Saturday, November 22, 2008

Florida has one of the most open governments in the nation and a governor who emphasizes transparency, yet almost half the state's public agencies failed a recent media audit of how they are complying with open records law.

The Florida Society of Newspaper Editors (FSNE) on Friday released the results of its annual audit, showing that 43 percent of the agencies tested failed to properly turn over the public records that were requested.

Fewer than one in three auditors received the record they requested, either because the agency said it didn't exist, placed illegal demands on the auditors, or dragged its feet in producing the record.

FSNE and the Florida First Amendment Foundation this year asked volunteers -- typically journalists, journalism students or community members, all posing as ordinary citizens -- to request the last e-mail a top administrator wrote about the budget, which it considered a simple request. Requests were made at 163 county agencies in 56 of the state's 67 counties.

"Auditors ... were greeted with confusion and sometimes suspicion. Public employees who interact with the public, and in some cases their supervisors, time and again did not know how to retrieve e-mails regarding their agency's budget," said Chris Davis, a Sarasota Herald-Tribune editor who compiled the data. "Many audit volunteers were bounced around from office to office, told they would have to wait days or weeks to get the records or told the only employee who could retrieve the records was not there that day."

Among the agencies' mistakes: 18 percent required a written request, 17 percent required auditors to give their name, and 4 percent required a reason why the auditors wanted the record.

Even more egregious, a Hillsborough County Sheriff's Office records supervisor said it would cost $75 to $150 to produce an e-mail from the sheriff to the County Commission, and a Jefferson County schools official ran an auditor's license plate number as she was leaving the parking lot, to discover who she was.

Although Monroe County agencies passed the test under FSNE's criteria, one official initially erred by asking the auditor for information that is not required by law, but ultimately did not require that information to produce the requested record. Other mistakes FSNE forgave were not producing the correct document and not having it readily available.

One FSNE auditor asked an executive assistant for County Administrator Roman Gastesi's last e-mail about the budget. The official initially asked for the auditor's name and a written request, although state law does not require identification and states a verbal request is all that's necessary. The assistant made a phone call, then printed an e-mail -- it wasn't about the budget -- and charged 15 cents for the copy, requiring the auditor to provide his name for the receipt.

Another FSNE auditor asked an assistant for Sheriff Rick Roth's last e-mail. The assistant said she would need to speak with Roth, and he wasn't there, so asked the auditor to come back.

Other open-records requests The Citizen made prior to the FSNE audit have not always been met with that much ease.

The Sunshine Law essentially says governments are the custodians of records that belong to the public and, with some exemptions, should be readily available for inspection upon request and for free. The law allows agencies to charge 15 cents per page for copies.

Conflicts often arise, however, when an agency says a request will require "extensive" time to produce. The law does not define extensive, but allows governments to charge an hourly fee based on the salary of the person producing them.

The Sheriff's Office will not release all of its incident reports on a daily basis without charging an estimated $50 a day, with a lag time of several days, according to Public Information Officer Becky Herrin. Herrin, who makes $92,000 annually, said she would charge 15 cents a page to copy -- though The Citizen prefers free, electronic copies -- and $15 per hour to redact information that's exempt under the Sunshine Law for the 30 to 40 incident reports the Sheriff's Office generates in a 24-hour period.

The Monroe County School District will not release e-mails to and from its five School Board members on a weekly basis without charging an estimated $38 a week, according to Director of Instructional Technology Ken St. James. St. James said he would charge $25 an hour for either him or Hardware Analyst Joy Nulisch to conduct the computer search, collect the e-mails and download them onto a CD. He emphasized that the fee is less than it would be if based on his or Nulisch's annual salary, which is $95,536 and $79,668, respectively.

St. James initially said it would cost another $125 an hour for the school district's attorney to review the e-mails to omit those that contained exempt information. After some negotiating, he said board members could omit them instead, thereby eliminating that charge. School communications, more than city and county governments, have a greater potential for confidential information about students, such as their grades, discipline, medical information, etc.

Monroe County has agreed to release the county administrator's e-mails on a weekly basis free of charge, but still is trying to determine how to provide the mayor's, who wants to remove personal e-mails first, which is legal. Attorney Bob Shillinger has been cooperative about finding ways to produce the documents for free, including proactive measures to keep exempted information out of the mix by asking the Human Resources Department not to e-mail confidential matters.

The city of Key West has been the most accommodating. The Police Department releases all of its 15 to 30 incident reports daily, and the city provides e-mails to and from the city manager and seven city commissioners on a weekly basis -- all free of charge.

Still, Monroe County officials are behind some Florida governments that are on the cutting edge of providing public records.

The Sarasota County Commission and Jacksonville City Council, for example, give the public access to their Outlook e-mail systems, where anyone can see real-time e-mails to the top administrator and commissioners. The Sarasota County attorney's office said there is no legal review and no e-mails are deleted before they are made public.

Alachua County posts its commissioners' e-mails on its government Web site as soon as they receive them. Regular mail is put in a folder daily and readily available for inspection immediately upon request. It only charges to make copies of large, special orders.

"Unfortunately, it seems that every agency around the state has a different policy on providing public access to e-mails, and some seem more reasonable than others," said Adria Harper, director of the First Amendment Foundation. "For example, many local agencies just forward the e-mails along at no cost to the requestor. Others make the e-mails available at a public terminal. Then there is my favorite -- those agencies that insist on printing the e-mail so they can charge a copying fee."

The Sunshine Law makes it illegal for public agencies to impose any rule that would hamper or frustrate, directly or indirectly, a person's right to inspect or copy a document.

"While in some cases an extensive-use fee may be justified under the law, there shouldn't be an automatic application of fees in every instance," Harper said. "For example, the agency may be able to amend its policy so all public e-mails are automatically stored and saved and/or forwarded to a central clerk or records custodian or stored on a public computer as to avoid requestors having to pay additional fees for each commissioner to search their records and provide their e-mails for each request."

Some agencies even have software that automatically redacts information from forms with preset fields, such as suspects' names from crime reports.

The First Amendment Foundation recommends agencies define "extensive" and develop a policy that addresses such fees, including a justification for their application.

"It's unfortunate and frustrating," Harper said, "when an agency doesn't contemplate or refuses to contemplate a more efficient, cost-effective way to provide access to electronic records."

csmith@keysnews.com