A House committee unanimously passed a bill Wednesday that would remove the requirement that government officials who intentionally violate the state’s public records law pay attorneys fees when citizens take them to court.
The measure, HB 1021 by Rep. Greg Steube, R-Sarasota, would give judges the discretion to determine if government agencies will pay the legal fees of a lawsuit when the agencies are found in violation of the law. It also requires that a person who intends to file a lawsuit give the public agency notice at least five business days in advance.
The bill, and SB 1220 filed by Sen. Rene Garcia, R-Hialeah, is opposed by the Sunshine Coalition, a group of public records advocates led by the First Amendment Foundation.
“Without a penalty provision when the government is wrong, there is no incentive to be transparent and provide citizens with access to information about governmental decision-making,”' said Barbara Petersen, director of the First Amendment Foundation in a letter to supporters this week. “The result will be fewer challenges brought by citizens, which will certainly result in less government transparency.”
The measure is one of dozens of attempts by lawmakers to weaken or create new exemptions to the state’s public records law this session. It comes a year after Florida taxpayers paid a record $1.3 million in legal fees after Gov. Rick Scott and the Florida Cabinet paid $1.3 million in attorneys fees to end two open government cases in which they admitted to violating the state's Sunshine laws.
Documents obtained by the Herald/Times found that the governor agreed to pay private attorneys $164,999 to defend him in a case brought by Tallahassee attorney Steven R. Andrews, who was awarded $700,000 in taxpayer money after a three-year legal battle. He alleged the governor and several members of his staff violated state law when they created private email accounts to shield their communications from the public and then withheld the documents. Because the case was settled, the governor’s office did not have to turn over the documents and never admitted fault.
The bill approved by the House Government Operations Subcommittee would do nothing to stop public officials from spending taxpayer money on their own lawyers, but instead is focused on using taxpayer funds to pay attorneys fees owed to the plaintiffs.
The measures are backed by the Florida League of Cities, which argues the current law needs reform because individuals, particularly law firms, are creating a “cottage industry” that attempts to collect attorneys fees by attempting to snag local government in “gotcha” violations of public records laws.
Bob Ganger, vice mayor of the tiny city of Gulfstream in Palm Beach County, told the committee that his town of 900 residents was the “poster child” for the abuses, having received more than 2,500 public records requests from a handful of individuals attempting to profit off the practice. The city has had to hire four additional staff to handle the requests that have consumed “just under 4,000 hours,”' forcing it to raise taxes to pay for $1 million in legal fees.
Rich Templin, lobbyist for the AFL-CIO and a member of the coalition, acknowledged the abuses but said the bill went too far.
“This legislation is basically an atomic bomb to solve a cockroach problem,” he said. “If we don’t want to pay attorneys fees, then don’t violate the law, don’t keep things secret. The only time attorneys fees are awarded is when the law has been broken.”
State law allows the public to sue state agencies if they unlawfully fail to provide a public record and the court is required to give the case priority. If the individual making the records request prevails, the agency must produce the records and pay attorneys fees.
According to the House staff analysis of the bill, “the public policy behind awarding attorney fees is to encourage people to pursue their right to access government records after an initial denial. Granting attorney fees also makes it more likely that agencies will comply with public records laws and deter improper denials of requests.”
Rep. Jamie Grant, R-Tampa, said that people are busing the system, including making public record requests to local officials appear like spam and then suing them when they fail to comply.
Rather than address the abuses narrowly, the committee concluded the best way was to let a court decide whether the government should pay for the lawsuit if the citizen prevails.
“It does not mean that you will not get legal fees,” said Rep. Jimmie Smith, R-Inverness, but it gives the judge the opportunity to protect small cities and counties. “This is a growing cottage industry.”