Florida legislators talk about valuing open government and public records, but their actions are at odds with their rhetoric. An effort to improve access to public documents appears to be dead as legislation advances to keep secret more public records. With a week to go before lawmakers leave Tallahassee, a legislative session that began with so much promise shapes up as one of the worst for government in the sunshine.
It was not supposed to be this way. With strong backing from Senate President Don Gaetz, the Senate passed legislation that would write into state law what should be common practice now after years of court decisions. The bills, SB 1648 and HB 1151, would make clear that in most cases requests for public records do not have to be in writing and that the personnel costs tied to producing the records is limited. They also have positive provisions relating to public records held by private contractors and would require training for public employees who respond to public records requests.
Yet House Republicans are prepared to let the bill die without a vote because of an issue involving legal fees in public records lawsuits. Now lawyers who win public records cases are entitled to be paid their legal fees by the custodian of the records. The legislation also would allow those lawyers to be paid for time spent arguing over the amount of the legal fees. House Republican leaders who are no fans of trial lawyers see this as a windfall and are mindful that Gaetz’s son, Rep. Matt Gaetz, handles public records cases.
The Gaetz connection is a distraction and no reason to kill this important legislation. Awarding legal fees in successful public records cases is supposed to be an incentive for government to produce the records in the first place. In practice, too many public agencies that fail to provide public records and lose in court then extend the fight over legal fees. That discourages many lawyers from taking public records cases, which emboldens public officials who want to keep the public’s business private and leaves citizens with little recourse. An agreement between advocates for public records and for local governments has been reached, and the House should embrace it.
While this good bill languishes, lawmakers have moved forward with several others to reduce access to public records. The worst, HB 89, would keep secret all records involving “stand your ground” cases where criminal charges were dropped because the accused claimed self-defense. Keeping those records secret would make it impossible for Floridians to evaluate whether the law is being abused or whether police, prosecutors or judges are misusing their authority. The First Amendment Foundation, which promotes open government, has asked Scott to veto the bill. (Full disclosure: Tim Nickens, editor of editorials for the Times, serves on the foundation’s board). The governor should follow that recommendation.
Another bill passed by the House, HB 135, would keep secret the names of applicants for president of public universities and colleges. Meetings where those candidates are discussed and evaluated could be held in private, and a list of finalists could be kept secret until 10 days before a final public meeting was held to hire someone. This throws a blanket over the selection process, and the Senate should not agree to it. Those who argue that Florida would attract better candidates to lead universities and colleges are effectively saying Florida State University could have done better than Eric Barron, who just left for Penn State; the University of Florida could have done better than president Bernie Machen, who the governor talked out of retiring; and St. Petersburg College could have done better than president Bill Law, who has provided new energy to the college.
There is still time to salvage this legislative session. Lawmakers can approve the positive changes to the public records law, and they can reject attempts to make more public records secret. The governor, who has talked a better game on public records than he has played, can redeem himself by vetoing the bill that would keep so many records of criminal investigations secret. Otherwise, more clouds will hang over a state that prides itself on government in the sunshine and Floridians will know less about how their government really works.