Florida's Public Records Law
The U.S. Constitution does not grant an absolute right to access government information, but the Freedom of Information Act allows public access to some federal executive agency records, and each of the 50 states have statutory provisions for access to state records. However, it is not sufficient to accept that because there are legal provisions granting the public access to information, the public is actually receiving that access. To fully evaluate the openness of government, the practical application of access laws must be tested. Only then can scholars know whether citizens have access to government information.
Records custodians are the government workers charged with the duty of granting or denying access to public records.Most states statutorily delegate the responsibility of administering public records laws to records custodians, making them the gatekeepers to government information. Records custodians are often government employees to whom granting or denying access to records is an extra responsibility added to a larger position.
Any document produced or received by a public agency is assumed to be open unless specifically exempted. Public records are defined as "All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, ... made or received ... in connection with the transaction of official business by any agency."
In Florida, records custodians are defined as the elected state, county, or municipal officer responsible for maintaining the office holding public records. Records custodians' duties are to monitor the disclosure or nondisclosure of public records within their care. Fla. Stat. 119.07 limits the restrictions that custodians may place on access to public records. Custodians may not impose a rule or condition that obstructs a requester's right to access public records.
This study used the participant-observer technique to test the accessibility of public records by sending 103 students to visit law enforcement agencies across the state to collect the same public record -- crime statistics. The Florida Department of Law Enforcement requires every law enforcement agency in the state to tabulate crime statistics. Citizens often use them to evaluate the crime in an area in which they are considering living, or to evaluate the crime in the are in which they already live. They can be invaluable.
Students were recruited to participate from University of Florida journalism classes for which access to public records might be a logical extension of the curriculum. Students were enlisted from Reporting, JOU 3101, and Law of Mass Communication, MMC 4200. The students received extra credit from their professors after completing the assignment. The students self-selected participation and the counties they would visit. No students were turned away from participation.
The students acted as records requesters and collected crime statistics from sheriff's offices and police departments in their hometowns. These crime statistics are tabulations of the kinds of crimes committed in the areas each law enforcement agency services. Crime statistics were selected because it was a record every law enforcement agency should have. The Florida Department of Law Enforcement requires each law enforcement agency to tabulate and report the incidence of crimes in the agency's area each year. Also, law enforcement agencies are a part of the few government agencies open most of the day and open on weekends, making it more convenient for the records requesters to collect the records.
Records requesters visited nearly half the counties in the state. The records requesters were told they could visit any county in the state. However, when requesters asked for a recommendation for a county to visit, they were encouraged to go to less populated counties, and they were offered a map to use to choose a county. The records requesters tended to choose highly populated areas to visit, such as Dade and Broward counties in South Florida, so this recommendation helped encourage a more even canvas across the state. The requesters registered with the author the counties they would visit before traveling to collect the public records.
Records requesters were required to participate in a training session before collecting the records. During the training sessions, the records requesters were given some instruction on Florida's Public Records Law. The requesters were given just enough information to be able to access the records -- such as the definition of a public record, the people who have access to the records and custodians' responsibilities -- but not enough to make the records requesters experts. The students were told that there was no "wrong way" to get the data and not to feel they had failed if custodians did not release the data.
The records requesters were only told to ask for the most recent crime statistics for the agency's area. This is all they were told about how to ask for the crime statistics. They were told to respond in whatever way they felt most comfortable if custodians asked why they needed the information. The requesters were not told to lie, but they were not cautioned against lying. They were also told they could choose not to answer at all. They were told to avoid explaining that they were requesting records for a research project because the custodians may have treated them differently, skewing the data. Many requesters said they told custodians they needed the data for a project or for school, which was accurate but still vague.
The records requesters were told to get a photocopy of the record before leaving the law enforcement agency. The reason for this was two-fold: to make sure the observer went to the office to get the record and to find out what the agency would charge for making photocopies. The records requesters were also told that calls to the records custodians would be made at random to make sure those who did not get the record actually went to the agency. This, too, was to encourage the requesters to complete the assignment.
The records requesters received a report form that they were asked to fill out after asking for the records. They used the form to document the date and time they requested the record, the county and name of the law enforcement agency, the cost of copies, and the questions custodians asked, if any. On the back of each form, requesters were asked to write detailed accounts of their experiences. This section was used, with the other information on the survey, to uncover trends in records custodians' responses to requests.
Receiving access to the statistics did not guarantee what the requesters described as pleasant experiences. Requesters were intimidated by conditions of access, prying questions and confusing fee schedules. In each case, the requesters' attitudes toward their experiences were directly related to records custodians' treatment of them. To the records requesters, positive experiences meant respect and cooperation from records custodians, according to requesters. Negative experiences were those in which custodians denied access to crime statistics, or when the custodians argued with, intimidated, or laughed at requesters.
There were three main reasons custodians gave for denying access to the crime statistics.
None of them were lawful.
|The most common reasons for denying access to crime statistics:||What the law says (Fla. Stat. 119):|
|The custodian was not authorized to release the file.||Anyone with custody of a public record is authorized to release it.|
|The document was not a public record.||The document fell under the state's definition of a public record.|
|The records requester did not put the request in writing or request in person.||Records requests are not required to be in a specific format as a condition of access.|
Citizens in Florida have a right to access to government information, a right that was granted by the Florida Constitution. According to Attorney General Bob Butterworth, this right "offers Floridians the right to become knowledgeable about their government, and, thus, active and participating members of our democracy."
Government information can be a valuable tool for educating the public, especially in the area of public safety. For example, citizens can use the crime statistics requested in this study to learn what parts of their areas are most crime-ridden and what the most dangerous times of day are in those areas. They can use the information to learn what the most common types of crimes are committed in their areas. Crime data can make it possible for citizens to protect themselves and their families from becoming crime victims.
Records custodians in this study most often denied access to the crime statistics with an explanation that they were not authorized to grant access to the record. This could be symptoms of ignorance, misunderstanding or disregard of Florida's Public Records Law because these records custodians were the people specifically authorized by the law to grant access to the public records. The two other most-used denials -- that the records did not fall under Florida's definitions of public records, and that requesters must call ahead or ask for records in person B could also show records custodians= ignorance of the law because the crime statistics should have been available to the public, according to the public records law.
Records custodians should be better educated about Florida's Public Records Law and well-versed in the records in their care, not only to correctly grant or deny access to the records, but also to use the most expedient and cost-effective avenue for providing records. Records custodians must be some of the most knowledgeable employees of state agencies in the Public Records Law because they are the people who control access to Florida's government information. Educating records custodians about open government laws could be accomplished by implementing a required state-sponsored seminar that records custodians must take regularly. Currently, the Department of State sponsors occasional seminars in Florida's Open Meetings and Public Records laws for records managers, but attendance is optional. Employers at state agencies could also oversee in-house seminars, rather than waiting for someone to come from Tallahassee, to ensure that their employees are properly trained in administering access provisions.
The state of Florida should provide records custodians with an expert to contact when they have questions about interpreting the laws to make sure that no citizen is denied access to government information because a custodian is unsure about whether a record is available for public inspection. This could be implemented by formally appointing a member of the attorney general's staff and/or an attorney within the county or municipality to answer calls from records custodians.
This type of research, in which records custodians responses to requests
in any of the state's public agencies are evaluated, must be encouraged
because it can be used to correct unlawful practices by records custodians.
It can also be used to educate members of the public, records
custodians and legislative representatives about the whether current
open government laws are effective. This study, as well as the studies in
the "other state's audits" section of this site, showed that public
records laws are not functioning effectively for citizens' access to
government information. While this study focused on law enforcement
agencies, increased research is necessary to evaluate all government
agencies to verify compliance with open government laws.