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Nancy Smith

The Governor's Office and Public Records: Something Is Very Wrong

June 5, 2011 - 6:00pm

Most Floridians are unaware of the drama that plays out daily on their behalf between the press and the governor's office.

I'm talking now about public records. About the simple act of retrieving information the citizens of Florida already paid for -- but can't have in a reasonable time period or at reasonable cost.

Citizens in the Sunshine State have come to believe -- and rightly so -- that most things their government does are as much their business as they are any elected official's.

How many of them, do you think, realize that now simple requests for e-mail sent to or from the governor's office can cost as much as $400 and take not days, but weeks to obtain?

It all started the first week of March when Gov. Rick Scott imposed a "cost recovery policy" for e-mail records.

In the announcement of the policy, Brian Burgess, Scott's communications director, explained it like this: "Recently, processing a tremendous increase in public records requests has taken a great toll on existing information technology and other labor resources. The nature and volume of requests and a need for legal review of certain documents and files, combined with duplicating and other material costs, significantly increase the cost to the taxpayer.

"Under these circumstances and in recognition of our need for fiscal restraint, taxpayers can no longer absorb all of these costs."

The governor created an Office of Open Government in December. How is it that taxpayers can absorb the cost of running that office but not the open government its title promises?

How is it that in this age of digital technology, record-keeping in the governor's office could be so complicated that computers couldn't be programed to filter out confidential e-mails and leave the rest available instantly with the touch of a key?

Early on, Barbara Petersen, president of the First Amendment Foundation, volunteered to make a weekly PR request for the e-mail correspondence of all the governor's top staffers and the noncitizen support correspondence of the governor himself. It was a cooperative gesture. Petersen wanted to ease the process for everybody.

Then, just before the first PR request, the governor's office instituted its fee policy, and, as Petersen now reflects, "What was intended to be a service has morphed into a nightmare, both financially and in terms of my time, and I stopped making the requests after two months." Now the blanket requests are out.

And here's the bottom line. "To date," she said, "weve spent nearly $3,000 in fees and we've received only about half of what we requested."

Here are details of the mess that Petersen and the First Amendment Foundation are coping with:

  • Records come back piecemeal -- for instance, part of one staffer's e-mail from "request 2" on the same disc with another staffer's e-mail from "request 1" and "request 5." Exorbitant fee, and it's like picking through a rubbish bin to sort it all out.
  • FAF isn't getting everything it's asking for. For example, Scott's chief of staff, Mike Prendergast, returned only e-mails on the government server; but when Petersen opened Senior Policy Adviser Mary Anne Carter's e-mail, lo and behold, there were some from Prendergast that he failed to send earlier -- and sent from a personal e-mail account.
  • The fees are, in many cases, excessive. The most outrageous: $788 for one weeks worth of Brian Burgesss e-mails. The First Amendment Foundation is being charged a highly paid staffer's hourly rate to go through his or her own e-mail; in part, that's because of the heavy use of personal e-mail accounts, even though the governor's office has a written policy stating that personal accounts are not to be used unless absolutely necessary and, if used, the governor's office account must be copied. The gov's office accounts are not being copied.
  • Then there's the problem with how the governor's office is implementing the extensive use fee. Theyve defined extensive as 30 minutes or more, which seems to be the general definition, says Petersen, but instead of imposing the fee at minute 31, if a request requires more than 30 minutes, the extensive use fee is imposed from minute one. "This is how it works," she says. "My request takes 25 minutes; I pay only the cost of duplication. My request takes 35 minutes, I pay the cost of duplication plus 35 minutes of extensive use. Its crazy. The governor's office says this is how all Cabinet members are interpreting the law, but I found thats not true."
  • In fact, Cabinet officials minimize the cost and the hassle. Chief Financial Officer Jeff Atwater, for example, charged $10.50 he defines "extensive" as 15 minutes or more and it took one hour to comply with Petersen's request. She was charged for three-quarters of an hour at a salaried rate of $14/hour.
  • FAF is waiting weeks to get back the records requested. As soon as a request is received by the Office of Open Government, it is acknowledged. Then Petersen waits for a fee estimate. After that, she gets a check cut at the bank, the check goes to the governor's office, is processed, and only then are the records released. Maybe. If the fee estimate turns out to be low, she's given a revised estimate and must pay the difference before the records leave the Capitol building.

In my heyday, reporters could walk into any government office and go through a stack of mail to see who was writing what and to whom. If they saw something they wanted, they would pay for a Xerox copy. But this is the 21st century. Digital technology is the way business has been conducted for at least the last 10 years. Why is it that in some offices, any member of the public can walk in, type in an official's name, and his e-mails pop up? Why is it so easy in those offices?

There is no excuse for the kind of inefficiency the First Amendment Foundation and the citizens of Florida have had to endure. The law is clear: Information delayed is information denied.

Nor is there any excuse for the deliberately obstreporous treatment of people the governor's office may not like, but who represent the governor's 19 million constituents. Those constituents deserve more respect.

This isn't, by the way, just a Democrat issue or Republican issue, it's not just a liberal issue or conservative issue. It affects us all. It's important to us all. It is at the heart of what connects us to our government.

Rick Scott needs to step up and be a leader in this matter. I sincerely believe he does respect the spirit and the letter of the Florida open records laws, and I believe he will show Floridians by interceding to fix this.

This article is an opinion column. Reach Nancy Smith at nsmith@sunshinestatenews.com, or at (850) 727-0859.

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