Judge delays ruling on Alagasco restraining order

A Jefferson County judge said he would decide Tuesday whether to remove a temporary restraining order preventing the Montgomery 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 Monday.

The document, Alagasco's Distribution Integrity Management Plan, was obtained through a public records request from the Alabama Public Service Commission (PSC) in June. The Advertiser's intention is to use the publication as part of a national USA Today investigation into the dangers of cast-iron natural gas pipelines.

Cast-iron pipes are more prone to cracks and leaks, which can cause fires. Alagasco has the most miles of cast-iron pipes of all gas companies in the state, and the ninth highest amount in the country, according to federal data.

But on Sept. 12, more than two months after Alagasco found out that the Advertiser had the document, the company obtained a temporary restraining order to stop the newspaper from publishing the information. They also filed a civil lawsuit and a motion for a permanent injunction, which if granted by a judge would indefinitely prevent the newspaper from publishing the information.

Last week, the Advertiser responded with a motion to dissolve the temporary restraining order, arguing that prohibiting the publication of information received from the government is prior restraint, which is a violation of the First Amendment.

Alagasco alleges that the Advertiser obtained the document illegally from the PSC, and that Alabama's administrative regulations are designed to allow utilities the opportunity to challenge any requests for disclosure. Alagasco's court filings say that 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 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 immediately rule on the motion to remove the restraining order.

"I believe it's clear that this order is a Constitutional right that has 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 the Advertiser's attorneys that said the integrity plan was proprietary and the PSC shouldn't have given it out. However,at the time, Alagasco only asked that the reporter give the company 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.

Another hearing will be held on Thursday to hear testimony and present evidence to determine whether the judge will issue a permanent injunction on the document.