Blog – Breaking Open Government Laws: The economic and political costs to citizens and public officials

By Daniel Bevarly, Executive Director, NFOIC

Last month, Martin County Florida (pop. 156,000) agreed to pay a private company $371,800 in fines for attorney fees based on the findings of a non-binding arbitrator who decided that the county and its commissioners “engaged in a pattern of violating the public records act” in an attempt to shield that they were using private email accounts to communicate. The county also agreed to establish a new policy for how to handle public business.

Martin County’s annual operating budget is $399 million. The fines equate to eight police cars, or the salaries of four new police officers for three years. It’s more than $100K Martin County budgets annually for economic development.  

Unfortunately, Martin County is not alone. Florida’s Governor, Rick Scott last year agreed to spend $700,000 in taxpayer money to settle seven public records lawsuits alleging he and several members of his staff violated state Sunshine laws when they created email accounts to shield their communications from state public records laws, and then withheld the documents. The $700,000 included external payments to private attorneys the governor hired.

The digital revolution has left many governments and other public institutions in a reactionary mode.  The use of new technologies (hardware and software) has slowed their response to the growing volume of public records being generated by their agencies. Internally, the incremental nature of bureaucratic culture, concerns about privacy, and an overshadowing of political and legal implications have resulted in a “circle the wagons” reply from many government agencies.  External pressure from journalists and citizens who have been empowered and enabled through the new technologies have created an overwhelming backlog on agencies that find it difficult to fulfill the numbers of public record petitions or even assembling the data that is being requested.

Each time an agency deploys a new technology, data is generated that may fall under that state’s open government laws. And for employees, as the cases above demonstrate, more states are requiring any public business conducted by officials using personal email addresses or cell phones falls under that state’s public records laws meaning those correspondences must be compiled and made available if requested.

Martin County epitomizes the high political and punitive financial costs to knowingly violate these laws. However, many local and state governments do not realize their own financial costs to fulfill their responsibility as stewards and providers of public records. One study conducted by Washington state’s Auditor’s office determined their state and local governments statewide spent more than $60 million fulfilling 114,000 records requests last year.

How can public institutions get a handle on an administrative task that is repeated daily across its agencies, incurs real costs to manage, and possible legal costs if done poorly?  Like any specialized challenge facing a public or private organization it begins by developing professional standards to address it. And with any professional practice, there are a number of steps that must be taken to determine the costs and inefficiencies surrounding that activity.

Circling the wagons is not a bad idea. However, it should be done around the inadequate laws, policies and practices, and not around the content in which the public has a right to access.