Plant City could keep active a statewide conversation on reforming public records laws, including the possibility of “enforcement mechanisms” to prevent profit-driven lawsuits.
In its current list of commission-approved legislative priorities, Plant City has included "public records reform to discourage or eliminate schemes designed to generate violations of public records laws as well as limit harassing or unreasonable public records requests."
Reform efforts, city officials said, support Florida League of Cities goals addressed during the 2017 legislative session.
Plant City uses lobby firm Southern Strategy Group to represent its priorities in Tallahassee. When the 2018 legislative session starts in January, Plant City keeping public records reform on its priority list could move the conversation forward accidentally-on-purpose, despite not having an official position on what further reforms could be.
Michael Karr, Plant City’s assistant to the city manager, said the list is designed to allow flexibility if there’s more movement on recently passed legislation, like recent changes to public records laws. Having public records reform on the list could allow Southern Strategy to support more reform efforts if they come up. Often, Karr said, recently filed legislation can be reviewed in following sessions.
“They’ve taken some steps. We’ll see if there’s more to follow,” he said. “The priority list is put together in such a way to give flexibility when things come up. It gives us flexibility because things change pretty quick in Tallahasee and we don’t always have time to go back to the city commission for a vote.”
Much of the controversy surrounding public records in Florida came from alleged abuses by Martin O’Boyle and Joel Chandler, who worked as executive director of O’Boyle’s Citizen’s Awareness Foundation. Chandler said he was paid a six-figure salary and instructed to meet a weekly quota of filing public records violation lawsuits. He said he filed 400-to-500 public records violation lawsuits in a five-month period.
Under Florida statute chapter 119’s wording, if a member of the public thinks a public records request wasn’t met, the only recourse to seek compliance is a lawsuit. Groups like O’Boyle and Chandler’s were accused of making erroneous public records requests to generate a lawsuit, allowing them to sue and settle out of court for profit.
Following attempts in both the 2016 and 2017 legislative sessions, wording in 119 was changed in July to limit the public’s ability to take advantage of the law. Language was changed allowing judges to determine whether a request and subsequent suit was filed in order to generate a violation. Where government agencies were required to pay back attorney and court fees to a complainant, those payments are now a judgment call made by the court. In some cases, the judge can even order a complainant to payback the defendant, if the suit was determined to be erroneous.
Barbara Petersen of the First Amendment Foundation said the changes to 119 were a compromise between government entities and open records advocates, but real reform should come in the form of an enforcement mechanism.
“The system we have now encourages people to file lawsuits because that’s their only option,” Petersen said. “We really don't have any option short of going to court. If we had a middle step, like many other states do, we could basically put people like Joel out of business.”
States across the country handle public records violations differently, but many, like Connecticut, have a step between non-compliance and lawsuit.
Casey Cook, a legislative advocate for the Florida League of Cities, said an enforcement mechanism could be an option for Florida, but the concept would need a champion, plan and funding before it could become a reality.
“I think it’s a good idea, but the devil is in the detail. We need a lot of details on how it would operate and where the money would come from to operate,” Cook said. “Until we see words on a page or a draft bill, we couldn’t put support behind one structure or another.”
Cook said the League of Cities, however, didn’t include further public records reform on its current priority list to allow the recent steps to move forward.
“I still think we’re in that analysis phase of making sure our members had their needs met,” he said. “We have to see how the current reforms go and reevaluate if further changes are needed.”