Florida has some of the most wide-ranging public records laws in the country. But some say these so-called sunshine provisions are under attack.
Right now if you want public records—doesn’t matter for what—and those records are in the hands of almost any public agency in the state, you can have them. Or at least that’s how it’s supposed to work. The problem is sometimes public agencies or officials aren’t, shall we say, forthcoming.
“Some of them are being downright difficult about it,” Barbara Petersen says. She’s president of the Florida First Amendment Foundation. The organization advocates in favor of open government.
Petersen explains when officials don’t agree to turn over records a person’s options are pretty limited. You can file a complaint with the state attorney, who may or may not investigate. Or, you could enter into voluntary arbitration, but if either party doesn’t agree that’s off the table. The last option, Petersen says, is taking the matter to court.
“Right now, if I sue government for violation of my constitutional right of access, I get my attorney’s fees and court costs,” she explains. “That’s required—shall award.”
Some in the Florida Legislature see this as a problem. Rep. Greg Steube (R-Sarasota) has filed a bill giving the judge discretion in awarding fees.
“This is actually a very simple bill—it’s a paragraph,” Steube said in committee. “It changes one word as it relates to attorney’s fees from ‘shall’ to ‘may’—that’s all it does. And it requires that if you’re going to do, and file a lawsuit against a public entity, that you need to give five days in order for that public entity to comply with the public records request—that’s the bill.”
Petersen says Florida awards attorney fees to ensure ordinary citizens aren’t discouraged from exercising their rights, and moving from shall to may will have a chilling effect. But some local governments say the move is necessary because that automatic coverage of fees is being abused. This is Casey Cook, a lobbyist for the Florida league of cities.
“I think the town of Gulf Stream is great example,” Florida League of Cities lobbyist Casey Cook says. “Gulf Stream is in Palm Beach County, it’s about 900 people, they have a full time staff of seventeen and they have four full-time and one part-time employee in their city hall.”
“Last year there were over 1,200 public records requests made to the town of Gulf Stream by a very small group of people,” he says.
Gulf Stream Vice Mayor Bob Ganger spoke in favor of Steube’s bill at its committee hearing. He says his town has been victimized by a small group that has turned filing public records requests into a cottage industry. It’s forced the city government to raid its hurricane reserves and raise property taxes.
“Our custodian of records works literally every day including weekends to try and get caught up,” Ganger says. “But inevitably, we fall behind. And in falling behind, there have been forty lawsuits filed against us for failing to comply in a timely fashion—forty.”
Petersen has heard about Gulf Stream, and the group giving it so much trouble. It was called the Citizens Awareness Foundation, and one of the people who worked there was Joel Chandler.
Chandler explains he worked there for about five months, and he left the organization once he understood what was going on.
“I don’t have any objection to public records litigation—it’s a necessary tool,” Chandler says. “I do have a real problem with people going around doing nothing other than trying to see if they can catch somebody violating the law so they can generate legal fees.”
“And it became very clear to me that that was the reason that they had hired me,” Chandler says. “That that was my real—that’s what they believed my role in the organization was—to basically go out and get lawsuits.
Chandler agrees with Petersen that the shift from shall to may will discourage public records requests.
“Changing that one word from ‘shall’ to ‘may’ as far as the award of attorney’s fees, then what would happen is citizens would be left with great uncertainty,” Chandler says. “They would—if they were going to file a lawsuit to compel compliance with the constitution and the statutes—they would gamble on whether or not they would be able to recover their reasonable attorney’s fees and costs.”
“Most people simply do not have the resources to do that,” he says.
Steube’s measure passed its first House panel, but lawmakers on both sides of the aisle voiced misgivings.
“I’m struggling with this bill. I may be one of the few, but the last provision that you just mentioned there—wouldn’t that just solve the problem?” Rep. David Santiago (R-Deltona) says of the five day notice requirement.
“If we had a responsible individual designated as the appointed person, and given five days, wouldn’t that provide the protections that the cities or counties would need to do the right thing?” he asks.
But opponents of Steube’s measure aren’t thrilled with the notice requirement either. Both Petersen and Chandler see it as a way for custodians to unnecessarily delay requests. They say if the League of Cities is truly concerned about protecting local coffers, the answer is better compliance, and they both point out lawyers fighting on behalf of citizens regularly bill far less than their opponents representing public officials.
Chandler says custodians need better training based on something like the secret shoppers you see in retail. Petersen agrees more training is necessary, and she says a state official to review requests before they head to court would defuse many disputes.
But at this point, none of those ideas are on the table.
