Guest Column: Defend your right to your public records

FRANK DENTON

FRANK DENTON

Guest Column: Defend your right to your public records

Frank Denton, Editor
Florida Times-Union
Jacksonville, FL

Republished with permission

Imagine you’re a public official charged with maintaining vital public records and making them readily available to the public, that is, any citizen, whenever he or she wants.

But you’d really rather not. Having to dig them up is a lot of trouble, and besides, they might show that you are doing less than a stellar job or embarrass your co-workers or superiors.

I know! Let’s say we can’t find them or they’re not available.

No, the Jacksonville Sheriff’s Office tried that, and The Times-Union found out and reported to the public that the cops themselves were violating the law. So you can’t just lie.

Hey! Let’s simply delete them so they no longer exist!

No, that’s illegal, too, as Public Defender Matt Shirk’s chief of staff found out when he ordered the deletion of records showing that Shirk’s wife had an access badge that allowed her to confront female employees who had “a perceived unusual closeness” with Shirk. The attempted cover-up made the T-U front page and led to a grand jury suggesting that Shirk resign.

Well, thinks the recalcitrant public official, we could say the records are exempt from the law!

No, Gov. Rick Scott and his Department of Education tried that with the Value Added Measure teacher scores, and the Times-Union took them to court, which actually read the law and applied it. The public got to learn about the controversial VAM scores.

And they had to pay for it. State law says that, when a citizen has to sue to get access to public records – and wins – the court “shall” order the offending public agency to reimburse the citizen’s “reasonable attorney’s fees.”

We published a photo of the state’s $17,615.11 check made out to the T-U under this headline: “This is your money. Kiss it goodbye.” Get the irony? The public had to pay for a citizen’s lawsuit to liberate public records so the public could be informed.

Well, then, says the recalcitrant public official, still looking for a loophole, let’s just dig in our heels and not cough up the records – say we’re too busy, or there’s a backlog, or make something up.

No, you won’t get away with that. Former Mayor Alvin Brown tried it, and the Times-Union sued, forcing the Mayor’s Office to give up the records – and reimburse the T-U $15,000 in tax money for attorneys’ fees. Again the editorial headline: “This is your money. Kiss it goodbye.”

Wait a minute! The recalcitrant public official has an idea: If we didn’t have to have our names associated with such waste of tax dollars, the citizen would have to invest his or her own money in legal fees to get their records. We could make it as difficult as we want, since our lawyers’ fees are paid by our bottomless source of tax dollars. After all, that’s worked so far for the Jacksonville Police and Fire Pension Fund.

That’s it! Of course! Let’s just get the law changed to get rid of mandatory lawyers’ fees, then we won’t have such pressure to obey the letter of the law with those pesky public-records requests.

So it came to pass that, at the behest of the Florida League of Cities, Rep. Greg Steube, R-Sarasota, and Sen. Rene Garcia, R-Hialeah, introduced bills in their respective houses of the Legislature to change one word in the law: Instead of saying judges “shall” order the reimbursement of legal fees, it would say judges “may” order reimbursement.

The League of Cities issued a legislative issue brief saying that complying with public records requests has resulted in “extraordinary or unreasonable costs” for some cities: “The reasons for these extraordinary costs can vary, but include records requests clearly designed to be harassing in nature (either by the frequency of requests or the extent of any particular request); requests designed to generate a technical violation of the public records laws; and requests designed to do nothing more than serve as the basis of a lawsuit, typically with offers to the city to settle and pay attorney’s fees and costs.”

While there may be such schemes here and there, the vast majority of public records requests are legitimately from ordinary citizens or companies or from watchdogs like the Times-Union. Their requests are constrained naturally by the fact that public agencies are allowed to charge reasonable fees for the records – not just copying but also staff time for redaction of exempt information. Such fees can add up to hundreds or even thousands of dollars for one request.

And of course, the best way for public agencies to deter such schemes would be to train their employees on public records laws and require them simply to obey them.

As an example of real public-records abuse, consider the case of Susan Hewlings of Orange County, who requested public records about the county’s attempt to seize her dog Delila after a run-in with a neighbor’s dog.

The recalcitrant county dragged its feet and turned a simple records request into a four-year legal battle, finally resolved in 2014 by the 5th District Court of Appeal, which pointed out that Hewlings “asked for copies of the records and expressed a willingness to pay the costs. Instead of complying with this simple request, (Orange County) chose to interpose the additional bureaucratic hurdles of forcing her to come to its offices, comb through the records, mark the records in a certain manner, wait for a written estimate of costs, then, after paying the costs, wait again for the records to be mailed to her. This was a violation of the law.

“Because of (Orange County’s) actions in this case, which are also in direct contravention of the public policy favoring a simple and prompt resolution of public records requests, this litigation has now spanned four years and involved discovery depositions, other discovery, numerous motions hearings, trials, mediations, and two appeals. To say that (Orange County) has turned a molehill into a mountain is an understatement. This case provides a textbook example of why the legislature authorized an award of fees against obstinate public entities such as (Orange County).”

Taking away mandatory reimbursement of attorneys’ fees would disempower the average citizen, who can’t afford a lawyer to take on City Hall with all its money and legal staff.

Barbara Petersen, president of the Florida First Amendment Foundation, is suggesting to Garcia and Steube that, rather than discourage citizen access to their public records, the Legislature could create “an enforcement mechanism, a public office or officer responsible for overseeing compliance with our public records law.”

“If requesting intervention by this office were a mandatory step before filing a civil suit, you would shut down those misusing the law while assisting both public record requestors and the custodians of those records. Ultimately, this could be a cost effective way to enhance public access.”

You may not have a misbehaving dog like Delila or questions about your property taxes or the rezoning request for the proposed biker bar across the street from your house, but you have a very real interest in maintaining your – and your watchdogs’ – right to your public records.

You can share your opinion with Rep. Steube (204 House Office Building, 402 S. Monroe St., Tallahassee, FL 32399 orgreg.steube@myfloridahouse.gov) and Sen. Garcia (310 Senate Office Building, 404 S. Monroe St., Tallahassee, FL 32399 or garcia.rene@flsenate.gov).

Better yet, get in touch with your own legislators.

Democracy is not a guarantee; it is a process that requires continuous care, examination, intensification and defense.

Since 2005, Frank Denton has served as vice president for journalism of Morris Communications, as well as editor of The Florida Times-Union since 2008. He has been recognized for his leadership as an advocate for access to public records, and in 2014 he was honored with an award from the First Amendment Foundation of Florida, citing three well publicized victories for the rights of citizens protected by Florida’s Open Records laws. Denton is a native of Lubbock, Texas. He earned a Bachelor of Arts degree from University of Texas at Austin; Master of Science from Columbia University; and both an MBA and PhD from University of Wisconsin-Madison.

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