TALLAHASSEE – State Senate Bill 1220, which amended the Florida Sunshine Law to say that judges must award attorney fees unless the court determined that the public-records request “was made primarily to harass the agency,” passed the Senate 30-0 but died on its way to the House.
Florida’s Sunshine Law protects the public’s right to know by allowing open access to public records. Today, if a citizen is wrongly denied access to government records and sues, a judge must order the state and its covered agencies to reimburse the citizens’ attorney fees.
This is the only enforcement mechanism to hold Florida’s government agencies, school districts, cities, counties, tax districts and towns accountable for providing access to public records.
“The problem is we do not have any enforcement mechanism," Barbara Petersen, president of the First Amendment Foundation (FAF), told the Florida Record. "That means if the law is violated our only recourse is to file suit in civil court for a violation. If we win, in other words the court determines the city or county violated the public records laws, the court must award us attorney fees and costs."
The FAF serves as the watchdog for Sunshine Law issues.
The first proposal, which failed in the state legislature, would have taken away the mandatory requirement that government agencies pay the attorney fees if they lose a lawsuit over the access to public records. Two twin bills in the House and Senate sought to compromise the law by changing the language to say judges “shall” award attorney fees if someone wins a lawsuit forcing state or local governments to answer a lawful public records request. The problem with the proposed bill is the wording is ambiguous; the judge may or may not award the fees.
Petersen says forcing the government to actually follow the law is the intended outcome so that citizens’ rights to public records access are upheld.
“We are paying to defend our government for violating our rights," Petersen said. "And now they want to take that one little thing we’ve got away from us."
SB 1220 and its companion bill in the House, HB 1021, would have significantly weakened the law protecting the public’s ability to hold their public officials accountable. The impact could have created a situation where government officials see an advantage to withholding public records, thinking a citizen may not want to take the financial risk of suing and not having their attorney fees paid.
Petersen thinks the bills will return to the Florida Legislature again next year, and she’s hoping to have a more effective alternative by then.
“We’d like to take the next six months and try to come up with effective enforcement that will protect the people requesting the records and the agencies producing the records, and pass something that actually corrects the problem,” she said. “This bill wouldn’t stop the people who are abusing the system. It would affect the citizen who is trying to enforce a constitutional right in Florida, who has a problem with the local government and who can’t afford attorney fees. That right currently has no remedy.”