Fla. appeals court awards attorney's fees for county's undue delay in complying with records request

A Florida appeals court ruled today that a county could not avoid paying attorney's fees to a successful records requester who sued for access merely by demonstrating that it did not delay in contacting her to acknowledge her request.

The Fifth District Court of Appeal in Florida awarded Susan Hewlings attorney's fees after she successfully petitioned a lower court to order Orange County, Fla., to release records pertaining to a dangerous dog investigation of her pet.

According to the opinion, Hewlings, after learning her dog was under investigation, submitted a records request to the county seeking all related records. The county left a voicemail for Hewlings that day, acknowledging its receipt of the request, but did not provide the records. She faxed another request the next day, and after one week passed with no response, her attorney contacted the county and was told a response would be issued the same day.

Three days later, the county informed her attorney that it intended to comply with the request, and Hewlings would be contacted to arrange a time to inspect the records and pick out which ones she wanted to copy. She sent a letter declining to inspect the records because she wanted all relevant documents, and after again receiving no response, requested the court to order compliance.

The court ordered the production of the records within 48 hours, and the county complied.

Hewlings' lawyer says while the investigation of her dog ultimately culminated in dismissal of the dangerous dog charge and simply a "dog at large" fine — meaning the dog did not have a leash — she incurred costs in pursuing the records.

She filed a motion for the attorney's fees, arguing that the county unjustifiably delayed in complying with her request for 45 days. As explained in the opinion, Florida's open records laws provide that "unlawful refusal" of inspection of public records warrant an award of the “reasonable costs of enforcement” of the law.

The appeals court, noting that unjustified delay in compliance constituted unlawful refusal, granted Hewlings attorney's fees. It reversed the trial court’s determination that the county's communications with her through its fax and voicemail was a sufficient response, and not an unlawful refusal.

It held that the trial court erroneously denied her attorney's fees on the basis that the agency did not "unjustifiably fail[] to respond" to the request, wrongly interpreting that phrase to mean that the county adequately "responded" to her request through its fax and voicemail. Instead, the court explained that failure to respond refers "to delay in complying with a records request, not delay in responding to a records request."

"[T]he mere fact that the County quickly responded to Hewlings' request was not dispositive of whether the County unjustifiably delayed in complying with her request," the appeals court stated.

Counsel for Hewlings, Michael Kest, saw the ruling as proof that the freedom of information system works.

“Though it was frustrating and expensive, in the end the system works," he said. "With the attorney’s fees awarded to my client, the court clarified for everybody else the importance of sufficient compliance with information requests, and hopefully this issue shouldn’t need to be litigated again.”

Counsel for the county could not be reached for comment.

Related Reporters Committee resources:

· rcfp.org: https://www.rcfp.org/topic-search?topic=12

· Florida – Open Government Guide: 9. Litigation expenses.