For a second time within two years Lakeland taxpayers have been forced to cough up a princely sum for lawyers embroiled in a public-records dispute involving the city’s police department. Last year, the city doled out $225,000 in a failed effort to keep confidential a damaging grand jury report on the then-scandal-ridden department that determined LPD had wrongfully withheld documents the public was entitled to.
In the latest case, as chronicled by The Ledger last week, the city recently agreed to spend $150,000 to settle a lawsuit brought by local open-government activist Joel Chandler. Chandler sued LPD back in March 2010 over the department’s practice of charging $23.50 as a “flat fee” for providing records, which, to Chandler, was excessive and unconstitutional under Florida law.
For years state law has allowed government agencies to charge 15 cents a page for copies, or an amount equating to the actual cost to duplicate the record. Thus, the government may legally charge for personnel time or computer-related costs, or both, in retrieving information. But, as Florida’s “Government in the Sunshine” manual notes, the request must require “extensive” use of those resources on behalf of the government, and even then the fee must be “reasonable.” Moreover, for covering personnel costs, the fee must be calculated using the salary of the lowest-paid person capable of retrieving the documents.
Barbara Petersen, president of the First Amendment Foundation, an open-government watchdog group in Tallahassee, told us that flat fees may be assessed in some cases. Court clerks, for instance, may charge $1 per page for copies of court records under the law. Yet Petersen noted, “Only a few agencies have such authority, however, and the VAST majority fall under the general fee provisions.” Presumably, that “vast” number includes the Lakeland Police Department.
The LPD’s stance on this issue, as it has evolved over time, is troubling.
In April 2010 LPD responded to Chandler’s lawsuit with a counter lawsuit, and its lawyer, Roger Mallory, first said the electronic records did not amount to a public record. That, however, is not the case. Florida courts have long held that electronic records are the same as paper documents.
At the same time, Mallory accused Chandler of playing “gotcha” with his request. “That’s the game he was playing,” the lawyer told The Ledger in April 2010. Yet state law is clear: people requesting government documents do not have to provide their names or the reason they want the records, and are under no obligation to answer if public officials ask for such information.
Then last week, Mallory told the Ledger that a consultant had suggested instituting the fee a decade or so ago because LPD was losing money on public records requests. It’s unclear whether that meant the department was not charging at all, or not charging the amount it could under existing laws. It seems LPD would break even if it were charging for the actual costs to provide the records, as the law permits. In either case, Mallory’s comment suggested LPD viewed this as a revenue-generator. Mallory, in last week’s Ledger report, added, “Nobody ever complained about it [the flat fee] except Joel Chandler.”
Perhaps no one did because few citizens understand their rights in learning what their government is up to. Such ignorance is lamentable, especially since Florida has one of the best public records laws in America. Every citizen must educate themselves about that, if only to help serve as a check on government authority.
But too often that ignorance extends to the custodians of the records as well.
“In my experience,” Petersen told us, “most violations of the public records law stem from a lack of information about the law’s requirements, despite the fact that public officials take an oath of office that requires them to uphold the Constitution and laws of Florida, including our constitutional and statutory rights of access to government records.” She added, “When a government agency loses an open government lawsuit — whether by settlement or by court opinion — the fees paid by the agency come from the public coffers. In other words, we the public are paying because those in government who are working for us have violated our rights.”
The settlement says Petersen’s group is slated to train LPD employees on complying with the law. After almost $400,000 of taxpayers’ money out the window, we can only say better late than never.