The High Cost Of Sunshine: Public Records In Florida Can Cost More Than A Year's Salary
This post has been updated.
Last year as the COVID-19 pandemic raced across Florida, the international nonprofit health care provider Partners In Health offered to perform contact tracing for farmworkers, an opportunity a farmworkers’ rights group in Immokalee jumped on.
The group quickly contacted state health officials to get the program running, but the state said no.
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When the group asked why, health officials refused to provide answers, said Pamela Marsh, executive director of the First Amendment Foundation and a former U.S. Attorney for the Northern District of Florida.
So Marsh said the group submitted a public records request for documents to get the answer.
“They wanted $42,000 for emails solely around contact tracing,” Marsh said. “This is a short period of time at that time. It was May, so COVID hadn't been around that long. Forty-two thousand dollars for what we thought was a limited pool of emails.”
Florida’s Sunshine laws often get held up as a model for a transparent government, with access to public records for anybody who wants to see them. The laws say it is the duty of every public agency to provide citizens with emails between elected officials, police reports and other records that document the workings of public government at a reasonable cost and within a reasonable amount of time.
But over the years, the bills for those records have escalated, often creating an obstacle that can keep government out of the sunshine.
Another reporter Marsh assisted also asked for Department of Health records around the pandemic. The invoice came in at $10,000. Panama City billed a group seeking police records the city had already compiled for the FBI more than $47,000.
“Someone had asked for records in braille and the invoice they sent was $30,000,” Marsh said.
In 2016, the Miami Herald asked the city of Miami Beach for emails about new pumps installed to combat flooding from sea rise after researchers with Florida International University and the National Oceanic and Atmospheric Administration found they were polluting the bay with human waste.The city said it cost $72,793.53 to search and produce emails searching for terms like “numeric nutrient criteria” and “fecal marker.”
“Florida holds itself out as the Sunshine State, the most open record, open meeting state there is,” Marsh said. “And I think that's really crumbling underneath us right now.”
'Sticker shock' with public records fees
It’s also what led two Miami attorneys to launch a research project investigating what it would take for Florida to join more than 30 other states that waive public records fees for groups like journalists, non-profits and researchers working on behalf of the public.
“We’ve definitely had some sticker shock with public records fees,” said Kelly Cox, the staff attorney for Miami Waterkeeper who co-authored the study.
Three years ago the nonprofit got a tip that a Miami-Dade County sewer pipe that dumped treated sewage offshore was leaking. The outfall pipe, which must be removed by 2025, was supposed to dump the sewage more than three miles offshore, but the tipster said for about a year, the pipe had been leaking sewage within a mile of shore near Fisher Island.
Waterkeeper sent a dive team to confirm the leak, then asked for email records to confirm that county officials had known about the leak but failed to fix it. The county sent an invoice for $750.
“Making a decision like that in sort of a crunch-time scenario where there's an active sewage leak occurring was really pressing and put some strain on the organization at the time,” she said.
So Cox teamed up with Matthew Haber, a former Miami assistant city attorney. Haber built the city’s first public records division to process requests and believed a balance could be struck between serving the public interest and not creating a burden on government agencies.
Cox said they had “a sneaking suspicion that a fee waiver might be something that's feasible.”
Florida holds itself out as the Sunshine State, the most open record, open meeting state there is. And I think that's really crumbling underneath us right now.”Patricia Marsh, First Amendment Foundation executive director
Florida is one of just 19 states that don’t waive fees for public interest groups. Fee waivers are also provided by the federal government. To determine whether waiving fees for certain groups would overwhelm local governments, Cox and Haber looked at thousands of public records requests made in five Florida cities: Cape Coral, Fort Lauderdale, Miami, Orlando, and Tallahassee.
In a paperpublished in December in the NYU Journal of Legislation and Public Policy, they found that just 13 percent of the requests came from public interest groups that would include reporters, nonprofits and researchers. The vast majority of requests came from developers, law firms and others using the records for commercial purposes. Under their proposal, those commercial interests would still pay.
“The minority of requests were coming from news media, academics, nonprofit organizations and other government entities. And we really thought that those are the entities that really would be most deserving of a fee waiver,” Haber said.
Haber worries that restricting access with high fees further erodes public engagement in government matters.
Miami, he said, already ranks last in the U.S. in studies looking at civic engagement not tied to elections. Only 3 percent of Miami residents have ever attended a public meeting, he said.
“OK, so let’s take a bit out of that,” Haber said.
In 2017, with funding from the Knight Foundation, Haber helped build a free app, called CivicPro, to help residents keep informed about local government by tracking zoning board applications, development plans, ordinances or other matters they’d like to follow but struggle to navigate across more than 100 local governments in South Florida.
He said he came up with the idea after sitting through countless city meetings where residents were clearly confused.
“They'd be showing up to the wrong government,” he said. “They might even be showing up to the right committee in the right government on the right issue with fantastic public comments that really were the kinds of things that a government would be eager to hear. But they showed up six months too late.”
Waiving records fees for public interest groups fits squarely with that mission.
“If Kelly wants to publish data for me, I appreciate that, because if I were to make that public records requests and look at that data, I'm not a marine scientist. I can’t tell you what any of it means,” he said. “But having intermediaries play that role of really educating the public, that's helpful.”
Haber says he never encountered a request that would cost thousands of dollars. But he can see how costs can escalate, because every document, every email, has to be reviewed for personal or protected information.
“You do not want to be disclosing medically sensitive information about anyone,” he said.
Still, he says costs should not be an obstacle for getting information that would serve the public. When Waterkeeper eventually got the records on the sewer leak for $450, they discovered that Miami-Dade’s failure to cap that leak had allowed about 10 million gallons of sewage to leak into Biscayne Bay.
Often reporters and others negotiate a lower cost by narrowing their search. But scaling back requests to get a lower price can mean not getting the needed information.
In a meta twist to their research on public records cost, even Cox and Haber ran into this problem.
“It became a bit of a negotiation between us, the researchers and the records custodians for those cities,” Haber said. The pair ultimately agreed to eliminate certain fields of data to lower costs.
“We really would have liked to have those fields and it certainly was making the quality of our data lower than we would like it,” Haber said. “But at the end of day, you know, we just this is a research paper. We're not spending five hundred bucks or two hundred bucks on a public records request.
WLRN requested interviews with the city of Miami, Miami-Dade County and Orlando to explain how fees are calculated. Miami-Dade and Orlando declined. Miami said in a statement that producing records often costs more than what the city charges and that high volume and time needed to produce complete and accurate records justifies its fees.
An earlier version of this story misstated Pamela Marsh's first name.