Government e-mail hard to forward to the public

By Denise O’Toole, Staff Writer

Powering up the computer tower at Bunnell City Hall to check the e-mail can trip the breaker, sending the city clerk outside to reset it. City Manager Lyndon Bonner recently quipped that it reminds him of the classic television show “Green Acres,” on which Oliver Douglas had to climb the pole outside his ramshackle farmhouse to make a telephone call.

He made the joke as an anonymous visitor sat in his office in mid February, waiting for a reply to her request for public records from the manager’s inbox. She was a spy of sorts for The Daytona Beach News-Journal and Florida’s First Amendment Foundation, one of dozens across the state that week surreptitiously testing public agencies’ compliance with state law.

The statewide survey — a follow-up to one conducted in 2004 — was designed in part to see if county governments, sheriff’s offices, school districts and county seats like Bunnell are promoting access to public records that are increasingly stored on hard drives and servers rather than in file cabinets. To make sure the population centers in Volusia and Flagler counties were represented, The News-Journal also sent auditors to city halls and police stations in the area’s larger cities. Of the 16 agencies tested locally, 10 — 62.5 percent — complied with state public records laws. Statewide 58 percent of the tested agencies complied.

The Volusia and Flagler county agencies that failed to comply did so the old-fashioned way — by insisting the requesters give a name or reason for the request or submit a written form. But, by asking in most cases for e-mail records, surveyors learned that some well-meaning public records custodians haven’t kept up with emerging technology.

“E-mail is a preferred form of communication for government agencies around the state now,” said Barbara Petersen, president of the Tallahassee-based foundation that spearheaded the survey. “We have problems getting access to e-mail all over the state.”

Few of the anecdotes brought back by The News-Journal’s surveyors were as comical as Bunnell’s, but it was clear some agencies have developed more user-friendly methods and policies than others for letting the sun shine on digital information.

Questionable public records practices related to e-mail correspondence locally included:

• Charging $10 for a blank computer disk to burn records onto in Deltona;

• Quoting a rate of $100 an hour for retrieving e-mail records in Palm Coast; and

• Charging a $13.78 hourly fee for simply viewing subject lines of city e-mails in Daytona Beach.

$10 FOR A BLANK CD?

Petersen called Deltona’s $10 disk charge “a clear violation” of the state law allowing agencies to charge only actual copying costs.

“Actual cost of duplication (onto a CD) is probably less than a buck,” Petersen said.

City spokeswoman Wendi Jackson said charge comes from a 1999 ordinance that allows for a flat $10 charge for a map CD from the Development Services Department.

“Without much thought, CDs used for public records requests were just given the same fee,” Jackson said. “Our city clerk’s office is in the process of revising our public records policy. They have been surveying other cities and will most likely be adjusting our fees to match those of other cities in the near future.”

Because Deltona offered the option of getting paper copies of the records at 15 cents per page – within the limits of the state law — The News-Journal found the city to be in compliance for purposes of the survey.

FEES SHOULD EQUAL COSTS

Like most other agencies tested, Deltona also charged for staff time spent gathering the records. The city’s rate of $8 for every 30 minutes spent on the request seems in line with a state requirement that the charge for time-consuming records requests be equal to the actual pay of a person at the lowest training level needed to do the task.

The $100-an-hour rate quoted by a city manager’s office worker in Palm Coast does not.

“Who gets paid $100 an hour?” Petersen said. “The extensive-use fee is supposed to be based on the actual cost incurred.”

City Manager Dick Kelton expressed surprise at the figure. He said the worker the News-Journal’s surveyor dealt with was relatively new, and may have been trying to make sure that person understood the request would have to be handled by the city’s information technology department and would be costly.

Kelton said digging through e-mail to meet a specific request – in this case any messages exchanged between him and city council members in the previous week — is more complex than going into an official’s in- and outboxes. Officials are free to delete messages from their desktops, but every e-mail that comes into the city remains retrievable by the information technology department.

The News-Journal surveyor who visited Volusia County’s administrative offices also was cautioned that her request for all e-mails exchanged between the county manager and County Council members in the previous week would be expensive to fulfill — probably in the hundreds of dollars.

In a follow-up interview, county spokesman Dave Byron said the county offers three options to members of the public who want access to e-mail records. They can sit at the desktop computer of the person whose e-mail they want to see when that person is not using the desk, but there’s no guarantee some e-mails will not have been deleted. They can go to the information technology department, where all e-mail that comes into the county system is captured and stored, and use a terminal to scroll through it — all 50,000 pieces or so per day. Or – the recommended option – they can answer questions about specifically what information they are looking for so that the information technology staff can do the narrowest and least expensive search.

Byron said the county is testing a new e-mail system that would make the process easier, but for now, he said: “Getting e-mail simply and quickly out of the county is not realistic.”

Petersen of the First Amendment Foundation said it should be.

“We weren’t asking them for old e-mails, were we?” she said, noting that e-mail storage and retrieval systems and policies at government agencies should be built with easy public access in mind.

“They have to consider public access in designing and developing these programs. The law requires that they consider public access,” she said.

Palm Coast and Volusia County were found out of compliance in The News-Journal’s public records test not because of the high fee quotes but because the surveyors reported being told they had to give a reason to get the records. That’s prohibited by state law.

Both the city’s Kelton and the county’s Byron said neither entity’s policy is to require a reason. Byron disputed that the county worker demanded a reason. Kelton said he planned to look into it.

“The instructions our people have is it’s public record and it doesn’t matter who wants it or why they want it. They’re expected to provide it if they are the custodian,” he said.

‘COLOSSAL WASTE OF RESOURCES’

At Daytona Beach City Hall the method the newspaper’s surveyor encountered for access to e-mail records was “problematic, at best,” according to Petersen.

The surveyor was told he could look at the subject lines of the e-mails received by the city, with a clerk present, and request items individually. The clerk would review the text of the e-mails for information that’s exempt from public records laws and then provide copies at 15 cents per page. However, after the first 30 minutes of viewing, he would be charged $13.78 an hour in 15-minute increments for the clerk’s time.

"It seems like a collosal waste of resources to have a clerk sit there and look over my shoulder as I scroll through," said Petersen. “While I’m glad they allow access, I think they need to come up with a better and more efficient way to allow access.

Because the requester had access to the records, albeit not easily, the city squeaked into the “passed” column of the newspaper’s survey.

Back in Bunnell, once manager Bonner and City Clerk Ronya Johnson got the computer working, they cordially showed the surveyor the inbox for the city’s only outside e-mail account, bunnellpfc.net, and printed what was on the screen. The city was found to be not in compliance for purposes of the test because the surveyor said her request for printouts of e-mails exchanged among the manager and city commissioners was ignored; Johnson said later she never heard the request.

She said small cities like hers face special challenges when dealing with electronic communication; the city doesn’t have an information technology staff, but the breaker problem was scheduled to be fixed this weekend. She said she takes her duty to provide access to all public records, including e-mails, seriously.

Denise O'Toole is the News-Journal's Sunday editor.

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