Sunshine killer bills would curtail your right to know

Tallahassee Democrat Editorial

March 17, 2017

You don’t hear it around the Capitol much anymore, but that old rule “If it ain’t broke, don’t fix it” is still a pretty good approach to passing laws – especially when the public’s right to know is involved.

Grammar aside, legislators would be wise to resist the impulse to “fix” Florida’s public-records and open-meetings laws. As we observe Sunshine Week – an annual event organized by media operations across the state – our House and Senate members are considering 56 more big or little clouds that would eclipse your right to know what your government is doing with your tax money.

And that’s what the sunshine laws are all about – your right to know – not ours. Sure, it’s reporters who most often invoke them, but the laws don’t say the city council or county commission has to let journalists into their meetings, or that we have some right to look at public documents. They say everybody has those rights.

For more than 50 years, “Government in the Sunshine” has been more than a reference to our warm climate. There is a presumption of openness in both the spirit and the letter of our laws – it’s even enshrined in the state Constitution.

But it’s also under attack.

Even small changes can make a big difference in open government. Worst of all, tinkering with your right to know may look innocuous, even beneficial, while having a devastating effect.

The worst of a bad bunch this year looks like Senate Bill 1004 and House Bill 843, which would allow two members of a five-seat public board or commission to meet in secret to discuss public business. Sen. Dennis Baxley, R-Lady Lake, argues that existing law goes too far – that two city commissioners couldn’t ride in an elevator together, one couldn’t give another a ride home, without filing advance notice and inviting all 20 million Floridians to tag along with them.

His bill says members ought to be able to meet “in order to facilitate a more thorough vetting of policies and appropriations that such members are responsible for examining and understanding. Exempting such one-on-one meetings from public meetings and records requirements will allow such members to better serve the interests of the public…”

The bill even requires that “the meeting is not intended to frustrate or circumvent” the sunshine law. Members meeting in private couldn’t agree on how they’ll vote at some future public meeting.

Uh-huh. Sounds reasonable, doesn’t it? Only if you trust government completely, blindly.

How do we know two city commissioners won’t decide, privately, what they want to do, and then each of them will go meet with one other commissioner. OK, that makes four. One of them goes and briefs the mayor, and we’ve got an ordinance all set, or a contract awarded, before the commission meets.

And then there’s the bill to change the presumption of awarding of attorney fees for a citizen who sues an agency for concealing public records. The way the law works now, if City Hall withholds public information and you successfully sue to get access, the judge “shall” make the government pay your lawyer. Under SB 80 by Sen. Greg Steube, R-Sarasota, the court “may” award attorney fees.

Like Baxley’s two-member-meeting law, supporters of Steube’s bill say the public records law is being carried to ridiculous extremes never intended by framers of the Sunshine Law. A crank could harass a city or county government by demanding to see every scrap of paper on a secretary’s desk, or in the mayor’s briefcase, and take the whole office to court if everything isn’t handed over instantly.

That’s what’s called a “parade of horribles” in the Legislature – taking a situation to absurd extremes. In real life, the only thing making obstinate city officials obey the open-records law, when they don’t want to, is the threat of having their agency hit with attorney fees.

Giving courts discretion to withhold attorney fees would mean that if you want to make your city or county show you public records they want to conceal, you’d better be ready to pay an attorney, and court costs, to make your government obey the law.

“There’s a guy in Miami who sued and an agency admitted it intentionally violated the law,” said Barbara Petersen, an attorney who heads the First Amendment Foundation. “He’s been litigating for three years and fees are over $200,000 … That’s a huge risk for somebody to take in order to enforce what is a constitutional right.”

She worked out a compromise this week to require five days notice before suing an agency, so a simple mistake can be corrected. The new version would let judges punish citizens who bring spurious, nuisance suits just to get even with some office that denied them a license or hit them with a fine.

A perennial bill to let local governments post notices of meetings online, instead of running legal ads in publications of general circulation, made a new appearance this year but has been quietly stalled – hopefully for good. It’s not so much a secrecy problem, but there’s nothing stopping cities and counties from running those notices on their web sites now. A lot of Floridians aren’t online, and especially older people tend to get their public information in print. And, of course, we’ve all heard the one about the fox guarding the henhouse.

Then there’s a bill to hide names of applicants for the presidency of public universities – supposedly so more scholars will apply, knowing their current employers won’t find out until decision time. Of course, that means you couldn’t find out, either, if some powerful legislator or big campaign contributor to the governor has the inside track on a campus top job.

Another proposal would prevent release of any pictures of someone being killed. That may provide some comfort for families, but what if it’s dash-cam video of a police shooting? What harm was done by release of the surveillance video from the Fort Lauderdale airport, when a gunman killed five people?

Would you rather have the government conduct criminal trials with secret evidence, with photos and video to be viewed only by an authorized few?

That’s what all of these bills are really about – the government telling citizens they don’t need to see this document, they don’t need to go to that meeting. There are legitimate exemptions, allowing government to protect the privacy of citizens and the necessary confidentiality of criminal investigations.

Otherwise, the Sunshine Law works well.

It’s not broken, legislators don’t need to fix it.

What you can do

Only citizen involvement can stop legislators from running government for the convenience of the government. Voters need to contact their lawmakers – in Tallahassee and at home in their districts – and let them know open government is important to us all.

Find how to contact your local lawmakers by visiting MyFloridaHouse.gov and clicking on “Representatives” or FLSenate.gov and clicking on “Senators.” [READ MORE]

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