In addition to being a bearded portly fellow, I resemble Old Saint Nick in at least one other respect: I keep a list of whose been naughty or nice. I call it my “Special Projects List.”
In the course of a year I’ll make thousands of public records requests of public agencies. I am using the term, public “agency,” as it is defined in Section 119.011 of the Florida Statues, (2011).
“Agency” means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. (emphasis added).
So my public records requests go out to both publicly operated agencies as well as vendors (AKA contractors) who are also subject to Florida’s sweeping public records laws. Most of those public records requests are part of an attempt to audit the agency’s compliance with public records laws. I don’t even bother making a public records request of a vendor unless I’ve already obtained a copy of the contract to determine if they are, in fact, subject to public records laws.
As I’ve mentioned on numerous occasions, when an agency complies with the Public Records Act, I lose interest almost instantly. I simply make a note of the compliance and move along. But when an agency (including vendors) violates Florida’s Public Records Act my interest is piqued. And that’s generally not a good thing for wayward public officials or their vendors.
What usually follows is some type of dialogue in which I make an effort to encourage their compliance with public records laws. When that fails, or if their violation is particularly egregious, then things may escalate quickly.
As the Governor’s Commission On Open Government Reform opined in 2009 “…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.” It’s a sad reality, but they were right. When the custodian of a public record simply refuses to comply with the law I have a simple choice to make: let them violate the public’s constitutionally protected civil rights or litigate to vindicate those civil rights.
Here’s where the “disconnect” sometimes occurs. Although I’ve exhausted virtually all of my material resources defending the public’s right to access, my legal resources far outweigh my material resources. There are only a handful of experienced public records litigators in the state of Florida and I have more than half of the top twelve on speed-dial.
One might wonder how someone with such limited means can afford top legal talent. Well, it’s simple economics: Section 119.12 of the Florida Statutes has a very broad attorney’s fee provision and I don’t lose cases. In short, my attorneys get paid because I always win.
To be sure, my attorneys are also true believers. They’ve taken more than their fair share of haircuts to defend the public’s right to see what’s being done in their name and at their expense. But, as the statute was intended to do, the attorney’s fees provision creates an incentive for thoughtful attorneys and their clients to help enforce the Public Records Act and to incentivize compliance on the part of the custodians of public records.
The “disconnect” on the part of some wayward records custodians (AKA defendants) is the mistaken belief that some broke-ass guy from central Florida won’t really go the distance in litigation. That’s an unfortunate assumption and one that, I suspect, more than a few defendants have regretted making. You see, I will not pull the legal trigger unless 1.) the facts of the case and the law are completely on my side, and ; 2.) I would be willing to appeal the case in the event that a trial court judge makes an unfortunate ruling. There’s a reason that I’ve been the plaintiff in scores of cases and never lost, and it’s not beacause I’m particularly bright…I’m just picky. I would guess that I litigate less than 1% of the denials of access that I’ve witnessed.
So back to that “Special Projects List.” When I find an egregious violator of Florida’s Public Records Act they’ll end up in one of two places – the short list (they’re going to be getting a visit from a process server in the near future) or the long list (give then a little rope and they’ll tie the noose).
One might wonder what it takes to get taken off of the “Special Project List.” Well, for starters, bowing up and acting like they’re some junk yard dog making threats about filing a “57.105” (a counter claim for filing a frivolous lawsuit) is likely to keep them on the list for some time. My general reaction to such claims (I hear them a lot) is to respond by refusing to settle…period. If they’re going to claim that I filed a lawsuit in bad faith and that there is no merit to my claims, then we really do need to get a finding of fact. And that means taking the case all the way to a very expensive trial.
When, however, it becomes clear that a defendant is willing to acknowledge that my public records request was not handled properly and they are willing to take at least some modest remedial steps to avoid making the same mistake again, I am exceedingly reasonable. It’s never my goal to kick an opponent when they’re down. My goal is compliance with Florida’s Public Records Act and a resolution that ensures the public’s right to access.
I’ve even taken the extra step of filing some cases as a Pro Se litigant in an effort to try and keep the costs of litigation and resolution as low as possible. Of course, when it becomes obvious that the defendant is not willing to be reconciled with the law, I let the professionals step in so we can go the distance.
Remarkably, getting off of the “Special Projects List” simply involves complying with the law (and in the case of vendors, their contracts). It’s comparatively inexpensive, especially when you consider the alternative costs of extended litigation. And for vendors there’s the added bonus of not being in breach of contract and exposing themselves to the unilateral termination of their contracts with the people of the State of Florida, pursuant to Section 287.58 of the Florida Statutes.
Perhaps some day, I’ll run out of things to do because public agencies will simply do what Article 1, Section 24 of the Florida Constitution and Sections 119.07, 286 and 287.58 of the Florida Statutes require. Until then, you can count on me keeping a list of whose been naughty or nice.