Legislative Update . . . Records Custodians Can No Longer Comply By Acting Reasonably? Say What?

HB 541 would create new duties and obligations for records custodians, most of which seem innocuous if not completely reasonable. These include things such as requiring each agency to designate a custodian of public records and provide appropriate notice of who the designated custodian is. No problem so far.

It would also prohibit any person who is not a designated custodian of public records from denying the existence of a public records or misleading anyone as to the existence of such a record. Is this really a big problem? Are public employees running around willy nilly denying that records exist? And, more to the point, isn't that already a violation of the public records law . . . assuming that after such a denial comes a refusal to produce the supposedly non-existent record? And why are these burdens being placed on persons other than the designated custodian of records? If a public employee not charged with the duties of the custodian "misleads" somebody as to the existence of a public record -- and notice the complete lack of any intent requirement in the statute -- has some new form of violation, or perhaps even a criminal infraction, been committed? And what exactly is required to "mislead" somebody as to the existence of a record? Here comes a runaway litigation train . . .

As bad as all that is, it's nothing compared to the supremely bad, ridiculously stupid, moronically misguided idea embodied in this seemingly innocuous sentence: "A custodian of public records and his or her designee must respond to requests to inspect or copy records promptly and in good faith." That seems harmless, until you read the House Staff Analysis report here. As the Staff Analysis makes clear, "promptly" as used in this bill means something faster than "a reasonable time," which is what the law currently requires and expects of agencies responding to records requests. Let that sink in . . . it will now no longer be sufficient for agencies to respond to records requests within a reasonable time. In fact, responding within a reasonable time is now patently insufficient and in fact would constitute a violation of the Public Records Law.

A retired partner of mine who spent a career dealing with local government issues used to have a sign on his wall that said "No man's life, liberty or property are safe while the legislature is in session." Seems fitting here . . . only our Florida legislature could actually criminalize acting reasonably.

Current Status: Voted favorably out of the Committee on State Affairs; now pending in the Government Efficiency and Accountability Council.