Over the past several weeks, Robert and I have filed dozens of new public records lawsuits. All of these lawsuits stem from our in-person audits of public agencies and state contractors who are expressly subject to Florida’s Public Records Act.
In most instances, the records we were seeking to inspect were agency visitor’s logs. The reason we asked for those particular records is that we wanted to make it as easy as possible for public officials to comply with their obligations under Article 1, Section 24 of the Florida Constitution and Section 119.07 of the Florida Statutes.
Notably, Article 1, Section 24 of the Florida Constitution states:
“Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.”
And Section 119.07 states:
“Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.”
Since visitor’s logs are generally kept at the entryway of most agencies and are made available to the public when they arrive, compliance with Florida’s Public Records Act would simply involve nothing more than “sure help yourself.”
Unfortunately, most agencies failed our audit miserably. We had public officials playing twenty-questions, demanding ID, physically removing the visitor’s log or deliberately covering up the records with all manner of devices (napkins, clothing, etc.) and in several instances attempting to employ intimidation tactics. On more than one occasion we were surrounded by armed personnel and even followed out to our vehicle when we tried to leave. In numerous instances public officials went so far as to unlawfully access confidential databases in an apparent attempt to have us investigated.
In response to several lawsuits, defendants have essentially made the remarkable argument that we knew they were going to break the law and all we are doing is engaging in “gotcha” litigation. I love it when a defendant makes an admission as part of their defense.
Some defendants have argued that it was unfair for two citizens to just show up and ask to inspect records, because the personnel we made our requests to were not knowledgeable about their obligations under Florida law.
That dog won’t hunt. The idea that the Sheriff of a particular county should get a pass because the Sheriff failed to properly train the personnel that the Sheriff decided to make the custodian of a public record and that the Sheriff placed in a position in which the personnel would be certain to interact with the public, is just silly.
It’s hard for me to imagine a situation in which a public agency would be better situated to comply with Florida’s Public Records Act. Custodians have records that are immediately available; the custodians get to pick who will have control of those records, and; the custodians decide who will greet the public. If what we do is rigged-card-game, it’s rigged in favor of public officials. For those same public officials to now bellyache about “gotcha” litigation is almost funny, except they will now expend thousands of public dollars to defend their bad acts.
Ironically, the best course of action for defendants is simply to acknowledge their mistake and take corrective actions to prevent its repetition. At the earliest stages of litigation our legal fees are minimal. Produce the records; acknowledge that you are subject to Florida law; pay our modest legal expenses and it’s over. You’ll notice, we aren’t even asking for an admission of liability – just do the right thing – exactly what a judge is going to make you do anyway.
Instead, some agencies will blame-shift and run-up substantial legal bills trying to avoid their obligations under Florida law. And they will do it at taxpayer expense.