March Shine On – Monthly Chat with First Amendment Foundation

It’s time to shine again. Barbara Petersen with the Florida First Amendment Foundation is back! Last month, we learned what access rights the public has when public and private institutions work together. This month she is addressing what information seems to be the most difficult for people to get their hands on and what to do if your request has been denied.

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.

SPJ Florida: What happens if an agency denies my records request under exemptions in the Sunshine Laws? Is my only option to get a lawyer involved?

Barbara Petersen: A public records request can be denied only if there is a specific statutory exemption.  That means only the Florida legislature can create exemption to our public records law and there’s no balancing of interests by the custodial agency or even the courts.

If your public records law is denied, whether in whole or in part, you have the right to demand that the custodian put the denial in writing, include the exact statutory citation, and explain with “particularity” the reasons why he/she believes the exemption applies.  Section 119.07(1)(f), F.S.

The options for contesting a denial of your public record request are pretty slim, in Florida.  You can file a complaint with your local state attorney, but don’t hold your breath – most will investigate only if it appears there may have been an intentional violation of the law, which is a first degree misdemeanor.

There’s a mediation program in the Attorney General’s Office which is effective in resolving many public record access disputes.  The program is voluntary, however, so a recalcitrant agency doesn’t have to participate in the mediation process.

The final option is to file suit in civil court.  If you sue an agency for violation of the public records law and you win, the court is required to award reasonable attorney fees and court costs.

And, of course, you can call the First Amendment Foundation hotline at (800)337-3518.  We can answer any questions you may have about the public records law, and we frequently make public record requests on behalf of those who are having trouble obtaining public records.

SPJ Florida: In your experience, what would you say is one of the most difficult public records document to obtain under Florida Sunshine laws?

Barbara Petersen: As a rule, I rarely make public record requests unless the Foundation is asked to assist a requestor who has had trouble obtaining requested records.  But I think the biggest recurring problem is getting access to law enforcement incident reports.

As we all know, active criminal investigative records are exempt from public disclosure so long as the investigation is active. However, basic information contained in incident reports – the who, what, where, and why – is generally subject to disclosure.

Take a look at the statutory definition of “criminal investigative information” in s. 119.011(3), F.S., and pay particular attention to subparagraph (c) which details what information is subject to disclosure even though an investigation may be active and ongoing.

Answers to these questions and many more, including questions about application of Florida’s open meetings law, can be found in the 2013 Government-in-the-Sunshine Manual, which is now available in both a print edition and electronically.  Go to the First Amendment Foundation website and click on FAF Store for information on how to order the manual.

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.