FL FAF: Barrier to the right of access not authorized by law

275-Barbara-PetersenOn March 23, 2016, when Historic City News Editor Michael Gold was told by the City of St. Augustine that he would have to come to City Hall to obtain copies of interview forms completed by City Manager John Regan, no amount of reasoning could persuade the city to simply e-mail the five handwritten pages.

Human Resources Manager Donna Hayes had no hesitation in preparing scanned copies of the requested forms on paper, but she drew the line at replying to our e-mail request for the information with the pages attached.

“Your email and records request was sent to me,” Hayes responded to our request. “I have Applicant Interview Forms which John completed on each candidate interviewed. The form basically summarizes each candidates’ interview.”

We made our request by e-mail to City Manager John Regan with a copy to his Administrative Assistant, Lucy Fountain. The city manager’s office forwarded our request to Human Resources for a response, also by e-mail. But, when we asked for the reply be made by e-mail, we were refused — and we were shocked by the reason given.

In a reply from Human Resources, Hayes informed us, “It would be a total of 5 pages and can be provided to you at no charge and should be available for you to pick up tomorrow.”

We replied, asking again for the documents to be e-mailed. Hayes replied; reasoning, “The interview forms are not in an electronic format, so you would need to pick up the copies.”

Historic City News receives scanned documents from the City of St Augustine nearly daily — both by request and automatically without specific request. All departments have at least one station capable of scanning a document; either for printing, editing, for delivery by fax, or by e-mail attachment.

When we pressed the request, expressing a hardship in physically making an appearance at the Human Resources Department to pick up the five pieces of paper, Hayes responded, with the following options:

“You can pick them up from Human Resources or I can bring them up to the City Manager’s office and leave them with Lucy.”

The city offices were closed for Easter holidays, so we did not have access to the records until the following Monday. Gold went to Human Resources, confronted Hayes, and asked if the documents could be scanned to paper without charge, why they couldn’t be scanned and attached to the e-mail.

We were told that although it might not make common sense, Hayes, Fountain, and all the other city departments, would have been prohibited from scanning the documents because “it would violate personnel policies and procedures”.

Armed with that explanation, Gold went directly to Lucy Fountain’s office and asked about the public records policy contained in the City Personnel Manual. Section 4.11 outlines production of public records, five pages of policy which was provided to us, again, by paper copy.

The Public Records policies were issued NINE-YEARS AGO on January 1, 2007. They have been revised one time SIX-YEARS AGO on September 1, 2010. Moreover, there is absolutely nothing in Section 4.11 that prohibits employees of the City of St Augustine from responding to a request for a public record by scanning and attaching the image to an e-mail. Nothing.

So, why would the City want to inconvenience the citizens who have a request for public information? Assistant City Manager Tim Burchfield told Gold after a prior request for a copy of a receipt, that “city employees are not obliged to answer questions regarding information or policy”. What? That obstructionist response actually is in the policy, but what kind of administration would put it there?

Also in the policy is a remark that city employees are relying upon as “policy” that prohibits them from scanning an existing document if a scanned copy does not already exist. The sentence at issue reads, “City employees are not obliged to create records that do not exist.”

Our attorney who has represented Florida government agencies for decades, confirmed that a copy is a facsimile of the record, in this context, and is not “a new record”. A photocopy, fax, or scanned image, are all facsimiles of the official record, which already exists, and any reproduction of that existing record, in any form, does not constitute creating a new record.

Someone has given some poor legal advice, either in review or writing of any such policy in view of the provisions of §119.07(1) F. S. and s. 24(a), Article I of the State Constitution, requiring agencies to make public information fully available upon request.

We went further and contacted an expert on Florida’s open record laws, Barbara A. Petersen, President of the Florida First Amendment Foundation. Petersen is also a practicing Florida attorney. We provided her with a copy of our request, the five responsive documents, and the five pages from the Personnel Manual.

In pertinent part, Petersen’s response was expected:

I see nothing in the policy that would prohibit city employees from scanning documents and emailing them to you, Michael, and there’s nothing in the public records law that specifically speaks to the issue either way.”

Petersen also offers a warning to Florida agencies who provide artificial obstruction to public records access.

“There is, however, a significant body of case law that says an agency can’t impose barriers to the public’s right of access, and I think you could argue that requiring a requestor to pick up copies of the requested records in person can be a barrier to the right of access not authorized by law, particularly when the agency has the capability of scanning and emailing the requested documents.”

We will continue to pursue the open access to public records that are guaranteed by the Florida Constitution and Florida Statutes. We also will aggressively prosecute any agency, or agency employee, found to be of the opinion that, due to ignorance or arrogance, they are somehow exempt from compliance.

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