Every Floridian who cares about transparency in public affairs and about keeping government accountable to the taxpayers should be worried about the latest effort in Tallahassee to stifle the state’s public records law.
It’s a head-on frontal attack on the law, although it’s disguised as a mere word change in the existing Sunshine statute. The relevant wording states that a judge “shall” award attorneys fees when citizens win a lawsuit over a public records request that was wrongly denied. The amended version, however, would change that to “may,” allowing a judge to deny legal fees to anyone who has carried out a public service by obliging a public official or agency to produce a public record.
These fees, by the way, can amount to tens of thousands of dollars when the government appeals the finding in the court of original jurisdiction. In most cases, those appeals are routine. Why should public officials care? Their lawyers are being paid by the taxpayers.
This change would deal a crippling blow to the Sunshine statute by attacking the penalty provision, which requires the public agency or official to provide the records and pay attorneys fees. Without this penalty, there’s no sanction that carries a real bite.
If the change is approved, public officials can routinely deny public records requests (which happens far too often already) without worrying about having to pay for a losing legal challenge. Meanwhile, the individual or organization forced to resort to a lawsuit to obtain a public record is left with a stack of legal bills if the judge chooses to deny attorneys fees.
Clearly, this is a significant disincentive to the practice of Government in the Sunshine, a notion pioneered by Florida but that has become a target of lawmakers virtually every time the Legislature meets in Tallahassee.
That’s why the bills in question, HB 1021 by Rep. Greg Steube, R-Sarasota, and SB 1220 by Sen. Rene Garcia, R-Hialeah, are so vigorously opposed by a coalition of public records advocates across the state.
They believe the effort will gut the state’s already hard-to-enforce Sunshine laws by removing the only penalty against violators.
Barbara Petersen, president of the First Amendment Foundation, says the ultimate result will be less government transparency. “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.”
Yet even so, a House committee unanimously approved the bill last week, relying on testimony from local officials who say some attorneys have turned this provision into a “cottage industry” by filing repeated open-records requests in an effort to snag public officials with “gotcha” tactics.
If that’s the case, the issue should be addressed narrowly rather than making a fundamental change in a key provision of the law. And maybe no change is needed at all. A staff analysis found a case in Duval County in which a judge refused attorneys fees because he determined that the case was an abuse of the process. And an appeals court upheld the finding.
In other words, the relief sought by the Legislature can already be provided in cases where someone is trying to game the system for personal benefit.
Awarding attorneys fees encourages citizens to pursue their right to access public information. It’s a good way to keep government accountable. There should be more such efforts. But if this proposal becomes effective, there will surely be fewer.
The result will leave Florida and its citizens in a darker place.