This legislative session demonstrated a political will to reform the Florida’s Public Records Act. However, that will was misguided in both SB 1220 and HB 1021.
    Those bills targeted the attorney’s fees provision of Chapter 119 and attempted to change that reward to successful litigants from mandatory to discretionary. The zeitgeist: Judges punish lawyers for not vetting clients. Since very few people will pay tens of thousands of dollars for an email, the lawyers will ultimately determine who will come across well in the histrionics of court.
    Here is the problem: What government is not going to label the requestor an abuser?     
    Any government lawyer worth their salt would label every requestor an abuser or risk malpractice. Since intentions are the only metric to distinguish abusers from non-abusers, the government will have subpoena power to discover your most intimate thoughts about public officials and government policies. The government will be allowed to subject you, your friends, family and coworkers to videotaped interrogations in search of anti-government sentiments. The government could read your emails, texts, and phone searching for evidence of frustration.
    The government will have the full power of the court to prove that you dislike the administration and are acting upon that dislike. Take a second to think about that; you sue the government for hiding information and the next thing you know you are being investigated for sedition: Orwellian.
    Thankfully, that situation fell through. 
    In that universe, attorneys would not be anti-abuser policemen. They would be cash-up-front. Even the most righteous-minded is not certain to have the mettle to see litigation through, ensuring the attorney’s payment. 
    Without enforcement, governments revert to their natural state of oligarchical secrecy.  There is, however, an answer to the public records question and it lies not in substance but procedure.
    First, the law must designate a responsible records custodian and mandate the government to clearly designate the identity of the custodian as well as the proper channels to make a request. Then, a request will only count if it is given to that designee, but requestors will not have to guess where to send requests or get the run-around. 
    Also, there should be a fixed time to respond to requests; that time can reasonably be enlarged by the custodian unilaterally, but only after attempts to work with the requestor on a mutual production date have failed.
    Custodians should also be asking for clarification and feedback in every correspondence and seeking clarification in writing. When both parties are on the same page, the system works and a culture of trust is promoted. In addition, “gotcha” litigation becomes impossible.
    But what about abuses in the number of requests? Be wary of the officials who seek to limit requests, they peddle snake oil.
    First, the government can charge; costs will become prohibitive.
    Second, a hard limit on requests is futile; friends and organizations can defeat any limitation. The only way to truly limit the number of requests is to build trust with citizens.
    Some ask for public records to keep them; most people ask because they are looking for answers to questions on which public officials have prevaricated. The more a government is perceived as dishonest or evasive, the more requests it generally receives. When dealing with citizens, it pays to answer questions today, not requests tomorrow. Although a government cannot limit requests by edict it may exercise control by engaging with civility and respect. 
    If Florida wants to sensibly address the public records question, the panacea lies not in substantive but procedural reforms and building trust. 

Jonathan O’Boyle,
Deerfield Beach

Jonathan O’Boyle, an attorney licensed in Florida and Pennsylvania, is the son of Gulf Stream resident Martin O’Boyle. During the last three years, the O’Boyles have filed dozens of lawsuits against the town over hundreds of public records.

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