FLORIDA'S PUBLIC RECORDS LAW PUT TO THE TEST:
GAINING ACCESS TO CRIME STATISTICS IN FLORIDA
By Michele Bush
Doctoral Student, University of Florida,
College of Journalism and Communications
6400 SW 20th Avenue, #42
Gainesville, FL 32607
Office phone: (352) 392-2273
Home Phone: (352) 331-8357
E-mail: [log in to unmask]
Submitted to the Law Division of the
Association of Education in Journalism and Mass Communication
Southeast Colloquium
ABSTRACT: FLORIDA'S PUBLIC RECORDS LAW PUT TO THE TEST:
GAINING ACCESS TO CRIME STATISTICS IN FLORIDA
One of the greatest checks of government's inefficiency or corruption is the
public's right to access government information. However, it is not sufficient
to accept that because there are legal provisions granting the public access to
information, the public is actually receiving that access. To fully evaluate
the openness of government, the practical application of access laws must be
tested. Only then can scholars know whether citizens have access to government
information.
This study used legal and qualitative research techniques to evaluate the
citizens experiences while attempting to gain access to crime statistics in
Florida. More than 100 citizens attempted to collect the government document all
over the state. The data showed that citizens received inconsistent, and
sometimes unlawful, responses to requests for access to government
information. This study enumerates the responses the citizens received. It
also offers suggestions for improving access to government information in
Florida.
FLORIDA'S PUBLIC RECORDS LAW PUT TO THE TEST:
Florida's Public Records Law Put to the Test: Gaining Access to Crime Statistics
GAINING ACCESS TO CRIME STATISTICS
PART ONE: INTRODUCTION
Citizens can effectively participate in democracies only when they are armed
with knowledge about their government.[1] First Amendment philosopher Alexander
Meiklejohn argued that an uninformed electorate would lead to "ill-considered,
ill-balanced" voting choices, therefore threatening the nation as a whole.[2]
Perhaps one of the greatest checks of government's inefficiency or corruption is
the public's right to access government information.[3]
While this country's foundation was constructed shrouded in secrecy,[4] there
have always been those who recognized the value of a citizenry that has access
to the information about its government. In 1804, Thomas Jefferson explained his
confidence in the public's judgment about its government when the public is
granted the truth. "No experiment can be more interesting than that we are now
trying, and which we trust will end in establishing the fact that man may be
governed by reason and truth. Our first object should therefore be to leave
open to him all the avenues to truth."[5]
While the U.S. Constitution grants no right to access government information,
United States citizens are allowed by statutes to have access to both state and
federal government information. The Freedom of Information Act controls which
federal records are available to the public, [6] and each of the 50 states have
statutory provisions for access to state records.[7]
However, it is not sufficient to accept that because there are legal
provisions granting the public access to information, the public is actually
receiving that access. To fully evaluate the openness of government, the
practical application of access laws must be tested. Only then can scholars know
whether citizens have access to government information.
Therefore, the research question this study will answer is: What kinds of
experiences are records requesters in Florida facing when attempting to access a
public record? This study will answer the research question with a combination
of legal research methods and qualitative research methods.[8]
Methodology
This study used the participant-observer technique to test the accessibility of
public records by sending 103 students to visit law enforcement agencies across
the state to collect the same public record -- crime statistics. Students were
recruited from University of Florida journalism classes for which access to
public records might be a logical extension of the curriculum. Students were
enlisted from Reporting, JOU 3101, and Law of Mass Communication, MMC 4200.[9]
The students received extra credit from their professors after completing the
assignment. The students self-selected participation and the counties they
would visit. No students were turned away from participation.
The students acted as records requesters and collected crime statistics from
sheriff's offices and police departments in their hometowns. These crime
statistics are tabulations of the kinds of crimes committed in the areas each
law enforcement agency services. Crime statistics were selected because it was
a record every law enforcement agency should have. The Florida Department of
Law Enforcement requires each law enforcement agency to tabulate and report the
incidence of crimes in the agency's area each year. Also, law enforcement
agencies are a part of the few government agencies open most of the day and open
on weekends, making it more convenient for the records requesters to collect the
records.
Records requesters visited nearly half the counties in the state.[10] The
records requesters were told they could visit any county in the state. However,
when requesters asked for a recommendation for a county to visit, they were
encouraged to go to less populated counties, and they were offered a map to use
to choose a county. The records requesters tended to choose highly populated
areas to visit, such as Dade and Broward counties in South Florida, so this
recommendation helped encourage a more even canvas across the state. The
requesters registered with the author the counties they would visit before
traveling to collect the public records.
Records requesters were required to participate in a training session before
collecting the records. During the training sessions, the records requesters
were given some instruction on Florida's Public Records Law. The requesters
were given just enough information to be able to access the records -- such as
the definition of a public record,[11] the people who have access to the
records[12] and custodians' responsibilities[13] -- but not enough to make the
records requesters experts. The students were told that there was no "wrong way"
to get the data and not to feel they had failed if custodians did not release
the data.
The records requesters were only told to ask for the most recent crime
statistics for the agency's area. This is all they were told about how to ask
for the crime statistics. They were told to respond in whatever way they felt
most comfortable if custodians asked why they needed the information. The
requesters were not told to lie, but they were not cautioned against lying. They
were also told they could choose not to answer at all. They were told to avoid
explaining that they were requesting records for a research project because the
custodians may have treated them differently, skewing the data. Many requesters
said they told custodians they needed the data for a project or for school,
which was accurate but still vague.[14]
The records requesters were told to get a photocopy of the record before
leaving the law enforcement agency. The reason for this was two-fold: to make
sure the observer went to the office to get the record and to find out what the
agency would charge for making photocopies. The records requesters were also
told that calls to the records custodians would be made at random to make sure
those who did not get the record actually went to the agency.[15] This, too,
was to encourage the requesters to complete the assignment.
The records requesters received a report form that they were asked to fill out
after asking for the records. They used the form to document the date and time
they requested the record, the county and name of the law enforcement agency,
the cost of copies, and the questions custodians asked, if any. On the back of
each form, requesters were asked to write detailed accounts of their
experiences. This section was used, with the other information on the survey,
to uncover trends in records custodians' responses to requests.
Section overview
Part II will explore the sections of Florida's Public Records Law relevant to
this study, and it will discuss examples of research similar to the research in
this study. Part III will reveal the data collected during the field research
and explain the findings. Part IV will contain conclusions resulting from the
data and recommendations for using those conclusions.
Part II: RELEVANT LAW AND LITERATURE
Introduction
This part will provide the background for this study. The first part of this
section explores the provisions[16] of Florida's Public Records Law that are
relevant to this study. A brief literature review for this study explores
research that is similar to this. The literature review shows that there are few
examples in which social science research methods are used to evaluate the way
public records laws function.
Florida's Public Records Law
Florida's history of access to government records began in 1909 when
legislators codified the state's common law right of access to government
records by declaring that "all state, county, and municipal records shall at all
times be open for a personal inspection by any person." [17] A 1975 amendment to
the Public Records law guaranteed access to anyone by removing the citizenship
requirement.[18]
The Florida Supreme Court has recognized that the state favors an open and
broad interpretation of the public records law.[19] Anyone is eligible to use
the statute to obtain
documents.[20] Florida Law allows any person, regardless of age or
citizenship, complete access to all non- exempt government records and
documents.[21]
The Florida Public Records law contains provisions for obtaining government
records and establishes procedures custodians are to follow when a requested
document is exempted from public inspection. Article 1, Section 24 of the state
constitution also guarantees public access to records.
Any document produced or received by a public agency is assumed to be open
unless specifically exempted.[22] Public records are defined as "all
documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, ... made or received
... in connection with the transaction of official business by any
agency."[23]
Public agencies are defined as units of government that are created or
established by law.[24] This includes, but is not limited to, state, county,
district, authority, or municipal officer, department, division, board, bureau
or commission.[25]
Only the state legislature has the power to exempt a document from public
inspection in accordance with Florida's Public Records Law.[26] Because
Florida's law is structured to allow changes to be made only by the state
legislature, a court has interpreted that local policies cannot change or add
conditions to access requirements.[27]
Records Custodians
A records custodian is the elected state, county, or municipal officer
responsible for maintaining the office holding public records.[28] Records
custodians' duties are to monitor the disclosure or nondisclosure of public
records within their care.[29] Records custodians have the responsibility,
according to the law, for granting or denying access to government records.[30]
Fla. Stat. 119.07 limits the restrictions that custodians may place on access to
public records.[31] Custodians may not impose a rule or condition that
obstructs a requester's right to access public records.[32]
When a person requests a public record, a custodian cannot require the
requester to explain the purpose or special interest in seeing the documents;
nor can the custodian insist that the requester disclose personal information or
identification in order to inspect public records.[33] Therefore, according to
a state attorney general opinion, a custodian cannot require a requester to show
a driver's license or press credentials unless there is an express statutory
requirement[34] for such identification as a condition for access to the
record.[35] A custodian may not deny access to records because the request
lacks specificity or is too broad.[36]
A custodian may not require a request to be made in writing, in person or in a
specific format.[37] There is no specific statutory time limit for a
custodian's response, according to Florida's Public Records Law. However,
custodians must respond in a "reasonable" amount of time, which has been defined
by the Florida Supreme Court as the amount of time it takes to retrieve the
record and excise any confidential sections.[38] The Court has held that
custodians may not require an automatic delay before providing records.[39] For
example, records custodians may not administer an arbitrary delay before
requesters may have access to records; nor can they require records requesters
to wait until the custodian has time to sit with requesters while they look at
public records.[40]
If a custodian asserts that a requested document is confidential and exempt,
he or she is required to state the basis of the exemption, specifying the
statutory citation of the exemption.[41] That exemption must be furnished in
writing if requested.[42] If the custodian finds that only part of the
requested record is open to public inspection, the exempt sections can be
removed or blacked-out.[43] If part of a record is redacted, the remainder of
the document must be presented for public inspection.[44]
Fees
There are three main areas in which the questions of fees arise: costs
incurred for photocopies, costs for extended labor and information technology
resources required to respond to a request, and costs incurred while custodians
access electronic records. Records custodians may not arbitrarily charge fees
solely for access to public records.[45]
If a requester chooses to have copies made of any public records, the requester
may not be charged more than 15 cents per one-sided copy that measures no more
than 81/2 by 14 inches and no more than 5 cents more for a two-sided copy in the
same size range.[46] Custodians may charge up to $1 for a certified public
record.[47] Custodians should charge no less than the statutory requirement.[48]
Records custodians may charge extra fees if the records requested require
extensive labor resources in addition to the actual cost of duplication.[49]
Actual cost is defined as the cost of the material and supplies used to
duplicate the record.[50] Records custodians may also apply a special service
charge to extensive requests, but the service charge may not exceed the cost the
agency incurred in information technology resources or personnel labor costs
when it responded to the request.[51]
Florida's Public Records Law does not contain a definition for the word
extensive. However, in Florida Institutional Legal Services, Inc. v. Florida
Department of
Corrections,[52] a trial court defined extensive as taking more than 15 minutes
"to locate, review for confidential information, copy and refile requested
material."[53]
Records custodians may also charge extra fees if the request requires extensive
use of information technology resources.[54] Technology resources include data
processing equipment, supplies, personnel, resources, maintenance and
training.[55]
It is important to note that computerized information is still just as much a
public record as information in paper form.[56] In some instances in this
study, which will be explained in detail in Part 3, excess fees were charged
because the records were stored in computers.
Law Enforcement Records
Law Enforcement agencies, because of the nature of their business, have
specific exemptions to prevent the distribution of confidential information.
The scope of most of the exemptions relates to active criminal intelligence or
investigative information.[57] Criminal intelligence information is defined as
information that identifies a group or individual that a criminal justice agency
collects while preventing or monitoring criminal activity.[58] Criminal
investigative information includes the information criminal justice agencies
collect when investigating crimes.[59] Criminal intelligence information and
investigative information is considered active as long as criminal justice
agencies have reasonable expectations that the information will be used to
detect criminal activities or make arrests.[60] The purpose of an exemption
active criminal intelligence or investigative information is to prevent the
disclosure of information that might impede an investigation or allow a suspect
to evade arrest.[61]
The information observers collected for this study, local crime statistics, is
not exempt from public inspection because it is not confidential information.
The crime statistics do not contain names, sexes or ages of people arrested.
They are tabulations of crimes in a given area during a given year. The Florida
statutes specifically states that this information must be released because it
is not criminal intelligence information.[62] In section 119.011(3)(c), the
statute lists information that is not criminal investigative or intelligence
information and should be released. The first on the list is "the time, date,
location and nature of a reported crime." That is the only kind of information
included in the crime statistics tabulated for the Florida Department of Law
Enforcement.
Literature Review: Research Using Social Science Methodology
to Evaluate Public Records Laws
There are few studies that use social science research methods to evaluate
official compliance with public records laws. Although they are few, these
studies offer valuable insight into how public records laws are functioning.
Research on the Practical Workings of Other States' Public Records Laws
There may also be only one study outside Florida that uses social science
methodology to study public records law. A recent study conducted by students
from Brown University and the University of Rhode Island analyzed records
custodians' behaviors when responding to records requests.[63] The students
attempted to collect public records from 40 cities and towns in Rhode Island,
and then they analyzed how often they received the requested records.[64] The
students in the study worked in pairs and visited each agency twice.[65] They
requested police, voter and tax records from agencies in each city or town.[66]
The police departments received the lowest ratings for courtesy - in some
instances, records custodians' behavior at police departments seemed harassing
or intimidating.[67] When requesters attempted to get information from police
departments, most asked for identification or for reasons for requesting the
information.[68] Researchers said police departments said they would not
comply with records requests because they were afraid that releasing records
would interfere with ongoing investigations or invade the privacy of the
subjects of the records.[69]
Newspaper Audits of Public Records Laws
Some newspapers have also examined records custodians behaviors analyzing their
responses to requests for the same public record. These studies are not
designed with specific scientific research methodologies, but they include
methods of social science data collection. Because the methodologies may not be
scientific, the data may not be conclusive or generalizable. Therefore, the
studies may be more accurately labeled audits. However, the data collected is
no less important.
The Evansville (Indiana) Courier published a five-part series in which it
showed that records custodians in all 92 counties in the state routinely refused
to release public records.[70] Seven newspapers sent personnel to every county
to ask for access to a myriad of public records, including crime logs, adoption
records, drivers' license information, death certificates, minutes of government
meetings and school district personnel records. The results of the series
showed that sheriff's departments were the worst offenders in refusing to grant
access.[71]
The Richmond (Va.) Times Dispatch also conducted a statewide study of access to
public information.[72] It sent newspaper employees to 135 cities and
counties.[73] The results of the study showed an average response rate of 58
percent.[74] The Richmond study also showed that law enforcement offices were
the worst offenders.[75]
Summary
As these studies show, access to public records is not guaranteed only because
a statute requires it. Often, access to public records hinges on the behavior
of individual records custodians. Therefore, records custodians behaviors when
responding to records requests is especially important for understanding how
well a state's public access statute works.
Part III: Results
The 103 observers visited one office each, returning with one response form
each. The visits took place between October 1997 and December 1997. Observers
visited 28[76] of the state's 67 counties. In most cases, no more than nine
visited the same county. The only exception was in Alachua County, where 17
observers collected data.[77] However, within most counties, the observers
visited different law enforcement agencies. Observers collected data from 71
law enforcement agencies in 28 counties. Of those 71 agencies, 53 were police
departments[78] and 18 were sheriff's offices.[79] County governments oversee
sheriff''s offices and municipalities control police departments.[80] The
Public Records Law applies to both equally.[81] However, police departments
were more likely to grant access to crime statistics. About 70 percent of the
police departments granted access to the records,[82] while about 56 percent of
the sheriff's offices granted access.[83]
Access to Crime Statistics
Most of the observers, 67 percent, received the document they requested.[84]
Thirty-three percent were denied access to the record.[85]
Records custodians[86] response times ranged from minutes to one month. In
most cases when access was granted, records requesters received the records in
the same visits. In three cases, records custodians mailed the records to the
requesters and they arrived in three days, three weeks and one month,
respectively. One records custodian sent the record by fax.
The most common reason custodians gave in denying requests was that they were
not authorized to give the record out.[87] Specifically, the records custodians
said they were not the people responsible for dispensing the records, and the
proper people were not in the office or unavailable to help. They said no one
could assist the requesters. According to Florida's Public Records Law, every
person who has custody of a public record must allow the public access to
it.[88] In Puls v. City of Port St. Lucie,[89] the appellate court said that it
does not matter if a records custodian is officially designated in accordance
with Fla. Stat. 119.07(1)(a) because the Public Records Law requires every
person who has custody of a public record to grant access to it.[90]
The next most common reason records custodians used to deny records was that
they thought the crime statistics were not available to the public.[91] However,
none of the records custodians in this study cited a statutory reason for
denying the records, as is required by Florida's Public Records Law.[92] Had
they examined the law, they would have found that the crime statistics were
public records.[93]
driver's licenses.[94] One records custodian refused to honor a request
because it was not from the press and it was not in writing. The records
requester said, "I was told the crime statistics were public records, but only
for the newspapers. The only way I could get a copy of the crime statistics was
by presenting a In some cases, records custodians required specific conditions
of access that were not permitted by the Florida Public Records Law. Records
custodians denied requests because requesters didn't call before coming to
request the records,[95] and records custodians required the requests to be made
in person.[96] Requesters were also required to fill out forms,[97] to provide
their names and addresses[98] and to provide written request to the public
information officer."[99]
Positive Experiences
Records requesters who wrote on the recording sheets[100] that their
experiences requesting records were pleasant usually attributed that
pleasantness to records custodians' attitudes toward them.[101] If the records
requesters were treated kindly, they considered the experience getting the
record a positive one. For example, one records requester described her
experience with a records custodian as positive because the custodian took the
time to help with the request, but also treated her with "courtesy and
respect."[102] Another requester said that although it took 30 minutes to get
his record, the custodian was "helpful and considerate," making it a "pleasant
experience."[103]
Negative Experiences
However, not all records requesters had pleasant experiences. As was true with
their positive experiences, requesters attributed negative experiences to the
way they perceived the custodians treatment of them. Several records requesters
described experiences in which they were badgered, ignored, threatened and
laughed at.
A few of the requesters descriptions of negative experiences were as follows:
She gave me a hard time about when I'll need it, how many pages, etc. There was
this attitude from her, like why did I want this information and that I was
wasting her time.[104]
The lady at the desk asked me why did I need them and then she said that the
person in charge of the statistics wasn't there. She was cold and acted as if
she was trying to keep me from having something.[105]
I walked up to the front desk and asked to see the most recent crime statistics.
The lady was not very helpful. She looked at me and said, 'For...what?' I told
her that I'd rather not say. She pointed to two notebooks on the counter and
told me that that's all that is available. There was nothing in there but news
releases. I told her I needed crime statistics. She said those records were
not available to the public. When I told her that I was told by someone that
they were public access, she said, 'Well, someone told you wrong![106]
The woman kept insisting that I tell her why I needed the statistics. I told
her that I was simply interested. She told me that those records cannot be
released to 'just anyone.' Then I said, 'From what I understand, it's public
record. Anyone can request a copy.' She told me that she believed I was wrong.
Then I asked to speak to someone else. She was gone for a long time, then she
came back with a man. He told me that he was sorry that I had been given a hard
time. He also told me that I was right about the statistics being public
record.[107]
I asked for a copy of the most recent crime statistics. The woman I asked
walked away from me and conferred with the man also working. Then he came back
and asked what I needed. I repeated my request and he asked me why I needed
that information. I told him it was a public record and that I need not to
explain why I want them. He then told me that only the statistician could give
me that information. I then cut him off, saying that I spoke to the
statistician and she told me that the information was available between 9 a.m.
and 5 p.m. He then told me that if I was going to take this attitude with him,
he would call an officer to escort me out if I wouldn't leave on my own. So I
left.[108]
I was told that no one had access to the computer files except the records clerk
and she took a personal day. I was told she was the only one that could issue
public records. When I asked her why, she told me I should have called first
before coming in the office. When she couldn't give me a reason why no one else
in the office knew the computer access password, she began telling me that to
receive a public record, you must fill out a form, and that it takes three
working days to process and receive any information from the records department.
Needless to say, the woman was very rude and continually asked me for my name,
phone number and address.[109]
I kept feeling like I had to justify myself and I said I lived in Gainesville.
She told me there was probably a lot more crime in Gainesville. She said they
had the average drug problems and a few breaking and entering. She seemed a
little offended that I wanted crime statistics. She told me that she had grown
up in the area and there had never been too much crime.[110]
I asked for a copy for the most recent crime statistics and the guy laughed at
me. He said you have to come back during normal business hours on Monday to
Friday, and for them to release information like that I have to call ahead of
time.[111]
Told to Look Elsewhere
In some cases, records requesters were told they should look for the
information in nongovernment offices. An officer at the Delray Beach Police
Department granted access to the record, but told him the information was
available for public use at the library. One officer was unsure whether the
records being requested were available to the public, so he sent the requester
to find the previous week's Bradford County Telegraph, which had printed a story
about the area's crime statistics. "[The records custodian] suggested that I go
get a copy of the news article because it was pretty accurate, and he didn't
want to release any false information, which may cause him to get in trouble,"
according to the records requester.[112]
Questions Asked
Most records custodians asked questions of the records requesters -- 79 of the
103 records custodians asked questions. Custodians asked an average of two
questions of requesters.[113] The kinds of questions custodians asked is
revealing.
Some records custodians' questions were clearly asked to clarify what records
the requesters wanted, such as, "For what year would you like the statistics?"
or "For what area do you want the statistics?" If records custodians asked some
questions for clarification purposes, it was less obvious. For example,
custodians' questions like, "Why do you need the statistics?" and "How do you
plan to use the statistics?" may or may not have been asked to gain a better
understanding of the requests. Other records custodians' questions were clearly
not necessary for fulfilling requests - such as, "Who are you with?" or "What
is your name?"
Records custodians most often asked requesters why they needed the records or
how they planned to use them. About 80 percent of the custodians who asked any
questions asked requesters about their need or use for the records.[114] For
example, one requester reported the following exchange with the records
custodian she contacted: "He asked me what kind of research I was doing. In
other words, how would I compare the information. I told him the information
would be compiled with other statistics from all over Florida."[115] Only one
records custodian asked why the requester needed the information, but told the
requester that she was not obligated to divulge the information.[116]
One records requester's experience was similar to some of the other
experiences:
He seemed to be a bit suspicious. He continued to probe me, asking me technical
questions like, "A UCR or an ICR form?" I responded with , "either." He then
came right out and asked me what it was that I needed it for. I explained that
it was for a class. The officer seemed a tad relieved, yet still unsure of me.
"What class?" he asked. "One at the University of Florida," was my answer.[117]
In about 56 percent of the requests during which custodians asked questions,
they required requesters to divulge identifying information.[118] Eleven
custodians asked requesters with whom they were working or where they were
from.[119] Ten custodians asked if the requesters were students or working with
a class.[120] Twelve records custodians asked for identification, such as a
name or driver's license. Eleven records custodians required requesters to
provide signatures in log books or to fill out request forms.
About 54 percent of the records custodians who asked questions asked clarifying
questions - questions that appeared to be designed to pinpoint the record the
requester wanted.[121] For example, 11 asked to know from what area the
requester wanted the crime statistics. Seven records custodians asked from what
year to take the statistics and 11 asked if they were interested in statistics
for specific crimes. The clarifying questions records custodians asked the
records requesters in this study did not in any way obstruct access to the crime
statistics.
Florida's Public Records Law does not provide guidelines about the kinds of
questions records custodians can ask. The Florida Attorney General cautioned
against imposing rules or conditions that obstructs access to public record in
Florida Attorney General Opinion 75-50.
Fees
Of those records custodians who granted access to the crime statistics, 84
percent of them provided copies of the crime statistics for free.[122] Fees
records custodians levied for access to records was varied.
One agency charged $25 per hour of research time with a minimum charge of
$12.50 and required the requester's name, address and phone number.[123] Another
agency charged $50 for a "grid search," or to search a specific area by the
grids made by streets.[124]
When custodians used computers to get the information, the fees were higher
than when custodians had the crime statistics filed as noncomputerized, paper
copies. One agency charged 15 cents per second of computer time with a cap at
$200, plus 15 cents per sheet of paper used.[125] Two separate requesters were
told that the requests would likely reach the $200 cap because the custodian
expected the agency would have to work on it through the weekend.[126] This was
especially frustrating to one of the records requesters, and she wrote:
Therefore, it would cost about $200 to retrieve the document I wanted. I was
asked to sign on a blank sheet of paper stating that the costs had been
explained to me, I would pay in full and to state the dates of the document I
wanted. Therefore, I did not sign anything because I did not have $200 to spend
on a public document. I can't believe it cost so much for something that is
available to the public.[127]
Fee requirements did not always appear to be set in stone. In at least two
cases, records requesters complained about the costs and records requesters
removed the fees:
At first, the people that worked for the records department told me that a
report of the whole city of Hollywood would tie up their computers for days and
that it would cost $75. After speaking to the department head, I was able to
get a copy of the uniform crime report for free.[128]
The woman said it was a $50 charge for the complete crime statistics for the
year. I said, 'I don't understand, this is a public record, how could it cost
so much?' She left and went to talk to a supervisor and came back after a few
minutes. She said that she could get the most recent crime statistics, but I
would have to come back another day to get them and it would cost a few
dollars.[129]
Summary
While most requesters received access to the crime statistics, the data in this
study shows that the requesters had varying experiences. Receiving access to the
statistics did not guarantee what the requesters described as pleasant
experiences. Requesters were intimidated by conditions of access, prying
questions and confusing fee schedules. In each case, the requesters' attitudes
toward their experiences were directly related to records custodians' treatment
of them. To the records requesters, positive experiences meant respect and
cooperation from records custodians, according to requesters. Negative
experiences were those in which custodians denied access to crime statistics, or
when the custodians argued with, intimidated, or laughed at requesters.
The next section will conclude this study with suggestions, in light of this
data, for improvements that can be made to the way Florida's Public Records Law
is carried out. It also includes recommendations for areas of further study
about access to government information.
Part IV: Conclusion
Introduction
Citizens in Florida have a right to access to government information, a right
that was granted by the Florida Constitution.[130] According to Attorney
General Bob Butterworth, this right "offers Floridians the right to become
knowledgeable about their government, and, thus, active and participating
members of our democracy."[131]
The purpose of this study was to analyze the responses records requesters
receive when trying to obtain access to public records in Florida. Students from
the University of Florida attempted to gain access to crime statistics. They
traveled to law enforcement agencies across the state to request the documents.
The results of the data they collected showed that those who request public
records do no always receive them. This is disturbing proof that records
custodians are denying a right guaranteed by Florida's Constitution.[132]
Government information can be a valuable tool for educating the public,
especially in the area of public safety. For example, citizens can use the
crime statistics requested in this study to learn what parts of their areas are
most crime-ridden and what the most dangerous times of day are in those areas.
They can use the information to learn what the most common types of crimes are
committed in their areas. Crime data can make it possible for citizens to
protect themselves and their families from becoming crime victims.
Problems with Access
Access Denied
The most troubling result of the data in this study is that 34 percent of law
enforcement agencies' records custodians denied access to crime statistics.
Every single requester should have received access to this crime data. Florida
statutes specifically state that this information must be released because it is
not criminal intelligence information.[133] The fact that 35 of the 103 records
requesters in this study were not allowed to see the record is proof that there
is a problem with the way Florida's Public Records Law is being implemented.
The gatekeepers for access to Florida's public records are records
custodians.[134] This study shows how central a component a records custodian
is to a records requester's experience with Florida's Public Records Law.
Records custodians are directly responsible for requesters' access to the crime
statistics.
Not once did a records custodian in this study state the statutory bases of
their denials, as is required by law.[135] Understanding records custodians'
reasons for not explaining why they denied access to public records was not a
focus of this study, therefore further research in this are is recommended.
Records custodians may not have given explanations for refusing access because
they could not -- there is no legal reason for denying access to a public
record. Maybe the records custodians believed they responded appropriately by
denying access without explaining the statutory basis for doing so. Maybe the
records custodians just wanted the records requesters to go away.
Records custodians in this study most often denied access to the crime
statistics with an explanation that they were not authorized to grant access to
the record. This could be symptoms of ignorance, misunderstanding or disregard
of Florida's Public Records Law because these records custodians were the people
authorized to grant access to the public records. According to Florida's Public
Records Law, everyone who has custody of a public record should allow the record
to be accessed by any member of the public.[136]
The three other most-used denials -- that the records did not fall under
Florida's definitions of public records, that requesters must call ahead, and
that requesters must ask
for records in person - could also show records custodians' ignorance of the
law because the crime statistics should have been available to the public,
according to the public records law.[137]
Conditions of access
The conditions records custodians required before providing access to public
records showed that they were either ignorant of the public records law or they
were disregarding it. Before granting access to records, some custodians
required requesters to sign forms, show identification and submit written
requests, while other records custodians did not. Records custodians may not
impose conditions of access, such as requring that requesters call ahead or
requiring the public to request records in person, because these conditions go
against the spirit of the public records law, according to Florida's attorney
general.[138]
One potentially troubling condition of access occurred in Alachua County, where
three records custodians would only mail public records to requesters. In these
three cases, records custodians required requesters to provide their names and
home addresses before they would fill the records requests. Then the custodians
mailed the records to the requesters' homes. The records arrived in three days,
three weeks and one month, respectively. Those were the longest response times
recorded in the study. Most of the records custodians across the state
responded to records requests within a day or two.
The conditions of access records custodians required during the data collection
for this study proves there are inconsistencies in the way custodians around
Florida provide access to public records. More importantly, the conditions are
unfair to members of the public attempting to gain access to the records because
it hampers access to records.
Members of the public could be intimidated and confused by such conditions of
access, and it could make them hesitant to request documents. This is also
known as a "chilling effect." Perpetuating such a chilling effect hampers and
obstructs access to government information. Actions that intimidate and confuse
records requesters might also perpetuate feelings of hostility the public feels
toward government agencies. For example, the experiences of the records
requesters in this study showed that records custodians with hostile or rude
attitudes toward them left them feeling mistreated.
Inconsistent fees charged
The data from this study also showed that their were inconsistencies in the way
records custodians levied fees for photocopying records. While most records
custodians provided the crime statistics free of charge, some custodians
estimated that it would cost requesters $200 for the crime statistics. Records
custodians attributed the most excessive fees to the use of computers to access
the crime statistics. However, the crime statistics were records that should
have been easily accessible by computer because the document already existed -
custodians should have been able to search and retrieve the records more
efficiently with the aid of a computer than they would have been able to
retrieve records stored on paper. The crime statistics were records that each
law enforcement agency had already put together for the Florida Department of
Law Enforcement.
Florida law authorizes custodians to charge extra fees for extensive use of
information technology resources, such as data processing equipment, supplies,
personnel, resources, maintenance or training.[139] A trial court defined
"extensive" as taking more than 15 minutes to "locate, review for confidential
information, copy and refile requested material" for public records stored in a
paper format.[140] There are no guidelines for charging extra fees to make
copies of computerized records.
Possibly because there are so few guidelines for custodians for charging fees
for electronically stored records that requesters are being treated
inconsistently. The crime statistics were pre-existing records that records
custodians could have provided for 15 cents per page. Instead, some custodians
told records requesters that custodians would need to do extensive research to
find the record because it was stored electronically. This is either a result
of records custodians not knowing what records they have in their care, or
custodians disregarding the records law.
Solutions
There are two possible solutions to the problems of inaccurate responses to and
inconsistent handling of public record requests: increased education for
records custodians about Florida's Public Records law and increased research to
learn about custodians' behaviors and to verify that custodians are lawfully
carrying out open government provisions.
Increased Education
Records custodians should be better educated about Florida's Public Records Law
and well-versed in the records in their care, not only to correctly grant or
deny access to the records, but also to use the most expedient and
cost-effective avenue for providing records. Records custodians must be some of
the most knowledgeable employees of state agencies in the Public Records Law
because they are the people who control access to Florida's government
information.
This study shows that records custodians are misinforming records requesters
about the availability of records and blocking access to government information.
Education about Florida's Public records Law could be the best antidote to
records custodians' unlawful behaviors. Education could also help records
custodians learn what records in their care are available for public inspection,
therefore making it easier and more expedient for records custodians to provide
those records.
Educating records custodians about open government laws could be accomplished
by implementing a required state-sponsored seminar that records custodians must
take regularly. Currently, the Department of State sponsors occasional seminars
in Florida's Open Meetings and Public Records laws for records managers, but
attendance is optional. Employers at state agencies could also oversee in-house
seminars, rather than waiting for someone to come from Tallahassee, to ensure
that their employees are properly trained in administering access provisions.
There are at least three agencies available now to citizens interested in
learning more about Florida's Public Records and Open Meetings Laws.
The Attorney General's Office occasionally participates in seminars on open
government laws in Florida. There is no state funding for the office's
seminars, so it relies on a sponsoring group, such as state agencies, media
groups and local government agencies, to pay for the costs.
The Attorney General's Office also established a free, voluntary mediation
program to resolve disputes about public records or open meetings.[141] In
1995, the office received more than 1,555 inquiries about open government
issues: 602 from citizens and 953 from government agencies.[142]
The First Amendment Foundation, travels around the state to give Sunshine
Seminars during the fall. The nonprofit organization charges an admission fee
of $25, which includes a one-year membership to the foundation and a current
Government-in-the-Sunshine Manual. These seminars are often sponsored by
newspapers, who pay for
the cost of running the seminars, but members of the public and government
agency employees are welcome to attend.
The Brechner Center for Freedom of Information sponsors seminars and responds
to queries from citizens and government agencies who want information about
Florida's open government laws. The center, a unit of the University of
Florida's College of Journalism and Communications, is relied upon by
journalists, citizens and public officials for help in interpreting freedom of
information issues in Florida and across the nation. The center also sponsors
research, produces publications and takes part in a graduate program in media
law.
The state of Florida should provide records custodians with an expert to
contact when they have questions about interpreting the laws to make sure that
no citizen is denied access to government information because a custodian is
unsure about whether a record is available for public inspection. This could be
implemented by formally appointing a member of the attorney general's staff
and/or an attorney within the county or municipality to answer calls from
records custodians.
Increased research necessary
The literature review in this study showed that it is rare for access laws to
be studied from a social science perspective to test how the laws are
functioning. This type of research, in which records custodians responses to
requests in any of the state's public agencies are evaluated, must be encouraged
because it can be used to correct unlawful practices by records custodians. It
can also be used to educate members of the public, records custodians and
legislative representatives about the whether current open government laws are
effective. This study, as well as the studies in the literature review, showed
that public records laws are not functioning effectively for citizens' access to
government information. While this study focused on law enforcement agencies,
increased research is necessary to evaluate all government agencies to verify
compliance with open government laws.
However, a troubling aspect of the information collected for this study is that
law enforcement agencies, which are responsible for upholding the law, are
denying access to the public information they hold. Therefore, increased
research into law enforcement agencies would be beneficial for understanding why
these agencies are refusing to comply with public records laws. Two of the
examples of research described in Part II of this study that evaluated the
behaviors of records custodians in law enforcement agencies showed that law
enforcement agencies often denied access to records. Both of these studies used
methodologies similar to the one used here. Students at Brown University and
the University of Rhode Island attempted to collect records from government
agencies in 40 Rhode Island cities and towns. Their data showed that law
enforcement agencies were the least compliant with the state's public records
law.[143] The Evansville (Indiana) Courier published a five-part series that
used personnel from seven newspapers in the area to attempt to collect public
records from government agencies in 92 counties. The
requesters in the Indiana study also found that law enforcement agencies were
the most likely of all the government agencies to deny access to public
records.[144]
The Rhode Island and Indiana studies, combined with the data from this Florida
study, show that more research into whether law enforcement agencies comply with
public records laws would be valuable. Citizens should be able to trust that
their law enforcement agencies will comply with state laws. Further research
would shed light on whether law enforcement agencies are doing so. Such
research would not only educate citizens on the effectiveness of their law
enforcement agencies, it would educate law enforcement officers on the
importance of complying with open government laws.
Summary
It is incumbent on both the government and citizens to ensure that laws
granting access to government information are properly carried out. Citizens'
rights to government information cannot be compromised. A common theme in
political thought has centered on public officials' tendencies to abuse their
powers.[145] First Amendment Scholar Vincent Blasi said that the values of free
speech, free press and free assembly can serve as checks on such abuses.[146]
By extension of that thought, access to government information can also act as
an effective check on government's abuses of power. Therefore, citizens' access
to government information should be well-guarded. This study shows how research
can guard the right to access government information by showing whether access
laws are being carried out lawfully.
[1] See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of
the People at 76 (1960), which states generally that it is the people's
responsibility to use all relevant information to make responsible political
choices.
[2] 2 Alexander Meiklejohn, Free Speech and its Relation to Self-Government
(1948).
[3] See Vincent Blasi, The Checking Value in First Amendment Theory, 3 American
Bar Foundation Research Journal 522 at 529.
[4] The public was not allowed access to the meetings of the Constitutional
Congress. See Daniel Hoffman, Governmental secrecy and the founding fathers : a
study in constitutional controls (1981).
[5] Letter from Thomas Jefferson to John Tyler, June 28, 1804, in Andrew
Lipscomb, The Writings of Thomas Jefferson at 33-34 (1905).
[6] See 5 USCA 552 (1994).
Upon signing the Freedom of Information Act, Lyndon Johnson said "_a
democracy works best when the people have all the information that the security
of the nation permits. No one should be able to pull the curtain of secrecy
around decisions which can be revealed without injury to the public interest.
(Availability of Government Records and Information: President's Statement Upon
Signing Bill, 2 Weekly Comp. Pres.Doc. 895. (July 4, 1966))
[7] See Ala. Code 36-12-4-, -41; Alaska Stat. 09.25.100(1993); Ariz. Rev. Stat.
Ann. 39-121 (1985); Ark. Code Ann. 25-19-101(1993); Cal. Gov't Code 6250 (West
1994); Colo. Rev. Stat 24-72-201(1996); Conn. Gen. Stat 1-15(1993); Del. Code
Ann. Tit. 29-10001(1991); Fla. Stat. CH. 119.011(1995); Ga. Code Ann. 50-18-70
(1996); Haw. Rev. Stat. 92F(1992); Idaho Code 9-301(1990); Ill. Ann. Stat. CH.
5-140; Ind. Code 5-14-1 through 10(1993); Iowa Code 22.1 (1997); Kan. Stat. Ann.
45-215 (1993); Ky. Rev. Stat. Ann 61-870(1994); La. Rev. Stat. Ann. 44:1(1982);
Me. Rev. Stat. Ann. Tit. 1-401 (1993); Md. Code Ann. Stat. Gov't 10-611(1993);
Mass. Gen. Laws Ann. Ch.4-7(1994); Mich. Comp. Laws. Ann. 15231 (1994); Minn.
Stat. 13.01(1993);Miss. Code Ann. 25-61-1 through 10; Mo. Rev. Stat
610.010(1993); Mont. Code Ann. 2-6-101(1993); Neb. Rev.Stat. 84-712.01(1994);
Nev.Rev.Stat. 239.006(1993); NH Rev. Stat. Ann. 91-A(1990); NJ Stat. Ann.
47:1A-1(West 1994); NM Stat. Ann. 14-2-1(1994); NY Pub. Off. Law 84 (1988); NC
Gen. Stat 132(1993); ND Cent. Code 44-04-18(1978); Ohio Rev. Code Ann.
149.43(1993);Okl. Stat. Tit. 51, 24A(1991); Or. Rev. Stat. 192.410 (1993); 65
Pa. Cons. Stat. Ann 66.1 (1992); RI Gen. Laws 38-2-1 (1990); SC Code Ann.
30-4-10 (1991); SD Codified Laws Ann. 1-27-1 (1994); Tenn. Code Ann.
10-7-503(1996); Tex. Gov't Code Ann. 552.0222 (1995); Utah Code Ann.
63-2-103(1993); Vt. Stat. Ann. Tit. 1. 315(1985); Va. Code Ann. 2.1-3-340
(1994); Wash. Rev. Code 42.17.020(1992);W.Va. Code 29B-1-1(1993); Wis. Stat.
19.31(1992); Wyo. Stat. 16-4-201(1982).
[8] The legal research methods were employed in this study to understand the
existing Florida Public Records Law. Statutes, cases and attorney general
opinions were analyzed to provide an overview of the legal issues.
Qualitative research methods were necessary to understand the practical
aspect of Florida's Public Records Law - how the law is working, information
that legal research cannot provide. The research in this study could be
described as a phenomenological inquiry, which is an attempt to understand the
structure and essence of an experience. See Thomas R. Lindloff, Qualitative
Communication Research Methods 32-22 (1995), Michael Quinn Patton, Qualitative
Evaluation and Research Methods 71 (1990), Juliet Corbin, Basics of Qualitative
Research 100 (1990).
[9] Both classes are required for most majors in the University of Florida's
College of Journalism and Communications in Gainesville, Florida.
[10] There are 67 counties in Florida. Students visited 28 of them.
[11] The records requesters were told, "According to Florida law, public
records include all information made or received by an agency unless
specifically exempted by law. Fla. Stat. 119.011 defines public records as '
all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of physical
form, characteristics or means of transmission, made or received pursuant to law
or ordinance or in connection with the transaction of official business by any
agency."
[12] The records requesters were told, "Florida law allows any person,
regardless of age or citizenship, to have complete access to all nonexempt
government records and documents." Art. I, Section 24(a) Florida Constitution.
[13] The records requesters were told, "If a custodian asserts that a document
is confidential and exempt, he or she is required to state the basis of the
exemption, including the statutory citation of the exemption. That must be
furnished in writing if requested. If the custodian finds that part of the
requested record is removed or blacked out, the remainder of the document must
be presented for public inspection. A custodian must produce a requested
document in full, regardless of size, number of pages or specificity of
request." Fla. Stat. 119.07(2)(a).
[14] 17 They were not coached to answer in this way - this was the response
they thought of on their own.
[15] If there had been any questionable or unlikely responses from records
requesters, calls would have been made to the law enforcement office in
questions. As all of the data records requesters collected included photocopies
or other verifiable information about records custodians' responses, no calls
were made.
[16] 20 For the purposes of this study, the term provisions in this context
will mean statutes, cases and attorney general opinions.
[17] Ch. 5942, @1, 1909 Fla. Laws 132, 132.
[18] 22 See Fla. Stat. 119.011(1).
[19] 23 See News-Press Publishing Company v. Lavon Wisher, 345 So. 2d 646 at
650 (Fla. 1977). In this case, the court said Florida encourages open access to
public records, even if that access may prove embarrassing.
See also Wait v. Florida Power and Light Co., 372 So. 2d 420 (Fla. 1979) in
which the court said that public records as defined in Fla. Sta. 119.011(1) are
open for inspection unless specifically exempted.
See also Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379
So. 2d 633 at 638 (Fla. 1980), in which the court interpreted the definition of
public records to include "any material prepared in connection with official
agency business which is intended to perpetuate, communicate, or formalize
knowledge of some type."
[20] See Fla. Stat. 119.01.
[21] See Fla. Stat.. 119.01 According to this section, "all state, county, and
municipal records shall at all times be open for a personal inspection by any
person." Until 1975, there was a requirement that access be granted only to
citizens.
[22] See id. Also, the court held in News Press Publishing Co. v. Gadd that
all documents are open to the public unless specifically exempted. 388 So. 2d
276 (Fla. 2d DCA 1980).
[23] 28 Fla. Stat. 119.011.
[24] 29 See Fla. Stat. 119.011(2).
[25] 30 See id.
[26] See Florida Constitution, Article I, Section 24(c). When enacting
exemptions to the Public Records Law, the Legislature must "state with
specificity the public necessity justifying the exemption and shall be no
broader than necessary to accomplish the stated purpose of the law."
[27] See Tribune Company v. Canella, 458 So.2d 1075 at 1077 (Fla. 1984).
[28] 33 See Fla. Stat. 119.07(1)(a).
[29] See id. This section states that "every person who has custody of a
public record shall permit the record to be inspected and examined by any person
desiring to do so, at any reasonable time, under reasonable conditions, and
under supervision by the custodian of the public record or the custodian's
designee."
See also Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA
1998). In this case, the appellate court said that just because someone has
possession of a record, it does not mean that person is the records custodian.
The court said that the records custodian is the person statutorily designated
in Fla. Stat. 119.07(1)(a) to maintain custody of the document. Anyone else who
has possession of the record is not required to release it if a member of the
public requests it.
See also Puls v. City of Port Lucie, 21 F.L.W. D 1937 (Fla. 4th DCA 1996),
in which the appellate court said that a records request need not be given to
the statutorily designated custodian to state a cause of action for violation of
the public records law.
See also Fritz v. Norflor, 386 So. 2d 899 (Fla. 5th DCA 1980), in which the
court held that every person who has custody of public records is required to
comply with the Public Records Law.
[30] 35 See Fla. Stat. 119.07(1)(a).
[31] 36 See id.
[32] See Florida Attorney General Opinion 75-50.
[33] There is no statutory provision allowing records custodians to require an
explanation of purpose or identification as a condition of access.
See Attorney General Opinion 92-38, which states that records custodians
may not administer such requirements: "There is no requirement in Fla. Stat. 119
that the name of the requestor of public records be revealed or the identity of
any other individual on whose behalf the requestor is acting be revealed."
See Bevan v. Wanicka, 505 So. 2d 1116 (Fla. 2d DCA 1987), which states that
requesters can not be required to divulge their identities as a condition for
access to records. Also, see Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA
1976). "Even though a public agency may believe that a person or group are
fanatics, harassers, or are extremely annoying, the public records are available
to all citizens of the State of Florida."
See generally State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905);
News-Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276 (Fla. 2d DCA 1980);
Salvador v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. 1991); Lorei v.
Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985).
[34] For example, Fla. Stat. 320.05 (1) requires the Department of Motor
Vehicles to withhold access to motor vehicle registration records until the
requester provides positive proof of identification.
[35] See Attorney General Opinion 92-38. See also Bevan v. Wanicka, 505 So. 2d
1116 (Fla. 2d DCA 1987), which states that requesters can not be required to
divulge their identities as a condition for access to records.
[36] See State ex rel. Davidson v. Couch, 156 So. 297, 300 (Fla. 1934), in
which the Court found that a custodian could not require a requester to specify
a book or document to be examined as a condition of access. Requesters may
request records without being completely specific.
See Sullivan v. City of New Port Richey, 529 So. 2d 1124 (Fla. 2d DCA
1988), in which the court affirmed that a request cannot be denied on the basis
of its breadth.
See Salvador v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. 1991),
in which the court said that if a records request is too broad to identify the
records being requested, it is the custodian's responsibility to notify the
requester that more information is needed.
Also, the court in Salvador said that a custodian must produce a requested
document in full, regardless of size or number of pages. However, the custodian
may charge a reasonable service charge for extensive labor involved in filling a
request, in addition to standard copying fees, according to Fla. Stat.. 119.07
(1)(b).
[37] No part of Fla. Stat. 119 prescribes a specific format for requests. See
also Attorney General Opinion 80-57, which states that a request must be honored
regardless if it is made via telephone or in person.
[38] See Tribune v. Canella, 458 So. 2d 1075 at 1077 (Fla.1984).
[39] See id. In the Tribune case, the records custodian was enforcing a
seven-day waiting period before providing personnel files to requesters. The
custodian was using the delay time to allow the subjects of the personnel files
to sit with the requester while he or she accessed the file.
[40] 45 See id. See also Attorney General Opinion 81-12.
[41] See Fla. Stat. 119.07(3)(a).
[42] See id.
[43] 48 See id.
[44] See id.
[45] See State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905).
[46] See Fla. Stat.. 119.07(1)(a).
[47] See id. However, for purposes of this study, this aspect of the law will
not be germane. None of the records requested were certified.
[48] See Attorney General Opinion 90-81.
[49] See Fla. Stat. 119.07(1)(b).
[50] See id.
[51] See id.
[52] 579 So. 2d 267 (Fla. 1st DCA 1991).
[53] Id. at 268.
[54] See id.
[55] See Fla. Stat. 282.303(13).
[56] See Seigle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982), rev. denied, 431
So. 2d 988 (Fla. 1983).
[57] See Fla. Stat. 119.07(3)(b).
[58] See Fla. Stat. 119.011(3)(a).
[59] See Fla. Stat. 119.011(3)(b).
[60] See Fla. Stat. 119.011(3)(d).
[61] See Fla. Stat. 119.011(3). See also Tribune Company v. Public Records,
493 So. 2d 480 (Fla. 2d DCA 1986).
[62] See Fla. Stat. 119.011(3)(c).
[63] See Ross Cheit and Linda Levin, Access To Public Records: An Audit of
Rhode Island's Cities and Towns, March 1998. This study can be accessed at
http://www.brown.edu/Departments/Tabman_Center/ (last visited May 1, 1998).
[64] See id. at 10.
[65] See id.
[66] See id.
[67] See id.
[68] See id. at 72.
[69] See id.
[70] See Staff, Open Records, Closed Doors, Evansville Courier, Feb, 22-26,
1998 at A1. This series is also available online at :
http://courier.evansville.net// (Site accessed May 1, 1998).
[71] See id.
[72] See Pamela Stallsmith, How Public is Public: Whom, Where and What you Ask
Often Determines More Than Law, Richmond Times Dispatch, November 1, 1998 at A1.
[73] See id. at A17.
[74] See id.
[75] See id. Law enforcement offices produced the public records requested 16
percent of the time.
[76] Alachua, Baker, Bay, Bradford, Broward, Clay, Clermont, Collier, Dade,
Duval, Gadsden, Gilchrist, Hillsborough, Indian River, Leon, Marion, Nassau,
Okeechobee, Orange, Osceola, Palm Beach, Pinellas, Polk, Sarasota, Seminole, St.
John's, Union and Volusia counties.
[77] Alachua County may have been the most visited because it was the home
county of the study. Because the students were receiving extra credit for
participation, it would have been unethical to limit the number of participants.
All of the observers who wished to participate had the opportunity, and
therefore no student had an unfair advantage over another.
The observers who attempted to retrieve records in Alachua County said they
had no transportation to other areas in the state. They visited law enforcement
agencies in Alachua County so they could still participate in the study.
The 17 visits in Alachua County were dispersed among eight law enforcement
agencies: Alachua Police Department, Alachua County Sheriff's Office,
Gainesville Police Department, High Springs Police Department, Micanopy Police
Department, Starke Police Department, University of Florida Police Department
and the Williston Police Department.
[78] Seventy-eight observers went to police departments. The agencies were:
Alachua, Apopka, Boca Raton, Clearwater, Clermont, Coral Gables, Coral Springs,
Delray, Delray Beach, Dunellon, Fernandina Beach, Gainesville, High Springs,
Hollywood, Indian River, Jacksonville, Jacksonville Beach, Jupiter, Kissimmee,
Lake Mary, Lawtey, Lighthouse Point, Longwood, Maitland, Metro-Dade, Miami,
Micanopy, Naples, Neptune Beach, Ocala, Ocoee, Okeechobee, Orange, Orlando,
Panama City, Panama City Beach, Pembroke Pines, Plant City, Plantation,
Lakeland, Port Orange, St. Augustine, St. Petersburg, Sanford, Starke,
Tallahassee, Tampa, University of Florida, University of South Florida, West
Palm Beach, Waldo, Williston and Winter Park police departments. Most of these
received one visit each.
However, the following received more than one visit from observers (The
number following the agencies corresponds to the number of visits it received.):
Coral Springs Police Department, 3; Gainesville Police Department, 3; Hollywood
Police Department, 2; Indian River Police Department, 2; Lake Mary Police
Department, 2; Metro-Dade Police Department, 2; Ocala Police Department, 2;
Plantation Police Department, 2; St. Augustine Police Department, 2; St.
Petersburg Police Department, 3; Starke Police Department, 6; Tallahassee Police
Department, 4; Tampa Police Department, 2; West Palm Beach Police Department, 2;
Waldo Police Department, 5; Winter Park Police Department, 2.
Not all of these visits were to the same physical location. For example,
the Metro-Dade visits were to two different offices in two different sections of
the county.
[79] The agencies were: Alachua County, Baker County, Clay County, Collier
County, Duval County, Gadsden County, Gilchrist County, Hawthorne, Hillsborough
County, Lake Butler, Marion County, Okechobee County, Orange County, Pinellas
County, Polk County, Sarasota County, Union County and Palm Beach County
sheriff's offices. Twenty-five observers visited the 18 offices. Alachua
County, Marion County and Jacksonville's sheriff's offices were the only ones
with more than one observer to visit each.
[80] See Fla. Stat. 943.045.
[81] Fla. Stat.. 119.011(4)_"Criminal justice agency" means any law enforcement
agency, court, or prosecutor. The term also includes any other agency charged by
law with criminal law enforcement duties, or any agency having custody of
criminal intelligence information or criminal investigative information for the
purpose of assisting such law enforcement agencies in the conduct of active
criminal investigation or prosecution or for the purpose of litigating civil
actions under the Racketeer Influenced and Corrupt Organization Act, during the
time that such agencies are in possession of criminal intelligence information
or criminal investigative information pursuant to their criminal law enforcement
duties. The term also includes the Department of Corrections.
[82] Fifty-five of the 78 records requesters who visited police departments
received access to the records.
[83] Fourteen of the 25 records requesters who visited sheriff's offices
received access to the records.
[84] Sixty-nine of the 103 observers obtained the crime statistics. Six of the
records requesters did not take the records, although they were technically
granted access. Three received incomplete records, and three could not afford
the fees records custodians charged for copying or researching the crime
statistics. These six requests were included in the figures for access granted.
[85] Thirty-four of the 103 observers could not obtain access to the crime
statistics.
[86] A records custodian is the elected state, county or municipal officer
responsible for maintaining the office holding public records. See Fla. Stat.
119.07(1)(a).
[87] Twenty of the 35 denials were because the records custodians said they
were not authorized to provide the records.
[88] Fla. Stat. 119.07(10(a) states: "Every person who has custody of a public
record shall permit the record to be inspected and examined by any person
desiring to do so, at any reasonable time, under reasonable conditions, and
under supervision by the custodian of the public record or the custodian's
designee.
[89] 678 So. 2d 514 (Fla. 2d DCA 1996). In this case, the appellate court
reversed a trial court's ruling that allowed a public records lawsuit to be
dismissed because the plaintiffs in the case were not the specifically
designated records custodians for the public record in question. The court said
that "Whether or not the custodian designated under section 119.021 was served
with a records request is not germane to this lawsuit."
[90] 678 So. 2d 514 (Fla. 2d DCA 1996).
[91] Six of 35 denials were because records custodians thought the records were
not available to the public.
[92] See Fla. Stat. 119.07(3)(a).
[93] See Fla. Stat. 119.011(3)(c).
[94] Orange County Sheriff's Office, Tallahassee Police Department,
Jacksonville Police Department.
[95] Four records custodians, in the Gilchrist County Sheriff's Office, in the
Metro-Dade Police Station 6, in the Ocoee Police Department and in the Winter
Park Police Station, wanted the requesters to call ahead for records requests.
[96] Two records custodians required requesters to come to the offices in
person to make the request. In these two cases, the requesters had called ahead
to try to have the records ready when they arrived at the agencies.
One records custodian said the agency did not have crime statistics, and one
required the request to be put in writing.
[97] Apopka Police Department, Tampa Police Department, Delray Beach Police
Department, West Palm Beach Police Department.
[98] Tallahassee Police Department, Panama City Beach Police Department,
Orlando Police Department, Alachua County Sheriff's Office, Alachua Police
Department.
[99] The requester visited the Starke Police Department. The records requester
said the records custodian told him that members of the press could get access
to records without written requests.
[100] The last part of the recording sheets said, "On the back of this page,
detail your experience retrieving this public record."
[101] Eleven requesters called their experience getting public records pleasant
or positive.
[102] The requester visited the St. Petersburg Police Department.
[103] The requester visited the Jacksonville Sheriff's Office, planning and
research.
[104] The requester visited the Orlando Police Department.
[105] The requester visited the Polk County Sheriff's Office.
[106] The requester visited the Gainesville Police Department.
[107] The requester visited the Okeechobee City Police Department.
[108] The requester visited the University of Florida Police Department.
[109] The requester visited the Ocoee Police Department.
[110] The requester visited the Lake Butler Sheriff's Office.
[111] The requester visited the Winter Park Police Station. Requester
attempted to get the record on a Friday afternoon at 4:30 p.m.
[112] The requester visited the City of Starke Police Department.
[113] The 79 records custodians who asked questions asked and average of 2.24
questions.
[114] Sixty-three of the 79 custodians who asked questions asked about the
requesters' reasons for needing or intended uses for the records.
[115] The requester visited the Delray Beach Police Department.
[116] The requester visited the Kissimmee Police Department. The requester
said, "She asked me what I needed it for, but she said I didn't have to tell
her."
[117] The requester visited the Indian River County Police Station.
[118] Forty-four of 79 records custodians who asked questions asked for
identifying information.
[119] And all of the records requesters answered the question and none of the
eleven records custodians denied access on the basis of the requesters'
responses.
[120] These were not limited to Gainesville, Fla.
[121] Forty-three of 79 records custodians who asked questions asked clarifying
questions.
[122] Fifty-seven of the 68 who accessed the records received copies for free.
[123] The requester visited the Starke Police Department.
[124] The requester visited the Plantation Police Department.
[125] The requester visited the Orlando Police Department.
[126] Id.
[127] The requester visited the Orlando Police Department.
[128] The requester visited the Hollywood Police Department.
[129] The requester visited the Plantation Police Department.
[130] Florida Constitution, Article 1, Section 24.
[131] 18 Government-In-The-Sunshine Manual 9 (1996).
[132] Florida Constitution, Article 1, Section 24.
[133] See Fla. Stat. 119.011(3)(c) states that all information that is not
criminal investigative or intelligence information should be released. This
information includes, but is not limited to "the time, date, location and nature
of a reported crime."
[134] See Fla. Stat. 119.07(1)(a).
[135] See Fla. Stat. 119.07(3)(a).
[136] See Fla. Stat. 119.07(1)(a).
[137] See Fla. Stat. 119.011(3)(c).
[138] A custodian may not require that a request be made in writing or in
person - no part of Fla. Stat. 119 prescribes a specific requirement for the way
a citizen must request a public record. Records custodians may not impose rules
or conditions that obstruct records custodians' rights to access public records.
See Attorney General Opinion 75- 50. According to the state attorney
general, a custodian cannot require a requester to show identification unless
there is an express statutory requirement. See Attorney General Opinion 92-38.
There is no such statutory provision for crime statistics.
[139] Fla. Stat. 282.303(13).
[140] Florida Institutional Legal Services, Inc. v. Florida Department of
Corrections, 579 So. 2d 267 (Fla. 1st DCA, 1991).
[141] See Fla. Stat. 16.60 (1995).
[142] 1997 Att'y Gen. Ann. Rep: Open Government Mediation Program 1
[143] See Ross Cheit and Linda Levin, Access to Public Records,: An Audit of
Rhode Island's Cities and Towns, March 1998 at 71. This study can be accessed
at http://www.brown.edu/Department/Tabman_Center/
[144] See Staff, Open Records, Closed Doors, Evansville Courier, Feb. 22-26,
1998 at A1. This series is also available online at http:
courier.evansville.net//
[145] See generally Vincent Blasi, The Checking Value in First Amendment
Theory, 3 American Bar Foundation Research Journal 522 at 529. Blasi cites:
The Politics of Aristotle 101 (Ellis trans. London: Dent and Sons 1952);
Marsilius of Padua, The Defender of Peace, vol. 2, The Defender of Pacis (Alan
Gerwith trans. New York: Columbia University Press, 1956); Charles Luois
Montesquoieu, The Spirit of Laws 179 (Worcester: Isaiah Thomas, Jr. 1802);
James Madison, The Federalist No. 51 in Jacob E. Cooke, ed., The Federalist
347-53 (Middletown, Conn.: Weslyan University Press, 1961); John Stuart Mill,
Considerations on Representative Government 243-245 (Oxford University Press,
1912); Karl Raimond Popper, The Open Society and Its Enemies 122-25 (5th ed.
Rev. Princeton, N.J.: Princeton University Press, 1966).
[146] See id.
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