House committee gives easy approval to bill opponents say will 'gut' Florida Sunshine law
A House committee unanimously passed a bill Wednesday that would remove the requirement that government officials who intentionally violate the state's public records law pay attorneys fees when citizens take them to court.
The measure, HB 1021 by Rep. Greg Steube, R-Sarasota, would give judges the discretion to determine if government agencies will pay the legal fees of a lawsuit when they are found in violation of the law. It also requires that the a person who intends to file a lawsuit give the public agency notice at least five business days in advance.
The bill, and SB 1220 filed by Sen. Rene Garcia, R-Hialeah, are vigorously opposed representatives of a coalition of public records advocates who believe it will "gut" the state's already hard-to-enforce Sunshine laws by removing the only penalty that exists against violators.
"Without a penalty provision when the government is wrong, there is no incentive to be transparent and provide citizens with access to information about governmental decision-making,'' said Barbara Petersen, president of the First Amendment Foundation in a letter to supporters this week. "The result will be fewer challenges brought by citizens, which will certainly result in less government transparency."
But the House Government Operations Subcommittee was persuaded by members of the League of Cities that the current law needs reform because individuals, particularly law firms, are creating a "cottage industry" that attempts to collect attorneys fees by attempting to snag local government in gotcha violations of public records laws.
Bob Ganger, Vice Mayor of the tiny City of Gulfstream in Palm Beach County, told the committee that his town of 900 residents was the "poster child" for the abuses, having received over 2,500 public records requests from a handful of individuals attempting to profit off the practice.
The city has had to hire additional staff to handle the requests that have consumed "just under 4,000 hours,'' forcing it to raise taxes to pay for $1 million in legal fees.
Rich Templin, lobbyist for the AFL-CIO and a member of the coalition, acknowledged the abuses but said the measure went too far in its attempt to correct them.
"This legislation is basically an atomic bomb to solve a cockroach problem,'' he said. "If we don't want to pay attorneys fees, then don't violate the law, don't keep things secret. The only time attorneys fees are awarded is when the law has been broken."
State law allows the public to sue state agencies if they unlawfully fail to provide a public record and the court is required to give the case priority. If the individual making the records request prevails, the agency must produce the records and pay attorneys fees.
According to the House staff analysis of the bill,(p156 of packet,) "the public policy behind awarding attorney fees is to encourage people to pursue their right to access government records after an initial denial. Granting attorney fees also makes it more likely that agencies will comply with public records laws and deter improper denials of requests."
Rep. Jamie Grant, R-Tampa, said that people are abusing the syste, including making "sham public records requests" by making emails to local officials appear like spam and then suing them when they fail to comply with their request.
But the staff analysis also found that in December 2014, a judge in Duval County didn't need the law to refuse attorneys fees in a case he determined was an abuse of the process. The First District Court of Appeals upheld his ruling in December 2015.
Rather than address the abuses narrowly, however, the committee concluded that the best way was to let a court decide whether the local government should pay for the lawsuit if the citizen prevails.
"It does not mean that you will not get legal fees,'' said Rep. Jimmie Smith, R-Inverness, but it gives the judge the opportunity to protect small cities and counties. "This is a growing cottage industry."
Rep. Ed Narain of Tampa was among the two Democrats on the committee that supported the bill. Rep. Dwayne Taylor of Daytona Beach was the other.
"It's apparent that the practice of this is becoming extremely burdensome and is creating an industry that never should have been created in the first place," he said. "I do trust our judges. I believe they will make the right decision in the right cases.''
Grant also criticized opponents for not trying to come up with a better alternative and appear to be " okay overlooking of these borderline fraudulent practices."
Steube defended the bill and said he would have preferred to have a more aggressive bill. He said there are more than 100 instances in Florida law where the court is given the discretion to award attorneys fees or not.
"We are not taking away people's rights to get that information, we are simply putting it into the discretion of hte court,'' he said.