Lawmakers advance bill that opponents say will 'gut' public records law

Published Jan. 21, 2016

TALLAHASSEE — 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 the agencies are found in violation of the law. It also requires that 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 by the Sunshine Coalition, a group of public records advocates led by the First Amendment Foundation who believe the bills 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,'' Barbara Petersen, director of the First Amendment Foundation, said in a letter to supporters this week. "The result will be fewer challenges brought by citizens, which will certainly result in less government transparency."

The measure is one of dozens of attempts to weaken or create new exemptions to the public records law filed by lawmakers this session. It comes a year after Florida taxpayers paid a record $1.3 million in legal fees after Gov. Rick Scott and the Florida Cabinet collectively paid a record $1.3 million in attorneys fees to end two open government cases in which they admitted to violating the state's Sunshine laws.

Documents obtained by the Times/Herald found that the governor agreed to pay private attorneys $164,999 to defend him in a case brought by Tallahassee attorney Steven R. Andrews, who was awarded $700,000 in taxpayer money after a three-year legal battle. He alleged the governor and several members of his staff violated state law when they created private email accounts to shield their communications from the public and then withheld the documents. Because the case was settled, the governor's office did not have to turn over the documents and never admitted fault.

The bill approved by the House Government Operations Subcommittee would do nothing to stop public officials from spending taxpayer money to pay their own lawyers, but instead is focused on using taxpayer dollars to pay the attorneys fees owed to the plaintiffs who successfully sue a public agency for violating the law.

The measures are backed by the Florida League of Cities which argues 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 more than 2,500 public records requests from a handful of individuals attempting to profit off the practice.

The city has had to hire four additional staffers 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, "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 system, 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 1st District Court of Appeal 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 who 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," Narain 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 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 the court,'' he said.

Contact Mary Ellen Klas at Follow @maryellenklas.