Florida Commission on Open Government Reform
Sarasota public hearing
Testimony of David Gulliver
Reporter, Herald-Tribune, Sarasota, Fla.
February 12, 2008

My name is David Gulliver. I am a reporter at the Herald-Tribune and have worked in newspapers in five states. I have filed at least 100 Freedom of Information requests in my career and have helped the Reporters Committee for the Freedom of the Press write a book on electronic records access.

In preparation for this hearing I interviewed several veteran investigative reporters from across the country and reviewed a comprehensive study of Freedom of Information appeals and enforcement at the state level.

Denial of records is a serious problem. Time and again, Herald-Tribune reporters have requested what should be public documents and have been flatly refused or seen them unreasonably redacted with no citation of laws justifying the gutting of the document.

Attached to my testimony is a page from results of one of my FOI requests, for the records of an inspection at a local hospital. It reads, in part:

“Complainant works in (redacted). The (redacted) fails delay. The picture goes out, the (redacted) and it’s very dangerous. Patients are getting a lot more (redacted) than they need or (redacted) may be putting (multiple redactions).”

I requested that the agency review the redactions and a spokesman said it believed the redactions were proper.

In another case, the Herald-Tribune asked for the customer database from Manatee County Utilities. The county refused on the grounds that turning over the raw data would reveal proprietary information of the company that built the database.

Despite overwhelming evidence from FS 119, the Sunshine Manual and attorney general’s opinions, the county would not turn over the data, and would not provide a usable copy of the table layouts showing what data was even stored in the database. After months of negotiations, the county said the only way it would turn over the information was if we sued.

When this happens, our primary option is to go to court, which is expensive, adversarial and slow. By state law, Florida has a system for FOI appeals, but it is among the weakest in the 22 states with such systems.

Florida’s system is a mediation program in the Attorney General’s office. Its key flaw is that it is voluntary. Both parties must agree to participate; otherwise there is no mediation. As one longtime Florida reporter told me: “Mediation doesn’t count as a solution if the other side has to agree to participate.”

Its second flaw is that any mediation results are non-binding. Even if both sides consent to mediation, at the end of the process, the government agency is not bound by the ruling and you have to go to court anyway.

For that reason, few reporters use the system, as its statistics show. In 2007, it handled 82 cases, of which 60 were resolved. Two remain open.

Compare that with Texas, where FOIA dispute resolution also is handled in the Attorney General’s office, but where its rulings are binding. Texas handled 16,179 cases in 2006, ruling on 15,160.

To be fair, two Florida reporters told me that previous attorney general staff could informally get results. A call from the attorney general’s office for a mediation request could cause an agency to reconsider a denial. But both noted that the informal process doesn’t work as well these days.

Research and conversations with other reporters point to three states with better solutions, each using a different model.

Connecticut has been a model for other states. The state’s FOI Commission has binding authority and a tiered process. Complaints first go to a mediator. If mediation fails, it goes to a hearing before a hearing officer. The hearing officer’s ruling goes to the full commission for approval. Decisions can be appealed to the courts. It handles about 650 cases a year, with about 3 percent being appealed.

New York has had a FOIA Commission, with advisory power, since 1974. Its director is regarded as among the top FOI experts in the country. The commission takes in more than 6,000 cases a year and either refers to existing legal opinions or writes new opinions.

Its opinions are non-binding, but because of the commission’s long track record and reputation, they often are accepted by both parties and the courts.

In Texas, the attorney general’s office has authority over open records requests. As one longtime reporter, and fellow at Reporters Committee for the Freedom of the Press, put it:

“Texas is the best of any state I have worked on so far. If an agency wants to deny access to records, they are required to basically get permission from the attorney general’s open records division.”

By law, agencies must get an opinion from the attorney general before withholding records. They must provide the attorney general with the records or a sample, and label them with specific citations of law permitting exemption from disclosure. The statute specifically forbids agencies from asking the attorney general to withhold records previously ruled to be public. The records are presumed public if the agency does not follow the process and meet statutory deadlines, such as requesting the opinion within 15 days of the public’s request.

Reporters say one downside is that agencies sometimes use that 15-day period as a stalling tactic. Another concern, cited by reporters in some of the eight states where the attorney general’s office oversees FOI appeals, is the potential conflict of interest when the attorney general might have to represent an agency in a FOI conflict.

One state that recently changed its FOI appeals process is my former home state, Virginia, which has a much worse reputation for open records law than Florida.

When Virginia looked at starting a FOI appeals system, it opted for a two-person commission housed in the legislature. It takes in questions on FOI and open meetings, reviews law and writes advisory opinions, and travels to educate state and local government on FOI and open meetings issues. FOI advocates hope it can evolve into a respected system like New York’s.

All of these programs offer strong, working examples for improving Florida’s system. Thank you for your time.

Testimony before Commission on Open Government Reform in Sarasota