Yesterday morning a reader name “Doug Neuhaus” posted several comments on http://www.FOGWatch.org under various blog entries. Since all of Doug’s comments asked questions, I’ve decided to reply in a new blog entry. Hopefully, if there are other readers who share Doug’s concerns or have similar questions this will be helpful. For the record, I don’t believe I’ve ever met Doug.
Here are Doug’s comments and questions in the order in which they were posted and my replies in turn:
Doug Neuhaus says:
If the Florida constitution requires these documents to be available for inspection and copying, why would there be any cost except for a space for their viewing?
Article 1, Section 24 of the Florida Constitution does in deed require custodians of public records to make those records available to any person seeking to inspect and copy them. Florida voters passed that constitutional amendment in 1992 by an 87% super-majority.
Article 1, Section 24 states:
(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.
(b) All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.
(c) This section shall be self-executing. The legislature, however, may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a) and the exemption of meetings from the requirements of subsection (b), provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law. The legislature shall enact laws governing the enforcement of this section, including the maintenance, control, destruction, disposal, and disposition of records made public by this section, except that each house of the legislature may adopt rules governing the enforcement of this section in relation to records of the legislative branch. Laws enacted pursuant to this subsection shall contain only exemptions from the requirements of subsections (a) or (b) and provisions governing the enforcement of this section, and shall relate to one subject.
(d) All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial branches, until they are repealed. Rules of court that are in effect on the date of adoption of this section that limit access to records shall remain in effect until they are repealed.
The Florida Legislature has enacted Chapter 119 of the Florida Statues. Chapter 119 actually predates the constitutional amendment by several decades. Chapter 119, (AKA Section 119), in combination with Article 1, Section 24 of the Florida Constitution are collectively known as “Florida’s Public Records Act.”
Section 119.07(1)(a) states:
Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.
Article 1, Section 24 of the Florida Constitution is silent on the issue of fees. Section 119.07(4), however, establishes a legislative scheme for the imposition of certain fees associated with accessing public records. For example, the custodian of a public record may charge ¢15 for a single-sided photocopy. In the event that a requestor asks for records in a format normally maintained by the agency, but which cost is not specifically addressed under Section 119.07(4), then the custodian may only charge the actual cost of duplication including labor and materials. In any event, public records access may not be used as a revenue generating scheme by public officials. See Attorney General’s Opinions (“AGO”) 85-03 and 75-50.
In the event that a request for public records requires an extensive use of an agency’s personnel and technology resources the agency may charge a “special service charge.” See Section 119.07(4)(d); See also Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008) and State v. Gudinas, No. CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999). Those charges may not be more than the actual cost of reproduction including materials and labor (hourly wages and benefits). In that event, however, the custodian may only charge the cost of the lowest paid person who could do the work, not the wages of the person actually doing the work. See AGO 00-11.
Doug Neuhaus says:
Don’t you think it’s irresponsible to file so many lawsuits that you can’t keep track of them? Why are you entitled to these “awardable expenses” as you call them. The constitution clearly states the records must Available to inspect or copy. Why aren’t you responsible for copying costs?
While I have filed many open government lawsuits, not all have been related to public records access. Some lawsuits have been filed in connection with violations of Florida’s Sunshine laws (Section 286 of the Florida Statutes). I’ll digress here for a moment.
Very often folks make reference to “Florida’s Sunshine Laws” intending to refer to public records laws. Florida has the Public Records Act (Section 119) and Sunshine Laws (Section 286). The Public Records Act is for public records and the Sunshine Laws are for open meetings. The two laws are related but create distinct civil rights; the right to access public records and the right to attend public meetings. Both rights are codified in Article 1, Section 24 of the Florida Constitution, subsections “a” and “b” respectively as noted above. Collectively, I refer to them as “open government” laws, thus the name FOGWatch.org – Florida Open Government Watch.
At present, I have about thirty-five active (AKA “pending”) open government lawsuits. While I have some difficulty keeping up with them, more than a dozen attorneys assist me. In my blog post, which elicited Doug’s comment, I wrote that I had to stop and think about exactly how many cases are pending when someone asked me that question directly. That does not mean, however, that any cases have become “orphaned.” Experienced attorneys are handling each case. I am fortunate to be represented by some of the top open government litigators in the country.
In a few instances, I have filed cases Pro Se (without the assistance of an attorney). I have limited these cases to those with extraordinarily clear facts. In each case, I have made an effort to settle as quickly and economically as possible. Essentially, all I am asking for is the unconditional production of the public records and the payment of my actual expenses. Both the production of records and the payment of my actual expenses are “awardable”, meaning, a judge will award them if we go to a hearing or a trial. See Weeks v. Golden, 764 So.2d 633 (Fla. App., 2000). I am only asking the defendant to do what a judge is going to make them do anyway. If they settle, however, the costs for the defendants are greatly reduced. I am simply seeking compliance and my costs for achieving that compliance.
When, however, a defendant wants to fight, I simply ask one of my attorneys to file a Notice of Appearance and then I let them takeover the case. When I transfer a Pro Se case to an attorney, economy is no longer a consideration. The objective is the fullest vindication of the public’s right to access public records and attend public meetings. If that results in substantial costs to the defendants, then so be it.
Doug Neuhaus says:
I’m confused. Are you asking them to send the records to you? They have no obligation to spend my money on your behalf. If they refuse to let you come view them then you are right, but I am being impacted by frivolous lawsuits and unconstitutional demands from people like you. [T]his seems more and more like a scam and less ans [SIC] less like a noble pursuit. How much money do you make off these suits?
Sometimes I travel to an agency and physically view and/or photograph records. In most cases, however, I ask the custodian to send records to me electronically because it’s less expensive and better for the environment. On rare occasions I will ask that records be sent to me via USPS and that’s usually when the records are not available in an electronic format or the files are too big to email. I bear the cost of postage and copies, not the agency or the public. In every case I am obligated to pay the statutory fees if I want the records and I’m generally willing to do so.
The claim that the public is “being impacted by frivolous lawsuits and unconstitutional demands from people like you” is simply nonsense. First, I only file lawsuits to enforce our collective civil rights. Second, I have never had a case dismissed because it was frivolous and my win record clearly demonstrates that my lawsuits have merit. Of the scores of cases that I’ve filed (I would guess well over seventy), all but three were won at the trial level. Those three are on appeal and I am confident the public’s right to access will be vindicated at the appellate level. Third, the cost associated with my litigation is not the result of my actions, but the direct result of the unlawful conduct of public officials. Those public officials are the persons responsible for your tax dollars being wasted. And we should all be mad as hell about that!
I’ve been filing open government lawsuits for almost five years and have nearly exhausted my material resources doing so. Although, I’ve filed and won scores of these lawsuits I do not profit from the litigation. Last year, for example, my total income from ALL sources was a whopping $4,963. Exactly $0 came from open government litigation. I’m not poor-mouthing or complaining. This is a cause that I decided to take up and the resulting financial ruin is the price I’m willing to pay. But don’t think for one second that I’m doing this for the money, because there isn’t any.
The fact is I am the only party in these lawsuits that is not being paid. All of the attorneys (on both sides) get paid, as does the judge, the bailiff, the court reporter, and the clerk of court, the process servers, the reporters and the public officials who violated the law. I have no problem with everyone else getting paid, but I don’t have much patience for anyone bellyaching about how I’m screwing the public and getting rich, because that’s total nonsense.
Doug Neuhaus says:
Under what laws are you entitled to the damages? I see the constitution requires access to documents, and the Florida public records act says agencies will strive to make access inexpensive and easy, but nowhere do I see requirements to produce documents for you. I ask because I pay for your frivolous lawsuits with my tax dollars and I can show damages for your abuse of the legal system. Quite literally I see a case against you. Please enlighten me as to why your cause is noble as you claim and not a scam?
Section 119.12 of the Florida Statutes provides for the recovery of reasonable attorney’s fees and expenses if: 1.) Legal action is taken to enforce the Public Records Act; and 2.) The court finds that the agency unlawfully denied access. There are no economic damages awarded to the party whose civil rights were violated. There are, therefore, no economic incentives for filing open government lawsuits.
The idea that “[q]uite literally I see a case against you” is one that I’ve heard many times before. I’ve lost count of the defendants that have threatened to file counter claims, or “57.105” letters seeking damages for my “frivolous” lawsuits. They never stick because my cases are not without merit and I win. In fact, when a defendant threatens to file a counter claim I take settlement off the table entirely. From my perspective, if a defendant is going to argue that I’ve filed a case that is without merit then we really do need to go before a judge. The facts are on my side, otherwise I would not have filed the lawsuit in the first place.
Open government is good government. It’s also the law of the land. I have the right and, I believe the civic duty, to advocate for every person’s right to know what our government is doing in our name and at our expense. If you don’t agree with open government or vindicating your civil rights, then you probably won’t have either open government or your civil rights much longer. The only people opposed to open government are those with something to hide.
If Doug is truly worried he should be venting to our elected officials and government employees who are not complying with the law. They are the ones that are costing the taxpayers’ money. If they would comply with your requests there would be no lawsuits and hence no cost because you would pay the fees associated with the information request. Because there is no consequences for the officials when they do not comply with your lawful request for information they can willfully disregard the letter of the law and they still get their paycheck and still have a job. They do not bear any cost associated with their unlawful conduct nor do they suffer any negative consequences from their employer. I think we need to make the ones who are unlawfully withholding this information to be personally liable for their actions. If they do not comply they should be sued personally. I know this would change their behavior immediately and save taxpayers lots of money in the process. So Doug if you are truly concerned I will volunteer to help you figure a way to change the law to make these government employees (criminals) working for us personally liable. If this is your concern then get involved. Don’t shoot the messenger just because he is the bearer of bad news.
I agree that there are many corrupt portions of American government at many levels. Having said that, I have been interacting with many government agencies for decades and as much as I dislike they way they operate, the waste that is built in and oh so many other problems, I find one thing to be universally true, They are a function of their budget. If they don’t have a line item in their budget they can’t get it done. My entire point for all my posts is that if you really want transparent government you are going about it in the wrong way. If the local school boards don’t have a budget to publish the things you want published right now, you sue them. They then have no choice but to raid the budget and take money away from teachers or supplies. If you want to fix the transparency, fix the budget. This isn’t rocket science. Local government officials are scared to death to release information because they will be liable for privacy violations and at the same time have no direction or budget to publish the information you may think is key to some conspiracy. You are fighting the wrong people in the wrong places, acheiving nothing and claiming victory for the common good. Well, I’m part of the common good and I’m asking nicely for you to use your efforts in a constructive manner.
To Doug: I worked 25 years for a municipality. Not once was that city sued due to FOIA because we complied with the law. Just as Mr. Chandler says, if you don’t like the cost to you as a taxpayer, complain that your elected officials or their designated administrators are not complying with the law. Period. End of sentence.
I never once implied that the laws were wrong, or that some people don’t break them. Did your municipality comply because they were threatened, or because they had the forethought to budget for and comply with the laws? Thats been my point all along.
We charged the public $.15 per copied page, nothing for electronic transmission, nothing for physically viewing documents. The only budget impact would be for legal fees if we didn’t comply. Where’s the big deal on budget impact? We never saw it over 25 years.
Joel if you are implying that I’m opposed to complete transparency, you couldn’t be more wrong. I fully support and expect it from my government. Period. My questions are with your tactics. Just because a court rules in your favor doesn’t mean you have served the public good. Putting a school board in the awkward position of publishing information about minors is questionable at best. What if I work for a government agency and discuss in an email that a federal judge or prosecutor lives next door to me, should their address be published for the public good, even though it might endanger their lives and family? What if I work at Turkey Point? Yes it’s an extreme example, but I’m sure the legislators who wrote the original statutes didn’t envision publishing information on minors for the public good either.
My main objection stems from the fact that I have been in business for myself most of my life. It’s why I want transparency and smaller government. Basically I don’t think our government does anything well. But given the current economic climate, I fear which of the basic services our government has money enough for now, which will be cut to meet a settlement, or staff a research project, just because. Why not solve the problem instead of throwing stones at it? Instead of beating small government with the FOIA stick, why not use your unique experience to lobby legislators for federal funding for development of an open source for publishing this information. A comprehensive searchable database should do the trick. You could confer with your considerable legal team and all your past opponents and advance legislation that better protects the privacy rights of minors while still satisfying the need for transparency. What if all your settlements asked for the funding of the necessary reform of the problem agencies instead of compensation for your team. The settlements could fund the cost of scanning and archiving everything and maintaining online service for public access. Problem solved.
Maybe I’m not as smart as I should be, but I didn’t see a real answer for my main question. Are these agencies refusing to let you view and copy the documents, or are they late or non-compliant in copying them and sending them to you for review? One is open government, one is cash strapped state agencies diverting limited resources to organize and disseminate volumes of documents. No one who has to fund payroll for a staff will have trouble seeing the difference.
Believe it or not, I really appreciate your post, and enjoy the contributions from your followers. But I would be remiss if I didn’t note most of it is available on line. Open government at work for all of us.
Doug,
Thanks for your thoughtful reply. I welcome civil dialogue on this issue. It was not my intention to imply your opposition to anything. My post was simply an attempt to answer the questions you raised in your various comments.
Since you raise the issue of the relase of public records relating to minors, I’ll simply remind you and other readers that my public records lawsuit against the School Board of Polk County in 2008 (the first one) was not filed in order to violate anyone’s privacy. It was filed to force the School Board to comply with the law. I was on record back in 2008 supporting new legislation that would have exempted the personal information of school employees. Unfortunatly, neither the School Board of Polk County nor the teacher’s union supported the passage of that legislation because they have been selling the personnel records of their employees and members to various marketing firms for years. In fact it was my refusal to sign the School Board’s sales agreement that served as the catalyst for the litigation.
It is important to remember that under our constitution, there is a right to privacy in Florida. That right, however, does not trump public records access. Article 1, Section 23 states “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” (emphasis added)
My objection to the conduct of some public officials is their attempt to exercise discretion which they simply do not have under our constitution. I do not want individual public officals deciding when and to whom they will allow access to public records and public meetings. Open government means that, with few exceptions, we get to see what is being done in our name and at our expense even when public officials don’t want us to see it. Attorney General Pam Boni hit the mark when she wrote “[i]n Florida, transparency is not up to the whim or grace of public officials. Instead, it is an enforceable right.”
The litigation that I have filed has not been the result of minor violations of Florida’s open government laws. The lawsuits have been the result of serious denials of access. In many instances I have made repeated efforts to convince these public officials to change their conduct before I have filed suit.
While you have expressed frustrations with bloated government, your solution is more government. “[W]hy not use your unique experience to lobby legislators for federal funding for development of an open source for publishing….” I simply want compliance with existing law not more government.
I have lost count of the number of times that I have offered to work with state and local agencies in order to improve their compliance with open government laws. Only once has an agency accepted that offer. The rest have either ignored those offers or flatly refused my help. Unfortunatly, the only mechanism for enforcement is litigation.
I have some eensy (LOL) problems with the black and white of it being cash-strapped v sacrificing pencils and notebooks for our silly public records requests. Nearly 100 percent of the requests I have made have been fought. I usually copy the law and send it on. If there’s still waffling I send the part of the law where it’s criminal to cover it up and a public official is in big trouble. THEN the records come. But not always. Now if they have the money in their budge to hang out on facebook and go to hairy chicken corporate luncheons all day and evening banquets and argue with me over my simple requests, they probably could get the records together and into the mail.
They don’t a. because they’re trying to cover something
b. too much time on facebook
c. think you’ll let it go
d. have gotten away with it many times.
One hundred percent have argued with me. It’s in a pattern. Once they start cc’ing others in I wait til th
Part II of below. Anyway, what I do is I wait until they are up to about seven parties copied in on the CC for a simple public records request and then I reply all and address “the highest suthority” on the list with the law. I re-iterate my already clearly worded request and I copy fl st 119 enforcement issues in pertinent part. This is a huge motivator.
The more they caterwaul, the faster I have learned to recognize it. I asked for some info on the fire dept so one of their guys came out and went everywhere with me for a few days. Walgreen’s. Home. Publix, etc. I took a photo of his car about the third day and a picture of him (huge huge man) and asked who it was. That was two years ago. They’re still making excuses. LOL !! I know who it is but I continue because I think it’s a good example of what weasels they are. And that is the highest truth.
I have an interject about Polk schools. If they’re anything like the carnival sideshow of Hillsborough you can be assured they’re covering up to hide relationships and planning. This infighting is largely set up so they can pose things as “choices.”
i.e. Do we want bad Joel Chandler to know where we live or B. can we hide all our records?
In this way they limit the conversation to those two “choices” which is not the matter at all. But they plan this in advance, how to pose it, who will pretend to oppose it and who will speak for the people. I watched this with Tampa City Council so many times until even Miranda finally outed himself. Elia intimidates teacher loyalty and teachers want to hide their property holdings like the firemen “for their own good”. The odd thing there is that both firemen and teachers are allegedly benevolent people; who would want to hurt them? The whole thing is very bizarre and smells like New York where way too many of them hail from to pretend they do not know each other and all arrived in Florida together. And now one of them is in charge. I don’t know anything about Polk school board. But I have seen plenty in hills.