Don’t gut Florida’s Sunshine Law

Over the years, Florida lawmakers have steadily chipped away at their constituents’ constitutional right of access to government by approving hundreds of exceptions to the state’s open-records and open-meetings laws. But now a couple of lawmakers are proposing to trade in their chisels for sledgehammers.

If their colleagues in the Legislature really believe in open government — starting with Senate President Andy Gardiner and House Speaker Steve Crisafulli — they won’t stand for it.

Bills filed recently by two Republicans, Sen. Rene Garcia, of Hialeah, and Rep. Greg Steube, of Sarasota, would create an escape route from accountability for state and local government agencies that illegally refuse to release public records. Their bills would eliminate the requirement in the state’s public records law that agencies reimburse the legal costs of citizens who successfully sue them.

Instead, it would be left to the whim of the courts to decide whether agencies would be ordered to pay up. There’s no standard in the bills to guide courts in this decision. Florida’s leading public records advocate, First Amendment Foundation President Barbara Petersen, calls the prospect of citizens getting reimbursed “a total crapshoot.”

The group leading the charge for this change, the Florida League of Cities, has portrayed it as a “reform” that would stop lawyers from hitting the jackpot, at taxpayers’ expense, by ensnaring local governments in technical violations of the public records law. While a few law firms have profited from this strategy, courts have begun cracking down. And the impact of the proposals from Garcia and Steube would go far beyond the handful of bad actors that the league has cited. All Floridians would be punished for the mischief of a small group of lawyers.

The bottom line is that most citizens won’t take on governments that defy the public records law in court if those citizens can’t be assured they’ll recover their own legal costs. And, regrettably, there is no other way for Floridians to enforce the law than to file suit against governments that violate it.

Petersen sensibly argues that lawmakers could preclude many public records lawsuits by creating a mechanism to enforce the law: Citizens confronted with a government’s refusal to release public records could first seek the intervention of a government office or even just a designated official specializing in mediating such disputes. A ruling from the office or official could secure public access to the records in question without litigation and the risk that taxpayers would end up stuck paying legal bills because agencies refused to follow the law. Other states have successfully adopted this approach.

It would be a mistake to characterize the debate over these bills as a battle pitting the press against the government. Most requests for public records come from ordinary citizens, not reporters. All citizens, not just the press, are guaranteed access to their government under Florida law and the constitution. And when government operates in the sunshine, it is less prone to waste, fraud and abuse.

We often agree with the League of Cities’ goals. But when it comes to eviscerating Florida’s open records law, we couldn’t disagree more.