The Florida Supreme Court took an important step this week to preserve the constitutional right to inspect and copy public records that is a cornerstone of government in the sunshine. The court ruled 5-2 that public agencies that violate public records laws are liable for the legal fees of citizens whose only recourse is to file a lawsuit when they are denied access to records. That is an important victory for openness in an era when public records laws are routinely under attack from the Legislature and many local governments.
The court's straightforward opinion issued Thursday involved the board of trustees of the Jacksonville Police and Fire Pension Fund. A citizen sought public records from the fund, which attempted to impose special fees and conditions before allowing him to inspect or copy the records. The citizen filed a lawsuit, and a trial court found the pension fund violated public records laws by trying to impose an hourly photocopying fee and an hourly supervisory fee. Yet the court refused to force the pension fund to pay the citizen's legal fees, finding that the pension fund's violations were "not knowing, willful or done with a malicious intent.''
State law has been clear for more than 30 years on this question of requiring public agencies to pay legal fees when they violate public records laws. It says the courts "shall" award legal fees in those situations, and it leaves no out for government officials to claim they did not intend to violate the law. Yet different state appellate courts have taken different sides of this issue in recent years, and the Supreme Court wisely used this opportunity to re-establish the straightforward standard for awarding legal fees that does not allow public agencies to get off the hook by claiming they just didn't know they were violating the law.
The importance of maintaining the unambiguous requirement for public agencies to pay legal fees when they illegally withhold public records cannot be overstated. As Justice Barbara Pariente noted in the court's majority opinion, that provision "has the dual role of both deterring agencies from wrongfully denying access to public records and encouraging individuals to continue pursuing their right to access public records." If public agencies could avoid paying the legal fees by pleading ignorance, that would make it less likely citizens would go to court to get access to public records and more likely some public officials would refuse to provide records they would prefer to keep secret. It's disappointing that Justices Charles Canady and Ricky Polston, the court's most conservative members, dissented and would give public agencies an out.
The court's opinion comes just after the Florida League of Cities pushed hard for the Legislature to make it more difficult to collect legal fees from public agencies that violate public records laws. The cities cited isolated examples where local governments feel inundated by public records lawsuits they claim are motivated by generating legal fees rather than by genuine interest in keeping tabs on public business. The League of Women Voters of Florida and the First Amendment Foundation (disclosure: The Tampa Bay Times is a foundation member and editor of editorials Tim Nickens is a foundation board member) opposed the legislation, and the original version and a negotiated compromise failed to pass. That is for the best.
Now the Supreme Court has smartly reaffirmed the ability of citizens to protect their constitutional right to access public records. Rather than try to undo the court opinion by changing the law on legal fees, state lawmakers should be seeking ways to expand government in the sunshine.