Kala Kachmar

Montgomery Advertiser

Alabama Gas Corporation has taken legal action to attempt to stop the Montgomery Advertiser from publishing or writing about the company's document that outlines a plan to ensure the safety of gas pipes.

The document, Alagasco's Distribution Integrity Management Plan (DIMP), was obtained in June through a public records request to the Alabama Public Service Commission (PSC), which oversees the state's utilities.

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.

On Sept. 12, Alagasco obtained a temporary restraining order, or restriction on publishing the information, from Jefferson County District Court. The company also filed civil lawsuit against the newspaper and a motion for a permanent injunction, which if granted by a judge would prohibit the Advertiser from publishing the information. A hearing will be held Sept. 25.

The Advertiser's use of the document is part of a national USA Today investigation that examines the dangers of cast iron pipes, which when corroded can cause gas leaks, fires and explosions. 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.

Federal data also shows that about 7.5 percent of Alagasco's main lines are cast iron, which is three times the 2.5 percent national average.

According to Alagasco's motion for a temporary restraining order, the document contains "sensitive, confidential information regarding Algasco's proprietary pipeline distribution network and infrastructure."

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

In the same motion, Alagasco also argues that the document is not considered a public record, and therefore was not subject to disclosure because the document reflects Alagasco's operations, not the operations of state government.

The motion said the document contains "critical energy infrastructure information," which is an exemption from public disclosure under the state's open records law. The company also argued that the document is exempt because it contains information that could pose a public security threat.

Public knowledge of the company's energy infrastructure would make it "vulnerable to sabotage or terrorist attack, thereby endangering the life, limb and property of the public," according to Alagasco's motion.

In the civil complaint against the Advertiser, Alagasco said they had an expectation that the PSC would keep the integrity management plan confidential.

"This is an outrageous move by Alagasco and the judge," said Tom Clifford, executive editor of the Advertiser. "It is an unconstitutional assault on freedom of the press, which is especially ironic considering (Wednesday) is Constitution Day."

On Tuesday, Dennis Bailey, the attorney representing the Advertiser, filed a motion to remove the temporary restraining order, arguing that prior restraint of the freedom of the press is unconstitutional under the First Amendment.

He also argued that in prior federal cases, judges have ruled that information disseminated by a government agency to a news organization can be published even if the government entity erred in releasing the information.

Bailey said the complaint doesn't indicate what information in integrity management plan is sensitive or poses a risk to the public. The Advertiser's motion said the document was "freely" emailed by the PSC after consulting with their attorneys, and there was no indication anywhere in the 190-page document showing that the information was proprietary, secret, sensitive, privileged or confidential.

According to the motion, locations of gas mains are not secret and are visible to passing motorists. They're often marked in the field to alert the public where not to dig or disturb the ground.

Clifford said the integrity management plan is a public document that details the condition of pipes and the company's plan to repair and replace them.



"If their attempt to exercise prior restraint holds up, the loser will be public safety," Clifford said. "We properly found out where the bad pipes are, and right now we are being ordered by a judge not to tell you where they are. How ridiculous is that?"



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

After the reporter sent Alagasco a list of questions, attorneys requested that the Advertiser give back all copies of the plan and destroy all records of communication about the documents, according to the Advertiser's motion.

"For all that appears, Alagasco became concerned that questions being asked by a reporter Aug. 20 might lead to public knowledge of deficiencies in Alagasco operations, which generated a pre-emptive attack on First Amendment rights three weeks later," the motion said.

Bailey said Alasgasco agreed to an interview with the reporter several weeks before action was taken to get the document back.

"When they saw the questions, took immediate action to get the document blocked," he said. "It's clearly a prior restraint on freedom of the press without establishing the foundation necessary to justify infringing on the First Amendment."