Public Records Access

Back to the City of Crystal River today.

I was contacted by someone who is having issues with a public records request with the City of Crystal River. This is the records request they made:

"I would like to make a public records request for all of Joe Meek's emails dated October 1st through November 21st. Please send them to me digitally".

As far as I can tell, this is an anonymous request. The email address did not have a name. They did not say why they wanted these emails or any other information. Regardless, none of that is required. Florida's public records laws are very broad. "Government in the Sunshine" is the idea. This allows full transparency and allows anyone to request any public record at any time for any reason and they do not have to say who they are or why they want them.

As you can imagine, government entities LOVE this (sarcasm).

Ok. No problem. They want to see Mayor Joe Meek's emails for some reason. He is an elected official. He is subject to records disclosure, his emails say such. No big deal, right?

They got this response back from the city:

Please accept this email as confirmation that your request has been received.

In accordance with Fla. Stat. Section 119.07(4):

(d) If the nature or volume of public records requested to be inspected or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both.

The City stands ready to proceed with processing the request upon receipt of payment as indicated on the invoice. (Money orders may be accepted, and there is an after-hours drop box located outside of city hall).

Attached was an invoice for $15

What you will notice here is that it says "Electronic search and data retrieval (I.T.) and that charge of $15. This will make sense in a minute.

This person replied back to the city:

Why would requesting emails be an extensive use of services?

The response from the city:

The City's I.T. service provider must facilitate these types of requests.

I too recently got this email with a couple of my requests. This was after they fulfilled my previous requests for free. They suddenly sent this same email without any warning or any notice. I went ahead and paid for mine ($45) as requested as I wanted the records ASAP and did not want to deal with the back and forth. I am still waiting on some of mine, ironically, also emails from Mayor Joe Meek (although he has nothing to do with records requests).

So it seems like the new way forward for the city is to charge for public records requests for emails.

Hmmm.

This person reached out to me and asked for help on getting public records. Apparently I am getting known for how to navigate this. I told them I would help craft a response, with the caveat that I am not a lawyer and not providing legal advice.

I did a bit of research and found an attorney general's opinion written by Pam Bondi on January 29, 2013.

Apparently, the City of Miami Gardens had a public records request for documents (emails) to be delivered digitally, as opposed to printed, which would have been subject to a printing fee. The documents (emails) were stored on a 3rd party system, similar to the city of Crystal River using a 3rd party for their email services.

Bondi goes on to explain that the city can charge fees for "actual costs of duplication" but may not charge fees for labor costs or associated overhead costs.

But also states this:

"Actual cost of duplication" is defined in section 119.011(1), Florida Statutes, to mean "the cost of the material and supplies used to duplicate the public record, but does not include labor cost or overhead cost associated with such duplication."

And goes on:

The fact that the request involves the use of information technology resources is not sufficient to incur the imposition of the special service charge; rather, an extensive use of such resources is required before the special service charge is authorized.

She goes on to address the "extensive use" clause:

The statute does not identify the Legislature's intent as to what may constitute "extensive use" and provides no definition of the term. However, in light of the lack of clear direction in the statute as to the meaning of the term "extensive," this office has suggested that agencies implement the service charge authorization in a manner that reflects the purpose and intent of the Public Records Act and does not represent an unreasonable infringement upon the public's statutory and constitutional right of access to public records

Then adds this, which appears to be very similar to the city's viewpoint.

Your letter suggests that a request for the production of public records by electronic mail may appear to be time saving and cost effective for both the requestor and the city. However, you are concerned that an individual could make several requests a day for the production of public records by electronic mail and, in responding to each request, the city could be required to utilize an exorbitant amount of staff time to respond to such public records requests. While this office acknowledges your concerns, these are issues which arise regardless of the format in which public records are maintained or produced. Providing access to public records is a statutory duty imposed by the Legislature on all records custodians and must be accomplished in a manner that is consistent with the purpose and intent of the Public Records Law and that does not unreasonably infringe upon the public's statutory and constitutional right of access to public records.

And in closing she adds:

The fact that the request involves the use of information technology resources is not sufficient to incur the imposition of the special service charge.

I sent over that to the person to forward back to the city. Hopefully it gets them what they are looking for.

The problem here is that the city is apparently trying to block/limit access to public records and forcing someone to pay for that access. That would be completely against the idea of the public records laws in the first place of ensuring that government is open to the people.

The records custodian likely knows this, but has probably gotten direction from someone to begin to charge for records requests. That would explain why they suddenly did that to me, without warning. But who? Worth exploring for sure.

The city likely has to pay some money to the I.T. company to retrieve those records, but as the opinion above states, that alone does not make the request require "excessive use" of I.T. services. That is also not the fault of the person doing the request. The city made the decision to outsource those services. They still have a statutory obligation to provide the records as required by law. It should not matter if those require the use of 3rd party services or not. That is the decision that the city has made. They would be responsible for the costs associated to follow state laws.

But a question I did not see addressed in those emails. What does the city define as excessive?

I assume asking for one email would be similar to asking for 100 emails. The I.T. company still has to do the same amount of work. In fact, a request like this is pretty simple. Open the email for that person, click on the emails for the dates desired and copy them to the server folder for delivery.

In my experience with the city, the I.T. company forwards me a link to access a folder where they put the emails. It would take about the same amount of time to create that folder for one email as it would for 100.

So what triggers "excessive use"

In their response, the city does not even say it is charging for excessive use. They say that they require the services of the I.T. provider for those requests, but as stated above, that is not a reason to charge a fee.

Why are they charging a fee for that?

How is that "excessive" use of services?

I do know how I will reply next time they ask for payment for "I.T. services" when asking about emails.