This week, Florida State Representative Greg Steube and Senator Rene Garcia introduced bills that would amend existing Sunshine Laws, making the awarding of attorney’s fees discretionary in cases where agencies were found to be illegally denying access to public records. Currently requires legal fees to be awarded in such cases. Predictably, the bills were met with outrage from the state’s journalists and Open Government community, who saw them as a baldfaced attempt to impede accountability and a direct assault on a citizen’s guarantee of access to public records.
Meanwhile, Massachusetts legislation that promises to bring long-overdue public records reform is pending in the Senate after easily passing the House in November. Like the new Florida bills, it leaves the decision to award legal fees – the difference between access to pro bono representation and having to pony up five or even six figures – entirely up to the judge trying the case, regardless of the records violation.
The Florida bills are considered a deliberate insult; in Massachusetts, similar legislation is an improvement. We are expected to be grateful to our (notably exempt from the law themselves) legislators for finally tackling this issue, not to demand that our best be better than Florida’s worst. Keep that in mind the next time an elected official starts throwing shade across the Mason-Dixon or tossing around phrases like “cradle of liberty.”
When it comes to transparency, Massachusetts’ solutions are often part of the problem. In many ways, a weak law is worse than no law at all, creating the illusion of accountability and leading average citizens of the commonwealth to believe that they have more access than really they do.
Take, for example, the “deliberative process” exemption, which in Massachusetts, allows an agency to withhold documents related to the development of policy. Whatever wheeling, dealings, and scratching of backs went into a decision are deliberately exempted from public view; all you get is the final product. That’s fine, you say – our open meeting law entitles you to be present when these policies are being developed – unless a lawyer’s present, in which case attorney-client privilege can be claimed, trumping your right of access.
Perhaps most egregious of all are Statements of Financial Interest, the required disclosure by public officials of their personal and familial business holdings that help prevent obvious cases of conflict of interest. Or at least it would, were it the information contained in these forms publicly available. You can ask the Ethics Commission to see a copy, but be prepared to send over a copy of your driver’s license, which will then be forwarded to the person whose records you seek. The implicit threat of reprisal has a way of taking the appeal out of holding public figures accountable.
The public records reform bill that will be debated in February is our best chance in decades to get a law on the books that actually does what it is supposed to do. But if we just sit idly by, it’ll be death by a thousand revisions, and we’ll be left with another facade of freedom where our rights should be.
We deserve better than bad in Florida. Now is the time for us to demand it.
J. Patrick Brown is the Editor of Muckrock.com, an organization which facilitates public record requests and serves as an independent news source covering government transparency issues nationwide.