for your {public} information

You can stick it where the sun don’t shine, if you must — but don’t do it in the Sunshine State.

Although Florida’s so-called “sunshine laws” frequently face assault, they remain neither a farce nor a tragedy but an evolving and vital history of freedom.

Sunshine guarantees that every person may study the open records of almost every action, debate, conversation, meeting, strategy, plan, blueprint, notepad doodle, telephone call, e-mail exchange or Blackberry and iPhone text tapped out or recorded by each elected or appointed official representing state or local government.

There’s good reason. “I always remember: Officials lie, public records don’t,” says Lee Melsek, a much-feted former investigative reporter for The News-Press in Fort Myers, who spent more than three decades using public records to right wrongs and challenge official miscreants, before retiring three years ago.

MCBRIDE Sunshine wasn’t designed for busybodies or voyeurs, per se, according to its champions. They will begin celebrating Florida’s pioneering open records laws March 14 across Southwest Florida and the 67 counties of the Sunshine State.

Instead, Sunshine was designed to let men and women here control their destinies by watchdogging their leaders. That’s a form of freedom as purely American as apple pie or James Madison, insists Dwight Brock, Collier County’s feisty Circuit Court clerk.

At his official stop on the county Web site designed to guide citizens into public records — the Sunshine logo at www.colliergov.net — Mr. Brock quotes Mr. Madison, the nation’s fourth president and the shaper of the First Amendment protecting free speech.

“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or Tragedy; or, perhaps both,” Mr. Madison proclaimed.

The famous words also appear on the state’s detailed Web site, myflsunshine. com, where the specific laws appear with their history and applications.

But the devil is in the details, and the measure of Sunshine’s strength or weakness lies in the loopholes.

Common among those are localgovernment contracting and purchasing negotiations taking place; law enforcement investigations underway and personal information about minors.

There are other loopholes, however — often the hot zones for periodic fights over Sunshine and shadow.

Should 9-1-1 calls or autopsy files be public record? How closely should parents be able to scrutinize the personnel records of their child’s public school teachers? And should government officials be obligated to harness the efficiency and power of new technology to make records easily available, or can they allow them to remain hard to reach in the electronic universe?

What the records can tell you

Whether difficult or easy to find, citizens can check the pedigree of every nonprofit organization or large political gift. They can trace the actual names behind the fictitious names of corporations, or determine not only the salaries of all their leaders but the sometimesstartling benefits packages. They can discover how many lawsuits or legal complaints have been filed against contractors or business owners, check the cleanliness reports on restaurant

kitchens, and detail the travel budgets and extra expenses of public officials, to name just a few.

“In general, democracy only works when government is open,” says Kelly McBride, a faculty member and ethics group leader at the celebrated Poynter Institute in St. Petersburg, which educates and hones the skills of both American and international journalists.

And much of it is open. “By comparing databases, you can discover if any of the bus drivers hired by an agency that drives school busses have DUIs,” she reveals.

“You can look and see how many foreclosures are in your neighborhood, and how that relates to property values.

“You can look and see how many speeding tickets are written in different ZIP codes and compare it to the demographics, and learn how your local law enforcement targets speeders.

“You can hold the police accountable in many ways — for example, how they code sexual assaults in many cities,” which can reflect not only the image of a city for tourists and investors, but suggest crime-solving successes that come with salary and position jumps for commanders.

Opponents of open records come neither from conservative nor liberal positions by nature, suggests Ms. McBride, but from people who aim to hoard power.

“It’s very easy and popular for lawmakers and even judges to be activists in closing certain records in reaction to a very specific incident, something that makes news, especially now with the rising concern for privacy,” she notes.

But that often fails the interests of a democracy.

For example: the fight to open autopsy records of NASCAR driver Dale Earnhardt, killed in a 2001 racing accident. When reporters sought the graphic photographs from those records to determine if his life could have been saved by different safety gear and more stringent NASCAR policies, an outcry ensued, Ms. McBride recalls.

The public issue became a debate over voyeurs and privacy, not an effort to save the lives of other drivers and make the sport safer by using public records to investigate the conditions that led to Mr. Earnhardt’s death.

But that’s the point and the power of Sunshine laws.

How opponents fight sunshine

“The problem is, it’s very hard to hold government accountable when you can’t get the records,” Ms. McBride points out.

“And you have to have a couple other puzzle pieces in place to hold government accountable.

You have to have public officials willing to do it.

I was a police reporter for eight years, but police chiefs who wanted to make my life hell, could.

“They could create policies, ways of doing business, that could make it impossible to get the records. They might say that you have to pay exorbitant fees, or fees for a clerk’s time to access the records — so the only way out is suing.”

On the other hand, she says, some officials go out of their way to honor and extend the Sunshine.

Mr. Brock, for example, has been locked in a six-year lawsuit with the board of Collier County commissioners to close one Sunshine loophole: He would require the board to open its financial records as it creates them, not after the fact, so that he may audit them, publicly.

After all, he argues, the law requires that the county clerk serve as a checkand balance, signing off on each financial decision of the board, including those already approved by commissioners, something he can’t do appropriately if he can’t see what’s been done.

And he insists every citizen should know how officials are behaving.

“What I do is the people’s business,” Mr. Brock says. “If the people don’t have a right to know about their business, then I can’t imagine who does. The general public overwhelmingly believes government has an obligation to report and explain what they do, and how they spend our money. So it’s important for government to do everything it can to make information available to the public.”

In Lee County, where Wayne Daltry recently retired from a three-decade career as a planner and leader of Smart Growth — in large part because county officials had hidden their planning and decision-making from him, and from the public — one of the biggest loopholes is both legal and problematic, he says.

“This is the loophole for the elected or appointed chief executive,” in which he or she can make decisions out of the Sunshine.

Everything else is open record — or as Mr. Daltry describes it, everything else comprises “the chain of evidence of decision-making for all BUT the chief operating officers/executive, since they are the only ones that don’t need to keep records.”

Depending on the “good faith” determination of a leader to honor the intent of Sunshine laws, therefore — a county manager, say, or a police chief or county sheriff — those records become opportunities for citizens to assess their leaders. Or not.

“Lee County keeps records of (County Manager) Karen Hawes’ weekly meeting of the 30 department heads, but not a word of her weekly meeting of the four chief administrators,” notes Mr. Daltry. “So guess where decisions get made or handed out?”

Maybe the most important document of all, suggests Mr. Daltry, “is the real organization chart, which is seldom published.

“The official organization chart shows command and control and information flows. A real one will show dotted lines of how information and decisions REALLY flow, and there will be dotted lines that lead off the chart to influence peddlers, deal makers, friends with pull, etc., and that is also why public records laws are key — that is where you find the impact of the dotted lines.”

In the trenches

For those who spend their working lives watching government and reporting its actions — the reporters hired by newspapers or television networks to pay attention — debates over Sunshine’s limits are a matter of daily course.

“Every time this legislature exempts another record from public view it’s assaulting the public’s right to know, and that ought to be outrageous to everyone,” insists Mr. Melsek, who retired from his position as an investigative reporter for The News-Press five years ago.

Mr. Melsek is now publishing a community newspaper sharply attentive to the actions of officials in the town of Fort Myers Beach, as well as to county officials whose decisions may affect the Beach, where he was raised, and where he now lives.

Like Ms. McBride, he also assigns journalists the duty of defending open public records, not simply offering “hesaid, she-said” reports.

“Any newspaper editorial writer who makes excuses for politicians who close public records ought to be run out of the building,” Mr. Melsek suggests unequivocally.

That said, Ms. Hawes, for example, is within her rights to provide no account of conversations with chief administrators.

Whether she or those meeting behind closed doors with her take specific notes or merely doodle on a note pad,

members of the public can’t get those records by asking for them.

“(Those) are only public if you make them so by slipping into her trash can after hours, which is what I used to do at grand jury rooms here in the Lee County Courthouse,” Mr. Melsek adds.

“After each session of a grand jury meeting the prosecutors would leave and neglect to lock the door. So, Mr. Melsek would slip in and go through the waste can for their notes. Sometimes, that search yielded just enough to confirm what they were doing.”

As for county commissioners, “Under their own policy they must keep logs of their individual private meetings with lobbyists,” Mr. Melsek says. “They must jot down the time, the date, the name of the person talking to them, who they are with, who they represent and what the subject

was. Those logs are given to the ‘minutes’

department every few months.

I used to get a lot of interesting information from them.”

Such scrutiny of government in the sunshine requires not cynicism about the actions of officials, but an honorable and stainless-steel skepticism, says Charlie Whitehead, who spent two decades covering government for the

Naples Daily News. Mr. Whitehead left that paper last month.

“Government bears watching, in its truest sense,” he explains. “You have to keep your eye on them because officials are not to be trusted. If they were to abuse their positions, they’re in a position to do great damage. So you can’t afford to trust them.

“It’s not a question of whether they would do something untoward, but that they could. The Sunshine laws are there in large part because they could.”

Veteran reporters often use Sunshine laws as a powerful tool to right specific and sometimes bloody wrongs, not simply to bring information to the public.

In Mr. Melsek’s case, for example, he worked not only in Lee and Collier counties in the course of his career, but north into Charlotte and DeSoto counties.

In one case, his work freed a man imprisoned for life for a crime he didn’t commit — that was long before DNA became a factor — and in another case his reporting stopped the abuse of countless mental patients by their wards in a state hospital.

“Bobby Chambers was a black fruit picker in DeSoto County,” Mr. Melsek recalls. “He’d been in prison several years and I found the old transcripts and testimony of his trial for robbery in the deepest corner of the old DeSoto County Courthouse.

“I brushed off the dust, opened the crumpled case files and spent months piecing together what was an unmistakable paper trail of contradictory testimony on crucial points, and as questionable a legal representation as you will ever see.

“Those stories persuaded some legislators to have him freed from his life sentence.”

Mr. Melsek used pubic records much the same way at the state mental hospital in Arcadia.

“I dug into personnel files that went back a decade and found a pattern of not only abuses on patients that went unpunished, but (a pattern) that left the abusers in the wards with the people they’d abused. Those files also turned up years of hirings from farm fields and dollar stores of people put immediately in charge of the most vulnerable people in our society.”

Eventually, the state shut down that hospital and redesigned the way it provided such services.

“Both of those stories were framed on the rock-solid credibility of public records,” says Mr. Melsek.

At The News-Press in 2008, reporter Amy Bennett Williams used public records to run down a series of online comments from different e-mail accounts that excoriated a nonprofit labor organization in Collier County, the Coalition of Immokalee Workers. The comments touted demonstrable lies and false allegations of theft. (Ms. Williams is married to Florida Weekly writer Roger Williams.)

At the time, The Coalition was publicly encouraging fast-food giant Burger King to pay a penny a pound more for tomatoes picked in Florida fields, to boost the wages of poverty-stricken workers.

“The whole field of electronic public records is sort of being pioneered now,” Ms. Williams says.

“Fortunately, Internet protocol addresses, the IP addresses, are public. I’m sure there are ways to cloak them, which should be illegal, but I think enough people don’t do that, so that you can use them.”

Ms. Williams decided to track an e-mail from someone who called himself Shawn Glass, after she noticed it used many of the turns of phrase she’d seen in various other e-mails, from other addresses.

“You can figure out where it came from by typing an IP address into a search engine, and that will give you, in many cases, the geographic coordinates,” she explains. “It will give you the longitude and latitude from whence came the email. So I did this, and got the geographic coordinates from which Mr. Glass had sent me his letters, and those happened to be the corporate headquarters of Burger King.”

When comments appeared from a tag called Surfxaholic — again replete with similar-sounding and potentially libelous accusations about The Coalition — she looked at the personal information provided by the sender and tracked it to someone named Shannon Grover, who lived in the same town as a vice president for Burger King, Steven Grover.

“So using public records I got the phone number and called the Grover household, and spoke to Shannon. She confirmed for me it was her father who used her account to write about the Coalition,” Ms. Williams says.

“This is not some journalist’s trick, it’s something anybody in the public could have done. I was intent on connecting the dots, thanks to the ready availability of a variety of public records — thanks to electronic records and old standards like phone books.”

In the end, Burger King fired Mr. Grover and changed its policies with regard to the people who pick its tomatoes.

Although many people may not have the time to track records in the fashion of investigative reporters, they can still use the Sunshine to weigh in significantly in government.

“We as a society have become maybe a little complacent in our role of providing consent for the way government operates,” says Mr. Brock, the Circuit Court clerk in Collier County. “So it’s important for people to stand up and use the tools available to gain an understanding of what government is doing, and is doing to them.”

By and large, those tools are public records. 