The filing of criminal charges against public officials for violating open records laws is a rare event usually reserved for the most flagrant incidents, according to a Florida legal expert.
That’s why proponents of the state’s sweeping Government in the Sunshine Law are closely watching the cases of Martin County Commissioner Edward Fielding, 73, and former Commissioner Anne Scott, 69, who were arrested in November on criminal misdemeanor charges of failing to allow inspection of public records.
Martin County Commissioner Sarah Heard, 63, was accused of a non-criminal infraction related to violating public records laws.
The charges were brought after the powerful Lake Point Restoration mining company sued Martin County in 2014 for public records violations. After years in court and hundreds of thousands of dollars in legal fees, Lake Point won the case in February.
Most cases of alleged public records violations are made by average citizens without the resources for a lengthy legal battle.
“It’s very challenging to get a prosecutor to take an open records violation seriously as a criminal offense because violations are so habitual and routine, it’s like trying to put someone in jail for driving over 55 mph on the highway,” said Frank LoMonte, a lawyer and director of the Brechner Center for Freedom of Information at the University of Florida. “The law is so widely winked at, prosecutors hesitate to single someone out and make an example of them.”
Records kept by the Brechner Center between 2010 and mid-2016 include three incidents where criminal charges were levied for violating public records laws. In all cases the people charged were either cleared or had penalties reduced to a civil infraction.
In 2010, former Palm Beach County Commissioner Jeff Koons was charged with a second-degree misdemeanor for violating sunshine laws, as well as extortion and perjury. The charges stemmed from an accusation that he threatened opponents of a mangrove preserve that he was championing. He pleaded guilty to all charges, was sentenced to five years’ probation and fined $11,500.
Barbara Petersen, president of Florida’s First Amendment Foundation, could only think of one criminal prosecution off the top of her head. That was a case against an Escambia County School Board member, who, in 1999, was convicted criminally of a public records law violation. The conviction was ultimately tossed and all charges dropped.
Most incidents of Sunshine Law violations researched by the Brechner Center were handled civilly, usually with a $500 fine akin to a traffic ticket.
That’s what Heard is likely facing. She’s pleaded not guilty to the noncriminal infraction and is scheduled to appear in court Dec. 18.
“There are safeguards in the law so that if you just misinterpret it, you don’t go to jail,” LoMonte said.
A knowing violation of public records law by an elected official is a first-degree misdemeanor.
Messages left for Fielding were not returned. Scott’s attorney could not be reached for comment.
“In the event of a lawsuit, the public officials don’t pay a dime, they get free taxpayer-funded legal defense except in the very rare criminal prosecution,” LoMonte said. “At some point you have to put some skin in the game and make the wrongdoers themselves feel some kind of sting, or else they’ll behave as if their actions have no consequences.”
In a related case, Everglades Law Center counsel Lisa Interlandi requested public records from a closed-door meeting held by the South Florida Water Management District before approving a settlement with Lake Point in its own lawsuit.
She said it’s ironic that while Lake Point doggedly pursued its records request in court, it has tried to block her request on the grounds of continued court action, sending a letter to the water management district threatening “significant consequences” if the records are released.
The district is asking a judge to decide.
“All we did was file a public records request and then we end up in court,” Interlandi said. “We are well-equipped to go to court, but it could have been someone not as well-suited to respond to it.”