The First Amendment Foundation

Barbara A. Petersen, President
First Amendment Foundation
336 E. College Avenue, Suite 101
Tallahassee, FL 32301
800/337-3518
foi@floridafaf.org

By Jon Kaney

Florida’s vaunted open government laws are riddled with more than 900 exemptions. This is good news and bad news.

It is good news because it reflects our state Constitution’s presumption of openness and the requirement that exemptions be crafted narrowly and specifically to address a clearly stated problem that disclosure would cause. Most exemptions are hardly more than pinpricks in the fabric of open government. This is good news because many narrow exemptions are better than a few but broad exemptions.

But more than 900 exemptions are bad news when we consider the laxity with which exemptions are adopted. Our Legislature far too readily grants special requests for exemptions, and all too often creates exemptions that cannot be justified by common sense. Florida’s allegiance to the public right to know demands exemption reform. We need to repair open government by reducing the number of exemptions and narrowing those that remain.

How could this be done? One way would be to apply some sensible guidelines to the creation or retention of exemptions. Guidelines should say that:

• Information otherwise readily available should not be made exempt from the public records laws. Because the Legislature never seems to consider this criterion, Florida has exemptions for records showing the names and addresses of certain state employees who wear name tags at work, list themselves in a telephone directory, or are otherwise known within the community. We exempt the names and addresses of law enforcement officers who park their marked cruisers in their driveways. We have exemptions for information supplied to regulators by businesses that is otherwise readily available from SEC filings, the business’s own publications and websites, or from employees who are not themselves bound to conceal the information. These exemptions sacrifice open government principles for no genuine benefit.
• Information used by government to impose a sanction or grant a benefit should never be exempt. A chief purpose of open government laws is to hold people in power accountable to to citizens who grant them power. But these open government laws are riddled with exemptions that hide from the public the information upon which government officers exercise powers. For example, corporations are entitled to government subsidies based on their creation of new jobs, but records showing their payrolls or other proof of entitlement are exempt.
• Information exempted to protect an individual from disclosure of embarrassing personal facts should include only that part of the record which personally identifies the subject. No one can be embarrassed by a disclosure that is not traceable from the record to the person. Some government officials argue that such redacted records always contain clues to identity, but to recognize the clue one must already know such facts concerning the anonymous subject of a record. There are two reasons for this guideline. First, to the extent such an exemption hides anything other than the identity, it serves no useful purpose. Our right of access ought not to be wasted like that. Second, the excessive breadth of the exemption masks the actions of government regarding the individual. It does not protect the individual, whether from embarrassment or mistreatment at the hands of government employees. I include within the category of excessively broad and obviously harmful exemptions all of those which apply to the children of the state, including records of DCF, of the juvenile court system, and exemptions construed to exempt the full content of any educational record that contains a personal identifier. Floridians need to know what our government is doing with our children, regardless of personal identity.
• Whatever its purpose, an exemption should not be created unless it is likely to achieve the stated purpose. The problem of “identity theft” falls squarely within this category. It is not the availability of identifying numbers that makes identity theft possible, and anyway, public records are far from the sole source of such information. On the contrary, what we call “identity theft” occurs only when a merchant, credit source, or credit reporter negligently misidentifies the “thief.” Unless our nation figures out how to keep the wheels of commerce turning while at the same time holding the credit industry responsible for the harm caused by this negligence, public records exemptions are futile gestures serving no useful purpose.

To deserve and preserve its reputation as a “Sunshine State,” Florida needs serious and far-reaching reform of its exemptions. Advocates of open government must recognize the “good news” in exemptions because these are the flexible joints that temper the broad presumption of openness, but we also need to attack and cure the evil of exemptions that make no sense.

Jon Kaney is general counsel to the First Amendment Foundation.

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