ORLANDO, Fla. – The man who filed a bill to discourage a cottage industry of attorneys filing "gotcha" public records lawsuits just to win fees is open to tweaking the bill to also discourage "bad actors" on the government side -- agencies that intentionally stonewall the public and make it miserable to fight them in court.
"If there's been a showing of intentional misconduct on behalf of the local government entity, or them acting in bad faith to not allow public access to records, then yeah, I would certainly be open to looking at language we could amend into the bill to address those issues," Rep. Greg Steube, R-Sarasota, told News 6, adding he'd be happy to look at language allowing a judge to award treble fees against the government in such cases.
Central Florida is no stranger to government agencies boldly breaking the public record law. The 5th District Court of Appeal points to a case where a resident was forced to jump through hoops to access Orange County animal control records about her dogs as "a textbook example of why the legislature authorized an award of fees against obstinate public entities such as [the county]."
[WEB EXTRA: Court opinion sanctioning government in records lawsuit]
In that case, Susan Hewlings was forced to fight the county for years, and even after the county admitted breaking the record law, the county ran up Susan Hewling's legal bills by filing an "unnecessary appeal" that claimed "there is no statutory authority for an award of fees for its violation of the public records law," according to the opinion.
The county made the argument despite current, clear language in the statute stating a court "shall" award fees against a government agency that unlawfully refuses to release records. Open government advocates worry governments will fight even harder to convince judges not to order them to pay a requestor's legal bills, if the word "shall" is changed to "may."
That change would give judges discretion to let governments off the financial hook, even when a judge finds the government broke the public record law.
And that is what Steube's bill would allow, with its current language.
Steube defended his attempt to change the words from "shall" to "may" to give judges a tool to stop "law firms and individuals who have relentlessly gone after local governments to set them up, just to get attorneys fees." But Carol LoCicero, who has spent decades filing legitimate lawsuits to fight governments withholding records, believes changing that one word will make it too risky for regular citizens like Hewlings to sue the government - even with a strong case.
"The problem is that, in practice, judges are reticent to award attorney's fees under permissive fee statutes. That means the requesters have to foot the bill for litigating access," LoCicero told News 6. "For most, that's simply not a financial option."
Even if Steube moves forward with amending his bill with treble fee language to discourage governments from mounting frivolous, bad faith legal defenses, LoCicero says it won't solve the problem.
"Treble fees for obvious agency bad actors, while nice, doesn't cure the general problem," she said. "I don't think we've struck upon the right balance yet. But we're trying."