Public Records Abuse: A Denial of Public Service

Public Records Abuse: A Denial of Public Service

I’ve been in the Panhandle supporting the launching of our Public Records summit. This has meant some enjoyable sidebar conversations with St. Thomas Law School professor Keith Rizzardi, renewing friendships with a number of city clerks, and puzzling over the current state of public records law in Florida.

Let me start by acknowledging that I fully embrace the idea that the public has a right to know what a government agency (at any level) is doing on their behalf. The people cannot know that their government is working “for the people” if they don’t know what elected and appointed officials are doing and why. That’s simply unarguable. “Public trust” is not supposed to be blind and it is supposed to be earned. Being appropriately transparent is essential to earning and sustaining that trust.

So if someone asks for information about what the agency is doing, the agency should provide it.

One hopes the individual’s request is for some meaningful purpose, but it seems likely that the governmental agency probably ought to assume the request has such a purpose and respond.

Public records retention and production is not exactly glamorous. It is, however, essential and expensive, in terms of technology and equipment and in terms of personnel time.

Anyone who has followed the trends in public records also probably has picked up at least a hint of an emergent problem. Government agencies, not just in Florida, have been targeted by individuals and organizations to test their degree of compliance with public record requirements and, seemingly not incidentally, to make a decent living off of the missteps of public sector employees.

Some of the missteps have been substantive mistakes. Some, perhaps, have been something worse.

But some have been simple and genuinely inconsequential errors, errors that were corrected at the earliest possible moment.

And all of this, the substantive, the serious and the inconsequential, has been and is being litigated.

I’ve heard from municipal officials about what appear to be orchestrated assaults on public records practices for the sake of producing an error and an opportunity for compensation. Requests come in for records that neither the requester nor anyone else will use to ensure that the public’s interests are being served. Like denial-of-service attacks on online vendors, these requests for service can cripple the capacity of clerks to do the many other things for which they are responsible. Especially in our smaller cities (and most of our cities in Florida fall in this category), the capacity of current staff is quickly exceeded, and the fiscal capacity to “staff up” is limited. Prioritizing dealing with these requests may cost the public the services they actually desire.

Against this backdrop, I’ve come to realize the importance of what our elected municipal officials are doing. The “tone at the top” matters tremendously.

It matters because ensuring compliance with public records law requires investments in training, technology and staff hiring. The work of the clerk’s office may not be glamorous, but it is essential and increasingly difficult. Our elected local leaders must give it the support it requires.

It also matters because it will take the leadership of our elected local officials to fight for the public interest and against these denial-of-public-service attacks. The law needs to change to ensure that the public can get the information it wants and that the capacity of government agencies to provide that information cannot be crippled by those whose interest is not the public’s.

These things are always about balance, not about absolutes. But it seems clear, listening to the experience of those on the front line of this aspect of public service, that the scales have been tipped against true service to the public.

Join us for Public Records: Ensuring Compliance and Avoiding Sunshine.