A bill to remove the requirement that judges award attorney fees to people who successfully challenge state or local governments for violating the state’s public records law unanimously passed a Senate committee Tuesday, continuing the fast-paced progress of a measure that First Amendment advocates say will “gut” the foundations of the state’s 40-year-old Sunshine Law.
The Senate Governmental Oversight and Accountability Committee voted 3-0 for SB 1220, sponsored by Sen. Rene Garcia. Two senators — Jack Latvala, R-Clearwater, and Dwight Bullard, D-Cutler Ridge — left the committee meeting shortly before the vote.
The measure is a top priority of the League of Cities and Association of Counties who argue that it is needed to stem the increase in frivolous public records lawsuits. But Sunshine Law advocates, led by the First Amendment Foundation, warn that the measure will weaken the only enforcement mechanism the public has when public officials violate the law.
“The bill is meant to cut off a cottage industry that is taking advantage of our state’s public records laws,” Garcia told the committee. “Their concern is only for a quick and easy profit. Right now, there are organizations that will make hundreds of public records requests, each potentially containing thousands of documents, all to order around a city or county so they can receive a settlement.”
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So this Legislature would be the first legislature, probably in the history of our law, to roll back a right and to diminish our right of access.
Barbara Petersen, president of the First Amendment Foundation
While neither Garcia nor any of the proponents of the bill could cite any statistics about the extent of the problem in Florida, he acknowledged the information is anecdotal from local government officials and not-for-profits who do government work.
Barbara Petersen, president of the First Amendment Foundation, said she is aware of about five people — individuals and lawyers — who are chronic abusers of the public records laws and her organization also wants to find a way to stop them but the bill goes too far and will have a chilling effect on the general public.
“It punishes all of us because of the bad action of a few,” Petersen told the committee. “It eviscerates the constitutional right of access by removing our ability to be assured of getting reimbursed for attorney fees when government has violated our rights.”
She noted that “there is no enforcement mechanism in Florida’s public records law, so when government violates our right, our only option is to file suit in civil court.”
Chapter 119 of the Florida Public Records Act provides that every individual has a right of access to public records and individuals may enforce the right one of two ways: ask a state attorney to bring criminal charges, or file a lawsuit against an agency. The courts must give the lawsuits priority over other cases and, if the judge finds that an agency violated the law, the court must order the agency to turn over the records as well as pay costs and attorney fees associated with the case.
The Senate staff analysis concluded that “the public policy behind awarding attorney fees is to encourage people to pursue their right to access government records after an initial denial.... In addition, granting attorney fees makes it more likely that public agencies will comply with public records laws.”
The bill would remove the requirement that the legal fees be paid by changing the requirement that a judge award legal fees from “shall” to “may.”
Several people warned that the bill will make it impossible for them to hire an attorney to take their case when they want to challenge a public agency for denying their access to records.
“When you make it more difficult for a private citizen such as myself to make a public records request you are changing it from a public record to a government record,” said Ralph Kitchens of Lake City.
Gina Edwards, an investigative reporter who runs a website called Watchdog City in Naples, said she filed a lawsuit against the Collier County Clerk of Courts for charging her $1 per page for 556 public records after she wrote a series of critical stories about his office. After losing the case and spending $67,000 to pay attorneys, Clerk of Court Dwight Brock appealed.
“There is no way I could have brought this suit if my attorneys hadn’t agreed to represent me on a contingent-fee basis,” Edwards said.
Skip Foster, publisher of the Tallahassee Democrat who previously worked in North Carolina, said that the state changed its public records act to also give judicial discretion in awarding legal fees but then changed it back to “shall” because “it had such a chilling effect on public records requests.” Foster is a member of the First Amendment Foundation’s board of trustees.
Many people ... are filing public records requests because they are trying to ‘play gotcha’ with the government.
Keith Rizzardi, St. Thomas University professor and former lawyer with South Florida Water Management District
But Robert Ganger, vice mayor of Gulfstream, said his small town in Palm Beach County has become “the poster child for the problem we are trying to solve” and has received 2,500 records requests and 46 lawsuits. For example, he said, the town recently received a request for all photographs held by the town that showed a bicycle and bicyclist.
“We couldn’t find any,” he said. “A lawsuit was filed against us because the requester found a picture on our web site which way in the back has a bicyclist.”
St. Thomas University professor Keith Rizzardi, a former lawyer with the South Florida Water Management District who handled the agency’s public records challenges, told the committee that he believes the current law provides an incentive for public abuse.
“There are many people who are filing public records requests because they are trying to ‘play gotcha’ with the government,” he said.
Petersen agreed that “those bad actors hurt all of us” but urged the committee to find ways to fix the problem.
“If this bill passes, it will be the biggest change to the public records law, good or bad, since the ’70s,” Petersen said after the vote. “So this Legislature would be the first legislature, probably in the history of our law, to roll back a right and to diminish our right of access.”
A companion bill, by Rep. Greg Steube, R-Sarasota, has passed a House committee.
Mary Ellen Klas: email@example.com and @MaryEllenKlas