Government's motion to stay. ECF 6. Plaintiffs have since filed a motion (ECF 8) to remand the action to state court, and the United States has filed a motion (ECF 7) to quash the state court's production order and to dismiss Plaintiffs' amended complaint. Plaintiffs and the United States have filed their respective responses (ECF 9 & ECF 12) and replies (ECF 15 & 12).

I. BACKGROUND

A.

The NTSB is "an independent establishment of the executive branch of United States Government," 49 U.S.C. § 1111(a), to which Congress granted broad authority to "investigate ... and establish the facts, circumstances, and cause or probable cause of" certain highway accidents Id. § 1131(a)(1)(B). Absent a waiver, the NTSB enjoys federal sovereign immunity from suit. FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).

On March 15, 2018, a pedestrian bridge linking Florida International University and the surrounding community collapsed, killing six people then in cars on the road beneath the bridge span. As required by 49 U.S.C. § 1131(a)(1)(B), the NTSB immediately initiated an investigation into the collapse.

The NTSB utilizes a "party" system to conduct investigations. ECF 2–30 ¶ 2 (Molloy Decl.). Under that system, the NTSB enlists the assistance of "those persons, Federal, state or local government agencies and organizations whose employees, functions, activities, or products were involved in the accident and that can provide suitable qualified technical personnel to actively assist in an investigation." 49 C.F.R. § 831.11(a)(1). The party system, which the NTSB has successfully used in every investigation for decades, ensures that the NTSB has complete and accurate factual information for its investigations. ECF 2–30 ¶ 2 (Molloy Decl.). With fewer than twenty investigators and engineers employed by the NTSB's Office of Highway Safety, the NTSB relies heavily on the support and cooperation of its "parties." ECF 12–2 ¶¶ 3–4 (Second Molloy Decl.). Indeed, the party system is critical to the success of the NTSB's mission. Id.

Under the party system, the NTSB leads the investigation and directs the actions of party members. ECF 12–2 ¶ 5 (Second Molloy Decl.). In essence, the NTSB "deputizes" party members to assist in the investigation under the supervision of NTSB staff investigators. Id. Party members to an investigation are required by federal regulation to "follow all directions and instructions from NTSB representatives." 49 C.F.R. § 831.11(a)(4). Among other things, the NTSB has regulatory authority to require parties to submit documents and other evidence relevant to the investigation. ECF 12–2 ¶ 5.

FDOT was designated as a "party" to the bridge investigation just two days after the collapse occurred. ECF 12–3 ¶ 3 (Drummond Decl.) The investigator in charge ("IIC") of the investigation instructed FDOT to keep confidential all records collected by the NTSB as part of the NTSB's investigation, including records submitted by FDOT. Id. ¶ 4. By regulation, 49 C.F.R. § 831.11(d), FDOT was required to certify—and did certify—that the agency and its employees would comply with all NTSB directives. ECF 2–8, Ex. 7.

Congress authorized the NTSB to prescribe regulations necessary to the exercise of its investigative functions. 49 U.S.C. § 1113(f). Among such regulations is one that concerns the "[p]rovision and dissemination of investigative information." 49 C.F.R. § 831.13. Subsection (c) of § 831.13 prohibits parties to an investigation from "releasing information obtained during an investigation at any time prior to the NTSB's public release of information" unless certain criteria not relevant here are met. Id. § 831.13(c) (emphasis added). The restrictions on release of investigative information are designed to ensure that NTSB investigations proceed expeditiously without interference or competing interests driving the focus of the parties. ECF 2–30 ¶ 5. (Molloy Decl.).¹

The term "information" for purposes of § 831.13 is defined as:

(1) Information related to the accident or incident;

(2) Any information collected or compiled by the NTSB as part of its investigation, such as photographs, visual representations of factual data, physical evidence from the scene of the accident, interview statements, wreckage documentation, flight data and cockpit voice recorder information, and surveillance video; and

(3) Any information regarding the status of an investigation, or activities conducted as part of the investigation.

§ 831.13(a). Except where the NTSB authorizes a party to retain information, a party to the investigation must promptly provide to the NTSB "[a]ll information described in § 831.13(a)" obtained by that party. § 831.13(b). Consistent with § 831.13, the NTSB directed FDOT to turn over departmental records related to the bridge collapse and to not disclose those records to third parties unless approved by the NTSB's IIC.

The NTSB recently addressed the rule set forth in § 831.13 when, in 2017, it promulgated a final revised rule regarding the provision and dissemination of investigative information. See Investigation Procedures, 82 Fed. Reg. 29670–01, 2017 WL 2797254 (June 29, 2017). Among other things, the NTSB explained:

[W]e need to remain the sole disseminator of [investigative information as defined in § 831.13(a) ]. We remain concerned that a premature release of information during an investigation could result in the release of incorrect or incomplete information requiring additional effort to correct, possibly impeding the progress of an investigation, and eroding public confidence in the credibility of an investigation.

Id. at 29681–29682. The NTSB expressly rejected one commenter's suggestion that the NTSB narrow its definition of investigative information to provide that "[p]arties are allowed to release records and documents that existed before the NTSB commenced its investigation." Id. at 29682. The NTSB explained its rejection of the commenter's suggestion as follows:

In defining investigat[ive] information, the NTSB is not limiting the scope of information the agency may obtain or consider under its statutory authority. The NTSB has broad authority to require the production of evidence it deems necessary for the investigation. 49 U.S.C. 1113(a)(1). The regulatory definition of investigative information limits the scope of information that may be released outside the investigation. The scope of investigative information depends on the nature of the accident or incident. An accident may be the result of a series of events or actions, and is not defined exclusively by the time of impact. For example, if the NTSB is conducting a limited investigation, the investigative information may be limited to information created or originating immediately prior to impact. If the NTSB, however, is conducting a major investigation in which it is examining potential causes of the accident that include a number of complex safety issues, investigative information could include documents and data leading up to the accident. Crewmember training records and maintenance records may be critical to such an investigation, even though they pre-date the accident or incident. Determining the probable cause of an accident or incident, in lieu of simply describing what happened, expands what the NTSB considers investigative information. The NTSB has determined the definition of investigative information must therefore be flexible.

Id. ; see also ECF 2–30 ¶ 4 (Molloy Decl.) (explaining that "[i]nvestigative information can be anything relevant to the NTSB investigation, regardless of when the information was developed").

With regard to the Miami-Dade bridge collapse, the...