Barbara Petersen, president of the First Amendment Foundation
TALLAHASSEE — Despite the compromise reached between public records advocates and lawmakers last month, controversial Senate Bill 1220 regarding Public Records did not pass in the Florida House of Representatives.
The bill makes provisions for if and how attorney fees will be awarded in lawsuits when governments are accused of violating the state public records law.
The current law states that if a citizen sues a government agency for a violation of the public records law the court must award the plaintiff attorney’s fees. That provision had been removed in the proposed bill when the language was changed to give courts discretion over attorney’s fees.
“To change the fee provision from a court shall to a court may completely eviscerates any real opportunity of enforcement,” Barbara Petersen, president of the First Amendment Foundation, told the Florida Record.
Peterson said that without the fee provision, citizens will not be able to afford to file lawsuits and attorneys will be less likely to take cases.
“I don’t think it was very well reasoned," Petersen said. "It punished us all because of the bad acts of a few, and it was a total overreaction.”
The bill’s sponsor, state Sen. René Garcia, worked with public records advocates such as the First Amendment Foundation to reach a compromise that addressed some of their concerns.
“I don’t think it’s perfect,” Peterson said. “It’s a compromise.”
Because the House rejected the bill, Petersen, Garcia and other interested groups will have to reach a new agreement and present a new bill next session.
To make sure that they come up with a solution that really addresses the issue, Petersen and her colleagues are already working on researching the issue. She’s partnered with a group of investigative journalism students at the University of Florida to make public records requests in an effort to see how big the problem is.
She is also working with law students to research how other states have gone about enforcing their public records laws.
“We have a great public records law and no enforcement mechanism, which means it’s totally incumbent upon the citizens to enforce," Petersen said.
Florida’s residents have a constitutional right to access public documents. The Florida Public Records Act, however, allows for only one enforcement strategy if organizations refuse to comply with public records requests – a lawsuit.
The courts must give the lawsuits priority over other cases. If the plaintiff wins, the agency must turn over records, and pay costs and attorney’s fees associated with the case.
“It’s only what we spend to enforce our right that we get back,” Peterson said.
Petersen’s goal is to find a new solution that will help citizens enforce their rights while simultaneously protecting government agencies from predatory records requests.
“The bill didn’t pass,” Petersen said. “So I think that over the interim we’ll have time to look at the issue more carefully and try to come up with some language that actually addresses the problem they were trying to correct.”
Another public records bill, House Bill 2021, would have given the court discretion over the awarding of attorney’s fees. It died in the State Affairs Committee on March 11 and was not amended.