Commentary: Public Records Law in Trouble

gina-photoFlorida’s once celebrated public records law is in trouble. This is because it’s virtually impossible to get law enforcement to take action against public officials who violate the law.

Citizens have to file a lawsuit to get justice under the law, and the ability to successfully bring a suit is severely threatened by two bills pending in the Legislature, Senate Bill 1220 and its companion, House Bill 1021.

Government transparency is basic to our freedom, no matter who you are or what your political stripes.

The law, as amended, would handicap citizens by making the award of legal fees discretionary if a citizen prevails against the government. In the real world, the change from “shall” to “may” award legal fees in the law makes filing a lawsuit just too risky for a wronged citizen.

The real question is: Why should a citizen have to sue to get the law enforced in the first place? What’s needed is real enforcement of the public records law with a public records cop on the beat with civil fines and/or criminal consequences for violators.

Nobody wants to punish public servants who make innocent mistakes. But what has to stop is abuse – in the form of long delays to produce public records or bogus extensive charges. Taxpayers have already paid the salaries of the people who created the public records. And many local governments employ paid public information officers. The records belong to the people. And the people have a right to know.

We live in an online, digital age. There is no reason why public records can’t be produced cheaply and easily for inspection and copy. Appointed government managers over bureaucracies have many reasons to build secret kingdoms where they don’t have to answer to the public or even to elected officials trying to look out for taxpayers. Cronyism and corruption flourish in the dark.

For me, filing a public records lawsuit was a last resort.

After initially charging me $2 for hundreds of pages of electronic records on 2 CDs, the Clerk then charged me $556 for 556 pages after I published critical stories. (For more about the case, see www.watchdogcity.com/newsstandstoryinfo/521-Florida-Appeal-Court-Sides-with-Watchdog-City-Journalist-in-public-records-lawsuit.htm “Florida Appeal Court: Watchdog City Journalist wins public records fee lawsuit.”)

I have now prevailed three times in court in my public records lawsuit against Collier Clerk of Courts Dwight Brock. After the Clerk lost twice in the circuit court – including after an expensive trial demanded by the Clerk after he lost the first time — the Clerk used the unlimited taxpayer money at his disposal to hire lawyers to try and bury me in an appeal. The elected Clerk has spent at least $67,000 in taxpayer money on legal fees according to the Naples Daily News, a figure that doesn’t include 2015 so the total is likely much higher.

My legal fees are now upwards of $35,000. This is chilling. If my lawyers hadn’t agreed to take my case on a contingent fee, I would be facing an enormous personal financial burden.

Why? Because I dared to stand up to an illegal, expensive government fee under the law? Or because a government official wanted to retaliate against a journalist? If the Clerk had backed off and let it go after he lost the first time, my fees would be minimal.

A well-known public records activist who many reporters call, Joel Chandler, referred me to my attorneys who agreed to take my case. In the past year, the firm, rightly has come under scrutiny with critics charging that the firm is filing public records suits on minor violations to gin up fees.

Such tactics are wrong and only hurt citizens and journalists trying to make legitimate requests. In my case, my attorney, Ryan Witmer, and the firm have been in the fight to defend the public’s right to know for a long haul, at substantial expense and risk. Attorneys Giovani Mesa and Marrett Hanna defended me in the appeal.

My lawyers thought I had a slam dunk case with multiple paths to victory.  That’s why they agreed to take it. Two years later, they haven’t been paid for their hard work. And it still may be some months until they get paid. First, Collier Circuit Judge Fred Hardt will review the fees for reasonableness. Brock has already asserted that he doesn’t have to pay my legal fees.

What’s important to remember is that contingent fee lawyers are only going to bet on sure things. In my case that meant we kept our case narrowly focused on the fee issue. Other bad behavior by Brock we didn’t even touch. For example, Brock withheld turning over certain public records that I requested.

Under Florida public records law, if a requestor doesn’t pay his or her bill, the agency is no longer required to fulfill subsequent public records requests.

If I didn’t pay, I would be effectively shut down.

Before trial, I was grilled by the Clerk’s lawyer in a deposition for 3.5 hours. I was asked invasive personal questions about my family like how long I’ve been married and the ages of my children.

We requested limited discovery, asking only for the Clerk’s log of past public records requests.  The morning of the trial, the Clerk’s attorney turned over the discovery:

The Clerk’s lawyer texted a photo of a dry erase board with a handful of entries on it.

Even though I won at trial, the Clerk continued to threaten me with high public records fees, saying he would come after me for the higher rates – after the fact – if he won the appeal. For example, he said he reserved the right to charge me $1,538 for electronic public records, $1 per page, if he won the appeal.

These threats were designed to intimidate me and shut down my access to public records and in turn, my reporting.

Here are just some of the stories I’ve produced from the public records I’ve obtained so far:

Far from a legitimate audit of a charity housing grant, the Clerk used his power as the county’s elected auditor to engage in a chilling smear of his 2012 political challenger, business leaders who supported his challenger, and a candidate who ran against a sitting County Commissioner in 2010.

The Clerk’s audit policy manual showed that his Finance Director, who oversees payments of hundreds of millions of dollars, also served at the same time as the director of Internal Audit, a conflict of interest that is prohibited by government auditing standards and raises red flags for fraud risks.

After a controversial award by the Clerk of the county’s lucrative banking contract to the bank founded by a Naples state senator, the Clerk transferred custody of the county’s $600 million investment portfolio to another entity, without a vote of county commissioners and unbeknownst to the county attorney and county manager. Public records showed the Clerk’s money manager over $600 million, hadn’t had a performance evaluation since 2007 or produced evidence of continuing education requirements, a violation of state law.

Without access to public records, none of these stories would have been possible.

I went to Tallahassee to speak to the Senate Government Oversight Committee that was considering the senate version of the bill on Tuesday, Jan. 26. Although supporters including the League of Cities got to speak at length, speakers in opposition got little time. The Committee members voted to cut off public input, time certain. I was basically told, hurry up and spit it out and sit down. Opposition speakers like the editor of the Jacksonville Times-Union, who was later in the stack of speaker slips, didn’t even get to speak, unfortunately.

I invite you to contact state lawmakers and let them know that the public records law needs to be strengthened, not weakened, and that citizens deserve meaningful enforcement and protection from abuse. Time is of the essence.

Public records and the government transparency they provide are the bulwark of liberty. But without enforcement of the public records law, we, the people, lose the light that helps us find our way.

Gina Edwards is a national award-winning journalist and the founder of the start-up news site WatchdogCity.com. She is a member of the Naples Press Club Board of Governors. Edwards was awarded a top Freedom of Information prize from the Florida Press Club in 2015, competing against some the largest newspapers in the state.  

Leave a Reply