May 19, 2014
Safety Research & Strategies, an automobile and product safety research and consulting firm based in Rehoboth, Mass. filed an open records lawsuit in Florida state court, alleging that the state’s Department of Transportation violated the Florida Public Records Act when it withheld documents pertaining to its relationship with guardrail manufacturer Trinity Industries pending a review by the company.
The lawsuit, filed today by Florida State Representative Matthew L. Gaetz (R-Dist. 4) asks the Circuit Court of the Second Judicial Circuit for Leon County to compel the FDOT to release the materials SRS requested on February 10, associated with inquiries, investigations, and communications between FDOT and Trinity regarding the design, manufacture, failure, purchase and testing of Trinity ET-Plus guardrail systems. SRS also asked for documents related to any motor vehicle accidents involving ET-Plus and consumer complaints about the safety of the system.
The Dallas, Texas-based manufacturer, a globally dominant producer and seller of guardrail systems has been under fire since 2012, when a competitor, SPIG Industries, of Bristol, Va. charged that sometime between 2002 and 2005, Trinity modified the design of its guardrail end terminals, causing it to perform poorly in crashes and injure and kill occupants in striking vehicles. These allegations have been the subject of numerous news stories abroad and in the U.S., including the Florida media.
The original design, ET-2000 absorbed the kinetic energy of the crash, while bending the post away from the striking vehicle and extruding the rail into a flattened metal ribbon. The Federal Highway Administration first approved the ET-2000 in the early 1990s and it performed as designed in the field. In 1999, Trinity launched the first version of the ET-Plus. By 2005, the manufacturer reduced the size of the terminal head and height of the feeder chute, through which the rail is extruded. With this change, the end terminal allegedly no longer performed like those of the earlier design. Instead of bending away, the rail can fold in half, forming a spear that can penetrate the striking vehicle.
Trinity did not notify the FHWA of the modification, as required, until seven years later, when a patent dispute between Trinity and SPIG revealed the change. Since then, questions about the safety and field performance of the ET-Plus have been raised by state Departments of Transportation, via the American Association of State Highway and Transportation Officials (AASHTO). State Departments of Transportation buy highway safety equipment from a list of vendors whose products have been crash-tested and approved by the Federal Highway Administration; the FHWA, reimburses states that use approved equipment.
In the fall of 2012, three AASHTO members reported that the end terminals were involved in three severe vehicle crashes that resulted in serious injuries and deaths. In January, the Nevada Department of Transportation informed Trinity that its ET-Plus terminal would no longer be considered approved equipment because of the 2005 modification that was not disclosed.
In March, state officials acknowledged SRS’s public records request, and on April, they released some documents. But Kimberly Clark Menchion, Assistant General Counsel for the Florida Department of Transportation informed SRS in May that it was withholding a CD containing more than 1,000 emails between the state and Trinity because they had been sent to Trinity for review. FDOT cited a protective order Trinity had obtained, prohibiting FDOT’s release of “trade secret” records, in relation to two specific documents: Trinity’s Quality Management System Manual and Facilities Manual. SRS did not seek those documents.
SRS’s lawsuit alleges that the FDOT has improperly withheld those emails and other documents without citing a statutory exemption to the Public Records Act which justifies the delay in their release or allowing Trinity to review the records. Florida’s Public Records Act is broadly construed in favor of transparency.
This is SRS’s second freedom of information lawsuit related to Trinity and the ET-Plus. Last week, the company sued the Federal Highway Administration in U.S. District Court, alleging that the FHWA improperly withheld records and failed to respond to two separate administrative appeals on the failure to release documents pertaining to the agency’s interactions with Trinity and with the American Association of State Highway and Transportation Officials. SRS originally sought the documents in November and January.
The Florida lawsuit underscores the deferential treatment private industry often gets from government regulators during safety investigations and later, to public information disclosures that might be less than positive. The National Highway Traffic Safety Administration for example, regularly shields from public view a range of investigative and civil penalty settlement documents involving major manufacturers. SRS has filed a total of four Freedom of Information lawsuits against NHTSA. All four were settled when NHTSA released the documents and agreed to pay SRS’s legal expenses.