The First Amendment Foundation

Sunshine Sunday Op-Ed 2006

We plan for good government the same way we prepare for hurricanes, by raising public awareness, by getting the word out. This, Sunshine Week, is a week selected by state and national media to get the word out on open government, seven days spent trumpeting the cause, highlighting the importance of the public’s right to oversee its government through application of public record and open meetings laws. Hurricane preparedness, okay. But a whole week dedicated to open government? Why is access to government information so important that we spend a week’s worth of time and resources dedicated to the issue?

The answer, based on core democratic principles and steeped in history, is simple, really. The ability to access the records and meetings of government is critical to our ability to govern ourselves, to maintain civil liberties and historic freedoms. The ability to oversee and hold our government accountable for its actions is a fundamental right in this country, and the principles of freedom, democracy, and open government are inextricably and intricately woven into the fabric of our nation.

The right to know is not a partisan issue, claimed by one political party or candidate to the exclusion of others. It is a core principle, the bedrock of any democracy. We want to know our government is doing its job, that our elected officials are fulfilling promises made and faithfully representing our interests. We want to assure ourselves that our taxes are being used wisely and that those taxes are fairly assessed. We want to know when government officials are abusing their power and to hold them accountable when they do.

Trust, said Ronald Reagan, but verify.

Florida arguably has the most progressive open government laws in the country, laws protected by a constitutional guarantee of access which is unprecedented in this nation. But our right of access is under constant threat and is constantly vulnerable to erosion. Local governments adopt restrictive policies that prohibit public comment at open meetings or that require exorbitant fees for copies of public records – policies, we should note, that are contrary to current law which stand until challenged in court – and some government commissions and boards routinely violate the open meetings law. State agencies create artificial barriers to the public’s right of access, requiring those seeking public records to make their request through the agency’s general counsel or public information officer, to put a request in writing and state the reason for the request. These barriers violate Florida’s public records law and can cause lengthy delays in getting access to what are clearly public records.

The First Amendment Foundation recently conducted an audit of compliance with Florida’s public records law in all 67 counties and a number of state agencies. The result, while not bad compared to similar audits conducted in other states, was fairly dismal: Only 58% of the agencies tested complied with the law. A failing grade by the standards citizens expect and deserve.

And each year, the Legislature proposes numerous exemptions that would close access to public records and meetings. By our count, there are currently over 1,000 exemptions to our right-to-know. (Let’s make this very clear: Every exemption created by the legislature, all 1,000+ exemptions, are exceptions to our constitutional right of access.) Does the government need these exemptions? Occasionally, yes. Frequently, no.

Some of the exemptions are valid – social security numbers, personal financial information, patient identifying information, trade secrets – but many protect the interests of select special interest groups at the expense of the public and others block access to records that help us keep tabs on our government.

For example, there’s legislation filed this session that reenacts a public record exemption for adverse incident reports filed with the Agency for Health Care Administration (AHCA) by nursing homes around the state. Shortly after the exemption was created, a newspaper reported there had been more than 4,300 incidents reported at Florida nursing homes in the few months since the bill’s passage, but only one hundred had led to investigations. The story pointed out that even families of the patients involved couldn’t get copies of the incident reports. How do we know what’s going on in our nursing homes if we don’t have access to these reports? And how can we be assured that AHCA is doing what it should to protect our elderly? We can’t. The reports are exempt from public disclosure.

Another bill being considered this session would close access to information about donors to certain publicly-owned museum houses, which might be okay if the donor requests anonymity. We have many similar exemptions in place for museums and halls of fame around the state. But this legislation automatically closes access to such information and takes a huge step farther – it also closes access to any information about the donation itself. Is the museum using the donation for a legitimate purpose? Or is the money being misappropriated or misspent? Who knows. The records are closed to public inspection.

Trust, certainly. But please, verify. It’s our right.

Barbara A. Petersen is president of the First Amendment Foundation, a private non-profit, non-partisan organization based in Tallahassee, Florida. If you=d like more information about the Foundation and the services it provides, please check the FAF website at www.floridafaf.org.
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