Sunshine Sunday: Beyond Transparency, Government Records Must Be Accessible

By Barbara Petersen

Curious about how our government spends taxpayers’ money? Have you ever tried to figure it out? The process is anything but streamlined to help you become an aware and knowledgeable citizen.

Yes, there are a few websites in Florida designed to help you find answers to your questions. For example, the Chief Financial Officer maintains a website, Sunshine Spending, which is intended to help citizens hold state government accountable by posting online information about expenditures to every vendor receiving state funds. Promising, but in actuality, the website provides very little useful information.

I looked up monies paid to the First Amendment Foundation and found that the FAF –listed twice as two different organizations with two different vendor identification numbers — was paid a total of $5,461.13 in 2010. For what? The website contains no information about the purpose of the expenditure, nor are there links to contracts, payment vouchers, or anything that might give you any information about why the state spent that money. Instead, the site instructs you to call the relevant agency for more information. In the case of the payments made to the Foundation, this would mean phone calls to 27 different agencies, a task that could easily take days.

Think back a couple of years. Do you remember the uproar when it was revealed that then-Speaker Ray Sansom had, as the chief budget writer in the House, steered $35 million in extra construction funds to Northwest State College? But if you enter Northwest Florida State College in the Sunshine Spending vendor query box and check for funds received in 2008 or 2009, you come up with nothing. We all know that the college received money, a lot of money, during Sansom’s years as House budget chief, but the Sunshine Spending site doesn’t provide any guidance on how — or where — to find out exactly how much money the college received.

For that information, you need to go to the Legislature’s website, Transparency Florida. Although not the easiest website to navigate and a bit wonkish, I was able to find out that Northwest Florida State College received an appropriation in fiscal year 08-09 of $29 million; the College’s appropriation dropped to $22 million in 09-10; and a measly $3.5 million in fiscal year 10-11. So where’s that additional $35 million Sansom sent their way? Your guess is as good as mine – that money doesn’t show up in any of the traditional places.

All of which brings me to an important point. There’s a big difference between government transparency and citizen access to government information. Transparency and access are two sides of the same information coin perhaps, but are different in a fairly fundamental way: Transparency is, generally, financial information that government provides us either willingly or because state or federal law requires disclosure. Government selects the format and the forum for providing that information. On the other hand, access laws give us the right to demand the disclosure of information, as it is created and recorded, from our government. Even if our government chooses not to be transparent, Florida’s access laws require that it provide us with any and all information that is not exempt.

Florida’s public records law, codified in 1909, was one of the first in the country. With significant updates in 1966, it became one of the best. In addition to this statutory right of access, chapter 119 in the Florida Statutes, we also have a very specific constitutional right of access to the records of all three branches of state government — the legislative, the judicial, and the executive.

(As an historical aside, the drive to enshrine the right of access in the state constitution was triggered by a transparency debate of sorts — the denial of a request for financial records of a state representative running for re-election ended up in the Florida Supreme Court; in a very controversial decision, the Court held that the state’s public records law not only didn’t apply to the Legislature, it didn’t apply to any government entity but the Governor and Cabinet. Although the Court ultimately vacated its initial decision and issued a more reasoned opinion, the movement to add access to government information to one of the rights guaranteed in the state constitution had gained a significant amount of momentum, and the measure was approved by nearly 90% of Florida voters during the 1992 general election.)

Under Article I, section 24, the constitutional right of access to the records and meetings of Florida government, only the Legislature can create exceptions to our right of access, and there is a very specific standard for the creation of new exemptions. This means that an agency or branch of government, whether state or local, can’t deny a request for records without specific statutory authority. Thus, in Florida, unlike in many other states, there is no balancing of interests by an agency in determining whether or not you get the record you requested. Rather, a public records request can be denied, in whole or in part, only if there is a statutory exemption. That means the Legislature must pass an individual law to deny access to specific information or a specific public record — and a two thirds vote of each house is required for approval.

So if, for example, you want to know more about the $699 paid to the First Amendment Foundation by the Department of Health in 2010, you can make a public records request of the department for all records related to the expenditure, including email correspondence, purchase orders, drafts of contracts, final contracts — anything and everything related to the expenditure that is not specifically exempt. You’ll find that the $699 paid to the Foundation was for copies of the Government-in-the-Sunshine Manual purchased by DOH offices throughout Florida.

I think we can all agree that why government spends our money the way it does is just as important or perhaps more important than what it spends. Access to public records provides us with just this sort of information, information that allows us to hold our government accountable to we the people.

Barbara Petersen is the president of the First Amendment Foundation, a nonprofit organization based in Tallahassee that acts as an advocate of the public’s right to oversee its government through application of Florida’s public records law and open meetings law.