February 5, 2017
Alert, alert, alert: Your right as a Florida citizen to access government documents is under attack and FLORIDA TODAY, the USA TODAY NETWORK and many of the state’s major First Amendment and media outlets want you to know about the threat.
I think we can all agree that the role of government is to serve the interests of the people – not the other way around. And whether you are a conservative trying to monitor government fraud and waste or a business owner seeking a level playing field or a crusading liberal activist, you ought to be alarmed at what is going on this week in Tallahassee.
Florida’s open-records law would essentially be gutted by a bill, SB 80, introduced by Sen. Greg Steube, R-Sarasota. Here’s how:
The way the law currently works, a citizen’s only recourse when illegally denied access to public records is to sue. But who can afford the time and money to do that? The Florida Legislature has recognized the burden that places on citizens, so the law now requires judges to award attorney fees to citizens who successfully sue when government illegally hides or blocks access to public records.
Steube’s bill – which is similar to a bill he unsuccessfully proposed while a member of the House – would remove the requirement of attorney fees. That would remove any incentive for government to behave as the law intends on public records, enabling greater secrecy and blocking out citizens trying to protect their rights and money.
What’s more, SB 80 also requires written notice of the public record request to the agency’s custodian of public record at least five business days before filing a lawsuit.
Note that in addition to adding the time requirements, the bill changes one important word. Instead of saying the court “shall” assess and award reasonable attorney fees, if passed the law would say the court “may” assess and award reasonable attorney fees.
In other words, citizens might not be able to afford to win against government, even in egregious cases of abuse of the law. These days, I don’t think the country is in the mood simply to trust government, no matter which side is in power. And we know, some local agencies already make it very difficult as a matter of course to obtain records of what they are doing.
Steube’s bill is scheduled to be taken up at 10 a.m. Tuesday by the Senate Governmental Oversight and Accountability Committee in Tallahassee. Here is the senator’s contact information, if you are so inclined to speak out: firstname.lastname@example.org or 850/487-5023.
The purpose of the bill, of course, is to reduce the burden on government (and taxpayers) caused by frivolous plaintiffs who play “gotcha” with government for the purpose of collecting the fees. These serial filers are a burden, but the law already has protections against such cases.
In one case two years ago, Gray v. Florida East Coast Railways, the court came across a plaintiff who had 17 open-record lawsuits in Duvall County alone, with more in other Florida counties. The court said the plaintiff, Jeffrey Marcus Gray, did not have a legitimate public records complaint and threw the case out.
Last month, the Grievance Committee of the Florida Bar informed Gray’s attorney in that case that it had found probable cause to believe a violation of professional ethics had occurred.
In other words, the system worked to protect against scammers. So why the need to change the system to hurt legitimate citizen actions to keep a watch on government?
There is no good reason.
Which brings me to this: This is an area that media organizations such as FLORIDA TODAY and the USA TODAY NETWORK work hand-in-hand with the First Amendment Foundation, the Florida Society of News Editors and the National Freedom of Information Coalition, among others, to protect on behalf of citizens.
It is what real newsrooms with legitimate journalists do. But Florida’s vaunted open-records law is not a “media law.” Chapter 119 of Florida state law belongs to the people of Florida and provides protections against government abuse whether your local and state government is controlled by conservatives or – as it was when I was executive editor of the Tallahassee Democrat for 10 years – liberals.
My experience is once they get into office, they act the same in trying to control information.
But the truth is most abuses of 119 by government come from either ignorance of the law or a lack of motivation to follow it. Intentional acts of trying to hide malfeasance are much rarer, but happen. Regardless, the law provides citizens only one method of redress and that is to sue in court.
That government – when it acts illegally – is required to foot the bill for citizens’ costs in such lawsuits and is the only reason government has to pay any attention to openness.
I urge you to stand up, contact Sen. Steube and tell him to drop his bill to gut Florida’s open-records law. [READ MORE]