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.
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:
“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).
“…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.
“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.
“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).
“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.
“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.