As Florida citizens, we are fortunate the Constitution of this great state sets forth a strong public policy of access to government records. Our state Constitution guarantees that “every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer or employee of the state.” Florida's public records laws are not only applicable to the State Legislative executive and judicial branches but also counties, municipalities, districts, constitutional officer’s boards or commissions.
Public records are typically obtained by making a request directly to the governmental agency. If the agency unlawfully refused to provide the public records, you may sue in state court to have the request enforced. The filing of such lawsuits can be an expensive proposition for any person requesting public records however, up until recently Florida Statutes requires the assessment and award against the agency responsible for the reasonable cost of enforcement of Florida’s public records laws, including reasonable attorney’s fees.
During this year’s legislative session, the Florida legislature considered changes to the provisions of the statute relating to attorney’s fees. The legislature was addressing allegations that some individuals and entities have used public records enforcement lawsuits as a way to generate settlements with public agencies which include their attorney’s fees and costs.
Lawsuits filed by public agencies in the courts addressing this issue have been unsuccessful where judges have stated that those abuses should be addressed through changes in the laws by the Florida legislature.
The initial proposal was simply to change a single word in the attorney’s fee statute from “shall” to “may”. Over the course of the legislative session, a compromise resulted in the passage of CS/CS/SB 80 by a unanimous vote of both the Senate and the House. The public should be aware that nothing has changed with regard to the right of an individual to access public records that are made or received in conjunction with official public business. What has changed is the requirement for filing a lawsuit and the way attorney’s fees can be considered by the courts.
Effective immediately, the court shall assess and award the reasonable cost of enforcement against the responsible agency, if it determines that two things have happened. First, the agency unlawfully refused to permit the public record to be inspected or copied. Secondly, the Requestor provided written notice identifying the public record request to the agency’s custodian of public records at least five business days before filing the civil action.
Thus, you will need to provide written notice to the agency’s custodian of public records at least five business days before filing any civil action. The notification requirement is waived if the agency does not prominently post the contact information for the agency’s record custodian in both the primary administrative building where the records are kept and the agency’s website.
The legislature went further to restrict the right to be awarded attorney’s fees if you request to inspect or copy public records or participate in a civil action for an improper purpose. The legislature has defined the improper purpose to include actions meant to primarily cause a violation of the chapter or for a frivolous purpose. If the court determines there was in fact an improper purpose it may assess and award the reasonable cost of enforcement including attorney’s fees against you the complainant and to the agency.
Lastly, the legislature has clarified the payments by the responsible agency may only include the reasonable cost of enforcement including reasonable attorney’s fees directly attributable to a civil action brought to enforce the provisions of this statute.
The vast majority of requests to inspect and copy records are handled in a professional and routine manner by both State and Local governmental agencies. For those few cases where an enterprising citizen and or lawyer requests records or file suits to enforce the public records laws for an improper purpose, they risk paying the reasonable costs of a governmental agency defending the action. The unanimous vote to enact these reasonable changes to Florida’s public records laws should assure Florida citizens that they are in the spirit and keeping of Florida’s strong and important right to public records.