“The Walking Dead” isn’t just a TV series about zombies. It also accurately describes a bill in the Legislature that is back from the grave, aiming to take a bite out of Florida’s Sunshine Law.
by the Daytona Beach News Journal’s Editorial Board
February 6, 2017
State Sen. Greg Steube, R-Sarasota, has filed a measure (SB 80) to 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. It’s similar to a bill he sponsored last year that passed the Senate unanimously but died in the House.
Currently, when a judge finds that a government agency withheld public records in violation of the Sunshine Law, the person requesting the records is entitled to attorney’s fees. That provision is meant to make state and local governmental officials hesitate before denying access to records that should be public.
Just like last year, Steube’s bill would change one word — from “shall” to “may” — making it optional for judges to award fees. Supporters, who include the Florida League of Cities, argue this is a necessary response to what they have called a “cottage industry” of frivolous public records requests. Local governments complain that some people, in cahoots with unscrupulous attorneys, file numerous records requests in hopes of catching an agency in a technical violation, such as by not producing the documents in a timely fashion. They then file a lawsuit and hope a judge finds in their favor, awarding them mandatory monetary compensation. For example, the Palm Beach County community of Gulf Stream (population 814) has said a small group of people has filed more than 2,500 public-records requests just in the last two years, overwhelming the town’s four employees who handle the records. That has sparked more than 40 lawsuits, which have been costly to defend.
However, in aiming for the nuisance requests, the proposed legislation would severely wound legitimate efforts by private citizens to hold their elected officials accountable.
The Sunshine Law doesn’t guarantee access to public records and meetings just for media organizations. It applies to everyone — including individuals who may not have the financial means to mount a legal battle against a government entity. If they can’t be guaranteed to have their legal fees covered even if they prevail in the lawsuit, they might not bother to mount the challenge in the first place.
Thus would Steube’s bill and others like it have a chilling effect on many open records. If governments know they may not have to pay up for their transgressions, they might gamble and violate the law by withholding documents. And fewer citizens will push back fearing they might get stuck with a hefty legal bill. The Sunshine Law is therefore weakened, and with it government transparency and accountability.
Those virtues are under constant attack by lawmakers, who annually seek to create more exemptions to the law. According to the First Amendment Foundation, SB 80 is one of 19 bills already filed for Florida’s 2017 legislative session that would limit open government.
There are better solutions to the problem of trivial public records suits. Just last week, for instance, the Florida Bar found probable cause in a complaint against an attorney who was representing one of the nuisance complainants. It cited a circuit court opinion in Duval County that concluded that the plaintiff’s conduct “amounted to baiting or trapping” employees into not producing records, with “the goal of creating litigation and attempting to extort money.” Going after the perpetrators, rather than a blanket weakening of the law, is the superior approach.
Steube’s measure is scheduled to be heard today by the Senate Governmental Oversight and Accountability Committee. We urge the committee to kill this zombiefied bill for good, preventing it from wandering the halls of the Capitol threatening the public’s right to know.