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Compromise reached in attorneys fees provision of controversial public records bill

Public records advocates won support on Wednesday for an amendment that defuses their concerns over a controversial bill targeting people who attempt to misuse the state's public records laws to extort money from government.

The compromise, worked out between the First Amendment Foundation, the League of Cities and the bill's sponsor, Sen. Rene Garcia, R-Hialeah. reinstates the requirement in SB 1220 that a judge shall award attorneys fees in lawsuit when governments violate the state public records laws.

The original proposal, SB 1220, removed the requirement that judges award attorneys fees and instead gave judges the discretion, prompting public records advocates to warn that it could gut the state's Sunshine laws by removing the only tool the public has to seek redress when government officials violate the law.

The bill is a top priority of the League of Cities, which proposed the measure as a remedy to stop a handful of abusive law firms and individuals who file frivolous or deceptive public records requests in an attempt to churn legal fees.

The Senate Fiscal Policy Committee voted unanimously for the amendment to rewrite the bill.

"This strike all amendment is designed to address concerns that the language will cut off access to public records,'' Garcia told the committee.

"While this was never the intent of the bill I wanted every opportunity for interested stakeholders who represent Florida taxpayers and residents to play a part in crafting a bill that maintains the integrity of the public records laws in Florida while eliminating the possibility that the law could be used in malicious ways."

The new language requires that the judge "shall" award attorneys fees and court costs to a plaintiff if the judge determines that the public agency violated the law and the person making the request gave five days notice before filing the lawsuit.

To appease the cities, the bill gives the judge discretion to not award attorney fees if the court determines that the primary purpose of the public records request was to harass the agency or trick officials into violating the public records law.

Agencies are also required to let the public know who it has designated as its custodian of public record and, if it fails to do so, then the citizen requesting the documents is not obligated to provide five days notice before filing a lawsuit.

Barbara Petersen, president of the First Amendment Foundation which sought the amendment, commended Garcia for being willing to work with all sides.

"We've worked out a compromise that I think both addresses the predatory public records requests while protecting the citizens of this state who simply want to access to public records,'' Petersen told the committee.

(The Miami Herald and Tampa Bay Times are both members of the First Amendment Foundation.)

"It's so great when everything comes together,'' said Sen. Anitere Flores, R-Miami, chair of the committee.

Florida’s Constitution requires that the public has a right to access public documents, but Chapter 119 of the Florida Public Records Act gives individuals the ability to enforce that right only by filing a lawsuit against an agency. The courts must give the lawsuits priority over other cases and, if the judge finds that an agency violated the law, the court must order the agency to turn over the records as well as pay costs and attorneys fees associated with the case. 

The law allows for citizens to be awarded attorneys fees to encourage people to pursue their right to access government records and prevent public agencies from violating the public records laws. The bill would remove the requirement that the legal fees be paid by changing the requirement that a judge award legal fees from “shall” to “may.”

 SB 1220 is now ready for a floor vote in the Senate. A similar measure, HB 1021, sponsored by Rep. Greg Steube, R-Sarasota, passed two committees with near-unanimous votes in the House and next must be heard by the State Affairs Committee. The House bill does not include the compromise language.