February 19, 2016

Government wants citizens to pay for seeking destroyed public records

By Christina M. Martin Attorney

Strong public records laws give citizens access to the information they need to hold government accountable.  PLF knows firsthand that public records can arm citizens with evidence of constitutional or statutory abuses, enabling them to make better decisions in court or in the voting booth. For this reason, all fifty states and the federal government have adopted laws that grant the public access to public records.

This quote appears on the James Madison Memorial Building (photo by Library of Congress)

Seemingly everyone values government transparency, but some government officials’ actions speak otherwise–and not just high-profile officials with presidential aspirations. Local governments, too, can undermine the accountability offered by public records laws by neglecting the duty to retain records.  A lawsuit against Martin County, Florida, revealed that the County flouted its responsibility to retain and timely release access to public records.  Worse, when citizens sued to force the government to hand over public records that they later discovered had been destroyed, the County tried to make the citizens pay for the government’s attorney fees.  Yesterday, PLF submitted a friend-of-the-court brief asking a Florida appellate court to protect citizens’ ability to hold the government accountable by awarding fees to the citizens.

The controversy began in February 2013, when two development companies who believed the County had violated their rights, requested access to all public records discussing the companies. The County released some of the records, but failed to collect and release public records sent to and from some of the County commissioners’ private email addresses. After waiting one year for the County to release all of the requested records, the companies finally filed claims in a Florida court alleging the County violated the Public Records Act.  One week later, the County released a string of emails from one commissioner’s private email account about the companies.

The companies never received other requested records because they had been destroyed.  One commissioner claimed that her personal computer had been “hacked” causing the deletion of all of the emails in her Yahoo account.  And despite the fact that the County knew commissioners were using private email addresses to conduct public business, the County neglected its statutory duty to keep copies of these public records in the first place.  Similarly, handwritten notes requested by the developer were destroyed.  The County claimed the notes were personal – not public – but the law requires agencies to avoid even the appearance of impropriety: when a member of the public requests any record, the Act prohibits the agency from destroying that record for at least 30 days, regardless of whether the record is determined to be a public record subject to public inspection.  Here, the County’s records custodian never bothered to even collect the records to determine whether they were public or private.

To citizens who want to hold government accountable, these escapades look bad enough to justify making the government pay the developer’s costs of suing the County for its violations of the Public Records Act.  Indeed, the Act requires government to pay attorney fees whenever “the court determines that such agency unlawfully refused to permit a public record to be inspected or copied.”  But instead of concede its failures, the County asked the trial judge to make the private companies pay the County’s attorney fees. The court denied the County’s requests, because “[t]here were many circumstances which would cause a reasonable person to suspect there were records not yet disclosed” including the “curious and … unexplained” destruction of one commissioner’s emails.  But the court also denied the companies’ request for attorney fees, because the County had made a “reasonable effort to respond and provide public records” and its failures were “inadvertent.”

PLF’s amicus brief asks the appellate court to protect the intent of the public records law by awarding reasonable attorney fees for the companies’ pursuit of public records.  The Public Records Act does not make exception for sloppy or even honest and reasonable mistakes.  The Florida Legislature created a right to attorney fees in circumstances such as these in order to strengthen the public records law by motivating government agencies to be more responsive and careful in responding to requests for records.  Moreover, the availability of attorney fees makes it possible for citizens to enforce the public records law in the first place.  Government should not be excused from its duties simply because it is inept.

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