Florida public records law under attack by state Rep. Steube's bill, some First Amendment experts say

TALLAHASSEE -- Even before the 2016 Florida Legislature convenes in January, a battle is brewing over what some First Amendment experts say is the biggest challenge of open government laws in Florida's history. And it all stems from changing language in the Florida Public Records Law from "shall" to "may."

Two Republican lawmakers, state Rep. Greg Steube of Sarasota and state Sen. Rene Garcia of Hialeah, filed bills this week to amend the public records law regarding lawsuits filed against government entities and the requirement that attorneys get paid. The amendment would change that requirement and leave it to the discretion of the judge hearing the case. The proposed changes (HB 1021 and SB 1220) are designed to stop frivolous lawsuits and groups of citizens and attorneys who deliberately set up governments for targeted public records mistakes.

"It's a really big issue," Steube said Wednesday. "People who know what they are doing will set up a local government just to sue them. I've heard of people coming into a city records clerk and demand to see something on their desk, and if that person doesn't comply, they'll throw a lawsuit down on the desk. That's not what the statute is created to do. I'm not taking away anyone's right to sue, but it will leave the discretion up to the court and stop the mundane, frivolous, minuscule lawsuits."

Barbara Peterson, First Amendment Foundation president, said it's like sending an entire school into detention for the actions of three students.

"We have a process for penalizing frivolous lawsuits," said Peterson. "They can be sanctioned by the court. If this bill passes, we can kiss our rights to access public records goodbye."

Peterson said attorneys won't want to take on public records lawsuits if there is no guarantee of payment. Peterson cited the public records lawsuit filed by St. Petersburg attorney Matthew Weidner against Gov. Rick Scott and the Florida Cabinet following the firing of Florida Department of Law Enforcement Commissioner Gerald Bailey as an example. That case settled in June for $55,000 in attorney fees.

"If I have to fight Manatee County government because I believe they have violated my Constitutional rights of access, will I go to court and risk getting hit with a $55,000 expense?" she said. "Good people will stop filing lawsuits, but it won't stop the bad actors, the small percentage of people who are trying to set up local governments. Those people are losing in the courts. The courts are shutting them down, and the system is working the way it is supposed to work."

Steube's bill is being backed by the Florida League of Cities, which cited "public records reform" as one of its top legislative priorities to stop the costly process to government entities that are forced to defend against ongoing efforts by those targeting municipalities.

A press release states, "These schemes do nothing more than raid the public treasury at the expense of taxpayers."

League lobbyist Casey Cook said people are abusing the system. "Their intent isn't to get information. Instead, it's hoping that the public agency doesn't fully comply with the request," he said.

Peterson said the First Amendment Foundation will partner with the Florida Sunshine Coalition to fight the bill. She believes the consequences of targeting everyone for the actions of a few would be the "death nail" of open government. "They just don't get it," she said. "We're going to punish 99.9 percent of the people who want access to public records for this small group of citizens around the state who developed this cottage industry to create these technical lawsuits. That's what they are doing instead of focusing on the problem of no enforcement."

Florida is considered to have the best set of open government laws in the nation, but the State Integrity Project rated the state with a D- because Florida lacks the ability to enforce those laws. Peterson said legislative efforts would be better spent by following what other states do in providing that crucial "middle step."

"I've been saying this for years and years that, if there was a process by which if you think your rights are violated and I want to sue Manatee County, I would be required to go to some type of office of open government first. And they look at my facts and determine if I have an argument," she said.

That, Peterson said, would resolve a lot of the problems local governments are having and save money.

"But they aren't doing that," she said. "I can't tell you how many people call me about being denied access to records and unfairly charged and don't know what to do about it. The only process left to citizens is, if a state attorney won't investigate -- and most of them won't -- is to file a civil suit. Florida municipalities need to have an office dedicated to ensuring the compliance of the laws."

Steube insists that the change in language will only improve the legitimate public records request process.

"Instead of anybody suing for anything and forcing cities to settle and paying attorney fees, it will bring forward a good case that deserves to be awarded," he said. "This isn't prohibiting anyone's ability to pursue public records and, if necessary, legal action. It just gives the judge more discretion to protect governments from unnecessary fees."

Mark Young, Herald urban affairs reporter, can be reached at 941-745-7041 or follow him on Twitter@urbanmark2014.

This story was originally published December 23, 2015 at 11:43 AM with the headline "Florida public records law under attack by state Rep. Steube's bill, some First Amendment experts say ."