Are guardrails in Florida a trade secret?

Jun 14, 2014

We see highway guardrails every time we commute or go for a drive, but these seemingly mundane objects hardly seem like they would be the center of a controversy. Well, it seems that that is exactly the case right now in Tallahassee, where the Florida Department of Transportation’s choice of contractor for freeway guardrails has now come under fire after a refusal to release public records to a health and safety body.

The organization seeking the information is Safety Research and Strategies Incorporated, a company based in Massachusetts. They claim that their seeking the records is primarily due to their concern that “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.” Trinity is the contracting company that the Department of transportation is using for the project.

Back in February, Melanie MacDonald first requested records from the Department of Transportation dating back to 2004. She asked for all documents and correspondences with regards to the project and its planning. When MacDonald only initially received 13 files, she questioned the organization about the number of documents handed over. In response, Kimberly Clark Menchion, assistant general counsel for the Florida Department of Transportation, told MacDonald that she also was in possession of a CD with over 1000 emails pertinent to the inquiry.

Despite a promise that the CD would be mailed, MacDonald heard nothing for over two weeks, leading to a back-and-forth that extended well into late April, and on May 12 Menchion email MacDonald saying that the agency was currently going through all the files for possible exempt or confidential information. MacDonald then requested a copy of all cited statutes for any exemptions the organization planned on making to the files, but never received a proper response to this either.

In Florida, as in many other states, anything that may be labeled as a “trade secret” is exempt from public records requests. This is to prevent competition from gleaning insight into other companies’ inner workings or to prevent private working information that might be potentially harmful to a business from becoming public knowledge. Last year, Trinity appealed to a judge to have some of its files labeled as such.

To McDonald, something didn’t add up: any of the files that have been labeled as trade secrets would’ve been marked as such and identified easily by FDOT employees. The multi-month wait for any information therefore didn’t make much sense.

Now, Safety Research and Strategies Incorporated has filed a lawsuit against the FDOT. Just a few days ago, they requested that a judge order the organization to hand over all relevant documents within 48 hours. In addition, it is been requested that a special overseer is assigned to ensure that the turning over of any documents is done correctly and in its entirety. One of the organization’s biggest concerns is that customer complaints, injuries, and any failures or accidents, let alone testing data, associated with the guardrails may be masked under the “trade secret” clause. For its part, Trinity reportedly has little to no control over which documents the Department of Transportation chooses to release at this point.