STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA INSTITUTIONAL LEGAL ) SERVICES, INC., )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 81-2218
) DCA, FIRST DISTRICT CASE FLORIDA PAROLE AND PROBATION ) NO. PP-14 COMMISSION, )
)
Respondent. )
)
REPORT
Pursuant to notice, an evidentiary hearing was held on March 15, 1982, before Diane D. Tremor, a hearing officer with the Division of Administrative Hearings who was designated to serve as a commissioner of the District Court of Appeal, First District, in accordance with the Court's Order dated September 3, 1981 in Case No. PP-148. This Order was entered after the issuance of the Court's mandate in the case styled Florida Institutional Legal Services, Inc. v. Florida Parole and Probation Commission, 391 So.2d 247 (Fla. 1st DCA, 1980).
The purpose of the appointment was to take evidence and report recommendations to the Court with respect to all issues concerning the practicability of the Parole and Probation Commission preparing indices of its orders entered from 1975 through 1980, and the reasonableness of the Commission's proposed schedule of compliance in light of the proposed contents of the indices, the cost of preparation and the public benefit to be gained therefrom. In the Order dated September 3, 1981, the Court further approved the Commission's proposal to produce indices of current 1981 orders on or before November 30, 1981, and ordered the Commission to "forthwith prepare and report that it has prepared indices of its declaratory statements and of petitions to the Commission for rulemaking." Inasmuch as the Commission has not complied with such rulings, evidence concerning these matters was received at the hearing before the undersigned.
By Order dated September 16, 1981, the undersigned notified counsel for the parties that she had been designated to serve as the Court's commissioner in this matter, and the parties were directed to inform the undersigned of mutually convenient dates upon which to schedule the evidentiary hearing. By Notice dated September 18, 1981, a prehearing conference was scheduled for October 9, 1981. At that conference, the parties stipulated that no public benefit would be derived from indexing orders of the Commission regarding the granting of parole between January 1, 1975 and December 30, 1978, due to the fact that the law concerning parole grants changed on January 1, 1979, and, therefore, action taken by the Commission since 1979 bears no reasonable relationship to action taken prior to January 1, 1979. The parties further informed the undersigned at the October 9, 1981 prehearing conference that it was felt that the remaining factual matters relevant to the issues in dispute could be presented in the form of a Stipulation of Facts to be filed on or before November 10, 1981. Failing to receive such a Stipulation or other notification as to the proceeding, the
undersigned inquired by letter dated November 18, 1981 of the status of this matter. By letter dated November 24, 1981, Mr. Richard A. Belz informed the undersigned that the parties had reached agreement on most of the legal issues involved but, due to a delay involving the technical details of the computerized data base, a final stipulation could not be agreed upon by the parties at that time. Mr. Belz further advised that, without knowledge of what was technically possible at that time, an evidentiary hearing would be of little value.
Receiving no notification as to the progress of this case, the undersigned inquired of the parties by letter dated February 18; 1982, as to the present posture of this proceeding. It appearing to the undersigned from telephone conversation with counsel for the parties that little, if any, progress had been made in their efforts to arrive at a Stipulation of Facts, the evidentiary hearing was scheduled for March 15, 1982, by Notice of Hearing dated February 24, 1982.
At the hearing, the Commission presented the testimony of Jay D. Farris, the Planning and Evaluation Director for the Florida Parole and Probation Commission, Reynold L. Ferrari, the Chief of the Bureau of Management Information Systems for the Department of Corrections, and Malcom S. Greenfield, the General Counsel for the Parole and Probation Commission. The Commission's Exhibits 1 through 5 were received into evidence, as were Exhibits 1 through 3 offered by the Florida Institutional Legal Services, Inc., and Joint Exhibits 1 through 4.
Pursuant to the request of counsel, the parties were permitted ten days from the receipt of the hearing transcript to file closing statements, proposed orders and/or briefs. The transcript was received on April 27, 1982, and the appellant Florida Institutional Legal services timely filed its "proposed findings and recommendations to the Court." No post-hearing documents were filed on behalf of the Commission.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
As of the hearing date of March 15, 1982, the commission had not prepared subject-matter indices of its Orders entered after January 1, 1975 resulting from:
petitions for rulemaking;
hearings held pursuant to Section 120.57, Florida Statutes.
determinations relating to presumptive and effective parole release dated (parole grants) or parole revocations;
petitions for a declaratory statement issued prior to approximately July of 1981, or
other final orders not otherwise defined.
Other than as referred to in paragraph 2 of these Findings of Fact, the Commission has not produced indices of its current 1981 orders. (TR. 9) Neither the Commission's General Counsel nor the Planning and Evaluation Director, both of whom receive their assignments of duties and responsibilities from the Commission, have been directed by the Commission to prepare a subject- matter index of final Commission orders issued pursuant to hearings held under
Section 120.57, Florida Statutes, or petitions for rulemaking. (TR. 34, 35, 37 & 104) The Commission's General Counsel and Planning and Evaluation Director would prepare such indices only if directed to do so by the Commission. (TR. 35 & 104)
The General Counsel's office has been directed by the Commission to prepare an index of declaratory statements issued by the Commission. With the aid of an assistant counsel, the Commission's General Counsel has prepared a subject-matter index of declaratory statements purportedly issued as of September 30, 1981. (Appellant's Exhibit 3) This index utilizes key words or topics, without further citation to statutes or rules. It includes all declaratory statements issued by the Commission during the approximately ninety- day period prior to September 30, 1981. The General Counsel, who has been in that position since March of 1980, was aware of no other declaratory statements issued by the Commission or petitions for a declaratory statement submitted to the Commission. (TR. 108) A draft of an update to the subject-matter index for declaratory statements issued after September 30, 1981 has been prepared and was expected to be in final form within thirty days of March 15, 1982. The Office of General Counsel will prepare and produce an updated subject-matter index of declaratory statements on at least a quarterly basis. (TR. 101-103)
As indicated by the opinions rendered in the case of Turner v. Florida Parole and Probation Commission, 379 So.2d 148 (Fla. 1st DCA, 1980) aff'd, 389 So.2d 1181 (Fla. 1980), and various issues of the Florida Administrative Weekly, 1/ petitions for a declaratory statement have been received and ruled upon by the Commission prior to July 1, 1981.
As noted above, the witnesses presented by the Commission to testify in this proceeding had not been assigned the task of preparing subject-matter indices for orders on petitions for rulemaking, orders following hearings conducted pursuant to section 120.57, Florida Statutes, and other final agency decisions which are equivalent to "orders". Involved in the preparation such indices would be a review of the file and a development of a subject heading or headings for each such order. The Commission presented no further evidence regarding the practicability or cost of preparing such indices or any lack of public benefit to be derived from access to such indices. Absent such evidence, it is specifically found that it would not be impracticable, unduly time- consuming, or cost-prohibitive for the Commission to prepare or produce subject- matter indices of its Orders resulting from petitions for rulemaking, Section
120.57 hearings or other final agency decisions which are equivalent to "orders." Whatever inconvenience such indices cause the Commission in terms of time and costs of preparation are far outweighed by the public benefit to be derived from accessibility to the Commission's interpretations of the law and development of agency practice and incipient policy. The Commission has failed, without sufficient justification, to comply with the Court's mandate and Order dated September 3, 1981, to "forthwith prepare and report that it has prepared indices of its declaratory statements and of petitions to the Commission for rulemaking" and has further failed to comply with its own approved proposal to produce induced of current 1981 orders on or before November 30, 1981.
Because of a change in the statutes effective January 1, 1979, with respect to the granting of parole and the establishment of presumptive and effective parole release dates, orders of the Commission entered prior to that date have no relationship to orders entered after that date. Therefore, the
public would gain no present benefit from an index of parole granting orders entered prior to January 1, 1979. The appellant, Florida Institutional Legal Services, Inc. , has withdrawn its request to have the Commission index parole granting orders issued from January 1, 1975 through December 31, 1978. (TR. 12
& 13) As to the period between January 1, 1979 through December 31, 1980, it would be beneficial to the public to have access to an index of only those parole granting orders which contain a reference to a constitutional provision, statute or rule, since such orders may contain the agency's interpretation of the law or incipient policy.
The parole revocation process has not changed since 1975. It would be beneficial to the public to have access to all those parole revocation orders of the Commission entered since 1975 which contain a reference to a constitutional provision, statute, or a rule.
Jay D. Farris, the Commission's Planning and Evaluation Director, has been appointed by the Commission to be in charge of the indexing project as it relates to parole granting orders (which includes Commission determinations on presumptive and effective parole release dates) and parole revocation orders. This assignment is in addition to his other duties which include the drafting of all legislation for the Commission, lobbying, acting as a part-time clerk of the Commission, preparing complex case analysis for the Commission, the drafting of proposed rules, holding public hearings for proposed rules and training Commission hearing examiners when there are rule changes. Mr. Farris has only a secretary on his staff. (TR. 28, 29)
Since the District Court entered its opinion on November 26, 1980 (petition for rehearing denied on January 8, 1981) reported at 391 So.2d 247, the Commission, through Mr. Farris, has conducted an investigation into the number of Commission actions which could possibly fall within the parameters of the Court's ruling regarding the prepartion of subject-matter indexing. It was determined that a minimum of 600 actions per week would fall under the purview of that decision. A private indexing firm would charge approximately $1.00 per action to review the data and produce an index. (Tr. 16) Determining that this cost would be prohibitive, Mr. Farris has been working with the Bureau of Management Information Systems (MIS) of the Department of corrections to prepare a computer program which would meet the Commission's indexing requirements. By statute, the department of Corrections maintains the sole offender-based information and records system for the joint use of the department of Corrections and the Commission. Section 20.315(20) Florida Statutes.
The function of the Bureau of Management Information Systems of the Department of Corrections is the automation of departmental records for ease of retrieval and management information. To accomplish this function, the Department of Corrections shares a computer with the Supreme Court of Florida, with the Department owning 67 percent and the supreme Court owning 33 percent of the computer. The computer itself is located in the basement of the Supreme Court, but the Department of Corrections has approximately 40 terminals located in its headquarters in Tallahassee and in excess of 100 terminals located throughout the State. The computer maintains a complete offender record of each Florida inmate. This record includes the inmate's date of birth, race, sex, the offense for which he or she is incarcerated, other offenses, gain time accrued, presumptive, projected and current release dates and FDLE and FBI numbers. Without the prior preparation of a specific program by the Bureau of MIS, it is not possible to retrieve from the computer any generic information on Florida inmates. For example, while the computer presently has the ability to produce a screen view of the record of any particular inmate, it cannot search through its
entire data base and produce screen printouts of the names of all those inmates meeting any particular criteria, such as those serving a mandatory 25-year capital life sentence. (TR. 91-94) The records of 53,700 offenders are presently contained in the computer's data base, with some 24,000 records being for active inmates. (TR. 93)
In December of 1981, the Commission, through Mr. Farris, entered into discussions with Reynold L. Ferrari, the Chief of the Bureau of MIS for the Department of Corrections, and his staff regarding the subject of utilizing the computer system to produce and maintain a subject-matter index for Commission orders concerning the granting and/or revocation of parole. A basic technical problem presently exists in the computer program utilized by the Department of Corrections. The computer is only designed to handle single actions taken by the Commission on any particular day. Often, multiple separate actions by the Commission are taken in one day on a particular inmate, and the present computer programming does not allow multiple entries at one point in time. This problem is one of systems design and involves more than reprogramming. It involves a definition of a new data base that will have to be created for the Commission, and then programming it to provide the input capability to add additional data and defining the output reports that are required. (TR. 90) Once a systems design is accomplished and all the relevant data is in the computer, it will take about three weeks or less to produce a program that would result in a printout format similar to that developed and utilized by the Commission in its declaratory statement index. (Appellant's Exhibit 3, TR. 79, 84, 85)
The Commission has not specifically or formally requested the Department of Corrections to resolve the multiple-action problem. It has simply asked the Department to look into the problem and estimate the length of time it would take to accomplish certain results. (Appellee's Exhibit 2) Mr. Ferrari has informed the Commission that he would need an exact and specific definition of the output required by the Commission and would work with the Commission and its staff in achieving the desired goals. (Appellee's Exhibit 3, TR. 89, 90) The answer to how long it would take to redesign the system is dependent upon a detailed definition of the information needed by the Commission. (TR. 98) A detailed statement of what is required by the Commission has not been provided to the Bureau of MIS. (TR. 99) The only evidence adduced by the Commission as to its time frame for providing the format the Commission requires was the statement of Mr. Farris that "I would like to have had it done some time ago, but just as soon as I possibly can. This has received a great deal of priority, I must say." (TR. 72) The Commission did make a budget request for two new positions--a data entry operator and a clerk typist III--in order to comply with indexing requirements and to augment their data input ability. (TR. 74, Appellee's Exhibit 4)
Presently, the only information being provided by the Comission to the computer data base is current, single Commission action regarding presumptive parole release dates (PPRD) and the inmate's next interview date. Included within the PPRD information presently being put into the computer is a code which makes reference to aggravating factors contained in the Commission's rules. (TR. 69, 70) Prior Commission's actions regarding PPRDs have not been put into the computer data base. The manner in which this information will be retrieved or the printout format has not been developed yet. (TR. 52,
53) It is expected that the format will be similar to that developed for the index of declaratory statements. (Appellant's Exhibit 3). The Commission has not
requested the department of Corrections to produce any particular format for a subject-matter index of parole granting or parole revocation orders (TR. 53, 54) and no evidence was tendered as to when such a request would be made. Mr. Farris, the person responsible for such indices, could give no specific date for the production of such indices (TR. 38)
While the Commission has not prepared a final proposed style of indexing for Commission actions regarding presumptive and effective parole release and parole revocations, it is expected that such indices would be broken down by topic similar to that prepared by the Commission for declaratory statements. It is not known whether such indices will include citations to constitutional provisions, statutes or rules. (TR. 64) According to Mr. Farris, "the specification of the nature of the index is yet to be determined." (TR. 66)
The undersigned, as the appointed commissioner of the Court, has been charged with the responsibility to take evidence and report recommendations to the Court with respect to a determination of the following issues:
The practicability of the Commission preparing indices of its orders entered from 1975 through 1980; and
The reasonableness of the schedule proposed by the Commission in light of
the proposed contents of the indices,
the cost of preparation, and
the public benefit to be gained therefrom.
Prior to addressing those issues, it must first be noted that, with the exception of preparing a subject-matter index for a portion of its declaratory statements, the evidence adduced at the hearing illustrates that the Commission has made absolutely no effort to produce indices of its current 1981 orders. This action is contrary to the Court' s original mandate as well as Paragraphs 1 and 2 of the Court's Order entered on September 3, 1981. There has been absolutely no evidence adduced in the proceedings before the undersigned as to a legitimate reason or justification for such noncompliance with the Court's directives. Indeed, the evidence illustrates that the Commission has simply not directed its attention to this important matter. Any problems attendant to the computer system utilized by the Department of Corrections should have absolutely no effect upon the ability of the Commission to immediately prepare subject- matter indices for all its Orders resulting from petitions for a declaratory statement, hearings conducted pursuant to Section 120.57, Florida Statutes, petitions for rulemaking or other matters which result in the issuance of the functional equivalent of an "order" as it is defined in Section 120.52(9). Florida Statutes.
Turning now to the issues addressed in Paragraph 3 of the Court's September 3, 1981 Order, it is concluded from the evidence adduced at the hearing that it would not be impracticable or cost-prohibitive for the Commission to immediately prepare indices, whether arranged by subject matter and/or citations to constitutional, statutory or regulatory provisions, for its Orders entered from 1975 through 1980 in those matters arising from:
petitions for a declaratory statement,
proceedings conducted pursuant to Section 120.57, Florida Statutes,
petitions for rulemaking, and
cases, such as the instant proceeding, which result in the functional equivalent of an "order" as defined in Section 120.52(9), Florida Statutes.
The public benefit to be gained from such indices is obvious since such Orders are indicative of an agency's interpretation of the laws under which it operates and can indicate incipient agency policy as developed on a case-by-case basis.
The Commission has made no good-faith effort or diligent attempt to comply with its own schedule for the accomplishment of the preparation of indices for the Orders listed above and neither the contents, costs, or practicability of preparing such indices justify the time frame proposed.
With respect to the remaining Orders issued by the Commission between 1975 and 19890--those involving parole grants and parole revocations--it is concluded that an index of Orders on parole grants entered prior to 1979 would not be beneficial to the public due to the drastic change in the law which became effective on January 1, 1979. It is further concluded that only those post-1974 Orders concerning parole parole grants which contain a reference or citation to a constitutional, statutory or regulatory provision would contain information beneficial to the public. Therefore, an index limited to such Orders would satisfy the requirements of Section 120.53(2)(c), Florida Statutes.
The Commission has failed to adduce evidence that the preparation of a subject-matter and/or citator index for its Orders entered after January 1, 1975 involving parole revocation and its Orders entered after January 1, 1979 involving parole grants would be either impracticable or cost-prohibitive.
While the computer system will need to be redesigned to accomplish multiple- entries in cases where the Commission takes more than one action on the same date regarding a single inmate, it is possible to make this change. The Bureau of Management Information Systems stands ready and able to effectuate such a design change and is simply waiting for a specific and detailed definition of the information sought to be retrieved by the Commission. Again, from the evidence adduced at the hearing, it appears that the Commission has simply made no diligent or good-faith effort to determine the format of the required indices or the information it desires to accomplish the indexing task.
In summary, it is concluded that the Commission, along with the joint assistance and efforts of the Department of Corrections, presently has or can quickly obtain the capability of preparing indices of all Orders entered from 1975 through the present date. The Commission presented no evidence that the preparation of such indices would be cost-prohibitive, or that, other than its lack of attention to the matter, the contents of the indices would make the task unduly time-consuming or would otherwise render the indexing requirement prohibitive. With the exception of pre-1979 parole granting Orders and Orders granting or revoking parole which contain no reference to a constitutional, statutory or regulatory provision, the public will benefit from an index of, and consequently access to, all Orders of the Commission. In order to accomplish the indexing task, the Commission need only render a determination of the format for each index and provide the staff to either review the files containing the Commission Orders or provide the necessary input to the computer system so that the required information can be retrieved from the computer. The evidence presented by the Commission illustrates that not only has the Commission failed
to adhere to its own proposed schedule of compliance with the law, the schedule proposed is unreasonably lengthy in terms of the contents, cost and information presently available, as well as the public benefit to be derived from the production of the indices.
Respectfully submitted and entered this 4th day of June, 1982, in Tallahassee, Florida.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1982.
ENDNOTE
1/ See Florida Administrative Weekly, Vol. 5, No. 14, April 6, 1979; Vol. 5.
No. 21, May 25, 1979; Vol. 5, No. 32, August 10, 1979; and Vol. 5, No. 39,
September 28, 1979.
COPIES FURNISHED:
Raymond E. Rhodes,
Clerk of the District Court of Appeal First District
Tallahassee, Florida
Richard A. Belz, Esquire 2614 South West 34th Street Gainesville, Florida 32608
Malcolm s. Greenfield, Esquire General Counsel
Florida Parole and Probation Commission
1309 Winewood Blvd., Building 6
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 04, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 04, 1982 | Recommended Order | Report on the feasibility of indexing parole and probation orders. Contains findings and issues, recommends indexes be created in shorter time than allowed. |
