Judge will have to agree public records lawsuits are proper

Florida has been the model by which other states have crafted their public records and open meetings laws.  “Government in the Sunshine” was the mandate of the citizens of this state, it is incorporated into the Florida Constitution as well as our state statutes.

Today the legislature sent a bill to the governor that, if signed, will take away the only certain recourse available to a citizen to hold government officials accountable if they refuse access to publicly available records.  Both the House and Senate chambers unanimously passed CS/SB 80 that will amend Section 119.12 Florida Statutes.

Historic City News has joined dozens of other news agencies, open government advocates, and public media organizations who have already criticized the expected-to-be-signed bill.  At issue is the creation of a law giving judges the power to decide whether a lawsuit filed to recover reasonable costs of enforcement, including attorney fees, has been brought for an “improper purpose”.

“Section 119 Florida Statutes requires custodians of government records to make them available for inspection or copying, unless specifically protected,” Michael Gold, Historic City News editor wrote in a letter to members of the St Johns County legislative delegation.  “So, to me, unless you sue the custodian after they have given you the records, or, for release of specifically protected confidential information, I don’t see how you can conceive of an improper purpose.  They either turn the records over or they don’t.”

The legislators who spoke to Historic City News say that they have only good intentions.  We say the road to Hell is paved with good intentions.  They say they are resolved to eliminate a scheme to manufacture impossible-to-answer records requests solely for the purpose of bringing an inevitable lawsuit for costs and fees when the agency doesn’t respond.

If the court determines there was an improper purpose:

• the court may not assess and award the reasonable costs of enforcement, including reasonable attorney fees, to the complainant

and

• the court shall assess and award against the complainant and to the agency the reasonable costs, including reasonable attorney fees, incurred by the agency in responding to the civil action.

The bill uses the term “improper purpose” in referring to such lawsuits and further describes those suits as being brought for a “frivolous purpose”.

In its approved form, the language of the bill addresses more than just the frivolous lawsuits decried by the legislators.  In its legal definition, the bill specifically says, in part, “the term improper purpose means a request to inspect or copy a public record or to participate in the civil action primarily to cause a violation of this chapter or for a frivolous purpose.”

It is one thing for a judge to determine if bringing a lawsuit is frivolous, but it is quite another to invite them to determine if the initial request to inspect or copy a public record is “frivolous”.

In any event, the agency errs if it unlawfully refuses to permit a public record to be inspected or copied and, if taken to court, the complainant provided written notice identifying the public record request to the agency’s custodian of public records at least 5 business days before filing the civil action.

The court shall determine whether the complainant requested to inspect or copy a public record or participated in the civil action for an improper purpose.

Even if the complainant prevails in the civil action, payments by the responsible agency may include only the reasonable costs of enforcement, including reasonable attorney fees, directly attributable to the lawsuit brought to enforce the provisions of the chapter.