Warning! Florida Public Records Going Less Public





Sam Fields



All governments from Washington to Pahokee, to Ulan Bator have one thing in common when they are doing the people’s business:

They don’t like The People looking over their shoulder.

Fighting back for The People is Section 24 of the Florida Bill of Rights. It guarantees that, unless there is an exemption passed by a 2/3 vote in the Legislature, every document in all three branches of government are available for inspection and copying.

Growing out of Section 24 is The Florida Public Records Act [F.S. 119]. It is supposed to make sure that: “all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.”

Unfortunately, for at least the last 20 years, the Legislature at the urging of state and local officials has been carving out exemptions left, right and center.

Of the 19,500 words in F.S. 119, 13,514 of them are devoted to exemptions to keep the public from learning what the scalawags are doing.

And exemptions are growing!

Certainly some exemptions are necessary. Strategy memos during contract negotiations. Prearrest criminal investigations. The home addresses of police officers and judges.

Many exemptions were prompted by abuse of sensationalists. In other words, they limit ALL of The People’s right to know on the basis of the rare worst case scenario. I notice that the Legislature is not interested in narrowing our gun rights because of abuse by a few.

Remember exempting autopsy photos in reaction to jerks publishing pictures of legendary NASCAR driver Dale Earnhardt who was killed in the 2001 Daytona 500?

Truth be known, government abuses the law way more than citizens. They do this by:

  1. Ignoring requests,
  2. Requiring unrealistic deposits to do the work,
  3. Twisting the law to claim an otherwise unjustified exemption,
  4. Records–think E-mails—mysteriously disappearing.


In my own case, Lighthouse Point responded to my request by repeatedly filing frivolous Bar Complaints that were summarily dismissed.

If a few jerks are filing onerous and costly requests, the solution is to pass on the actual costs as already provided by law.

For twenty years Tallahassee has been eviscerating Open Government by “death of a thousand cuts”.  Now the Legislature is attempting to inflict a mortal wound by cutting back on fees to enforce your rights to those records.

Now, before you roll your eyes about protecting attorney’s fee$, remember this:  No right is greater than your ability to enforce it.

Without going to court, exactly how would you enforce a valid request when the government response is the middle finger? Very few non-lawyers have the money or the personal skills to fight the government and its lawyers.

Right now the law requires that the judge award Plaintiffs reasonable attorney’s fees–if they win the case. Without that assurance, few lawyers would be in a position to go to war with the government. And the government knows that.

At the behest of groups like The League of Cities, who claim they are being hit with vexatious lawsuits, Senate Bill 1220 would require a five days’ notice to comply before suing. I don’t have a problem with that.

It’s the second part that is dangerous and written in totally confusing language. It seems to give the government two bites at the apple to avoid paying attorney fees—even though they lost the case!

The first change would replace “shall” award attorney fees with “may” award attorney fees. The next change would allow a judge to deny fees “if the court determines that the request…was made in bad faith or was frivolous.”

By definition “bad faith” and “frivolous” involve loosing lawsuits that were filed with no real basis in law and/or fact.

This amendment to FS 119 means that even if you are right on the law and the facts, and you win the case, the judge can then conclude that your suit was “bullshit” and deny you fees. Huh?

It’s an oxymoron in law and common sense.

But then, after all, when it’s the government trying to hide its secrets, why should that make a difference?



12 Responses to “Warning! Florida Public Records Going Less Public”

  1. Sober As a Judge says:

    The sky is falling! the sky is falling!

    We hear this from newspapers and attorneys who tell us “we’re in it together” and let’s protect the public’s right to know.

    But where were they when the small town of Gulf Stream, a Florida town with only 814 residents, which has only 4 municipal employees got frivolously fleeced by a “lawyer” for fees? Answer? Nowhere to be found.

    Gulf Stream was choked with over 2,500 frivolous public records requests, freezing the small town in their tracks. Physically unable to comply with Florida’s stiff public records statutory deadlines, the prank resulted in fines to the small town that their 814 people had to pay off through higher taxes. All so some lawyer could laugh all the way to the bank with their money.

    Gulf Stream is not the only town dealing with this. Unsavory lawyers are popping up all over playing the same scam on Florida taxpayers. It is a scam that the Florida Bar does nothing about either.

    So I have no sympathy at all for the arguments of newspapers or the lawyers. Judges should absolutely have the right to decide if attorney’s fees are granted in these cases. Legitimate public records requests should always be honored and frivilous ones discouraged. That’s good public policy because frivolous requests needlessly cost taxpayers money, even beyond the ability of government to recoup from the deminimus reimbursement fees that the statutes allow.

    Newspapers should hire inside counsel to do their Sunshine requests and in so doing limit their costs. Private lawyers should tell their clients THEY are at risk for fees if hired to make frivolous Sunshine Law requests, and should themselves stop fleecing under a loophole that results in a most unfair payday.

    I have no sympathy at all for the argument presented in the post. The public’s right to know is not being challenged. A loophole in law causing abuse of taxpapers is being stamped out. That’s a good thing for Florida and it upholds our strong tradition of open government.

  2. Chaz Stevens, Genius says:

    You can thank Joel of FOGWatch and that pair of lawyers up in PBC who would sue everyone left and right.

  3. Sober is right says:

    Wish it was public record and easily accessible to see how much the O’Boyle’s have made on these cases. Millions, I’m sure. There is a need for this law. Unfortunately, the evil of a few that take advantage of a system ruin the purpose of our state’s sunshine laws.

  4. Charlotte Greenbarg says:

    Sober as a Judge gets the George Orwell Newspeak award for calling this law a good thing for Florida that upholds our strong tradition of open government.

    Instead of gutting our ability to challenge governments who get their enormous resources from us, ironically, why not tailor the bill to deal with the abusers?

    We have enough brain power in this state to do this. Yes I know it’s Floriduh, but there are some bright lights out there.

  5. Count LF Chodkiewicz Chudzikiewicz says:

    Counsellor Fields is correct that the conservative Republican Governor State Legislature is taking a canon to fight the rats that are abusing FOI. More thought and aiming a non lethal weapon is called for. The proposals are way way too general and will be more dangerous that the present and potential damages.

  6. Real Deal says:

    The proposed law does not gut public records laws, that is an laughable exaggeration, and is in fact tailored to deal with the abusers. No legitimate requestor of public records challenging a government agency for non-compliance with the Sunshine Law has anything to fear from this common sense approach designed to end abuses. These objections to only serve to protect the very abusers who deserve no protection from taxpayers. The message is clear, file frivolous requests at your own risk not on the backs of taxpayers. Enough with the abuses! We had the same mischief with ethics complaints until a better law put an end to those frivolous filings. These laws are serious, not there for cheap vendetta, to provide a power trips or personal amusement to gadflies, or to provide low life lawyers with a quick payday. Enough abuse.

  7. City Activist Robert Walsh says:

    I disagree w/ alot of the above comments. I have made plenty of records request . I get them all in a timely manner and if there is a cost I am told up front exactly what it will cost etc. I always pay and don’t give them any lip. In Ft>lau the PIO dept. is very good, they always are very professional and always do a very good job(they are also easy on the eyes huh ). Also at the county level the PIO dept, is also very good(hi Kim). I never have had a problem. Keep up the good work. Also the Ft>alu police dept. records request dept. is just as good(you lawyers out there that make requests and then blow them off because you settle your cases I am all for having them charge you up front…..)

  8. Andrew Ladanowski says:

    Public record requests vary from entity to entity. The most expensive city is Pembroke Pines, more expensive than even Broward County Schools, (Almost 4 times more for the same report.) Broward County Schools refused to provide a detailed sunpass report for the summer of 2014. While I was chair of the facilities task force, I received numerous complaints and abuses of personal vehicles being used during the summer vacation on trips to central Florida and cross country trips on tax payers dime. I paid the fews for this and they didn’t give me the detailed reports I needed. I don’t have the money to fight them.

  9. Count LF Chodkiewicz Chudzikiewicz says:

    Mr Landanowski makes the vital and really basic fact of FOI MONEY to pay lawyers in most SERIOUS CASES is what prevents full or even substantial disvlosure. As a resesrcher in Federal Records can tell you State Department n Defense Department records from the 1940s thru early 1980s at the National Archives can be impossible because Gencies archive in the absence of active private lawyers only material that casts them in a good light even deep sixing exhibits when parties have disputed Federal Agencies actions.

  10. Le Peerman says:

    This bill does not gut public records requests at all. It changes a word that allows a judge to not award lawyer fees if the judges chooses and it asks that before a lawsuit is filed against the city a 5 day notice is given. That’s all, I was in Tallahassee listening to people against the bill say this and that and none of it was true. There are some cities that handle public records requests badly, those cities should be spotlighted and shamed for how they handle them, this bill does not do that. Nor does it mean requests will not get answered. Suing a city because you requested a picture of a bicycle in the city archives and suing them because they couldn’t find one but the requester found one on a picture of a bus, yep that is what public records requests are for.

  11. Ha Ha Ha says:

    Ms. Peerman’s suggestion that cities be “shamed” for noncompliance with the Florida Sunshine law is, to put it mildly, incredibly naive. Just as one example, the First Amendment Foundation has been doing exactly that for many decades now. http://floridafaf.org/

    Cities who react illegally to public records requestors (and be assured that many, if not most, very routinely do exactly that) simply don’t care – they are shamelessly contemptuous of the Sunshine law. There is literally nothing anyone can do to force cities to comply with public records requests other than sue – and that is a notoriously expensive process.

    The reality is that where abuse of public records law is concerned, over 99% of the abuse is committed by the many governments which have spent the past several decades treating public records requests with thinly disguised contempt.

  12. Miami-Dade Commission on Ethics and Public Trust Opposes Amendments To Public Records Law says:

    For Immediate Release: February 10, 2016
    Contact: Joseph Centorino, Executive Director
    (305) 350-0613 or centori@miamidade.gov

    Ethics Commission opposes proposed amendments to Public Records Law

    The Miami-Dade Commission on Ethics and Public Trust (COE) today voted to oppose bills moving through the Florida Legislature that many believe would negatively impact citizens’ access to government records. House Bill 1021 and Senate Bill 1220 eliminate mandatory legal fee awards when a government agency fails to adequately fulfill public records requests. Opponents argue that giving judges discretion to award attorney fees to citizens who successfully sue when records requests aren’t met removes a strong incentive for agencies to abide by the law and also blocks access to the courts by citizens who may not be able to afford legal representation. Ethics Commissioners said they do not want to eliminate the mandatory requirement to award the fees, but would like to see judges have more leeway on how much should be awarded. The request for opposition to the legislation came from the Jacksonville Ethics Commission, which passed a similar resolution last week and is seeking support from other ethics commissions on the issue.

    Are early drafts of a speech subject to Florida’s Public Records Law? Different interpretations of state statute are behind a finding of No Probable Cause to a complaint (C 15-29) filed under the Miami-Dade Citizens’ Bill of Rights against Palmetto Bay Mayor Eugene Flinn, for failing to preserve early versions of his State of the Village address. Working versions of the speech had been shared among the Village Clerk, Public Information Officer and Mayor Flinn when Vice-Mayor John DuBois requested a copy on October 13, 2015; the day before the speech was to be presented. Preliminary drafts of government documents circulated among public officials are generally considered public record. However, since the Mayor relied on contrary advice from the Village Attorney, the Ethics Commission dismissed the complaint, but agreed a Letter of Instruction should be issued to the municipality to avoid future confusion over the preservation of public records.

    An employee of the Miami-Dade Water and Sewer Department claimed in a complaint (C 16-05) that he suffered retaliation and faced a hostile workplace after reporting violations about his agency to the Department of Environmental Protection. Accusations of retaliation must be made within 60 days of the negative action and this complaint came more than two years after the alleged incidents, so it was dismissed as Not Legally Sufficient.

    Ethics Commission Executive Director Joseph Centorino reported that his staff had recommended against granting a conflict of interest waiver to a Tallahassee-based law firm that lobbies on behalf of Miami-Dade County, but also represents ride-sharing company Uber before the Florida Legislature. County ordinance prevents any company that is contracted to represent the County from lobbying against any County position on any issue unless it is granted a waiver by the Board of County Commissioners (BCC). The Pittman Group was retained by Uber to support passage of legislation that would preempt local regulation of so-called Transportation Network Entities like Uber. Ethics Commission staff found that granting a waiver to the Pittman Group to represent Uber while also representing the County created a conflict that should not be waived. The BCC agreed with the recommendation and voted to deny the waiver request at last Tuesday’s (2/2/16) meeting. A similar recommendation made against Ballard Partners on the same issue last year was also accepted by the BCC.

    The Ethics Commission was created in 1996 as an independent agency with advisory and quasi-judicial powers. It is composed of five members, serving staggered terms of four years each. Through a program of education, outreach and enforcement, the Commission seeks to empower the community and bolster public trust.