Stew Lilker’s

Columbia County Observer

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Proposed Public Records Law Change
Harmful & Not Needed

The proposed Steube/Garcia Public Records Law change will make it more difficult, if not impossible, for citizens to gain access to Florida's public records.

HB 1021/SB 1220 will amend the Public Records Law (Chapter 119.12) to make the award of reasonable attorney fees and costs permissive (up to the judge) rather than mandatory in lawsuits involving violations of our public records laws.

The adoption of this proposal will substantially weaken Florida’s public records law and make it more difficult for citizens to gain access to public records.

My concern about the impact of HB 1021/SB1220 arises out of my experience as a practicing attorney and government official. A member of the Florida Bar since 1971, I have been in the private practice of law for more than 30 years.  My clientele has included both private and public sector clients, including local governments. My practice has frequently involved requests for public records.

Between 1987-91 and again from 2007-11, I served as the Secretary of the Florida Department of Community Affairs. Like other state agencies, the Department was subject to the state’s public records laws. As the agency head, I had ultimate responsibility for ensuring the agency’s compliance with those laws.

Based on my experience, I offer the following observations about HB 1021/SB 1220.

There is no compelling need or justification for this proposed legislation. It eviscerates the only remedy for violation of Chapter 119.

Attorney’s fees are available only if a court first determines that a governmental agency has violated the public records law by failing to promptly produce public records. To avoid payment of attorneys’ fees, a governmental agency needs only comply with the law – produce the requested public records.

Those who are supporting this legislation are claiming that unreasonable requests are being submitted that are too costly to fulfill. This is not a valid concern. Ch. 119 authorizes governmental agencies to charge for the actual cost of production.

The instances in which Chapter 119 is abused by bad faith requests for public records are relatively few. They are far and away outnumbered by cases in which governmental agencies comply with Chapter 119 only upon threat of litigation and imposition of attorney’s fees.

The evisceration of the statutory attorneys’ fee provision is not a reasonable or balanced response to those relatively rare cases of abuse. It will discourage aggrieved citizens from filing meritorious lawsuits to enforce compliance with our public records law and will reward those who oppose and abuse those laws.  

The attorney’s fee provision has been an effective deterrent to violation of the public records law. Government agencies are much more inclined to settle disputes and lawsuits over public records requests because of the mandatory monetary penalty that will be imposed if they lose the lawsuit.

If it becomes law, HB 1021/SB 1220 will inject more uncertainty and complexity into the litigation of public records cases.

Current law establishes a bright line test, a clearly defined standard comprised of objective factors which leaves little or no room for varying interpretation regarding the award of attorney’s fees:  "If the court determines that an agency has violated Chapter 119, the court shall assess and award against the agency responsible…reasonable attorneys’ fees.”

In law, the word shall = must.

By changing "shall" to "may", HB 1021/SB 1220 will make award of attorneys’ fees a matter within the unfettered discretion of the court. The proposal provides no standards or criteria to guide the court’s exercise of its discretion.

How is the court to determine whether attorneys’ fees should be awarded? What are the mitigating factors that will shield a governmental agency from an award of attorneys’ fees even though it has wrongfully withheld public records?

If the change goes into law, these and other questions will have to be answered by the judge in each case, leading to a patchwork quilt of rules that will vary from judge to judge and court to court, discouraging the production of public records and turning the law into a crapshoot.

HB 1021/SB 1220 gut the only existing rational remedy for a violation of Florida's public records law.

I urge Representative Steube and Senator Garcia to consider other approaches that are less destructive to Florida's universally accepted and respected public records law.

Or, just leave the law alone: it works.

Tom Pelham has been a member of the Florida Bar since 1971 and served as Florida's Secretary of Community Affairs, twice.

Comments  (to add a comment go here)

On January 22, 2016, Sandy Oestreich, wrote:

This just one more way of hamstringing the public and ignoring the constitution for political gain. Just one more way to make sure citizens entitled to Know, are denied access that shows the corrupt underbelly of the Florida legislature; makes sure the public's right to know is subverted for sure. Bring on the Corruption, Boys!

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