A Senate proposal would put attorney fees at risk for open government advocates

by the Tallahassee Democrat’s James Call

March 6, 2017

A bill that watchdogs fear will gut Florida’s open government law advanced in a Senate committee Monday.

Sarasota Sen. Greg Steube is behind a measure to give judges discretion in deciding whether to award attorney fees in public-records lawsuits. Steube said he just wants to change one word. Instead of mandating that a judge “shall” award attorney fees, Steube would instruct judges they “may” award damages when an agency failed to allow a public record be inspected or copied.

Opponents say the only leverage citizens have to force compliance with records requests is to sue. Under current law, when a citizen sues and wins, the agency at fault must cover the citizen’s attorney fees. Steube would put those fees at risk if the primary purpose of the suit is to generate legal fees. He said he tried to meet the opposition’s objections by amending the bill. The law would revert back to shall if there is a preponderance of the evidence that the agency willfully violated the law.

“I’m trying to thread the needle here and satisfy their concerns,” said Steube.

But opponents did not accept the compromise language. Barbara Petersen of the First Amendment Foundation said the proposal still sets traps and pitfalls for open government advocates

“We’re very concerned about preserving a constitutional right while stopping the gotcha guys,” said Petersen explaining her group’s opposition. “(But) you are asking a citizen to prove a criminal offense … We would get attorney fees only if we could prove an intentional violation of law.”

A couple of committee members expressed reservations about the proposal but agreed with Steube something needed to be done to stop abusive information requests. They encouraged Steube to continue to work to easing opponents’ concerns as the bill moves to the Senate floor.

It passed out of the Community Affairs Committee on a 6 -1 vote.

“We’re not against the First Amendment Rights or public information requests,” said Tallahassee City Commissioner Gil Ziffer, a second vice president for the Florida League of Cities. “There are a couple of bills and we don’t have a preference. We just want the language to satisfy everyone’s needs and eliminate the bogus lawsuits.” [READ MORE]