01/20/16 – By Jim Saunders
With the backing of local governments, a House panel Wednesday approved a bill that would give judges discretion in deciding whether to award attorney fees in public-records lawsuits.
Open-government advocates argue the bill (HB 1021) would blow a hole in Florida’s Sunshine Law, as government agencies are now required to pay attorney fees when they are found to have improperly withheld public records. But supporters of the bill point to “bad actors” who inundate local governments with public-records requests as a strategy to file lawsuits and get attorney fees.
Bill sponsor Greg Steube, R-Sarasota, said the bill would not prevent people from filing public-records lawsuits and recouping legal fees if they win. He said it would leave the fee issue up to judges, like many other parts of state law that give judges discretion about awarding fees.
“I’m not taking away anybody’s ability to get attorney’s fees in these cases,” Steube said before the House Government Operations Subcommittee voted unanimously to approve the measure.
But opponents, including groups such as the First Amendment Foundation, argue that the bill would weaken the state’s public-records. At least in part, the opponents contend that people will not be willing to take the financial risk of filing public-records lawsuits if they are not assured of recouping attorney fees when they win.
Rich Templin, a lobbyist for the Florida AFL-CIO who is part of a coalition formed to support the Sunshine Law, said open government in the state has been dying a “death of a thousand paper cuts.”
“This legislation is actually a cut to the jugular,” Templin said.
The bill is backed by the Florida League of Cities and local governments that point to what lawmakers referred to as a “cottage industry” of public-records lawsuits filed for the purpose of collecting attorney fees. They argue that the issue has particularly affected small governments, which do not have enough staff members to deal with large numbers of records requests and then get sued.
Robert Ganger, vice mayor of the small Palm Beach community of Gulf Stream, said his community is a “poster child” for the issue. He said a group of people has filed more than 2,500 public-records requests to the town, with the requests typically coming in bunches. He said the town of 800 to 900 people has four administrative employees.
“Our custodian of records works literally every day, including weekends, to try and get caught up. But inevitably we fall behind,” Ganger said. “And in falling behind, there have been 40 lawsuits filed against us for failure to comply in a timely fashion.”
Ganger said the town had to cut its hurricane financial reserves and increase taxes because of costs stemming from the issue.
But opponents of the bill focus on legitimate lawsuits that are filed when government agencies violate the Sunshine Law by failing to comply with records requests. The Florida Sunshine Coalition, which includes groups such as the First Amendment Foundation, said in release this week that requiring attorney fees to be paid “creates a level playing field for someone who can afford to pay for an attorney and those who cannot.” (Disclosure: The News Service of Florida is a member of 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,” the coalition said. “The result will be fewer challenges brought by citizens, which will certainly result in less government transparency.”