Records Custodians Take Note . . .

HB 541 continues to sail through the Florida House of Representatives, voted favorably out of the Government Efficiency and Accountability Council with a committee substitute on April 18, 2007. I haven't been able yet to find details of the committee substitute. Here's the current status of the bill.

In a prior post I expressed my concerns over provisions in the bill that seem clearly intended to subject records custodians to an obligation to do more that what is merely reasonable in responding to public records requests. The new duty to respond "promptly" remains undefined in the bill, but the Staff Analysis report makes clear that whatever "promptly" means, it means something faster than "within a reasonable time."

In recent days, I've heard open government advocates advance different positions on the bill and its requirements. Some have argued that the bill doesn't change the current obligation to produce records within a reasonable time, but merely adds a new requirement to "respond" to records requests sooner. Of course, the bill doesn't say that at all . . . nothing in the bill defines what it means to "respond" to a records request and the bill certainly doesn't expressly indicate that it is intended to create a new two-step procedure to deal with public records requests. Besides, if that's all this bill intends to accomplish, it will accomplish nothing: agancies will just send all requestors a form letter that says "Thank you for your public records requests. We will produce any non-exempt records within a reasonable time." What does that accomplish?

Others have suggested that "promptly" doesn't mean anything different than "within a reasonable time," despite the conclusion to the contrary in the House's own analysis. That's just plain disingenuous.

The bill appears headed on its way to passage and there's little doubt that the Governor will sign it. So we'll apparently be litigating some new issues about the duty of public records custodians in the near future.

I remain concerned about the practicalities of the bill. But I am far more concerned about the larger philosophical question raised by holding often lower level government employees to a higher standard of conduct that simple reasonableness. Think about this . . . a police officer can shoot you dead if he reasonably believes that you intend to shoot him. A city or county can take your private property away from you through eminent domain if it can show a reasonable necessity for the project and the property. A government agency can abridge your First Amendment right to speak freely on government-owned property through he adoption of reasonable time, place and manner restrictions. Anybody see a pattern here?

So, if we only require the government to act reasonably when its actions impair our most fundamental rights -- life, liberty and property -- why in the world should we hold a records custodian to any higher standard? Please . . . somebody explain this to me . . . . my head is about to explode.

And records custodians . . . the Legislature is doing this to you. Speak now, or forever hold your peace.