Access Denied

Public officials, ignorant of the law or paralyzed by suspicion, regularly thwart citizens exercising their constitutional right to inspect public records, a statewide audit has found.

While journalists and attorneys enjoy the benefits of Florida's open government laws, the same rights are not always granted to Florida's other residents.

During a week in January, the Herald-Tribune and 29 other Florida newspapers tested how officials responded to a routine request to inspect records. Reporters and other news media employees posing as citizens visited 234 local agencies in 62 of Florida's 67 counties.

Overall, 57 percent of the agencies audited complied with the public records law. The rest made unlawful demands or simply refused to turn over the records.

Public officials lied to, harassed and even threatened volunteers who were using a law designed to give citizens the power to watch over their government. In six counties, volunteers were erroneously told that the documents they wanted didn't exist.

One volunteer was almost arrested.

Many officials demanded to know who the volunteers represented and what they planned to do with the information -- clear violations of the open records law, which ensures anonymity when desired.

"Basically, it's not the government's business why a member of the public wants a record," said Pat Gleason, general counsel for the state's attorney general. "The desire of government to impose procedural roadblocks … directly conflicts with a citizen's right of access."

Instead of responding quickly to their constituents, many officials raised needless bureaucratic requirements, or bounced volunteers from one office to the next in a fruitless hunt for documents.

At nearly half the agencies audited, someone looking to pick up an easily accessible document during a lunch break would have walked away empty-handed.

For a state that prides itself on being a leader in open government, the results are disappointing, said state Attorney General Charlie Crist.

"My hope is that once the results of the audit become known, this will become an educational opportunity," Crist said. "It is the people's government. They have the right to have access."

Barbara Petersen, president of Florida's First Amendment Foundation, blamed a lack of leadership from Florida's highest officials. With the exception of Crist, few state leaders champion open records, said Petersen, whose group helped organize the audit.

"We need heroes," she said. "We need people who care enough about the public's constitutional rights to step forward."

Gov. Jeb Bush has been lauded for leading a statewide effort to make government records more accessible by putting them on the Internet.

But Bush spokeswoman Alia Faraj said the governor has no authority over the local agencies included in the audit. He can't force sheriffs or municipal and county governments to train their employees, she said.

Asked if there was anything the governor could do to get the word to local agencies that open government is important, Faraj said, "We lead by example."

But the governor's office was the only one of six state agencies audited that failed to comply with the public records law. The volunteer said she was told she would have to give her name and address and fill out or sign a written request form.

Faraj denied that the governor's office violated the law and said the volunteer may have misunderstood what she was told.

Bush said that once he reads the results of the audit, if it "shows that there is some flaw in the process then we can make adjustments, no question about it. And if there are deficiencies in the system then we will look at it."

Suspicion and anger

Since 1909, Florida law has guaranteed its citizens access to public records. In 1993, the right was written into the Florida Constitution, one of only a handful of states to adopt such a powerful protection for citizens.

Today's law says the public can inspect any document generated by the government, unless it carries a specific statutory exemption. That includes written communications, investigation results, financial records and personnel files.

The audit volunteers asked for documents that should have been easy for officials to retrieve: 911 call logs from sheriff's offices, city manager job reviews, county administrator e-mails and school superintendent cell phone bills.

The best results came from city managers, who complied 68 percent of the time. Officials from the county administration offices fared the worst, providing the requested e-mails only half the time.

Sheriff's offices and school districts complied with the requests 57 percent and 56 percent of the time, respectively.

At many agencies, asking for a document immediately sparked suspicion.

Roger Desjarlais, the Broward County administrator, threatened a volunteer by saying, "I can make your life very difficult."

After insisting that the volunteer give his name, Desjarlais used the Internet to identify the volunteer, find his cell phone number and call him after work hours.

In an interview after the audit, Desjarlais denied that he threatened or tried to intimidate the volunteer, who is a reporter with SNN-Channel 6 in Sarasota.

"I just told him, you have not asked me for the information in a way that legally requires me to give it to you," Desjarlais said. He refused to explain what steps he requires to turn over documents.

Desjarlais defended his actions, saying that the volunteer raised suspicion when he declined to explain who he was. Officials across the state had similar misgivings about volunteers who came into their offices.

They cited a number of arbitrary reasons for their suspicions, including the volunteers' hair length, casual dress and, in one case, "the look in his eyes."

Mary Kay Cariseo, executive director of the Florida Association of Counties, said people need to understand that making a public records request can be threatening to public officials.

"You're not looking at e-mails to do something good," she said. "You're trying to find something. You're trying to dig something up when we're trying to be good public servants and run our governments."

That's a key reason why the public records law exists, said Sandra Chance, executive director of the University of Florida's Brechner Center, a nonprofit organization that studies and serves as a resource on public records law.

The ability to inspect government records lets the public police the officials they bankroll with tax dollars.

"The law clearly says that public agencies cannot institute any kind of requirements that inhibit access, or chill this right of access, including requiring people to give their names," Chance said. "Sometimes I think bureaucrats forget that the purpose underlying all of this information is to serve the taxpayers."

Some government agencies tried to justify their suspicions by citing heightened security concerns brought on by the Sept. 11, 2001, terrorist attacks.

In a post-audit interview, Taylor County Superintendent Oscar Howard said his district was hesitant to produce his cell phone bill because the volunteer wouldn't give his name.

"He could have been a terrorist," Howard said. "We have to ensure the safety of children."

Howard couldn't explain how a terrorist might use his cell phone bill to harm children.

Another volunteer, who is a Herald-Tribune reporter, was almost arrested after he politely declined to sign in at the front desk at the Charlotte County school district. Instead, he asked to remain anonymous and have the records delivered to the lobby.

While Chuck Richards, Charlotte schools' manager of employee relations, was looking into the request, district security called sheriff's deputies to report a suspicious person.

"He was being very mysterious, and it was causing anxiety among the staff," Richards told the Herald-Tribune. "He was not acting in a physically imposing way, but there was an attitude. It was his unwillingness to follow our process."

Richards said he wasn't aware that the public records law did not require that a name be given.

What happened in Charlotte County was an example of how government is over-reacting to security concerns at the expense of people's constitutional rights, Chance said.

Governments should be concerned about safety, but they must balance that concern with the rights of public access, Chance said.

"The front-burner item is security," she said. "What we haven't done is had the conversation about how we are going to do these two things. People aren't even talking about it."

Lack of training

At the Hardee County Sheriff's Office, the audit volunteer called the officer she dealt with "very cooperative" and noted that she was allowed to inspect the log without giving so much as a first name.

When contacted about the audit, Heather Lee, the supervisor of communications who provided the log, said she didn't ask any questions because, "It's not my business."

"I didn't know if she was there because she was the victim of something, or if someone in her family was," Lee said.

Lee said that she attends an annual Florida Department of Law Enforcement conference that includes a 90-minute session devoted to public records. She said she shares what she learns with her colleagues.

But many government employees have never been exposed to the training that Lee gets every year.

Training is readily available from a variety of organizations, including the First Amendment Foundation. The state attorney general offers training sessions and produces public records guides for law enforcement officials and other government agencies.

The state requires newly elected officials to sit through open-records training when they take office. But there is spotty training among clerks, receptionists and secretaries who greet members of the public when they walk into government buildings.

Crist said the state may need to consider providing more training for government employees and perhaps requiring it, an idea backed by public records advocates including the First Amendment Foundation and the Brechner Center.

Like other agencies, front-line employees at the Sarasota County School District aren't required to learn about public records. Instead, people sitting behind the counters turn to supervisors when someone walks in and requests a document.

Audit volunteers encountered more than a dozen officials who said a record wasn't public, only to be corrected later by a supervisor or co-worker.

That system can work well if employees are diligent about turning over requests to their supervisors, and if the supervisors know the law and are accessible at the time of the request.

But the audit also uncovered cases where administrative ignorance of the law kept volunteers from getting the records they sought.

When a volunteer asked Hamilton County Superintendent Charles Blalock for a copy of his cell phone bill, Blalock demanded to know the volunteer's name.

He insisted that he would produce the bill only after he knew who the volunteer was, where he lived and why he wanted the bill.

"I'm a public official. Our records are public. But we need to know which public we are dealing with," Blalock told the volunteer.

Even the legal office at the governor's office doesn't have a clear understanding of the law, according to the volunteer who audited the governor and five other state agencies.

The volunteer reported that her request for e-mails was first vetted by the legal office, which said contact information, including name and address, were required.

Bush spokeswoman Faraj said the governor's office always complies with public records law and that the only reason they ask for contact information is to ensure that the records get sent to the requestor.

"If you're not going to give me your name and number, how am I going to get back in touch with you?" Faraj said. "What if it costs $1,000 (to compile the records)? What am I going to do?"

A number of local officials said their own policies require a written request for similar reasons.

Cariseo, executive director of the Florida Association of Counties, said that's a common way for agencies to keep track of requests. But she was not familiar enough with Florida records laws to know whether an agency could require a written request.

Margie Davidson, spokeswoman for the St. Johns County School District, was equally unsure about the legality of requiring written requests. Davidson is also president of Sunshine State Schools Public Relations Association, a group that keeps district community relations professionals -- often the people in charge of records requests -- knowledgeable about the law.

If Florida agencies are going to improve their performance with public records, changes will have to start at the top, Chance said.

Government employees need to feel safe turning over all public documents, even those that could embarrass their superiors. Otherwise, their first instinct will continue to be suspicion and fear when a member of the public walks in and requests public information, Chance said.

"People rarely get fired for saying no. They can get in trouble with the supervisor for giving out information that is embarrassing," she said. "You don't get merit raises and bonuses for quickly and efficiently giving out public records."