Sarasota Herald-Tribune

By Chris Davis and Matthew Doig

For the second time in three years, a statewide audit by news organizations revealed that Florida's local government agencies consistently fail to provide citizens with unfettered access to public records.

Overall, public records laws. The rate mirrored the results of the first statewide audit in 2004, when 43 percent of agencies failed to comply.

During a week in February, audit volunteers posing as “regular citizens" fanned out across the state to ask for records that are unquestionably open to the public.

They requested e-mails from city, county and school district officials, and a log showing the calls that had come into law enforcement offices. If the agencies were adhering to the state's constitution, the records should have been handed over with no fuss. Courts have determined that government agencies must protect a citizen's right to remain anonymous when making records requests.

But in many cases, volunteers faced suspicious bureaucrats who said the records could only be released in exchange for a name, a sufficient reason or a written request. Other agencies simply refused to provide the documents.

Jacksonville's City Hall failed the 2004 public records investigation by requiring a form to be filled out in one case and not returning several phone calls for more than a week in another. After the Times-Union published the results, Mayor John Peyton initiated a new open records policy to make the process easier.

The changes allow people to call 630-CITY to ask for records. Someone from the city's public information office is supposed to respond to the request within one day and provide the information as soon as possible, usually within five days. Residents also can be given case numbers if they don't want to provide their names.

This year only the Duval County School Board failed the investigation. Communications director Marsha Oliver told the requestor he had to provide an e-mail asking for the records so that the School Board would have documentation of the request. No written documention, however, is required under the law.

Oliver said Thursday that the school district does not require it, but instead requests that people "identify their specific needs. This can be via e-mail, letter, handwritten note."

She explained that the district has 130,000 students and 14,000 employees and receives a lot of information requests from parents, media and community members. She said having those requests listed in an e-mail, note or letter facilitates the volume.

"The nature of our business commands us to be accurate, deliberate and compliant when releasing information since law prohibits us from disclosing confidential information, which many of our records contain," she said. Insisting the request be in writing was one of the most common reasons for non-compliance by government offices. In St. Johns County, the county administration office, St. Augustine City Hall and School Board all called for the requests to be made in writing. That was the same case at the offices of Fernandina Beach interim City Manager Jerry Sinclair. First Coast sheriff's offices were much better, with only Baker County requiring a written request.

Pat Gleason, general counsel to Attorney General Charlie Crist, said Florida remains ahead of other states when it comes to open records. But she said the latest audit underscores the need to improve. “These laws are so important and so critical we shouldn't be satisfied with anything less than 100 percent compliance,” she said. “That is the goal we should be striving to reach.”

Repeated mistakes

Government officials at the state and local levels pledged to take the results seriously and use them as a teaching tool to improve. They said the same thing two years ago when the first audit's results were published in February 2004.

But the same mistakes made in 2004 were repeated this February. Besides the clear violations of the public records law, the audit showed that citizens can expect to wait hours for a response to what should be a routine request.

Under the audit rules, government agencies did not have to provide the records sought within a specific time frame. But the agencies were given an hour to tell an audit volunteer that the records would be provided by a certain time.

At nearly 40 percent of the agencies audited, someone using an hour-long lunch break to request a record would have found it a waste of time. In a departure from the 2004 audit, volunteers told officials they preferred to receive the records in an electronic format. The public records law requires any documents that exist electronically to be provided that way upon request.

The method can save government agencies time and money. For the e-mails requested at three of the four agencies audited, the documents could have been forwarded with a few clicks of a mouse.

But dozens of officials, especially those in small communities, said they didn't use e-mail or didn't know how to provide a copy of an e-mail electronically.

Volunteers asked for electronic records at 160 agencies. Nearly a third were unable or unwilling to provide them in that format.

At sheriff's offices, audit volunteers asked for a dispatch log for the previous 48 hours and a copy of a report mentioned on that log. At school districts, city halls and county administration offices, auditors asked for a week's worth of e-mails between the top administrator and elected officials.

The best results came from county administrative offices, which complied properly 69 percent of the time. The requests for e-mails between the schools superintendent and the school board led to the most violations. Less than half of all school districts audited fully complied with the law.

City managers complied with the requests 59 percent of the time; sheriff's offices 55 percent.

Auditors also visited four state agencies. All provided the records properly, including the Governor's Office, which suspected its public records request was part of the First Amendment Foundation effort.

Most often, the audited agencies understood that a citizen had a right to see the records requested. The stumbling blocks occurred in how the agencies handled the request.

In 16 percent of the audits, public officials demanded to know the auditors' names. A few said they would have to know why the volunteers wanted the records or where they worked.

Eighteen percent of the agencies required a form to be filled out or a written request in order to get the records.

Florida's courts have established that government officials can't require citizens to give their names, reveal their employers or explain why they want a record. They also can't be required to write down their requests. Yet some government agencies argue they are allowed to require written requests. Others say they need a name or a form filled out just so they can track the records requests that get filed.

Kriss Vallese, communication director for the Florida Association of Counties, pointed out that many local governments are taking extraordinary efforts to share information by making all e-mails available at computer terminals in county buildings or posting government documents on the Internet.

“They are the governments closest to the people,” Vallese said. “From an overall statewide perspective, county governments do a good job of being held accountable to their constituents. They're there and available for public comment every week.”

Holes in the front line

For journalists, lawyers and others who ply their trade with documents and records, Florida is known for its generous open government laws. But just as the 2004 audit showed, those guarantees aren't always extended to everyday taxpayers.

The problems often begin on the front lines, with the clerks and receptionists citizens are likely to encounter when they walk in and ask for a record.

Gleason, of the Attorney General's Office, said most people who use government records are ordinary citizens looking for information about zoning changes, changes to school boundary zones or other things that impact their lives.

“It's very disappointing that this could be their first experience with government and then they don't get what they are looking for,” Gleason said. A journalist or lawyer might call up an agency's communications director to get a record, but a member of the public is more likely to stroll through the front door and place a request in the lobby.

Often the secretaries, clerks and security guards who greet people aren't trained in how to handle records requests from the public. The problem is made worse because of employee turnover, Gleason said.

In a number of counties, audit volunteers encountered front desk employees who insisted that records weren't public, only to get the request filled when a supervisor was consulted.

Wayne Blanton, executive director of the Florida Association of School Boards, said the state mandates training on open government for elected officials, but not for all employees.

“I think our clerks are not well-trained in either the Sunshine law or the public records law,” Blanton said. “A lot of people don't have enough training.”

But there's no state effort to mandate training. And training remains spotty because the state still doesn't require it for most employees. Training that does occur is largely reserved for agencies and employees who seek it out themselves.

A spokesman for Gov. Jeb Bush said the Governor's Office wants to see local governments comply with open records law but that it doesn't have the authority to force them to do so.

“Gov. Bush obviously thinks Florida's open records law is healthy for the government and keeps everybody above board,” spokesman Russell Schweiss said. “There's always room for improvement, but by and large all the agencies are doing a good job complying with public records requests.”

The Florida Times-Union writers Kyle Peters, Rachel Davis and Scott Butler contributed to this report.
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