The Tampa Tribune (Florida)
Clouds Hover Over State Sunshine Law
By Brad Smith
March 13, 2005

TAMPA — Outside Florida, Ken Kramer might have hit a brick wall when asking about psychotherapists who sexually abuse patients and get away with it.

Those kinds of delicate details often are shielded by privacy laws.

Today, on Florida’s fourth annual Sunshine Sunday, Kramer’s story illustrates the power of Florida’s 1909 public records law, which lets residents peer into government’s dark corners.

Kramer’s tapping of state files also calls attention to the 2005 crop of at least 50 bills that would chip away at Floridians’ right to see and use government records.

Sunshine Sunday is a symbolic marking of Florida’s open-records tradition, sponsored by the Florida Society of Newspaper Editors. This year, it’s going national, with March 13-19 declared Sunshine Week by the American Society of Newspaper Editors.

“In some states, you can’t get criminal records unless the criminal signs off,” Kramer said. “I think any effort to crimp public access to records is not a good thing.”

As head of Datasearch Worldwide Inc., a Clearwater research firm, Kramer invoked Florida’s public records law in 2004 to obtain complaint files from the Florida Department of Health about psychotherapists. Officials dragged their feet.

Finally, Kramer received 100 suspect cases that never had reached law enforcement.

When The Tampa Tribune published a story about it, a bigger scandal came to light. Florida officials admitted failure to refer more than 16,000 cases of possible criminal abuse for prosecution, despite a 1992 law mandating they do so.

The Legislature is investigating.

“The Department of Health is up to their eyeballs in [sex] crimes committed by psychotherapists,” said Kramer, a volunteer for the Citizens Commission on Human Rights, founded by the Church of Scientology in 1969 to expose patient abuse.

Every year as the Florida Legislature convenes, the state records law comes under attack in bills aimed at exempting public and private interests from public scrutiny. Many die in committee before reaching a vote.

Still, more than 800 exemptions to the law have passed, mostly relating to personal information such as Social Security and residential telephone numbers and addresses.

So far this year, Florida lawmakers have filed 14 House bills and 36 Senate bills proposing exemptions.

Among them is a joint House and Senate bill that would erase records of any arrest deemed a mistake.

“On the surface, it sounds like a good idea,” said Barbara Petersen, president of the First Amendment Foundation in Tallahassee, a nonprofit group founded by news organizations to promote open government.

But what if a police officer makes a habit of only arresting certain minorities, then dropping charges? What if the mayor’s daughter is arrested five times, but charges always are dropped?

“Those are things we need to know about,” said Petersen, whose group tracks legislative efforts to dilute Florida’s 96-year-old public records law and the 1967 Sunshine Law on open government meetings.

Exemptions Dim Law

Last year, 14 exemptions gained passage, about double the recent rate.

One made it a crime to create a list of people who own firearms in Florida. For example, it’s illegal for one county to create a list of guns stolen there for comparison with guns used in crimes in a different county.

Another shielded Social Security numbers of public employees.

“A bank can get my number, but why are public employees so special? I don’t know why,” Petersen said.

It’s not easy to amend the open-records law. Since 2003, a two-thirds vote of the Legislature is needed for passage.

That doesn’t prevent an annual raft of bills filed in the name of privacy, such as the record 125 proposed exemptions in 2002, mostly in the name of preventing terrorism.

Under the Florida Constitution, exemptions must be narrowly tailored. They also cannot be obscured or tacked onto broader bills. Each must be filed alone, making them easier for observers to spot and track.

Source Of Exemptions

Many are traceable to pressures on lawmakers by lobbyists who try to obtain relief for their clients from competition.

One example was a bill to keep rabies vaccination certificates private.

“The spokesman, with a straight face, said they were trying to protect pet confidentiality, that pets had a right to privacy,” Petersen said. “Ludicrous. What they were trying to do was protect veterinarians who didn’t want direct marketers getting the names of customers and selling them to competitors that sold pet care products at lower costs.”

Not every amendment is condemned by free speech advocates.

“If we understand the justification, and they’re sufficiently narrow, then we don’t oppose them,” Petersen said. “That’s the best we can do.”

Petersen’s group gives thumbs up, for example, to a 2005 Senate bill that would require the state Department of Management Services to report details of all contracts and subcontracts it outsources. It also likes a bill that would require voting machines to produce paper trails.

Sen. Victor Crist, R-Tampa, defended his proposed exemption for data compiled during state investigations of debt-collection practices.

“It’s only for a controlled period that there would be limited access to the files,” Crist said. Information would become public again after investigations close.

Crist said the state was “trying to crack down on unscrupulous collection companies going above and beyond reason in collecting debts, to the point of overly harassing and scaring consumers.”

Tom Wheatley, of Tampa, field director for the Florida Water Coalition, said his organization routinely taps state records to find out about environmental pollution.

“Recently, I was able to call the Department of Environmental Protection and see how many sewage spills there were in Tampa Bay,” he said. “They keep a database. We knew there were spills, but we weren’t sure how extensive.”

Wheatley used the data to arouse neighborhood and civic groups to pressure government to do more to curb pollution.

“There’s still some intimidation,” Wheatley said. “They’d rather we not see it, and that attitude, I think, the public could do without.”