Reforming Florida’s open government laws

Florida’s open government laws are some of the oldest and, arguably, the best in the nation:  Our  public records law, first enacted in 1909, applies to any record intended to “perpetuate, communicate, or formalize knowledge” having to do with public business, regardless of form, characteristics or means of transmission.  The current open meetings law was enacted in 1967 and provides a right of access to any discussion of public business between two or more members of the same collegial body – a commission, a council, a board, or a committee.

The right of access to government records and meetings is enshrined in the state constitution as well.  Article I, section 24 of the Florida Constitution, overwhelmingly approved by voters in the 1992 general election, guarantees the right of access to the records of all three branches of state government and to the meetings of state agencies and local governments.

Never in this long rich history, however, has there been a thorough review of the state’s open government laws, particularly a review aimed towards reform.  The laws have been amended over the years, sometimes in patchwork fashion, and scores of new exceptions to the right of access are created every legislative session.  As a result, Florida’s open government laws are rife with inconsistencies and redundancies.  In addition, there are many who persuasively argue that Florida’s august public records and open meetings laws have not kept pace with rapid advances in technology and the increasing use of personal computers and handheld communication devices.  The result has been an erosion in the public’s constitutional right of access to the records and meetings of its government. 

And then on June 19, 2007, Governor Charlie Crist issued Executive Order 07-107 and created the Commission on Open Government Reform for the purpose of reviewing, evaluating, and issuing recommendations regarding Florida’s public records and open meetings laws.  In noting that “an open and accessible government is the key to establishing and maintaining the people’s trust and confidence in their government,” the Governor made it clear that the Commission would not be limited to consideration of the specific issues addressed in his executive order, but could address any concern brought before it.  “To put limitations on [the Commission] would be counterproductive,” he said.  “Whatever they hear from the people is important.”

Over the next year and a half, the Commission held a series of public hearings across Florida, taking testimony from scores of people including government agency representatives, private citizens, members of Florida’s media, and attorneys representing a wide variety of interests.  Some of the hearings were emotionally charged, like the first held in Tallahassee where a large number of residents from a neighboring county came to vent frustrations with their county commissioners.  Public testimony at the hearing in Kissimmee was largely focused on citizen complaints about a large transportation development deal put together by former governor Jeb Bush that had been shrouded in secrecy.

Ultimately, the Commission heard testimony on a wide variety of issues including the need for a thorough review of open government exemptions, and the creation of new exemptions and elimination of some now on the books; the cost of accessing public records; the effect of the increasing use of handheld communications devices on Florida’s open meetings law; the right of access to records stored in electronic recordkeeping systems; the importance of financial transparency in government; the need for coordinated and effective enforcement mechanisms; and access to legislative records and meetings.  There were, of course, many other issues and concerns brought before the Commission and a number of suggestions made for changes to both law and policy.

The Commission’s final report was issued in January 2009 and contained 42 separate recommendations.  Many of the recommendations require legislative action, but a number of others are policy recommendations that can be instituted by state agencies and local governments without legislative or gubernatorial input.  

A few reflect action already taken by Governor Crist or recommend codification of the Governor’s policies.  For example, shortly after the Tallahassee hearing where citizens complained of poor treatment by county officials, the Governor issued an executive order requiring state agencies to adopt an Open Government Bill of Rights “to guarantee that the right of access to public meetings and records is safeguarded and protected.”  The Commission recommended codification of the Bill of Rights as a preamble to a consolidated open government law, one that combines both the public records and open meetings requirements currently in law.

Also recommended was codification of the Office of Open Government, created, again, by executive order on the Governor’s first day in office, and an expansion of its powers and duties, and a recommendation that the Legislature adopt as law the Governor’s policy expanding access to clemency records.

The Commission also tackled the problem of the effect of advances in information technology on the public records law, recommending that the Legislature adopt legal standards for new and redesigned computer systems that will work to improve public access to the public records stored in agency databases and computers, and that agencies create systems or establish policies to provide enhanced access to all public record e-mails sent or received by government officials.  In response to the concern that private computers are being used to avoid disclosure requirements, the Commission noted that current law requires disclosure of public records maintained on personal computers or transmitted through the use of personal internet accounts and recommended adoption of policies and procedures to ensure that such records are disclosed and retained according to law. 

The Commission’s work was both a historic and Herculean effort on the part of its nine members.  Now the task of reforming Florida’s famed open government laws is in the hands of the Legislature and our elected representatives at all levels of government.  So let’s remind them of this:  The importance of open government – the inherent right of the people to oversee their government and hold it accountable for its actions – cannot be overstated.  As Judge Damon Keith, senior judge for the 6th Circuit U.S. Court of Appeals, aptly said, “Democracies die behind closed doors.”  

The Governor, in creating the Commission on Open Government Reform, clearly understands the profound importance of open government and its lasting impact on the health of our society.  And so does President Obama who, taking his cue from our own Governor Crist, declared on his first day in office that “transparency and the rule of law will be the touchstones of” his administration.  Let’s hope that others in government, our elected representatives and those with the power and authority to make laws and adopt policies, understand it equally well.

Barbara A. Petersen, a graduate of Florida State University College of Law, is president of the First Amendment Foundation and currently serves as president of the board of directors for the National Freedom of Information Coalition.  Governor Crist appointed Ms. Petersen as chair of the Commission on Open Government Reform.  The Commission’s final report and its recommendations are available by clicking this link.

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