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‘A travesty’

October 8, 2011
Cape Coral Daily Breeze

Just days after the administration stirred up a controversy by changing a long-standing candidate forum format based on "complaints" that have not been substantiated by either the names of those complaining or written documentation, City Manager Gary King has unilaterally changed the city's public records policy.

Effective Oct. 1, the city of Cape Coral re-keyed an administrative directive that determines when it imposes additional charges for records deemed "extensive."

Mr. King has moved the needle from the one-hour mark to 15 minutes. The city will now charge for staff time needed to retrieve and redact records just past a quarter-hour.

The reason? It seems the pesky public has been making too many requests for too many documents that, by law, are open for their inspection.

Oh, and "other agencies" use the scant 15-minute demarcation.

Pshaw and pshaw.

One, "the other guys are doing it" argument should never be proffered past grammar school to justify anything.

Two, Mr. King acknowledged via email Thursday that no overtime study, cost analysis report, or even a single written complaint to his office was available to document a problem so grave that it needed to be corrected by reclassifying current routine requests into "extensive." The problem is this layers staff time - already paid for by Cape taxpayers by the way- onto state-allowed copying fees much more quickly.

Barbara Peterson of the First Amendment Foundation called the decision, made with no public input, no council consideration, and no supporting documentation whatsoever "a travesty."

Unfortunately, it's something even uglier.

It's the knee-jerk reaction de jour aimed at quashing public involvement in our city government, in this case by raising the cost substantially on all but the most basic of public records requests.

Without one jot of justification.

Without a single discussion involving the public or those directly accountable to the public.

That's just wrong.

Let us be clear here concerning the money argument: Public record access is not a revenue stream. Access is a mandate long entrenched in state law and a guaranteed public right.

The little "excess use" loophole forged not by the legislature, not by state statute, but via a court ruling has been so grossly abused it has let bureaucrats like Mr. King arbitrarily define the term and so sorely compromise records access to the general public.

Think we're overstating?

Right here in Lee County, parents have been told that routine requests for teacher or administrative personnel files would cost hundreds of dollars due to the staff time needed to review the documents prior to release.

Across the state, activists have complained about five-figure estimates for emails and other documents related to development projects funded with public money.

Even public officials are not exempt from burgeoning records roadblocks built with bricks of money and lots of stonewalling.

To his chagrin, state Sen. Mike Fasano was told to cough up more than $10,000 if he wanted access to public records retained by the state agency that manages $145 billion in Florida pension and other public funds.

Even more troubling here is that this is not even a new issue. Nonetheless, the city administration's decision flies in the face of every recommendation made by Sunshine Law and First Amendment advocates.

The Commission on Open Government Reform, in fact, in 2009 identified the varying interpretations of the state undefined extensive use charge as an area of particular concern. The governor-appointed commission recommended the term be deleted from state statutes governing permissible fees, or that the time it takes to review and redact non-public information be excluded since it's a legal requirement for agencies responding to public records requests.

A couple of things.

On the local level, Cape Coral City Council needs to take control of this issue. It's a policy matter and council is the policy-making body, not the city manager's office.

Mr. King should be told this basic truth.

He also should be told posthaste that the old policy stands unless and until council decides - based on a presentation of facts and citizen input - that a change should even be considered.

On the state level, it's also time for the legislature to take control. The courts, like Mr. King, do not set policy or make law.

We suggest Rep. Gary Aubuchon and Sen. Garrett Richter begin work now to sponsor overdue legislation to implement the reform commission's recommendations: To define what constitutes extensive use, or to delete that charge provision from Chapter 119. At minimum, legislation is needed to specifically exclude the area most abused, the adding on of extra charges to excise exempt information as it's a state-mandated requirement within the public records statutes.

Meanwhile, tacking on staff time because it takes a clerk more than 15 minutes to walk across a building, rummage for a file, read it and copy it is, yes, a travesty of open governance.

- Breeze editorial



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