By Scott Kent
To paraphrase an old political saw, any institution that is not explicitly transparent in its operations will become less so over time.
You could see that erosion occurring in the recently completed session of the Florida Legislature.
According to Barbara Petersen, president of the First Amendment Foundation, legislators this year passed a record 22 new exemptions to the state’s open-government laws, and re-enacted 10 other exemptions. By her count, the previous high on new exemptions was 15; last year, the Legislature created 12 new loopholes.
None of this year’s exemptions blow a hole in the Sunshine Law, which guarantees Floridians access to public meetings and records. Instead, each chips away at transparency in government, continuing a long trend. Petersen has noted that in 1985 there were 250 exemptions to the Sunshine Law. Today there are more than 1,100. Petersen rightly calls that death by (literally) a thousand cuts.
Each year the public has less access to information about how its governments are operating. To be sure, there are occasions when secrecy may be warranted, at least temporarily. But given the sheer number of exemptions, and the fact that so many new ones are identified each year, it’s impossible to believe all or most are justifiable. Most often it’s a case of officials seeking to duck accountability.
Then there are the glaring examples of not reaffirming basic Sunshine precepts. The Senate this year passed a bill that would have clarified how in most cases requests for public records do not have to be in writing and the costs of producing those records cannot be prohibitive, and it would have mandated training for public employees on how to properly respond to such requests. The measure also would have improved access to some public records held by private contractors.
Inexplicably, though, the bill died in the House. Again, the inability or unwillingness to explicitly promote Sunshine makes it that much easier to erode it. It’s not uncommon to hear an elected official proclaim, “I like the Sunshine Law, but …” He then proceeds to explain why it shouldn’t apply to his issue.
The more the state treats the Sunshine Law as little more than a loose concept that can be endlessly shot through with exceptions, the more that message filters down to local officials, who don’t take the public’s right to know very seriously. At minimum, they don’t bother to learn the law and violate it out of carelessness or ignorance; at worst, they willingly exercise contempt for it.
Last month State Attorney R.J. Larizza ordered the Southeast Volusia Advertising Authority board to attend a class on state open-meetings law. A citizen had complained that several board members had violated the law through a string of emails in December. Larizza said his office determined the violation wasn’t “willful,” and therefore not criminal, but that the officials nevertheless deserved remediation on their responsibilities to the public.
Better to do that before a violation has occurred, though, rather than after. State ethics reforms in 2013 provided such education for many public offices, but lawmakers this year failed to extend it to many other employees who handle covered records.
As the Legislature continues to exempt more and more of those documents, though, such training eventually may become moot, as there won’t be much left to be made public.
Kent is The News-Journal’s Opinion page editor. His email firstname.lastname@example.org. Follow him on Twitter: @DBNJskent.