Sunburned: How Misuse of the Public Records Laws Creates an Overburdened, More Expensive, and Less Transparent Government

The ideal of an informed citizenry necessitated the creation of public records laws, including the Freedom of Information Act. But at the state level, the “Government in the Sunshine” laws are being misused, especially in the Sunshine State. Academics have warned of the problem, and increasingly, public servants wrestle with overzealous citizens who are pushing the public records laws to the point of logical absurdity, One Florida town spent $20,000 on legal fees because it gave a citizen a bill for a $1.20 in photocopies; another town litigated over a public records request that it fulfilled, allegedly because a two-day response was not fast enough. The reality of the laws, as implemented, is that people have rights without any responsibility.

Careful reforms are needed, and this Article shows that some of the problems can be solved. To begin with, the executive branch of government must take compliance with the public records laws seriously, committing itself to the principles of public access while also engaging in greater self-policing. Open government does not require every person to be a policeman nor should it allow a self—appointed watchdog to become a vigilante. In addition, the judicial branch should avoid instinctive declarations that the public records laws provide “virtually unfettered” rights. Instead, the courts should carefully assess the facts and the letter of the law Courts must recognize that clever citizens playing “gotcha” with the government will bury the agency with burdensome requests, evade their duty to pay for the costs of asking for public records, sue for every type of error—no matter how petty—and then demand attorney’s fees as a reward for manufacturing the problem. The legislature should also make statutory changes, mirroring already existing statutes. Citizens should be required to give the government notice of intent to sue and an opportunity to fix the problem before they rush to court. In addition, the incentive to rush to court should be decreased by exposing abusive lawsuits to the possibility of paying the government’s attorney’s fees. Lastly, the legal profession can contribute to the solution by adhering to the applicable standards of legal ethics and professionalism, and even by holding pro se plaintiffs accountable.

The excesses of government in the sunshine have sunburned the government. As a result, the public servants, acting rationally in an effort to reduce the burdens and economic risks of the public records laws, are incentivized not to document their decisions at all. The result is a less transparent government that costs even more. Rather than allowing the abuses, costs, and ironic consequences to continue, this Article offers some sunscreen.