First-of-its kind FOIA Bill of Rights aims to have requesters treated with more ‘respect, courtesy and professionalism.’
From the Winter 2008 issue of The News Media & The Law, page 11.
By Scott Albright
Though sunshine has beamed brightly upon Florida public records for years, journalists and other citizens requesting such documents have too often found the fruits of their labor leave a sour taste.
Responding to reports of insensitivity and intimidation during open records law requests, Gov. Charlie Crist (R) has added a lump of sugar to the mix.
In November, Crist signed an executive order known as the "Open Government Bill of Rights," which directs state agencies under the governor’s control to treat records requesters with "respect, courtesy and professionalism."
With Florida already regarded as a leader among states in open records law, Crist had promised further reforms as he campaigned for governor in 2006, and he appears to have followed through on his promises.
The Bill of Rights was derived from public meetings held by the state’s Commission on Open Government, a nine-member group initiated through an executive order signed by Crist in June.
The governor cited comments made during one of the commission’s meetings in August, which he attended, as justification for the measure.
Public testimony revealed "the need for greater ease of access to public meetings and documents, the need to increase the respect with which our government agencies interact with our citizens, and create a culture that will build the people’s trust and confidence in their government and its ability to serve the people," Crist’s November order reads.
"The Bill of Rights is a tangible way to educate the public about their rights and to reinforce the responsibilities of agency and agency employees," Crist said.
The order directs all agencies falling directly under the governor’s authority to post the Bill of Rights conspicuously on their agency Web sites and at their headquarters.
Along with the "respect" provision, the postings must include notices about specific statutes dealing with such issues as requester fees and time limits for disclosure.
Committed to open government
Florida’s well-established reputation for providing transparent government at the state and local levels is buoyed by broad state constitutional provisions and statutes.
Like most states, however, Florida also includes a wide variety of exemptions to its open record laws — numbering more than 1,000 in the Sunshine State and ranging from trade secret to law enforcement documents. Several new exemption bills are sponsored every year by state lawmakers.
When it was formed in June, the commission became the primary advisory arm of the state’s Office of Open Government, a state executive branch division also created by Crist during the opening days of his administration.
The commission, made up of gubernatorial appointees who are working for no pay, includes members of the media, state agencies, the state legislature, state law enforcement, local government officials, First Amendment advocacy groups and private citizens.
According to the June order, the commission’s main function is to provide recommendations on potential exemptions and other open records policies.
The commission must meet once every three months and must hold three public hearings during its current session running through 2008 to discuss relevant open government topics and solicit public input, the order states.
In August, for instance, the commission heard testimony from two Florida citizens who advocated that government reports analyzing clemency requests be made public so that such requests would not be summarily rejected without a publicly disclosed reason.
A statutory exemption gives the governor discretion to release the clemency documents, which are otherwise confidential.
Acting in response to the commission-derived testimony, Crist announced in October that all clemency case analysis reports would subsequently be released to clemency applicants — a move that was applauded by Adria Harper, the director of the First Amendment Foundation, a nonprofit group that advocates open government on behalf of Florida citizens and journalists.
Harper said clemency report confidentiality was a policy that had simply never been adequately questioned and otherwise existed for no good reason.
"It’s just an example of a record that was previously closed and that perhaps there was no justification for that closure," she said.
The Bill of Rights was born out of similar testimony and comments recorded during the commission’s August meeting in Tallahassee, according to JoAnn Carrin, who is director of both the open government office and the Commission on Open Government Reform.
Members of the commission, Crist’s staff and the public talked about a "lack of respect" and even intimidation felt by some records requesters.
In written testimony submitted to the commission, for example, one resident of Perry, Fla., complained that when she and other residents of Taylor County approached local officials requesting information, they often encountered "eye-rolling" and "big sighs."
Another commission member relayed a confrontation between a state agency and a records requester during which an agency official realized that, despite a minor technical error by the requester, the requester had a right to the documents; the agency withheld them, however, simply because the requester had sued the agency several times in the past.
The agency had wanted to "give her a lesson," the commission member reported during the meeting.
The attempt at retribution not only ended with the requester receiving the documents, the commission member said, but the state ultimately had to pay the requester’s substantial attorney fees.
"Who got the lesson was the State of Florida, not the lawyer, who walked out with $17,000," said commission member Bob Butterworth, the state secretary of the Department of Children and Families and former state attorney general.
But the commission also discussed more complicated situations in which records requesters are denied access to documents because their requests are unreasonably general or broad and likely to incur enormous charges as the documents are obtained.
In diluting the apparent adversarial relationship that can develop, commission members suggested that state and local records custodians learn to work with requesters to help them fashion more specifically tailored requests that use less resources while still satisfying the requester’s goals.
As one way to educate state agency managers who deal with public records requests, Crist directed the Office on Open Government in February 2007 to offer training with the help of the Florida Institute of Government at Florida State University.
Crist’s office reports that 900 state employees are currently registered for Sunshine Law training, while only 61 were registered in 2006 before the Office on Open Government became involved.
As the First Amendment Foundation director, Harper said her office receives complaints from citizens who have been "shuffled from person to person" as they contact agencies asking for public records.
While the public often seems to think records custodians are intentionally stonewalling them, she said it’s more likely that the custodians are either disorganized or otherwise ignorant of the requirements under the law.
Harper said she believes Crist’s Bill of Rights is likely the first of its kind, as a forceful public statement applying to state agency records.
"He’s definitely showing a pattern here, and the Bill of Rights is one of those to highlight open government and make it more accessible," Harper said.
While the Bill of Rights created through Crist’s order only directly affects the 30 or so agencies that directly report to him, Carrin said other state and local agencies have started calling her office to learn how to implement their own versions of the measure.
"It further focuses on how government and public servants work for the people," Carrin said. "Because they’re our bosses, we need to treat them with respect."