Published by the Daily Commercial
February 5, 2017
The assault on Florida’s public records law continues in the Florida Legislature. With more than 1,100 exemptions to Florida’s Sunshine Law already on the books, a powerful state senator is proposing – for the second year in a row – to remove one of the few weapons average citizens have to force governments to fulfill their duty to open government.
The bill, Senate Bill 80, filed by Judiciary Committee Chairman Greg Steube, R-Sarasota, would change the existing law with regard to the awarding of attorney’s fee incurred by a citizen who challenges a government in court for refusing to release public records. Under current law, paying such attorney fees is mandatory. Under Steube’s proposal, the decision on whether to pay those legal bills would be left to the judge’s discretion.
It’s a bad proposal.
Because Florida’s open government laws provide no real enforcement mechanism when a government or its employees deny access to public records, the only recourse a citizen often has is to file a civil lawsuit. That in itself would deter many, if not most, citizens from pursuing legal action. But removing the mandatory reimbursement of legal fees from the law would greatly reduce the likelihood of a citizen being able to hold a government accountable and remove what little incentive exists for governments to adhere to the law.
Steube has said his measure is aimed at reducing frivolous open records lawsuits filed by citizens just looking for a quick pay day. While we abhor any citizen abusing Florida’s proud open government laws, there is no evidence this is a widespread problem, if a problem at all.
The Florida Constitution states: “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.”
Chapter 119 of state law contains directions to government agencies and employees, as well as businesses performing duties “on behalf” of governments, for upholding the constitutional provision. In part, it states: “Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.”
The courts and Florida’s attorney general have issued guidelines on how to comply with those terms. For example, the inspection or replication of records is supposed to be allowed promptly and without requiring people to provide their identities or explain the reason for their requests.
Many, if not most, government agencies and employees routinely comply with records requests. When they do not, however, citizens need some avenue of recourse to ensure their rights are upheld. Steube’s SB 80 would remove the one weapon they have to fight back when their right to public access is denied..
SB 80 is scheduled to be heard Tuesday morning by the Senate Governmental Oversight and Accountability Committee, chaired by Sen. Dennis Baxley, R-Ocala. We urge Baxley, who has the power to nix this ill-conceived measure, and his fellow committee members, to stand up for open government and the average citizen’s right to access public records and reject SB 80. Steube’s bill is a solution in search of a problem that would dramatically weaken Florida’s open government law and, in turn, the people’s right to challenge scofflaw governments. [READ MORE]