Transparency is important. I make a big deal about state and local agencies (and those acting on their behalf) being open about what they are doing in the public’s name and at the public’s expense. Although, www.FOGWatch.org is not in any sense of the word an agency, and receives not one penny of public money, I still think it’s important to be open about what we do.
In the past, I have made no secret about the fact that I regularly (almost perpetually) audit public agencies for their compliance with Florida’s Public Records Act. For example, before I conducted a series of in-person audits around the state, I outlined my itinerary and explained how and when the audit would be conducted.
My audits are nothing more than a citizen exercising his constitutionally protected Right To Know. I just happen to make notes on the responses of public officials.
So, I don’t feel like I have anything to hide. In spite of the ridiculous accusations of some defendants that FOGWatch engages in “gotcha” litigation, I’m not tricking anyone into breaking the law. In fact, if I get so much as a whiff of someone trying to do the right thing they get a pass. And let me be clear, I only file a small fraction of the lawsuits that I could file. I’m not looking for technical violations. I’m not looking for some dull-witted public employee that can be coaxed into breaking the law. If I were, I’d have filed many times more lawsuits than I have.
My goal is compliance, not litigation. Sadly, the only tool that the public has to encourage and enforce transparency is judicial intervention. Reasoning with public officials DOES NOT WORK. For example:
Recently, one defendant seriously suggested that filing a lawsuit was unnecessary. They reasoned that instead of filing a lawsuit, I should have hired an attorney to call the agency to demand their compliance with Florida’s Public Records Act. Bear in mind, that in both instances hiring an attorney is involved. The big difference is that I can’t recover my attorney’s fees unless I file a lawsuit. So these public officials believe that in response to their violations of the Florida Constitution and Florida Statutes, I should pick-up the tab for hiring an attorney to tell them to do their job.
Earlier this week, I was training the new FOGWatch staff. As part of that we were preparing to pick-up a project that I had orphaned a while back. I call it the “SRO Audit” (School Resource Officer Audit). Like most complex audits this one is going to take a while and will involve layers of public records requests; the first of which is to find out from each of the 67 school districts in Florida the names of any law enforcement agencies that provide law enforcement personnel to that particular district. It’s a very straightforward request.
Now, bear in mind that all we were trying to do is get the names of a LE agency. For example, in Polk County the school district uses SROs from the Sheriff, the Lakeland Police Department, etc. So we would ask for public records that show the names of any law enforcement agency that provides SROs to the district. In many cases the folks we spoke to would respond appropriately and even offer to just tell us the names of the agencies as an alternative to digging up records.
We just wanted the information. We were NOT looking for litigation. We needed the records so that we could then make public records requests of the LE agencies.
There were several instances where public officials simply could not resist the urge to provoke litigation. We heard demands that the requests must be in writing; demands to know personal details about the requestor; absurd claims that the records were not public, etc. In two instances I made an effort to defuse the situation.
In the first instance, when I heard the designated custodian of records for a school district in North Florida tell a staffer that all public records request must be made in writing (we were using a speaker phone), I decided to call back and speak with the official directly. I just wanted the records so we could proceed with the SRO Audit.
When I called back, I identified myself, explained what I do and politely asked for the records. What I got was an extraordinarily hostile response and one of the most egregious denials I’ve ever heard. In an effort to simply get the records and move things along I called the district’s lawyer. Again I identified myself and explained what it is I do. I politely described the preceding call and that I was calling to let her know that she might want to consider taking some kind of remedial action. I promise, I was super polite. Her response was a condescending “don’t tell me what the law says” and “don’t threaten me.”
I made no threat. I simply told her that in spite of the egregious denial I had just experienced, I had no intention of filing a lawsuit; that I was simply calling as a courtesy to let her know that there was a problem that, if left uncorrected, would likely lead problems in the future. Well, she talked me into it.
Only minutes later, another staffer called a school district in South Florida and was told, very deliberately, that her request would have to be submitted in writing. At that point I jumped into the conversation and asked to speak with the Superintendent. A moment later I was connected.
In a polite tone, I introduced myself and explained that just moments earlier the Superintendent’s secretary had told my staffer that her public records request would have to be submitted in writing. I then said “as a courtesy I wanted to bring this to your attention. As you know that’s problematic.” The Superintendent’s response was “why is that problematic?”
My first thought, was OK, this fellow sounds nice and reasonable, may be he does not understand what I just said. So I repeated the scenario and added that under Florida’s Public Records Act a public agency has no authority to demand that a public records request be made in writing. Moreover, substantive case law makes this issue well established and not open to debate.
The Superintendent responded by making a spirited rant about the absurdity of giving out records to people that he did not know; the necessity of demanding that all public records requests be made in writing, and; the depth of his personal experience as a trained educator and journalist, which made him an authority on the subject.
Once again, in an effort to help a public agency correct a wrongheaded policy, my efforts were rebuffed. When I asked to speak with the Superintendent I had no desire to litigate. By the time the call ended my only questions was “Pro Se or with counsel?”
So here’s the deal, I want public officials to respect the right of the public to access the records that belong to the public. I’m happy to work with you to accomplish that. That’s a sincere offer. But if you’re going to dig your heels in and thumb your nose at the law, don’t whine when the process server show up.