One of my readers, “James”, posted a series of questions under the blog post “More News Reports About Boynton Beach Lawsuits.” Instead of answering James’ questions within the comments section I’ve decided to address them in a new blog post. James raises some interesting questions and I thought that other readers might benefit from this discussion.
James,
In response to your questions, I must first make my perfunctory disclaimer that I am not an attorney. I am not qualified or authorized to give legal advice and, therefore, I don’t. What follows is a discussion and should not to be taken as legal counsel.
I’ll respond to your questions in turn:
James writes:
“If I pay the Pinellas County Sheriff’s Office employees with my tax dollars, and they have a records department staffed with employees that are there to provide records, WHY DO i HAVE TO PAY THEM OUT OF MY POCKET TO DO THEIR JOBS, in essence TWICE.”
That’s an excellent question. Section 119.07 of the Florida Statutes establishes certain fees that may be charged by the custodian of a public record to a requestor. For example, Section 119.07(2)(c) authorizes the custodian to charge for remote electronic access to public records. Section 119.07(4) authorizes the custodian to charge ¢15 for a single-sided letter sized copy or ¢20 for a duplexed copy.
In the absence of a statutorily authorized fee, the custodian of a public record may not charge more that the actual cost of reproduction. See §119.07(4)(a)3, Fla. Stat.
If a public records request is of such a volume and complexity that it would require the custodian to expend a substantial amount of time and effort to fulfill the request, then the custodian may levy a “special service charge” upon the requestor. See §119.07(4)(d), Fla. Stat. See also Board of County Com’Rs v. Colby, 976 So.2d 31 (Fla. App., 2008). Even then, however, the custodian may not use the production of public records as a profit center. See AGO 85-03. The only permissible costs are those expressly outlined in the statutes or the actual cost of production. See AGOs 84-03, 76-34 and 75-50.
Unfortunately, many public officials use fees as a means to frustrate access to public records. This is so common that it’s almost a proverb. It’s been going on for a long time and I don’t see it coming to an end anytime soon. See State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905).
James writes:
“…I AM asking JUST to be able to view and inspect the ORIGINALS and copy them MYSELF on my own copy machine that I bring with me….”
This is an old issue that just keeps coming back. In most circumstances, it is impermissible for the custodian to charge for supervising the inspection of a public record. See Id.
Both custodians and requestors would do well to consider this: public records belong to the public. See Bell v. Kendrick 6 So. 868 (Fla. 1889); See also Maxwell v. Pine Gas Corp. 195 So. 2d. 602 (Fla. 4th DCA 1967). So, unless the Florida Legislature has made a particular record exempt or confidential, anyone who wants to see the record must be allowed to do so. Custodians of public records are authorized to take reasonable steps to protect those records from unauthorized alteration or destruction. See Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla., 1979). They may not, however, create non-statutory hurtles to access. The job of custodians is to protect records not to keep them from the public.
Being the custodian of a public record is a little like being a curator at a museum. You need to protect the exhibit, but it is still an exhibit. There would be no point in having a museum where all of the artifacts were locked away and kept from the public. Public records are much the same. If a public records custodian doesn’t like making records available to the public they are in the wrong profession.
James writes:
“The letter I got from Pinellas Couunty [SIC] sheriff’s yesterday is asking for 22.5 hours labor at 18.67 an hour to allow me to SEE the records i [SIC] requested. (some IA files and police reports)….”
The custodian of a public records may levy a “special service charge” if the request is voluminous and requires extensive labor. See §119.07(4)(d), Fla. Stat. Labor costs, however, are limited to the hourly wage (plus taxes and benefits) of the lowest paid person who could do the work, not the wage of the person actually doing the work. See Board of County Com’Rs v. Colby, 976 So.2d 31 (Fla. App., 2008).
If I were similarly situated I think I’d challenge the claim that the lowest paid personnel who could do the work are being paid $18.67 per hour. I’m guessing that the Sheriff of Pinellas County has all manner of folks working as volunteers, interns, and trustees that could do the work.
James writes:
“These records requests are two months old. Some of my records requests are over a year old and still have not been complied with. when I ask for a record that I know will be damaging to them, they just ignore the repeated requests over and over again.”
The only permissible delay in the production of a public record is the limited time required to gather the records, review them for exemptions and make redactions. Any delay beyond that is unlawful. See Tribune Co. v. Cannella, 458 So.2d 1075 (Fla., 1984); see also Michel v. Douglas, 464 So.2d 545, 10 Fla. L. Weekly 129 (Fla., 1985), AGO 96-55; Grapski v. City of Alachua, 31 So.3d 193 (Fla. App., 2010), State v. Webb, 786 So.2d 602 (Fla. App., 2001).
James writes:
“I understand the laws requiring redaction, and even though they have redacted mutiple [SIC] sections that they have no legal right to, my second question relates to the COST to redact. Both agencies are trying to charge ME to redact records. I have stated I want to view the ORIGINALS. I have stated that the Statutory obligation to redact is one impossed [SIC] on THEM and not me and they have no right to charge ME for redacting them as much as they would have a right to charge me for the expense when the officer first took the report for him driving out to the call or writing it or filing it the first time. These are THEIR costs and overhead and statutory obligations and not MINE. Do you agree?”
Yes, I agree. In fact I am currently appealing a decision from the 12th Judicial Circuit to the 2nd DCA over this very issue. Charging for redactions has become a red herring that many custodians use to radically (and I think, unlawfully) increase the cost of producing records and frustrate access.
“I have also filed criminal charges against the employees for violating Chapter 119, and both agencies refuse to take or investigate the criminal charge. I have files IA complaints against BOTH of these agencies employees for not providing me with my records, I have records to prove ALL this. They ignore those requests for IA investigations too.”
In my experience, criminal prosecutions for violations of Florida’s Public Records Act are exceedingly rare. Most State Attorneys don’t comply with public records laws themselves and are certainly not likely to enforce them on other agencies. That fact alone makes civil litigation the only practical option.
My public records experience with the SA for the 6th Judicial Circuit, Bernie McCabe, has been terrible. I seriously doubt that anyone in his office has actually read Section 119 of the Florida Statutes.
James writes:
“Will you help me file suit?”
As I mentioned at the outset, I am not an attorney, so I’m not able to help anyone file a lawsuit. I do file many lawsuits myself and expect to continue to do so. Sometimes I file Pro Se, but much more often have the benefit of excellent legal counsel.
You might consider contacting the Florida First Amendment Foundation for a referral to an attorney who specializes in open government litigation.
James, as always thanks for your comments and interest in FOGWatch.org. I hope this discussion is helpful. Stay in touch.
Thank you Mr. Chandler for your time and providing me with the wealth of your experience. I do understand that you are not an attorney and i officially proclaim that I shall not take anything you say to me as legal advice now or in the future. (my counter declaration, lol)
I should clarify that when I say help me file suit, I do not mean file on my behalf, but more along the lines of teach me and perhaps my attorney the “ropes” so to speak and share your document and case cite base.
More thoughts…..
With the fees being charged, does that not mean that poor people or indigent persons do not have access but to only the most simple and basic records requests (taking 15 minutes or less) and therefore they will be denied thier rights under Chapter 119 and the Florida Constitution? Have you ever assisted as an example a homeless person in requesting records to see if they would be denied records if they could not afford to pay these “fees”? Chapter 119 does say anyone at any reasonable time, not just those with money. Would you be interested in testing this theory?
Yet another thought. I read the “at any reasonable time by any person” language to make all public records seem much like a Library. I can walk into a library and view any book or document I wish. Public records laws read very similarly. What do you think the reaction would be if i were to just walk in and say “I want to see the records please. Not any specific records, all of them. I just want to see where they are, what they look like, how they are stored, what type of filing system is used and look through the drawers to see if there is anything I may wish to copy”
James,
I’d be happy to consult with your attorney regarding public records issues. Feel free to have her or him contact me directly.
You asked via email about the hourly rate issue (the rate of the lowest paid person who could do the work v. the hourly rate of the person actually doing the work). There is a circuit decision directly on point: State v. Gudinas, No. CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999). A copy can be found on the Florida Attorney General’s Government-In-The-Sunshine cite. You will also find the Government-In-The-Sunshine-Manual (starting page 163) particularly helpful on this issue. Note the page numbers are not consistent with the PDF page numbers.
Unfortunately, there is no provision in Florida’s Public Records Act for indigent persons. This is ironic, when you consider the very broad scope of Section 57.081 which provides that indigent persons be given free access to all services available from the Clerk of Court including photocopies. I would certainly support legislative action to correct that irony, in favor of access to the poor.
I think your plan to drop in and ask to see all of the public records that an agency has is fine, so long as you are prepared to pay the “special service charge” for extensive use of personnel to supervise your inspection. The statute is clear about this and I think you’re picking a fight that you’re going to loose. See § 119.07(4)(d).
You might consider taking the exact opposite approach. Ask for something VERY specific that would NOT require extensive research. If you want to test the system, think in terms of the best possible facts, not in terms of what feels good at the moment.
Think about leaving your hammer in your tool belt and using your Xacto-Knife.
Could you please show me where in the Fl. Statutes it says that the fee must be the lowest paid employee’s rate of pay that is able to fulfill the request? I have read the case that you cited and it seems to state the exact opposite of what you are saying.
The following is a portion of a e-mail I sent to a local police agency after receiving an inflated fee for being allowed to “inspect” records. I found the majority of the information used fromn this website FOGWatch.org. This is how I chose to use that information.
“As for your charging for public records, please be sure that your formulae you use to calculate these “fees” are within the law for Title X, Chapter 119 and The Attorney General’s Government-In-The-Sunshine manual as clarified below
The Attorney General’s Government-In-The-Sunshine manual which is supposed to be the State’s Guidelines for how open records would be handled by all government agencies in Florida.
The Attorney General’s Government-In-The-Sunshine manual states;
In State v. Gudinas, No. CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999) The court approved an agency’s charge for providing copies in response to a large public records request based on the clerk’s base rate of pay, excluding benefits. The court also concluded that an agency could charge only the clerical rate for the time spent making copies, even if due to staff shortages and a more highly paid person actually did the work.
This has further been defined as “the rate paid to the LOWEST paid employee that can physically do the work.” It is my understanding that you sometimes have jail trustees doing filing at the Pasco County Sheriff’s office, is that correct? What do you pay them? If you attempt to charge me a fee stating that my request will take an “extensive” amount of time, then at this point in time I am asking for the name of the actual employee that you contend is going to be doing this clerical work and his or her payroll records for the last month. I am also asking for the name and the payroll records for the last month of the LOWEST paid person you have on staff in the clerical department. If you have EVER had a jail trustee doing ANY filing or clerical work, I am asking you to document what you pay them.
I would also like you to provide to me the worksheet that you used to calculate any labor hours that will be multiplied by the hourly rate and how that breaks down to each individual record being requested. I am also asking if these fees include your staff copying these records or allowing me to review and copy them myself
The Attorney General’s Government-In-The-Sunshine manual also states “In order to comply with the statutory directive that an agency provide copies of records upon payment of the statutory fee, an agency MUST respond to requests for information as to copying costs. Wooton v. Cook, Supr. Also Woodward v. State 885 So. 2nd 444 (Fla. 4th DCA2004)
I am also asking exactly how you intend on monitoring the labor used to “produce” these records and how is that information going to be documented so that I can verify the “actual cost”? Especially since you contend that there will be an “upcharge” if more time is expended and a refund if less, therefore I have a right to these payroll records as part of my document request.
The Attorney General’s Government-In-The-Sunshine manual additionally states “Moreover, it would be difficult to justify the imposition of a fee for extensive clerical or supervisory assistance if the personnel providing such assistance were simultaneously performing other duties.” So, basically if the person working the entire half of the week were at any time performing ANY other duties, a fee should not be charged. What safeguards do you have in place to assure me, or that I could verify that would prove that these persons you are charging me a “fee” for any certain number of hours of labor for are not at any time doing anything else OTHER than producing OUR requested records. And if you can’t, the Attorney General’s Government-In-The-Sunshine manual states that you cannot justify a fee.
The Attorney General’s Government-In-The-Sunshine manual further states “an agency may charge for only the actual cost for duplication or copies of computerized public records.” So if any records requested by me are ever stored on a computer, we can only be charged for the ACTUAL COST to duplicate or copy those records. Which of the records that we have requested are stored on computers and which are stored as hard copy papers?
Additionally, the Attorney General’s Government-In-The-Sunshine manual also states “ An Agency is not ordinarily authorized to charge for the costs to review records for statutorily exempt material. Op. Att’y Gen. Fla. 84-81(1984)
I would ask that you reexamine your fee structure, calculations and formula you used to arrive at what may be an attempt to block my access to public records by using inflated fees in contravention of the Attorney General’s clear instructions for handling open records requests.
If you decide that there will be no fees, then there is no need to provide me with the two employee’s payroll records I have requested above.
I would also like to point out at this time that the Attorney General’s Government-In-The-Sunshine manual has language addressing the criminal violation of Title X, Chapter 199.07(1)(a) that I attempted to report today stating “Similarly, in State v. Webb, 786 So. 2d. 602, 604(Fla. 1st DCA2001) the court held that it was an error for a lower court judge to vacate the misdemeanor conviction of a records custodian (Webb) who had been found guilty of willfully violating Chapter 119.”
It is a crime under Title X, Chapter 119.07 (1)(a) to violate the terms of Chapter 119.
Reblogged this on lawlessamericaflorida.
Them there custodians of the public records ought to read this so they can get their act together.
I read with great interest the article in the Neighborhood (Boynton) section of the Sun Sentinel on Jan 9, 2013 by Attiyya Anthony. Exactly two years ago I submitted a substantial public records request to the City of Boynton on the issue of moving the police department to Renaissance Commons – something favored by then mayor Jerry Taylor (who is now running again for mayor). Many questional and opposed that move. I looked like a “deal” had been struck with a developer. My records request “dug” at the heart of the issue. As a trained researcher (PhD) I asked very specific questions. Within days of making the request I received (electronically) documentation from several city departments. Then I received a letter from the city attorney detailing charges (over $2000) which I would have to pay in order to obtain records. I was gratefuly that some departments responded so quickly prior to the Cheroff letter being issued. I consulted an attorney and he wrote as follows to the city attorney: “I have been forward the email you sent to John McGovern in response to his public records request dated December 7, 2009. Please provide me a detailed explanation of the charges set forth below, along with citation to the specific section and subsection of Chapter 119, Florida Statutes, that allows the City of Boynton Beach to seek such charges. Please be advised that neither the provision to which you have cited below, nor Florida law, defines “extensive”. From my perspective, because Chapter 119 is enacted to effectuate a constitutional right, “extensive” will be construed against the City of Boynton Beach. What I can say for sure is that charges for public records cannot frustrate Mr. McGovern’s constitutional rights.”
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Since I had received so much documentation “free of charge” from departments prior to the Cheroff letter being issued I was content that my questions and concerns were substantially answered in the dodumentation I received and did not pursue the issue further.
I am currently involved in another records request with the FL Department of Elder Affairs and they also want me to pay $564 to have records copied for me to review. At several points in your commentary you touch on the essential point: why should anyone have to pay to review a public record except that it is possibly more convenient to the public agency to copy the material in order to make it available. It is laughable that a persons should be expected to pay large sums of money in order to look at a public record; ordering copies of documents after the review.
Exorbitant fees are one of the most common roadblocks encountered by folks seeking access to public records. It is an unfortunate reality of “sunshine” in Florida.
I did want to comment that I recently requested some rather extensive records from Bernie McCabe and the State Attorney’s office in Pinellas County. This was made much easier once I obtained the email addresses of key members of the SAO staff because previously I was told I must send them my snail mail with no verification that they were received. I obtained that e-mail list from this FOGWatch site. (Thank you Chandler Brothers).
Mr. McCabe’s office was shockingly cooperative and provided me with over a dozen large files. They also had copied each (I was not permitted to see the originals, only the redacted) and allowed me to view, inspect and copy them. I brought my own scanner down and over two days spent 8 hours copying and scanning. During that entire eight hours they had two persons sitting doing nothing other than watching me (I guess so that I don’t steal or destroy the copies since they did not let me inspect the originals??) The total cost was zero.
I credit their cooperation with the ongoing efforts of the Chandlers. I am still having huge difficulty with the Pinellas County Sheriff’s Office and the Clearwater PD and may have to file suit in the near future.