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Can I Get Attorney Fees in a Florida Public Records Lawsuit?

Written by Adam Bair.

TL;DR: Yes, you can often get attorney fees in a Florida public records lawsuit. When two things are true, section 119.12 says the court shall make the agency pay your fair costs and fees.

The agency must have refused the records unlawfully, and you must have sent the 5-day notice before you sued. You cannot get money damages, and a suit brought for an improper purpose can cost you the agency's fees.

What does section 119.12, Florida Statutes, say about attorney fees?

Article I, Section 24, of the Florida Constitution gives each person a constitutional right of access to public records. The Florida Legislature backed that right with a fee provision in Chapter 119, the Public Records Act.

It covers a civil action “filed against an agency to enforce the provisions of this chapter” (s. 119.12(1)). Then the court “shall assess and award the reasonable costs of enforcement, including reasonable attorney fees” (s. 119.12(1)).

That award runs against the responsible agency when the court determines two things are true. First, the agency unlawfully refused to let you inspect or copy a public record. Second, you sent the written notice in time.

The word “shall” means the court must award the fees. It is not a choice, so once both tests pass, the attorney's fees are recoverable.

Why does Florida law make the office pay?

The Florida Supreme Court put it plainly. If agencies must pay fees when they wrongly deny access, they “are less likely to deny proper requests for documents.” New York Times Co. v. PHH Mental Health Services, Inc., 616 So. 2d 27, 29 (Fla. 1993).

Florida courts say it has two jobs. The fee rule deters wrong denials, and it helps people keep up the fight for access to government records. Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 125 (Fla. 2016).

Test 1: Did the agency unlawfully refuse the records?

The first test is an unlawful refusal. A flat no to a record that is not exempt from disclosure counts. So does a claim of exemption that does not fit the law.

The court does not also need to find bad faith. There is no added rule that the office acted in bad faith or without good sense. Lee, 189 So. 3d at 122.

Unlawful conditions can count

An unlawful refusal can include unlawful conditions on access. In Lee, the court said unlawful terms or excessive special service charges keep people from their records.

Even if the pension fund did not act in bad faith, its unlawful acts still frustrated a constitutional right. See the special service charge trap.

A delay with no good reason can count

An office that fails to respond with no good reason until you sue has made an unlawful refusal. Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000).

A delay alone does not create liability, though. The court looks at whether there was a good reason for the delay. Consumer Rights, LLC v. Union County, 159 So. 3d 882, 885 (Fla. 1st DCA 2015).

A mistake is no excuse

A court may award fees even when the failure to turn over records came from a mistake or poor work. Office of the State Attorney for the Thirteenth Judicial Circuit v. Gonzalez, 953 So. 2d 759 (Fla. 2d DCA 2007).

One town had to pay fees even though the delay came from its clerk. Barfield v. Town of Eatonville, 675 So. 2d 223 (Fla. 5th DCA 1996).

Test 2: Did you send the 5-day notice?

The second test is the notice before the lawsuit. Say you make a public records request and the office says no.

Send the agency's custodian of public records a written notice that names your request. It must reach the custodian at least 5 business days before you file, under section 119.12(1)(b).

Your first public records request does not count as the notice. Roldan v. City of Hallandale Beach, 331 So. 3d 348 (Fla. 4th DCA 2023).

You may skip the notice if the agency did not post its custodian's contact details in a clear spot. They must be in its main office building and on its website, if it has one, under section 119.12(2). Read more about the five-day notice.

What is the improper purpose rule in public records litigation?

The court must also decide if you made the request, or took part in the suit, for an improper purpose. That means “primarily to cause a violation of this chapter or for a frivolous purpose” (s. 119.12(3)).

If the court finds an improper purpose, you get no fees. It must also make you pay the office's fair costs and fees.

This rule is fairly new. It came into the law in 2017, through chapter 2017-21, Laws of Florida, along with the notice rule.

One court warned against requests made to get no answer, just to build up legal fees. Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., 195 So. 3d 396, 401 (Fla. 4th DCA 2016). A real request for records you want does not fit that test.

What fees and costs can you get back?

You can get back the fair costs of the case, and fair attorney fees, that come straight from the suit. That rule is in section 119.12(4).

The trial judge sets the amount, since that judge is in a better spot than an appeals court. The judge weighs what you sought, what you won, and the time it took.

Daniels v. Bryson, 548 So. 2d 679, 682 (Fla. 3d DCA 1989).

In one case, the client paid the lawyer a flat hourly rate no matter the outcome. There, the court should not have raised the award of fees with a risk multiplier. Grapski v. City of Alachua, 134 So. 3d 987 (Fla. 1st DCA 2012).

Fees on appeal

You may also get fees for a win on appeal. You must file a motion at the time of the appeal, as the appellate rules require. Downs v. Austin, 559 So. 2d 246 (Fla. 1st DCA 1990).

What can't you recover?

You cannot get money damages, since section 119.12(4) creates no right to them. The records and the costs of the lawsuit are the relief.

You also cannot get fees for the fight over the amount of the fees. O'Boyle v. Town of Gulf Stream, 341 So. 3d 335 (Fla. 4th DCA 2022). The same case denied fees for the helpers of a fee expert who did not testify.

Does the agency avoid fees by handing over the records late?

No. Say the records come after you sue but before the final ruling.

The case is not moot, and you may still ask for fees.

Mazer v. Orange County, 811 So. 2d 857, 860 (Fla. 5th DCA 2002).

Turning over records on the eve of the hearing does not cure a delay with no good reason. Promenade D'Iberville, LLC v. Sundy, 145 So. 3d 980, 984 (Fla. 1st DCA 2014).

Can you get back costs if you sue on your own?

Yes. A person who wins with no lawyer, called pro se, may get back fair costs. Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000).

Those costs can include postage, envelopes, copies, filing fees, and fees to serve the papers. Weeks v. Golden, 846 So. 2d 1247 (Fla. 1st DCA 2003).

A lawyer who helped before joining the case may get fees for that help in one case. The complaint must have asked for fees and said a lawyer helped prepare it. O'Boyle v. Town of Gulf Stream, 341 So. 3d 343 (Fla. 4th DCA 2022).

When can the court deny fees after a win?

The record was exempt when you asked

One court denied fees because the record was exempt on the day of the request. It became public only after an investigation ended. McLendon v. Palm Beach County Office of Inspector General, 286 So. 3d 375 (Fla. 4th DCA 2019).

A private group was not sure it was an agency

A private entity that held the records may not owe fees if it was fairly unsure it was an agency. Lee v. Board of Trustees, Jacksonville Police & Fire Pension Fund, 113 So. 3d 1010 (Fla. 1st DCA 2013).

The fee provision was not meant to scare private groups into line with the threat of fees. New York Times Co. v. PHH Mental Health Services, Inc., 616 So. 2d 27, 29 (Fla. 1993). For a contractor, section 119.0701(4) sets up its own fee rule, with its own steps.

What should you check before litigation?

For the full process, see how to sue a Florida agency.

Does this fee rule cover meetings or federal records?

This article covers Florida's public records law, Chapter 119. Florida's Sunshine Law on open meetings is a different law, in Chapter 286.

The federal Freedom of Information Act is also separate. It covers U.S. agencies, not state of Florida offices or local governments. See why Florida's law is not FOIA.

Frequently asked questions

Can I get attorney fees if I win a Florida public records lawsuit?
Yes, if two things are true. The agency unlawfully refused the records, and you sent the custodian written notice 5 business days before you filed. Then section 119.12(1) says the court shall award fair costs, including attorney fees.
Does the office have to act in bad faith?
No. The Florida Supreme Court held that the court does not also need to find bad faith or unfair conduct.
What if the office says it was a mistake?
A mistake does not excuse it. Courts have allowed fees even when the failure came from a mistake or a clerk's poor work.
Can I get money damages for the delay?
No. Section 119.12(4) says the law creates no right to money damages. The office pays only the fair costs of the suit and the fees.
Can I get fees for the fight over the amount of my fees?
No. The statute does not cover fees spent arguing over how much the fees should be.
Can a person with no lawyer get anything back?
Yes. A person who wins with no lawyer may get back fair costs, such as filing fees, postage, and copies.

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Not legal advice. Educational and informational content only. Reading this site does not create an attorney-client relationship. For advice on a specific matter, consult a licensed Florida attorney.