Bill would block lawsuits against taxpayers who seek public records

Florida may have been the first state in the nation to enshrine the right to access public records into its statute books, but it is also earning a reputation as a place where governments sue taxpayers for asking for government documents.

The most high-profile cases have involved the South Florida Water Management District and the city of Orlando, which each responded to a records request by going to court to sue the people who wanted the documents.

A bill, HB 195, before the state Legislature for the third year, would make it illegal for any state or local government agency to sue the public for asking for records. Rep. Ray Rodrigues, an Estero Republican, received unanimous approval for the measure from the House Oversight, Transparency & Public Management Subcommittee on Thursday.

He’s been here before. Last year, the House unanimously passed the proposal, but it died in the Senate where a similar version had been proposed but weakened. Rodrigues said he is optimistic “we’re going to have progress in the other chamber this year.”

Under current law, if an individual wants a public record from a government agency, the person files the request with the designated custodian of documents at the agency, and is supposed to either receive the documents or a notice citing the specific exemptions that keep the document shielded from public view.

But Rodrigues said some agencies have diverted from the intended approach and “instead of providing a record, or citing the exemption they respond with a civil lawsuit and that then brings the taxpayer to court.”

Under current law, if taxpayers are refused public records and are provide the statutory exemption, they can file a lawsuit if they think the agency is “stretching the exemption to keep it out of the public domain,’’ he said. If the court says the taxpayers are right, “they not only get the record, but the city or county or special taxing district is on the hook for all the attorney fees,’’ Rodrigues explained.

Some agencies are trying to get around that requirement by suing taxpayers first. When the Everglades Law Center asked for the minutes of a closed-door session where members of the South Florida Water Management District approved using taxpayer money to pay a controversial financial settlement to rock mine developer George Lindemann Jr., the district filed a lawsuit and asked a judge to declare the records exempt. The issue is now on appeal before the Florida Supreme Court.

When news organizations asked the city of Orlando for documents related to the 2016 Pulse nightclub shooting, the city didn’t cite any exemptions. It went straight to court.

“I believe the reason this is done, and the way it could be abused, is to discourage individuals from exercising their constitutional right to request a public document,’’ Rodrigues told the House committee Thursday. “Because if government can do that, and individuals are less likely to file those requests, there is less sunshine, and government is operating in the shadow.”

His bill attempts to fix that with one sentence: “An agency that receives a request to inspect or copy a record may not respond to such request by filing a civil action against the individual or entity making the request.”

In the past years, opposition has come from the Florida League of Cities.

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas

This story was originally published October 24, 2019 at 12:45 PM.