Paying a fee for lottery numbers

DYCKMAN E-mail: Click here Archive

By MARTIN DYCKMAN

© St. Petersburg Times, published July 9, 2000

TALLAHASSEE -- Nothing has evolved so much for the better here as the wealth of information the government makes directly available to citizens on the Internet. On the Legislature's Web site, for example, you can learn as much about a bill as the lawmakers know except, perhaps, for what the lobbyists are whispering in their ears.

FloridaHealthStat.com, the portal that five of the governor's agencies put online last week, is the latest and one hopes not the last effort at making it easy for people to locate what they actually need to know amid the vast wilderness of the Web.

But maybe we shouldn't get too accustomed to this. As newspapers and other private information sources exploit new ways to charge for data, the politicians might not be far behind.

A lawsuit pending in the Leon County Circuit Court has potentially ominous implications in this regard.

It involves the lottery, which has found a way to make some people lose twice. They're the ones who call its 900 number to find out how their numbers did. At 77 cents a minute, with a $2 maximum, they're paying quite a bit more than it costs to provide the service. Since October 1995, the lottery has harvested nearly $8-million in extra revenue after paying almost $5-million to the private company, ICN Corp. of Delray Beach, that maintains the answer line. Previously, anxious players could get the information over a toll-free 800 number, which was costing more than $1-million annually. The 1995 Legislature ordered the lottery to charge its customers for the calls.

The lawsuit, filed as a class action last year by lawyers Jonathan Alpert of Tampa and Richard Heiden of Clearwater, on behalf of Clearwater resident Ralph DeLuise, claims the arrangement violates the public records law by charging the public more than the actual cost of providing records.

If they win, lots of people will get modest refunds at the expense of the state and possibly ICN. The lawyers will get considerly more.

But if they lose, it could be at the price of the court recognizing a difference between public information and public records that would allow the government to charge for information whatever the traffic might bear.

The defendants claim, as explained by Pete Antonacci, a lawyer for ICN, that excess charges for information are permissible "so long as traditional means of accessing documents are not obstructed."

That's already the Legislature's point of view. The House voted 118-0 this spring for a bill by Rep. Dennis Jones, R-Seminole, specifically authorizing the lottery to charge "a price or fee in excess of cost." What's more, the bill would have been retroactive to 1995, effectively -- if perhaps unconstitutionally -- erasing DeLuise's lawsuit. A staff report from the Committee on Government Operations warned that if the court found that DeLuise had a "vested right," it might not let the Legislature say afterward that he didn't.

The bill sailed nearly unmolested through the House because the First Amendment Foundation chose not to oppose its final version. Director Barbara Petersen says the lottery may already have the law on its side in that "technically, it's not really a request for public records." She still had misgivings but had more urgent fights to wage.

It turned out not to matter because the Senate didn't take up the legislation, which was a victory of sorts for the basic principle that legislatures should not decide lawsuits. However, the same rationale could still prove persuasive with the court.

"Providing a convenient, but non-essential, optional service to the public for telephonically acquiring by audio means the winning lottery information does not appear to be an integral part of the department's function," said a footnote in the staff report, "and the private entity does not appear to be performing a governmental function. The actual public records containing the winning lottery information are made available for inspection and copying by the public at department offices; and, upon request, are provided by mail."

All that is true. What's more, old winning numbers and payouts are posted on the lottery's web site where there's no charge to retrieve them. At least, there's no charge now.

But that begs the troublesome question of how far the government must go, and at what cost, to comply with the state Constitution's requirement that "Every person has the right to inspect or copy any public records made or received in connection with the official business of any public body, officer or employee of the state . . . except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. . . "

Nobody denies that the government can charge the actual cost of copying a record. At least one law allows an extra charge for making document copies available over the Internet.

But can it turn a profit by distinguishing finely between documents and information? Let's hope not, or some folks in government might get carried away by their enthusiasm to swap fees for taxes.

© St. Petersburg Times. All rights reserved.