Miami Herald by Mary Ellen Klas
March 23, 2017
The Florida Senate on Thursday gave preliminary approval to a compromise proposal aimed at cracking down on “gotcha” public records requests while preserving the attorney fees leverage the public has against public officials who violate Florida’s Sunshine laws.
The bill, SB 80, by Sen. Greg Steube, R-Sarasota, is intended to crack down on what he says is are a small group of serial records abusers who attempt to snag unsuspecting public officials into violating public records laws in an effort to coerce a financial settlement.
But Steube’s initial draft of the measure was criticized by public records advocates who warned that the plan to give judges more discretion in deciding whether or not to award attorneys fees in public-records lawsuits would have a chilling effect on public records challenges.
Florida law allows for citizens to be awarded attorney fees to encourage people to pursue their right to access government records and prevent public agencies from violating the public records laws. It is the only enforcement provision in state law, short of prosecution. Steube originally proposed removing the requirement that the legal fees be paid by agencies by changing the requirement that judges “shall” award attorneys fees to “may” award the fees.
The compromise language, which mirrors an agreement brokered last year by Sen. Rene Garcia, R-Miami, leaves the mandatory attorneys fee provision in the law but adds a new requirement that the public provide the records custodian with written notice of the public record request five days before filing a lawsuit to force compliance.
If the public agency does not provide contact information for the records custodian on its website and in the administrative building where public records are routinely requested, the five-day notice is not required.
“This would put some parameters in place as it relates to how individuals ask for public records from public agencies,” Steube said. “We’re obviously trying to go after some bad actors that everybody agrees is going on in the state and this is the tightest language we could agree to.”
Barbara Petersen, president of the First Amendment Foundation, which advocates for the state’s open records and open meetings laws, agreed to support the compromise language, but she continues to say the court already has the power to reject attorneys fees from people who intentionally harass government agencies or file frivolous lawsuits, and the bill is not needed.
“The bill isn’t perfect, and although I would prefer to simply keep the law as it is now, I think CS/SB 80 is a decent compromise,” Petersen said. “What’s become most apparent during the debate on the attorney fee provision over the past two years is the need for more education on the requirements of the public records law. If you think about it, the predatory public record requestors would be out of business if those who are their targets complied with the law. It’s not hard and many of the violations are very basic.”
In Duval County, for example, when a private contractor working for a government agency was subject to an abusive lawsuit for a sham public records request, a circuit court judge in declined to award attorney fees.
The bill adds two other provisions intended to protect public agencies against “gotcha” records requests. It requires a court to determine whether the public record request was for an “improper purpose,” and, if so, requires the court to award the public agency reasonable costs of enforcement against the requestor. The bill defines “improper purpose” as the filing of a request or lawsuit for the primary purpose of harassing the agency, causing a violation of the law or for a frivolous purpose.
The bill also limits costs paid by a public agency to attorneys fees and reasonable costs of enforcement directly attributable to the lawsuit. It does not allow for monetary damages to punish the public agency for violating the law.