As any reader of this blog must realize, I love language.
Among the joys I experience with language are the cherished moments when the word chosen was . . . not quite right. Like one of my daughters asking for “marijuana sauce” for her spaghetti, or a dear friend promising to “do the hanky panky” when he meant to do a child’s dance and turn himself around.
Sometimes, however, the wrong word can spell disaster, or at least lead to a massive waste of public resources.
The current debate in Tallahassee about a proposed public records reform, and the current storm of editorials and other opinion pieces, centers around the choice to be made between two words: “shall” versus “may.”
Currently, if a public agency unlawfully refuses a public records request (note that this can be due to an error or a misunderstanding of the law, as well as due to a malicious intent to violate the law), and that is proven in court, the plaintiff automatically is entitled to recover attorneys’ fees. I say “automatically” because the current statute says “the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys’ fees.” (emphasis added) The word “shall” means that the judge does not have any discretion with regard to whether or not to award attorneys’ fees, only over what is “reasonable.”
With the assurance of compensation, it just might make sense for someone to turn the tendency for human error into a business model.
Suppose I decide to make 20 requests a day. If government agencies handle 99% of requests flawlessly, I’ll get one mistake a week on average . . . a mistake that then can produce thousands of dollars in attorneys’ fees (and other “reasonable costs of enforcement”). If the agencies are 99.9% effective, I’m still getting one hit every 10 weeks on average, and the likelihood of many thousands of dollars each time.
Once I’ve managed to produce a mistake, I have no incentive to go up the ladder to resolve it. Instead, I have a considerable incentive to bring a suit. If a mistake was made, and if it takes days to correct (because I don’t complain. Notice of the suit may be the first indication that there was a mistake), my case is looking pretty good.
The agency knows it’s likely to lose and attorneys’ fees will be awarded. The agency also knows it will have to expend money to defend itself in court.
So if I propose a settlement that is more than my reasonable attorneys’ fees but less than the total cost to the agency if it litigates and loses, given that I’m guaranteed my attorneys’ fees if I win, and given that I’m likely to win, the agency is likely to settle out of court . . . and I make a tidy sum off of an innocent mistake.
Our legal system is supposed to be a balancing act of competing interests and rights. Justice holds a set of scales, not the lever to a money machine. Change “shall” to “may” and the scales are likely to return to balance.
Of course a judge should have the power to award attorney’s fees to the plaintiff. If a public agency is negligent, or worse, if it actively strives to withhold from members of the public the information to which the public is entitled, attorney’s fees should be awarded. Public agencies have a duty of transparency. If legal remedies are needed to ensure that duty is performed, so be it.
But a judge should have the discretion to weigh the significance of the infraction and the best interests of the public in determining what should be awarded to whom. That kind of discretion is present in many other areas of our civil and penal code. And where it is not, where judges’ hands are tied by statutory language (think mandatory minimum sentences, for example), it is there that we often see the greatest miscarriages of justice.
Changing “shall” to “may” with regard to attorneys’ fees is in the interest of the public. Public records laws and the sanctions agencies should face when they fail to honor them were designed to protect the public’s right to know. They weren’t designed to generate income for clever folks who know the wrong word when they read it.