What has intrigued me about the stories that Joel has shared regarding public records requests is how similar his experience has been to that of those who try to advocate for children with disabilities. You would have to read all of his posts on IAmTroublemaker and read all of the links that give first hand information how some public school officials disregard some of the laws that they are supposed to enforce to see what I am talking about.
Today, Joel has a blog post titled "Hair Trigger". Apparently, he has been accused of "filing law suits" at the drop of a dime, or maybe it it is at the drop of $23.50.
This accusation resonates with me because, in the past, I also have been accused of "always filing lawsuits" and belonging to an organization that "all they do is file lawsuits." Those people make false accusations because they are ignorant of the Individuals with Disabilities Education Act (IDEA)and the procedural safeguards that are written into the regulations. "State Complaints" are not "lawsuits."
Similar to what Joel speaks directly to below, IDEA also has a provision that attorney fees can be awarded to a parent that brings a due process suit against a local education agency and "wins." Similar to what Joel speaks directly to below, in order to "win" your attorney fees, you must "file a lawsuit." If a parent goes to an attorney because there is a problem with the Individualized Education Plan (IEP), the parent is going to have to pay this lawyer. Up until the point that the parent actually wins the due process, they are paying on their own. Despite how "wrong" a school district is, they, the school systems, are not faced with having this additional cost of keeping their position. Most parents are pretty vocal about their anger towards school systems, and will inadvertently let the District know that they have finally had enough and are "going to sue", at which point the District can concede some point, which starts the process over again. In the mean time, the parent is paying out of pocket attempting to obtain what should be a "free and appropriate public education."
Parents and attorneys that have years of experience see that school systems treat parents and attorneys as suckers because no one likes to "file a lawsuit" at the drop of the dime, or is it the split of a hair?
The reason I choose to say that school systems treat parents and attorneys as suckers is found in Joel's very last sentence below: "the requester foots the bill for making the custodian do what they should have done in the first place."
Hair Trigger: "It may seem to the uninitiated that we have a bit of a hair trigger when it comes to public records litigation. After all, over the past couple of years we’ve filed an average of one public records lawsuit every other month.
Here’s the logic for our willingness to file lawsuits:
•Under Florida law, requesters who have been denied access to non-exempt records have no real recourse except to ask the courts to intervene.
•Under Florida law, requesters that take legal action against the custodian of a public record that violates FS 119, are entitled to legal fees and expenses if the case is settled in favor of public access.
•Under Florida law, financial liability does not attach to the custodian until a lawsuit has been filed.
•Under Florida law, if a requester hires an attorney to try and cajole the custodian of a public record to obey the law and the custodian complies before a suit is filed, the requester is left holding the bag for the legal expenses. This happens far too often. A private citizen seeks access to non-exempt records; the custodian of the records denies access; the requester hires an attorney to compel access; just before a lawsuit is filed the custodian complies with the law; the requester foots the bill for making the custodian do what they should have done in the first place."
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