April Shine On – Monthly Chat with First Amendment Foundation

Barbara Petersen with the Florida First Amendment Foundation is back! Last month she addressed the issue of whether notes taken by public officials during meetings are subject to public information laws and what police are required to release during an ongoing investigation.

This month Shine On will take a look at some bills to watch in the 2014 Florida Legislative Session related to access to information and transparency in the sunshine state.

Let us know what you could use some help with, when it comes to the Florida Sunshine Laws. You can leave questions and comments below or send them to Lynn Walsh.

Bills to support

HB 1151 and SB 1648, Public Records & Meetings:  SB 1648 passed out of the Senate by a unanimous vote in late March.  Its companion, HB 115, was amended in a House subcommittee around the same time and has been languishing for no obvious reason.  The Florida League of Cities raised some concerns about the bill during its hearing in the House, and the FAF has worked diligently since then on compromise language.  Everyone signed off on the proposed language a week or so ago, and there’s a slim chance the House will vote the bill out.  If this legislation passes, it will be the most significant reform to Florida’s public records law since the mid-90s.  The bill, and agreed-upon amendments, will:

• Codify case law by stipulating that an agency CANNOT require that a public record request be made in writing unless there is a specific statute requiring requests.

• Amend the extensive use fee provision, stipulating that the cost of clerical or supervisory assistance can be no greater than the hourly rate, less benefits, of the lowest paid person capable of performing the task.

• Require public records law training of all agency employees who deal with public record requests.

• Expand attorney fees and court costs provision to allow recovery of such fees and costs incurred in litigating the entitlement to recover such fees.

Sponsors:  Rep. Dave Hood (R-Daytona Beach); S. Governmental Oversight Committee

HB 1153 and SB 1194, Citizen and Direct Support Organizations: Virtually all DSO records are exempt from public disclosure, so anything that brings more transparency and accountability to these sometimes powerful organizations is a very positive step forward.  Rep. Michele Rehwinkel-Vasilinda (D-Tallahassee) has been very vocal in her concerns regarding the secrecy of donors to university DSOs.  This legislation has been watered-down but still should alleviate at least some of the concerns regarding the cloak of secrecy protecting these organizations from public oversight and accountability.  This legislation makes various changes to the reporting requirements of citizen support and direct support organizations and the agencies and institutions such organizations support, including:

• Requires citizen support and direct support organizations created pursuant to law or executive order, to annually submit the following information to the appropriate agency:  (1)  the name, mailing address, telephone number, and web address of the

• organization; (2) the statutory authority or executive order creating the organization; (3) a brief description of the organization’s mission and the results obtained; (4) a brief description of the organization’s plans for the next three fiscal years; (5) a copy of the organization’s code of ethics; and (6) a copy of the organization’s most recent Form 990.

• Requires each agency receiving information from such organizations to post that information on the agency’s website, and include a link to the organization’s website. Stipulates that all contracts between a citizen support organization or a direct support organization are contingent upon the submission and posting of the required information.

In addition, CS/HB 1153 puts citizen support and direct support organizations on a five year sunset review.

Sponsors:  Rep. Bill Hager (R-Boca Raton); S. Governmental Oversight Committee

Bills to oppose

CS/HB 135 and SB 728, Exemption/University President Searches:  According to the constitutionally-required statement of public necessity, qualified candidates are hesitant to apply for these positions for fear of losing their current positions.  Really?  Florida State University would have fired Eric Barron if it knew he was considering a job at Penn State?  More likely, FSU would have scrambled to find the funds to make a competitive offer and entice him to stay in Tallahassee.  This is the Mount Everest of Slippery Slopes – the justification could apply to every government agency in the state of Florida, from cities seeking a new city manager to a school board looking for a new attorney.  It also presumes that those who are currently in these positions – all of them hired in the Sunshine – aren’t the best they could be.  Passage of this exemption is a bit iffy at this point – the CS/HB 135 passed out of the House on April 11 by a vote of 104/9; the Senate bill has yet to be heard by any committee.

The legislation creates a public record exemption for information identifying applicants for president, provost or dean of a state university or college.  Also creates an exemption for meetings held for the purpose of identifying or vetting such applicants, stipulating that the exemption does not apply to those meetings held for the purpose of establishing qualifications or determining compensation except for those portions of such meetings that would disclose personal identifying information of an applicant or potential applicant which shall be closed to the public.  Meetings held after a final group of applicants has been selected held for the purpose of making a final selection will be open and the names of the final group of applicants will be subject to disclosure at least 10 days before the meeting at which the finalist will be selected.

Sponsors:  Rep. Dave Kerner (D-Palm Springs); Sen. Alan Hays (R-Umatilla)

HB 421 and SB 538, Exemption/Email Addresses – Tax Collectors:  This legislation is a nightmare waiting to happen, frankly – only those emails obtained by a tax collector for the purpose of sending tax notices will be exempt from public disclosure.  This means that if a request is made for all email correspondence sent or received by the tax collector over a certain period of time, for example, each of those emails will require review to determine how the email address of the sender was obtained.  Undoubtedly, this will cause increased delays and costs associated with access to public record emails.  Slippery slope?  This one’s a sinkhole of enormous proportion.  The House bill is waiting to be heard by its last committee of reference; SB 538  was unanimously passed out of the Senate on April 11.

The legislation creates a public record exemption for a taxpayer’s email address held by a tax collector for the purposes of sending tax notices or obtaining the taxpayer’s consent to send tax notices.  Stipulates that email addresses provided by a taxpayer to the tax collector for any other purpose is subject to disclosure under the public records law.

Sponsors:  Rep. Ed Hooper (R-Clearwater); Sen. Jack Latvala (R-Clearwater)

HB 1083 and SB 1218, Exemption/Surveillance Videos:  I almost didn’t include this bill on the list because it probably won’t pass, but I’m curious as to what – or who – is behind it.  The legislation creates a public record exemption for surveillance recordings created to monitor activities occurring inside or outside of public buildings or on public property held by community development districts.

This exemption has all sorts of problems, starting with the seriously-flawed statement of public necessity which is based on mere speculation rather than fact.  The legislation confers a right to privacy that simply doesn’t exist – our laws are very clear the public’s constitutional right of access should not be based on speculation and a faulty claim of privacy.

Sponsors:  Rep. Frank Artiles (R-Miami); Sen. Jeff Brandes (R-St. Petersburg)

If you’d like additional information about any of the bills included in this report or to know the Foundation’s position on a specific bill, please call 800/337-3518. Go to the First Amendment Foundation website for copies of bill letters to various sponsors.

Barbara A. Petersen, President First Amendment Foundation

A graduate of the University of Missouri-Columbia and Florida State University College of Law, Barbara A. Petersen is president of Florida’s First Amendment Foundation.  Before taking her current position in 1995, Petersen was staff attorney for the Joint Committee on Information Technology Resources of the Florida Legislature, where she worked exclusively on public records legislation and issues.  A passionate advocate of the public’s right to oversee its government, Petersen is the author of numerous reports and articles on open government issues.  She currently sits on the board of the National Freedom of Information Coalition, having served as its president and treasurer, and was recently appointed to the Integrity Florida board of directors.  Petersen served as chair of Florida’s Commission on Open Government Reform.