Everything online journalists need to protect their legal rights. This free resource culls from all Reporters Committee resources and includes exclusive content on digital media law issues.
In the wake of the Minneapolis bridge collapse, some states have tightened control of inspection records that could foretell the next disaster.
From the Fall 2007 issue of The News Media & The Law, page 4.
By Scott Albright
When the Interstate 35W bridge in Minneapolis collapsed into the Mississippi River on Aug. 1, killing 13 people and wounding more than 100, it was a grim reminder that in this post-Sept. 11 age, catastrophe can occur with or without the aid of terrorists.
Though the precise causes of the bridge collapse are still being investigated, preliminary reports show no evidence of terrorist plots or devices. Rather, most signs point to structural deficiencies that had been well-documented in inspection records going back several years, according to press reports.
Nonetheless, the U.S. Department of Homeland Security responded as if the I-35W bridge had been hit by a missile. Within days of the disaster, the department sent letters to state officials nationwide, cautioning against the public disclosure of any bridge records that might show a structure’s vulnerabilities.
Terrorists are on the lookout for any edge they can get, department officials warned.
“Obviously, if you disclose a specific vulnerability at a specific location, that is an enticement to a committed enemy about a place where you could be attacked,” said DHS spokesman Russ Knocke.
He compared releasing bridge inspection records to a homeowner posting a notice in his or her front yard, stating: “your back door does not lock.”
But the policy’s critics argue that reviewing unedited inspection records is a critical step toward preventing another bridge collapse, and have been stunned by the DHS recommendation.
“This is ridiculous,” said Brant Houston, acting director of Investigative Reporters and Editors, Inc., a nonprofit group that supports and protects the rights of investigative journalists.
Along with encouraging public oversight of bridge maintenance, Houston said the inspection reports can be used to hold government officials accountable if they ignore infrastructure problems over time. He also pointed out that no bridge in the United States has ever been felled by terrorists, while several have fallen because of structural deficiencies.
“There are ticking time bombs out there that aren’t created by terrorists,” Houston said. “You always have a trade-off, and I believe the risk would be much greater in keeping these records from the public.”
Initial reports show that at least one state, Virginia, has quickly instituted the DHS policy, while others have reemphasized similar guidelines put into place after Sept. 11.
“This was a huge change, because right after the Minnesota accident, I had what I judged to be full access to every inspection report they had on file down at the [Virginia Department of Transportation] office,” said Jeff Sturgeon, a veteran reporter covering transportation and business at The Roanoke Times.
The Virginia agency’s decision mirrored policies in other states — such as Florida, Illinois and Maryland — and, at least in Virginia’s case, appeared to be a direct response to notices sent in mid-August to state Homeland Security offices from the U.S. Department of Homeland Security and the Federal Highway Administration. The federal agency notices recommended that inspection records be withheld because terrorists could use them to plan attacks, Knocke said.
Florida has since modified its bridge inspection report disclosure policy in favor of more disclosure, thanks in large part to pressure exerted by state Sen. Dan Gaetz (R). But other states have been slow to follow suit.
Confirming the influence of the DHS notice on Virginia’s policy change, Virginia Transportation Department spokesman said his agency began withholding the records after consulting lawyers in the state attorney general’s office in mid-August. Since then, the agency has cited state Freedom of Information Act exemptions related to public safety and critical infrastructure as its legal support for the policy, he said.
“If someone was truly looking to do harm to one of these bridges there is information in those inspection reports that could be used to target certain areas of the bridge,” said Jeffrey Caldwell, Virginia transportation department spokesman. “In some cases, that material could be used by someone with more nefarious goals in mind to plan an easy way and an accessible way to damage that bridge or bring it down completely.”
There’s still some question, however, as to whether local transportation officials within states like Virginia and Illinois will follow the policy decisions of the their state-level counterparts.
In Illinois, for instance, though the state transportation department will not release bridge inspection data, the Associated Press reported that as of early September, local officials within Douglas County were still releasing the reports to the public.
Virginia transportation officials sent a letter to city and town managers and engineers on Aug. 27 announcing the state’s new policy of withholding the inspection reports and “encouraging local government staff to take appropriate action.”
While the Aug. 27 letter did not explicitly ask localities to withhold the reports, it did refer to federal Homeland Security and Highway Administration warnings that advised such a policy.
Charles E. Van Allman Jr., the city engineer in Salem, Va., said his office has not received a state Freedom of Information Act request for a full bridge inspection report since the Minneapolis disaster. But he also said his office is unsure how it would handle such a request, and would likely refer it to the city’s attorney should it arrive.
“It’s a policy matter that hasn’t necessarily been tested yet,” Van Allman said.
Getting the story out in Minnesota
The stream of bridge inspection information in Minnesota has been relatively fluid compared to other states.
On the day of the disaster, Dan Browning, a veteran reporter with the Star Tribune, said his newspaper needed to put out a quick story for the following day’s editions detailing the I-35W bridge’s inspection ratings. Given the heavy deadline pressure involved, Browning initially depended upon the general classification ratings organized within IRE’s National Institute for Computer-Assisted Reporting database, which he had used several times in the past.
During the days and weeks that followed, Browning said he pressed the state transportation department for inspection records, and the agency typically responded within days, first posting summary inspection reports for the I-35W bridge and then gradually releasing more comprehensive reports that spanned further and further back into the troubled bridge’s history.
Within a couple weeks after the collapse, Browning said the state transportation department had publicly released detailed and annotated bridge inspection reports going back decades.
As inspection reports for other “fracture critical” bridges — structures that could collapse if a single component of the bridge fails — were released on the agency’s Web site, Browning said he read through each one of the often-thick reports, page-by-page.
“We had a pretty good record of bridge evaluations for all of the periods that we needed,” he said.
While readers of the Star Tribune can access a page on the paper’s Web site titled, “After the I-35W Collapse,” which features copious amounts of information related to coverage of the story, the Minnesota Transportation Department’s site is also a valuable resource.
Browning said he has half-jokingly referred to the agency as “the Kremlin” because of what he described as its past resistance to disclosing information to reporters, but he praised the agency’s Web site as a valuable tool in the aftermath of the crisis.
Jeanne Aamodt, a Minnesota transportation department spokeswoman, said the near overwhelming volume of media and citizen requests, nationally and internationally, concerning the bridge collapse was a primary impetus leading to the agency’s decision to make the bridge inspection reports available online.
Barbara Forsland, an attorney with the state department of transportation who acts as the agency’s data practices compliance officer, said in 2005 the agency reviewed all information in its control in the context of the Minnesota Government Data Practices Act, which features exemptions related to homeland security issues.
As part of that review, Minnesota policy makers joined with state engineers to determine which Minnesota bridges should be designated “highly critical” based on the bridge’s likely uses and vulnerabilities in the event of a terrorist attack or similar emergency. Of the bridges that were dubbed “highly critical,” Forsland said, only documents pertaining to access and connection characteristics of the bridges were deemed necessary to withhold from public disclosure.
The Minnesota policy leaves the bridge inspection records almost entirely open to public review, and the vast majority of the records can be accessed on the Minnesota Department of Transportation’s Web site, Forsland said. The only redactions on the Web versions of the annotated inspection reports are inspectors’ names and addresses, she said. Unredacted versions with inspector information included can be obtained through individual requests to the agency, she said.
During the 2005 review, Forsland said the state determined that annotated bridge inspection reports would be unlikely to give terrorists any advantages they couldn’t also gain from simply walking up to a bridge.
“Because bridges are exposed structures, they are visible, and even an inexperienced person can physically observe the bridge’s structure,” Forsland said. “So that’s why we felt that we only needed to limit access to a few specific elements of the design.”
Pushing for change in Florida
Florida state Sen. Dan Gaetz (R) represents a historically conservative district located along the Gulf Coast panhandle that is home to five military bases and a large number of bridges. Immediately following the Minneapolis disaster, Gaetz said he received numerous calls from constituents asking why the Florida Department of Transportation was denying them access to bridge inspection reports.
A great many of his constituents have supported the Bush administration and otherwise are either in the military or employed by the military, Gaetz said.
Initially, these same constituents simply accepted the state transportation department’s explanation that bridge inspection reports were being withheld to comply with state Freedom of Information Act exemptions related to national security.
“The initial reaction was ‘Oh well, there must be this law, and it must be there for a good reason,’” Gaetz said. “Well, the fact is, this law did not specifically forbid the release of bridge inspection reports. The law was more general in nature.”
A former weekly newspaper reporter and editor who still maintains a National Press Club membership, Gaetz started pressing the Florida transportation agency himself, and at one point threatened to introduce legislation that would force disclosure of all bridge inspection reports.
Ultimately, the agency reached a compromise with Gaetz and the public at large, agreeing to disclose the annotated bridge inspection reports with sensitive portions redacted, the lawmaker said.
Gaetz said he believed the initial decision to withhold the documents originated within “middle-level bureaucracy that responded viscerally and negatively to the issue.” Once he started a discussion with more senior policy makers, Gaetz said, the policy changed.
But Gaetz also said some bridge information should be withheld from public disclosure, provided the decision to withhold is done with specific justification on a case-by-case basis.
He suggested, as an example, that information showing a bridge had been unusually fortified to carry extra-heavy special operations vehicles should be withheld.
For its part, the Florida transportation department still maintains a statutory right to withhold, through redaction, large portions of bridge inspection records.
Robert Burdick, a deputy general counsel with the agency, said bridge inspection records often contain information that the Florida legislature intended to exempt from the state’s open records laws when the legislature enacted the exemptions after the Sept. 11 attacks.
Burdick said that while the public will be able to access inspection records in addition to the type of “structurally deficient” and “functionally obsolete” classifications made available in states like Virginia and Maryland, the state is legally permitted to withhold many of the details in the inspection reports.
“Before the reports can be inspected or copied, the department will need to remove exempt, sensitive information, including pictures of bridge components, drawings and detailed information about specific parts of the bridges,” Burdick said. “Bridge inspection reports consist almost entirely of detailed information and depictions of specific bridge components.
“After redaction, the inspection report will not contain more specific information than is provided on the department’s Web site,” Burdick said.
Gaetz praised Florida transportation officials and Gov. Charlie Crist (R) for working with him and others to change the policy.
He said he was cautiously satisfied with the results in his state, but noted that only time would tell if the changes were sufficient.
“Reporters will always push and test, and they should,” Gaetz said.
“The fact that so far there have not been any media complaints or concerns that have been brought to my attention (after the bridge records policy change) would suggest that the steps in this case were probably appropriate,” he said.
Barking like a watchdog
For many investigative journalists and open government advocates, however, Florida’s revised inspection disclosure policy and others like it don’t go nearly far enough in informing the public.
For Dan Browning, the Star Tribune reporter, perhaps the most important reason to release unredacted, annotated bridge inspection reports is to check up on government officials who were responsible for maintaining the bridges.
By not releasing detailed inspection reports that may have shown officials were or should have been aware of bridge flaws, Browning charged that state officials “are not protecting citizens from potential terrorists, but the politicians from their own misfeasance.”
Houston, the acting IRE director who is also the Knight Chair in Investigative and Enterprise Reporting at the University of Illinois, has encountered similar problems obtaining from government officials inspection reports and other structural information relating to dams, even when much of the information sought is already available on the Internet. Scouring such reports allows watchdogs to create the type of timeline necessary to hold officials accountable for having ignored infrastructure deficiencies, he said.
He added that many of the decisions to withhold such infrastructure records seem arbitrarily formulated, based simply on abstract fears rather than good science or well-documented intelligence.
“We are fearful that these decisions are being made with a lot of ignorance and not much knowledge,” Houston said. “Furthermore, often these people are not willing to sit down, these government officials, so we can find out if they know what they are talking about.”
Jennifer LaFleur, the computer-assisted reporting editor at the Dallas Morning News, agreed that disclosing bridge inspection records allows the public to better assess whether a bridge’s deficiencies had been properly addressed by specific officials in charge prior to a collapse.
LaFleur noted that history has shown terrorists are more interested in attacking targets because of their potential symbolic and emotional impact than because the target has any particular structural vulnerability.
However, Henry Petroski, a civil engineering professor at Duke University since 1990 who specializes in failure analysis and design theory, said terrorists involved in the Sept. 11 attacks may have learned from the thwarted 1993 bombing of the World Trade Center.
Petroski suggested that the 2001 attack may have represented the terrorists’ revised assessments of the twin towers’ structural vulnerabilities, and therefore showed that terrorists do pay attention to such information.
But Petroski also said that when it comes to most bridges and the weapons terrorists have historically preferred, such assessments may be irrelevant.
“If someone wanted to destroy a large bridge, if they can crash a plane into it, they probably don’t need to know” the bridge’s specific vulnerabilities, he said.
Meanwhile, Browning, who partnered with another Star Tribune reporter for nearly two years to investigate the transportation department’s bidding and contracting practices, is an old pro when it comes making state information requests. For the two-year project, Browning said he and his partner made approximately 1,100 such requests to the agency.
While Browning has recently moved back into his primary beat as a federal government reporter, he said he’s still waiting on a request for e-mail messages and other correspondences between the transportation agency and a private consultant, URS Corp., which offered opinions on the I-35W bridge before the disaster.
Since Browning’s request, a law firm representing families of victims of the collapse filed suit against the state transportation agency in early October in an attempt to obtain documents from another consulting firm — Wiss, Janney, Elstner Associates Inc. — that has been hired by the agency to study the disaster.
While the Minnesota transportation department initially refused to release the URS-related documents, Browning and other Star Tribune reporters have continued pressuring the agency. In a late September interview, spokeswoman Jeanne Aamodt said the agency was preparing to release the URS-related documents.
“We will eventually get that, I promise you,” Browning said. “One way or another we will get them.”
Controlling information flow
Through policy adjustments following the Sept. 11 attacks and now the Minneapolis disaster, Virginia and some other states carefully control the information released publicly about their bridges.
The Virginia Department of Transportation, for example, posts on its Web site a spreadsheet of all state-monitored bridges that includes numerical ratings, ranging from one to nine, of each bridge’s substructure, superstructure and deck.
Among other categorizations, the chart lists whether the bridge is considered “structurally deficient,” which, while not a determination that the bridge will imminently collapse, shows the bridge is in significant need of repair, according to the agency’s Web site.
The Virginia site also lists bridges that are judged to be “functionally obsolete,” which refers to bridges built to standards that are no longer acceptable today. While the term doesn’t directly relate to the bridge’s ability to remain standing, it does signal the possibility of problems such as inadequate lane widths, shoulder widths or vertical clearances, according to the state’s Web site.
The numerical rating system exists as a standard that allows the bridge data to be accumulated in a national database distributed by the Federal Highway Administration. The system is used in state databases nationwide and by IRE, which offers an organized, easy-to-read version of the FHWA database through a Web site subscription service (see sidebar for details).
Maryland has had a similar policy of restricted public access to bridge records that preceded the Minneapolis disaster, according to press reports. But while annotated inspection reports are withheld, the Maryland Department of Transportation divulges the “structurally deficient feature” in each bridge it lists as structurally deficient as per federal standards. Virginia is tighter-lipped in this regard, records show.
Illinois has one of the stricter policies in the nation, according to an Associated Press report in early September. Not only does Illinois not release bridge inspection reports, but the state does not make available on its Web site the more general numerical ratings and classifications for bridges that other states like Virginia and Maryland provide. In the AP interview, an Illinois spokesman cited terrorism concerns as motivation for the policy, and pointed to state freedom of information exemptions related to security as the supporting legal basis.
The American Association of State Highway and Transportation Officials posts on its Web site links to the information each state will provide on bridges. Only links to Idaho, Vermont and Washington, D.C., are not linked on AASHTO’s site.
Reporters on the bridge beat have started seeing the practical consequences of the policy changes.
For example, prior to Virginia’s change during the first weeks after the Minneapolis collapse, Sturgeon recalled his local state transportation office being crammed with print and TV journalists, all walking out with copies of virtually any comprehensive state bridge inspection reports they requested. The reports typically document rust, insecure beams and other specific weaknesses in the infrastructure.
Accompanied by a Times photographer, Sturgeon himself tagged along with state bridge inspectors as they picked over and assessed local bridges within a week of the Minneapolis disaster. The newspaper ran stories by Sturgeon that referenced one particular bridge’s shortcomings, emphasizing its “heavy corrosion” and “footing undermined.”
In his analysis of local bridges, Sturgeon pored over close to 3,000 regional listings important to his readers. Upon noticing some particularly decrepit structures during his initial review, Sturgeon asked for and received annotated bridge reports for those sites.
In one Salem, Va., bridge report produced in 2006, an inspector commented gravely about cracks in the bridge’s abutments and recommended that the bridge’s deck, superstructure and substructure all be replaced.
While Sturgeon still has a copy of the 2006 Salem bridge report, he wouldn’t be able to get much of the same information from the state transportation agency today. In late August, the Virginia Department of Transportation began withholding bridge inspection reports from the public.
Worth the fight?
In the days following the Minneapolis bridge collapse, policy makers in states such as Virginia and Florida believed the public right-to-know would be adequately satisfied by only disclosing the rating numbers and other general assessments about each bridge.
While instinctively cringing at the Virginia transportation department’s new bridge policy, Sturgeon said he has adopted a pragmatic attitude.
“I’m not someone who’s tolerant of doors being closed in my face,” Sturgeon said. “I don’t like what happened, but I’m trying to be somewhat of a realist here, too.”
In the days after the Minneapolis bridge collapse, Sturgeon said the great volume of Virginia bridge listings he scanned in combination with normal newspaper deadlines necessitated that he focus on simple numerical ratings and general, “structurally deficient” classifications to quickly and efficiently determine which Virginia bridges were potentially at risk.
For the most part, Sturgeon said, in the early days after the Minneapolis disaster when the story was particularly urgent, he generally skipped over the specific inspectors’ notes that are now withheld through the Virginia transportation department’s new policy. While he said the policy irks him as a “whittling away” of public access to information, he noted that the state’s use of national security as justification for withholding documents in this instance created a tough obstacle that he thinks isn’t worth challenging.
“It’s not like these (bridge inspection) reports are loaded with gold,” Sturgeon said. “They’re interesting, but they’re not like nursing home inspection reports or court papers. It wasn’t such an egregious violation that we weren’t going to be able to cover the news anymore.”
As a reporter for the Star Tribune and a former commuter over the I-35W bridge, Dan Browning has a different point of view when it comes to the inspection records issue.
Browning recalled being within minutes of driving over the I-35W bridge himself the day it dropped into the Mississippi River.
He said he believes the Star Tribune would have supported him in immediately suing the state of Minnesota had its transportation department not released the inspection reports as quickly and comprehensively as it did.
Browning said Sturgeon and policy makers in other states that withhold inspection information might feel differently if they had witnessed their own local bridges tumble into a river.
“I’m telling you,” Browning said, “your perspective changes.”