NBC 2, by WUFT News’ Caitie Switalski
March 15, 2017
The town of Gulf Stream, known for its protected pine trees and coastal views along State Road A1A in Palm Beach County, is ground zero for a statewide public records battle.
A feud between town officials and a local businessman exemplifies the battle in existing public records laws that some lawmakers are using as reason to introduce legislation that some say has the potential to irreparably harm Florida’s Sunshine Law, while others argue is needed to stop the abuse.
Florida legislators are drafting bills that aim to end, as one lawmaker calls it, the “cottage industry” of using public records laws for profit.
If these proposed bills are passed and signed into law, they could change open government laws by potentially placing a burden upon private citizens seeking access to public records.
Currently, attorneys’ fees are awarded to plaintiffs who win lawsuits fighting for access to records of government agencies. The law states judges “shall” order agencies to cover attorneys’ fees.
Sen. Rene Garcia of Miami introduced SB 1220 last year aiming to stop lawyers and individuals from inundating municipalities with public records requests. The bill proposed a change to the wording in Chapter 119 of the Florida statutes from judges “shall” award attorneys’ fees to “may.” It was the companion bill for then Rep. Greg Steube, R-Sarasota, now Sen. Steube’s, HB 1021.
While it seemed this change would solve the claimed abuse of the law and prevent municipalities like Gulf Stream from having to pay to fight such public records requests, Barbara Petersen, the president of the First Amendment Foundation, argued the opposite – that it would harm the ability of citizens to challenge public records violations.
Petersen and the Foundation were able to reach a compromise on the language in Garcia’s SB 1220, but after it was passed by the Senate, it died in the House. Steube and the Foundation could not reach a compromise on the attorneys’ fees provision language in HB 1021, but the bill died in the House State Affairs Committee.
However, Steube is trying again this year.
Steube has filed SB 80 in an effort to accomplish the same thing. There is currently no House companion bill.
On Feb. 7, SB 80 passed its first legislative hurdle, the committee on Governmental Oversight and Accountability. During the hearing, 18 people and organizations announced opposition to Steube’s bill, including Rich Templin, the legislative and political director for the AFL-CIO.
“It’s actually a very select group of people abusing the system. This provision penalizes everybody,” Templin told the committee.
Steube argued attorneys will still take on public records cases even though fees won’t be guaranteed anymore.
“If you have a decent case, a lawyer will take it,” he said. “I don’t think our tax dollars should be going to a cottage industry of lawyers.”
SB 80 goes beyond leaving the attorneys’ fees provision up to a judge’s discretion. It also stipulates, in an amendment added by Steube, that a court could award attorneys’ fees against a requestor if the lawsuit was found to have been filed in bad faith. It also requires a court to award attorneys’ fees if the requestor can show, by a preponderance of evidence, that the agency intentionally violated the law.
Petersen and the foundation maintain this change in the law would make filing such a request unaffordable for the average citizen.
“Without that attorney fee provision, we don’t have a mechanism of enforcement,” Petersen said.
The missing piece of Florida’s public records law is this idea of a better enforcement mechanism, Petersen said. She hopes the legislature will consider either expanding the Attorney General’s office to be able to review public records access complaints before court, or create an independent mechanism for this type of review.
Petersen feels it may not solve the problem entirely, but will alleviate some of the issues associated with loopholes in Florida’s broad Sunshine Law.
“Give us something other than court,” she said.
Petersen said predatory public records requesters want to “get paid to go away.”
Petersen argued the bottom line is citizens should not be required to pay attorneys’ fees in public records cases or the majority of citizens’ access to public records will be harmed.
“What the Citizens Awareness Foundation was attempting to do was laudable. . The emphasis on education suddenly got turned into a lot of litigation,” Petersen said. “If what you want to do is educate people, don’t sue them.”
The First Amendment Foundation has reached a compromise with Steube and the Florida League of Cities on SB 80.
The agreed-upon amendment to the bill still requires a court to award attorneys’ fees if it finds an agency violated Chapter 119 and the requestor provided written notice of the request to the records custodian five days before filing suit.
The amendment restricts a court from awarding attorneys’ fees if it finds the request or lawsuit was filed for an “improper purpose,” defined as primarily to harass the agency, cause violation of Chapter 119, or was frivolous. The court must limit payments by an agency to only reasonable court costs and attorneys’ fees directly attributable to the violation of Chapter 119.
The future of SB 80 is now up to a vote. The Judiciary committee passed it unanimously in an afternoon meeting Tuesday. With its last step before a floor vote out of the way, Florida Senators will vote whether to pass it onto the House in the coming weeks. [READ MORE]
WUFT News “Sunshine Lost” project: https://www.wuft.org/news/sunshine-lost/