For use Sunday, March 14

Sunshine on Florida

Beyond lip service to approving Open Government Act

One of Gov. Charlie Crist’s better initiatives immediately after taking office was to restore the primacy of the state’s open government and open record laws after nearly a decade of neglect. He established the Commission on Open Government Reform, which two years later recommended that sunshine-related regulations be updated and expanded to keep up with technology and counter the effects of more than 1,000 exemptions. A dozen of those recommendations are written into a bill that went before a Senate committee on Tuesday. A Legislature often more inclined to write exemptions rather than enhancements to transparency has a chance to go beyond lip-syncing respect for open government and pass what would be called the Open Government Act.

On paper, the state has solid open record and open meeting laws. But time and craftiness have enabled government agencies to skirt them by numerous, seemingly inoffensive means. The reality is that every rule that diminishes public access to a document of a meeting, however logically intended, approximates an exemption that may (and should) not be legal if it hasn’t been explicitly approved in law. The Open Government Act takes aim at just such rules by establishing statewide standards that would preclude local governments or state agencies from crafting their own, generally narrower and self-serving, interpretations of openness.

Typical, for example, are the patchwork of rules controlling the reproduction of public records when requested. The law allows an agency to charge “reasonable” fees for the time necessary to gather records and copy them. The rule is designed to discourage the gratuitous exploitation of the public record law through unlimited and labor-intensive record requests. Still, what’s reasonable to one bureaucrat may be outrageous to a person making a public record request. The Open Government Act would prohibit government agencies from imposing a fee for producing any record that takes 30 minutes or less to make available for examination or copy. It also would prohibit agencies from charging individuals for the time it takes to redact portions of records that are exempt from the Sunshine law.

The new law would also require (rather than leave it to their discretion) that all elected or appointed government officials be trained in the application of open records and meetings. When Florida newspapers periodically send dozens of reporters to government agencies to test compliance with the law, the results are usually dismal: Two years ago, less than 60 percent of requests were fulfilled in compliance with the law. It doesn’t speak well of government transparency at any level when four out of 10 requests for documents or other public information are not filled properly. Malice is not usually the reason. Poor understanding of the law is. Employees routinely trained in safety and diversity matters should be routinely trained in open government etiquette.

The proposed law leaves silent the handling of social media such as Facebook accounts, texting, immediate messaging and other forms of electronic communications that have become common since e-mail’s advent. “I’m of the opinion that the law doesn’t need to be changed to address social media,” says Barbara Petersen, president of the First Amendment Foundation and chairwoman of the governor’s open government commission. “We know what a public record is and we know what a meeting is and there’s no need to change either definition.” Peterson is right — as long as government officials know from the outset that the presumption of openness applies to any record, no matter how it’s generated, and that government agencies are responsible, as custodians of records, for maintaining proper archives.

Ultimately, there will likely be no difference between an open record and a public record: electronic data-basing of information will (or should) make every public record available soon after it is generated, without the interference of a gate-keeper. Protected information would be redacted automatically. The record would be made available automatically — as is the case with a large number of court and financial records already. Unfortunately, no universal standard yet applies to state and local government agencies requiring them to make every public record that’s been electronically archived electronically and freely accessible through the Internet. That switch is bound to be flipped, if the state is to fully live up to its Sunshine law. The sooner the better.

Reproduced courtesy of The Daytona Beach News-Journal
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