Palm Coast Wants Protection From Extortionist Lawsuits Over Public Record Requests
FlaglerLive | May 28, 2015
As with all local governments that were expecting more—and better—from the Florida Legislature this year, Palm Coast didn’t get what it wanted. Instead, the legislative session ended abruptly and bitterly, leaving several dozen bills to die, among them the state budget.
For Palm Coast, those included a pitch for dollars to pay for local water projects, such as the acquisition of new water wells and monitoring wells. They also included a push for a change in the public record law that would have given Palm Coast—and all local governments—some protection from what the city sees as extortionist lawsuits from opportunistic individuals or lawyers looking to test an agency’s public record compliance.
It’s unusual for Palm Coast to be wading into public records policy, but that’s one of the priorities it asked its lobbyist, Doug Bell, of Buchanan, Ingersoll and Rooney, the Jacksonville-based lobbying firm, though the bill was supported by city and county associations as well. But it was not supported by the First Amendment Foundation, the state organization that advocates in defense of open government and public record laws. (The First Amendment Foundation did not vehemently oppose it, either.)
The measure in question would not have changed the essence of the state’s public record law, nor the manner in which members of the public may ask for records from agencies, or from private companies contracting with public agencies (those private companies must comply with public record requirements within the scope of those contracts). But it would change the way individuals may go about suing a public agency or recover attorney fees, should they consider that an agency has violated the law.
“The bill,” according to a legislative analysis of House Bill 163, “requires a person making a public records request to make the request to specified persons in order to be eligible for attorney fees.” (Currently, the request may be made to any employee of a public agency. “Specifically, a request to inspect or copy public records must be made directly to the records custodian, a member of the agency’s governing body, or the agency head. Similarly, the bill provides that a contractor is only liable for attorney fees if the public records request is made to the contractor’s registered agent or an employee or agent of the contractor who acts, or purports to act, in a management or supervisory capacity.”
A subsequent version of the bill, according to the First Amendment Foundation, added a provision that attorney fees may be awarded only if the person suing an agency provided written notice by certified mail to the contracting agency or the local government being sued, giving them at least five days’ warning—or ma chance to comply—before filing a suit. A court would also have to make a written finding “that the contractor acted in bad faith or willfully disregarded the law in refusing to allow a public record to be inspected or copied.”
Why the need for such provisions? As Palm Coast’s officials described it, people will come into an agency’s offices with a Go Pro camera attached to them, make a public record request form employees who are not fully educated on the public records law, press their demands right then and there, and exploit every possible violation of the law, however minor or unreasonable, to build a case for a lawsuit. Such extortionists aren’t generally interested in the record they’re asking for. They’re interested in suing, then in settling, thus skimming a few thousand dollars from the scheme. Front-line employees, who often are poorly trained in the law or intimidated by public record requests, can easily trip and subject their agency to a lawsuit.
“It is an issue where you all are to some degree entrapped into paying the legal fees for somebody coming in and filing public record requests simply for the purpose of then having the opportunity to sue you and get legal fees,” Bell said.
“We’ve had local companies actually have to settle lawsuits like this,” Beau Falgout, a senior planner with Palm Coast, said during Tuesday’s workshop. (A city spokesperson was looking into the city itself has been sued along those lines).
Coastal Cloud, the Palm Coast-based company, is in fact facing one such lawsuit from a concern that calls itself Our Public Records LLC, a Broward County-based non-profit that the Florida Bar has called a “scam” and that the Florida Center for Investigative Reporting revealed to be “less interested in obtaining records and educating the public than in working with a partner law firm to collect cash settlements from every lawsuit filed.” (In early April Flagler County Circuit Judge Michael Orfinger denied Coastal Cloud’s motion to dismiss the lawsuit.)
The League of Cities wanted to provide the same protections for local governments as private contractors were seeking. The First Amendment Foundation opposed that part of the measure, seeing in it an added, unnecessary shield from compliance with the public record law, rather than any form of protection for government.
“Unfortunately the language that helped the local governments was removed on the House floor right toward the end,” Bell said. “The Senate was unwilling to accept that change, so this bill died. We’ll have another shot at it next year.”
“What we’ve asked the state Legislature to do is a simple little thing,” Palm Coast City Manager Jim Landon said. “Before you sue us you have to request the document formally from the city clerk and you have to put us on notice that we aren’t fulfilling your request and give us two days to fulfill your request before you sue us. That’s all we were asking for.”
“There are legislators who are profiting from this also, they’re part of the legal system,” Landon added. “They have an interest in making sure this is maintained.”
The Legislature is back in session next week to resolve its budget impasse, provoked by a disagreement between Gov. Rick Scott and the House on one side and the Senate on the other over how to pay for the $2.2 billion Low Income Pool, a pot of money that pays hospitals to care for people without insurance. The federal government was carrying that bill until now. But the Obama administration considers the pool redundant, when Florida could be covering its poor through an expansion of Medicaid—the approach the Senate favors. Scott and the House, staunchly opposed to anything that has to do with Obamacare, have refused to go along. The federal government has since indicated that it would make $1 billion available this year, and $600 million the next, for the low income pool, still putting the state on notice that it must resolve the issue—and leaving the state with a $1 billion hole to fill.
“Where we are now is, on those particular policy issues we’ll have an opportunity again once special session is over, to begin working on those as well as many other issues,” Bell said, referring to the public record matter and a few others that impact Palm Coast. “But my focus in this next few weeks, honestly, is dealing with special session, and trying to secure the funds for you all, for your water projects. I’ll be honest, I think the likelihood is that you’re only going to get funding for one of the two projects.”
The communications service tax is also in play during the special session. The tax is somewhat of a burden on individual taxpayers, but it provides significant revenue to local governments. Scott wants to slash it as part of a larger tax-cutting package. “I’m not sure that these tax cuts are going to make it this year because of the pressure on the other issues and the budget as a whole,” Bell said, “but to the extent that that issue passes, it will protect the local government revenue stream.” In other words, cities and counties will not see their revenue decrease should the communication service tax be cut.