Let’s talk Sunshine Week frankly

FIle photo: Bill Gladson speaks during a meeting of the Litter Task Force at Marion County Growth Services in Ocala, Fla. on Monday, Nov. 1, 2021. [Bruce Ackerman/Ocala Gazette] 2021.

Editor’s Note: The morning after this article was published, the SAO produced a single sheet of paper with officers’ names who have Brady notifications associated with them for the reduced cost of $92 to cover the cost of their office researching the names.

It’s difficult for some of us in the news business here in Florida to grasp that this state at one time was considered among the most transparent in the land when it came to providing access to records created using taxpayer dollars. In fact, Florida’s initial public records law, adopted in 1909, was among the nation’s first.

But with approximately 1,200 exemptions already in place and on average about a dozen new ones added each year, more and more clouds are obscuring the Sunshine Law.

During Sunshine Week, news organizations, civic watchdog groups, nonprofits and others invested in government transparency pause to reflect on the status of access to information as well as on efforts by some to restrict the public’s right to know.

As regular readers of the “Gazette” are aware, this newspaper has not and never will shy away from a dispute over public records and open government meetings. We consider it a core responsibility of local journalists to keep the community informed, ensuring our reporting is accurate by basing it on facts.

You might think that local government officials and all custodians of public records would see the value of helping the media get it right by providing unfettered access to public information. Sadly, those instances are becoming fewer all the time.

To be sure, there are times when certain details need to be redacted from a record for legitimate security reasons.  For example, rules exempting from disclosure a person’s Social Security number or health records are reasonable.

But then the Legislature approves a bill making exempt from view the travel records of Gov. Ron DeSantis, his immediate family, the lieutenant governor, the House speaker, the Senate president and the chief justice of the Florida Supreme Court.

Legislatures claimed the exemption was for security reasons. Perhaps. It also conveniently blocks reporters who are questioning how much taxpayer-funded time and money DeSantis spent on his ill-fated run for the Republican nomination instead of running the state.

The struggle for greater Sunshine in Florida goes beyond the epidemic of exemptions. Inept records management systems seem to have settled in at both the state and local levels.

Here’s a recent example to ponder. Recently, when the “Gazette” was seeking to confirm a local circuit judge was not using his access to state and national crime databases while he remained a reserve law enforcement officer. The “Gazette” requested records from the Florida Department of Law Enforcement, but received no response.

Only when the “Gazette”  retained a lawyer and indicated it was willing to take the matter before a judge did the FDLE finally respond—months after the request was made.

“We apologize for any inconvenience, but FDLE’s Public Records and Records Production Unit has been experiencing a severe backlog of records requests, coupled with significant staffing shortage,’’ an agency spokesperson said. “Please be advised and for your information, as of today’s date, FDLE has over 1,600 public records requests received, docketed, and pending fulfillment prior to this one.”

The spokesperson said the “Gazette’s” request had been expedited “as a courtesy,” one that seems to have developed after the FDLE heard from a Tallahassee lawyer who regularly files suits for records put them on notice we were filing.

Another example involves our current investigation of the employment history of an Ocala Police Department sergeant. The story, which will be published soon, explores why the sergeant was allowed to resign instead of being fired after an incident in which has was said to have incited a verbal fight with a juvenile on Halloween of last year.

We were surprised to learn that the sergeant’s interaction with the juvenile took place in front of at least eight other officers, who were doing a good job of de-escalating the volatile situation. Why would he feel comfortable behaving that way in front of his peers?

In a review of the sergeant’s employment history, we found many disconcerting disciplinary issues. There also is a 2022 letter from State Attorney Bill Gladson’s office referencing an internal investigation from 2019. The letter puts OPD Chief Michael Balken on notice that all of the prosecutors in Gladson’s office had been told they should not call this sergeant as a witness because he has a track record of not being truthful.

This is vital because the state attorney’s office must provide the defense any evidence that might help prove a defendant’s innocence. This could include identifying a police officer who has a history of falsifying arrest affidavits or lying on the job.

We asked Gladson’s office for copies of similar documents, known as Brady letters, for other officers who work in Marion County, regardless of which agency, in the last 10 years. While we had no intent on publishing the list at the time of the request, we wanted to see if any of the officers similarly had been promoted despite having this cautionary label.

A representative of the state’s attorney’s office wrote back:

I would like to update you on your 02-09-2024 public records request for “correspondence identifying any other officers who work for any agency in Marion County with Brady violations”.  Our database administrator was assigned to identify over a ten year period those officers who were subject to Brady Notices.  She was able to identify thirty five (35) officers that were subject to Brady Notices. 

To comply with your request for correspondences, she had to: 

1. Identify how many cases in this ten year period these officers were involved in.
2. Which of these cases are stored in electronic form, paper form or a combination of both.
3. Estimate the time it would take to search these cases for the filed Brady Notice (the correspondence) and any other accompanying document supporting the notice.

Of the 35 officers, there were 1,950 electronic cases, 224 paper cases, and 42 paper and electronic cases, totaling 2,216 cases. It is estimated that 1,950 electronic cases would take about 5 minutes each to search, 224 paper cases would take 60 minutes each to search (we also house many cases offsite at a warehouse which would need to be transported here for review), and 42 paper/electronic cases which would take 65 minutes each to search. This would bring the estimated number of hours to handle this request at about 432 hours. As you can see, 432 hours at the current paralegal rate of $30.83 an hour would be quite costly. This e-mail is not to discourage public records requests, but only to illustrate the labor intensive work involved in such a broad request.

So, for $13,318.56, the “Gazette” could learn the names of the 35 officers. We asked the agency just send us the list of the 35 officers, and we would do our own digging. We were repeatedly told we’d still have to pay the $13,318.56 because there was no list, and they would have do the research.

Last Wednesday, I spoke by phone with Deputy State Attorney Walter Forgie and asked would he please provide the list. He told me he was not obligated to create a record and since there was no list, I’d have to pay the research fees to obtain the names.

I asked Forgie if prosecutors’ paralegals needed to spend 432 hours researching each case they had to determine if one of the 35 officers was a witness on any of their cases. No, he said, they are notified internally when they enter in witness names.

Forgie agreed that electronic data is a public record. I resubmitted my public records request last Thursday, March 7, and they have indicated they are still working on it.

There are some state attorneys who recognize the impact dishonest cops can have on their ability to prosecute cases, and they have published the names of these officers to put the public on notice and no doubt to put political pressure on law enforcement agencies to keep their ranks clean.

Our state attorney’s office says they don’t even have a list. It’s a group of 35 names that only a software company is holding somewhere.

Florida Attorney General Ashley Moody, in her introduction to the 2024 Sunshine Law Manual, an essential book for anyone trying to obtain records, said, “The Founding Fathers of our country recognized this fundamental truth during our nation’s infancy, and it remains just as valid today.’’

We agree with Moody.

The only way Florida can once again be considered a leader in Government in the Sunshine is for the public to demand that elected officials be transparent and for voters to push out those who do not have a strong commitment to keeping the government open and honest.

Again, as Moody appropriately quotes James Madison: “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”