In Florida, citizens have a constitutional right to get copies of government records. State voters enshrined access to public records as a right in the Florida Constitution with an amendment they approved by an 81-19 margin in 1992.
But what good is that right if a citizen risks getting ensnared by the government in a ruinously expensive legal battle for exercising it?
As John Kennedy reported recently in the Sarasota Herald Tribune, "a growing number of cities, school boards and other government agencies across the nation are suing people seeking documents — forcing them to decide whether it's worth fighting for their request in court — at their own expense." Until now the practice has been infrequent in Florida, but its mere possibility already may be having a chilling effect on efforts by citizens to monitor their own government, according to some open-government advocates.
In a case that highlights the risks, a nonprofit environmental law firm that requested records from a closed-door meeting of the South Florida Water Management District was sued by the district. The meeting at issue led to an $18 million taxpayer-funded settlement for a mining company from the district and the Martin County Commission. "All we did was ask for records," Lisa Interlandi, a lawyer with the Everglades Law Center, told Kennedy. District lawyers also threatened to subpoena other citizens who requested records. A judge ruled in favor of the district's refusal to turn over records from the meeting. The case is now on appeal.
District lawyers contended the records request was a ploy to force the district to pay legal fees if the documents were not released promptly — a provision in the state's open-records law to deter governments from denying citizens access to public records. In fact, there have been a few notorious cases of unscrupulous law firms flooding small government agencies with frivolous records requests they can't possibly fulfill on time, and then filing suit to collect legal fees. But this case doesn't fit that pattern. Regardless, Florida judges have the authority, and have exercised it in other cases, to bar plaintiffs who abuse the law from recovering their fees.
Some Florida legislators, to their credit, have taken a stand for their constituents' constitutional right to know. During this year's legislative session, a bill sponsored by Republican Rep. Ray Rodrigues of Estero would have barred government agencies from suing anyone requesting public records. It passed the House 108-0, but its Senate counterpart, sponsored by Republican Keith Perry of Gainesville, died in that chamber's Judiciary Committee after the Florida League of Cities raised objections.
A league lobbyist, Casey Cook, argued to Kennedy that there are cases where the intervention of a judge is needed to determine whether a record can be released to the public or should be withheld under an exemption in the state's public records law or other privacy laws. Frank LoMonte, director of the University of Florida's Brechner Center for Freedom of Information, countered that agencies and their lawyers generally know what records can be released, and what must be withheld. And if an agency decides not to disclose records, the citizens who made the request can file their own lawsuit to challenge the refusal and seek a judge's ruling to resolve the matter.
But when the agencies file suit, they are turning the tables on citizens; the agencies are actually pre-empting citizens from being in a position to collect the legal fees to which they might be entitled if they had initiated and won a lawsuit. Ultimately, LoMonte considers the agency lawsuits a vengeful legal strategy to discourage citizens from requesting public records.
Again, citizens have a constitutional right to public records. If legislators believe in that right, and if their first loyalty is to citizens rather than government agencies, they won't miss another chance to pass a bill to protect it.
— This editorial first appeared in the Orlando Sentinel.