House panel clears what critics call ‘weakening’ of open government

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Despite the Florida House of Representatives’ frequent complaint of judicial overreach, a House panel Wednesday OK’d a measure that would put more power in the hands of judges as it possibly weakens the state’s public record law.

The Government Operations Subcommittee by a 12-0 vote approved the bill (HB 1021) that gives judges discretion whether to award attorney fees when a state or local government body is found to have unlawfully withheld access to a record. Now, the awarding of fees is mandatory.

The bill, sponsored by Sarasota Republican Greg Steube, is meant to stave off a recent trend of “bad actors” who have used bogus “public records enforcement lawsuits as a way to generate fees rather than to make lawful public records requests,” according to a staff analysis.

But critics say the bill could also hurt “good actors” who seek public records in good faith and get wrongfully shut out, adding that the mandatory fee award serves as a deterrent to breaking the law.

In a letter released by the Florida Sunshine Coalition, open-government advocate Barbara Petersen explained the “attorney fee provision creates a level playing field for someone who can afford to pay for an attorney and those who cannot.”

“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,” said Petersen, also the president of the First Amendment Foundation. “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,” she said.

Rich Templin, spokesman for the Florida AFL-CIO, told members the public record law already has been dying “the death of a thousand paper cuts” as more exemptions are added every year. Steube’s bill “is a cut to the jugular.”

“This legislation is an atomic bomb to solve a cockroach problem,” Templin added.

But Steube and others, including the Florida League of Cities, say the good intent behind the law is being abused by “gotcha” requests, with government taxpayers ultimately paying the price. The measure also includes a provision creating a requirement of a written notice to a government five days before any lawsuit is filed.

Steube also disputed concerns of giving judges’ more discretion, telling FloridaPolitics.com there are already “over 100 instances in our statutes that give discretion to our courts” in awarding attorney fees in other matters “so I certainly don’t see a problem.”

Some tricks include sending public records requests by email that are designed to look like spam and thus be ignored by the government’s spam filters. The filer later files suit, claiming his records request was wrongly ignored and denied.

Robert Ganger, the vice-mayor of tiny Gulf Stream in Palm Beach County, said his town of roughly 750 residents received 2,500 requests “in a relatively short period of time,” resulting in 40 lawsuits. To pay to defend them, the town tapped into its hurricane reserves and increased local taxes by 40 percent, Ganger told the committee.

Ultimately, he said, “the taxpayers of the state of Florida … are being abused and something has to be done about it.”

As Tampa GOP state Rep. Jamie Grant put it, “If we don’t do something about this cottage industry (of phony requests), it will grow into a village.”

Before joining Florida Politics, journalist and attorney James Rosica was state government reporter for The Tampa Tribune. He attended journalism school in Washington, D.C., working at dailies and weekly papers in Philadelphia after graduation. Rosica joined the Tallahassee Democrat in 1997, later moving to the courts beat, where he reported on the 2000 presidential recount. In 2005, Rosica left journalism to attend law school in Philadelphia, afterwards working part time for a public-interest law firm. Returning to writing, he covered three legislative sessions in Tallahassee for The Associated Press, before joining the Tribune’s re-opened Tallahassee bureau in 2013. He can be reached at jim@floridapolitics.com.