by the Sun-Sentinel Editorial Board
February 6, 2017
Aside from elections, citizens have only two real ways of holding government accountable.
One is to attend public meetings or view them online.
Another is to access and review public records.
Now a state senator wants to erect a roadblock in your second path.
On Tuesday, Republican Sen. Greg Steube of Sarasota is expected to ask a Florida Senate committee to advance a bill that would give judges discretion on whether to reimburse attorney fees for people who successfully prove government has illegally withheld public records.
Having to pay someone’s attorney fees is really the only real risk government officials face when they illegally block the public’s right to know.
Changing the law from “shall award attorney’s fees” to “may award attorney’s fees” would make a huge difference.
If attorney fees are not awarded when citizens win public records cases, lawyers may be less likely to take them on. Many attorneys now agree to take such cases knowing they will only be paid if successful.
Barbara Petersen, president of Florida’s First Amendment Foundation, acknowledges that some people — including some law firms — have taken advantage of the system. Some have made numerous and unreasonable records requests in hopes of getting a settlement.
“I understand and I’m very sympathetic with the problem they’re facing,” she said. “But this bill doesn’t fix it. Those people are not interested in attorney fees. This bill punishes me, and you and the 99 percent of the people making public record requests who just want the records.”
Most local and state government workers do the right thing and promptly respond to records requests, as required by law. But on occasion, some official gets annoyed by an irksome citizen — or a reporter — whom they would prefer to keep in the dark. Right now that official’s only calculation in deciding whether to hide something is the fear of having to pay attorney fees if found out.
Petersen says Senate Bill 80 is worse than a similar bill Steube filed last year in the Florida House, which was unsuccessful.
This year’s proposal would also require an attorney to give government five days notice before filing a lawsuit. If the agency provides the information in that timeframe, the suit would become moot.
While this may sound reasonable, it would let government stonewall timely information and produce it only after threat of a lawsuit. Isn’t the goal to avoid lawsuits while ensuring citizens can watch government in action, a right enshrined in the Florida Constitution?
Every year, the Legislature chips away at your right to know. This year, the First Amendment Foundation is following 22 Senate bills that would create exemptions to public records or restrict public access. It is undecided on 11, but opposes three — including two proposed by Steube.
Steube’s other bill, Senate Bill 118, would make it illegal to publish information or photos of someone charged with certain crimes who are later found not guilty by a jury. If the information is not removed within two weeks, a judge could impose a $500-per-day fine. The bill also says a judge “shall order the suspension of any Internet protocol (IP) address carrying the publication” — a news site, for example — for at least a year.
Can you imagine trying to un-publish stories of people charged with crimes who are later found not guilty? Imagine trying to wipe out all traces of the OJ Simpson case, as one example.
On the one hand, Steube has no problem requiring a judge to shutter a newspaper’s website for, say, publishing information about an elected official arrested, but not found guilty of a crime.
But on the other, he’s OK with a judge saying “maybe yes, maybe no” when a citizen seeks to recoup legal fees after proving an elected official illegally withheld public information. It’s hypocritical.
Meanwhile, the Florida League of Cities is pitching a separate public records bill, SB 246, which is seen as a more moderate compromise.
That bill is sponsored by Republican Sen. Rene Garcia of Hialeah and says “a court must assess and award the reasonable costs” associated with public record requests. It would give judges some leeway in stopping unreasonable requests, but make clear that attorney fees must be awarded in most cases.
Steube wants to make it harder for you to watch government in action.
Let’s hope the Legislature comes down on your side. [READ MORE]