The Public Records Act - When Good Faith Compliance Is Not Enough!

May 5, 2017

For the governmental entities subject to the Public Records Act, compliance can be challenging. Must a fire district respond to the public records request asking for every record with the word “fire” in it? Yes! What if you produce thousands, but accidentally miss some? If a court finds a local government violated the Act, regardless if the government made a good faith attempt to comply – the local government may have to pay the requester’s reasonable attorney’s fees!

As many of you know, local governments are subject to the Public Records Act (Chapter 119 of the Florida Statutes). The purpose of the Public Records Act is to provide the public with access to its government – to provide transparency in government. Earlier this month, the Florida Supreme Court issued an opinion, Board of Trustees, Jacksonville Police & Fire Pension Fund, etc. v Lee, No. SC13-1315 (Fla. April 14, 2016), wherein the Court considered whether a prevailing party in a public records case was entitled to a statutory award of attorney’s fees when the public agency acted in good faith but violated the Public Records Act.

This question arose out of a request by Curtis W. Lee, the Respondent, for public records from the Board of Trustees, Jacksonville Police and Fire Pension Fund (the “Pension Fund”). Mr. Lee did not follow certain conditions imposed by the Pension Fund prior to allowing the inspection and copying of public records. As such, the Pension Fund refused to allow Mr. Lee to inspect or copy the requested records. Eventually, Mr. Lee went to court and argued that the conditions and fees imposed by the Pension Fund prior to allowing inspection or copying of public records were not legally valid. The trial court and First District Court of Appeals held that some of the conditions were valid, but ultimately determined that an hourly photocopying fee and an hourly supervisory fee violated the Public Records Act. Mr. Lee moved for attorney’s fees under Section 119.112 of the Florida Statutes. The trial court concluded that the violations of the Public Records Act were “not knowing, willful or done with a malicious intent,” and did not amount to an “unlawful refusal” as required for an award of attorney’s fees. On appeal, the First District Court of Appeals reversed the trial court’s order and the Supreme Court of Florida agreed based on the following analysis.

The Supreme Court found if a public record is not made available as required by the Public Records Act, an accelerated civil action process is available for immediate enforcement of the Act and an award of attorney’s fees if the agency has “unlawfully refused” to make the public record available. The Pension Fund argued that for Mr. Lee to prevail on his motion for attorney’s fees, he would need to demonstrate that “unlawful refusal” equated to the agency acting unreasonably or in bad faith in its refusal to make available the public records. However, the Supreme Court, based on the tenants of statutory construction, found that a public agency’s unreasonableness or bad faith is not required before awarding attorney’s fees pursuant to the Act. Even if the actions were not malicious, if the agency violated the Public Records Act then its actions were unlawful. Unlawful actions have the effect of frustrating the public right to access public records, requiring the “courts to vindicate that right,” and thus, “reasonable attorney’s fees should have been awarded.”

For more information, please contact Jennifer Cowan or Nicole Poot at (941) 708-4040.