Proposal could roll back access to public records, watchdogs say

TALLAHASSEE — State senators on Tuesday gave their first approval to legislation that open-government advocates say threatens to roll back access to public records in Florida.

The bill (SB 80) would let judges decide whether or not to force government agencies to pay attorney fees when they illegally block access to records. Current law requires that agencies pay for the lawyers of members of the public who successfully sue them over records.

Senators on the Government Oversight and Accountability Committee approved the bill on a 4-3 party line vote Tuesday morning with Republicans in favor and Democrats opposed.

It‘s a top priority for local officials throughout the state who say the measure, sponsored by Sarasota Republican Sen. Greg Steube, will end a "cottage industry" of people who profit by suing government agencies over technical violations of record laws.

"Clearly, we have a rash of people abusing this wonderful privilege to get information and open government," said state Sen. Dennis Baxley, R-Ocala, who chairs the government oversight committee. "They‘re just abusing it to shake down people and troll for things to sue people about, and I think it needed some discipline."

But open-government advocates, led by the First Amendment Foundation, say the bill would have a chilling effect on the constitutional right to access government documents.

"There are ways to address the problem short of punishing the 99 percent of people who make public record requests simply because they want the records," said Barbara Petersen, president of the First Amendment Foundation, which fights for open government in the state. "The only avenue for enforcement a citizen has is going to court."

Lawyers sometimes charge tens of thousands of dollars to bring public record cases, and the possibility that a higher court might not award attorney fees could encourage public agencies to appeal cases, driving costs for citizens even higher.

"People are not going to file lawsuits to enforce their constitutional right of access because they simply don‘t have the money," Petersen said.

Before lawmakers voted Tuesday, groups representing several public entities urged them to pass the legislation and pointed to examples of cases they believed were meant to harass.

"I defend state attorneys in ridiculous cases where people play ‘gotcha,‘ " said Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association. "And courts must give them legal fees."

He thinks lawyers will still be willing to take legitimate public record lawsuits. But Rich Templin, lobbyist for the Florida AFL/CIO, which is fighting alongside the First Amendment Foundation for better public record access, said the state is overreacting.

"I find it troubling that we‘re willing to change the legal enforcement of a constitutional right because of a few jerks out there that are abusing the public trust," Templin said.

Last year, Sen. René García, R-Hialeah, filed similar legislation but reached a compromise between the League of Cities and the First Amendment Foundation. The compromise, which passed unanimously but did not get a vote in the House, would have required that courts grant legal fees in all cases unless the judge believes a record request was filed primarily to harass.

García proposed the compromise again this year, but Baxley said he does not plan to give it a hearing. Lobbyists for the Florida League of Cities say either proposal would satisfy them.