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Erosion Of Sunshine Laws In Florida Continued Over Past Year

First Amendment Foundation

Some Florida lawmakers received better grades this year when it came to transparency in government, but erosion of the state's famed "Sunshine Laws" continued with more exemptions passed.

Lawmakers passed 12 bills creating new exemptions this year, including measures to block access to building plans for health care facilities; U.S. Census Bureau address information; data used by a state-run insurance company; and documents revealing the valuation of surplus lands held by water management districts.

The exemptions continue a bipartisan trend among lawmakers, who have approved more than 269 of them to the Sunshine Laws since 1995. The laws require government meetings to be publicly announced in advance; require officials on government boards to meet in public; and government records to be made available to the public.

"The whole point of open government and access to government information is the opportunity to oversee our government and hold it accountable," said Barbara Petersen, president of the First Amendment Foundation, an open government advocacy group that produced the report card in conjunction with the Florida Society of News Editors.

The analysis resulted in more positive grades to many lawmakers compared with last year, especially House members, who voted for bills that would have strengthened transparency. Nearly 78 percent of the 117 sitting House members - 91 in total - received grades of B- or higher. But only six members received an A; the other 85 received Bs.

The House passed bills to prevent state agencies and local governments from taking to court citizens and groups that request public records and to clarify what counts under "trade secret" exemptions.

Those measures, however, failed to get through the Senate, which hurt that chamber's scoring significantly. Twenty-three senators, more than half of the 38 sitting members in that chamber, received Fs.

Grades were based on points added for votes in favor of pro-transparency bills and against bills adding exemptions to the records laws, and points subtracted for votes in favor of exemption bills. Points were also added or subtracted for sponsoring bills that strengthened or weakened open government or access to public records.

The discrepancy between the House and Senate grades reflects the approach of the two chambers during the session, but Petersen also noted the grades are a "snapshot" of one year. Senators who have championed open government in the past got poor marks this year because there were fewer pro-transparency bills that advanced in that chamber.

"The reason is more good bills, bills that we had marked as good bills made it to the House floor than in the Senate, so House members had more opportunities to vote than senators," said Petersen, who added that she'd give the Legislature as a whole a "D'' grade.

Senate President Joe Negron, for example, received an award from the FAF in 2013 for pushing a bill through the Legislature that guarantees citizens the opportunity to speak before a governing board. But he got an F this year on the basis of his vote on one bill. He voted for SB 1940, which shields the names and training information of the school employees who sign up for the "guardian" program designed to arm some teachers and other employees in K-12 schools.

"It would be bad policy to have the government advertise the identities of trained men and women who are part of the school security apparatus," said Negron, R-Stuart. "There's a delicate balance between making sure government is transparent and accountable while at the same time not placing school personnel at undue risk."

Petersen said Negron had been an advocate for open government throughout his legislative career, but this year the pro-transparency bills failed to gain traction in the Senate.

Those bills could be pivotal to the future of Florida's open records laws.

One measure, HB 273, would prohibit state and local governments from filing a civil action against those requesting records, as the South Florida Water Management District did against an environmental group this year. Petersen said such moves have a "chilling effect," increasing costs for the average citizen to access information. The bill passed the House unanimously, but died in the Senate.

Another bill, HB 459, would have clarified what counts as a "trade secret," making it exempt from disclosure. The bill came out of the Pitbull scandal, in which almost all of the Miami rapper's contract with the state tourism promotion agency was redacted until House Speaker Richard Corcoran sued, revealing he was paid $1 million. The bill passed the House with just two no votes, but it never got a hearing in the Senate.

Petersen said without a uniform definition of "trade secret," governments can use the exemption to block access to nearly any part of a contract.

Several Central Florida lawmakers received poor grades, partly for sponsoring or voting for bills that would have blocked access to video and audio recordings of deaths. The bills were sponsored by Rep. Kamia Brown, D-Ocoee, and Sen. Randolph Bracy, D-Orlando. Both received F- grades.

The measure was later amended to exempt only recordings of deaths that were the result of mass violence. But even as amended, it failed to pass. Victims of violence, such as the massacre at Pulse nightclub in 2016, shouldn't be subjected to the released footage, the sponsors argued.

"We need to figure out a way to make sure that these photos and pictures are protected," Bracy said during a committee meeting discussing the bill.

For Petersen, the recordings are essential to holding law enforcement officials accountable. She noted the story of the school resource officer at the Parkland shooting who claimed he thought the shots were coming from outside the school was proven false by audio recordings. But she also said that while established news media outlets usually handle sensitive recordings with care, seedier corners of the Internet don't share such scruples.

"We used to be able to be assured that the media would use this information responsibly, but the Internet has kind of skewed things," Petersen said.