A bill that would give judges discretion to award attorney fees in public records lawsuits squeaked out of its first review panel Tuesday.
The Senate’s Governmental Oversight and Accountability cleared the bill (SB 80) by a 4-3 vote. It goes next to the Community Affairs Committee.
The measure changes the word “shall” to “may” regarding courts awarding legal fees when an “agency (has) unlawfully refused to permit a public record … to be inspected or copied.”
It would also require a “complainant (to) provide written notice of the public records request to the agency’s custodian of public records at least 5 business days before” suing. Records requests are not normally mandated to be in writing.
The idea is to cut down on the number of “frivolous” lawsuits at taxpayer expense by eliminating guaranteed attorney fees in cases where public officials made an honest mistake, say bill advocates, including the Florida League of Cities.
Open government watchdogs, such as the First Amendment Foundation, have countered that the bill would instead chill legitimate actions against local governments and state agencies that unreasonably refuse to respond to record requests.
Sen. Greg Steube, a Sarasota Republican and lawyer who is sponsoring the proposal, backed a version of the bill last session when he was a state representative. It passed the Senate unanimously but died in the House.
A House companion (HB 163) would require judges to make specific findings before they can award attorney fees in public records lawsuits.
It would require a judge to determine that a public agency “unlawfully refused to permit a public record to be inspected or copied” and that the complainant “provided written notice identifying the public record request to the agency’s custodian … at least five business days before filing the civil action.”
That bill also says attorney fees can’t be awarded if the court finds “the request to inspect or copy the public record was made primarily to harass the agency.” It has not yet had a hearing.