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FMG Law Blog Line

Open Government, Retaliation and Redress: Case Study from Florida

Posted on: December 6th, 2019

By: Michael Kouskoutis

Florida is well known for its robust public records law, where, upon receipt of a public records request, custodians of public records are required to promptly acknowledge the request, then permit the requested records to be inspected within a reasonable time. Unfortunately for custodians, Florida law does not define “reasonable time,” and awards attorney’s fees for unjustified delays or failures to respond. The 11th Circuit recently examined an interesting case involving a local government’s effort to protect itself against a devious scheme created to take advantage of these open government laws.

In DeMartini v. Town of Gulf Stream, et al., a not-for-profit corporation worked with a law firm to issue nearly 2,000 deliberately vague public records requests to a small Florida town, and then, when the town didn’t promptly or adequately respond, filed or threatened to file lawsuits against the town, demanding attorney’s fees and costs. The town, hemorrhaging attorney’s fees in defending against this scheme, decided to file a RICO action against the corporation. The RICO action made its way up to the 11th Circuit, where the Court, while troubled by the corporation’s scheme, denied the town’s motion for summary judgment on the basis that threatening to file litigation against a government could not trigger liability under RICO.

Soon after, the corporation’s director filed a § 1983 claim against the town, alleging that the town unlawfully retaliated against her when it filed the RICO suit to stop the records requests. In particular, the director argued that filing public records requests is a form of constitutionally protected speech. The trial court granted the town’s motion for summary judgment on the § 1983 claim, which after appeal, also made it to the Eleventh Circuit.

The Eleventh Circuit recently affirmed the grant of summary judgment. The Court reiterated that requesting public records and seeking redress from government is an activity protected by the First Amendment, but that because the town had probable cause to initiate the civil RICO case, the director’s § 1983 claim failed. The Court recognized that the town “had a legitimate interest and motivation in protecting itself, its coffers, and its taxpaying citizens.”

Robust open government laws maybe vulnerable to abuse, but as DeMartini illustrates, courts recognize a government’s ability to protect itself.

If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].

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