BY JENNIFER CABRERA / OCTOBER 23, 2019
State Senator Keith Perry has introduced SB 162 for the 2020 session, requiring public agencies to pay court costs if they go to court to fight a public records request.
SB 162 amends section 119.07 of the Florida Statutes, which deals with exemptions to public records laws, among other things. According to the analysis, “The bill requires a court to assess the costs of litigation for the named respondent against a government agency if the agency files a declaratory judgment action seeking a court determination of whether certain public records are exempt or confidential and exempt, and the court finds that the records are neither.”
Under Florida’s Public Records Act, public agencies must acknowledge public records requests and respond to them “in good faith.” However, there are exemptions, and public agencies have various options when they believe the public record is protected by one of these exemptions; one of the options is to bring suit in its local court, seeking a declaratory judgment on the uncertainty. Generally, the requestor of the public record is named in the lawsuit, resulting in legal fees for the requestor.
Section 86.081 of the Florida Statutes allows courts to award costs “as are equitable.” Generally, each party pays its own fees, but when an agency is found to have unlawfully refused access to a public record, courts are required to award attorney fees to the requestor. Similarly, if the court finds that the requestor made their request for an improper purpose (e.g., harassment), the court awards attorney fees to the agency.
Perry’s bill amends s. 119.07, F.S., to provide that if an agency files for declaratory judgment and the court finds that the records are neither exempt nor confidential and exempt, the costs of litigation will be awarded to the requestor.
The first step for the bill was at the Governmental Oversight and Accountability committee, where it was passed unanimously. It has also been referred to the Judiciary and Rules committees.
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