A few weeks ago I was sitting in court when an attorney for a defendant exclaimed, “Your Honor, we’re only here because they want attorney’s fees!” That sentiment is one that I hear far too often, and it’s wrong…well, sort of.
In fact, the Plaintiff was prosecuting that case because the Defendant had violated her constitutionally guaranteed right to access public records. The Plaintiff stood to make not one penny from the outcome of the lawsuit.
Under Florida’s Public Records Act, a plaintiff who takes legal action to vindicate his or her civil right to access public records is not entitled to any monetary damages. They are, however, entitled to their reasonable attorney’s fees and expenses.
To suggest that a plaintiff is bringing public records litigation to make money is just silly. I’ve been the plaintiff in dozens of public records lawsuits and I’ve never made a dime as the result of winning every single case. In fact, being the plaintiff in so many public records cases has cost me more than I could have ever imagined. This is not a money making venture.
But those legal fees do matter…a lot. They serve two very important purposes.
First, they allow members of the public who have been denied access to public records, the ability to seek judicial intervention with the hope that if they prevail, they will get their costs back. Make no mistake; it’s still a daunting prospect. They will likely spend tens of thousands of dollars up front; and that’s a significant barrier to entry and wayward custodians of public records know it. If the citizen looses they will permanently part with a pile of their own hard earned cash.
Second, those legal fees matter because they are intended to serve as an incentive for the custodians of public records to act in good faith. In New York Times Company v. PHH Mental Health Services, Inc., 616 So. 2d 27, 29 (Fla. 1993) the court opined “If public agencies are required to pay attorney’s fees and costs to parties who are wrongfully denied access to the records of such agencies, then the agencies are less likely to deny proper requests for documents.” It’s interesting to note that the “public” agency in that case was a private company that was under contract to provide services on behalf of the state.
On more than one occasion I have been accused of trolling for public records litigation for the sole purpose of ginning-up attorney’s fees. That’s nonsense. The reason I test public agencies and their contractors for compliance with Florida’s Public Records Act is because transparency matters and there is no state agency that is responsible for enforcing these laws. As the Governor’s Commission On Open Government Reform wrote in its 194 page report “…the burden of enforcing violations of Florida’s open meetings and public records laws generally falls to citizens who have few alternatives other than seeking an injunction or filing suit in civil court to compel compliance.”
When I take legal action to vindicate the public’s right to open government, the fact is I am the only person in that courtroom not getting paid. So, I’ll take the criticisms of opposing counsel more seriously when they agree to work for free. After all, I am.