Orlando Sentinel – Opinion
January 8, 2019
Public-records statutes at stake
Once again, a government agency has sued a public records requester – this time the Orlando Sentinel – simply for making a request for public records. That’s just wrong. The lawsuit arises out of the very important public controversy the paper has been covering concerning Frank Kruppenbacher, a prominent Orlando lawyer, who resigned as the lawyer for the Florida Virtual School in August. The resignation came as the school’s board of trustees hired an outside law firm to investigate Kruppenbacher’s conduct. That probe and an audit determined the lawyer had used FLVS employees for his own outside work, paid his daughter’s boyfriend to investigate a former FLVS employee, and likely made “boorish” comments to female workers. The paper, as newspapers do, reported on the unfolding story and made requests for public records related to the controversy, so journalists could examine FLVS’s actions and then inform readers. Easy enough.
But rather than respond to the paper’s public record request, FLVS filed a civil lawsuit, called a declaratory judgment action, against the paper and its former lawyer. These types of lawsuits force not only newspapers, but also everyday citizens, into court to defend their constitutional right of access to public records. Not only do records requesters have to bear the expense of hiring an attorney, but the legal burden of proof is also arguably flipped from the agency to the person requesting records. And by the way, the agency uses taxpayer dollars to fight about the records request.
How should it work? A citizen makes a public record request to a public agency. The agency responds, either producing the records or claiming that the requested records are exempt from public disclosure under a Florida statutory exemption permitting the agency to withhold all or a portion of the records. If the citizen disagrees with the agency’s assertion, she can file a civil lawsuit against the city council – or not. Ultimately, a judge would resolve any legal dispute.
Civil actions, like the one filed by FLVS, put public record requesters – citizens and the media – in the position of having to defend cases rather than selectively litigate them. That’s simply wrong. FLVS should dismiss its lawsuit and provide the requested records or cite an exemption that authorizes FLVS to deny the paper’s request. And our legislature should again take up – and pass – legislation that prohibits agencies from filing declaratory judgment actions that haul requesters unwillingly into court.
Barbara Petersen Tallahassee
Petersen is the president of the First Amendment Foundation, a nonprofit supported mostly by newspapers and broadcasters.