united states project

Florida’s public-records law is strong. Here are 5 ways lawmakers want to weaken it

March 19, 2015

MIAMI — It’s something of a springtime ritual: Florida legislators pushing bills designed to limit the state’s public-records law, long considered one of the strongest in the country.

This year, lawmakers have filed more than three dozen bills to create exemptions in the expansive law—prompting some attentive coverage from the state press corps, and some pushback from transparency advocates.

The Miami Herald/Tampa Bay Times Tallahassee bureau has already reported on several bills of concern to journalists and others with a stake in open-records policy. There are others, too. With the caveat that it’s hard to predict early in a legislative session which bills have a serious chance of becoming law, here’s a breakdown of some of the proposals that most deserve attention:

Police officer records

Rep. Chris Latvala and his father, Sen. Jack Latvala, have filed companion bills that would exempt the former home addresses of law enforcement officers from disclosure. The bill, as initially filed, also exempted the officers’ work histories.

Florida papers pushed back quickly on the work-history exemption. As the Sarasota Herald-Tribune noted, the change would make “it all but impossible to know whether someone has gotten in trouble on the job.” The Herald-Tribune used those exact records in 2011 to show that “one in 10 Florida lawmen had committed an act of misconduct in the past and that hundreds of officers were allowed to leave one agency in disgrace only to be employed by another department later.”

Sen. Latvala told the Tampa Bay Times that he never intended to broadly exempt all officer employment histories. An amendment filed Monday did indeed take out that language, but reporters should keep a close eye on this bill.

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The Latvalas have said they filed the bills in response to an incident in Clearwater in which an agency improperly released an officer’s current home address, which has long been exempt.

“This came out of a screw-up by the city of Clearwater,” said Barbara Petersen of the First Amendment Foundation. “The legislature wants to create more exemptions so the city can screw up in even more ways?”

In addition to the legitimate public interest in this information, the bill highlights a broader concern: specific exemptions require government agencies to spend time and money making sure they are properly redacting confidential information and decide if they want to redact information that is exempt from automatic disclosure but can be disclosed. Some exemptions are appropriate—but unnecessary exemptions only make it harder for local governments to respond to records requests quickly, can create added costs, and therefore create barriers to access for the press and public.

Names of applicants for top jobs at public universities

Sen. Alan Hays and Rep. Neil Combee filed bills to keep off-limits the names of anyone who applies to be president, provost, or dean at one of Florida’s public universities. The measures would also close the meetings where those applicants are identified or vetted.

Restrictions like these are not uncommon around the country, and Petersen told me some version of this bill has been filed in Florida every few years going back decades. She said it once passed both houses, but then-Gov. Lawton Chiles vetoed it.

This bill has some added significance this year. Last fall, the well-connected Sen. John Thrasher was appointed president of Florida State University. His application for the job was widely debated—particularly his lack of academic credentials compared to the other four candidates, all of whom were PhD’s who had held leadership positions at other universities. Having less information about the range of applicants might have limited that debate.

In a recent interview, Combee told WFSU’s Jim Ash that he wasn’t sure if Florida’s public record law scares away potential applicants. Then he went on: “And another thing, universities in Florida, in this system, are not democratic institutions.”


Fracking fluids and other trade secrets

Fracking isn’t much of an issue in Florida, because there are very few places where it’s even possible. But a bill that would make the chemicals used in high-pressure well stimulation, or fracking, confidential as a trade secret has environmentalists concerned.

There has been limited—and controversial—fracking in Southwest Florida. The environmental organization Preserve Our Paradise has been fighting to stop the practice, and to force the state’s Department of Environmental Protection to regulate it. The group filed suit against the DEP last year, and forced the release of documents about techniques used at two wells, but only after one of the companies involved dropped its “trade secret” claim. The group is watching the new bill closely, said Dan Loritz, vice president of Preserve our Paradise.

Petersen of the First Amendment Foundation said that because that bill is specific, and forces the oil companies to defend any claim of a trade secrets exemption, she’s less concerned about it from a transparency perspective. She is more concerned about a separate bill that would expand the definition of trade secrets to include “financial information.”

“What’s financial information?” she said. “Without a definition, that could be just about anything.”

Email addresses in government records

A pair of bills would exempt email addresses held by tax collector’s offices and the Florida Department of Highway Safety and Motor Vehicles.

The concern here is that these bills might create a slippery slope with respect to government-held emails–and also that, as Petersen says, adding new exemptions to files that can otherwise be disclosed “simply increases the cost and delays of getting records.”

Videos taken by public agencies in public places

Sen. John Legg has filed a bill that would exempt from disclosure surveillance video recorded by community development districts, though the districts are public agencies and the videos are of public places. Legg told the Times/Herald that his bill was just designed to “protect a community,” from requests by outside groups, but it’s hard to understand what the danger is here.

Petersen said in her email alert this week that the bill “simply makes no sense. The bottom line: There is no right to privacy in public spaces.”

All of these bills are being considered during Sunshine Week, which Florida reporters work hard to cover every year, in the hopes of educating the public about the state’s expansive records law and also as a way to monitor whether government agencies may be violating it. An audit organized by the Florida Society of News Editors found that many state records were turned over with relatively little hassle or expense, evidence that the law is often effective and being followed.

But not always. The Florida Times-Union of Jacksonville reported that the state attorney in the area took four months to produce a phone directory, and that down in Broward County, the sheriff’s office said it would take four years and cost $399,000 to search for gay slurs used in department emails. Meanwhile, The Palm Beach Post found that the local sheriff in its area charges the public $20 for a CD containing public records—though the department only pays an average of 26 cents for the CDs, and state law allows government agencies only to charge for the actual cost of duplication. As the Post pointed out, “governments can’t turn public records requests into a profit center.”

All that said, we should note one bill that looks like it’s on the right path. Last fall, the Florida Center for Investigative Reporting exposed what appeared to be an abuse of the public records law—essentially an attempt to force government contractors, which are subject to records requests, into fee settlements with a private law firm that had a questionable relationship with a non-profit. CJR’s Jonathan Peters, writing about the story, noted that misuse of open-records statutes can “poison the well” and “encourage legislators to write more FOI exemptions into law, or make record custodians more resistant to requests.”

That could have happened here—a bill has been introduced in response to practices outlined in the FCIR story. But Petersen of the First Amendment Foundation has reviewed the bill and thinks it is carefully worded to maintain the public’s right to know while protecting contractors, especially small businesses and sole practitioners.

Susannah Nesmith is CJR’s correspondent for Florida, Georgia, and Alabama. She is a freelance writer based in Miami with more than 25 years working for regional and national outlets. Follow her on Twitter @susannahnesmith.