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Updated: New records policy could lead to higher costs for requests

By Staff | Oct 6, 2011

Update: 3:35 p.m.:

Changes to Cape Coral’s public records policy could lead to substantial fees for citizens who want access to city documents.

In a revised policy dated Sept. 28 and implemented Oct. 1, the city administration has redefined the definition of “extensive” requests. The previous policy defined “extensive” as those taking more than one hour to retrieve the documents requested and redact any information that by law is not public information.

The new policy, implemented by City Manager Gary King, redefines the time period at which staff time can be added to state-allowed copying charges at 15 minutes.

Criteria used to determine the extensive request trigger for fees in addition to copying costs include extensive use of information technology, labor costs incurred for clerical or administrative services, locating documents in filing cabinets and making photocopies.

For example, a customer service representative’s hourly wage,plus benefits, could be charged to the person making the request as could any other staff time involved if producing the records requires more than 15 minutes.

City spokeswoman Connie Barron wrote in an email to The Breeze on Oct. 5 that the change does not reflect new fees but a switch in the administration’s philosophy of public records and associated research.

“We only are updating our administrative regulation and changing the extensive research definition to model other municipalities and recoup some of our actual costs for providing public records,” Barron wrote.

“The ordinance changes probably will remove some outdated fees and lower other fees to reflect the actual costs for providing public records (e.g. DVD duplication, outdated technology charges),” Barron added.

The city attorney’s office is working on revising the ordinance that governs fees the city charges for its public records, according to Barron. The time frame in which that work will be completed is unknown.

As the redefinition of “extensive” was made to an administrative policy, council did not need to approve the change before it was implemented, administrative officials said.

City Council will need to vote on any revisions or changes to the ordinance actually dealing with the fee structure, City Attorney Dolores Menendez said.

Whether the change in definition as to what constitutes an “extensive request,” falls into the fee category, which would require a council vote, or whether it does not, has not been determined by her office, she added.

Councilmember Pete Brandt said he approves of the changes, as long as citizens would still able to view their public records request for free at the city clerk’s office.

It could not be immediately determined whether citizens would still be charged to compile those records if they are allowed to view them for free, but Brandt said public records requests should be based on a “true need.”

“I think some of the recent requests have been time consuming. I think something needs to be done but maybe this is too dramatic,” Brandt said, adding, “In some cases it’s a method of harassment.”

Brandt, along with Councilman Bill Deile, Chris Chulakes-Leetz, Eric Kuehn and Mayor John Sullivan all signed the “Contract with Cape Coral”, a document that promised, among other things, to restore the public trust.

The document, which was circulated during the previous election cycle and is now found on the website that once promoted Sullivan’s candidacy for mayor, promised to restore the public trust, in part, to “Facilitate greater public participation, communication and influence, including referendums on major issues. Require retention of, and legally permitted access to, all public records to enable clarification of the ethics of public officials and other relevant matters and entities.”

Sullivan could not be immediately reached for comment.

Council member Marty McClain did not view the change as one that will benefit the public.

“It’s an obvious attempt to discourage people or charge them enough to discourage them from receiving the information they’re entitled to,” McClain said.

“I anticipate this being legally challenged. We’re selecting what is public record and subject to transparency. I find it peculiar.”

Jim McGuire, First Amendment Attorney and outside council to the Florida Press Association, said it’s not uncommon for a city to change its public records request policy, but it’s often perceived as being politically motivated and has nothing to do with logistics.

“Any time you make it more costly or add some level of effort that people are going to have to incur, you discourage people from seeking information,” McGuire said. State statutes do allow for the recouping of costs for “extensive” records requests. The statutes do not, however, define what constitutes an extensive request.

Barbara Peterson from the Florida First Amendment Foundation in Tallahassee said the city is making a “major shift” in policy seemingly out of nowhere, and she questioned the decision being made without the benefit of a public discussion.

“It’s a travesty they’re allowing an administrative person to make this decision without public input or without input from the elected representatives of the city,” she said. “They’re allowing the city manager to have a fairly dramatic effect on citizens’ constitutional rights to public records.”

Peterson said that the city’s shift from an hour to 15 minutes for an extensive records request is most alarming, especially since the city has not provided any backup financial information to justify the shift.

“They can’t just pick a number out of the air,” Peterson added.

Peterson suggested that for each records request considered extensive, the requestee insist on an itemized invoice to include the employee whose time they are being charged for. And don’t be afraid to ask questions, she said.

“It’s very dramatic. An hour was OK last month and now it’s 15 minutes? I think people in the city will be pretty upset,” she said.

Local governments charging extensive request fees predicate those fees on a court case involving a prisoner who made numerous requests for records while incarcerated. The court allowed for the additional charges for any records taking more than 15 minutes to retrieve and redact but cautioned that its finding was not intended to define “extensive” for other agencies.

Since then, the issue has been hotly debated with numerous First Amendment and activist organizations protesting the charges as a way for governments to limit public access to records by making the cost too high for the average citizen the pay.

Legislative attempts to address the issue by either defining extensive or by eliminating charges for redaction required by state law have failed.

First post:

Changes to Cape Coral’s public records policy could lead to substantial fees for citizens who want access to city documents.

In a revised policy dated Sept. 28 and implemented Oct. 1, the city administration has redefined the definition of “extensive” requests. The previous policy defined “extensive” as those taking more than one hour to retrieve the documents requested and redact any information that by law is not public information.

The new policy, implemented by City Manager Gary King, redefines the time period at which staff time can be added to state-allowed copying charges at 15 minutes.

Criteria used to determine the extensive request trigger for fees in addition to copying costs include extensive use of information technology, labor costs incurred for clerical or administrative services, locating documents in filing cabinets and making photocopies.

For example, a customer service representative’s hourly wage,plus benefits, could be charged to the person making the request as could any other staff time involved if producing the records requires more than 15 minutes.

City spokeswoman Connie Barron wrote in an email to The Breeze on Oct. 5 that the change does not reflect new fees but a switch in the administration’s philosophy of public records and associated research.

“We only are updating our administrative regulation and changing the extensive research definition to model other municipalities and recoup some of our actual costs for providing public records,” Barron wrote.

“The ordinance changes probably will remove some outdated fees and lower other fees to reflect the actual costs for providing public records (e.g. DVD duplication, outdated technology charges),” Barron added.

The city attorney’s office is working on revising the ordinance that governs fees the city charges for its public records, according to Barron. The time frame in which that work will be completed is unknown.

As the redefinition of “extensive” was made to an administrative policy, council did not need to approve the change before it was implemented. City Council will need to vote on any revisions or changes to the ordinance actually dealing with the fee structure.

City Attorney Dolores Menendez could not be reached for comment.

Councilmember Pete Brandt said he approves of the changes, as long as citizens would still able to view their public records request for free at the city clerk’s office.

It could not be immediately determined whether citizens would still be charged to compile those records if they are allowed to view them for free, but Brandt said public records requests should be based on a “true need.”

“I think some of the recent requests have been time consuming. I think something needs to be done but maybe this is too dramatic,” Brandt said, adding, “In some cases it’s a method of harassment.”

Brandt, along with Councilman Bill Deile, Chris Chulakes-Leetz, Eric Kuehn and Mayor John Sullivan all signed the “Contract with Cape Coral”, a document that promised, among other things, to restore the public trust.

The document, which was circulated during the previous election cycle and is now found on the website that once promoted Sullivan’s candidacy for mayor, promised to restore the public trust, in part, to “Facilitate greater public participation, communication and influence, including referendums on major issues. Require retention of, and legally permitted access to, all public records to enable clarification of the ethics of public officials and other relevant matters and entities.”

Sullivan could not be immediately reached for comment.

Jim McGuire, First Amendment Attorney and outside council to the Florida Press Association, said it’s not uncommon for a city to change its public records request policy, but it’s often perceived as being politically motivated and has nothing to do with logistics.

“Any time you make it more costly or add some level of effort that people are going to have to incur, you discourage people from seeking information,” McGuire said. State statutes do allow for the recouping of costs for “extensive” records requests. The statutes do not, however, define what constitutes an extensive request.

Local governments charging extensive request fees predicate those fees on a court case involving a prisoner who made numerous requests for records while incarcerated. The court allowed for the additional charges for any records taking more than 15 minutes to retrieve and redact but cautioned that its finding was not intended to define “extensive” for other agencies.

Since then, the issue has been hotly debated with numerous First Amendment and activist organizations protesting the charges as a way for governments to limit public access to records by making the cost too high for the average citizen the pay.

Legislative attempts to address the issue by either defining extensive or by eliminating charges for redaction required by state law have failed.