Release the records! Final House Committee OKs government transparency bill

The House State Affairs Committee has advanced a bill that First Amendment advocates say will help restore Florida’s eroding public records law, while one School District complained it could add more work.

The House Committee unanimously approved HB 437 sponsored by Rep. Alex Andrade, a Pensacola Republican who has struggled to get public records himself over last year’s Hope Florida probe.

HB 437 is meant to make it easier for individuals to get access to public records. A Senate companion bill (SB 770) has stalled and not been called to a Committee vote.

Under the House bill, government agencies would be required to respond within three days of receiving a public records request. The choices: release the records, explain why the agency needs more time to produce, or give a timeline when the records will be available. The last instance would be the most likely scenario, Andrade said.

“I think it’s reasonable in good faith for any agency to respond to an email within three days to say, ‘Hey, this request looks like it’s probably going to incur 20 hours of staff time and 2,000 documents that we’ll have to review. So, this is our estimated amount of time it’ll take,’” Andrade said.

If the government doesn’t respond within three days, that means the government agency is not allowed to charge any fees for the records.

If a government agency is going to take longer than 15 days to release the records, it must explain the deadline or why the records are confidential.

Government agencies would also be banned from charging fees if the records take less than 30 minutes to review, have previously been disclosed to somebody else, or are deemed confidential and redacted.

The bill would also allow governments to provide record requests for free to journalists, nonprofits, academics and others. 

“The bill further requires courts to impose enhanced penalties when an agency violates public record response requirements and either displays intentional disregard of the public’s constitutional right of access or engages in a pattern or practice of abuse of the requirements of the Act,” House staff analysis said. “The bill expands provisions governing recoverable enforcement costs, such as attorney fees and litigation costs.”

“For the last decade, at least, our public records bill regime has been in big trouble,” said Bobby Block, the Executive Director of the First Amendment Foundation. “Once upon a time there was a tendency towards disclosure. Now, it seems to be that the default setting is ignore, delay, and deny.”

Block, who has followed Andrade’s bill throughout the Committee process to advocate for it, warned that hundreds of public record requests are taking up to three years to be fulfilled.

“The problem is we’ve let this pride jewel in Florida’s history kind of decay,” Block said of the Florida Public Record Law. “This is badly needed reform. … It’s not a privilege. The constitution guarantees Floridians the right to know.”

Florida Politics, for instance, recently waited more than five months and needed a lawyer’s help to get travel expense records from Chief Financial Officer Blaise Ingoglia.

And FP is still waiting on Florida Department of Transportation records about a manager who was accused of inappropriate sexist behavior. The agency, which is being sued, has not responded to a FP records request made on Dec. 30 and ignored follow-ups in January and February asking for a timeline on when the records will be released.

Orange County Public Schools (OCPS), the fourth-largest District in Florida, was against the bill

Marquise McMiller, the district’s Senior Director of Government Relations, argued that seven to 10 days was a “reasonable timeline” for OCPS to respond, instead of three days.

“We have 200 requests that we get per month and 20% of those requests are upwards of 10,000 pages which public schools have to deal with FERPA and privacy exemptions,” McMiller said, urging lawmakers to amend the bill and extend the deadlines. “You basically put us into a position to choose to either be sued for violation of the Sunshine or to avoid the cost of a suit from FERPA or any other privacy violation.”

FERPA is the Family Educational Rights and Privacy Act that protects individual student records.

Andrade wasn’t moved.

“Maybe I’m naïve but I’m going to assume that sophisticated organizations like the Orange County School District can respond to an email within three days. I do not think that that is too difficult,” he said.

Lawmakers supported his bill which was backed by an unusual group of allies from Florida Voice for the Unborn Founder Andrew Shirvell to Rep. Anna Eskamani, who worked at Planned Parenthood. 

“As someone who’s made many record requests myself to different agencies, both local and statewide, it’s incredibly frustrating when you don’t get a response back. I can think of many agencies that I have never received even an acknowledgement of my request and it’s been over a year,” said Eskamani, an Orlando Democrat.

“And of course, my only tool at that point is to litigate. And that’s another cost prohibition and workload to pursue.”

Tuesday’s State Affairs Committee hearing was the fourth and final stop for the House bill. It can now advance to the House floor.