Open Government

PUBLIC RECORDS LITIGATION: Condition Precedent for Seeking Attorneys’ Fees Against the State

In a recent case – State of Florida, Department of Economic Opportunity v. Consumer Rights, LLC – the First District of Appeal reversed the trial court’s award of attorney’s fees under Florida’s public records law, because the party seeking the public records failed to give notice of the claim for attorney’s fees to the Department of Financial Service at the time it filed the complaint pursuant to Section 284.30, Florida Statutes.

Section 284.30, Florida Statutes, provides as follows:

State Risk Management Trust Fund; coverages to be provided.—A state self-insurance fund, designated as the “State Risk Management Trust Fund,” is created to be set up by the Department of Financial Services and administered with a program of risk management, which fund is to provide insurance, as authorized by s. 284.33, for workers’ compensation, general liability, fleet automotive liability, federal civil rights actions under 42 U.S.C. s. 1983 or similar federal statutes, and court-awarded attorney’s fees in other proceedings against the state except for such awards in eminent domain or for inverse condemnation or for awards by the Public Employees Relations Commission. A party to a suit in any court, to be entitled to have his or her attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Financial Services; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees. (Emphasis added.)

In its opinion, the Court noted that “[t]he statute explicitly excludes eminent domain, inverse condemnation, or Public Employees Relations Commission suits from this statute’s requirements. If the Legislature sought to exclude public records cases from these requirements, it would have listed it with the other exclusions. As such, the plain language of the statute shows that the Legislature intended to include public records cases within its purview.”

Accordingly, the Court concluded that the notice requirement of Section 284.30 was a condition precedent to the award of attorney’s fees and reversed the award of fees in this case, despite a finding by the trial court that the agency had “unjustifiably delayed in producing the records” in violation of Chapter 119, Florida Statutes.
A motion for rehearing has been filed with the Court.

For more information regarding this issue or other open government issues, contact Mark Herron at mherron@lawfla.com