The one word that could weaken Florida’s public records laws

When reporters in Florida are faced with government officials who refuse to turn over records the way the law requires—within a reasonable time frame and for a reasonable charge—they have two good options. The first is to expose the officials, as Nicole Rodriguez of the Treasure Coast Newspapers did with an article last week pointing out that employees in the city of Port St. Lucie take far longer to turn over routine records, and often charge more, than neighboring governments.

Rodriguez told me she decided to pursue the story after seeing emails to the city manager from regular citizens—non-reporters—who shared her experience of getting the run-around from the city. She rightly included private citizens’ complaints in her article. While Florida reporters often take a certain pride of ownership in the state’s unusually strong public records law, it is not ours alone.

“Once residents were having issues as well, we felt it was an important story,” she said. “They really don’t have an outlet to speak out about their hassles.”

Port St. Lucie officials would do well to listen to the concerns of citizens, because the second option Florida reporters and regular citizens have—going to court—can get very expensive.

One of the things that makes Florida’s public records laws so strong is very specific language that forces agencies who lose public records lawsuits to pay the attorneys’ fees of the people who sued. At the moment, this is not optional. When a public agency loses, the statute says, a judge “shall” award attorneys’ fees to the plaintiff in Florida.

This is why independent journalist Gina Edwards, who writes about Naples news on the website, was able to sue the clerk of Collier County for charging more than is allowed by statute to give her records.

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Edwards’ attorneys agreed to take the case on a contingency basis, meaning they didn’t charge her anything and expected to get their fee paid for by the clerk once they won. And they did win at trial, with a circuit judge ruling the clerk could not charge $350 for a CD with a bunch of emails on it. Instead, the clerk could charge $2—the cost of the CD.

The clerk, using taxpayer money, chose to appeal the decision. Last week, the Second District Court of Appeal ruled that the trial judge was right. The price was $2. The Naples Daily News reported that the clerk’s office had spent $67,000 on the case by February of last year, before the appeal had been argued.

And now Edwards’ attorneys are going to petition a judge to order that their fee be paid by the taxpayers of Collier County.

“There is no possible way I could challenge the clerk, who has unlimited taxpayer money available to him, if my attorneys hadn’t agreed to take the case on a contingency basis,” Edwards said. “Going after these issues in a civil suit is the only recourse citizens have to get some sort of relief.”

Edwards’ lead attorney, Marrett Hanna, told me she wouldn’t have been able to take the case, or many other public records cases, without the fee provision in the law.

“I don’t know how the average American could afford to pay for this,” she said. “It’s going to be upwards of $30,000 or $40,000, probably more.”

The prospect of paying those fees is a strong incentive for government officials to play by the rules, so that litigation is unnecessary. Unfortunately, the provision in state law that creates this incentive is now in danger. The legislature is currently considering a measure to weaken the state’s public records law by changing one little word—“shall” award attorneys fees would become “may.” In other words, plaintiffs’ attorneys in public records suits could never be guaranteed—no matter how egregious the behavior of government officials—that they would be paid for their work. That would make litigation less likely, and the threat of a suit a less effective deterrent to misbehavior.

Barbara Petersen, of the First Amendment Foundation, said she was told the proposed measure had been prompted by abuse of the public records law, through requests designed to lead to judgments against government contractors (my colleague Jonathan Peters wrote about the issue in 2014). But the legislature already addressed that problem last year, making government employees responsible for answering public records requests. This further proposed change isn’t targeted to the concerns, and risks hiding government business from the public–leaving more outcomes to the whim of a bureaucrat and the mood of a judge

“There may be a handful of people who are scamming, but 99 percent of the public records requests that are made are because people want the public records,” Petersen said. “You’re going to take our only recourse to force public officials to comply with the law…. The anti-Sunshine attitude, it really does shock me. I don’t know that I’ve ever seen it this bad before.”

So now, it’s time for Florida media outlets to use the other weapon they’ve got in the battle to keep government records open: exposure. Fortunately, they’ve been doing just that.

Soon after the bill was introduced, news outlets began to raise the alarm, with warnings like this op-ed in the Columbia News Journal by a former state official, this editorial in The St. Augustine Record, and this opinion piece in Context Florida. The Tampa Bay Times’ columnist John Romano weighed in. Noah Pransky, of the Tampa TV station WTSP, alerted his viewers.

The first vote on the measure this week prompted more coverage around the state. As The Bradenton Herald noted in a strong editorial Thursday, this is “a misguided effort aimed at a non-problem.”

More coverage like this is needed. While the public records law does not belong to journalists alone, we have a special responsibility to defend it.

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Susannah Nesmith is CJR’s correspondent for Florida, Georgia, and Alabama. She is a freelance writer based in Miami with more than 25 years working for regional and national outlets. Follow her on Twitter @susannahnesmith.