What may be the shortest bill to be heard by the Florida Legislature next year is unarguably one of the best. It comes to the rescue of a public records law that has been picked apart, piece by piece, in recent years.
It’s House Bill 195 by Rep. Ray Rodrigues, R-Estero. This is what it says:
“An agency that receives a request to inspect or copy a record may not respond to such request by filing a civil action against the individual or entity making the request.”
It aims to foil a scheme that makes it more difficult and expensive to see public records.
Chapter 119, the public records law, says citizens may inspect and copy any non-exempt record “at any reasonable time, under reasonable conditions.” The request must be answered promptly. If part of a record falls under an exemption, the agency must still provide the record with that part redacted. Citizens can go to court to try to get what was withheld. If the judges agree they should have it, the agency must pay their court costs and legal fees.
But some agencies — notably the South Florida Water Management District — have been responding to records requests by first going to court to sue the people who want the documents. The method is to ask a judge to declare the records exempt.
That’s an aggressive attack on Florida’s long-standing principle that public records are the public’s business.
The tactic stalls the request, often for months. It forces citizens to hire lawyers. And suits for declaratory judgment ordinarily make people bear your own costs, even when they win.
Imagine asking for a copy of your own accident report and the police sue you to say you shouldn’t have it.
Okay, that’s an extreme and unlikely example.
But it’s no more extreme than what the city of Orlando did in response to public records requests after the Pulse night club shooting, which took 49 lives in June 2016. Instead of simply citing various exemptions that applied to crime scene evidence, the city went straight to court. Many records have since been released, but people had to put in the time, trouble and expense of fighting for them.
“It made no sense to me,” says Rodrigues. “There were legitimate exemptions they could have cited.”
The water district pulled the same stunt when the Everglades Law Center asked for the minutes of the closed-door session, where board members approved a costly and controversial financial settlement with the rock mine developer, George Lindemann Jr.
Instead of simply refusing, which would have entitled the Law Center to sue the district in Palm Beach County, where it’s headquartered, the district filed a pre-emptive suit in Martin County against the law center, as well as against environmentalists Maggy Hurchalla and Donna Melzer. They live in Martin County, along with Lindemann himself, which gave the district a pretext for seeking that venue.
In so doing, it put the issue before a circuit judge, William Roby, who had already ruled favorably for Lindemann in the damage suit that resulted in a $4.3 million verdict against Hurchalla for allegedly interfering with his contract. The case is being appealed to the Florida Supreme Court.
Roby ruled against releasing the records and so, in large part, did the Fourth District Court of Appeal. The legal advice that persuaded the district to settle with Lindemann remains secret. The Supreme Court will be asked to overturn that, too, and it should.
Rodrigues’s bill got unanimous support in the House in the past two sessions, but a similar bill never made it past a gauntlet of Senate committees, where it was amended to be something less. It would continue to allow the pre-emptive suits for declaratory decree, but if a court finds the records are not exempt, the citizen seeking the records would be awarded “reasonable costs of enforcement, including reasonable attorney fees” against the agency.
It is Senate Bill 162 by Sen. Keith Perry, R-Gainesville.
His original bill modeled Rodrigues’, but was hammered by intense opposition from the Florida League of Cities, a tax-supported lobby that is no friend of Government in the Sunshine.
Something strange happens to some people whom voters trust to operate the government. They start to think it belongs to them.
SB 162 is better than the status quo, but not as good as HB 195. It would still shift the odds against citizens who seek records. However, it’s on the agenda of a meeting of the Committee on Government Oversight and Accountability, which should approve it in order to get it moving earlier than it did last year.
“I’m legitimately very optimistic that we’re going to get it done this time,” says Rodrigues.
Let’s all hope so.
—Orlando Sun Sentinal