Opinion: Enforce Sunshine, Reject bills to weaken public records law

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Gina Edwards

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Opinion: Enforce Sunshine, Reject Florida

bills to weaken public records law

#EnforceSunshine

Naples City Desk - News and In-depth coverage in Naples and Collier County

Contact Your State Lawmaker and tell them to vote "No" on S.B. 1220 and H.B. 1021 (See links at bottom of page)

Call Senator Rene Garcia at 850-487-5038 and tell him to enforce the public records law and withdraw his bill.

Call Representative Greg Steube at 850-717-5073 and tell him to enforce the public records law and withdraw his bill.

"In Southwest FLorida we've seen three elected officials -- all fiscal conservatives -- charged extensive fees for public records that should be free and easy to get. Naples City Councilman Doug Finlay was assessed $400 for information that would help him scrutinize the fire budget, Naples City Councilwoman Teresa Heitmann was charged $900 for public records related to an internal misconduct investigation, and Collier School Board member Erika Donalds was told it would cost thousands of dollars to provide her public records related to student tests and performance."

Reject S.B. 1220, sponsored by Sen. Rene Garcia and H.B. 1021 sponsored by Rep. Greg Steube.

►Bill undermines Florida's public records law, opponents charge

►The One Word that Could Weaken Florida's Public Records Laws

►Editorial by Naples Daily News opposing bills

Excerpt from Editorial by News-Press

"Apparently, Collier County Clerk of Court believes he has the right to violate public records laws and charge exorbitant fees for documents because he does not like the tactics of an investigative reporter. It is wrong, vindictive and hurts anyone's ability to fairly gain access to a public record. And it breaks the law.

Clerk of Court Dwight Brock has lost once in court and is once again challenging a judge's decision striking down the $556 tab he wanted to charge investigative reporter Gina Edwards. We urge that any future court decisions also support the circuit court judge's ruling. Brock must abide by the law and not take his anger out on Edwards ...

It was Edwards' legal right to get the electronic information for the cost of a CD. It is also the right of anyone who seeks similar records. "

►See letter of support from the national Radio Television Digital News Association

►Naples Press Club Carole Greene: How much is a fair price for access to records?

►Brent Batten: Brock spent at least $67K on lawyers fighting journalist's suit

►See the Public Records Lawsuit Court Files with filings from both sides

►Oral Arguement before Second District Court of Appeal

►Judge Hardt's Ruling After Trial

Related Naples City Desk Stories:

Docs turned over in public records lawsuit show deeper involvement by Brock, staff in audit

More than 300 pages of key documents surface after Brock’s office said all public records turned over

Public records lawsuit docs: Brock’s Audit Department structure violates government auditing standards

Two hats equal conflict: Brock’s Finance director signs off on hundreds of millions in payments, also serves as Internal Audit chief

Elected auditor Brock sics law enforcement on 2012 political challenger over housing grant; Naples City Desk investigation: Internal documents show Brock allegations false, misleading

Appraisals reviewed by Brocks own staff 2 years ago document construction Brock says not proven

Naples City Desk exclusive: No evidence Clerk’s money manager over $600 million portfolio has had annual evaluation since 2007

Clerk Brock & Sen. Richter signed deal to transfer county’s $600 million to firm with no BCC vote

County Manager, County Attorney didn’t know Brock switched custody of county's $600 million against contract with BCC, without vote

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By Gina Edwards

@WatchdogCity

Florida’s once celebrated public records law is in trouble: It’s virtually impossible to get law enforcement to take action against public officials who violate the law.

Citizens have to file a lawsuit to get justice, and the ability to successfully bring a suit is severely threatened by Senate Bill 1220 and companion, House Bill 1021.

Government transparency is basic to our freedom, no matter who you are or what your political stripes.

The law, as proposed, places in doubt whether a citizen who prevails against the government will be awarded attorney’s fees. This makes filing a lawsuit too risky for a wronged citizen.

The real question is: Why should a citizen have to sue to get the law enforced in the first place? What’s needed is real enforcement of the public records law with a public records cop on the beat with civil fines and/or criminal consequences for violators.

In Southwest Florida we've seen three elected officials -- all fiscal conservatives -- charged extensive fees for public records that should be free and easy to get. Naples City Councilman Doug Finlay was assessed $400 for information that would help him scrutinize the fire budget, Naples City Councilwoman Teresa Heitmann was charged $900 for public records related to an internal misconduct investigation, and Collier School Board member Erika Donalds was told it would cost thousands of dollars to provide her public records related to student tests and performance.

For me, filing a public records lawsuit was a last resort.

After initially charging me $2 for hundreds of pages of electronic records on 2 CDs, the Clerk then charged me $556 for 556 pages after I published critical stories.

I have now prevailed three times in court in my public records lawsuitagainst elected Collier Clerk of Courts Dwight Brock – including after an expensive trial demanded by the Clerk after he lost the first time. The Clerk used the unlimited taxpayer money at his disposal to hire lawyers to try and bury me in an appeal, which he lost in January. Brock has spent at least $67,000 in taxpayer money on legal fees according to the Naples Daily News, a figure that doesn’t include 2015.

My legal fees are now upwards of $35,000. This is chilling. If my lawyers hadn’t agreed to take my case on contingent fee, I would be facing an enormous personal financial burden.

A public records activist who many reporters call, Joel Chandler, referred me to my attorneys who agreed to take my case. In the past year, the firm, rightly has come under scrutiny with critics charging that it has filed public records suits on minor violations to gin up fees.

Tactics to file gotcha suits over minor violations are wrong. There are practical fixes to stop frivolous suits, including a waiting period to sue, but the current bills go too far.

In my case, my attorneys Ryan Witmer, Giovani Mesa and Marrett Hanna have been in the fight to defend the public’s right to know for a long haul, at substantial expense and risk.

What’s important to remember is that contingent fee lawyers are only going to bet on sure things. In my case that meant we kept our case narrowly focused on the fee issue. Other bad behavior by Brock we didn’t even touch. For example, Brock withheld turning over certain public records that I requested.

Under Florida public records law, if a requestor doesn’t pay his or her bill, the agency is no longer required to fulfill subsequent public records requests.

If I didn’t pay, I would be effectively shut down.

Before trial, I was grilled by the Clerk’s lawyer in a deposition for 3.5 hours. I was asked invasive personal questions about my family like how long I’ve been married and the ages of my children.

We requested limited discovery, asking only for the Clerk’s log of past public records requests. The morning of the trial, the Clerk’s attorney turned over the discovery: The Clerk’s lawyer texted a photo of a dry erase board with a handful of entries on it.

Even though I won at trial, the Clerk continued to threaten me with high public records fees, saying he would come after me for the higher rates – after the fact – if he won the appeal. For example, he said he reserved the right to charge me $1,538 for electronic pages of emails, $1 per page, if he won the appeal.

These threats were designed to intimidate me and shut down my access to public records and my reporting.

The Clerk used his power as the county’s elected auditor to engage in a chilling smear, with false and misleading statements, of his 2012 political challenger, business leaders, and a candidate who ran against a sitting County Commissioner in 2010.

The Clerk’s audit policy manual showed that his Finance Director, who oversees payments of hundreds of millions of dollars, also served at the same time as the director of Internal Audit, a conflict of interest that is prohibited by government auditing standards and raises red flags for fraud risks.

The Clerk transferred custody of the county’s $600 million investment portfolio to another entity, without a vote of county commissioners and unbeknownst to the county attorney and county manager. Public records I obtained showed the Clerk’s money manager over $600 million, hadn’t had a performance evaluation since 2007 or produced evidence of continuing education requirements, a violation of state law.

Public records illuminated these stories.

Taxpayers have already paid the salaries of the people who created the public records. And many local governments employ paid public information officers. The records belong to the people.

We live in an online, digital age. There is no reason why public records can’t be produced cheaply and easily for inspection and copy. Cronyism and corruption flourish in the dark.

Public records and the government transparency they provide are the bulwark of liberty. But without enforcement of the public records law, we, the people, lose the light that helps us find our way.

Gina Edwards is a national award-winning journalist and the founder of the news site WatchdogCity.com. The Florida Press Club awarded Edwards and Watchdog City with a top, statewide Freedom of Information award in 2015. Contact: Gina Edwards at gina@watchdogcity.com or by phone at 239-293-3640. @watchodgcity

Contact Your State Lawmaker:

STATE REPRESENTATIVES

Extra ...

Public Business ... if you can afford it

Edwards inquired about the Clerk's policy for charges for electronic public records prior to publication of investigative stories she did about Brock's audit of the charity founded by his former political challenger John Barlow, who ran against Brock in 2012. The response from Brock's spokesman, Robert St.Cyr, says the charge for electronic records is $1 for a CD or free if emailed, which is in keeping with Florida's public record law, Florida Statute 119. Another Brock staffer said the first hour of staff time is free. After Edwards published critical stories, and followed up to ask for public records not turned over and apparently withheld by Brock, Brock's office said the Clerk follows the Clerk's statute and the charge was $1 per page, even for records stored electronically on a compact disc and not on a printed page.

Staff charges by Brock to journalist Edwards

When Edwards requested monthly reports to show the historical performance of the $600 million county investment portfolio managed by Brock in December 2014, Brock used the public records law, F.S. 119 to charge Edwards $139.16 for "extensive use" of staff time, which is allowed under the law. However, Brock charged Edwards for $46.16 of staff time for review of electronic records, but refused to provide Edwards with electronic records. Brock also charged Edwards $69.38 for two different staff members to count the pages of her public records on two separate times. On the invoice below Brock states "$554 due for copies (not to be collected until after court ruling)."

Edwards paid the staff fee for the paper copy investment reports produced by Brock but noted that she "paid under protest" because Brock refused to provide the electronic versions of the public reports that she requested.

Senator Rene Garcia

Representative Greg Steube

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