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See Opinion Article on last year's similar bill
Florida First Amendment Foundation Analysis:
"Senate Bill 80 will amend Florida Statute §119.12 to make the award of attorney’s fees discretionary even when a judge has made a finding that a public agency has wrongfully withheld public records from inspection.
The Florida Public Records Law was created in 1909 to guarantee a citizen’s right to open government. The law states that “it is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.” When the government refuses to comply with a public record request, a citizen’s only real recourse is to go to court. The law currently provides for a citizen’s legal fees to be paid for by the government entity if it is found non-compliant. The attorney fee provision creates a level playing field for someone who can afford to pay for an attorney and those who cannot. With a simple change of one word, “shall” to “may,” the public will no longer be guaranteed fair access to what is rightfully theirs.
Let us be clear: if this change is made a judge may not award a citizen attorney’s fees even if the judge finds in favor of the citizen.
Public records laws are designed to provide a meaningful right of government oversight and accountability; access laws reduce the opportunity for governmental abuse and help keep public servants honest and accountable for their actions. 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. The result will be fewer challenges brought by citizens, which will certainly result in less government transparency.
This proposed change in the law is a one-way street against citizens’ taxpayers. If SB 80 becomes law, a citizen who successfully sues a government agency or official for an unlawful denial of public records access, might be awarded reasonable attorneys fees incurred in pressing his or her case. But the attorney fees incurred by the agency or official will be paid. By who? Florida’s taxpayers. As we saw in several recent lawsuits against Governor Scott, over half a million dollars was paid in his defense in just one case that alleged he and several members of his staff violated state law when they created email accounts to hide their communications from the public. The taxpayers footed those attorney fee bills.
Rather than reforming the public records law— a specious claim made last year — SB 80 will essentially gut our right of access to government records. Who can afford to sue government for a violation of that right if not guaranteed attorney’s fees if successful?
Members of the Senate Governmental Oversight and Accountability Committee
Senator Dennis Baxley, Chair baxley.dennis@flsenate.gov 850/487-5012
Senator Frank Artiles, Vice Chair artiles.frank@flsenate.gov 850/487/5040
Senator Bill Galvano galvano.bill@flsenate.gov 850/487-5021
Senator Denise Grimsley grimsley.denise@flsenate.gov 850/487-5026
Senator Kevin Rader rader.kevin@flsenate.gov 850/487-5029
Senator Darryl Ervin Rouson rouson.darryl@flsenate.gov 850/487-5019
Senator Linda Stewart stewart.linda@flsenate.gov 850/487-5013
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Support Open Government and the Public Records Law: Oppose Florida Senate Bill 80
By Gina Edwards
Punishing reporters. Blocking access to government records. These things should scare anyone who professes to love freedom.
Judicial opinions should have consequences. I fought government secrecy and won.
Three times now, I’ve had my day in court. And three times I’ve won against an abusive Florida elected official who charged me illegal and retaliatory public records fees in response to my investigative reporting.
But almost three years later, my attorneys have yet to be paid.
My lawyers won. But they have yet to be paid. The elected official who lost has paid more than $120,000 in legal fees – all taxpayer money – to his lawyers.
The loser, the government, is supposed to pay the legal fees of an aggrieved citizen. I have no other remedy under the current law.
Now, Senate Bill 80, filed by Sen. Greg Steube (R-Sarasota) would eliminate mandatory payment of legal fees for a citizen who wins a public records case in court. Going to court should be the last resort. But without enforcement of the public records law, what choice does a citizen have?
If anything, my case should show that the current system under the public records law is horribly broken and open to major abuse. SB 80 guts weak enforcement of the public records law we have now.
Government in secret is not government by the people. Abuse of power can go unchecked when we don’t have meaningful enforcement of the public records law.
After my investigative reporting exposed abusive conduct by an elected official who sought to punish the political candidate who ran against him, he retaliated by charging illegal and high fees for public records to shield himself from further embarrassment and scrutiny by the public.
In short, he jacked up the public records fees because he didn’t want the public to know. Without anyone to enforce the law on my behalf, I went to court.
First, I won after a preliminary hearing before Collier Circuit Judge Fred Hardt. The elected Clerk, Collier Clerk of Courts Dwight Brock, would not accept the circuit judge’s ruling and demanded an expensive trial. Then, I won at trial. The elected Clerk appealed and sought to overturn the judge’s ruling. Then, I won again on appeal. That was January 2016.
In May, my lawyer, Giovani Mesa, told a reporter he expected a fee hearing in a matter of weeks. That hasn’t happened.
The Clerk has stalled the attorney fee hearing for more than a year now. The Clerk has sought to litigate the fees, seeking discovery. He knows my lawyers, at considerable risk, took my case on contingent fee. Any time they spend litigating the recovery of legal fees is like flushing money down the drain. It’s not money they can recoup under the law. Only the fees in the actual case can be recovered.
The Clerk offered to settle – offering $10,000 to us to cover the legal fees. It’s a grand insult given that he’s spent 10 times that amount using taxpayer money.
As the aggrieved citizen, I can collect no money in the case, even though it has cost me an enormous amount of time. The elected Clerk used the threat of his appeal to intimidate me from seeking additional public records, saying he reserved the right to retroactively seek higher fees from me if he won the appeal. Chilling.
Last year I drove to Tallahassee to speak against this proposed law filed by Sen. Steube. Since that time, citizens from around the state have emailed me about their own difficulties obtaining public records. Some have felt helpless in the face of stonewalling and abuse by government bureaucrats who are looking out for their own jobs or looking to protect their elected bosses or the interests of powerful lobbyists.
Government in the dark is wrong. Citizens, not the bureaucracies and governments represented by the League of Cities, need protection and enforcement of the public records law.
Every new exemption to the public records law is a costly regulation. Republicans who profess to support smaller government and less regulation should vote against this law and seek better enforcement of the existing law. Corruption and taxpayer waste flourish when public records are hard to obtain.
Here’s an idea: Allow judges to fine elected and public officials who violate the law and award punitive damages to wronged citizens and/or a trust fund to support enforcing the law.
Gina Edwards is a national award-winning investigative reporter and the founder of the investigative news site WatchdogCity.com.
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RELATED COVERAGE:
Brent Batten: Journalist’s public records dispute with Collier Clerk of Courts Dwight Brock running up legal bills
Excerpt from Editorial by News-Press
"Apparently, Collier County Clerk of Court believes he has the right to violate public records laws and charge exorbitant fees for documents because he does not like the tactics of an investigative reporter. It is wrong, vindictive and hurts anyone's ability to fairly gain access to a public record. And it breaks the law.
Clerk of Court Dwight Brock has lost once in court and is once again challenging a judge's decision striking down the $556 tab he wanted to charge investigative reporter Gina Edwards. We urge that any future court decisions also support the circuit court judge's ruling. Brock must abide by the law and not take his anger out on Edwards ...
It was Edwards' legal right to get the electronic information for the cost of a CD. It is also the right of anyone who seeks similar records. "
►See letter of support from the national Radio Television Digital News Association
►Naples Press Club Carole Greene: How much is a fair price for access to records?
►Brent Batten: Brock spent at least $67K on lawyers fighting journalist's suit
►See the Public Records Lawsuit Court Files with filings from both sides
►Oral Argument before Second District Court of Appeal
►Judge Hardt's Ruling After Trial
Related Naples City Desk Stories:
Docs turned over in public records lawsuit show deeper involvement by Brock, staff in audit
More than 300 pages of key documents surface after Brock’s office said all public records turned over
Public records lawsuit docs: Brock’s Audit Department structure violates government auditing standards
Two hats equal conflict: Brock’s Finance director signs off on hundreds of millions in payments, also serves as Internal Audit chief
Elected auditor Brock sics law enforcement on 2012 political challenger over housing grant; Naples City Desk investigation: Internal documents show Brock allegations false, misleading
Appraisals reviewed by Brocks own staff 2 years ago document construction Brock says not proven
Naples City Desk exclusive: No evidence Clerk’s money manager over $600 million portfolio has had annual evaluation since 2007
Clerk Brock & Sen. Richter signed deal to transfer county’s $600 million to firm with no BCC vote
County Manager, County Attorney didn’t know Brock switched custody of county's $600 million against contract with BCC, without vote
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