Editorial: Kill renewed attack on public records law

The annual assault on Florida’s public records law begins anew today in the Legislature.
The annual assault on Florida’s public records law begins anew today in the Legislature.
Published Feb. 6, 2017

The annual assault on Florida's public records law begins anew today in the Legislature. A bill that would make it more difficult to collect legal fees from public agencies that illegally withhold records is a serious threat to open government and should be rejected at its first committee stop. Lawmakers should defeat this cynical attempt to weaken the only means citizens have of forcing government to give them the documents they are entitled to examine.

Sen. Greg Steube, R-Sarasota, is back with the same terrible idea he had last year. Now lawyers who win public records cases are entitled to be paid their legal fees by the custodian of the records. Steube's legislation, SB 80, 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 change would make a big difference, and it would make citizens far less likely to hire a lawyer and go to court to enforce their right to public records if they know they might be responsible for the legal fees even if they win.

There is a terrible disregard for public records in state government and in too many county courthouses and city halls. Florida taxpayers paid $1.3 million in attorney fees in 2015 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 hide public business from the public. In more recent months, public records about spending at Visit Florida, the state's tourism arm, have resulted in the resignation of the organization's leader and a move by lawmakers to abolish the agency. In Pinellas County, a Tampa Bay Times review of thousands of records led to last week's retirement of the executive director of the county's construction licensing board and calls for an overhaul of that operation.

The Florida League of Cities continues to complain of isolated examples where local governments feel overwhelmed by public records lawsuits they contend are motivated by generating legal fees rather than concern about the public's business. Indeed, there are reports of some abuses by a very small handful of bad actors. But Steube's bill takes a sledgehammer to the public records law and would have a chilling effect on the right of all citizens to access public records.

There are better ways to address any abuses. First, the courts and the Florida Bar have the ability take action. A Jacksonville circuit judge ruled against the plaintiff in a public records lawsuit in 2015 and noted he had 17 pending public records lawsuits in Duval County and received money whenever they were settled. That situation, the judge wrote, was probably "an improper fee-splitting arrangement" with a lawyer, and last month a Florida Bar committee found probable cause that the lawyer in that case committed an ethics violation.

Second, a compromise bill agreed to by the Florida League of Cities and filed again this year is better than Steube's approach. The compromise, which passed the Senate last year and died in the House, requires agencies that violate the public records law to pay the plaintiff's attorney fees unless the court finds the records request "was made primarily to harass the agency or cause a violation of this chapter.''

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The Senate Governmental Oversight and Accountability Committee that will consider Steube's bill today includes two Tampa Bay senators: Bill Galvano, R-Sarasota, and Darryl Rouson, D-St. Petersburg. They should help kill this attack on the constitutional right to public records before it goes any further.