Constitution Wins After Court Imposes Prior Restraint on Pipeline Safety Info

September 24, 2014

As a nationwide newspaper chain probed the safety threats posed to the public by gas pipelines, an Alabama court imposed prior restraint on the Montgomery Advertiser, to prevent it from publishing a company's safety plan which had been released under a freedom-of-information request.

The company, Alabama Gas Corporation (known as Alagasco), got a district court to issue a temporary restraining order prohibiting the Advertiser from publishing information about its pipes. The Advertiser eventually, on September 23, 2014, ran a story exposing the fact that a significant fraction of Alagasco's pipe is corrosion-prone cast iron, and describing a fatal explosion caused last December by cracked cast-iron pipe. The Advertiser's story suggests that Alagasco's aging cast iron pipes may well have been endangering the lives of Alabama residents. The company sought censorship of its plan for correcting those problems.

Alagasco used two weak arguments to urge the court to hide its federally required safety plan: homeland security and trade secrets. Pipeline location information is already public in most places. But Alagasco was arguing that publishing it would make them vulnerable to terrorists or others who might attempt harm — despite the fact that a determined terrorist could already get the information. Alagasco also argued that its plan for correcting pipeline safety problems was proprietary business information — trade secrets. But trade secrecy claims usually apply to information which could help a commercial competitor. As a gas utility, Algasco has essentially been granted a government-regulated monopoly which precludes competition and requires the public interest to be served.

When the request was originally filed, a circuit court took those arguments seriously enough to grant Alagasco a restraining order that prevented the Advertiser from publishing Alagasco's safety plan. The Advertiser had gotten the safety plan in June from the Alabama Public Service Commission. The Advertiser is owned by the Gannett chain whose flagship publication, USA TODAY, was investigating pipeline safety nationwide. Over the past decade or more, those arguments have often been used by companies in many industries to prevent the public from knowing about safety threats they pose to communities.

Fortunately, state circuit Judge Vance on September 23 rejected those arguments, and ruled that the court had erred in granting a temporary restraining order — because that was unconstitutional prior restraint of the press.