TALLAHASSEE -- State Rep. Greg Steube's bill to no longer mandate that judges award attorney fees to plaintiffs who win public records request cases passed its second House hearing Tuesday morning, after contentious testimony and more than 60 people signing up to comment.
Current law says a judge "shall" award attorney fees against the responsible agency if a court determines it acted unlawfully when it refused to provide a public record. Steube's bill would change "shall" to "may," giving judges discretion on whether to award attorney fees.
Steube said the purpose of the bill is to combat efforts by some who use devious methods to request public records and then hit agencies with lawsuits. Such methods used in the past include filing so many requests an agency can't hope to fill them in a reasonable amount of time, and disguising records request as spam so agencies don't even see the request in the first place, Steube said.
Opponents argued that, while the Legislature should address that problem, the language in Steube's bill goes too far and would prevent everyday citizens from filing legitimate lawsuits to get access to public records. Rich Templin, communications director for the Florida AFL-CIO, referred to the bill as "throwing the baby out with the bath water," and "like dropping a bomb on Tallahassee to get at a rat infestation problem in an apartment on College Avenue."
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"What attorney is going to take a case like this if they don't know they'll receive these fees?" Templin asked the House Government Operations Appropriations Subcommittee.
Templin and Barbara Petersen, president of the First Amendment Foundation, argued a better fix would be to put a process in place for requesting public records. Petersen suggested having agencies post publicly, such as on a website, who the custodian of public records is, and requiring requests go to that person, as well as a notice that a lawsuit will be filed if the requests are not filled. Only then, after a certain number of days, should a person be allowed to file a lawsuit, Petersen said.
Petersen also advocated for an enforcement mechanism on unfulfilled public records requests, saying currently the only enforcement option people have on receiving public records is the courts.
"A citizen really has no other recourse, and I think that's a huge waste of public resources," Petersen said.
Steube said he's willing to work with opponents to the bill. But he contended they are acting like changing the wording to "may" is equivalent to changing the wording to "shall not," and that isn't true.
"We all trust our judges," Steube said. "This just gives them discretion."
Multiple representatives on the subcommittee voiced enthusiastic support for the bill, saying small local governments need to be protected against what they called people "raping the system" (Rep. Charles Van Zant, R-Palatka) and "economic terrorists" (state Rep. James W. Grant, R-Tampa).
State Rep. Victor Manuel Torres Jr., D-Orlando, was the only one to vote against the bill. He said he supported the intent, but he believes the process suggestion would better serve the people and he wouldn't vote for the bill in its current form.
Steube said the phrase "may award attorney fees" appears more than 100 times in Florida law and should not be seen as a rarity. Templin argued that this is a unique case that deserves special protections.
"This is a different area of law," Templin said. "This is citizens against their government."
Steube's bill has to pass one more House committee before heading to the House floor. The Senate version has two more committees to pass before heading to the Senate floor.
Kate Irby, Herald online/political reporter, can be reached at 941-745-7055. You can follow her on Twitter@KateIrby