In what appears to be an effort to substantially weaken Florida's public records law and make it more difficult for citizens to gain access to public records, state Rep. Greg Steube has introduced HB 1021 and state Sen. Rene Garcia has introduced SB 1220. These bills will amend Florida statute §119.12 to make the award of attorney's fees discretionary even when a judge has made a finding that a public agency has wrongfully withheld public records from inspection.
The Florida Public Records Law was created in 1909 to guarantee a citizen's right to open government. The law states that "it is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person."
When the government refuses to comply, a citizen's only recourse is to go to court. The law currently provides for a citizen's legal fees to be paid for by the government entity if it is found non-compliant. The attorney fee provision creates a level playing field for someone who can afford to pay for an attorney and those who cannot.
With a simple change of one word, "shall" to "may," the public will no longer be guaranteed fair access to what is rightfully theirs. Let us be clear: if this change is made a judge may not award a citizen attorney's fees even if the judge finds in favor of the citizen.
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Public records laws are there to maintain a meaningful right of government oversight and accountability; access laws reduce the opportunity for abuse -- all the while keeping public servants honest. Without a penalty provision when the government is wrong, there is no incentive to be transparent and provide citizens with access to information about governmental decision-making. The result will be fewer challenges brought by citizens, which will certainly result in less government transparency.
This proposed change in the law is a one-way street against citizens' taxpayers. What the law continues to allow is for the payment of legal fees of elected officials by taxpayers.
As we saw in several recent lawsuits against Gov. Rick Scott, over half a million dollars was paid in his defense in just one case that alleged he and several members of his staff violated state law when they created email accounts to hide their communications from the public.
Rather than reforming the public records law -- a specious claim made by the Florida League of Cities -- these bills will essentially gut our right of access to government records. Who can afford to sue government for a violation of that right if not guaranteed attorney's fees if successful? True reform -- if that's what the bill sponsors and the league really want -- is simple: create a mechanism for the enforcement of this critically important right, a middle step that can negate the need to litigate every violation, perceived or real, in civil court.
Barbara Petersen, is president of Florida's First Amendment Foundation, a watchdog of open government and citizen access to public records.