On April 14, 2016, the Florida Supreme Court issued its opinion in the case of the Board of Trustees, Jacksonville Police and Fire Pension Fund v. Curtis W. Lee, No. SC13-1315 (Fla. April 14, 2016). The decision resolves a conflict between the Third, Fourth, and Fifth District Courts of Appeal and the First and Second District Courts of Appeal.
Section 119.12, Florida Statutes provides that if a court determines that an agency “unlawfully refuses” to permit a public record to be inspected or copied, the court shall award attorney’s fees and costs against the violating agency. Prior to 1984, attorney’s fees were awarded if the agency “unreasonably refused” inspection of a public record or a public record to be copied. Ch. 75-225, Laws of Fla.
Since the expansion of the statute from “unreasonably refused” to “unlawfully refuses”, courts have been left to interpret the change and establish the standard of when a prevailing party is entitled to recover attorney’s fees and costs. The First and Second District Courts of Appeal concluded that there are no exceptions in awarding attorney’s fees under Chapter 119 if the court determines there has been a violation of the Public Records Act. The Third, Fourth, and Fifth District Courts of Appeal concluded that for a prevailing party to recover attorney’s fees and costs, there must first be a showing by the petitioner that the agency either acted unreasonably or in bad faith.
The Florida Supreme Court ultimately agreed with the First and Second District Courts of Appeal, holding that the additional showing that the agency either acted unreasonably or in bad faith is improper and contrary to the legislative intent. In reaching its holding, the Supreme Court applied principles of statutory construction and considered the legislative intent of Section 119.12, providing that “…section 119.12 has the dual role of both deterring agencies from wrongfully denying access to public records and encouraging individuals to continue pursuing their right to access public records.” Id at 11. The Supreme Court also examined the explicit language used in Section 119.12 and found that if the legislature desired to provide a “good faith” exception or standard, the legislature would have included such an exception. “The absence of any such standards in section 119.12- whether good or bad faith, reasonable, or knowingly and willfully- clearly indicates that section 119.12 is not contingent on a finding of the public agency’s unreasonableness or bad faith before allowing for an award of attorney’s fees under the Public Records Act.” Id at 15.
On July 15, 2016, the Fifth District Court of Appeal issued its opinion in the case of Timothy B. Cookston v. Office of the Public Defender, No. 5D15-4074 (Fla. 5th DCA July 15, 2016). In this case, the petitioner received the requested documents shortly after seeking relief from the court based on the failure of the public defender’s office to provide the documents. The lower court dismissed the case as moot since the petitioner received the documents. The appellate court held that the lower court should not have dismissed the case as moot, but should have further determined whether there was a violation of the Public Records Act entitling the petitioner to attorney’s fees and costs.
These recent cases demonstrate that public agencies are charged with the duty to comply with requests for public records. Agencies can no longer depend on the argument that they acted in “good faith” in their response to public records requests to avoid being assessed attorney’s fees and costs.
Suzanne J. DeCopain is an associate with Saxon Gilmore. She practices in the area of affordable and public housing. She can be reached at 813-314-4528 or firstname.lastname@example.org.
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