Recently, various agencies have adopted policies that centralize control of records in a way that contorts the process of making a public records requests into little more than a “scavenger hunt.” These efforts at centralization require citizens to make their public records requests to specific departments or personnel even though those departments and personnel do not have custody or control of the records being sought.
In Palm Beach County, for instance, citizens seeking records from various departments have been directed to make their public records requests to the County’s Public Affairs Officer. For Stanly Voice, an eighty-nine-year-old citizen activist, this means traveling miles away from where records are actually created, used, maintained and stored and making the request to the PAO who isn’t actually charged with maintaining the records.
Such policies ignore the unequivocal language of the Public Records Act: “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.” (emphasis supplied)
Florida law defines the “custodian of public records” as “the elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee.” Florida courts have consistently held that such a definition does not diminish the obligation of “every person who has custody of a public record” to make such records available to the public.
Within the context of making records available to the public, courts have held that “custodian” refers to all agency personnel who have it within their power to release or communicate public records. The courts have further clarified the issue by holding that “in order to have custody, one must have supervision and control over the document or have legal responsibility for its care, keeping or guardianship.”
Florida law also places upon the custodian an affirmative obligation to direct the requestor to “the location at which the records can be accessed.” What is absent from the law is any authority for the custodian to create non-statutory barriers to access.
It is difficult to square prevailing case law with any policy that forces a citizen to make his or her public records request to someone who does not have custody or control of the records.
Polices that centralize public records access are indicative of an agency culture, which is antithetical to openness. In order to change this culture agency leadership must first embrace the fact that public records access in Florida is a constitutionally protected civil right. That fact needs to be regularly reinforced to all agency personnel.
Additionally, agency leaders must be willing to invest the resources to adequately train personnel who have custody and control of public records so they can respond lawfully to requests from citizens. With the availability of excellent resources like the Florida Attorney General’s Office of Open Government and the Florida First Amendment Foundation there should be never be a scarcity of training.
Circulating a memo and hosting a seminar simply isn’t enough. Agencies must “inspect what they expect.”
If the leadership of a public agency means to take seriously its obligations under the Public Records Act, then it must take concrete steps to frequently verify that its personnel are able and willing to respond to public records requests in compliance with the law. Implementing a “secret shopper” program would help to expose agency shortcomings. If an agency does not test for compliance then it is destined to repeat the mistakes of the past and to be burdened with the attendant costs of litigation initiated by the media and citizens who demand that their civil rights be taken seriously.
Open government fosters good governance. That axiom should encourage public officials to celebrate the public’s right to know, rather trying to find new ways to frustrate it.