The university’s refusal to allow scrutiny of the dining service selection process highlights the vagaries of Florida’s open government laws and the difficulties of obtaining public documents.
The Crow’s Nest requested documents pertaining to the contract process on Feb. 21, but was refused access by the university under its interpretation of an open records exemption covering purchasing negotiations.
The exemption, statute 119.071(1)(b), states that “Sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation are exempt” from open records laws “until such time as the agency provides notice of an intended decision or until 30 days after opening the bids, proposals, or final replies, whichever is earlier.”
Final replies to the invitation were due Nov. 21, 2011, and would be opened the same day, according to the timeline on the invitation to negotiate.
Under an interpretation of the statute by an attorney associated with the Florida First Amendment Foundation, records, including minutes and other recordings made during meetings with vendors, and the contents of the proposals, would then be available to the public on Dec. 21.
When asked for the university’s interpretation of the exemption, the USF Office of the General Counsel directed the question to the purchasing department.
The Associate Director of Purchasing at USF Tampa, George Cotter, said an interpretation that makes the records open on Dec. 21 is not accurate. “[Negotiations] are ongoing and there has not been an intent to award,” he said. The 30-day timeline does not “trigger” until the university sends its intent to decide, he added.
The timeline that set Nov. 21 as the bid-opening day could also be changed at the discretion of the university, he said.
Previously, the final bid and opening day had been Nov. 9, but was amended to Nov. 21. The change was made public through the USF purchasing website. No further amendments to the timeline have been posted.
The exemption for bids was necessary to give the university time to make an informed decision, Cotter said. The invitation to negotiate that included the USFSP dining contract was authored by his office and included in the invitation with Tampa’s dining service contract, which expires at the end of the academic year.
USFSP will introduce on-campus dining at the start of the fall semester, concurrent with the opening of the Multi-Purpose Student Center.
An advisory committee created to choose a vendor submitted its recommendation to the university’s administrative and financial services department during the week of Jan. 23. Local restaurants, including the Tavern at Bayboro, have also been contacted regarding inclusion in the flexible spending program that will likely be part of meal plan options.
Pat Gleason, the Special Counsel for Open Government with the office of the attorney general, said the language of the exemption has not yet been challenged in court and therefore has not been clarified.
Gleason’s office assists state agencies, the press and the public on matters of open government. The office also offers an informal and voluntary mediation service for records disputes.
Outside of voluntary mediation, Gleason said, The Crow’s Nest could seek private counsel for clarification or to file a suit against the university.
State law dictates that a government agency that loses a suit pertaining to open government laws can be held liable for the plaintiff’s attorney’s fees, providing an incentive for lawyers to advocate for clients who would not be able to afford their services otherwise.
During the 2011-12 academic year, the university’s response records requests by The Crow’s Nest has been mixed:
- Records pertaining to a Student Government-funded club trip were heavily redacted, citing FERPA, a federal student privacy law. The university holds discretionary power to release information regarding non-academic activities, including the activities of Student Government, university officials assert.
- When rooms in Residence Hall One were checked in the middle of the night, The Crow’s Nest requested records to determine whether the checkers were authorized to perform that function. The university estimated the cost to collect a broad range of electronic records to be between $240 and $552.
- Documents and written communications related to the purchase of Harbor Hall would take four hours each for a senior staff member at $70 per hour and an assistant at $25 hour, in addition to duplication fees, according to the financial services department. Some of these documents were later received at no cost with a later request; others were received from the City of St. Petersburg at a cost of 15 cents per printed page.
However, the university promptly complied with a request of all university employee salaries after the payroll department in Tampa returned the request to USFSP, which then forwarded it back to Tampa.
In the past year, universities, including Florida and Central Florida have lost lawsuits pertaining to open records, meetings and broad interpretations of FERPA, costing the universities thousands of dollars in legal fees.
Traditionally, Florida has been a leader in public access to government dealings. The open records law, chapter 119 of the Florida statutes, was passed in 1909. In 1967, the “Government-in-the-Sunshine” law was passed, requiring lawmakers to make most meetings open to the public.
These two laws were then protected in 1992 with an amendment to the state constitution. This amendment raises the bar for adding exemptions, but does not prevent them entirely.
Through the years, lawmakers have carved more than 970 exemptions to the open records laws and 90 to the open meetings laws, according to a 2009 report by the Commission on Open Government Reform.
I have serious concerns with George Cotter holding a position such as Associate Director of Purchasing. From his comments it’s clear one of two things is true; he doesn’t understand basic logic taught to middle and high school children nation wide, or he’s a liar maliciously avoiding media scrutiny.