Reopening a debate about Florida's Sunshine Law, a Senate committee Tuesday approved a proposal that would give judges discretion in deciding whether to award attorney fees in public-records lawsuits.
The proposal, approved in a 4-3 vote by the Senate Governmental Oversight and Accountability Committee, would make a major change because judges are now required to award attorney fees to people who successfully file lawsuits against government agencies that have improperly withheld public records.
Local governments have lobbied to make the fee awards discretionary because of what supporters of the bill (SB 80) describe as a "cottage industry." They say some people have bombarded local governments and other agencies with public-records requests as a strategy to file lawsuits and collect legal fees.
Arthur "Buddy" Jacobs, general counsel of the Florida Prosecuting Attorneys Association, said he defends state attorneys in cases in which people try to "play gotcha" in public-records cases.
"This is a great bill," Jacobs said. "It's something that needs to be done."
But critics say the bill would have a "chilling effect" on people pursuing legitimate public-records cases. That is because many people will be reluctant to file lawsuits if they are not assured of recouping legal fees when they win.
Barbara Petersen, president of the First Amendment Foundation, acknowledged problems with "predatory public requests" and said open-government advocates are trying to find a way to stop them. But she warned against taking the approach sought by Steube.
"Changing the fee provision from mandatory to permissive punishes those people who really want access to public records," Petersen said. "… When the fee provision is permissive, people are not going to file lawsuits to enforce their constitutional right of access because they simply don't have the money."
(Disclosure: The News Service of Florida is a member of the First Amendment Foundation.)
The bill, sponsored by Sen. Greg Steube, R-Sarasota, was approved on a party-line vote, with committee Chairman Dennis Baxley of Ocala and fellow Republicans Frank Artiles of Miami, Bill Galvano of Bradenton and Denise Grimsley of Sebring supporting it. The opponents were Democrats Kevin Rader of Delray Beach, Darryl Rouson of St. Petersburg and Linda Stewart of Orlando.
Steube also filed the proposal last year while he served in the House, but lawmakers did not pass it. A potential compromise in the Senate also died.
In addressing the committee Tuesday, Steube said the First Amendment Foundation and the Florida League of Cities sought to move forward last year with the compromise but that he did not think it was adequate to stop problems with abusive lawsuits. He also disputed that his bill would have a "chilling effect."
"It still allows people to file lawsuits. It still allows the award of attorneys' fees, and there are over 100 other instances in Florida statute that give the court discretion in the award of attorneys' fees," Steube said.
But Rouson said he was "persuaded by the principle of open government."
"I'm not willing to obliterate a uniform law just to get at a few bad actors," Rouson said. "We're not talking today about the thousands of cases where unlawful refusal was found and legitimate award of attorneys' fees was given."