Florida's open meetings and public records laws aren't just under attack in the state Capitol. They also face a serious threat at the Florida Supreme Court. The justices heard arguments this month in a case that could set a tougher standard for collecting legal fees in cases where courts rule that public agencies violated public records laws. That would make it next to impossible for Floridians to go to court when government blocks their access to public records, and the Supreme Court should not go down that road.
A Jacksonville resident, Curtis Lee, sought public records from the Jacksonville Police and Fire Pension Fund, which wanted to charge him hundreds of dollars in fees. A circuit court judge found that the pension fund violated public records laws by charging Lee excessive fees. But the judge declined to require the pension fund to pay Lee's attorney's fees, finding that the pension fund did not intentionally violate the law. The 1st District Court of Appeal overturned the trial judge and ruled the pension fund had to pay Lee's legal fees, and the pension fund appealed to the Florida Supreme Court.
The public records law is an essential tool for Floridians to keep tabs on what government is doing, from city hall to the county courthouse to the state capital. When local governments and public agencies refuse to provide public records or impose unreasonable fees that block access, the only recourse for citizens is to go to court. That normally requires hiring a lawyer, and lawyers are unlikely to take on public records cases unless they are certain that if they win the government will have to pay their legal fees.
In Board of Trustees, Jacksonville Police and Fire Pension Fund vs. Curtis W. Lee, the pension fund would make it more difficult for the public to get access to public records that are denied to them. It would not be enough for a judge to find a public agency violated the public records law for a plaintiff to be awarded legal fees. The plaintiff also would have to prove that the agency did not act in good faith. "Oops" should not be a shield for government to avoid paying legal fees in public records cases that it loses.
Justices Charles Canady and Ricky Polston sounded sympathetic to the pension fund's argument during oral arguments. Polston raised a hypothetical extreme where a judge could find a public records fee was $5 too much and have no choice but to award attorneys fees of thousands of dollars. There have been recent situations where the public records law has been abused by lawyers seeking to win legal fees in essentially nuisance lawsuits. But those are rare situations, and there are narrower remedies for dealing with rogue lawyers than making it more difficult for all citizens to obtain public records by effectively limiting their access to the courts.
A brief filed by the First Amendment Foundation and news organizations including Times Publishing Co., the publisher of the Tampa Bay Times, says the public records law does not leave it up to a court to decide whether to award legal fees in cases where a public agency unlawfully blocked access to public records. It argues that the pension fund's effort to create a "good-faith'' exception for public agencies to avoid paying legal fees when they violate the public records law would force plaintiffs to investigate the motives of every official involved in a decision not to produce public records.
The issue is not as complicated as some justices suggested. If public agencies are found by a court to have illegally denied access to public records, they should pay the plaintiff's legal fees. The Florida Supreme Court should affirm that clear standard rather than create a new one that would let government off the hook.