06/01/06

City resolution contradicts Florida statutes

NORTH PORT -- What does a public record cost?

This week, the Sun requested a copy of the 9-1-1 call to the North Port Police Department, and was told it would cost $26.25 for the CD. However, in another recent records request, Sarasota County Sheriff's Office charged the Sun .60 for a 9-1-1 CD.

The police department said it's following a city resolution, written in 1998, listing a $20 charge for a CD, and $6.25 (per every 15 minutes) for research.

NPPD Capt. Robert Estrada said it took about 15 minutes to find and copy the 9-1-1 call.

The police department said the city's "resolution" is considered "law," and it satisfy's the requirement of the Florida Public Records law, or Chapter 119.

However, Adria Harper, director of the First Amendment Foundation, said the city is supposed to charge the actual cost of duplication.

"It sounds like the city's resolution is in conflict with Chapter 119," Harper said.

Florida statutes state that a fee charged for public information requests must be the "actual cost of duplication of the public record." The law also says any request that requires extensive time is charged using the lowest paid employee's hourly rate, Harper said.

"Fifteen minutes is not considered extensive time," Harper said. "CD's do not cost $20. In fact, with today's technology, it takes a few minutes to copy them."

Pat Gleason, general counsel for the State Attorney General's Office, also said that a "city resolution is not considered law" in their view.

"The governing law is Chapter 119, unless state legislation says otherwise," Gleason adding state law also define costs for aerial photographs and certified copies.

Gleason said there are two Attorney General opinions ruling against local governments that set fees rates contrary to Chapter 119.

In 1989, former U.S. Attorney General Janet Reno, then a State Attorney with the Eleventh Judicial Circuit in Miami, asked whether municipalities could set their own costs for public record requests.

Former Florida Attorney General Jim Smith said a municipal ordinance is not a "law" when applied to the Public Records law.

He said the phrase "actual cost of duplication" means the cost of the material and supplies used to duplicate the record.

Smith stated that an attempt of a local regulation of charges for the duplication of public records "changes," the provisions of Chapter 119.

Then in 1990, Reno asked the same question, adding whether a municipality can charge more for certified copies.

Former State Attorney General Robert Butterworth added to Smith's opinion.

In this opinion, Butterworth said the Public Records law would not forbid a local government from establishing a duplication fee. However, Butterworth wrote, the set fee "must reflect the actual cost of duplication."

The cost of materials and supplies used in the duplication process may change over time. Butterworth recommended fees be reviewed periodically.

Butterworth stated that a local municipality cannot charge higher fees unless specifically authorized by Florida Statutes or legislation.

In another case, Fort Myers wanted to charge $35 for a copy of its growth management book, which cost them $15.10 to create.

North Port City Clerk Helen Raimbeau said the city's resolution, written in 1998, is "out-of-date."

"There are items in it that are no longer used, such as 8mm film," Raimbeau said. "We will have to go through the resolution, find out what the city uses, and get accurate prices for them."

Raimbeau said she will meet with Rob Robinson, attorney for the city, to make sure the changes are in line with the Public Records law.

At press time, City Manager Steven Crowell notified the police department to release the CD to the Sun. He said the fee scaled needed to be reviewed to ensure it was "consistent" with the state law.

You can e-mail George McGinn at gmcginn@sun-herald.com.

By GEORGE McGINN

Staff Writer