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Implement open government reform recommendations

March 14, 2009
Cape Coral Daily Breeze

Want to check which subjects your child's teacher is qualified to teach?

Want to know if your kid's coach has been popped for DUI, domestic violence or a drug charge?

Interested in what a developer has planned for that big, vacant property across the street?

You have the right to easy access to those records, thanks to state statutes grouped within the "Government-in-the-Sunshine" laws.

These laws are intended to guarantee access to public records and meetings - everything from court and criminal records, to personnel and disciplinary records for public employees and regulated professionals, to e-mails and mail correspondence between public officials and those touting their particular issue or project.

You have the right to attend meetings of councils, commissions and boards vested with a public task, and you have the right to be notified via public notice when these meetings will be held.

Fact Box

Policy used by the Lee County Sheriff's Office

(From the Government-in-the-Sunshine manual for law enforcement agencies.)

1. What is the meaning of the term "extensive" as used in the statute?

Section 119.07(4)(d), F.S., does not contain a definition of the term "extensive." In 1991, a divided First District Court of Appeal upheld a hearing officer's order rejecting an inmate challenge to a Department of Corrections rule that defined "extensive" for purposes of the special service charge.352 The

agency rule defined "extensive" to mean that it would take more than 15 minutes to locate, review for confidential information, copy and refile the requested material. The court agreed with the hearing officer that the burden was on the challenger to show that the administrative rule was invalid under Ch. 120, F.S., and the record did not indicate that the officer's ruling was "clearly erroneous" in this case.

In light of the lack of clear direction in the statute as to the meaning of the term "extensive" and the possible limited application of the First District Court of Appeal case, it may be prudent for agencies to define "extensive" in a manner that is consistent with the purpose and intent of the Public Records Act and that does not constitute an unreasonable infringement upon

the public's statutory and constitutional right of access to public records.

2. What is meant by the term "information technology resources" as used in the statute?

"Information technology resources" is defined as data processing hardware and software and services, communications, supplies, personnel, facility resources, maintenance and training.353 The term does not include a videotape or a machine to view a videotape.354 The fact that the request involves the use of information technology resources is not sufficient to incur the imposition of the special service charge; rather, extensive use

f such resources is required.

3. What is meant by the term "clerical or supervisory assistance" as used in the statute?

a. May an agency charge for the cost to review records for exempt information?

An agency is not ordinarily authorized to charge for the cost to review records for statutorily exempt material. However, the special service charge may be imposed for this work if the volume of records and the number of potential exemptions make review and

redaction of the records a time-consuming task.

b. How should the labor cost be calculated?

In State v. Gudinas,358 the court approved an agency's charge for providing copies in response to a large public records request based on the clerk's base rate of pay, excluding benefits. The court also concluded that an agency could charge only a clerical

rate for the time spent making copies, even if due to staff shortages, a more highly paid person actually did the work.

The term "supervisory assistance" has not been widely

interpreted. In Gudinas, the circuit judge approved a rate of $35 per hour for an agency attorney's review of exempt material in a voluminous criminal case file. The court noted that "only an attorney or paralegal" could responsibly perform this type of review because of the "complexity of the records reviewed, the various public record exemptions and possible prohibitions, and the necessary discretionary decisions to be made with respect to potential exemptions . . .

4. May an agency require a reasonable deposit or advance payment or must the agency produce the records and then ask for payment?

Section 119.07(4), F.S., states that the custodian shall provide copies of public records "upon payment of the fee prescribed by law . . . ."

In Malone v. City of Satellite Beach,361 the court noted that a city's requirement of an advance deposit was contemplated by the Public Records Act and that the city "was authorized to require the payment of an advance deposit under the facts of this case before proceeding with the effort and cost of preparing the

voluminous copies requested by the plaintiff." And see Herskovitz v. Leon County,362 in which the court said that if an agency is asked for a large number of records, the fee should be communicated to the requestor before the work is undertaken. "If the agency gives the requesting party an estimate of the total charge, or the hourly rate to be applied, the party can then determine whether it appears reasonable under the circumstances."

Florida has some of the most proactive public records and meeting laws in the country, and they are intended to protect residents and taxpayers from shady behind-the-scenes machinations, to shine a light on the government for which we are all paying.

Still, there has been trouble in paradise, not so much with the laws, but with court rulings that have undermined the statutes' intent and with local interpretations and policies which have eroded that access by making it cumbersome for citizens to get records or by adding costs far and above what the law intended.

Thanks to Gov. Charlie Crist and his appointed committee, the Commission on Open Government Reform, your right to access the information that you, by law, are entitled to view may become a little easier.

When elected, Gov. Crist vowed to make government more transparent throughout the state. To that end, in June 2007, he tapped a nine-member committee of elected, judicial, legal and media officials to review and evaluate open meeting and public records laws and exemptions, and to make recommendations for quicker, easier public access.

After months of investigation and review, including hearings and testimony into areas of the law warranting close scrutiny, the committee issued its report and recommendations on Jan. 27.

The document is 185 pages long and includes not only recommendations for statutory clarification and change but outlines numerous examples of how Florida's very simple yet comprehensive public meeting and records statutes have gone astray on the local level.

Meanwhile, at that local level, government agencies - including some right here in Lee County - have continued to draft and impose policies for the public that fly in the face of these state efforts.

Among the Commission on Open Government Reform's findings, including one that hits home here in Lee?

Many government agencies throughout the state have managed to bypass legislatively mandated fee allowances for public records requests, "interpreting" Chapter 119 to charge exorbitant fees for "extensive use," a provision originally intended to address very large or detailed records requests. Extensive use is not defined by statute but was loosely defined in a split court decision involving a prisoner who made massive and repeat requests for records. The court defined "extensive" - in that case only - as 15 minutes.

The court ruling set a precedent that now has been adopted by agencies such as the Lee County School District, which charges for requests it deems take longer than an hour, and the Lee County Sheriff's Office, which charges after 15 minutes, for the retrieval and redaction of routine records that include personnel files and arrest reports.

Statewide, "extensive use" fees have varied widely and wildly, oftentimes serving as an effective hindrance to public record access, the commission found.

While the statute provides for allowable charges for public records - in most cases 15 cents per page - the fee assessed for the same records has varied from county to county by thousands of dollars, with some agencies charging nothing except the allowable copying fee to others charging for hours upon hours of staff time.

The cost of redaction- the removal of information that is not public- also is driving up the cost of routine record requests, the commission found, even though the Florida Attorney General has opined that generally an agency cannot charge for reviewing records for this exempt information.

Both the Lee County School District and the Lee County Sheriff's Offices have policies that allow for charges for redaction if the request made is considered voluminous. The school district has charged the fee for the personal files of a long-tenured employees while the sheriff's office has for multiple police reports requested at the same time.

The school district's new public records policy, adopted Jan. 6, not only allows for the assessment of staff time - including benefits - if a request takes longer than an hour to compile, but also allows delays of up to two weeks to produce documents of as few as 21 pages.

The Commission on Open Government Reform report states that as agencies rely more on computers and technology to store and manage public records "public access should be getting easier." Instead, it's taking longer and getting more expensive, creating "a considerable barrier to the public's right to access," the commission found.

That's a shame.

Public records are exactly that - records that belong to the public. Parents have every right to check out the background of the person teaching or coaching their child. Taxpayers can and should peruse records pertaining to public expenditures. Watchdogs absolutely can view mail or e-mail exchanges that disclose the deal-making meat contained in the sausage packaged for public consumption.

Delays discourage that perusal.

And exorbitant charges provide an effective barrier to open government.

We agree that the legislature, not the courts, needs to define the intent of the Florida Sunshine Laws that pertain to records.

The Commission on Open Government Reform has made numerous recommendations. Among those we endorse:

- That the Legislature amend the statutes to a) delete the extensive use provision; b) stipulate that copies of public records in any medium maintained or utilized by an agency must be provided for the actual cost of duplication; c) allow agencies to negotiate a fee for a "specialized electronic service or product" with a definition of the term included and d) stipulate that redaction of exemption information is not a "specialized service or product."

- That all agencies create systems or establish processes to enhance public access to all public record e-mails

- That the Legislature amend the law to allow citizens to seek an informal opinion from the Office of Open Government when denied access to public records or open meetings.

- That the Legislature amend open government penalty provisions to allow for additional fees to be assessed against an agency if a court determines that the agency 1) violated either the sunshine or public records law 2) showed intentional disregard for the public's constitutional right of access... or 3) the court finds a pattern of abuse of access requirements by the agency...

With Sunshine Sunday - the day newspapers across the state highlight public meeting and public records issues - set for March 15, we commend the nine-member commission for its efforts. We also thank the numerous citizens and media representatives who took the time to provide input on issues that puts government where it squarely belongs - in the hands of the people.

It's now up to the state Legislature to enact real reform to assure the open government the state constitution and state laws guarantee.

We urge our elected officials to do so.

We also urge the Lee County School Board, the Lee County's Sheriff's Office and other local government agencies including the city of Cape Coral to study the reform commission's recommendations and implement those applicable locally.

The public should not have to wait for records, or be dissuaded by the imposition of extra fees, while the process perks.

- Breeze editorial



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