AP Photo/Steve Cannon
Until recently Florida’s Public Records Law, widely regarded as one of the strongest in the nation, looked to be in danger of losing one of its most important enforcement mechanisms.
Two bills introduced in the legislature would have eliminated mandatory awards of costs and attorney’s fees for successful public records litigants. Instead, courts would have discretion over whether a requester who wins the release of records can recover his expenditures.
But a new amendment, prompted by pushback from the press and the public, recently resulted in a narrower Senate bill that doesn’t harm the vast majority of requesters. And as of late February the pospects for passage of House’s version have diminished, if not disappeared.
The motivation for the original bills, according to state Sen. René García (R-38th), sponsor of SB 1220, was to curtail a “cottage industry” of persons and entities entities who make numerous public records requests, sue and then recover fees. “Right now, there are organizations that will make hundreds of public records requests, each potentially containing thousands of documents, all to order around a city or county so they can receive a settlement,” he told a Senate committee.
State Rep. W. Gregory “Greg” Steube (R-73rd), sponsor of HB 1021, said in an interview with Florida radio station WTSP that “our tax dollars shouldn’t be going to people setting up local governments, trying to sue them for things.”
Press and transparency groups immediately rallied against the bills as originally introduced, arguing that a small group of individuals are the source of the problem, and that recovering attorney’s fees is essential to ensuring the public’s right to know is enforced.
Barbara Petersen, executive director of the Florida First Amendment Foundation in Tallahassee, told the Reporters Committee that there are no more than a dozen individuals and organizations who are the source of these overreaching requests. In a letter from the First Amendment Foundation to Steube, Petersen said “[t]his is a small group of people, particularly when compared to the vast majority of citizens who simply want access to the public records they seek. In effect, your bill punishes them because of the misdeeds of a small minority.”
Tampa Bay Times Columnist Daniel Ruth argued that the public’s right to know would be unfairly restricted by the bills as they are currently worded. “So the Florida Legislature wants to disenfranchise nearly 20 million residents and the state’s news media from accessing public records they have every right to see, merely because a minute fraction of legal gadflies might — might — have abused the process?”
The Reporters Committee for Freedom of the Press, joined by 24 national and state media organizations, also sent a letter to Florida lawmakers expressing concern over the bills and the potential damage to information access by the press and the public.
“[E]ven where denials of requests for access at the state and local level are clearly in violation of a state public records law, financial hurdles can, and frequently do, prevent journalists and members of the public from challenging those denials in court,” the letter states. Ensuring an award of costs and attorneys fees “ensures that the press and the public will not shy away from enforcing the public’s right to government records and information.”
The letter also notes that mandating awards of fees also provide an incentive for public entities to obey the law. Accordingly, it has “the potential to save both requesters and the state from unnecessary litigation.”
Petersen said that as introduced, the bills would make Florida government agencies less accountable than private contractors performing government functions. Under a bill that recently passed the legislature, as long as a requester asking for records held by such a private entity gives eight days’ notice, he is entitled to recover costs and fees if successful in a lawsuit for access. It is possible, she said, that a similar notice provision could be incorporated into HB 1021 and SB 1220.
On Feb. 9, SB 1220 was amended by Sen. García in response to discussions with the First Amendment Foundation and other interested groups. The amendment reinstates the mandatory fee award, if the requester gives five business days notice before filing a lawsuit. It also states that attorney’s fees may not be awarded in cases where the lawsuit was frivolous, malicious, or intended to harass the agency.
Sen. García’s statements during the introduction and discussion of the amendments made clear that he wanted to preserve the public’s right to information, and was seeking a more focused solution to address the small group of prolific requesters.
As amended, SB 1220 passed the Judiciary Committee 7-3, and is on course for a third and final reading before the Senate.
The House bill cleared two committees with near-unanimous approval and is awaiting a vote in a State Affairs Committee. As of late February the bill had not been placed on the Committee’s calendar and its future is uncertain. The Committee is not scheduled to meet again in the current legislative session.