Editorials
Cartoons
Columns
More information Links, video and basic information about Florida's Sunshine Law, the federal Freedom of Information Act and why they matter to citizens and journalists.
|
Ft. Myers News-Press Open records can be pricey Costs vary widely by record type, agency BY RYAN LENGERICH When Lee County slapped Carla Serenko with a $223 bill for public records, she slapped back. “I was uncomfortable they were charging at such a high rate,” Serenko said. She was stunned with the price tag to track down and copy 174 pages about a former animal services director. After a monthlong dispute, Serenko in February convinced the county it overcharged her, and she got a $145 refund. Florida has among the most friendly public records laws in the country. The Attorney General’s Office calls it “a model for the rest of the nation.” But records aren’t free. The right to public information in no way assumes the average person, business or journalist can afford them. Today kicks off the fourth annual Sunshine Week, a national initiative during which journalism organizations highlight the importance of open government and freedom of information. The News-Press took a look at the price of public records. “Public records are just that — public. They should be open to everyone. This isn’t an issue of media access but public access,” said Kate Marymont, executive editor of The News-Press. A test by The News-Press shows local bureaucracies generally give journalists and residents the same treatment and in many cases, provide information at no cost. But how governments draw up invoices is muddy. Defining “extensive” research, charging for time to redact information and deciding which hourly rate to charge makes the billing, at times, inconsistent. Marymont said that when the “extensive use” provision is used to dissuade residents from getting information, the spirit of the Sunshine Law is being violated. Lee County residents and the media paid about $13,000 last fiscal year to a handful of local agencies. That number does not include requests between the 25 departments within Lee County, which are not tracked. According to an information rights advocacy group, the problem is deterring the public from its right to know; there is no legislation proposed to fix the problem. ¸ ¸ ¸ Most requests are simple, innocuous. Maybe it’s a land document or internal memo. The agency generally provides information on the spot in minutes, often without charge. “Probably we do so without charging because to invoice, track, and allocate to the appropriate funds would cost more than we would collect if charged,” said Assistant County Manager Pete Winton, the go-to guy for media requests to the county. Then there’s the other extreme. Last year The News-Press won a nearly three-year battle to acquire hurricane relief information from the U.S. Department of Homeland Security. In December, the federal government agreed to pay $105,000 in newspaper attorney fees. It was a victory for the newspaper, but fell short of covering the total cost to win the case. Somewhere between six-figure legal battles and one-page photo-copies are public requests amounting to hundreds, even thousands of dollars. A News-Press request to the South Florida Water Management District for all memos and e-mails about a controversial culvert proposed under Interstate 75 in Estero returned more than 35,000 e-mails and 600 pages of e-mails and memos. The final total: $476. A nearly $500 tab for an interested person is a deterrent to the quest for public information, said Barbara Petersen, president of the First Amendment Foundation, a public information advocacy group in Tallahassee funded by the media. “I think that fees are frequently a barrier to public access and we have to figure out a way that makes it equitable and fair,” Petersen said. “I don’t think agencies should go in the hole for public access, nor should they charge a fee that is unreasonable.” Lee County has been excellent to work with, said Sal Grosso a member of the Golden Goose Committee of the Lee County Republican Party. That’s praise from the group digging into the county’s budgetary practices. “Our access to information has been pretty good,” Grosso said. Criminal and personal injury attorney Michael Hornung said that before Sheriff Michael Scott won the 2004 election, the sheriff's office was the worst agency for public records in Lee and the three surrounding counties. He is able to make a request, read and tag the pages he wants copied. He said when requests cost more than about $50 the charge is passed on to his client. Attorney Aaron Pruss with Becker & Poliakoff said he often makes large requests with the Department of Community Development and the charges have been expensive, but fair. “I have not found it to be disproportional to what we have requested,” Pruss said. ¸ ¸ ¸ No cow is more sacred than the 15-cent copy. “The 15-cent thing is set in cement,” Peterson said. She’s not sure how that happened, either. State public records law allows governments to charge up to 15 cents per copy, and up to an additional five cents for a two-sided copy. Most governments charge the maximum. Court documents cost $1 per page. “I suggested that they contract with Kinko’s,” Petersen said, half joking. That company charges 8 cents for standard black-and-white copies. It’s the same idea Rep. Trudi Williams, R-south Lee County pitched in December when asked by The News-Press what is reasonable cost for records. “If someone had asked me for a public records and it was huge and I had a stack of papers this much I would send it out to Kinko’s or something like that and submit the invoice for you guys to pay,” Williams said. The Legislature has decreed access to records should not be a profit-making or revenue-generating operation. “We try to use some common sense. We don’t want to charge people,” said Lee Community Development spokeswoman Joan LaGuardia. She said if someone is taken away from their job the county will charge. “We do have to be mindful of the taxpayer fees.” ¸ ¸ ¸ Two words have created inconsistency in pricing public records — “extensive use.” The law states if the volume of public records requires extensive use of time or resources, government can impose a service charge. In essence, the public should pay for the time it takes to compile and copy information. Yet the law does not define “extensive.” “I have heard definitions as long as four hours, and as short as 15 minutes,” Petersen said. “There is not enough in the law to say what we can and can’t do.” The city of Fort Myers uses 30 minutes as the threshold for extensive use of time, said Dave Workman, who handles public requests. The Lee County attorney’s office sets the bar at 15 minutes. Sometimes there is inconsistency under the same agency umbrella. In January, Lee County administration staff converted more than 800 pages of travel logs into five digital files at the request of The News-Press. The $43 cost came from the 90-minute staff time to pull and convert the information. The alternative was $132 for copies. In February, a News-Press reporter requested animal services files that added up to more than 800 pages. The agency charged for 14.5 hours of work at $19.94 per hour to pull and copy the information. According to Ria Brown, animal services spokeswoman, a clerk sifted through files to find the reports, causing the task to take about two full work days. Final cost, including 15 cents per copy, was $419. When government agencies charge for service time, court precedent is conflicting about how much should be charged. A 1999 circuit court decision states an agency should only charge the clerical rate, not including benefits, even if staff shortages meant a person who is paid more did the work. A district court opinion filed in January booted that notion, ruling the cost should be based on salary and benefits of the person who performed the work. As a result, different agencies charge different hourly rates after different lengths of time. “Community Development doesn’t have a policy,” LaGuardia said. “We just try to apply some common sense.” Extensive use or charging to redact information frustrates Petersen. “There isn’t any consistency and there probably won’t ever be,” she said. State Attorney’s Office spokeswoman Samantha Syoen said her office does not charge for the time it takes to redact private information, a legal requirement for government agencies. ¸ ¸ ¸ In a Dec. 13 invoice the county outlined Serenko’s charges. In addition to copying fees, they billed her for work at various county levels to pull together information. It included:
Serenko said she spoke in mid-December by phone with County Attorney David Owen about the overcharge. Frustrated with inaction by Owen, she filed a sworn complaint with the Florida State Attorney’s Office. Serenko said charges should have been based on the clerk’s rate not including benefits. Then a Jan. 23 letter from Lee Deputy County Attorney Andrea R. Fraser agreed Serenko was overcharged. Fraser said it’s rare for people to contest an invoice. So what about the people who are not as well versed as Serenko in Florida’s Sunshine Law? “I think it is the same advice you give anyone when they get a bill,” Fraser said. “Look at it very closely and if you don’t understand why you are being charged something, ask questions.” Adria Harper, director at the First Amendment Foundation, said there is no pending legislation to address the pricing problems. “I don’t think there has been any movement or push to look at restructuring the statutory requirements for fees or anything like that to correct the issue,” Harper said. ¸ ¸ ¸ Technology is making white paper copies fade to black. Increasingly, more information is available online. When it’s not, some government agencies can scan files into a digital format. But Harper said there is no consistency in how governments hand over e-mail. Tuesday she received a phone call from a woman in northern Florida who requested two years of e-mails for a county administrator. The agency told her cost would be $2,500 because of extensive staff time to review each e-mail for private information. “The e-mail thing is really a problem because there are so many inconsistent policies on how the e-mails are maintained,” Harper said. Some agencies have a public terminal to search all e-mail. Others, such as Lee County, will forward the e-mail to the person requesting it. Others print out the e-mail and charge for the copy. Others copy e-mails to a disk and charge for the disk. LaGuardia, of Lee Community Development, said people will occasionally provide her department a disk and the information will be transferred at no cost. It is a common occurrence for multiple e-mails. Technology has spurred a new charge for “information technology resources.” For example, it could be writing a computer program or entering data to create a database. No agency can charge just for using information technology resources; it can only charge for “extensive” use, which is not defined, and varies by agency and employee doing the work. Petersen, of the First Amendment Foundation, is hoping technology leads to lower costs. She’s not optimistic. “I haven’t seen any dramatic change.” — The News-Press staff writers Christina Cepero and Pat Gillespie contributed to this report. Team Watchdog plays role Four members of Team Watchdog, a news-press.com and The News-Press citizen journalist panel, contributed to this report. The four retired professionals asked public agencies for the same records sought by our professional reporters. The Team Watchdog members who worked on this project are Dana Ingalls, of Fort Myers, retired FBI agent; Minnie Hooks and Helen Leddy, both of Lehigh Acres and both retired educators, and Robert McGuire of Cape Coral, a retired railway specialist with the federal Department of Transportation. Team Watchdog volunteers work side by side with professional reporters, complete research, suggest stories and sometimes submit original material. For more information on Team Watchdog go to news-press.com/watchdog. Reproduced courtesy of the Ft. Myers News-Press. |
