Editorial: A chilling effect on public records lawsuits

Published Dec. 23, 2015

This has been a rough year for open government. From the governor's office to St. Pete Beach, taxpayers have paid legal fees because their elected officials failed to produce public records. Yet state legislators remain determined to make it harder to force state and local governments to produce public records as required by the Florida Constitution and state law. The goal should be to protect access to public records for Floridians, not throw up more roadblocks by limiting legal fees.

The message could not be clearer that Florida needs tougher enforcement of its public records and open meetings laws. In Tallahassee, Gov. Rick Scott spent more than $1 million in taxpayer money this year to settle high-profile public records and open meetings lawsuits. The governor and Cabinet paid more than $419,000 in legal fees to defend and then settle a lawsuit involving Scott's ouster of the Florida Department of Law Enforcement commissioner (the Tampa Bay Times was one of the plaintiffs, and the plaintiffs' legal fees paid by the state were a modest $55,000 of the total). Separately, Scott paid $700,000 to a Tallahassee lawyer to settle public records lawsuits involving private email accounts that he and his staff used. The governor would not have been held accountable for his disdain for public records without the lawsuits.

The disrespect for openness extends far beyond Tallahassee. In St. Pete Beach this year, the city agreed to pay more than $1.2 million for Sunshine Law violations. In one case, a state appeals court found the City Commission violated the law by refusing to make public the transcripts of closed meetings between the commission and its attorney. That cost the city $125,000 in attorneys' fees for the plaintiffs. In another open government case involving the city's long-disputed comprehensive plan, the city paid nearly $500,000 in legal fees to lawyers. The cost to taxpayers was steep, but residents never would have gotten the public records they are entitled to without the lawsuits.

Legislators who should be focused on holding accountable officials who violate public records laws are instead aiming to make it harder to file lawsuits. Now lawyers who win public records cases are entitled to be paid their legal fees by the custodian of the records. That is important, because awarding legal fees is supposed to be an incentive for government to produce the records and for lawyers to be willing to sue when the government fails. Legislation filed by Rep. Greg Steube, R-Sarasota, and Sen. Rene Garcia, R-Hialeah, would change the law from saying courts "shall'' award legal fees when they find government illegally withheld public records to they "may" award fees. The bills, HB 1021 and SB 1220, also would require written notice of the public records request to the custodian of the records at least five business days before filing a lawsuit. There are no such requirements now.

This is a blatant attempt to discourage public records lawsuits and protect those withholding public records. The only way for citizens to enforce their constitutional right to access public records when the government refuses to provide them is to file a lawsuit. Lawmakers should be looking to protect and enforce that right, not neuter the only one that exists.