Bradenton Herald Editorial
February 8, 2017
Once again, lawmakers are looking at legislation that would cripple the public’s access to government records. For the second consecutive year, Sen. Greg Steube, R-Sarasota, is sponsoring a bill that changes one key word in a state law. That one word effectively discourages citizens from pursuing legal action when denied records. Since state law doesn’t contain any enforcement process protecting the right to public records, the only recourse is a civil suit to enforce a citizen’s constitutional right.
Attorneys filing lawsuits against government entities that fail to follow Florida’s Sunshine law could be working for nothing under Steube’s bill. Current law requires judges to award reasonable attorney’s fees and costs associated with successful lawsuits filed against public agencies over violations of public records laws. The proposed legislation, SB 80, would give the judge discretion by amending the Florida Public Records Law, which states “shall award attorney’s fees.”
The language in Steube’s bill alters that to “may award attorney’s fees,” eliminating guaranteed payment and forcing lawyers to gamble on the outcome. Attorneys are less likely to take on a case that may not result in payment, and citizens are less likely to hire a lawyer and fight for their right to public records, knowing they might be paying those legal fees no matter the outcome of the court’s ruling.
Last year in the House, then-Rep. Steube advanced the same idea. Now he’s back, peddling the same bad proposal.
“In our view, this legislation would eviscerate the public records law by giving governments free rein to withhold public information in violation of the law,” Barbara Petersen, president of Florida’s First Amendment Foundation, said in a statement Friday.
The requirement that plaintiffs’ attorneys be paid by government for public records transgressions is vital to securing compliance. Florida’s open-records law should not be disregarded by willful or ignorant officials who refuse to produce documents rightfully owned by taxpayers. Yet this happens all too often even today.
Steube’s bill passed its first committee, the Committee on Government Oversight and Accountability, on Tuesday, with Sen. Bill Galvano, R-Bradenton, voting in the affirmative. The title of the panel alone suggests a high level of scrutiny of public agencies and entities, but SB 80 lowers the bar. The committee’s professional staff, in an analysis of the bill, admitted that: “This may have the effect of reducing the likelihood of an attorney accepting a public records lawsuit if he or she will not be guaranteed fees.”
Citizens need more access to government, not less. But year in and year out, the Legislature carves out exemptions to the state’s vaunted Government in the Sunshine Law and diminishes a citizens’ right to monitor actions by their elected officials. Currently, Florida has 1,119 exemptions to open government laws.
While there are unscrupulous citizens, lawyers and legal teams baiting governments at various levels in order to launch open-records lawsuits to gain financial settlements, this bill would also have a chilling effect on conscientious citizens. There are other ways to head off predators.
Last year, the First Amendment Foundation and the Florida League of Cities worked out a compromise with Sen. Rene Garcia, R-Hialeah, to forge safeguards from miscreants while retaining the other elements of current law. The two exceptions that bar fees from being awarded are:
▪ The complaint is deemed to be frivolous, malicious or reasonably appears to be aimed at harassing the agency or for the clear-cut purpose of filing a lawsuit.
▪ Any alleged delay or mistake in providing access to the public record is a technical violation and would be regarded harmless in those situations.
At the very least, reform should include those reasonable provisions. Garcia’s bill was approved by the Senate last year but failed in the House, but he has refiled the compromise measure. Steube’s House proposal died in committee, as it should in the Senate this year.
Better yet, the Legislature could create an enforcement mechanism to ensure government transparency and accountability and protect citizen oversight and access to official records. That would spare citizens from filing a civil suit, curb predatory lawsuits and save taxpayers the cost of court action. [READ MORE]