Advocates warn bill will chill attempts to challenge excessive charges for open records
When allegations surfaced last year accusing the inspector general at the Florida Department of Correction's of covering up wrongdoing at the agency, the head of a Tallahassee-based government watchdog group wanted to learn more.
But when Ben Wilcox, Integrity Florida research director, submitted a public records request to get an electronic copy of all the inspector general reports for the agency going back to 2012, he was hit with a giant obstacle: a bill for $62,000.
"It actually kind of got me scared,'' said Wilcox, whose 501c3 organization is dependent on donations. "We don't have that kind of money. I thought Integrity Florida would be on the hook for it."
After months of attempting to work out an agreement with the agency, Wilcox is now considering a lawsuit against FDC for violating the provisions of the public records law that aims to prevent excessive costs for records. But a bill moving quickly through the Florida Legislature could have a chilling effect on his efforts.
If the bill becomes law, the agency would no longer be required to pay legal fees if Wilcox succeeds in court at forcing FDC to turn over the documents.
The bill, SB 1220, gets a hearing before the Senate Governmental Oversight and Accountability Committee Tuesday and public records advocates are hoping to water it down with an amendment to require attorneys fees if the complainant gives the agency at least two days notice before filing its lawsuit and wins after that. The measure is being promoted heavily by the Florida League of Cities and the Florida Association of Counties.
Wilcox said his goal was simply to compile a research report about how the agency handled its internal investigations in light of claims of corruption. But when prison officials produced the records in paper, not electronic format, and charged him more than his non-profit could afford, he was stymied decided to narrow his request.
He then asked just for the inspector general reports relating to "whistleblower allegations by staff as well as copies of inspector general reports into deaths of inmates for unnatural causes." The agency posts the reports on inmate deaths online but said the other reports -- about allegations relating to agency wrongdoing -- would cost $1,500 -- still too much for his organization to handle.
"The inspector general is supposed to be the public's watchdog at these agencies and you would think the public should have access to it,'' Wilcox said. "Instead, they were secretive."
Wilcox next approached the attorney general's office, asking its public records expert, Pat Gleason, to mediate with the agency about why the expense was so high. But FDC never responded, and the mediation was closed.
Now, Wilcox worries that if the legislation before lawmakers were to become law he may never get a case. He is working with law offices of Stephen R. Andrews, whose firm successfully sued Gov. Rick Scott for violating the state's public records laws and won a record $700,000 settlement last year.
"Integrity Florida cannot afford to hire a law firm to file a lawsuit to gain access to what should be a public record and the Andrews Law Firm would not take the case if they couldn't have their fees paid,'' he said.
Since the Times/Herald Tallahassee bureau inquired about the $62,000 bill on Monday, Department of Corrections' spokesman McKinley Lewis asked the agency's general counsel to review the case and reported they are now willing to work with Integrity Florida to reach an alternative resolution to a lawsuit.
"We will do everything we can do to provide these records in a cost-efficient manner,'' he said.
Lewis said that the agency's inspector general's reports are often filled with information on health information about inmates or security information about prisons that are exempt from either state or federal public records laws and must be redacted. Because of that, he said, they must supply the records in printed format and Wilcox's initial request would have involved 87,125 pages of documents.
The $62,000 price tag was associated with the staff time involved in making the redactions.
He said the agency posts the summaries of the IG reports done on inmate deaths on its website but does not make its reports otherwise available unless requested.
"The IG reports are used to most regularly serve the chief inspector general, the secretary and other people in leadership positions, law enforcement partners and medical personnel, but that is not their sole purpose,'' Lewis said.
Meanwhile, Wilcox has joined the chorus of opponents to the bills by Sen. Rene Garcia, R-Hialeah, and Rep. Greg Steube, R-Sarasota, that would give judges the discretion to determine if government agencies will pay the legal fees of a lawsuit when the agencies are found in violation of the law.
"These are the public's records and the only way you can enforce our public records laws is to go through the courts,'' Wilcox said.
Also opposed is the Sunshine Coalition, a group of public records advocates led by the First Amendment Foundation. The Miami Herald and Tampa Bay Times are members of the foundation. The Miami Herald is currently suing the Florida Department of Corrections for failing to release documents and videos relating to death investigations of specific inmates.