Proposed changes to Florida’s open-records laws have threatened to create a chilling effect on the public’s ability to exercise its right to access government and hold it accountable.
Thankfully, a thaw appears to have occurred in the process.
Earlier this year, state Sen. Greg Steube, R-Sarasota, filed a bill (SB 80) to change the existing law with regard to citizens who successfully sue a government for refusing to release public records. Currently, when a judge finds that a government agency withheld public records in violation of the Sunshine Law, the person requesting the records is entitled to attorney’s fees. Steube’s bill would change one word – from “shall” to “may” – making it optional for judges to award fees.
Steube and other supporters of the bill, who include the Florida League of Cities, contend the change is necessary to combat a spate of public-records lawsuits they have deemed to be frivolous or harassing. The plaintiffs’ goal is to catch a government agency in a technical violation of the open-records law, such as by not producing the documents in a timely fashion, sue and then collect remuneration – basically, a shakedown. There is no argument that these nuisance suits exist.
The problem is that Steube’s proposed solution threatens to undermine Florida’s open-records law that is widely considered the finest in the nation. If recompense of attorney fees becomes an optional recourse to a violation of the law, private citizens may be reluctant to pursue action against a government agency, fearing the potential costs they cannot bear financially. And governments may be emboldened to withhold documents if there’s a chance they won’t be held accountable for such a transgression.
There’s a better way to fix the problem without weakening the public’s rights. Last week, Steube amended his bill with a compromise offered by Barbara Petersen of the First Amendment Foundation, which itself reflected ideas offered by Sen. David Simmons, R-Altamonte Springs, during a March 6 hearing of the Community Affairs Committee. Simmons, whose district includes parts of West Volusia County, suggested following the process used in commercial cases he’s seen in his law practice, such as providing written notice to a party in advance of filing a lawsuit and detailing precisely what the complaint is, giving the defendant opportunity to make amends.
Steube’s amended bill returns the “shall” language pertaining to the mandatory awarding of attorney’s fees, which is a major victory for opponents. It also adds conditions:
▪ Anyone requesting a public record must notify the government agency’s custodian of records in writing five days prior to filing a lawsuit.
▪ A court can deny attorney fees and court costs if it finds a records request was frivolous or made in an attempt to trigger a violation of the law.
▪ The bill stipulates that the public records law does not allow monetary damages, only “reasonable” costs of enforcement (including attorney’s fees) directly related to the lawsuit.
Those strike a reasonable balance.
Prior to this past week, SB 80 did not have a companion bill in the House. However, in response to changes in Steube’s measure, the House Civil Justice and Claims Subcommittee on Tuesday amended HB 163 to conform to SB 80, and now the two bills are identical. That clears a pathway to becoming law. On Thursday, Steube’s bill was advanced to a third reading.
Changing the current law is not ideal, but the amended House and Senate bills preserve the public’s right to access records while discouraging gadflies and other opportunists from gaming the system.