TALLAHASSEE -- State Sen. Greg Steube (R-Sarasota) gave action to the old adage “If at first you don’t succeed…” when he refiled Senate Bill 80 on Nov. 30.
SB 80 is intended to provide greater discretion to judges, who preside over public-records cases, on the amounts and types of attorney’s fees that can be awarded. The version of SB 80 Steube filed was a revised version of one he filed in the last legislative session, when he was a state representative. That version of the bill passed the Senate, but stalled in the House.
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According to www.floridapolitics.com, the current law states that judges “shall award attorney’s fees” in these cases. SB 80 makes a key change to the current legislation by amending the current language to “may award attorney’s fees.”
Organizations like the Florida League of Cities have advocated for providing judges with this decision-making power, believing that the change will refocus the number of lawsuits against public officials. With the elimination of guaranteed fees for attorneys, people may not be as quick to file suit against a public official when an honest, clerical mistake has been made.
On the other side of the argument are organizations like the First Amendment Foundation, which argue that passage of the bill may have negative consequences, such as in cases that involve local governments that purposefully refuse to honor public-records requests.
“This bill seeks to impose a new burden on the right to obtain attorneys fees when a citizen is required to file a lawsuit to view public records," Lawrence G. Walters, an attorney at Walters Law Group, told the Florida Record. "The attorney's-fee entitlement under existing law is an important element of the public-records regime because it creates an incentive for state agencies to keep government records open to the public.”
Steube told the Bradenton Herald that this change is necessary to curtail those who are looking to work the system. There have been cases in the past where an individual files one public-records request after another with an agency. This cycle continues until it becomes an impossibility for the agency to fulfill those requests in a “reasonable amount of time.” The filer then moves forward with a lawsuit.
Walters wonders about the long-reaching effects of the bill should it pass into law.
“If the bill passes, it may well serve as a model for other states looking to mitigate the consequences for failing to honor certain public-records requests,” he said.
“By requiring a written demand for records before attorneys fees can be awarded, noncompliant state agencies will not face any meaningful consequence if they refuse to provide access to public records upon verbal request," Walters said. "This may encourage certain officials or agencies to treat verbal requests as less important."