Time for a rebirth of open government
The Orlando Sentinel’s repeated attempts to get basic information about the coronavirus pandemic should never have ended up in court.
All the state had to do was follow the law. But it didn’t. It refused.
So the Sentinel sued under the state’s open records law and won the case. Florida was forced to do what it should have done from the very start — provide a public record in a reasonable period of time or cite a legal exemption for withholding it.
The entire exercise neatly illustrated state government’s growing contempt for open government, a contagion that has spread to local governments throughout Florida.
Open records and meetings are guaranteed under the Florida Constitution. Every year, though, the Legislature chips away at that fundamental right, approving exemption after exemption that allow governments to keep information secret.
The First Amendment Foundation’s ticker of exemptions to Florida’s open government law stands at 1,159. Think of it...more than 1,000 exemptions designed to keep Floridians away from government records or meetings.
They range from sensible, like withholding someone’s Social Security number, to absurd, like keeping secret the addresses and phone numbers of government auditors. State Sen. Kelli Stargel, with an assist from fellow Republican Sen. Dennis Baxley, shot for the moon by trying last year to pass a bill to exempt the addresses and phone number of lawmakers.
The coronavirus reports sought by the Sentinel’s health reporter, Naseem Miller, were not exempt, by anyone’s definition. They largely are a collection of data sent to each state’s governors, accompanied by recommendations — many of which have been ignored by DeSantis’ administration.
Lawyers for the state really didn’t try to argue the point, either, lamely noting that they were kind of busy and that Miller had managed to find the documents elsewhere, which is no defense for breaking the law. In the end, the state agreed to a court order requiring them to produce the reports in two business days and to pay the Sentinel’s fees.
Luckily, the Sentinel has the resources to go to court when it needs to. But what if a member of the public had tried to get the same information? They would have faced hiring a lawyer and getting stalled by the state’s formidable legal assets.
Such is Florida’s widespread disregard for public records, where governments large and small use unresponsiveness, delay and outlandish fees to thwart legitimate requests for records.
We’ve made two key points before and we’ll make them again:
One, this is a bipartisan problem, with Democrats and Republicans sharing the blame for eroding open government rights.
Two, Florida has no loud and influential champions for open government. It used to be that governors like Reubin Askew would fight for it. The current governor is a big part of the problem.
Today you can barely find a state representative willing to do battle on behalf of the public’s right to know. Most happily go along with carving out new exemptions, most likely as a means to barter for some other piece of legislation or hometown project.
Each year we hope this lawmaking session will be different, that an influential
Republican or Democrat will emerge to champion not just putting an end to new exemptions and more secrecy but rolling back some of those already in place.
This year presents an enticing opportunity for such a champion.
The First Amendment Foundation is appealing to the Legislature to allow some exemptions that involve trade secrets to sunset, which means they expire unless reinstated by the lawmakers.
The trade secret exemption was used to hide how much money Visit Florida, the state’s tourism-promotion arm, was paying rapper Pitbull to promote Florida. Former House Speaker Richard Corcoran — now Florida’s education commissioner — led the charge to get to the bottom of it. Turns out Pitbull got $1 million of your money.
Florida’s trade secret exemptions also allow the state to withhold bidding information on government contracts, which is why we know that Deloitte got a $135-million consulting contract with the Agency for Health Care Administration, but we don’t know how much competing companies bid on the project.
Deloitte is better known today as the company that built Florida’s online unemployment system, which crashed like the Hindenburg when the pandemic put hundreds of thousands out of work.
The First Amendment Foundation wants the state to let the patchwork of exemptions for trade secrets expire and rewrite them with more consistency, and with the public’s right to know in mind.
For example, there’s no reason why the public shouldn’t know after a contract is awarded how much the competing bids were. And there’s zero reason why the public should not know how much of its money is being spent on paying an entertainer to promote the state.
Florida has to find its way back out of the dark and into the sunshine that is supposed to be a fundamental right. This year, 2021, could be the turning point if lawmakers would only discover the will to do what’s right.
Editorials are the opinion of the Orlando Sentinel Editorial Board and are written by one of its members or a designee. The editorial board consists of Opinion Editor Mike Lafferty, Jennifer A. Marcial Ocasio, Jay Reddick, David Whitley and Editor-in-Chief Julie Anderson. Send emails to insight@orlandosentinel.com.