Courtesy of The Tampa Bay Times
Mary Ellen Klas
Published January 24, 2016
TALLAHASSEE — A House committee unanimously passed a
bill Wednesday that would remove the requirement that government
officials who intentionally violate the state's public records law pay
attorneys fees when citizens take them to court.
The measure, HB 1021 by Rep. Greg Steube, R-Sarasota, would give judges
the discretion to determine if government agencies will pay the legal
fees of a lawsuit when the agencies are found in violation of the law.
It also requires that a person who intends to file a lawsuit give the
public agency notice at least five business days in advance.
The bill, and SB 1220 filed by Sen. Rene Garcia, R-Hialeah, are
vigorously opposed by the Sunshine Coalition, a group of public records
advocates led by the First Amendment Foundation who believe the bills
will "gut" the state's already hard-to-enforce Sunshine laws by removing
the only penalty that exists against violators.
"Without a penalty provision when the government is wrong, there is no
incentive to be transparent and provide citizens with access to
information about governmental decision-making,'' Barbara Petersen,
director of the First Amendment Foundation, said in a letter to
supporters this week. "The result will be fewer challenges brought by
citizens, which will certainly result in less government transparency."
The measure is one of dozens of attempts to weaken or create new
exemptions to the public records law filed by lawmakers this session. It
comes a year after Florida taxpayers paid a record $1.3 million in legal
fees after Gov. Rick Scott and the Florida Cabinet collectively paid a
record $1.3 million in attorneys fees to end two open government cases
in which they admitted to violating the state's Sunshine laws.
Documents obtained by the Times/Herald found that the governor agreed to
pay private attorneys $164,999 to defend him in a case brought by
Tallahassee attorney Steven R. Andrews, who was awarded $700,000 in
taxpayer money after a three-year legal battle. He alleged the governor
and several members of his staff violated state law when they created
private email accounts to shield their communications from the public
and then withheld the documents. Because the case was settled, the
governor's office did not have to turn over the documents and never
The bill approved by the House Government Operations Subcommittee would
do nothing to stop public officials from spending taxpayer money to pay
their own lawyers, but instead is focused on using taxpayer dollars to
pay the attorneys fees owed to the plaintiffs who successfully sue a
public agency for violating the law.
The measures are backed by the Florida League of Cities which argues the
current law needs reform because individuals, particularly law firms,
are creating a "cottage industry" that attempts to collect attorneys
fees by attempting to snag local government in "gotcha" violations of
public records laws.
Bob Ganger, vice mayor of the tiny city of Gulfstream in Palm Beach
County, told the committee that his town of 900 residents was the
"poster child" for the abuses, having received more than 2,500 public
records requests from a handful of individuals attempting to profit off
The city has had to hire four additional staffers to handle the requests
that have consumed "just under 4,000 hours,'' forcing it to raise taxes
to pay for $1 million in legal fees.
Rich Templin, lobbyist for the AFL-CIO and a member of the coalition,
acknowledged the abuses but said the measure went too far in its attempt
to correct them.
"This legislation is basically an atomic bomb to solve a cockroach
problem,"' he said. "If we don't want to pay attorneys fees, then don't
violate the law; don't keep things secret. The only time attorneys fees
are awarded is when the law has been broken."
State law allows the public to sue state agencies if they unlawfully
fail to provide a public record and the court is required to give the
case priority. If the individual making the records request prevails,
the agency must produce the records and pay attorneys fees.
According to the House staff analysis of the bill, "the public policy
behind awarding attorney fees is to encourage people to pursue their
right to access government records after an initial denial. Granting
attorney fees also makes it more likely that agencies will comply with
public records laws and deter improper denials of requests."
Rep. Jamie Grant, R-Tampa, said that people are abusing the system,
including making "sham public records requests" by making emails to
local officials appear like spam and then suing them when they fail to
comply with their request.
But the staff analysis also found that in December 2014, a judge in
Duval County didn't need the law to refuse attorneys fees in a case he
determined was an abuse of the process. The 1st District Court of Appeal
upheld his ruling in December 2015.
Rather than address the abuses narrowly, however, the committee
concluded that the best way was to let a court decide whether the local
government should pay for the lawsuit if the citizen prevails.
"It does not mean that you will not get legal fees,'' said Rep. Jimmie
Smith, R-Inverness, but it gives the judge the opportunity to protect
small cities and counties. "This is a growing cottage industry."
Rep. Ed Narain of Tampa was among the two Democrats on the committee who
supported the bill. Rep. Dwayne Taylor of Daytona Beach was the other.
"It's apparent that the practice of this is becoming extremely
burdensome and is creating an industry that never should have been
created in the first place," Narain said. "I do trust our judges. I
believe they will make the right decision in the right cases.''
Grant also criticized opponents for not trying to come up with a better
alternative and appear to be "okay overlooking these borderline
Steube defended the bill and said he would have preferred to have a more
aggressive bill. He said there are more than 100 instances in Florida
law where the court is given the discretion to award attorneys fees or
"We are not taking away people's rights to get that information; we are
simply putting it into the discretion of the court,'' he said.