A disturbing and apparently illegal trend by our government agencies is described below in the article in the Gainesville Sun.* This is but further evidence of the ever-widening breach between us and our governing agencies, the cause for a lack of trust and confidence.
This happens when the agencies mislead the people and attempt to cover up their dishonesty. In recent months we have pointed out in our newsletter several instances of this in the DEP and the Southwest Florida Water Management District and the St Johns River Water Management District.
We commend those legislators who have attempted to address this important issue to find a remedy.
Comments by OSFR historian Jim Tatum.
-A river is like a life: once taken, it cannot be brought back-
Gov. lawsuits threaten records seekers
By John Kennedy
GateHouse Media Services
TALLAHASSEE — A long-running clash between state water managers and a celebrated environmental activist is heightening tension over aggressive tactics used by Florida governments pushing back against citizens seeking public records.
The battle also is putting Florida at the forefront of a rising trend.
Instead of turning over requests for records, a growing number of cities, school boards and other government agencies across the nation are suing people seeking documents — forcing them to decide whether it’s worth fighting for their request in court — at their own expense.
Legislation to outlaw this tactic cleared the Florida House this year, but failed in the Senate.
“It’s a form of harassment,” said Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida.
“People can just seek a public record and find themselves suddenly dragged into court. They weren’t expecting that,” he added.
A fierce fight in Martin County is alarming many government watchdogs.
Maggy Hurchalla, a former Martin County commissioner and sister of late U.S. Attorney General Janet Reno, is appealing a $4.4 million judgment against her by a jury earlier this year, which found she used her influence as a conservationist to disparage a mining company’s project — sending critical emails to commissioners.
The verdict capped a five-year struggle marked by charges of public records violations involving two commissioners and a former commissioner.
It also led to an $18 million settlement for the mining company, Lake Point, from Martin County and the South Florida Water Management District.
Now, a related clash has emerged over public records requests for transcripts of the closed-door district meeting that preceded the costly legal settlement with Lake Point.
When the Everglades Law Center requested a record of what was said during the meeting, district lawyers sued the non-profit and threatened to subpoena Hurchalla and 16 citizens who made similar demands.
After a judge sided with water managers who refused to turn over transcripts, the records case – like the multi-million dollar judgement against Hurchalla – is headed to the Fourth District Court of Appeal.
“We didn’t sue them. They sued us. All we did was ask for records,” said Lisa Interlandi, an attorney with the Everglades Law Center.
“All any of these people did was ask for records,” she added. “It’s very chilling. It’s like a move to chill people from requesting records.”
Attorneys for the South Florida Water Management District defended their action, saying the records request was basically a nuisance, designed to make the district pay the legal fees of Hurchalla and others if the documents were not surrendered quickly.
UF’s LoMonte said such fights over public records should not be occurring.
Government agencies generally know what constitutes a public record and should not sue the requester to have a judge determine whether they should turn over documents, he said.
The lawsuits usually ask judges to rule that the records sought should not be released. Advocates say the lawsuits are aimed at blunting the release of information that might be embarrassing, or politically harmful to elected officials.
Sometimes, it’s just bullying, critics say.
“It’s a legal tactic that puts the requester on the defensive,” LoMonte said.
Barbara Petersen, president of the Florida media-backed First Amendment Foundation, said she was disappointed to hear governments testify before the Legislature in support of the approach.
“It’s a very aggressive move by cities and counties against their citizens,” Petersen said. “We’ve been seeing an uptick in these cases across the country, and it’s a very bad trend.”
Even if agencies are ultimately required to make the records public, they often will not have to pay the requester’s legal bills.
Legislation sponsored earlier this year by Rep. Ray Rodrigues, R-Estero, and Sen. Keith Perry, R-Gainesville, would have prohibited governments from filing lawsuits against those seeking public records.
The measure (HB 273, SB 750) was approved by the House 108-0, but died in the Senate Judiciary Committee, after the Florida League of Cities raised concerns about the measure’s potential sweep.
Casey Cook, the League’s senior legislative advocate, said there are few instances of Florida governments using a lawsuit as a stall or harassment tactic.
But he said there are occasions when there is a dispute about whether a record is public, or shielded under an exemption or privacy laws. It may take a judge to sort out, Cook said.
“It is an approach that has proved useful in certain circumstances,” Cook said of the lawsuits.
Cook said that following the Pulse nightclub shooting in 2016, the city of Orlando needed a judge to determine which records should be made public to media outlets after receiving conflicting demands to withhold records as part of the FBI’s criminal investigation.
While freedom-of-information advocates acknowledge that the lawsuit approach is not frequently deployed, they say it’s a legal strategy that threatens the public’s right to know.
Among the earliest examples in Florida was a 2009 Hallandale Beach case where a blogger, Mike Butler, was sued by the city when he sought access to Mayor Joy Cooper’s email sent from a private server under the subject line “Mayor Cooper’s Update.”
Butler wanted a list of recipients for the email, but was denied by a judge who ruled that was not a public document.
Butler has since been elected to the Hallandale Beach City Commission. Cooper was suspended by Gov. Rick Scott in January on public corruption charges after being caught in an FBI sting.
In a separate matter, Cooper also is denying the conclusion of a Broward County Inspector General’s report that she violated the state’s open government laws by attending 26 meetings that had no public notice.
“The whole public records law is getting twisted and it’s becoming fashionable for cities to sue those seeking records,” said Sarasota attorney Andrea Mogensen, who settled in 2008 with the city of Venice following a long open government fight involving deleted emails and secret meetings.
“Governments are not supposed to be in the business of figuring out how not to disclose,” Mogensen said. “The government doesn’t own these records. The people do.”
