Judge delays ruling on court order against Ala. paper

BIRMINGHAM, Ala. — A Jefferson County judge said he would decide Tuesday whether to remove a temporary restraining order preventing the Montgomery (Ala.) Advertiser from publishing content in a document about the safety of Alabama Gas Corp.'s pipelines.

Advertiser and Alagasco attorneys argued their positions at a hearing in Jefferson County District Court on Monday.

The document, Alagasco's Distribution Integrity Management Plan, was obtained through a public records request from the Alabama Public Service Commission in June.

But on Sept. 12, more than two months after Alagasco found out the Advertiser — which like USA TODAY is owned by Gannett Co. Inc. — had the document, the company filed a motion in Jefferson County District Court to stop the newspaper from publishing the information.

If the order is removed, the content in the document will be used as part of a national USA TODAY investigation on the dangers of cast-iron natural gas pipelines. According to federal data, Alagasco has about 833 miles of cast iron main gas lines, which is the highest of any gas company in Alabama and ninth highest in the country.

All gas companies are required by the federal Pipeline and Hazardous Materials Safety Administration to file a plan that assures pipeline safety and integrity with the state entity that oversees utility companies.

The regulation requires natural gas distribution companies to develop, write and implement a plan that identifies threats, evaluates and ranks risks, identifies measures to address risk, evaluates effectiveness and reports results.

Alagasco alleges that the Advertiser obtained the document illegally from the Public Service Commission, and that Alabama's open record laws are designed to allow utilities the opportunity to challenge any requests for disclosure. The motion filed Sept. 12 said because the Advertiser didn't "serve" Alagasco with the proper "form" and request, the newspaper unlawfully obtained the document.

But there was some dispute as to whether the state's administrative regulations, which Alagasco referred to both in court and in the motion, is designed for state entities or for the public.

David Rich, an Alagasco attorney, said this particular situation is not a prior restraint because the Advertiser obtained the document illegally. He said case law shows that when a restraining order is issued to correct unlawful behavior, it's not considered a prior restraint.

Alagasco also said the document is not subject to disclosure under the open records law because it contains "critical energy infrastructure information" and could pose a threat to national security.

Judge Robert Vance, however, said the first thing that came to his mind when he read the case was New York Times Co. vs. United States, a 1971 landmark Supreme Court decision that allowed the New York Times and Washington Post to publish the then-classified Pentagon Papers.

Dennis Bailey, who represents the Advertiser, said the a prior restraint is only lawful if it inevitably, directly and immediately harms "a state interest of the highest order," and that the government's interest is so great, so grave and so certain that it cannot be protected by any means other than a prior restraint.

He also said this is the only example of prior restraint that a member of the Alabama Press Association has experienced in 143 years. Only a handful have been upheld in federal court, he said.

"We believe wholeheartedly that this is a prior restraint issue and public safety is at risk," said Tom Clifford, executive editor of the Advertiser. "We will do anything and everything necessary to see this injustice rectified."

Clifford said he's disappointed that the judge didn't rule on the motion to remove the restraining order immediately.

"I believe it's clear that this is a Constitutional right that's being taken away from us by the hour," he said. "It's been 10 days and it's going to be another 18 hours before we may be able to publish."

In July, Alagasco attorneys wrote a letter to Bailey asserting that the Public Service Commission should not have provided the document to the Advertiser, and asked that the newspaper give Alagasco a reasonable amount of time to respond to questions.

Alagasco agreed to an interview with the reporter, but in August, after receiving a list of questions, sent a letter to the Advertiser asking that the newspaper destroy the document and all related email correspondence, citing national security concerns.

On Friday, the PSC issued a statement saying it's up to the companies to mark supplied documents as confidential or proprietary. Because Alagasco's document was not marked proprietary, it was made available to the Advertiser upon request.

"Our system is set up so that when we receive a document that is not marked proprietary, we treat it that way because our goal is to always make as much information as possible available to the public," the statement said.

If the judge does not dissolve the order, there will be a hearing Thursday to hear testimony and present evidence to determine whether the judge will issue a permanent injunction on the document.