AAN members thrive on covering their state and local governments. This means a strong right of access to state and local public records is imperative to their work. However, obtaining access isn’t cheap or easy. State and local governments know this and often bet on the fact that if they deny your request for public records, you won’t take the time to court.

That’s why a key aspect of any public records law is a mandatory right to receive attorney’s fees if you successfully challenge an adverse decision in court. The fact that a state with one of the strongest traditions of transparency in the country is thinking about converting its mandatory right to attorney’s fees into a permissive (non-guaranteed) right, is the reason we joined 24 other media organizations and companies on a letter opposing two proposed Florida bills.

The letter opposes Florida House Bill 1021 and Senate Bill 1220. Both bills would change the way Florida law awards attorney’s fees to people who successfully challenge a FOIA denial in court. The state’s Sunshine Law currently provides for mandatory award of attorney’s fees in these situations; in other words, if I go to court to overturn denial of my public records request and win, I am absolutely entitled to get my attorney’s fees reimbursed. These bills would make award of attorney’s fees in those situations permissive, meaning the court gets to decide whether attorney’s fees are warranted.

Of course, this might create a big deterrent against filing a lawsuit when a request is denied. And Florida agencies, knowing the likelihood they will be challenged in court is now lower, might take more chances when deciding whether to grant or deny a public records request. This could significantly hinder transparency in Florida.

The letter makes all these points, as well as noting that the national trend with regard to attorneys fee is moving in other direction, with states and the federal government making award of attorney’s fees mandatory in most cases. It also seems pretty odd that Florida, long called the “Sunshine State” not only for its weather but it’s strong history of transparency, is considering this change. The letter, of course, explains why this is relevant, both for the reasons I’ve already identified above and in terms of why access to public records is important. The letter specifically notes why strong judicial review is a key part of a strong public records law.

Now you may ask the same question I did: Why are we weighing in on these Florida bills? What’s so different here from everywhere else? While, as a national organization, we generally focus on federal legislation, there were certain extenuating circumstances here. As noted above, Florida is a state with a strong tradition of transparency bucking the trend with regard to a key aspect of most public records laws; in fact, Florida has always been held out as a model of strong transparency laws.

It would be particularly disappointing if Florida took a step backwards like this and it could motivate other states to move in the same direction. Of more concern is that this proposal actually has some momentum toward passage – the press association and transparency groups are pretty concerned. We need to stop this from becoming a bad trend before it starts.