In a debate that could reshape how the state handles its Sunshine laws, Florida lawmakers are swiftly advancing a bill that proponents say will crack down on “economic terrorists” that are abusing state law by extorting money from governments through frivolous and misleading public records requests.
But opponents say the solution is an overreaction that will “gut” the state’s open records laws and permanently cloud its Sunshine Law tradition. They warn that the bill removes the only tool the public has to seek redress when government officials violate the state’s public records laws and have offered a compromise that is being rejected.
Florida’s Constitution grants the public a right to access public documents, but the debate over how to crack down on a small number of abusers has created a deep divide with most legislators, who are themselves elected officials, siding with other elected officials, resulting in near-unanimous support of the bill in two House committees and one Senate committee.
The measure, HB 1021 sponsored by Rep. Greg Steube, R-Sarasota, and SB 1220, by Sen. Rene Garcia, R-Hialeah, removes the requirement that judges award attorney fees when state or local government violates the state’s public records law.
The House Governmental Operations Appropriations Subcommittee voted 11-1 for the bill on Tuesday, although two Republicans and two Democrats on the committee indicated they would like to see modifications before it reaches a floor vote. Rep. Victor Torres, D-Orlando, voted no.
“I think this bill really gets at the crux because I don’t think people are going to be inhibited from access to public records” or being awarded attorney fees “if it’s egregious and the public entity is not acting in good faith,’’ Steube told the committee.
He cited the example of the small Palm Beach County Town of Gulf Stream, which has received 2,500 records requests and 46 lawsuits — almost all from a single law firm — requiring it to hire one additional staff member to comply with the law.
The bill is a top priority of the League of Cities, which sees it as a remedy to stop a handful of abusive law firms and individuals who use the public records law to churn legal fees. But public records advocates, led by the First Amendment Foundation, say the bill is an overreaction that will neuter the law and lead to widespread abuse because it will weaken the only enforcement mechanism the public has when public officials violate the law. (The Miami Herald and Tampa Bay Times are members of the First Amendment Foundation.)
“Florida is a better place because of its open-records law, and this single change could have a big impact on limiting access,” said Dean Ridings, president of the Florida Press Association, a member of the First Amendment Foundation. “We are better off as a society with our reporters, and citizens, being able to access information about the actions of government.”
Florida’s Constitution requires that the public has a right to access public documents, but Chapter 119 of the Florida Public Records Act gives individuals the ability to enforce that right only by filing 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 law allows for citizens to be awarded attorney fees to encourage people to pursue their right to access government records and prevent public agencies from violating the 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.”
Barbara Petersen, president of the First Amendment Foundation, and members of the Sunshine Coalition, have offered amendments to Steube’s and Garcia’s bills that would require government agencies to post on their websites the name and identification of the custodian of public records and limit lawsuits to only those people who have provided notice to the custodians — and have given them at least five days warning to comply with the law.
The goal, Petersen said, is to remove the opportunity for abusers who try to trap public officials into violating the law so they can draw a lawsuit.
“Bad actors, the gotcha guys, do harm to us, to the people who are trying very hard to get access to public records,” Petersen told the committee. She said she is aware of about five people — lawyers and non-lawyers — who are chronic abusers of the public records laws, but the broad sweep of the bill will have a chilling effect on the general public.
She said that Attorney General Pam Bondi’s public records chief, Pat Gleason, also opposes the bill and warns that removing the attorney fees requirement could be an incentive for some agencies to change their approach to complying with the law.
Petersen also noted that TaxWatch, the business-backed research foundation, released a report last week calling for changes the First Amendment Foundation has been seeking for years: provide more training for how to comply with the state’s public records law and establish a middle step to serve as an alternative dispute process short of going to court.
“In our public records law, it says ‘shall award’ attorney fees,” Petersen said. “This is a constitutional right of access and there is no enforcement mechanism, so the citizens in your communities, who have been wrongfully denied access to a public record, have no alternative other than filing suit. We would very much like to see an enforcement mechanism, a middle step, before we go to court.”
Beth Rawlins of Florida Business Watch, a nonprofit trade association for government contractors, told the committee she supported the bill but was “disappointed by the alarmist rhetoric.”
”The difference between ‘shall’ and ‘may’ is not the apocalypse to the Sunshine Law,” she said. “I personally don’t feel this bill goes far enough, but I will settle for one little word.”
Steube and Garcia both said they are willing to consider options, but Craig Conn, lobbyist for the League of Cities, said his organization is open to “having that conversation.” Conn said he is doubtful a compromise could be crafted this legislative session and does not support anything that does not crack down on abusers this year.
“There is wiggle room,” Garcia said Tuesday. “At the end of the day, I want to rectify the abuses.”
Conn acknowledged, however, that while taxpayers now pay for the attorneys fees to defend public officials when they violate the public records law, if the bill becomes law judges could decide not to award attorney fees to a citizen who brings the lawsuit. But, he said, he doesn’t expect that to happen.
“We have faith in our separation of powers,” he said.
Mary Ellen Klas: firstname.lastname@example.org and @MaryEllenKlas