Audit: Agencies handle public record requests differently

By: Topher Sanders

A statewide audit by Florida newspapers shows most local and state agencies respond efficiently – and in some cases thoroughly – to simple public records requests, though the cost for similar records varied widely and some agencies failed to respond at all.

Throughout the last year, some newspapers and private citizens have encountered jaw-dropping fees for records such as a $399,000 quote to search a year’s worth of a South Florida police agency’s emails for gay slurs, a $45,000 estimate for a database of complaint and disciplinary records involving North Florida police offices, and a $700 estimate for Ebola reports in a state where there were no documented cases of Ebola.

Sometimes it’s not the cost – but the time it takes to produce the records – that raised concerns.

The State Attorney in the 4th Judicial Circuit serving the Jacksonville area took four months to produce a simple phone directory and Broward County Sheriff’s Office said it would take four years to fulfill the gay slur email search.

While agencies are often used to responding to requests from media, members of the public throughout the state also can encounter large fees and long wait times, said Barbara Petersen, president of the Tallahassee-based First Amendment Foundation.

She pointed out citizens often don’t have the resources of a media organization to fight for the records.

“And it’s become more and more of a problem,” she said. “You guys made public records requests as reporters, the average citizen typically has a different response, frequently enough to be of concern. We have seen over the years a dramatic increase of the cost of gaining access to public records and an increase in the time for an agency to produce those records.”

An appellate court awarded local citizen watchdog Curtis Lee more than $75,000 after a dispute with the Jacksonville Police and Fire Pension Fund about public records costs after he was told in 2009 it would cost him $326 before he could simply review documents that were sitting on a table at the pension fund office. The ruling is being appealed to the Florida Supreme Court.

Peterson said she always assumed that when government agencies became mostly computerized it would become easier and cheaper for the public to obtain records. Instead she’s seen it become more difficult and more expensive.

But Peterson said she couldn’t say the high fees and long wait times were an intentional strategy to block the public’s access.

“I can’t say that it’s a strategy,” she said. “But it’s certainly an effective mechanism to thwart our constitutional rights to access. It’s a barrier.”

Frank Denton, editor of the Times-Union and president of the Florida Society of News Editors, had similar concerns.

“Whether the high charges and long delays are deliberate attempts to block reasonable public – and press – access or to generate revenue for the office, they certainly violate the spirit and purpose of the law, which is to allow citizens to inspect their governments,” Denton said. “Public agencies should have built into their staffing and functions the ability to deal with and respond to the public.”

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As part of the audit, 10 Florida newspapers reviewed how agencies throughout the state respond to records request. The newspapers asked for the same records in each part of the state from police agencies, school superintendents, mayors, county administrators and elected state attorneys –paying close attention to cost and delivery time estimates.

A similar audit was done for state agencies.

The audit is a nonpartisan, national effort to highlight the importance of the public’s right to inspect and obtain public records. The public’s access to records such as emails and investigative reports is one mechanism citizens have to hold government accountable. The two-week campaign was initiated by the Florida Society of News Editors with help from the First Amendment Foundation.

The exercise showed that agencies throughout the state vary widely on whether they charge and how much they charge for similar types of records. A lot of the cost difference was driven by how long each agency said it would take to go through records to redact potentially exempted material.

For instance, a request for a week’s worth of Duval County Superintendent Nikolai Vitti’s emails — about 3,400 of them — from early January would cost a member of the public an estimated $1,485. But for about 2,000 of Lee County Superintendent Nancy Graham’s emails from the same January week the cost would be $438.90.

The key difference is how long the districts said it would take to go through the emails. The Duval district estimated it could review about 53 emails an hour at $21.53 an hour, whereas Lee officials estimated they could go through about 121 emails an hour for $26.60 an hour.

“That’s what I’m talking about, the lack of efficiency,” Peterson said. “Why does it take 64 hours to review those emails? It’s absurd.”

Vitti said in an email that each if his emails average about two pages and that the time quoted to the Times-Union was appropriate given the amount of documents requiring review. He also said his staff keeps time logs on how long they work on records and would refund money if the review and redactions took less time than quoted.

Peterson suggested that agencies use a coding system on the front end to identify sensitive emails, that would make it review and redactions easier if the records are ever requested.

Of the 45 Florida agencies or public officials contacted by newspapers, all but a few responded quickly and some even provided records immediately and for free. Only three officials or agencies did not respond or acknowledge some portion of the requests within two weeks.

Those three agencies or officials were the Okaloosa County Administrator, the Walton County Administrator and the 4th Circuit State Attorney’s Office which serves the Jacksonville area. After the Times-Union questioned why the State Attorney’s Office hadn’t acknowledged receipt of the request, the office responded, though the records and cost estimate weren’t immediately available.

Another handful of agencies acknowledged receipt of the request but failed to provide the records or an estimate of cost and hourly rate within two weeks.

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Agencies are often inundated with public records request.

The Jacksonville Sheriff’s Office receives large volumes of requests from citizens and local media on a daily basis for records and reports about crimes and accidents in the community, and those inquiries are largely handled quickly and without delay.

But at times when a request is about the internal workings of the police agency cost climb and the Times-Union has found records can be harder to obtain. In June the Times-Union requested copies of use of force reports from the Jacksonville Sheriff’s Office. These are the reports generated by the agency after it reviews whether an officer followed all laws and policies during the shooting of a suspect.

The paper was originally told the request would cost $71 an hour and that it would take about two and half hours to review and redact each report. That would have cost about $887.50, or $177 per report, for five reports.

After the Times-Union questioned the costs, the price was dropped to $46.90 an hour and review time was decreased to two hours a report. The paper paid $469 for five reports.

With that, it cost the public about $94 for each use of force report in Jacksonville, which reflect a process that up until a few years ago was open to the public.

The Fort Lauderdale Police Department charges just about half as much for their use of force reports as the Jacksonville Sheriff’s Office — ringing up around $40 a report, according to the Sun Sentinel.

And the St. Petersburg Police Department responded to a request for internal affairs and use of force documents from the Tampa Bay Times by providing the documents for free.

Jacksonville Sheriff John Rutherford legally fought to keep the Response to Resistance Board’s reviews of shootings open to the public, but the local police union was victorious in shutting down free access.

All sheriff’s candidates in the upcoming election recently said that they would be willing to come up with a proactive system that puts use of force and internal affairs documents online for the public to access for free.

One candidate, Jimmy Holderfield, went so far as to say that the cost and delays the public and media experience for those types of records was “by design.”

For another inquiry, the Jacksonville Sheriff’s Office quoted the Times-Union $45,000 for a request the paper made for a copy of the agency’s discipline and complaint database for individual officers. The paper has not pursued the documents.

Jason Parsley, a former president of Florida’s Society of Professional Journalists and the executive editor for South Florida Gay News, made a request last year to have every Broward County Sheriff’s officers emails searched for gay slurs over a five-month period, and he included specific terms.

The sheriff’s office told him it would cost $399,000, take four years and a dedicated staffer.

Peterson said the Broward sheriff’s office may be violating law if it is maintaining its records in a way that requires so much labor to comply with a request such as Parsley’s.

Sometimes there’s a debate on whether records are considered public.

Jacksonville television station First Coast News requested all documents written by or received by Clerk of Court Ronnie Fussell and others in his office since June 1, 2014, related to his decisions not to conduct same sex marriages at the courthouse. Fussell charged $618. The Times-Union partnered with the TV station on the request and paid half the cost.

That fee included $205 for about six minutes of computer processing at 59 cents a second (or $2,124 an hour), where an employee prompts a computer to run a command.

Peterson said the agency can charge for extensive use of agency resources, including IT cost, but she questioned how Fussell’s office arrived at its computer fee rate. She said she doesn’t know of any agency that charges that type of computer processing fee because it must be based on actual cost incurred by the agency.

“How did they figure out how much it cost their computer to run? That’s ridiculous,” she said. “So they are saying that the clerk is spending $17,275.20 a day running their computers? Baloney,” she said.

The Times-Union asked Fussell’s staff in January for a legal explanation of the computer fee. They reported that effective March 2 the office would stop charging the computer processing fee.

Fussell turned over hundreds of documents in response to the request and officials were adamant no more records existed. But the Times-Union and First Coast News insisted there were more. And there were. Though it wasn’t initially turned over, one of Fussell’s friends in an email questioned the motivations behind Fussell’s decision to end courthouse marriages. Fussell’s office insisted that email and Fussell’s response were private, but they agreed to turn them and others over to the media three weeks later.

Peterson said even if Fussell’s mother had emailed him asking questions about his decisions related to public business, the communication would be a public record.

“It’s depends on the content of the record, not who sent it,” Peterson said.

Even when there’s not a debate about whether a record is public, it can take weeks or months to get some simple records.

Last summer the Sun Sentinel requested a list of Broward County Public Schools personnel. The paper had to pay $87 for the list and it took nearly eight weeks for the school system to deliver.

In Jacksonville, the Times-Union requested a staff phone directory from State Attorney Angela Corey’s office. There was no charge for the document, but providing it took four months.

“That’s not reasonable,” Peterson said. “A phone directory is a commonly requested public record.”

Peterson said she knows the school system and Corey’s office receive lots of records request, but to wait eight weeks or four months for simple records is not reasonable.

In a statement, Corey’s spokeswoman Jackelyn Barnard said the number of requests the office receives annually has tripled since 2009. The statement said that after the office was alerted to complaints about its public records process in 2014, it began an internal review, determined it needed more public records staff, and brought in Peterson for training.

“The training was valuable, but as in any business, we recognize mistakes will be made and there will always be room for improvement,” the statement said. “Currently, we are in the process of a complete restructuring to the (public records department). We hope to have a better and more efficient process in place in the coming days so that some of the mistakes which have been made will not be made again.”

Corey’s office and the Broward school system are similar in that they reply to request on a first come, first served basis. So if a member of a public requests the minutes from a public meeting that require no redactions, but that request is behind a request that takes weeks, the two agency’s policies mean it would take weeks to get those minutes.

But Peterson said those first come, first serve policies are not illegal.

“It may not be the best and most efficient policy, but it’s not a violation of law,” she said. “That’s more of a judgment call.”

She suggested offices with those kinds of policies could spend a portion of their day working on big requests and then a portion of their day working on requests that are easier and quicker to satisfy.

Lee, the former lawyer and citizen who won a legal battle over records with the Jacksonville Police and Fire Pension Fund, also won a legal battle against Corey and her office last year after suing the office in 2012 for not providing records in a timely way or at all. Corey’s office was scolded by a Jacksonville judge for sending investigators to Lee’s home to questions him about his requests. Corey and her office were ordered in February to pay Lee $26,000 in legal fees over the suit.

The audits participating newspapers were the Apalachicola Times, The Florida Times-Union, The Fort Myers News-Press, The Gainesville Sun, Northwest Florida Daily News, Orlando Sentinel, Palm Beach Post, Sun Sentinel, Tampa Bay Times and the Tampa Tribune.