By Margie Menzel
Barbara Petersen is a national expert on open-government issues. She’s been president of the First Amendment Foundation since 1995, when it was started by a group of media organizations and she became its sole employee. The foundation — of which The Palm Beach Post is a member — promotes the public’s constitutional right to oversee its government through the state’s government-in-the-sunshine and public-records laws. Before taking the job, Petersen was a staff attorney for the Legislature’s Joint Committee on Information Technology Resources.
The News Service of Florida has a few questions for Barbara Petersen:
QUESTION: You’ve called the 2014 legislative session a “very frustrating” one for government in the sunshine. Why?
PETERSEN: I have to say it was a bad session for public records. We saw a record number of new exemptions to the public-record law and the open-meetings law pass this year — best count right now is 22 new exemptions passed and 10 existing exemptions reenacted. Last year, in comparison, only 12 new exemptions were created. The highest number we’ve had in the past was 15, and that was in the five special sessions and one regular session following 9/11.
I don’t know why. Most of them were not terrible. But as former (state) Sen. Dan Gelber used to warn people about, it’s death by a thousand paper cuts. Every exemption they create is an exception to the Constitution. I have no clue why we have so many. There weren’t a lot of terrible ones that passed. I’m worried about an exemption for family-trust companies (SB 1320) that virtually cloaks these companies in a thick veil of secrecy. But for the most part, most of them were narrow and fairly innocuous.
But it’s the sheer volume of them. And after all of that pre-session talk about improving our public-records law — we were going to improve ethics, we were going to improve public records and the citizens’ constitutional right of access to government and government transparency — nothing happened. They passed an ethics bill that made some improvements in that arena, but our good bill (SB 1648/HB 1151) that really would have made a difference in terms of the public’s right of access passed the Senate unanimously (and) got stalled in the House. And why the speaker and the speaker’s office wouldn’t let that bill out, I have no idea. It was stalled, it should be noted, at the same time as S.B. 846, the ethics bill. They passed at the same time; they both got stuck. On the final day of session, they pulled S.B. 846 out and passed it, but that open-government bill remained clogged up and stuck. And I think that’s kind of odd, particularly since the League of Cities worked very hard with us to address those problems.
QUESTION: Last month the AP reported that Scott administration employees are using their personal communication devices to conduct state business, and that the administration maintains that employees “are the ‘custodians’ of any text messages or emails done on personal accounts even if they cover state business.” What does this mean for the First Amendment?
PETERSEN: This is related to a public-records lawsuit that’s been filed against the governor and the Executive Office of the Governor. And the request was for email correspondence of current and former (members of the) governor’s staff. And the governor’s response was that each employee, both current and former, is the custodian of his or her own records. And if the requestor wants an employee’s records, the requestor has to go to the employee and make the request directly to the employee.
And the rationale was that even though the governor has instituted a policy that says that staff should not be using their personal communication devices to communicate about public business, that the governor doesn’t have control over those personal communication devices. Well, that’s true; he doesn’t. But he does have control over his staff. And if he knows that his staff is using their personal communication devices, contrary to the policy, the governor can say to his staff, “Stop.” That’s point No. 1.
Point No. 2 is that, by saying that each employee is the custodian of his or her records on their personal communication devices, it means that you will have to file a public-records request with each employee for all public-record email or text messages on their personal communication devices. This is a problem in that, one, instead of making one public-records request, you might have to make 13 or 14 public-records requests. Say you wanted to know more about the governor’s position and how he reached it on in-state tuition for students who are in this country illegally. How do you know what staff worked on that policy? You’re not in the office of the governor, you don’t know who to make that public-records request — and you’re a reporter. Imagine a person down in Orlando who’s simply interested in how they arrived at this policy or this potential policy — you wouldn’t have a clue.
And it’s also current or former employees. How do you know who is a former employee? You’re here in Tallahassee, so you’re familiar with the most obvious staff, but there are probably another 30 or 40 or 50 you’re probably not familiar with, because they work behind the scenes. So it’s virtually impossible to get access. It is a tremendous barrier, a very costly barrier to access. And if the court goes along with this assertion by the governor, it could eviscerate the public-records law.
The third concern I have is the legal liability for these employees, because under our law, if we sue someone — a government agency or entity — for violation of the public-records law, and we win, that agency has to pay our attorneys’ fees and court costs. So if each employee is the custodian of his or her records, that means that that employee, as the custodian, now has the legal liability that attaches to the right of access. So, for example, if we file a public-records request with a former employee, the former employee doesn’t respond or doesn’t give us all the records or somehow violates the law, we sue that employee. We don’t sue the Executive Office of the Governor. And that employee will be responsible for obtaining an attorney, and then for all of our attorneys’ fees and court costs if we’re right and that employee violated the law.
It’s a mess. And I can’t believe that employees in the governor’s office aren’t concerned and alarmed by this, because they are at a huge risk themselves.
QUESTION: How does the Scott Administration compare with previous administrations in terms of transparency and access to public records?
PETERSEN: We’ve had problems, big and small, with every governor since I got here. We had problems with the Chiles Administration. We had big problems with the Bush Administration. I mean, the first day Jeb took office, he violated the constitutional prohibition on meeting in secret with the Senate president and the House speaker. And he was not fond of the public-records law. That was pretty obvious.
Even Charlie Crist, who was Mr. Sunshine — he was fabulous, both as attorney general and as governor. We still had an occasional problem, but if we had a problem with the Crist Administration, we had the Office of Open Government, which actually acted as an advocate for the public. Sometimes we could talk directly to the governor himself about these problems, and they … were always corrected, sometimes more quickly than others.
With Gov. Scott, we’ve had some significant problems, starting, I think, first as he came into office, again, with the transition team. If you remember, we had problems getting access to those records. It took us a very long time. To his credit, he worked very hard and got us access to those records — to the extent possible, because many of them had been destroyed.
In comparing the governors, Chiles and Crist had both been in government and were much more familiar with open-government laws and their purpose. Bush and Scott came from the private sector, where transparency and openness aren’t something they have to be concerned with.