By Glenn Garvin
It's been an article of undisputed faith among Florida cops, prosecutors and journalists for decades that phone calls to 911 are public records. So media lawyers were flabbergasted last month when Orlando police refused to turn over recordings of the 911 calls made during the murderous shootout inside the Pulse nightclub that left 49 people dead.
At the same time, they weren't surprised at all.
"This is the way it's been headed for the past several years," said Tampa attorney Rachel Fugate, a specialist in media law who represents two dozen news organizations suing to force the disclosure of the recordings. "All around Florida, government agencies are showing an increasing disinclination to turn over documents that are just obviously, inarguably public."
The importance of the 911 calls is seemingly obvious, too: What callers said to the operators during the bloody three-hour massacre would help resolve the dispute between police, who say nearly all the killing took place in the first few minutes, and some witnesses, who insist that the gunman continued sporadically murdering survivors throughout the night.
It would help evaluate whether the police decision to delay a final assault on the gunman's position in the rear of the club was wise, or whether it cost additional lives. It might even shed light on the delicate question of whether some of the victims inside Pulse were accidentally killed by police fire.
Want public records from Miami Beach? Got $73,000?
And it also could scuttle the growing body of sinister theories that the Pulse killings were not the work of a lone terrorist but something much bigger and darker. "This is exactly where conspiracy theories come from," said Broward County Public Defender Howard Finkelstein. "When you withhold information, nearly everybody assumes the worst."
Whether the media lawsuit will succeed in prying loose the 911 calls remains uncertain. From a Florida Legislature with an awesome work ethic when it comes to carving out exemptions -- 240 bills adopted in the past decade that allow records to be withheld -- to agencies devising ever more creative ways to thwart it, Florida's century-old public records law has gone from the lionhearted envy of government-transparency activists everywhere to a housebroken pussycat, many observers say.
"We have some of the best open records laws in the country, but there's no enforcement," said Jason Priestly, editor of the Fort Lauderdale-based South Florida Gay News. "If someone breaks them, there's nothing we can do. We can sue, but it's costly and it's a long, long process."
Priestly's case came to epitomize the subversion of open records laws when his request for a search of Broward Sheriff's Office emails for a five-month period to see if employees were using homophobic slurs came back with a bill that lent new meaning to the term "sticker shock": $399,000.
"They told me they'd have to hire a full-time employee to do nothing but search the emails, and it would take four years," Priestly said. "Seriously -- I'd have my own full-time employee in the sheriff's office. I almost fainted."
In an odd coincidence, just after that, the Broward state attorney's office asked the sheriff's office for exactly the same documents. It took only a couple of months to produce them, at no charge. "If it wasn't obvious enough what they were doing with me, that certainly nailed it," Priestly said.
Many journalists blame their troubles with obtaining public records on Gov. Rick Scott, who came into office from a private sector where trade secrets and not transparency are the norm. And certainly Scott has been been tussling with reporters over what constitutes a public record literally from the moment he was elected -- his 2010 transition team destroyed most of its emails, which under state law should have been preserved and open to the public.
The battles come at a time when traditional news media, buffeted by changing technology, are struggling to find a business model that works. Many journalists suspect the stupendously high bills are a deliberate attempt to exploit this.
At the very least, there is no incentive for record custodians to work with dispatch when the meter is running and the record seeker is paying the tab, said Barbara Petersen, president of the First Amendment Foundation, which monitors Florida's public records and open meeting laws.
"And isn't there an added benefit because some of this stuff could be embarrassing?" she said.
But government has been plagued with secrecy at least back to the days of Greek mythology, when King Midas ordered his hair stylist to conceal the fact that he had donkey ears. (The stylist promptly divulged the news to the ancient Greek version of Wikileaks, a patch of whispering reeds, who blabbed it whenever the wind blew through them.)
This is exactly where conspiracy theories come from. When you withhold information, nearly everybody assumes the worst. Broward County Public Defender Howard Finkelstein
There are politicians all over America trying to cover up (metaphorical) donkey ears, and many analysts believe that their numbers have been on the increase since the Sept. 11 attacks. "I don't think there's anything going on in Florida that isn't happening in the rest of the country," said Adam Marshall, a legal expert at the Washington-based Reporters Committee for Freedom of the Press.
"The federal government passed a lot of exemptions in public-records laws in response to concerns about terrorism, and those have been mirrored at the state level."
From Hawaii (where reporters asking how many requests for public records had been submitted to the state's human services department in 2012 were told the answer would take 16 months and cost them $123,000) to Mississippi (where reporters can be charged $15 an hour for a state employee to watch them read public documents), state officials are parrying records requests with coma-inducing price tags.
At the federal level, despite President Barack Obama's promise to run the most transparent White House ever, national security bureaucrats continue to stamp CLASSIFIED on literally tens of millions of documents. And the Obama administration has criminally prosecuted more leakers under the Espionage Act (eight) than all the other presidential administrations in American history put together did (three).
But Obama is merely following a path broken by the George W. Bush administration. "This is a 15-year trend," said Gregg Leslie, the Reporters Committee's legal defense director. "The real push began immediately after 9/11. People in the federal government started really dreaming up reasons why records should be closed, and legal theories that already existed were taken to new extremes."
One of the most prominent of those is the so-called Mosaic Theory, by which the government can refuse to disclose even tiny bits of seemingly innocuous information on the grounds that, like the tiles in a mosaic, they eventually assemble into bigger picture that gives away secrets to terrorists or an enemy state.
The Mosaic Theory was originally devised in an effort to protect the secrecy of CIA research into brainwashing techniques used by totalitarian governments. But by 2013, the New York Police Department was using it in court to argue that it shouldn't have to disclose details of its budget.
Even more pernicious to champions of open records is the Glomar Reponse, named after a CIA spy ship that in the mid-1970s raised the sunken wreckage of a Soviet nuclear sub from its watery tomb three miles deep in the Pacific in an attempt to steal Moscow's nuclear codes and communications secrets. When journalists caught wind of the project in 1975, they filed Freedom of Information Act requests for documents about it.
Ordinarily, a federal agency must reply to an FOI request in one of three ways: It can hand over the documents. It can say it has the documents but they're exempt from disclosure -- for instance, because they contain classified information. Or it can say that no such documents exist.
The CIA came up with a fourth option: "We can neither confirm nor deny the existence of the information requested." Merely answering that question, the agency said, would amount to giving away national security secrets. The phrase instantly became a national wisecrack that the CIA has even used in self-parody. The first message when the agency opened a Twitter account in 2014: "We can neither confirm nor deny that this is our first tweet."
1,119 Current count of exemptions carved into the Florida public records statute
But whatever its value to stand-up comedy, the Glomar Response, as it's now known, has become a crucifix that the entire federal government uses to ward off what it sees as Freedom of Information vampires. The U.S. Postal Service used it to fend off questions about whether it had leaked information to a reporter. The IRS "Glomarred" a request for information about how much money it has paid out to a whistleblower. The Securities and Exchange Commission, which regulates the financial industry rather than running spies against Moscow, has used the Glomar Response more than a hundred times.
"That's the problem with these national security things," Leslie said. "They originate in areas where you can at least understand the rationale, like spycraft, even if you don't agree with it. But once they take root, they have a tendency to spread out into everything."
Because state and local governments have neither intelligence agencies nor the legal authority to classify information as secret, the Glomar Reponse has remained strictly a federal matter for the past four decades. But that may be about to change. The New York Police Department is trying to use a Glomar Reponse to duck questions about whether it has been spying on Muslims. A state appellate court is mulling the matter over right now.
"If the Glomar Reponse spreads out into state and local government, I think it's a serious problem," said Marshall. "There's a big difference between denying access to information and refusing to admit it even exists. This really goes to the heart of democracy and our ability to have the kind of discussions necessary for democratic government."
Unlike Freedom of Information Act requests at the national level, which can drag out for months or years, Florida's open records law has traditionally been a vehicle for providing public documents in relatively short order at a relatively reasonable price. The most potent tools available to Florida governments that want to suppress requests for public documents remain skyrocketing fees and the growing list of reasons that records can be held back as exempt.
Aside from the whopping size of the $399,000 bill Priestly got from the Broward Sheriff's Office, there was nothing unique about his case. Florida agencies now routinely charge exorbitant amounts to produce public documents. Associated Press reporters who asked for emails from the Hillsborough County Sheriff's Office last year were told they would cost nearly $2,700, and Orange County demanded more than $44,000 for the same search.
"The agencies have learned how to slow these things down and make them expensive, and they're doing it," said Miami attorney Sandy Bohrer, who frequently handles media legal cases (including some for the Miami Herald).
Bohrer believes the ever-expanding list of exemptions from the open records law is an even bigger challenge than the big bills. "There used to be so few exemptions that I could memorize them all," Bohrer said. "Now you've got to look them up -- there must be a thousand."
To be precise: 1,119, most of them far, far afield from the original spirit of the law. Just as the Glomar Reponse started out as an understandable attempt by the federal government to keep a sensitive operation against the Russians secret, the exemptions from the Florida public records law began with not-very-controversial provisions like keeping secret the addresses and phone numbers of police officers.
And, like the Glomar Response, the Florida exemptions have metastasized into something of almost phantasmagorical dimensions.
"My favorite -- or, I guess, my unfavorite -- is the one that allows state universities to keep confidential the records of what are called 'direct support organizations,' like the administration of sports arenas," said St. Petersburg media lawyer Fugate. "I don't really see why that needs to be secret; possibly it was intended to protect the privacy of donors.
"But now the University of Central Florida has put its entire athletic department into the category of direct support organizations. Every single thing there is now confidential, coaches' contracts and all."
Still, not every open records activist thinks the sky is falling. Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, scoffs at the idea that the federal government is any less open than it ever was.
"Was it more open under George Bush? Or Ronald Reagan? Or Dwight Eisenhower?" he asks. "Was it more open before the world wide web and C-SPAN? Of course not." (Though he admits to being horrified over the refusal to release the Orlando 911 tapes: "Florida leads the nation in laws requiring government transparency. If this is what's happening in Florida, I shudder to think what's going on in Mississippi or Arizona or wherever.")
And Broward County Public Defender Finkelstein, though a longtime warrior in getting police records opened up, cautions against a knee-jerk response to government secrecy. There is often tension between government transparency and citizens' privacy, he says, a tension that will paradoxically grow with the introduction of new technologies intended to rein in government power.
Was it more open under George Bush? Or Ronald Reagan? Or Dwight Eisenhower? Was it more open before the world wide web and C-SPAN? Of course not. Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists
"The perfect example is police body-cams, which a lot of departments are about to start using," Finkelstein said. The cameras will obviously pick up a lot of useful information in evaluating citizen complaints about police brutality -- Did the cop really hit that person? Was it unprovoked or was he just defending himself? -- but it will also sweep up potentially embarrassing data about a lot of people who aren't even accused of a crime, he said.
"Those cameras are going to record a lot of interactions between police officers and citizens containing information that nobody would want to be public," Finkelstein said. "Let's say a neighbor hears a noise in my house, thinks maybe there's domestic violence, and calls the police. They come to my door, I invite them inside.
"Now their cameras are recording everything in my house. The pictures I have on my walls or my coffee table. Maybe a prescription medicine sitting on a counter. The officer realizes nothing is wrong and leaves, but what happens to that video? Where does it go? Who can see it? Is it subject to public records requests so my neighbors can see it?
"And this doesn't even have to be in your home. Say you don't quite stop for a red light. A cop pulls you over and asks what the hurry is. 'Oh, I have a venereal disease and I have to get to a doctor,' you say. Do you want that on television?"
Even something that seems black-and-white to many open records advocates, like big fees for public records requests, can have another side, said Finkelstein, who himself got some negative press when he billed $102,000 to a political opponent who wanted several years' worth of records from his office. (The opponent was searching for evidence that Finkelstein was using public employees to work on his Help Me Howard television segment on WSVN-7 during office hours.)
"What may seem like a simple request can get pretty complicated," Finkelstein said. "In that case, somebody had to go through every single one of those records to make sure protected things like names of minors and clients' phone numbers and addresses were removed. If an employee has to take time off to do that, it means something else is not getting done. If you want public records, you have to pay for that."
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