BOARD OF TRUSTEES, JACKSONVILLE POLICE & FIRE PENSION FUND, etc., Petitioner, vs. CURTIS W. LEE, Respondent.
No. SC13-1315
Supreme Court of Florida
[April 14, 2016]
PARIENTE, J.
PARIENTE, J.
In this case, we consider whether a prevailing party is entitled to an award of statutory attorney‘s fees under Florida‘s Public Records Act after the trial court determines in a civil action that the public agency violated the Public Records Act in failing to permit a public record to be inspected or copied. In Lee v. Board of Trustees, Jacksonville Police & Fire Pension Fund, 113 So. 3d 1010, 1010 (Fla. 1st DCA 2013), the First District Court of Appeal concluded that attorney‘s fees should have been awarded after a finding that the public agency imposed conditions that were in violation of the Public Records Act, even though the “agency‘s violation was neither knowing, willful, nor done with malicious intent.”
Id. Like the First District, the Second District Court of Appeal
To the contrary, the Third, Fourth, and Fifth District Courts of Appeal have all construed the attorney‘s fee provision of the Public Records Act to require a showing that the public agency acted unreasonably or in bad faith before attоrney‘s fees can be awarded. See Althouse v. Palm Beach Cty. Sheriff‘s Office, 92 So. 3d 899, 902 (Fla. 4th DCA 2012); Greater Orlando Aviation Auth. v. Nejame, Lafay, Jancha, Vara, Barker, 4 So. 3d 41, 43 (Fla. 5th DCA 2009); Knight Ridder, Inc. v. Dade Aviation Consultants, 808 So. 2d 1268, 1269 (Fla. 3d DCA 2002). We have jurisdiction to resolve this conflict. See
In accordance with case law liberally construing the Public Records Act in favor of open access to public records, the reasonable statutory construction of the attorney‘s fee provision, and the letter and spirit of the constitutional right to inspect or copy public records, we hold that a prevailing party is entitled to statutory attorney‘s fees under the Public Records Act when the trial court finds that the public agency violated a provision of the Public Records Act in failing to permit a public record to be inspected or copied. There is no additional requirement, before awarding attorney‘s fees under the Public Records Act, that the trial court find that the public agency did not act in good faith, acted in bad faith, or acted unreasonably. Accordingly, we approve Lee and Gonzalez to the extent they are consistent with our analysis and disapprove Althouse, Greater Orlando, and Knight Ridder to the extent that those cases require a showing that the public agency acted unreasonably or in bad faith before allowing recovery of attornеy‘s fees under the Public Records Act.
FACTS AND PROCEDURAL HISTORY
This case arises out of a written request by Curtis W. Lee for public records from the Board of Trustees, Jacksonville Police & Fire Pension Fund (“Pension Fund“). Following Lee‘s request, disputes arose about the conditions the Pension Fund imposed before allowing Lee to inspect and photocopy the records. Lee refused to comply with the conditions imposed by the Pension Fund and was not permitted to inspect or copy the records at the arranged time.
Eventually, Lee sought declaratory relief pursuant to
Lee also moved for attorney‘s fees under
Lee timely appealed the denial of his motion for attorney‘s fees to the First District, which reversed the trial court‘s order. Lee, 113 So. 3d at 1010. The First District provided the following reasoning in support of its decision:
Although fees are not warranted when the entity in charge of the public records at issue was reasonably and understandably unsure of its status as an agency, New York Times Co. v. PHH Mental Health Services, Inc., 616 So. 2d 27 (Fla. 1993), there is no comparable requirement when agency status is not in doubt, nor has there been since the 1984 amendment of section 119.12, when the legislature removed the necessity of showing that an agency “unrеasonably” refused inspection of public records. See, e.g., Johnson v. Jarvis, 74 So. 3d 168 (Fla. 1st DCA 2011); Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000); Office of State Attorney for the Thirteenth Judicial Circuit of Fla. v. Gonzalez, 953 So. 2d 759 (Fla. 2d DCA 2007). Accordingly, the lower court erred as a matter of law by concluding that the agency had violated section 119.07 by refusing to disclose certain records, yet plaintiff was not entitled to attorney‘s fees because the agency‘s violation was neither knowing, willful, nor done with malicious intent. As the supreme court observed in PHH, “refusal by an entity that is clearly an agency within the meaning of chapter 119 will always constitute unlawful refusal.” PHH, 616 So. 2d at 29.
Id. We granted review and now approve the First District‘s decision based on the following analysis.
ANALYSIS
The focus of our analysis is the explicit language of
If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys’ fees.
I. The Public Records Act
The Florida Constitution provides individuals with “the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the
Florida courts have articulated that the purpose of the Public Records Act, in broad terms, is “to open public records to allow Florida‘s citizens to discover the actions of their government.” Bent v. State, 46 So. 3d 1047, 1049 (Fla. 4th DCA 2010) (quoting Christy v. Palm Beach Cty. Sheriff‘s Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997)). This Court, in particular, has described the right of access to public records as a “cornerstone of our political culture.” In re Report & Recommendations of Judicial Mgmt. Council of Fla. on Privacy & Elec. Access to Court Records, 832 So. 2d 712, 713 (Fla. 2002).
Yet, this access is not so broad that it is completely unfettered. Access to public records is subject to various statutory conditions and exemptions. See, e.g.,
If a public record is not made available for inspection or copying in accordance with the provisions of the Public Records Act, the Legislature has provided for enforcement through a civil aсtion, with an “immediate hearing” that is given priority over other pending court cases.
II. Section 119.12, Florida Statutes
The Legislature has also provided, through
Because the term “unlawfully refused” is neither defined in the statute, nor clearly unambiguous, we apply principles of statutory construction in order to resolve the conflicting interpretations оf the district courts regarding whether the public agency‘s good or bad faith is relevant to a finding that fees are warranted under
To resolve the conflict regarding the necessary showing for recovery of attorney‘s fees under the Public Records Act, we must “consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.” Fla. Dep‘t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1266 (Fla. 2008) (quoting Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003)) (emphasis omitted). The purpose of the Public Records Act is to fulfill the constitutional requirement of making public rеcords openly accessible to the public. To accomplish the Legislature‘s objectives, the Public Records Act “is to be construed liberally in favor of openness, and all exemptions from disclosure are to be construed narrowly and limited in their designated purpose.” Lightbourne v. McCollum, 969 So. 2d 326, 332-33 (Fla. 2007) (quoting City of Riviera Beach v. Barfield, 642 So. 2d 1135, 1136 (Fla. 4th DCA 1994)).
Consistent with the purpose underlying the Public Records Act,
Section 119.12(1) is designed to encourage public agencies to voluntarily comply with the requirements of chapter 119, thereby ensuring that the state‘s general policy is followed. If public agencies are required to pay attorney‘s fees and costs to parties who are wrongfully denied access to the records of such agencies, then the agencies are less likely to deny proper requests for documents. Additionally, persons seeking access to such records are more likely to pursue their right to access beyond an initial refusal by a reluctant public agency.
New York Times Co. v. PHH Mental Health Servs., Inc., 616 So. 2d 27, 29 (Fla. 1993). In other words,
Prior to 1984, the necessary showing for attorney‘s fees was that the agency had “unreasonably refused.” Ch. 84-298, § 7, Laws of Fla. However, the Legislature
Prior to the 1984 amendment, only unreasonable refusals led to an award of attorney‘s fees under
The change to “unlawfully,” on the other hand, eliminated the potential that an award of attorney‘s fees would be denied just because the public agency acted reasonably in violating the Public Records Act. This is because an “unlawful[] refus[al],” by its common definition, encompasses any refusal not “permitted or recognized by” the Public Records Act or some other law. See Black‘s Law Dictionary 1018 (10th ed. 2014) (defining “lawful” as “[n]ot contrary to law; permitted or recognized by law“). The public agency‘s failure to comply, rather than its good or bad faith in doing so, became the relevant inquiry.
The distinction created by
The Pension Fund, however, urges us not to read the attorney‘s fee provision in isolation but to rеview other portions of the Public Records Act together, which it contends evidence a foundational requirement of good faith. Of course, under the doctrine of in pari materia, we construe statutes relating to the same subject or object together to harmonize the statutes and give effect to the Legislature‘s intent. Fla. Dep‘t of State, Div. of Elections v. Martin, 916 So. 2d 763, 768 (Fla. 2005).
In reading the Public Records Act in pari materia, it is evident that the Legislature has imposed a good faith standard in other provisions of the Public Records Act while clearly omitting any such language in the attorney‘s fee provision. The language throughout chapter 119 creates a “right of access” to public recоrds,
The explicit language used by the Legislature in providing for criminal penalties for knowing and willful actions is in stark contrast to the “unlawful[] refus[al]” requirement of the attornеy‘s fee statute, which contains no such statutory language. If the Legislature intended to require the award of attorney‘s fees to a successful litigant only if the refusal was done “knowingly and willfully,” section 119.10 demonstrates that the Legislature certainly knew how to use those specific terms. See Aramark Unif. & Career Apparel, Inc. v. Easton, 894 So. 2d 20, 24 (Fla. 2004) (setting forth the principle that the “legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended” (quoting State v. Bradford, 787 So. 2d 811, 819 (Fla. 2001))).
The Legislature also used the term “reasonable” elsewhere in the Public Records Act. Variations of the term “reasonable,” which was delibеrately removed from section 119.12, continue to appear in other sections of the Public Records Act as a requirement for measuring agency conduct. See, e.g.,
Simply put, the Legislature has had multiple opportunities to explicitly require a “good faith” standard in
We accordingly reject the Pension Fund‘s argument that the Legislature intended to engraft a good faith obligation into the attorney‘s fee provision through the 2007 enactment of
A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whеther such a record exists and, if so, the location at which the record can be accessed.
Rather than modifying the criteria for the award of attorney‘s fees to make it more difficult for a successful litigant to receive an award of attorney‘s fees under
For all these reasons, we decline to import a “good faith” or “reasonableness” requirement into
III. This Court‘s Decision in PHH
In reaching this conclusion, we reject the argument of the Pension Fund that this Court‘s decision in PHH established a “good faith” standard for awarding attorney‘s fees. Both parties have relied on PHH to support their respective positions, and we acknowledge that PHH contains language that could be interpreted in favor of each view. Indeed, the district courts on both sides of this issue have actually relied on PHH in reaching conflicting holdings.
PHH involved a private entity that was uncertain of whether it was subject to the Public Records Act and immediately sought clarification through a declaratory judgment action. 616 So. 2d at 28. As a case involving a private entity, PHH is factually distinguishable and does not control this case.
Nevertheless, we conclude that PHH is fully consistent with our decision here. The First District relied on PHH to conclude that the “refusal by an entity that is clearly an agency within the meaning of chapter 119 will always constitute an unlawful refusal.” Lee, 113 So. 3d at 1010 (quoting PHH, 616 So. 2d at 29). But PHH also stated that an award of attorney‘s fees was not proper in that case because the organization‘s “uncertainty as to its status as an agency within the meaning of chapter 119 was both reasonable and understandable.” 616 So. 2d at 30. This is where the apparent confusion has arisen.
In reading PHH as a whole, it is clear that the “reasonable uncertainty” referenced by this Court was related to the organization‘s “status undеr chapter 119“—whether it was even an “agency” subject to the Public Records Act in the first place—and not, as the Third District stated in Knight Ridder, to “the soundness of its position in refusing production.” 808 So. 2d at 1269. This is best demonstrated
Section 119.12(1) is designed to encourage public agencies to voluntarily comply with the requirements of chapter 119, thereby ensuring that the state‘s general policy is followed. If public agencies are required to pay attorney‘s fees and costs to parties who are wrongfully denied access to the records of such agencies, then the agencies are less likely to deny proper rеquests for documents. Additionally, persons seeking access to such records are more likely to pursue their right to access beyond an initial refusal by a reluctant public agency. The purpose of the statute is served by decisions like Brunson [v. Dade County School Board, 525 So. 2d 933 (Fla. 3d DCA 1988)] and [News & Sun-Sentinel Co. v. Palm Beach County, 517 So. 2d 743 (Fla. 4th DCA 1987),] in which a unit of government that unquestionably meets the statutory definition of an agency refuses to allow the inspection of its records.
However, section 119.12(1) was not intended to force private entities to comply with the inspection requirements of chapter 119 by threatening to award attorney‘s fees against them. If it is unclear
whether an entity is an agency within the meaning of chapter 119, it is not unlawful for that entity to refuse access to its records. Conversely, refusal by an entity that is clearly an agency within the meaning of chapter 119 will always constitute unlawful refusal.
PHH, 616 So. 2d at 29 (footnote omitted).
This Court, thus, clearly recognized in PHH what we have confirmed here—that the attorney‘s fee statute was “designed to encourage public agencies to voluntarily comply with the requirements of chapter 119.” Id. As we stated in PHH, the “purpose of the statute is served by decisions” such as the Fourth District‘s decision in Sun-Sentinel that rejected an addеd “good faith” requirement in section 119.12 when “a unit of government that unquestionably meets the statutory definition of an agency refuses to allow the inspection of its records.” PHH, 616 So. 2d at 29 (footnote omitted). As the Fourth District explained, “[s]hould we engraft onto the term ‘unlawfully refused’ either a good faith or an honest mistake exception, the salutary effect of the 1984 amendment [replacing ‘unreasonably’ with ‘unlawfully‘] would be seriously diluted.” Sun-Sentinel, 517 So. 2d at 744.
Although this Court in PHH disapproved Sun-Sentinel and Brunson, it did so only “to the extent that either Brunson or Sun-Sentinel would permit the award of attorney‘s fees under section 119.12(1) without a determination that the refusal was unlawful.” PHH, 616 So. 2d at 30. While there are statements in PHH that may have inadvertently resulted in confusion for the district courts of appeal, our decision in PHH is entirely consistent with our interpretation of section 119.12 here.
IV. This Case
Turning to this case, because the trial court found that the Pension Fund imposed conditions that were in violation of
Unlawful conditions or excessive, unwarranted special service charges deter individuals seeking public records from gaining access to the records to which they are
CONCLUSION
For the reasons set forth in this opinion, we approve the First District‘s decision in Lee and the Second District‘s decision in Gonzalez to the extent they are consistent with our analysis. We disapprove the decisions in Althouse, Greater Orlando, and Knight Ridder, to the extent those cases require a showing that a public agency acted unreasonably or in bad faith before allowing recovery of attorney‘s fees under the Public Records Act. We remand this case for further proceedings consistent with this opinion, including a determination of the amount of attorney‘s fees to be awarded.
It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, and PERRY, JJ., concur. CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
CANADY, J., dissenting.
Because I would conclude that a рublic records custodian has not “unlawfully refused” to comply with the Public Records Act where the custodian has acted in accordance with the statutory duty of good faith, I dissent. I would quash the decision on review, disapprove Gonzalez, and approve the conflicting decisions in Althouse, Greater Orlando, and Knight Ridder.
Contrary to the reasoning of the majority, section 119.12, the provision of the Public Records Act imposing liability for attorney‘s fees on custodians of public records, cannot reasonably be read in isolation from section 119.07(1)(c), the statutory provision that establishes the duty of custodians of public records to respond “in good faith” to requests to inspeсt or copy records. The majority‘s reading of the statute uncouples the attorney‘s fee remedy for a breach of duty by a custodian of public records from the statutory definition of that duty.
The Legislature could, of course, uncouple the remedy from the duty and impose strict liability for attorney‘s fees. But the language of section 119.12 neither suggests such an uncoupling nor supports the imposition of strict liability. The majority reads the phrase “unlawfully refused” in section 119.12 as equivalent to “unlawfully failed.” Majority op. at 11-12. The meaning of “refused” and “failed,” however, are not identical. Not every failure to comply constitutes a refusal to comply. Refuse means “to show or express a positive unwillingness to do or comply with.” Webster‘s Third New International Dictionary at 1910 (1993). A refusal to comply thus carries with it “a positive unwillingness” to comply that is not present with every failure to comply. Which brings us back to the duty on which the attorney‘s fee provision is predicated: the duty to respond to public records requests “in good faith.” Where the custodian of public records has acted in good faith, the custodian has not manifested “a positive unwillingness” to comply with the Public Records Act. In such circumstances, an unlawful refusal to comply with the law has not occurred and
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions
First District - Case No. 1D12-587 (Duval County)
Robert David Klausner, Stuart Andrew Kaufman, Adam Phillip Levinson, and Paul A. Daragjati of Klausner, Kaufman, Jensen & Levinson, Plantation, Florida, for Petitioner
Robert Michael Dees of Milam Howard Nicandri Dees & Gillam, P.A., Jacksonville, Florida, for Respondent
Jonathan D. Kaney, Jr. of Kaney & Olivari, P.L., Ormond Beach, Florida, and David M. Snyder of David M. Snyder P.A., Tampa, Florida,
for Amici Curiae First Amendment Foundation, Inc., Florida Press Association, Florida Scholastic Press Association, Society of Professional Journalists, Sandra F. Chance, J.D., as Executive Director of The Brechner Center for Freedom of Information, Creative Loafing Tampa, LLC, Times Publishing Company, Media General Operations, Inc. d/b/a WFLA-TV, Dennis A. Ribaya, WPLG, Inc., Cox Media, and Patrick Lynch