With the advent of freedom of information laws came a series of guidelines meant to encourage government agencies to follow not just the letter, but the spirit of the law. There's always been a gap between the public and their public servants, and these open records laws have attempted to bridge that by giving people the power to demand transparency from government agencies. In theory, it's great. In practice, it's redactions, refusals and lawsuits
One of the key aspects of these statutes is the limitation of fees charged by responding agencies. This is in place to prohibit agencies from discouraging requests by pricing the public out of the market. That fees should be charged at all is debatable
, considering everything from the creation of the documents to the retrieval of requested information is already paid for with tax dollars. Nonetheless, agencies are warned against charging excessive fees to avoid creating a chilling effect that would inhibit further transparency.
Here's a plainly-worded version of this integral part of Florida's public records laws
The Florida Statutes provide a schedule for copying fees. If no fee is set forth in the statutes, section 119.07(4)(a)1 of the Florida Statutes permits agencies to charge up to 15 cents per one-sided copy for paper copies that are 14 inches by 8 ½ inches or less and an additional 5 cents for two-sided copies. Agencies can also charge one dollar for certified copies of a public record. For other copies, the charge is limited to the cost of the material and supplies used.
A few exceptions exist where agencies may charge more than 15 cents. Among these are all court records, county maps, aerial photographs, and crash and homicide reports. An agency may not charge a sales tax when providing copies of public records.
Sometimes, the nature or the volume of the public records requested will require extensive use of the agency’s information technology resources or of the clerical or supervisory personnel assigned to make copies or safeguard records. In these instances, the law allows agencies to charge a service fee for the inspection and copying of public records. All service charges for inspecting public records must be REASONABLE.
Again, fantastic in theory but not so much in practice
. (h/t to Techdirt reader Will)
[Angel] King has fought for nearly five years to learn more about her daughter's supposed suicide in Jacksonville Beach, which she strongly believes was not a suicide at all. She's repeatedly pressed Jacksonville Beach cops, prosecutors and medical examiners for more details about what she considers the suspicious circumstances surrounding her 24-year-old daughter's death.
Last week, she finally got what she's been waiting for from the State Attorney's Office after repeated requests — an email saying her records were available, and she can have them.
One little catch: The records would cost her $178,949.48.
It appears the State Attorney's Office has a very liberal translation of the word "reasonable." There's nothing reasonable about demanding $180,000 for the release of records related to a single investigation. There's no telling how many responsive documents the attorney's office is sitting on (which it won't even begin compiling until King submits an $89,475 down payment), but it's presumably smaller than the 840 pages turned over by the DHS
to Scott Ainslie of MuckRock, which charged him $0 as the cost was "below the $14 minimum."
This doesn't sound like an agency trying to recover costs. It sounds like an agency that doesn't want to make certain documents public. King has several questions about the circumstances surrounding her daughter's death, but no one wants to answer them.
The eventual ruling of suicide was based on initial reports from a botched investigation by Jacksonville Beach Police Department officers, King and private investigators who have looked into the case allege.
Boykin somehow used the gun to shoot herself in the chest, though the maneuver would have required her to hold the pistol in a manner in which she had to use her thumb to pull the trigger, according to outside forensics experts King has consulted. And Boykin's body had obviously been moved from where she died, based on the location of blood splatters, they said. King says she has found no records to indicate that detectives informed the medical examiner of that detail until well after the case was closed.
If this were simply an exception, it wouldn't be as concerning. But other government agencies in Florida are charging excessive fees for the retrieval of public records.
Barbara Petersen of the Florida First Amendment Foundation sought one week's worth of email from the governor's Communication Director
. The governor's office charged her $780 and took months to respond. Other agencies Petersen contacted charged as little as $10 for two weeks of email, while also responding more quickly. The governor's office claimed the increased cost was due to many of the governor's staff using personal email to conduct state business (another cause for alarm
), resulting in a $70/hr. charge being applied to search non-government accounts.
More recently, a judge determined that a county clerk overcharged a reporter
when he asked for $556 to produce 556 pages of electronic documents. The final cost to the reporter after the court case? $2 for a CD containing the requested information.
The Citizens Awareness Foundation of Florida asked for similar documents from every school district in the state (a list of law enforcement agencies that provide school resource officers and details of any settlement agreements the schools had entered into) and were given a wide variety of responses
. Some turned over the documents at no cost, but others quoted prices of $700-$8,000 to fulfill the request, with the fees being demanded up front before compiling of responsive documents would begin.
Now, some of the above may not be malicious attempts to keep requesters separated from the information they're seeking. Some of these cases may just be misreading of the statutes or government employees acting on a minimum of training. But others are clearly designed to discourage the request of public records.
In King's case, the $180,000 asked only makes sense if a) there's a ton of internal communication (which would suggest a very questionable investigation) or b) the DA's office would rather not have responsive documents made public (which suggests the very same thing).
The office has tried to justify the estimate
[A]ssistant state attorney Brittany O'Neil, of the office's public records division, said the estimate was based on numerous factors, including attorneys' hours for reviewing documents, clerical work to collect it, redactions to some of the documents, making copies and numerous other tasks that would be needed to meet her request.
"Numerous other tasks" is certainly vague enough. The "attorneys' hours" sounds
expensive, but doesn't necessarily have to be. The same letter that explains the reasonable fees provision says the following
A higher rate may be charged for requests that involve complex documents containing various exempt or confidential information. Usually this will involve documents that have to be reviewed by an attorney or paralegal with the knowledge necessary to make decisions with respect to potential exemptions. For example, a circuit court judge approved a rate of thirty-five dollars per hour in a case where the agency attorney had reviewed exempt material in a voluminous criminal case file.
Even 1,000 hours of agency attorney time would only add up to $35,000. It doesn't appear as though judges are willing to approve excessive hourly costs. In fact, most hourly rates are supposed to be calculated at a state employee base rate, rather than the actual hourly wage of the employee doing the work.
King has spent $2,000 so far obtaining records from the state attorney's office, and a spokesperson said they've been "responsive" to everything she's requested. King's latest is a "blanket request," seeking everything the office has on her daughter's death.
"She has put in several requests and this is the latest request," Barnard says. "She has had complete access to what she wanted. We have responded to every request — whether we could fulfill it, or if we didn't have the records, or when we needed more information from her about what records she was requesting."
This defense of its actions is actually an admission that the office is still
sitting on a ton of responsive documents. If it wasn't, the response would have indicated there was nothing further to be released that hadn't already been requested. And the presence of tons of documents for a supposed open-and-shut "suicide" doesn't exactly instill confidence that the office's decision to close the case was correct.