A dark cloud over Florida's Sunshine law

Citizens need more access to government, not less. But year in and year out, the Legislature chips away at the state's vaunted Government in the Sunshine Law -- inserting exemptions that continue to neuter a mandate that serves as a citizens' right to monitor actions by their elected officials.

Today, lawmakers are looking at a new law that aims to hinder the public's access to public records by erecting another legal roadblock. The measure seems innocent enough, changing only one word in state law, but that would give people pause in filing lawsuits against government entities that fail to follow the full intent of Florida's Sunshine law.

That word will dramatically shift the balance of power from citizens to judges, even blocking the ability of everyone to gain access to public records. Instead of awarding reasonable attorney's fees and costs associated with lawsuits filed against alleged violations of public records laws, the proposed legislation would give the judge discretion by amending the Florida Public Records Law from "shall" to "may."

You, the public, would no longer have confidence in fighting city hall, so to speak, over documents. The requirement that plaintiff's attorneys be paid by government for public records transgressions by officials who should know better is vital to ensuring compliance. Florida's open-records law should not be disregarded by willful or ignorant bureaucrats who refuse to produce documents rightfully owned by taxpayers. Yet this happens all too often.

While there are unscrupulous lawyers and legal teams baiting governments at various levels in order to institute open-records lawsuits to gain financial settlements, this bill, sponsored by Rep. Greg Steube, R-Sarasota, and Sen. Rene Garcia, R- Hialeah, would hinder conscientious citizens.

Ordinary Floridians would be handicapped in winning access to valuable documents in their battles with decisions by officials that may or may not be justified.

They would have to hire attorneys whose fees today depend on a victory against a recalcitrant authority. The plaintiff would be responsible for those fees in the event of a judge's decision not to award legal payment, even in the event of a victory -- because "may" does not mean mandatory.

In one case reported by the Tampa Bay Times, a citizen sued to get Orange County public records of her dogs after one bit a neighboring canine but officials refused. A judge rejected her claim for attorney's fees -- which then amounted to $5,000 -- but after five years of appeals she won. By then, those attorney's fees amounted to $118,000. Her lawyers later commented they would never have taken the case had this new legislation been in effect.

That would have effectively blocked public access to public records.

The cost to taxpayers may be high in these cases, but citizens are entitled to these documents and officials should be well acquainted with the law and produce these records upon demand.

Legal fees are an incentive for governments to comply with the law, and attorneys should be assured of compensation for a lawsuit that holds merit.

The legislation -- HB 1021 and SB 1220 -- only serves to shield public officials from serving the public. There are other remedies from frivolous lawsuits. While 1021 passed the House Government Operations Subcommittee Wednesday, this is still a misguided effort aimed at a non-problem.

As Barbara Peterson, the president of Florida's First Amendment Foundation, told the Herald recently, "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. ... The courts are shutting them down, and the system is working the way it is supposed to work."

A civil lawsuit is often the only recourse for a citizen to extract information they are legally entitled to from a government unwilling to comply with state law. Erecting a roadblock with these bills would only dissuade lawyers from taking these cases. These bills cloud our Sunshine laws.

This story was originally published January 21, 2016 at 12:00 AM with the headline "A dark cloud over Florida's Sunshine law ."