FSNE Note

A series of regular updates that appear in upcoming Bulletins about Florida Society of Newspaper Editor activities.

Dec. 3, 2007

Great multimedia workshop turnout and Orlando testimony

FSNE testified strongly to Governor’s Commission on Open Government in Orlando last week and had stupendous turnout for its second multimedia skills workshop Saturday, this one at the University of Miami School of Communication. FPA and SNPA were co-sponsors.

We drew 130 participants on a Miami-perfect day. The feedback was deservedly strong for our ace faculty. Special thanks to Rick Hirsch of The Miami Herald for his Herculean organizing efforts. Our next step is to establish the feasibility of a Panhandle workshop in February. Panama City is a probable site. I will contact Panhandle editors to learn their level of interest and multimedia needs.

Representing editors before the open government commission were Bob Shaw of Orlando, Cory Lancaster of Daytona Beach, Matt Reed of Melbourne and me. Our testimony follows.

ACCESS (Shaw)

Access to public records is a continuing problem for Florida citizens.

Consider the situation in Jacksonville. Journalists at the Times-Union and Beaches Leader newspaper routinely do battle with the Jacksonville Sheriff’s Office because the department limits access to incident reports. Members of the general public and press are prohibited from looking through daily reports and must request specific reports by exact address or report number, and then must pay $3 per report even if all that is desired is merely a review and not a copy of the document.

Reporters who want to look at the reports, which are public information, are required to first secure media credentials from the sheriff’s office, which is tantamount to licensing. Even with that license, reports must be inspected daily, which is a strict time limitation on availability of public records for public review. Weekly or monthly reviews are prohibited.

Information on all incidents, their location, date and time should be available for general public review, whether the interested person is a reporter or not. Currently, the restrictions on sheriff’s office information make it nearly impossible for any interested citizen to check in on what deputies have been doing in the community.

The licensure requirement, the time limitations, the fees and the lack of availability constitute an openness horror story, in our view.

Most recently The Times-Union asked for an executive summary of an audit being done on the sheriff’s department. It took weeks to pry the document loose from the department. The paper now had a request for documents spelling out the time the JSO has spent in high crime areas and the amount of OT that is being spent. The paper is being told that information is protected because the data is part of an ongoing investigation.

On another issue, access to e-mail is a very mixed bag, according to our member editors.. The cities of Orlando and Daytona Beach have terminals that allow reporters to sort through mayor/commission e-mails and (in Daytona’s case) request copies of e-mails the reporter wants to see. But in Deltona, a reporter was told it would cost more than $200 a month to pull e-mails from a server, view and verify them, because the system the city has does not allow for access by the public. The same is true for Volusia County’s system.

A solution we would suggest: every government should have an e-mail system that is accessible to the public and should provide public access terminals that, at a minimum, list e-mails by author, recipient and subject header.

In Bartow, the city commission allows public testimony on proposed ordinances only on second reading, when a formal public hearing is held. While this presumably relates to the “quasi-judicial” nature of the commission’s work, it’s a huge frustration for interested citizens, who are unable to comment until an ordinance has already been drafted.

Newspapers have also run afoul of the exemption that says pictures of law-enforcement officers can be defined as “confidential.” (In other words, if a cop is being honored, the P.D. will give you a picture. If he or she is being arrested, you can’t have one.) We’ve had two recent examples: When Frank Figueroa, head of the federal Immigration and Customs Enforcement office in Central and North Florida was arrested on charges of exposing himself to a 16-year-old girl at a mall, the Orange County jail refused to release his mug after Figueroa invoked his “privilege.” In October, 2005, Orange County Deputy Paul Terry murdered his two children and committed suicide over a custody dispute. The Sentinel had no first-day picture, because the sheriff’s office refused to provide one.

Consider the Jacksonville situation on pictures, The Jacksonville Sheriff’s Office has installed video cameras that record areas of the jail. The corrections officers believe their images should be redacted - pixilated. The city attorney’s office has told the JSO that the exemption is not applicable, but the issue has not been resolved. The police union (at this writing) is still contesting this point and is suing in Circuit Court.

FEES ( Thelen)

Fees charged for access to public documents is a continuing and vexing problem. Let me cite some examples of what citizens and journalists face every day.

Public records law is not clear on whether employee benefits can be factored into the fees imposed for public records that involve extensive use of employee time. The city of Hollywood charges an additional 45 percent to cover benefits.

The Florida Department of Law Enforcement charges a $23 fee for a criminal history search. Can this be justified? There are instances where it seems unreasonable such as in high-profile cases where numerous media organizations request the same search. In South Florida, if the Sun-Sentinel, Miami Herald and Palm Beach Post run similar checks, the FDLE triple bills. Further, should someone want to request the database on a year’s worth of arrests, considering there are 1 million per year, the cost would be $23 million.

In our world, there is a feeling that government is getting around compliance with the law by quoting excessive costs for complying with the law because of the time it would take to research and redact. It is increasingly common to receive bills of several hundred dollars for records. It also is common to find that once the fee is challenged it can be determined that there are easier and faster ways to compile the records. The method for charging fees and what governments can and should do to reduce the costs should be evaluated.

Florida Statute 28.24 allows the Clerk of Courts to charge $1 per page for copies. This can be burdensome, particularly for smaller papers. In the 1990s, the Sun-Sentinel and Palm Beach Post made an unsuccessful attempt to challenge the statute. FSNE suggests the legislature reevaluate the fee schedule that is part of this statute?

Terry Eberle of Florida Today recounts how high fees are a barrier to public interest reporting. “The state wanted to charge us $3,000 for some statewide school records we wanted, but we decided we could get by without them. The problem, as I recall, is that Jeb Bush started contracting with private enterprise to keep a lot of records, now whenever they go get them, they have to pay a fee, which they pass on to us. We also were charged a large amount -- in the thousands -- by the local school board for some local records. They finally dropped the charges after I made a call to the superintendent.”

“Access” and redaction costs can be substantial. In Wakulla County, a county commissioner is requiring that a citizen pay $120 for copies of his last 100 e-mails; the commissioner says it will take at least four hours for him to review them, and he bills at $30 per hour. In Volusia County, the school district did a trial run of accessing and redacting 100 of the superintendent’s e-mails, and concluded that it required four hours of staff time at a cost of $63.36. Spread over the superintendent’s average of 11,500 e-mails a year, this would work out to an annual cost of $7,500. And that doesn’t include e-mails to and from school board members.

A solution FSNE suggests: Require that if a record contains some exempt information but is otherwise public, an agency must redact it at no cost to the requestor. It’s not the public’s “fault” that an agency mixes exempt with public information, and the public shouldn’t have to pay for access. These are, after all, “public” records.

SECRECY (Lancaster)

Despite the state’s commitment to government in the sunshine, newspaper editors and reporters continue to find instances of government officials conducting business in secret.

Of great concern is the prevalence of public officials using private email accounts, such as AOL and Yahoo, to conduct official business.

Elected officials in Broward County sometimes do not have “official” government email accounts and use personal accounts to deal with government business. In some cases, the officials self-select mail to forward to city hall, etc. that they “deem” as covered by the public records law. This creates two problems that should be examined. First, there is email on government business that is not being properly retained by the appropriate government entity and made available for public inspection. Second, citizens who write to public officials on a private account maintain that they have no notice that this is a matter of public record and, therefore, are subjected to invasion of privacy.

State v. Clearwater and Times Publishing v. Clearwater, 862 So. 2d 149, should be evaluated to determine if legislative action can correct the limitations it creates. It exempts from inspection email deemed personal, therefore limiting the ability of the media and others to determine if government officials and employees are using computer workstations for illegal or unethical purposes.

In Deltona, the mayor was criticized when a local resident put in a public records request for his email and was told none was available before Feb. 21, 2006. Mayor Dennis Mulder said his AOL account didn’t retain emails longer than that. (Mayor Mulder took office in November 2005.) Afterward, Mulder said he began copying official emails to his administrative assistant in city hall, so the record would be retained on the city’s server. As an aside, when the same local resident received copies of the emails that were available, the resident complained that some had “re:” in the subject and referenced earlier emails, but the original emails were not attached.

Secrecy continues to be an issue with state legislators.

According to the Tallahassee bureau chief for The Orlando Sentinel, probably the best recent examples involve the behind-the-scenes property tax negotiations in the last regular session and heading into the special session in June. The Sentinel published a story June 5 headlined “Secret talks precede session” that looked at how rank-and-file legislators – and the public -- were cut out of negotiations over the biggest property-tax overhaul in state history.

“We don’t want to put things out there that we ultimately have to either retreat from or were wrong about,” state House Speaker Marco Rubio, R-West Miami, said at the time.

According to a June story in The Florida Times-Union, “The Legislature’s overall plan, and the negotiations that stitched it up, were largely drafted behind closed doors. Republican leaders didn’t reveal specifics until four days before the start of the session, and Thursday’s change in the homestead exemption amendment was voted on just 10 hours after it was conceived.”

Such secrecy has a way of hitting its perpetrators in ways they don’t anticipate. The property tax amendment that was negotiated in secret and rolled out two days before a vote required most local governments to roll back their millage by 3, 6 or 9 percent, based on increases in previous year’s millage or property valuation. But because of what was called a drafting error, the draft omitted Miami from its list of cities under mandatory 9-percent rollbacks. Several lawmakers pointed out that had the amendment been written in committee, and had more time been allowed for review before a vote, the error would have been caught. In other words, writing legislation in public can save legislators from themselves, by minimizing the risk of mistakes.

In another instance, the Orlando Sentinel wrote in a March 15 story, “The day before Gov. Charlie Crist signed a proclamation recognizing “Sunshine Week” and open government in Florida, dozens of Republican house members met in private to discuss stem-cell research, one of the most contentious issues facing the Legislature this year.”

According to the Tallahassee bureau chief of the Sentinel, the meeting took place at FSU’s University Club and was organized by the RPOF. A Utah professor critical of embryonic research put on a presentation. Reporters were told no specific legislation was discussed.

But it’s also true that this is happening perpetually. For example, consider the recent announcement that the special session will be delayed because leaders have been unable to agree. How else do they know this, unless they have been privately meeting? That would be a good, recent example I would suggest using.

“While there has been tremendous progress, there is still work to be done.”

That’s from Rubio and Pruitt’s joint letter/statement on Sept. 5...

Secrecy is an ongoing problem with local governments. Consider the Jacksonville city council. The Times-Union did a careful and thorough examination of the council members’ calendars and found widespread abuse of the Sunshine Law. There were secret meetings. There were no postings. There were no minutes taken. The T-U reporter and editorial page’s reports triggered the council’s passing the Sunshine Law Compliance Act, which fundamentally reaffirms the council’s obligations to abide by the law. The paper’s subsequent stories and editorials prompted a grand jury investigation of the council. The investigation is ongoing.

Also of concern to newspapers is the practice of governments creating private,not-for-profit corporations to hold meetings in secret.

The editor of two small newspapers in Madison County -- The Madison County Carrier and the Madison Enterprise-Recorder -- wrote:

My concern is with our hospital board, which is appointed by the Governor. The board is a public board, but they also have a non-public board, under the guise of a private, not-for-profit corporation. They hold meetings in the Sunshine with their “public” board and out of the Sunshine with their “private” board. They have also formed separate committees who meet out of the Sunshine from the public board. Currently, our newspaper is being sued for libel because of stories and editorials that addressed this issue. “The issue of the public and private boards being the same and the private committees being formed from these boards are some issues that I would like to see covered at the upcoming meeting,” wrote editor Jacob Bembry.

Matt Reed, assistant managing editor–public service, FLORIDA TODAY.

Open Government

Impact of costs

Too many cities, school districts, universities and state agencies are creating their own de facto public-record laws that control which information will be accessible to the public and which will be privileged. They do that by crafting their own widely divergent – often exorbitant — costs for gathering, reviewing and copying records. It happens even in situations where computers do most of the work for free. In some cases, separate offices within the same institution charge different prices for the same record, raising doubt about which cost is fair. Too often, the price of records and data prevents the sharing of vital watchdog information.

Here’s the rub, as I see it. Although government is required to save records it produces on behalf of taxpayers, it apparently does not have to be organized enough to provide that information in a timely, affordable manner to its constituents. If city hall or the school board isn’t organized, citizens must pay dearly to set up temporary staffs of clerks and $50-an-hour programmers to process their own requests.

This past summer, FLORIDA TODAY’s Melbourne city hall writer, Rick Neale, asked to review the city manager’s e-mails for 2007. A handful of other cities in Brevard County anticipate such requests and have had no difficulty complying. Neale wanted to learn how (or whether) Melbourne’s manager had coordinated a PR campaign with Brevard’s local governments in opposition to legislative tax reforms. We were told the copies of stored e-mails would cost more than $1,000 because “the city manager’s secretaries would have to personally go through each and every one of his e-mails to see which ones were exempt from the Sunshine Laws. The city IT department does not sort his e-mail.” Now, how many Melbourne retirees, mechanics or school teachers can afford to spend more than a week’s pay for information they presumably have a right to know? Even we couldn’t afford it and dropped the request.

Big sophisticated agencies do it, too.

Last year, my team printed a special report on university professors’ influence on public policy as diverse as beach restoration, school impact fees, gun-control laws, billboards, and the health of U.S. space programs. Our report relied on simple documents that all state university faculty must submit in order to disclose outside work and conflicts of interest. It’s the same form at every campus. And all completed forms must be kept in HR files, according to state policy. Yet, obtaining records from three universities took two years and dozens of revised requests due to posturing over costs. Florida State University seemed happy to comply and provided a box full of all professors’ records within six weeks at a cost of about $375. The University of Central Florida was immediately concerned about the size of the request and wanted to charge more than $6,000. But dropped the price when we narrowed our request to half of UCF’s schools and colleges. Remarkably, each UCF department – whether it was Business, Education or Health and Public Policy – had its own price for the same record ranging from 25 cents per page to nearly $2 per page, with some charging for staff time, others not. After weeks of negotiations by attorneys, UCF provided that public information for about $3,700 – fewer documents at nearly ten times FSU’s cost. Finally, the University of Florida – whose HR department said by phone that the request was too hard — failed for two years to even respond to follow-up written requests under F.S. 119. So we refiled with the deans of individual departments and obtained about half the records we sought for about the cost of postage.

Consider that my team that specializes in working with documents and data. Imagine an ordinary taxpayer or low-budget blogger trying to navigate each university’s mood and expenses.

In June, one of our education reporters, Kate Brennan, requested data from the Florida Department of Management Services, seeking four facts about a controversial program that allows retired teachers to return to campuses and collect huge paychecks by collecting double retirement. She asked for:

• How many people employed at each of the state’s 900 participating agencies were enrolled the “deferred retirement option program” or DROP.
• How many people employed at each of the 14 participating agencies in Brevard were enrolled.
• The number of DROP participants scheduled to quit it by June 30, 2007 throughout the state.
• The number of local participants working for another public agency in Brevard County after quitting the program.

The original cost estimate: $2,500. At the communications director’s suggestion, she narrowed her request to Brevard County only. The cost estimate went up by $500 to $3,047.68. Management Services planned to charge between $25.82 and $78.92 per hour for the request. We dropped it because of the high cost.

A capitol reporter once quipped to me that Florida is the most “over-documented, under-curious” state in America. In other words, our governments demand vast amounts of paperwork and data from us that they are not prepared to ever analyze, let alone share with the public. In addition to keeping public information, Florida governments should be required to anticipate requests and be prepared to share it quickly and cheaply.