The basic premise of Florida’s Public Records Act is that the public has a right to access any records dealing with official government business. Its purpose is to promote public awareness and knowledge of government actions to ensure the government remains accountable to the people. The “teeth” of the Act is a statute which provides that if a plaintiff demonstrates that a government agency unlawfully refused to provide access to a public record, the court must award reasonable attorneys’ fees and costs. This provision is intended to encourage the government to voluntarily provide access and to compensate members of the public who are forced to litigate to compel compliance.
Despite having what many consider to be the gold standard of public records laws, government agencies across the State of Florida often unlawfully refuse to make public records available. This widespread noncompliance wastes a great amount of public money on litigation, currently the only mechanism to force government compliance. Everyone agrees that there should be less litigation, but government agencies seem to be uninterested in implementing training or other simple measures aimed at increasing compliance.
Instead, government representatives, namely the Florida League of Cities, are attempting to change the very law itself to avoid being held accountable for their violations. As they see it, the problem is not with their flagrant violations of the Public Records Act, but with “abusers” who would bring attention to those violations. The misguided bills being proposed are aimed at addressing exaggerated or nonexistent abuses, ignore the real problem of pervasive noncompliance, and open the door to even more violations and litigation. Not surprisingly, Senator Rene Garcia who introduced the bill recently admitted he has never made a public records request.
As a frequent requestor of public records, and as an attorney who has litigated many public records cases across the state, I would like to offer the perspective of open government advocates. I will explain the problems with the proposed bills, and expose some of the misinformation coming from various government agencies about alleged public records abuses. I will then address some of the real problems with the Public Records Act, and offer some possible solutions. Lastly, I will provide contact information and ask that readers interested in these issues contact members of the State Affairs Committee who will consider these awful bills on Thursday, February 25, 2016.
PROBLEMS WITH PROPOSED AMENDMENTS
5-Day Notice. A number of onerous changes have been considered, but in its current form (CS/CS/CS/SB 1220), the proposed bill would only award attorneys’ fees for an unlawful refusal to produce public records if the designated records custodian was provided written notice five days prior to filing suit. If this five-day notice requirement is intended to provide a “cure” period for the government, it would severely restrict the right to request public records in person or over the telephone, and would amount to requiring all requests to be submitted in writing. An agency could ignore any requests made in person or via telephone until they receive written notice. Essentially, this would open the door for public records violations, while simultaneously giving the violators a second bite at the apple of compliance.
Consider the following example: a requestor goes to City Hall in person and requests a readily-accessible public record to which no exemptions apply. Instead of providing access, the custodian insists that the requestor submit her request in writing, disclose her motivation or purpose, complete a form disclosing her personal contact information, or submit to any number of unlawful preconditions. If the notice provision is interpreted to provide a five-day cure period, such violations will go unaddressed by the courts because the agency could simply comply upon receiving written notice. If this notice requirement is not meant to allow the government to cure the violation, it is pointless and ineffectual. Further, as this portion of the bill is ambiguous regarding whether or not it provides a cure period, it could result in unnecessary litigation where agencies incorrectly assume they have the ability to cure a violation before suit can be filed.
Harassment or Meant to Cause a Violation. The bill also provides that a court may not award attorneys’ fees where the request “was made primarily to harass the agency or to cause a violation of [the Public Records Act].” While this is vague, it is also inconsistent with a slew of existing case law which holds that a requestor’s motivation or purpose is irrelevant. Current law properly simplifies the inquiry and focuses on the sole issue of whether the government complied with the law. Many requestors are trying to uncover government corruption, often by the police. If, in addition to sacrificing their anonymity by pursuing a lawsuit, they will be forced to further divulge their motivation or purpose, chances are they will not litigate for fear of retribution. This provision would have a broad chilling effect and is not a tailored solution to the isolated cases of alleged abuse.
Ironically, in many situations, this amendment will also dramatically increase the waste of public money. Where agencies might otherwise settle a clear-cut violation of the law, they will instead assert an improper motive as a defense. The litigation on this issue alone will dramatically increase the attorney fees on both sides.
Additionally, the proposed amendment does not prevent a person from harassing an agency through public records requests. It stops judges from awarding attorneys’ fees where the government violated the law if the underlying request was intended to harass. Thus, the proposed amendment opens the door for agencies to ignore any public records request they decide amounts to harassment. Instead of preventing the few lawsuits involving actual harassment, this provision will lead to more lawsuits where the government unjustifiably finds complying with a request inconvenient or burdensome.
As demonstrated by the League of Cities’ Legislative Brief on this issue, its constituents consider normal requests to be scheming. The following is cited as an example of public records abuse: “City of Belleair Beach, Town of Greenwood, Town of Indialantic and numerous other municipalities have received public records requests for city personnel information from 2008-2013, specifically seeking name, position, mailing address, salary, etc. in a specified format.” That a straight-forward request such as this would be an example of an abusive tactic demonstrates the danger in authorizing agencies to disregard public records requests they consider harassing.
“PREDATORY PUBLIC RECORDS REQUESTS”
Having addressed the problems that the proposed legislation will create, let’s consider the alleged problems the bills are supposed to confront.
Inundation. The League of Cities recently quoted an editorial from the Palm Beach Post arguing that the emphasis of sunshine advocates on transparency is misguided and naïve: “Florida’s public records law lends itself to abuse by extortionists who inundate local governments with hundreds of requests for records and then sue for attorneys’ fees – when, inevitably, the overwhelmed local government cannot comply.” Likewise, many of the examples of alleged abuse cited in their Legislative Brief concern situations where agencies have received many public records requests.
But this argument is completely baseless. In its current form, the Public Records Act does not impose any sort of hard-and-fast deadline for an a agency to produce public records. It simply requires that agencies produce public records within a reasonable time. In determining whether a delay in production is reasonable, courts consider, among other things, the amount of public records requests the agency receives, the nature of the requests (e.g., whether redactions are necessary) and volume of the requests.
For a plaintiff to show that a delay amounted to an unlawful refusal which would entitle them to an award of attorneys’ fees, she must show that, all things considered, the government agency acted unreasonably under the circumstances. Anyone attempting to overwhelm an agency with requests would be laying the foundation for an extended and justified delay. Additionally, the government can always impose a special service charge for the time and expense of responding to extensive requests. Therefore, the alleged problem of abusive requests, which really amount to voluminous and extensive requests, is already addressed by statutory provisions allowing the agency to charge the requestor for the use of government time and resources.
Photography. On January 28, 2016, the League of Cities claimed “It is clear that public records laws are being abused, and others are taking notice.” The assertion was accompanied by a link to a report called “Predatory Public Records Requests,” issued by Florida TaxWatch. But this supposed corroboration primarily cites to members’ responses to a 2014 public records survey conducted by the Florida League of Cities itself. In other words, the report is not affirmation, but amounts to the product of an echo chamber of public records violators.
I recently had the opportunity to speak with Bob Nave, the author of the report. I questioned him, among other things, about the provision excluding attorneys’ fees where a public records request was meant to cause a violation of the Public Records Act. What could such a request look like, I asked. After repeated attempts, the only example Mr. Nave could muster was a requestor who films her in-person request and then files suit when the government is “unfamiliar with the law.” And there you have it. These amendments are not designed to combat fraudsters abusing the government; they are designed to prevent the lawsuits which result from government violations of the public records law.
When a lawsuit stems from a request that was made in person or over the telephone, inevitably there is a disagreement over what was actually said by both parties. To clear up the facts and to gain awareness for their cause, public records advocates often record their interactions with government officials. This might be seen as a win-win for anyone interested in the actual facts, but government officials and their representatives often cite this is a prime example of a provocative scheme intended to cause a violation of the public records law. However, public officials, in a public space, conducting government business have no expectation of privacy. The lawful recording by a member of the public cannot be taken seriously as a problem necessitating a change in the law.
Spam E-Mails. In my practice, I have encountered multiple agencies who claimed their failure to respond to a public records request was because the requestor, intentionally or not, disguised it as spam. The argument can be used in settlement negotiations to make a violation appear inadvertent, or it can be used as an affirmative defense to argue that the agency never actually received the request. Even where a request is genuinely mistaken for spam, this is usually not because of some trick by the requestor, but because the recipient has received no public records training. Multiple agencies have made this argument even where the e-mail’s subject line is “PUBLIC RECORDS REQUEST.” This argument is made often enough that some of my clients have resorted to using various e-mail tracking services which provide read receipts listing the dates and times when an e-mail is opened, how long it is open, to whom it gets forwarded, as well as other information about the recipients’ computer(s). A number of my cases have resolved expeditiously when the read receipts showed incredible amounts of time spent reading and forwarding the request, disproving the fiction that it was mistaken for spam.
Additionally, this is not an abusive scheme that necessitates legislative attention. In the only known instance of a court finding that a request was disguised as spam, they refused to award attorneys’ fees.
Requests Embedded In E-Mail Thread. According to the League of Cities, a primary example of “schemes… designed to do nothing more than raid the public treasury at the expense of tax payers,” occurred when a “requestor sends long emails and email strings containing public records requests ’embedded’ within the emails.” The City of Oldsmar is cited as the victim. Having obtained a copy of the e-mail in question, and after speaking to Ann Nixon, the City Clerk and a true public servant, I can say that the League of Cities has not accurately represented this situation. For starters, the e-mail’s subject line reads “THIS IS A PUBLIC RECORDS REQUEST.” The exchange proceeds in this way: (1) requestor submits e-mail with the desired records set apart in bold font; (2) the City sends responsive e-mail, promptly acknowledging receipt as required by law; (3) the City then follows up and asks if the requestor would like a cost estimate; (4) the requestor responds simply “Yes please.” The last response was at the very end of the e-mail chain, and admittedly could have been easily overlooked. It was however, as Nixon readily admits, not intended to trick or deceive the City, and not a recurring problem that should be used to justify curtailing the public’s rights.
Number Games. Another example of alleged abuse of public records which the League of Cities has trotted out is “A ‘public records’ seeking individual claims to have filed almost 200 lawsuits over a seven-year period.” This is apparently supposed to give the impression that, not only are there public records abuses, but they are widespread. On the other hand, this information also supports the conclusion that there is widespread noncompliance with public records laws. Indeed, various audits by public records advocates and public interest groups, like the Florida Society of News Editors, have demonstrated the pervasive nature of public records violations, often approaching 50% noncompliance rates. Moreover, the League of Cities’ Legislative Brief fails to mention that the same individual who filed 200-odd lawsuits claims to have a success rate of 98%.
REAL PROBLEMS WITH THE PUBLIC RECORDS ACT
Untrained “Front Line” Agency Staff. The most common violators of the Public Records Act are not corrupt officials attempting to conceal their misconduct. They are “front line” agency staff who are untrained and unfamiliar with their obligations under the law. Any serious conversation about avoiding the cost of public records litigation must involve some effort to train and educate all staff. The Public Records Act should be amended to require that staff members interacting with the public submit to a course on the basics of Florida’s public records laws.
These front line folks are the people the public necessarily has to deal with, and they should be trained to avoid obvious violations of the law. The bills being pushed by the League of Cities, on the other hand, permit these folks to remain untrained and constantly violating the law. Their solution ignores the real problem, results in requests getting bottlenecked through a single, designated records custodian, and would prevent courts from addressing repeated violations of the law.
Scattered Exemptions. The Public Records Act has roughly 1,500 exemptions. Some are added each year. The problem is that rather than being listed within the Public Records Act itself, the great majority of the exemptions are strewn throughout the Florida Statutes. The solution is simple and should be supported by both public records advocates as well as those in government. Each exemption to the Public Records Act should be listed within the Act itself. Each time a new exemption is approved by the Legislature, the list should be amended to generally describe it, with a citation to the statute containing the exemption.
Government Attorneys. I would be remiss in discussing the Public Records Act by not addressing the serious issue of how poorly the government can be represented by its attorneys. Often the government must hire outside counsel who have a huge financial incentive to fight even an egregious violation of the law. These lawyers bring an adversarial approach to the litigation which is misplaced where their client (i.e., the public) is paying for both sides. Conversely, many salaried government lawyers are simply unfamiliar with the Public Records Act and they file amateurish pleadings, desperately grasping for a cognizable defense. These lawyers unnecessarily increase the cost of litigation because it takes a lot of time to address their futile arguments─ and the public is paying for the whole exercise.
Consider the example of a case against the City of Greenacres. Keep in mind, this case was listed as a “more egregious example of misuse of public records requests” by the sleuths at Florida TaxWatch. In this case, the City Clerk violated the public records laws by refusing to release the requested police records until my client completed a form which would have required him to disclose his personal contact information.
Under established law, requestors may remain anonymous and cannot be required to complete a form or disclose their contact information. Faced with a clear-cut violation of the law, the City Attorney should have attempted to settle the lawsuit early in the case. Indeed, as a taxpayer, my policy is to always attempt to settle cases as early as possible.
Instead of limiting the waste of public money, the City Attorney decided to fight a losing battle. She filed a silly Motion to Dismiss, arguing, among other things, that the City Clerk repeatedly told my client to complete the form because it was necessary for the City to provide an estimate of costs. This argument overlooks the obvious counter that the Clerk could have provided the estimate of costs in the same e-mails in which she imposed the unlawful conditions. Making matters worse, these arguments swayed the local trial judge. On appeal, the Fourth District Court of Appeal reversed, issuing an opinion on the matter which confirmed the unlawful nature of the City’s refusal to release the records. A case that could have settled for roughly $2,000.00 cost the public nearly $30,000.00.
One solution to the problem of competent legal representation for government agencies could be the creation of a public records agency or department within the state government. Upon being sued, local governments could be required to notify the state entity and consult with their lawyers. Even if the recommendations of the state agency are not binding, exposure to the opinions of an objective expert would likely avoid many protracted legal battles.
Loophole to Avoid Special Service Charges. If the nature or volume of a public records request will require “extensive” government resources, the government can charge a special service charge to recoup costs. Based on my experience, most agencies interpret “extensive” to mean more than thirty minutes to produce the records. If, for example, a requestor asks for a mayor’s e-mails from last year, and there are thousands of responsive records, the agency will likely give a very large estimate for a special service charge. A savvy requestor could then cancel his request, and simply break it up into smaller parts, none of which would amount to an extensive request. In effect, a requestor could force the government to expend the exact same amount of resources, but avoid the charges which would normally apply. I am not aware of a great way to address this.
Small Agencies. I recently spoke with Cindy Croxton, the Town Clerk for the Town of Greenwood, one of the alleged victims of public records abuses addressed above. Though she did not describe predatory public records scheming, she did identify a real problem. Her Town is a one-light town with few residents. She has a small staff and obsolete computer resources. Even a normal public records request often results in the expenditure of extensive staff time. While she could often charge a special service charge, she generously does not. One solution would be to have the State supply local governments with various software to make compliance less burdensome. Software to help organize, search, and redact public records would also have the benefit of saving requestors from the special service charge as less of their requests will qualify as extensive. Likewise, the practice of publishing public records online could reduce the total number of requests.
CONCLUSION
In sum, public records litigation is a real and expensive problem. The best solution is to require basic training for anyone in a position to receive public records requests. The proposed bills, though, confront isolated situations of fake or exaggerated problems and offer solutions which will limit transparency and increase litigation. As our violator-in-chief, Governor Rick Scott, is not likely to veto the bill, it is paramount that open government advocates contact the members of the State Affairs Committee, which will meet Thursday, February 25, 2016 to consider the bill:
- Caldwell, Matt [R] (Chair)
- Combee, Neil [R] (Vice-Chair)
- Taylor, Dwayne L. [D] (Dem. Ranking Member)
- Albritton, Ben [R]
- Bileca, Michael [R]
- Cortes, John [D]
- Cummings, W. Travis [R]
- Drake, Brad [R]
- Fullwood, Reggie [D]
- Gaetz, Matt [R]
- Goodson, Tom [R]
- Harrison, Shawn [R]
- La Rosa, Mike [R]
- Murphy, Amanda [D]
- Pilon, Ray [R]
- Raburn, Jake [R]
- Slosberg, Irving “Irv” [D]
- Watson, Jr., Clovis [D]
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