by Sarah Rissman Taitt
Access to public records is a right rooted in the Florida Constitution and implemented through statute in the state of Florida.1 Although in essence it is a simple concept, providing public records to the public has become a nuanced web of laws, exemptions, and interpretations. A recent spate of public records lawsuits exposed the struggles of many governmental agencies to understand and uphold the public records law. These lawsuits also showed the relative ease in exploiting public records violations for private gain.
This article outlines current public records law issues and examines the difficult balance between protecting the right to access public records and deterring abuses. Potential solutions to public records litigation have ranged from legislative proposals to suggestions for enhanced training for public employees.2 This article focuses on the recent battles in the legislature to limit attorneys’ fees in public records cases.
Public Records Law Basics
The essence of the public records law is relatively simple: Every person has the right to inspect or copy any public record of any public agency.3 The general rule is that the public records law is liberally construed in favor of the state’s policy of open government.4 If there is any doubt whether the law applies, the doubt is resolved in favor of providing the records.5 It is easy to see how things get complicated when each section of the law is analyzed.
1) Who is every person?
Any person can request a public record.6 A public agency cannot require a person to provide identification,7 state a reason for the request,8 or make the request in writing.9 Further, Florida law does not require residency or citizenship in order for a person to make a public records request.10 This is due to the “aggressive nature” of the public records law.11
2) What is a public record?
A public record is anything made or received in connection with the official business of a public agency.12 The definition of a public record is far-reaching, including not only documents, papers, and letters, but also tapes, photographs, emails, and sound recordings.13 The Florida Supreme Court interpreted the definition as encompassing all records used to perpetuate, communicate, or formalize knowledge.14 Regardless of the format of the record, if it pertains to the official business of an agency, it is a public record subject to disclosure, with some exceptions.15 Additionally, public employees and officers who use personal equipment or resources to communicate public business, such as personal email addresses or text messages on personal cell phones, also have a duty to produce those records.16
3) What is a public agency?
Agencies subject to the public records law include state agencies, local governments, public universities, and private entities, such as contractors, acting on their behalf.17 An agency cannot absolve itself of responsibility by transferring records to another agency or entity.18 Although the public records law primarily applies to government records in the possession of the government, the law also includes application to private entities when acting on behalf of a public agency. Courts look at two general sets of circumstances to determine when records belonging to a private entity must be produced as public records: 1) whether a public entity delegates a statutorily authorized function to a private entity; or 2) whether a private entity is providing goods or services and the “totality of factors” indicates a significant level of public agency involvement.19
4) What are the remedies for an unlawful denial of a public records request?
If an agency denies a public records request or takes an unreasonably long time to respond, there are several options to enforce compliance: Seek mediation through the Office of the Attorney General Open Government Mediation Program;20 file a complaint with the local state attorney;21 file a lawsuit in court.22
Consider the following scenario to demonstrate the many opportunities for public records violations in a simple request: A man walks into a jail and asks the front desk attendant if he can inspect the jail visitor’s log. The log is a daily sign-in sheet that is kept at the front desk. [It is a public record.] The attendant asks the man for identification. [Public records violation.] The man refuses to identify himself. The attendant asks the man the reason for his request. [Public records violation.] The man refuses to provide a reason. The attendant tells the man he is required to make an official public records request before he can inspect the jail log. [Public records violation.] The man replies he is making the official request. The attendant refuses to allow inspection of the jail log. [Public records violation.] The man leaves the jail and promptly files a public records lawsuit. The attorney for the jail provides the records upon learning of the lawsuit. [Argues mootness.] The court sets an immediate hearing,23 finds a violation of the public records act occurred, and orders attorneys’ fees and costs for the plaintiff.24
This case study is offered to illustrate the relative ease in which a public records lawsuit can be successful. It is roughly based on several real scenarios that resulted in lawsuits and the award of attorneys’ fees.25 Since it is relatively simple to prove a violation of the public records law, attorneys’ fees are virtually guaranteed at the conclusion of a successful public records lawsuit. This has led to what some consider to be a proliferation of lawsuits taking advantage of the comparative ease of profiting off of public records noncompliance.26 Local governments decry these lawsuits as wasteful at best and extortion at worst, while open government advocates say the real problem is lack of education and compliance.27 This fundamental disagreement has come before both the courts and the legislature in recent years.
Government Contractor Issues
One area of focus is the application of the public records law to government contractors. The public records violations committed in the above case study can be compounded when a person requests public records from a government contractor rather than the public agency itself. Prior to 2016, any person could request records from a government contractor and sue the contractor for unlawfully refusing or otherwise not responding appropriately. The purpose of the broad application was to prevent the government from circumventing the public records law by contracting with private entities. In reality, however, many private entities were unaware of the existence and/or requirements of the public records law. This confusion often resulted in attorneys’ fees being levied against the government contractor, an outcome that left the contractor with a sour taste and a feeling of basic unfairness.
In 2013, the Florida Legislature first attempted to address this unfamiliarity with the public records law by requiring certain contract provisions for government contracts.28 Ostensibly, including the provisions in the contracts would clarify the public record responsibilities of the contractor. This change did not go far enough to fix the more important issue for the contractors — that they were subject to suit, and attorneys’ fees, for failure to comply with the public records law.
In 2016, H.B. 273 finally addressed the private sector’s main complaint. The bill amended F.S. §119.0701, requiring any requests for records to be made directly to the public agency, not the private contractor.29 The public agency must coordinate responding to the request, including notifying the contractor of the request. Private contractors may still be assessed costs and attorneys’ fees for failure to provide timely access, but the law established a new condition precedent to that award.30 The party bringing a public records suit must give both the public agency and the contractor eight business days’ notice before filing suit.31 If the contractor complies within eight business days after the notice is sent, the contractor is not liable for any costs of enforcement, including attorneys’ fees.32 This was a huge victory for government contractors, and will probably relegate new lawsuits against private contractors to substantive compliance issues, such as record destruction, and not contrived scenarios that may be less about constitutional rights and more about collecting fees.
As indicated above, the public records law includes a prevailing party attorneys’ fee provision that matches the simplicity of the general concept of public records. F.S. §119.12 provides:
If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement, including attorney’s fees.33
The purpose of the fee-shifting provision is to enable public records challenges, thereby enforcing the public’s constitutional right of access to public records. The use of this provision, or the overuse, as some would argue, prompted challenges in court as well as a multi-year lobbying effort to put limitations and restrictions on attorneys’ fees.
In 2015, S.B. 224 attempted to resolve fee disputes by proposing a five-day notice provision before an action could be filed.34 The language in the bill changed back and forth between five and three days, but the bill ultimately died. It likely suffered a lack of support because it applied to all lawsuits, not just those involving government contractors. In 2016, the notice language was split between two bills. H.B. 273, discussed above, provided an eight-day notification requirement for lawsuits involving government contractors only. This bill coasted through the approval process.35 The proponents of the second bill, S.B. 1220, struggled to justify potential burdens on the public’s right to access public records.
S.B. 1220 was a top priority for the Florida League of Cities and Florida Association of Counties. The bill rolled a notification provision into a number of other proposed changes. The measure proposed to change the award of attorneys’ fees from “shall” to “may,” allowing a judge discretion whether to award fees based on the particular circumstances of the case. It also provided for five days’ advance notice to the agency’s custodian of public records before filing a civil action.36 The intent was to stem the tide of frivolous “gotcha” lawsuits that took advantage of the public records law. Public records advocates, including the First Amendment Foundation, lobbied against the bill, arguing that it went too far and would have a chilling effect on the public’s right of access.37 The parties ultimately compromised in the final bill version, agreeing to reinstate the mandatory requirement for awarding fees in certain situations, but also prohibiting attorneys’ fees if a judge determined that the records request was made primarily to harass the agency or cause a violation of the public records law.38 The bill still failed.39
The courts in Florida were divided over whether to require a showing that the public agency acted unreasonably or in bad faith in order to award attorneys’ fees.40 This issue was definitively settled in 2016 in Board of Trustees, Jacksonville Police and Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016), when the Florida Supreme Court held that there is no “good faith” exception in the public records law.41 The court recognized that a lawsuit is the primary means of enforcing the public records law, and that the fee-shifting provision serves both to deter agencies from wrongfully denying access and encourage individuals to continue pursuing their right to public records. The absence of any standard in the fee-shifting provision, “whether good or bad faith, reasonable, or knowingly and willfully” indicated that the legislature did not intend to have any “good faith” requirement for a public records lawsuit. The court refused to read discretion into the law. Thus, only the legislature can explicitly provide a “good faith” exception for the award of attorneys’ fees under the current public records law.
Public records law requirements inevitably cause some amount of burden on government agencies, as there is necessary time, money, and staffing commitments to comply with and fulfill public records responsibilities. Coupled with actual litigation costs, the burden on the public purse may outweigh the actual benefits to the public in certain public records cases. While some agencies bear the blame in failing to allocate adequate resources and training for public records compliance, the latest trend of private profit motives in unscrupulous lawsuits cannot be ignored. Preserving the important rights guaranteed by the public records law while guarding against abuse is a delicate balance, one that will likely continue to be explored in the courts and legislature.
1 Fla. Const. art. I, §24; Fla. Stat. Ch. 119.
2 See Florida TaxWatch, Predatory Public Records Requests (Jan. 2016), available at www.floridataxwatch.org/resources/pdf/PublicRecordsFINAL.pdf.
3 Fla. Stat. §119.07(1) (2016).
4 Nat’l Collegiate Athletic Ass’n v. Associated Press, 18 So. 3d 1201, 1207 (Fla. 1st DCA 2009).
6 The constitutional right of public access to government records is “virtually unfettered” save for certain constitutional and statutory exemptions. Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985); accord, Times Publ’g Co. v. City of St. Petersburg, 558 So. 2d 487, 492 (Fla. 2d DCA 1990).
7 Bevan v. Wanicka, 505 So. 2d 1116, 1118 (Fla. 2d DCA 1987) (“[T]he Public Records Act does not condition the inspection of public records on any requirement that the person seeking to inspect records reveal that person’s background information.”).
8 Rameses, Inc. v. Demings, 29 So. 3d 418, 421 (Fla. 5th DCA 2010) (“The motivation or purpose of the person seeking disclosure of public records is irrelevant.”); see also News-Press Publ’g Co. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) (holding that even an alleged malicious motive for seeking records is irrelevant).
9 Dade County Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 305, n.1 (Fla. 3d DCA 2001) (“There is no requirement in the Public Records Act that requests for records must be in writing.”); see also Chandler v. City of Greenacres, 140 So. 3d 1080 (Fla. 4th DCA 2014).
10 The policy stated in §119.01 is that “any person” has the right to access public records.
11 Chandler v. City of Sanford, 121 So. 3d 657, 660 (Fla. 5th DCA 2013).
12 Fla. Const. art. I, §24(a).
13 Fla. Stat. §119.011(11) (2016). This expansive definition likely includes text messages, Facebook entries, and other social media communications. See Op. Att’y Gen. Fla. 08-07 (2008); and Op. Att’y Gen. Fla. 09-19 (2009).
14 Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980).
15 Fla. Office of the Att’y General, Government-in-the-Sunshine Manual (2015), available at http://myfloridalegal.com/webfiles.nsf/WF/RMAS-9UPM53/$file/2015SunshineLawManual.pdf (summary of exemptions).
16 It is the content, not the means of transmission, that determine whether a record is a public record. Fla. Stat. §119.011(12) (2016).
17 Fla. Stat. §119.011(2) (2016).
18 Sanford, 121 So. 3d at 660.
19 News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992) (establishing the totality of factors test); see also Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970 (Fla. 2d DCA 2002).
20 The Office of the Attorney General offers mediation as a cost-effective and efficient way to resolve public records disputes without litigation.
21 A knowing violation of the public records law is a first-degree misdemeanor. Fla. Stat. §119.10 (2016).
22 Attorneys’ fees and costs are recoverable for the prevailing party in a civil suit. Fla. Stat. §119.12 (2016).
23 Fla. Stat. §119.11(1) mandates that actions brought under Ch. 119 are entitled to an immediate hearing and take priority over other pending cases.
24 See Mazer v. Orange County, 811 So. 2d 857 (Fla. 5th DCA 2002) (holding that production of the public record renders the request moot, but it does not render the request for attorneys’ fees moot). “The purpose of the attorneys’ fees provision (§119.12) is to encourage public agencies to voluntarily comply with the requirements of Chapter 119, thereby ensuring that the state’s general policy is effectuated.” An unjustified delay in complying with a public records request amounts to an unlawful refusal. “However, it is equally clear that a delay does not in and of itself create liability under section 119.12.” Consumer Rights LLC v. Union Cty, Fla., 159 So. 3d 882, 885 (Fla. 1st DCA 2015).
25 David Fleshler, Man on ‘Public Records’ Mission, South Florida Sun-Sentinel, March 15, 2015, available at www.miamiherald.com/news/state/florida/article14470553.html (“At the Sarasota office of Boro Building and Property Maintenance, a polite but persistent man with a video camera asks to see the company’s contract to provide janitorial services to a state agency….The lawsuit Chandler later filed against Boro Building and Property Maintenance was one of more than 200 the Lakeland resident has filed in the past seven years over alleged public records law violations by companies and government agencies.”).
26 See, e.g., Gray v. Lutheran Social Services of Northeast Florida, Inc., Final Order Denying Relief Under Public Records Act, No. 2014-CA-4647 (Fla. 4th Cir. Ct. Dec. 2, 2014), concluding that the Public Records Act was not designed to create a cottage industry for plaintiffs seeking to abuse the act for financial gain. See also Jan Pudlow, A New Scam: Public Records Shakedown, The Florida Bar News, February 1, 2015, available at www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/b7091c05e7c0ef1385257dd30046f19b!OpenDocument.
27 Mike Brassfield, Florida Cities Say Lawsuits from Public Records Group Are a Nuisance, Tampa Bay Times, July 6, 2015, available at www.tampabay.com/news/humaninterest/lawsuits-from-public-records-group-are-a-nuisance-florida-cities-say/2236362.
28 H.B. 1309 (2013) created Fla. Stat. §119.0701.
29 Fla. Stat. §119.0701(3) (2016).
30 Fla. Stat. §119.0701(4)(a) (2016).
32 Fla. Stat. §119.0701(4)(c) (2016).
33 Fla. Stat. §119.12 (2016).
34 S.B. 224 (2015), original filed version (Jan. 5, 2015), available at www.flsenate.gov/Session/bill/2015/0224. The bill also proposed updating contract requirements regarding a contractor’s compliance with public records laws.
35 The House vote was 110-7, and the Senate vote was 34-1.
36 S.B. 1220 (2016), original filed version (Dec. 21, 2015), available at www.flsenate.gov/Session/Bill/2016/1220.
37 Mary Ellen Klas, Bill Undermines Florida’s Public Records Law, Opponents Charge, Miami Herald, Jan. 26, 2016, available at www.miamiherald.com/news/politics-government/state-politics/article56664668.html.
38 S.B. 1220 (2016), Committee Substitute 3 (Feb. 19, 2016), available at www.flsenate.gov/Session/Bill/2016/1220; Mary Ellen Klas, Compromise Reached in Attorneys’ Fees Provision of Controversial Public Records Bill, Miami Herald, Feb. 18, 2016, available at www.miamiherald.typepad.com/nakedpolitics/2016/02/compromise-reached-in-attorneys-fees-provision-of-controversial-public-records-bill-.html.
39 The bill passed the Senate unanimously but died in the House. Three bills have been filed for the 2017 legislative session: S.B. 80 (2017), original filed version (Nov. 30, 2016), available at www.flsenate.gov/Session/Bill/2017/0080; S.B. 246 (2017), original filed version (Jan. 5, 2017), available at www.flsenate.gov/Session/Bill/2017/0246; and H.B. 163 (2017), original filed version (Jan. 4, 2017), available at www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=56804&SessionId=83.
40 The Third, Fourth, and Fifth District Courts of Appeal required a showing that the public agency acted unreasonably or in bad faith. See Althouse v. Palm Beach Cty. Sheriff’s Office, 92 So. 3d 899 (Fla. 4th DCA 2012); Greater Orlando Aviation Auth. v. Nejame, Lafay, Jancha, Vara, Barker, 4 So. 3d 41 (Fla. 5th DCA 2009); Knight Ridder, Inc. v. Dade Aviation Consultants, 808 So. 2d 1268 (Fla. 3d DCA 2002).
41 The court approved of the Second District Court of Appeal’s decision in Office of State Att’y for 13th Jud. Cir. of Fla. v. Gonzalez, 953 So. 2d 759 (Fla. 2d DCA 2007), and disapproved of Althouse, Greater Orlando, and Knight Ridder.
Sarah Rissman Taitt is board certified in city, county, and local government law. She is an assistant county attorney in Osceola County, where she primarily focuses on land use and real estate issues.
This column is submitted on behalf of the City, County and Local Government Law Section, Jeannine Smith Williams, chair, and David Miller, editor.