Florida Commission on Open Government Reform
Sarasota public hearing
Testimony of Chris Davis
Senior Editor/Investigations, Herald-Tribune, Sarasota, Fla.
February 12, 2008

My name is Chris Davis. I am the Investigations Editor for the Sarasota Herald-Tribune. I’ve been a reporter and editor in the state of Florida for more than a decade and have been deeply involved in the First Amendment Foundation’s public records audits as well a numerous investigative projects that have relied on electronic public records.

Every day in my job I work with journalists who rely on Florida’s strong public records law to perform their role as public watchdog. Nearly as often I hear complaints that the records law is not working. Nowhere is this more evident that when trying to obtain electronic records.

Florida Statute 119 admonishes government officials that they must consider access to public records when they design and create databases. But the reality is that many do not. In case after case, journalists working with electronic records find that state and local government agencies have spent large sums of money creating data management systems that limit access to public records or drive up the cost of reviewing them to hundreds or thousands of dollars.

As governments rely more and more on computers and less on paper, public access should get easier. When public information was co-mingled on paper with protected information, there was no way to avoid time-intensive redaction. Public employees were required to read each page and physically remove protected parts. With a little planning, the redaction process can become almost instantaneous when records are kept electronically. Unfortunately, such planning has been conspicuously absent.

The shift towards storing information in databases should have created a “Golden Age” of public access. If government agencies design their database correctly, they can easily separate public information from protected information. They can do this by grouping protected information – Social Security numbers, or the addresses of law enforcement officers, for example – into one place. Then, when a member of the public requests access to the database, a few mouse clicks can redact all of the protected information, even if there are millions of addresses that need to be deleted.

This only works, however, if a database is designed properly. When government officials input information into the database, the protected information must be corralled into one place. Or a clear flag must be attached to the protected information so that it can be identified later.

None of this is difficult to do as long as the person creating the database plans for it. It is a simple matter to make sure all Social Security numbers are typed in one place and one place only.

Public records advocates and the Florida Legislature recognized these issues and took steps to ensure that government agencies would consider them.

From F.S. 119

(2)(a) Automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law.

But real-world practice has not always kept up with the law.

In early 2005, the Herald-Tribune asked the Department of Education for a copy of the database it uses to track misconduct cases against certified teachers. The newspaper needed the database to determine how long it took to investigate teachers, how many teachers were abusing students and if punishments were fitting the crime. The vast majority of the information in the database is not exempted by Florida’s public records law. But it took newspaper reporters almost two years of rigorous negotiation to get the data at a reasonable price.

At first Department of Education attorneys said the database could not be provided because a small number of the cases in the tracking database involved criminal charges that had been expunged. (See attached letter marked exhibit A and story marked Exhibit B.) State law requires teachers to reveal expunged criminal charges, and in return promises to keep those allegations secret. Normally, this would not be an issue. If the Department of Education had flagged expunged records in the database it could have easily redacted those electronically and given us the rest of the data. Even someone with just a basic understanding of databases could have done the redaction in a few minutes. But department officials said they had not done a diligent job keeping track of which charges involved expunged records. As a result, the department gave the newspaper a bill for $20,000 and said it might take months if not a year to go through by hand and determine which records had been expunged.

This is not a unique story. Law enforcement agencies routinely struggle to provide electronic databases of arrests because the data contains fields with information on victims. The protected information is often typed into “summary” fields that also contain public records, in essence contaminating information that is required to be open to the public. The Sarasota Police Department cited this exact issue when the Herald-Tribune asked for a copy of the database it maintains to track arrests. Redaction fees plus the cost of programming by an outside consultant drove the cost to more than $7,000.

In 2005, the Herald-Tribune asked Charlotte County Utilities, a public water utility, for an electronic copy of its customer database. The goal of the request was to examine customers using large amounts of water during ongoing watering restrictions brought on by drought. Charlotte County refused at the time to turn over the records because it had not flagged the accounts of customers, including police officers, whose addresses are exempted from public records law. At the time, the newspaper explained how this violated public records law. But a year or two later, when the newspaper renewed its previous request, the county still had not created a system for flagging protected addresses.

Also in Charlotte County, the Herald-Tribune asked for a database of all county employees, including their salary, title, contact information and address. The request was refused because county officials said they had no way to remove protected information, including Social Security numbers and the addresses for employees whose job title keeps such information secret under state law. (See attached exhibit C.)

Solutions

We know from talking with citizens and journalists around the state that the kinds of issues we face getting data are widespread and in many ways getting worse.

We must recognize that access to electronic data is and will always be critical for an informed public and a free press. To protect and improve access to electronic records, we need new laws and policies that introduce accountability to government agencies that ignore public records laws when they create databases. It must be clear that government agencies are responsible for designing databases in a way that allows easy access to public information. It must be clear that mixing protected information with public information cannot be an excuse not to provide public records.

The only way to ensure this is to require government agencies to pay the cost of redacting protected information from their database records. This requirement should be stated clearly and unequivocally. Introducing this cost will provide a financial incentive for government agencies to plan for public records access.

Testimony before Commission on Open Government Reform in Sarasota