The Florida Legislature appears headed down a dark path to compromise government in the sunshine. Bills are moving that would allow governments that violate public records laws to avoid paying legal fees of citizens who take them to court and win. That would remove one of the few incentives government officials have to produce public records, protect those withholding public information and compromise the ability of citizens to protect their constitutional rights.
When citizens are denied public records, their only recourse is to go to court. Now lawyers who win public records cases are entitled to be paid their legal fees by the custodian of the records. Legislation filed by Rep. Greg Steube, R-Sarasota, and Sen. Rene Garcia, R-Hialeah, would change the law from saying the courts "shall'' award legal fees when they find government illegally withheld public records to they "may'' award legal fees. That is a big difference, and it would make many citizens more reluctant to go to court to enforce their right to public records if they know they could be on the hook for legal fees even if they win.
This legislation, HB 1021 and SB 1220, pushed by the Florida League of Cities is a blatant attack on the public records law and protects violators at a time when disdain for open government runs from the Governor's Mansion to small city governments. Florida taxpayers last year paid $1.3 million in attorney fees to end open government lawsuits involving Gov. Rick Scott and the Cabinet. One involved the governor's ouster of the Florida Department of Law Enforcement commissioner, and the other involved private email accounts that Scott and his staff used to shield public business from the public. They would not have been held accountable for their disregard for open meetings and public records without those lawsuits.
The League of Cities cites isolated examples where local governments feel overwhelmed by public records lawsuits they believe are motivated by generating legal fees rather than genuine interest in public business. But there should be a way to address those concerns without throwing a blanket over all public records and putting the entire system at risk. One idea: Consider reasonable changes the Legislature failed to adopt two years ago. Those include a requirement that each public agency post contact information for its public records custodian, and that written notice of a public records request be made to the custodian at least two business days before filing a lawsuit. There are no such requirements now.
Making it uncertain whether governments found guilty of illegally withholding public records have to pay the legal fees for those who brought the lawsuit would put open government in jeopardy. It would affect citizens who could not afford the potential legal bills to enforce their constitutional right to public information. And with the evolving media landscape, there already are fewer newspapers and other media companies willing to spend the money to take government to court to get public records. Create the possibility that legal fees may not be awarded even when government is in the wrong, and those numbers will further shrink.
The Legislature should not reduce the consequences for violating the constitutional right to access public records. If anything, there should be stronger requirements to force government to operate in the sunshine.