Secrecy again darkens the Sunshine State

From the Fall 2001 issue of The News Media & The Law, page 14.

By Mimi Moon

Once again, Florida, known among Freedom of Information advocates for its open access to public records and meetings, clamped down on its Sunshine Laws twice this year in response first to the death of a NASCAR legend and then to the Sept. 11 terrorist attacks.

In March, Florida’s legislature passed a bill into law restricting access to autopsy photographs following the death of NASCAR driver Dale Earnhardt. (See NM&L, Spring 2001; Summer 2001)

After Sept. 11, Florida’s legislature created committees on state security that can close their meetings to the public at a moment’s notice. State agencies began deferring to law enforcement’s concerns about security rather than complying with Florida’s open records laws.

The quick reaction by the state alarmed open-government advocates.

“My fear is that . . . they will do another ‘Earnhardt,’ create an exemption, [and then] make it retroactive,” said Barbara Petersen, president of Florida First Amendment Foundation. “That’s a real concern. They simply don’t care.”

Florida, with its reputation of openness, stands out among states curbing certain records and hearings in the wake of the attacks. In other states, concerns about the unavailability of records about crop-dusters, for example, didn’t surface because they might not have been available in the first place.

Within a month after the attacks, Florida lawmakers in the newly created House Select Committee on Security heard proposals for a $25 million budget on state security improvements, including the expansion of the state’s ability to listen in on telephone conversations and monitor bank records, and creating a state antiterrorism database.

The restricted access to records, such as terrorism intelligence reports, security and response plans, and certain arrest documents, was also an issue discussed in the committee meeting.

Although the committee meeting was open, the right to close the meeting was reserved “if this committee comes in contact with secure pieces of information,” said Kim Stone, director of communications for House Speaker Tom Sweeney.

The Senate also created a committee to deal with state security issues.

The purpose of these committees is “to protect for the security of our state” as the state’s constitution allows, Stone said.

“The speaker does not make it a habit to exclude any member of the media or the public from anything that he’s involved with,” she said. “The law allows for a little bit of privacy if there’s a security issue at stake.”

After Sept. 11, reporters were also restricted from access to crop-duster records and certain driver’s license information.

The state’s agricultural department denied media’s requests for aerial licenses issued to fly crop dusters at the behest of the Florida Department of Law Enforcement (FDLE).

Terence McElroy, spokesman for the Florida Department of Agriculture, acknowledged there was no law in Florida that would exempt these records from disclosure but said the department was “not exerting any exemption. We are not refusing or declining to turn them over.”

Under normal circumstances the Department of Agriculture is in charge of keeping the aerial license records and making them available for the public to inspect, but McElroy said they were “deferring to the FDLE on this issue for obvious reasons.”

McElroy refused to say who was responsible for making the final decision that the records would not be disclosed.

“I’m not discussing the internal discussions of this office and the FDLE,” he said.

He added that he did not know when the records would be released.

Prior to the refusal to release crop-duster records, the Department of Motor

Vehicles placed a temporary ban on the accessibility of driver’s license records on Sept. 19 and lifted it on Sept. 20.

The temporary closure of records was necessary to install a program that would redact the addresses and Social Security numbers of foreign nationals from 12 Middle Eastern or Southeast Asian countries who had obtained licenses during a certain period, said Robert Sanchez, a department spokesman.

This closure was also done at the request of law enforcement agencies.

“Open public records and public meetings give the public and the media a way to gauge how they do their jobs,” Sanchez said. “Whether the provision of someone’s Social Security number or address helps someone do their job is questionable.”

However, civil libertarians are upset that agencies are not following the law.

The agencies are not taking the appropriate measures to prevent disclosure under the law, said Petersen of the Florida First Amendment Foundation. She said there is no exemption under the state’s open records law that redacts the addresses and Social Security numbers from driver’s license records that existed prior to the criminal investigations. She said it would fall under the exemptions if the records were created as a result of the criminal investigation.

Petersen said that appropriate action for the agencies to take is to go to court to get an exemption.

Instead, she said, agency officials took the access away with no legal basis for their decision.

“They think that they can just hijack civil liberties in the name of law enforcement,” Petersen said.

The legislature potentially could pass more security legislation that would tighten Florida’s liberal open government laws, Petersen said.

“We don’t have anybody who will go and open access,” she said. “We don’t have any heroes. . . . I’m seeing more and more records closed in the name of law enforcement.” u