A Lesson in Obstruction
Florida's Sunshine Law is a beautiful thing. It allows any citizen to request documents from a public agency and, with a few exceptions, such as the content of open criminal investigations, requires officials to provide the information, usually for free.
Say, for example, you want to look at the personnel files of the chief and seven other high-ranking officers in the Miami-Dade County Police Department. You'd write up a public-records request citing your rights under Chapter 119 of the Florida statutes and send it to Det. Ed Munn or one of his colleagues in the department's public-information office. He'd forward it to the personnel division, which would assemble the files. Then he'd call and tell you to come take a look. And, unless you wanted to make copies, this whole exercise would be absolutely free.
If you made the same request of the City of Miami Police? Gratis, says Lt. Bill Schwartz.
City of Miami Beach? No charge, says Det. Al Boza.
Miami-Dade County Public Schools Police? That'll be $4792.
That number is not hypothetical. During the reporting of two stories about the school police department ("Cop Out," March 9, and "River of Sleaze," April 7), New Times requested the personnel files of eight top school cops. The school district, in a memorandum from then-school police Chief Vivian Monroe, replied it would cost New Times nearly $4800 to view the paperwork, which includes employment histories, salaries, commendations, and disciplinary records. Photocopies would be extra.
The paper skirmish that followed between the school district and New Times confirmed what reporters and editors have known for years: The Miami-Dade County school system does whatever it can to keep public information from the public.
"The school board's reading of the law is, 'How do we make it hard for people to get these records?'" says Sanford Bohrer, an attorney with Holland & Knight whose clients include New Times, the Miami Herald, and WPLG-TV (Channel 10). "These fee claims that they make are just one of the obstacles they throw at you."
In this case if the district was trying to prevent New Times from writing unflattering stories about the school police department, it failed. "Cop Out" detailed Monroe's track record of meddling in officers' investigations to protect her friends and political allies. (Monroe is now commander of a special investigative unit.) "River of Sleaze" documented the state attorney's probe of assistant school police Chief José F. Gonzalez's role in an alleged murder attempt related to the notorious 1980s Miami River Cops scandal.
But stories critical of the district are not the only ones that get quashed. Even when someone wants to do a puff piece, the district is so obstructive it usually doesn't get done. The most publicized example occurred in January, when Oprah Winfrey wanted to film at William H. Turner Technical High School in North Miami-Dade, touting it as a success story of urban education. Deputy superintendent of schools Henry Fraind blew off the opportunity, because the most powerful woman in television hadn't filled out the proper forms.
Acknowledging this perception existed, the school board in March seemed to take a big step toward becoming more user-friendly. The board removed Fraind, superintendent Roger Cuevas's second-in-command, from his media-relations role and hired a full-time public-information officer (PIO). But that person, Paige Patterson-Hughes, resigned two weeks ago to return to her former duties as a PIO for the Florida Department of Law Enforcement, citing personal reasons. (She is expecting a child in October.) The school board job included an $80,000 per year salary; she is returning to an FDLE gig that pays $36,000 per year.
Yet even as the school system appeared to be stumbling toward perestroika, it was holding those school police personnel files for ransom. New Times still hasn't seen them. The correspondence shows why. After New Times's initial records request on February 29, then-school police Chief Monroe sent a memorandum to her boss, associate superintendent Nelson Perez. She wrote that it would take up to a month to review and remove nonpublic information (such as officers' home addresses and Social Security numbers). It was Monroe who came up with the $4800 price tag.
That same day New Times called attorney Sanford Bohrer, who got on the phone with school board attorney Johnny Brown. The two lawyers agreed to a compromise: New Times could review the closed internal-affairs investigations of four officers on the list the following day at no cost. The original $4800 cost for the personnel files was declared a clerical error. The revised charge actually was $1800.
Bohrer requested a breakdown. On March 16 assistant school board attorney Patricia Bass faxed a letter stating a new estimate of $1011.68. She also attached "copies of the individual cost schedules." These documents describe a three-step process for preparing the information. The first step: "Copy pre-final product, duplicate for final review, unassemble for initial review, and reassemble the file for redaction." The charge for this task is $10.81 per hour. Next comes the "initial review of file, redacting of confidential data." This costs $31.39 per hour. Then comes the "final review by records custodian," which costs $42.06 per hour. (The ballooning hourly cost presumably results from the need for increasingly well-paid bureaucrats.) Add the cost of paper copies at 15 cents a page and you have your total.
Is that legal? Chapter 119 states that public information must be open for inspection without charge unless otherwise expressly provided by law. An agency can charge extra only "when the nature or volume of public records to be inspected is such as to require extensive use of information technology resources, or extensive clerical or supervisory assistance, or both."
What does "extensive" mean? The school board's rule says "it means that it will take more than fifteen minutes to locate, review for confidential information, copy, and refile the requested material." But Bohrer is unconvinced that cops' job histories, some of which contain as many as 300 pages each, qualify as an "extensive" use of school board employees' time.
Miami-Dade County police do not routinely charge for viewing personnel records. A spokesman even questioned the school department's bill. "If they have to pull someone away from other duties to process a request, I might understand a slight charge," allows the spokesman, who declined to give his name. When told of the high cost, he replied: "I find it hard to fathom that amount. That sounds kind of funny to me."
The charges are particularly questionable because the cost schedules are applied arbitrarily. Reporters from New Times, the Herald, and elsewhere routinely review personnel files of school employees without paying. Patricia Bass acknowledges the district dropped one level of scrutiny from the process as a result of Bohrer's protests but maintains that the district, by law, has the right to charge for lengthy records searches. "Our intent is to follow the statute and the board rule, and to try to be consistent," she says.
On March 31 Henry Fraind wrote a letter to New Times stating the files would be available for review, "for a revised cost of $652.50." He then mailed it -- to Channel 10. There reporter Jilda Unruh and producer Helen Moore-Harbeson had, on March 16, made their own request for the personnel files of six school police officers (four of whom also were on the New Times list). Fraind made another mistake by mailing his Channel 10 (WPLG-TV) response to New Times; he quoted the TV station a price of $937.05.
Unruh was alarmed that another news organization was chasing the same story and angry that Channel 10 was being charged more than New Times. Indeed she was dumbfounded that she would have to pay anything. "I thought it was obscene," the broadcasting veteran declares. "I have never, anywhere I've worked, had public records cost me that kind of money. This is clearly done to discourage anyone, whether it be the press or a parent or a concerned citizen, from getting the information they want. And if [this practice] doesn't violate the letter of the law, it certainly violates the spirit."
Channel 10, like New Times, has decided not to pay. Unlike New Times Channel 10 did not involve its attorneys.
Is New Times prepared to give Bohrer the green light for litigation? Not yet. "After years of unproductive confrontation and legal threats, I think it's time for us and other news organizations to sit down with school district officials and work out a mutually acceptable procedure for producing public records," editor Jim Mullin says. "Surely Roger Cuevas wouldn't object to that, would he?"
At the very least, it wouldn't be a problem for new school police Chief Pete Cuccaro, himself a former public-information officer for the Metro-Dade Police Department. He says the whole mess could have been avoided if the school district in general, and the police in particular, had established clear lines of communication with the press. "[The school district] has been closed in the past, but they say they want to be open now," Cuccaro says. "I absolutely believe them, and that's what I'm about."
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