Alabama Department of Transportation director John Cooper is seeking to withhold text messages and other communications from former and current heads of Alabama government in an ongoing legal case over a bridge project on the state’s beaches.
Cooper, through his attorneys with Birmingham-based Balch & Bingham, was able to secure an emergency order from the Alabama State Supreme Court on January 31 to temporarily withhold those records based on an argument that they were protected by “executive or deliberate process privilege”. ,
The Supreme Court order came less than 24 hours after Montgomery County Circuit Judge Jimmy Pool ordered Cooper to “immediately produce all documents” during the discovery process of a lawsuit filed in October by the Baldwin County Bridge Company.
The legal wrangle hinges on the issue of whether Alabama law allows the office of the governor, or the state’s executive branch, to withhold communications under executive or deliberative process privilege. If permitted, a high-level government official may withhold certain documents if the official determines they are part of their decision-making process.
Executive or deliberative privilege is the same legal process granted to US presidents to withhold information from the courts, Congress, and the public in order to protect the secrecy of the office and its decision-making processes. But in recent years, governors have also sought executive or deliberative process privilege to withhold public records, and state supreme courts have supported them in Washington and Oklahoma. The most recent executive privilege request came from Florida Gov. Ron DeSantis, who is arguing against the release of documents related to a controversial migrant resettlement program.
ALDOT said in a statement that it is entitled to intercept communications that include text messages and emails.
According to the ALDOT statement, “It is a widely recognized legal principle that an agency director and the governor’s office should be able to discuss an issue and weigh options free of outside influence.” AL.com, “The ‘deliberative process’ privilege helps ensure that state officials are able to reach the best outcome for the citizens of Alabama.”
Joe Espy, a Montgomery-based attorney representing the bridge company, said he expects the information to be released in the coming weeks. The preliminary hearing of the case of the bridge company is to be held on February 22.
Espie said, “The bridge company is diligently preparing for the hearing before Judge Poole and we are hopeful that we will be able to obtain information that has not been provided by the Highways Director at this point.”
Ivey also filed a friend-of-court motion on January 31, requesting information to the Supreme Court in support of Cooper’s argument for protecting communications between ALDOT and his office.
Ivey’s proposal came less than a week after he signed an executive order requiring state agencies to respond to public records requests.
‘Scant Case Law’
The bridge company, behind its attorneys, requested documents from Cooper that they believe would clarify that he had built a new two-way bridge on the Intercoastal Waterway in Gulf Shores about 1.1 miles west of a toll bridge adjacent to the pier. Why did you choose to build a lane bridge? Orange Beach. That bridge is owned and operated by the Bridge Company, which has long opposed the Gulf Shores Bridge project.
The bridge company’s initial complaint alleges that Cooper failed to conduct a traffic study and that he had a “personal vendetta” against the bridge company and was prepared to bankrupt them. In response ALDOT called the lawsuit “frivolous” and a potential “waste” of taxpayer money.
pool, a Judge appointed by Ivey to Montgomery County Circuit Court in 2018said in its January 30 order that “short case law exists in Alabama” addressing the executive or deliberative process privilege.
Poole quoted 1978 Alabama State Supreme Court decision In which the court denied a request for executive privilege to stop the release of records in an ongoing criminal case. The deliberative process, which has been referred to as a “subspecies of executive privilege,” is also rarely enforced in Alabama, Poole noted.
Pool argued that “there is no justification under Alabama law for Director Cooper to invoke an executive or intentional process to shield otherwise discoverable and relevant information from disclosure in this case.”
“There is no state secret, military crisis, diplomatic sensitivity or criminal investigation at issue,” he added.
Cooper, as ALDOT director, has sole discretion to decide whether and where ALDOT can build a public bridge in Alabama, or a major project such as the Intercoastal Waterway Bridge, but he “consults with the governor’s office on critical issues”. Won’t proceed without advice.” Decision regarding the project. ,
Cooper, behind his attorneys, argues that the release of text messages and other documents to past and present chiefs of staff would undermine “the open exchange of information necessary to carry out ALDOT’s essential functions.”
Those decisions were captured in text messages and emails to Ivey’s former and current chiefs of staff — Steve Pelham, Joe Bonner and Liz Filmore, according to court filings.
“If every email or text message discussing the progress of negotiations and exchanges between ALDOT and the Baldwin County Bridge Company, and the recommendations of Director Cooper and the Governor’s Office is a potential object of discovery and front page news … ( Cooper) and the ability of its employees to engage in ‘frank and open internal communication’ on such critical transportation projects would be practically non-existent,” wrote attorney Ed Haden on Cooper’s behalf.
Hayden also called the bridge company’s overall lawsuit – which claims that Cooper acted in “bad faith” to come up with his decision on the bridge – as “blatant” and “slanderous allegations”. He also argued that the bridge company had not shown enough regarding a “legally questionable request for an injunction” based on Cooper’s alleged “maliciousness” but other than a “run-of-the-mill claim”. Nothing that “complained of – the government action was in any way unfair.