TALLAHASSEE – Public records, which are supposed to be easily accessible to residents of Florida, are now becoming more challenging to acquire due to action that some state governments are taking that threatens individuals with lawsuits when seeking public records.
According to an article by dailycommercial.com, a number of institutions in Florida are now threatening to sue individuals in response to requests for public records, which in turn forces them to either suffer the consequences of the lawsuit or retract their request.
Barbara Petersen with the First Amendment Foundation is disheartened by the direction that is being taken in Florida government.
"It’s important to remember that Florida has a constitutional right of access to the records of its government and if I have to worry that I might be sued because I am exercising that right, I’m far less likely to file a public record request," Petersen told the Florida Record. "In fact, I’ve had a small number of people call me expressing concern they may be sued."
Petersen explained that these lawsuits filed by the government against citizens are dangerous as they remove from the public the access which should be constitutionally protected for records that are actually meant for public viewing.
Petersen explained that Rep. Ray Rodrigues (R-Estero) filed HB 273 last session that would have prohibited "Revenge Freedom of Information" suits, to which Sen. Keith Perry (R-Gainesville) has a companion bill, SB 750, in the Senate.
"The League of Cities and Association of Counties were opposed to the legislation and the Senate bill died in committee," Petersen said.
As the bill died, government agencies, such as the South Florida Water Management District, are free to sue citizens who are seeing a declaratory judgment from a court.
"The SFWMD is using our tax dollars to sue a citizen because that citizen made a public record request. These lawsuits flip the burden of proof – generally, a government agency has the burden to prove it has the legal right to deny access to a public record. Under a Reverse FOI lawsuit, that burden shifts to the requestor who must prove she has a right of access to the requested record," Petersen said. "It also shifts the cost of litigation."
If an individual sues a government agency for allegedly failing to comply with the law and the individual wins, under the public records law, the agency is responsible for paying attorney fees and court costs; this, however, is turned on its head with the Revenge FOI suits, and the individual must pay attorney fees, even if they were to win.
"We have a solid body of case law that says agencies can’t create barriers to our right of access that operate to restrict or circumvent that right. But agencies do it all the time, most commonly through ridiculously high fees. The agencies get away with it because there’s no enforcement mechanism in Florida’s public records law which means that the only way for a citizen to enforce the law is to sue the agency in civil court," Petersen said.
Peter Vujin, a Miami-based attorney, explained that even though the state of Florida has good policy concerning public records, the inequality has been rampant in this particular situation.
In fact, the general state policy on public records states that, "It is the policy of this state that all state, county and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency."
"Despite this noble policy, due to the enormous inequality of power between individuals and the state ... it is fairly easy for the state to engage in aggressive tactics to prevent the release of the records," Vujin told the Florida Record. "An obvious denial of the 'equality of the individual and the state' takes place when a state government tries to aggressively silence the people, or hide its secrets, even though the state of Florida, by Law, is forbidden from keeping most matters secret."
Rodrigues explained that the reason that the bill failed in the Senate was that the local governments failed to acknowledge the reality of this grim situation.
"The reason the bill failed was because local governments furiously lobbied against the bill in the Senate Judiciary Committee," Rodrigues told the Florida Record. "They did not acknowledge that this bill was a tool to prevent local government from throwing shade on our sunshine statutes."
Rodrigues explained that the local governments instead claimed that these issues were non-existent in Florida and stated that the bill was a "solution in search of a problem."
"Next session, when Sen. Perry and I refile our bills, we hope our colleagues will join us in carrying the torch for this important constitutional protection that ensures government operates in a transparent manner, which allows taxpayers to hold them accountable for their actions," Rodrigues said.