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First Amendment Foundation will grade legislators on Florida's open government laws

WEST PALM BEACH — Soon after the Sept. 11, 2001, terrorist attacks, the Florida Legislature debated a bill that would exempt from public access all information about crop-dusting operations.

But most operators are actively broadcasting that information in search of clients. And their registration numbers are painted right on their planes' tails.

"How do you exempt something that is clearly visible?" Barbara Petersen asks. The bill never became law.

Because of Florida's Government in the Sunshine Law, the state's records and meetings are more accessible than in most states. But the Legislature has, year in and year out, instituted, or considered instituting, numerous exemptions. The body, on average, imposes up to a dozen a year; the grand total, as of early February, was 1,119.

Keeping an eye on those efforts is Petersen, president of Florida's First Amendment Foundation, a Tallahassee nonprofit open-government advocacy group. It's supported by newspapers and broadcasters as well as numerous lawyers and just plain citizens. Its mission is to help all of the above. Whether it's a powerful news outlet or a property owner wanting to see the paperwork for the road that was rerouted in front of his house.

Bills already proposed for this session would let elected officials talk in private and block information about college executive candidates.

Where does your legislator stand?

Starting with the 2017 legislative session, which begins Tuesday, the Florida Society of News Editors plans to make it easier to find out.

Each year FSNE completes a project devoted to Sunshine Week, a nationwide initiative to educate the public about the importance of transparent government. This year's project will focus on a "scorecard" to track the foundation's priority list of public records exemptions. FSNE members will create a permanent scoring system to grade legislators on their introduction of bills and their final votes.

The Palm Beach Post, as part of an annual project by the Florida Society of News Editors, will report on a legislative "scorecard." Legislators will be graded by the Foundation for how they voted for and, in some cases, introduced exemptions.

Reporters from Florida newspapers will establish a final scorecard when the session ends and interview lawmakers about their decisions related to public record exemptions.

Florida's Legislature established public records laws as early as the early 20th century, created the Government in the Sunshine Law in the late 1960s, and in 1992 established a "constitutional right of access."

In each legislative session, hundreds of bills are submitted to create exemptions. Some years, a lot pass. Some years a few pass. Petersen recalled a year where about 20 were voted in.

"The vast majority of the bills we track are justified, and we take a neutral position on them, or we work to make them such that we're neutral," Petersen said.

And, she told one politician in a letter, "We agree that the requirements of our famed Sunshine Law can be an inconvenience for government officials at times. But the right of Floridians to oversee their government and hold it accountable for its actions — a right imbedded in our constitution— far outweighs such minor annoyances."

She also said that the Sunshine Law "is not a partisan issue. That's a misperception. Everyone thinks Republicans hate the law and Democrats love the law. That's not true. We have friends and detractors on both sides of the aisle."

Petersen keeps busy writing sponsors of bills the foundation opposes.

She wrote state Rep. Bob Rommel, R-Naples, to oppose HB 351, which would exempt personal identifying information of applicants for president, provost, or dean of a state college and would close meetings related to executive searches.

And she wrote state Rep. Byron Donalds, also R-Naples, about HB 843, which, in an elected body of at least five members, would allow two of them to discuss public business in private "without procedural safeguards such as notice or a requirement that minutes of such discussions be taken." She said the bill "invites pernicious mischief by our elected officials."

Sometimes Petersen and other public records advocates win. Sometimes they don't.

In 1981, 6-year-old Adam Walsh was abducted from a Broward County mall and killed. The slaying was a watershed for how authorities respond to child abductions and made the boy's father, John, a crime fighting advocate and longtime television host.

In 1996, four newspapers sued under the state's open records laws. Their argument: Police in Hollywood couldn't reasonably claim the exemption that the case still was active after 15 years. Even as the Walshes and the Broward County State Attorney filed emergency motions to block the release, saying it would jeopardize the case, a judge agreed with the newspapers and the police released more than 10,000 pages of documents. They suggested drifter Ottis Toole killed the boy, but Hollywood police were unable to build a strong enough case to charge him.

Even today, the case remains officially unsolved, although an investigator working with the boy's parents made a powerful case in 2011 of what the newspapers said in 1996: Toole was the killer.

And in February 2001, auto racing legend Dale Earnhardt Sr. died when his car slammed into a wall on the last lap of the Daytona 500. Authorities later blocked news outlets' access to autopsy photos, which were public record, and the outlets were permitted only to have an expert review the photos. They used that analysis to raise questions about how racing's governing body, NASCAR, handled Earnhardt's death.

During the legal battle, the Legislature passed a law exempting autopsy photos, saying they feared ghoulish images would make their way to the Internet. Newspapers argued they never do that and not giving them the photos removed their ability to question autopsy results. The ban has survived legal challenges.

Not everyone sees the Sunshine Law as untouchable — or as always a good thing.

In 2015, Gulf Stream, east of Boynton Beach, was swamped by hundreds of public records requested from a resident who then sued when the town of about 900, with a paid office staff of six, was unable to keep up. In 2016, legislation fizzled that would have removed the requirement that government agencies pay attorney fees if they lose a public records suit. Opponents said while the intent to save small entities such as Gulf Stream was admirable, such bills would have a chilling effect on people afraid that if they sought public records and lost in court, they'd be stuck with a huge legal bill.

Similar legislation is up again this year, and again the foundation opposes it. But not Keith Rizzardi.

"In normal circumstances, the Sunshine State's public records law is a model for ensuring the disclosure of information to the benefit of an informed citizenry," Rizzardi, a law professor at St. Thomas University School of Law in Miami, wrote for the law review of the Stetson University College of Law in Gulfport.

"Experience shows that the abnormal is occurring. Lacking sufficient boundaries to prevent misuses of the law, the efficiency of our bureaucracy is compromised, and taxpayers are the victims," said Rizzardi, who worked with Gulf Stream on its case.

The professor also cited a case in Polk County in which a requester "sought to obtain the health insurance information for Polk County school employees, spouses, and children. To many, the request appeared to be a shocking invasion of privacy, but under the Florida Constitution, the right to privacy is subordinate to the right of access to public records. Indeed, the broad request, and the resulting litigation, eventually expanded to include 11 Florida school boards, and the government was compelled to respond."

How the scoring system works

The scoring system for the Florida Society of News Editors will assign points for about 10 critical government openness bills this legislative session. Legislators will get three points for a floor vote, seven points for co-sponsoring a bill and 10 points for sponsoring a bill that's on the list. Votes against openness will lose points; votes for openness gain points. Legislators can get a bonus point for communicating with the foundation about the bill. The scores will be compared to the session's most extreme legislator — good or bad — and turned into standard letter grades for comparison. A perfectly neutral legislator will get a C. More on the scoring, 7B

Palm Beach Post

First Amendment Foundation will grade legislators on Florida's open government laws 03/06/17 [Last modified: Monday, March 6, 2017 11:13am]
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