Floridians will get a chance in November to guarantee their access to the records and meetings of their government.
A proposed constitutional amendment approved Tuesday by the Senate and earlier by the House goes directly to the general election ballot. If voters approve it, Florida will become the only state that guarantees open government in its Constitution, according to Attorney General Bob Butterworth.
Government-in-the-Sunshine has been a central fact of Florida life for decades, allowing citizens access to the decisions determining how their taxes are spent, how their children are educated, how criminals are punished, and countless other government functions.
But the open records policy was seriously eroded last year by a state Supreme Court decision holding that the public records law doesn't apply to officials whose power comes from the Constitution, such as legislators, the governor and the independently elected Cabinet.
Restoring the law quickly became a hot topic in Tallahassee. But even late last year, many legislators, unused to opening their own records to scrutiny, balked at having to stand under the open records umbrella. With a few compromises, legislators came to see it as an important matter for constituents.
"This will be one of the most important issues during the election," said state Sen. Curt Kiser, R-Palm Harbor, during the Senate debate.
"This is important to everybody in Florida, not just reporters," said Mike Foley, executive editor of the St. Petersburg Times and president of the Florida Society of Newspaper Editors.
"These public representatives are required to do their business in public, and that should be important to everyone who pays taxes, or would pay taxes, or goes to school, or buys an auto tag _ any of those many times your life touches state government," he said.
Butterworth had been prepared to head a petition drive to put an open records measure on the ballot if the Legislature didn't come up with a meaningful proposal of its own. Deputy Attorney General Pete Antonacci said there's no longer a need to gather signatures.
"We're very pleased," he said after the Senate vote. "The Legislature stepped into the breach and solved the problem."
Because the measure is a joint resolution of both houses, it need not be signed by the governor.
If approved by voters, the constitutional amendment would shine even more light on government than before, for it would make the Legislature follow the open records laws. The Constitution already contains a provision requiring open meetings of the Legislature.
Current exemptions to the public records law, such as those for certain medical records, trade secrets and police investigations, would remain in place. Future exemptions would be subjected to far greater scrutiny.
That's because the proposed amendment requires that exemptions to the public records laws cannot quietly be tacked onto other bills, as has been the practice in the past. Instead, each exemption must be the subject of its own bill, and therefore the subject of public debate and possibly the governor's veto. What's more, exemptions must be shown to be a public necessity.
"The concern we have had
. is that (proposed exemptions) would get a full and complete hearing," Antonacci said. "This amendment will put us in a better position for the future."
Originally, the Senate version of the proposed constitutional amendment would have required a two-thirds vote of the Legislature to enact new exemptions to the public records law. But the House version called for a simple majority. In the interest of getting an open records measure on the ballot, Senate President Gwen Margolis, D-North Miami Beach, agreed to go with the House version.
Kiser defended the two-thirds requirement, saying that it should take more than just a simple majority to keep records out of the hands of the people. But he was voted down by senators who agreed with Margolis' argument that it was better to take the House version than to get nothing at all.
Moreover, Antonacci said that the two-thirds vote was more important for symbolic reasons than for practical ones.
An extraordinary vote "says that any exemption to the basic philosophy of open government needs to be looked at with extraordinary care," agreed Pete Weitzel, managing editor of the Miami Herald and president of the First Amendment Foundation.
"But if you look at the history, most exemptions have passed by substantial majorities."
The final version of the proposed amendment also lets the judicial branch keep some discretion over which of its records and meetings are public. The Supreme Court would be allowed to keep the public out when needed to "preserve the fair, impartial and orderly administration of justice."
But if the Legislature decides the court is being too secretive, it can overrule it by a two-thirds vote.
The proposal contains a break for the Legislature by letting it decide when meetings of less than half the members can be closed. It also can decide how long to records must be kept.
Weitzel said that even if the amendment makes it into the Constitution, keeping government records and meetings sufficiently open will still require vigilance.
"But this amendment will make that easier," he said.
ARTICLE I, SECTION 24
ACCESS TO PUBLIC RECORDS AND MEETINGS _ Proposing an amendment to the State Constitution, effective January 1, 1993, to grant public access to records and meetings of the executive, judicial, and legislative branches of state government, counties, municipalities, school districts, and special districts; to allow the legislature to enact exemptions and rules; to allow the Supreme Court to adopt rules exempting certain judicial bodies; and to apply existing exemptions to judicial and legislative records and meetings.