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Lawyer Sues To Access CSX, DOT Negotiation Records
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Published: March 28, 2008
A Tallahassee lawyer is suing the state Department of Transportation to obtain documents that the DOT declared as confidential in its multimillion-dollar negotiations with CSX Transportation.
In August 2006, after negotiating for about eight months, the DOT agreed to spend $491 million to buy 61 miles of CSX tracks in the Orlando area for commuter rail. The money also would be used to help CSX improve its freight rail corridors statewide and run more trains to a massive hub the company plans to build in Polk County.
"We allowed a private company to pick and choose what will and won't be disclosed" in the negotiations, said the lawyer who brought the suit, Mark E. Walker.
How can anyone know if the $491 million deal is the right thing for the state "if they don't allow anyone to know how they reached the agreement?" Walker asked.
The cost of the deal since has risen to $649 million.
Florida's Sunshine Law gives the public the right to view all state and local government records, unless they meet the criteria of one of several exemptions. Among those exemptions are trade secrets.
In its negotiations with the DOT, CSX said that documents outlining its terms and positions contained trade secrets and should be withheld from public view.
The DOT agreed, without asking to review those documents before placing them off limits.
The DOT employees and consultants who worked on the deal were required to sign agreements saying they would "maintain the confidentiality of the 'Confidential Information,' and to take adequate measure to maintain maximum security of the material."
CSX spokesman Gary Sease said the company had no comment.
DOT spokesman Dick Kane said "we do not comment on pending litigation."
In his lawsuit, filed in Leon County Circuit Court, Walker asks the court to declare the confidentiality agreements invalid and order the DOT to provide him with the documents covered by the agreements.
He also asks the court to rule that "FDOT cannot delegate its authority under the Florida Public Records Law to CSX."
Many lawmakers have criticized the CSX deal, which is being debated during this legislative session. A major complaint is the secrecy in which it was forged.
The money was set aside during the 2005 legislative session in a bill that made no mention of CSX. Orlando area lawmakers who had been lobbying for commuter rail said they knew where the money was going, but many others didn't.
Two legislators who were in the dark were state Sen. Paula Dockery and Rep. Dennis Ross, both Republicans from Lakeland. They are particularly concerned because freight train traffic would rise in downtown Lakeland as CSX runs more trains in and out of its new Polk County hub.
"One of my biggest frustrations ... is that this deal had been put together over a long period of time but was done in large part in secrecy," Dockery said in a recent Lakeland town meeting.
Scrutiny is important in deals such as this, when a chunk of money goes "to benefit one part of the state and has a devastating effect on another part of the state," she said.
Soon after the Legislature approved the money for CSX, DOT employees signed the confidentiality agreements and the negotiations began.
The agreements say that CSX asserts that certain documents are exempt from the Florida Public Records Law as trade secrets and will be labeled "confidential."
Also, it says that DOT agrees to keep that material out of public view, based on CSX's assertion.
Ross said he was concerned about the confidentiality agreements and met this month with DOT Secretary Stephanie Kopelousos and General Counsel Alexis Yarbrough to ask about them.
He said they denied that any existed, except to protect information concerning labor negotiations in the deal.
Later, however, he received a letter from Yarbrough apologizing and saying there were confidentiality agreements.
He said he agreed with Walker that the agreements were inappropriate and wants to see what's contained in the "confidential" records. "I just don't think that's standard procedure in the DOT."
Reporter Lindsay Peterson can be reached at lpeterson@tampatrib.com or (813) 259-7834.
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