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Sunshine Week: First Amendment Foundation goes to bat for Florida’s right to know

By   /   March 15, 2017  /   News  /   No Comments

Part 4 of 6 in the series Sunshine Week 2017

It’s Sunshine Week in the Sunshine State, and not just because it’s Spring Break.

TRANSPARENCY: The First Amendment Foundation helped change a bill that would have undermined mandatory attorneys’ fees for citizens who win public records lawsuits against the government.

Since 2005, open government and freedom of information advocates have designated March 13-19 as a time to celebrate public transparency and raise awareness about the critical importance of access to government records.

Sunshine Week is timed to coincide with the birthday of James Madison, author of the First Amendment.

True to form, the First Amendment Foundation has been busy at the Florida Capitol battling to ensure the public’s right to know. The Tallahassee-based nonprofit helped restructure a bill this week that would have severely limited access to information if the government decided not to comply with public records laws.

Florida’s “sunshine” law says 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.” But the only real recourse against a government officer or agency that refuses to hand over public information is to challenge them in court.

That can be expensive. As a safeguard, if a judge rules that the government violated public records laws, then the government must pay the record requester’s attorney’s fees.

The mandatory provision “creates a level playing field for someone who can afford to pay for an attorney and those who cannot,” according to the First Amendment Foundation. 

Putting aside the issue of awarding attorneys’ fees with taxpayer money, a new bill would have made the mandatory fee provision optional. By changing the word “must” to “shall,” a judge could deny fees even if the court rules in favor of the citizen.

The potential consequences are enormous.

“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,” says the First Amendment Foundation.

But on Tuesday, a compromise was reached and the Senate Judiciary Committee unanimously approved it.

“Under the bill as amended in committee, the fee provision remains mandatory,” Barbara Petersen, the foundation’s executive director, told Watchdog.org.

Petersen sounded the alarm about the proposal in February, then outlined a fix, and recently worked with Sen. Greg Steube, R-Sarasota, the bill’s sponsor, and the Florida League of Cities to amend the bill.

As part of the compromise, the bill also includes a five-day notice requirement that would alert a public records custodian of a pending records request before a lawsuit can be filed, and an additional provision that allows courts to crackdown on “improper” records requests – the issue Steube’s bill initially sought to address.

His approach, however, also would have penalized legitimate inquiries and legal challenges.

In recent years, lawmakers have decried a “cottage industry” of records requests that are intended to trigger sunshine violations. Petersen calls them “predatory” requests.

“They’re designed to fail,” she told Watchdog.org. “When the agency doesn’t respond, or doesn’t respond quickly enough, then the requester files suit in civil court. A few days later, they call up the agency and offer to settle for a financial payout with the promise of dropping the lawsuit.”

In 2014, the issue became a statewide concern when a circuit court judge ruled that Jeffrey Gray, a self-described civil rights activist from northeast Florida, was engaged in “a baiting gesture meant to achieve personal financial gain,” rather than a genuine effort to obtain public information.

According to the Florida Bar, the ruling said Gray had been a plaintiff in 18 separate lawsuits involving public records requests in Duval County, and that Gray’s lawyer had paid him when attorneys’ fees were recovered. The judgement said the practice was “nothing more than a scam.”

Knocking out Florida’s mandatory fee provision would halt frivolous, harassing and disingenuous records requests designed to force sunshine violations, but not without collateral damage.

“In doing that, the bill wouldn’t just punish the people who are taking advantage of the system, but the 99 percent of people who make requests because they’re legitimately seeking public records,” Petersen said.

The amendment adopted this week should fix that.

If Steube’s amended bill becomes law, not only will courts continue to award attorneys’ fees when the government wrongfully withholds public information, but courts also would be able to assess attorneys’ fees against anyone who attempts to profit from scamming Florida’s public records system.

Part of 6 in the series Sunshine Week 2017

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William Patrick is Watchdog.org’s Florida reporter. His work has been featured by Fox News, the Drudge Report, and Townhall.com, as well as other national news and opinion websites. He’s also been cited and reposted by numerous state news organizations, including Florida Trend, Sunshine State News and the Miami Herald, and is a member of Investigative Reporters and Editors and the Florida Press Association. William’s work has impacted discussions on education, privacy, criminal justice reform, and government and corporate accountability. Prior to joining Watchdog, William worked for the James Madison Institute in Tallahassee, Fla. There, he launched a legislative news website covering state economic issues. After leaving New York City in 2010, William worked for the Florida Attorney General’s Office where he assisted state attorneys general in prosecuting Medicaid Fraud. William graduated magna cum laude from Hunter College, City University of New York. He lives in Tallahassee with his wife and three young children.