The Florida Bar
|Overview of the Sunshine and Public Records Laws - Part II|
Patricia R. Gleason
I. Government In The Sunshine Law
B. What Agencies Are Covered By The Sunshine Law?
C. What Is A Meeting Subject To The Sunshine Law?
D. What Types Of Discussions Are Covered By The Sunshine Law?
E. Does The Sunshine Law Apply To:
F. What Are The Notice And Procedural Requirements Of The Sunshine Law?
G. What Are The Consequences If A Public Board Or Commission Fails To Comply With The Sunshine Law?
II. Public Records
B. What Agencies Are Subject To The Public Records Act?
C. What Kinds Of Agency Records Are Subject To The Public Records Act?
D. To What Extent May An Agency Regulate Or Limit Inspection And Copying Of Public Records?
E. What Is The Legal Effect Of Statutory Exemptions From Disclosure?
F. To What Extent Does Federal Law Preempt State Law Regarding Public Inspection Of Records?
G. What Fees May Lawfully Be Imposed For Inspecting And Copying Public Records?
H. What Are The Options If An Agency Refuses To Produce Public Records For Inspection And Copying?
I. How Long Must An Agency Retain A Public Record?
II. PUBLIC RECORDS
A. WHAT IS A PUBLIC RECORD WHICH IS OPEN TO INSPECTION?
1. What materials are public records?
Section 119.011(12), Florida Statutes, defines "public records" to include:
all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.
The Florida Supreme Court has interpreted this definition to encompass all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). All such materials, regardless of whether they are in final form, are open for public inspection unless the Legislature has exempted them from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). Accordingly, "the form of the record is irrelevant; the material issue is whether the record is made or received by the public agency in connection with the transaction of official business." Op. Att'y Gen. Fla. 04-33 (2004).
2. When are notes or nonfinal drafts of agency proposals subject to Chapter 119, Florida Statutes?
There is no "unfinished business" exception to the public inspection and copying requirements of Chapter 119, Florida Statutes. If the purpose of a document prepared in connection with the official business of a public agency is to perpetuate, communicate, or formalize knowledge, then it is a public record regardless of whether it is in final form or the ultimate product of an agency. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980). See also, Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976) (working papers used in preparing a college budget were public records).
Accordingly, any agency document, however prepared, if circulated for review, comment or information, is a public record regardless of whether it is an official expression of policy or marked "preliminary" or "working draft" or similar label. Examples of such materials would include interoffice memoranda, preliminary drafts of agency rules or proposals which have been submitted for review to anyone within or outside the agency, and working drafts of reports which have been furnished to a supervisor for review or approval.
In each of these cases, the fact that the records are part of a preliminary process does not detract from their essential character as public records. See, Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229 (Fla. 3d DCA 1998) (book selection forms completed by state university instructors and furnished to campus bookstore “are made in connection with official business, for memorialization and communication purposes[;] [t]hey are public records”); and Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (canvassing board minutes constitute final work product of the Board, not a preliminary draft or note; therefore, city violated public records law by refusing to produce minutes until after approval by the city commission). It follows then that such records are subject to disclosure unless the Legislature has specifically exempted the documents from inspection or has otherwise expressly acted to make the records confidential. See, for example, section 119.071(1)(d), Florida Statutes, providing a limited work product exemption for agency attorneys.
Similarly, so-called “personal notes” can constitute public records if they are intended to communicate, perpetuate or formalize knowledge of some type. For example, in Miami Herald Media Company v. Sarnoff, 971 So. 2d 915 (Fla. 3d DCA 2007), the court held that a memorandum prepared by a city commissioner after a meeting with a former city official, summarizing details of what was said and containing alleged factual information about possible criminal activity, was a public record subject to disclosure. The court determined that the memorandum was not a draft or a note containing mental impressions that would later form part of a government record, but rather formalized and perpetuated his final knowledge gained at the meeting. See also Op. Att’y Gen. Fla. 05-23 (2005).
However, "under chapter 119 public employees' notes to themselves which are designed for their own personal use in remembering certain things do not fall within the definition of 'public record.'" Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185, 192 (Fla. 1st DCA 2002). Accord, Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988), holding that preliminary handwritten notes prepared by agency attorneys and intended only for the attorneys' own personal use are not public records;
More recently, the Attorney General advised that handwritten personal notes, taken by a city employee in the course of conducting his official duties and made for the purpose of assisting him in remembering matters discussed, are not public records “if the notes have not been transcribed or shown to others and were not intended to perpetuate, communicate, or formalize knowledge.” Op. Att’y Gen. Fla. 10-55 (2010). Compare, Inf. Op. to McLean, December 31, 1998 (handwritten notes prepared by a city council member regarding research on a matter being considered by the council and used at a workshop meeting as a reference in discussing the member’s position were public records).
3. When are records made or received “in connection with the transaction of official business?”
The determination as to whether certain records constitute “public records” can be difficult if the records are produced by a public officer or employee on government equipment but are “personal” in nature. The Florida Supreme Court has ruled that private e-mail stored in government computers does not automatically become a public record by virtue of that storage. State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003). "Just as an agency cannot circumvent the Public Records Act by allowing a private entity to maintain physical custody of documents that fall within the definition of 'public records,' . . . private documents cannot be deemed public records solely by virtue of their placement on an agency-owned computer." Id. at 154. Accord, Bent v. State, 46 So. 3d 1047 (Fla. 4th DCA 2010) (sound recordings made by sheriff’s office of inmate personal telephone calls to friends and family which are not investigative material are “clearly not public records”); Media General Operations, Inc. v. Feeney, 849 So. 2d 3 (Fla. 1st DCA 2003) (cellular phone records of private calls of staff employees do not constitute official business of the Florida House of Representatives). And see Butler v. City of Hallandale Beach, 68 So. 3d 278 (Fla. 4th DCA 2011) (e-mail sent by mayor from her personal account using her personal computer and blind copied to friends and supporters did not constitute a public record because the e-mail was not made pursuant to law or ordinance or in connection with the transaction of official business).
The Clearwater decision does not mean, however, that all records relating to personal matters which are found in agency files are outside the scope of the Public Records Act. As the Clearwater Court noted, the personal e-mails involved in that decision were not e-mails "that may have been isolated by a government employee whose job required him or her to locate employee misuse of government computers." State v. City of Clearwater, at 151n.2.
For example, if a state inspector general is reviewing allegations of misuse of agency equipment for private purposes, the personal emails obtained by the inspector general for his or her investigation are public records and subject to disclosure in the absence of statutory exception. And see, Miami-Dade County v. Professional Law Enforcement Association, 997 So. 2d 1289 (Fla. 3d DCA 2009), concluding that when the county aviation unit’s written procedures required pilots to maintain a personal flight log, the logs were subject to the Public Records Act. “The officers are thus paid by the County to make these logbook entries, and the entries are made ‘in connection with the transaction of official business’ of the aviation unit;” therefore, “[t]he entries are readily distinguishable from the purely personal e-mails at issue in State v. City of Clearwater [citation omitted].” Id. at 1290-1291. See also, Bill of Rights, Inc. v. City of New Smyrna Beach, No. 2009-20218-CINS (Fla. 7th Cir. Ct. April 8, 2010) (billing documents regarding personal calls made and received by city employees on city-owned or city-leased cellular telephones are public records, when those documents are received and maintained in connection with the transaction of official business; “and, the ‘official business’ of a city includes paying for telephone service and obtaining reimbursement from employees for personal calls”); and Op. Att’y Gen. Fla. 09-19 (2009) (because the creation of a city Facebook page must be for a municipal, not private purpose, the “placement of material on the city’s page would presumably be in furtherance of such purpose and in connection with the transaction of official business and thus subject to the provisions of Chapter 119, Florida Statutes.”).
B. WHAT AGENCIES ARE SUBJECT TO THE PUBLIC RECORDS ACT?
Section 119.011(2), Florida Statutes, defines "agency" to include:
any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.
Article I, section 24, Florida Constitution, establishes a constitutional right of access to any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except those records exempted by law pursuant to Article I, section 24, Florida Constitution, or specifically made confidential by the Constitution. This right of access to public records applies to the legislative, executive, and judicial branches of government; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or by the Constitution. However, although a right of access exists under the Constitution to all three branches of government, the Public Records Act, as a legislative enactment, does not apply to the Legislature or the judiciary. See, Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992).
1. Advisory boards
The definition of "agency" for purposes of Chapter 119, Florida Statutes, is not limited to governmental entities. A "public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency" is also subject to the requirements of the Public Records Act. See also, Article I, section 24, Florida Constitution, providing that the constitutional right of access to public records extends to "any public body, officer, or employee of the state, or persons acting on their behalf...." (e.s.)
2. Private organizations
A more complex question is presented when a private corporation or entity provides services for a governmental body. The term "agency" as used in the Public Records Act includes private entities "acting on behalf of any public agency." Section 119.011(2), Florida Statutes.
The Florida Supreme Court has stated that this broad definition of "agency" ensures that a public agency cannot avoid disclosure by contractually delegating to a private entity that which would otherwise be an agency responsibility. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). Cf., Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229 n.4 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) (private company operating college bookstores was an "agency" as defined in section 119.011, Florida Statutes, "notwithstanding the language in its contract with the universities that purports to deny any agency relationship").
The fact that an entity is incorporated as a nonprofit corporation is not dispositive as to its status under the Public Records Act, but rather the issue is whether the entity is “acting on behalf of” a public agency. The Attorney General’s Office has issued numerous opinions advising that if a nonprofit entity is established by law or by a governmental entity, it is subject to Chapter 119 disclosure requirements. See, Op. Att'y Gen. Fla. 94-34 (1994) (Pace Property Finance Authority, Inc., created as a Florida nonprofit corporation by Santa Rosa County as an instrumentality of the county to provide assistance in the funding and administration of certain governmental programs)
a. Receipt of public funds by private entity not dispositive
A private corporation does not act "on behalf of" a public agency merely by entering into a contract to provide professional services to the agency. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra. And see, Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970 (Fla. 2d DCA 2002) (fact that private development is located on land the developer leased from a governmental agency does not transform the leases between the developer and other private entities into public records).
Similarly, the receipt of public funds, standing alone, is not dispositive of the organization's status for purposes of Chapter 119, Florida Statutes. See, Sarasota Herald-Tribune Company v. Community Health Corporation, Inc., 582 So. 2d 730 (Fla. 2d DCA 1991), in which the court noted that the mere provision of public funds to the private organization is not an important factor in this analysis, although the provision of a substantial share of the capitalization of the organization is important. See also, Times Publishing Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999) (attorneys retained by individual county commissioners in a criminal matter were not "acting on behalf of" a public agency so as to become subject to the Public Records Act, even though the board of county commissioners subsequently voted to pay the legal expenses in accordance with a county policy providing for reimbursement of legal expenses to individual county officers who successfully defend criminal charges filed against them arising out of the performance of their official duties).
b. Application of Chapter 119, Florida Statutes, to private entities contracting with public agencies
The case law has established “two general sets of circumstances” when records belonging to a private entity must be produced as public records. See, Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002) and B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17 (Fla. 1st DCA 2008); County of Volusia v. Emergency Communications Network, Inc., 39 So. 3d 1280 (Fla. 5th DCA 2010). First, when a public entity delegates a statutorily authorized function to a private entity. Second, when a public entity contracts with a private entity to provide goods or services to facilitate the agency’s performance of its duties and the “totality of factors” indicates a significant level of involvement by the public agency. Each of these situations is discussed below.
(1) Delegation of statutorily authorized function to private entity
“[W]hen a public entity delegates a statutorily authorized function to a private entity, the records generated by the private entity’s performance of that duty become public records.” Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002).
As stated previously, the mere fact that a private entity is under contract with, or receiving funds from, a public agency is not sufficient, standing alone, to bring that agency within the scope of the Public Records Act. See, Stanfield v. Salvation Army, 695 So. 2d 501, 503 (Fla. 5th DCA 1997) (contract between Salvation Army and county to provide services does not in and of itself subject the organization to Chapter 119 disclosure requirements).
However, there is a difference between a party contracting with a public agency to provide services to the agency and a contracting party which provides services in place of the public body. News-Journal Corporation v. Memorial Hospital-West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999). Stated another way, business records of entities which merely provide services for an agency to use (such as legal professional services, for example) are probably not subject to the open government laws. Id. But, if the entity contracts to relieve the public body from the operation of a public obligation (such as operating a jail or providing fire protection) the open government laws do apply. Id.
Thus, in Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997), the court ruled that the Salvation Army was subject to the Public Records Act when it completely assumed the responsibility to provide misdemeanor probation services pursuant to a contract with Marion County. And see, Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302 (Fla. 3d DCA 2001) (a consortium of private businesses created to manage a massive renovation of an airport is an "agency" for purposes of the Public Records Act because it was created for and had no purpose other than to work on the airport contract; "when a private entity undertakes to provide a service otherwise provided by the government, the entity is bound by the Act, as the government would be"). Similarly, in B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17 (Fla. 1st DCA 2008), review denied, 4 So. 3d 1220 (Fla. 2009), the court held that a private engineering firm which contracted to provide engineering services for a city and acted de facto as the city’s engineer, was an “agency” subject to Chapter 119, Florida Statutes.
(2) Contract to provide services and the "totality of factors" test
If a private entity has not undertaken the performance of a statutory function for an agency but instead has merely contracted with the agency to provide services to facilitate the performance of its duties, the private entity’s records in that regard may be public if the “totality of the factors” indicates a significant level of involvement by the public entity. See, Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002).
Recognizing that "the statute provides no clear criteria for determining when a private entity is 'acting on behalf of' a public agency," the Supreme Court adopted a "totality of factors" approach to use as a guide for evaluating whether a private entity which is providing services to a public agency is subject to Chapter 119, Florida Statutes. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra at 1031. And see, Wells v. Aramark Food Service Corporation, 888 So. 2d 134 (Fla. 4th DCA 2004) (trial judge should have applied totality of factors analysis rather than denying petition for writ of mandamus seeking to require Aramark to provide a copy of the food service contract between it and the Department of Corrections).
The factors listed by the Supreme Court include the following:
1) the level of public funding;
2) commingling of funds;
3) whether the activity was conducted on publicly-owned property;
4) whether the contracted services are an integral part of the public agency's chosen decision-making process;
5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform;
6) the extent of the public agency's involvement with, regulation of, or control over the private entity;
7) whether the private entity was created by the public agency;
8) whether the public agency has a substantial financial interest in the private entity;
9) for whose benefit the private entity is functioning.
c. Application of Chapter 119 to private entity that has been delegated authority to keep certain records
If a public agency has delegated its responsibility to maintain records necessary to perform its functions, such records will be deemed accessible to the public. Op. Att'y Gen. Fla. 98-54 (1998) (registration and disciplinary records stored in a computer database maintained by a national securities association which are used by the Department of Banking and Finance in licensing and regulating securities dealers doing business in Florida are public records). See also, Harold v. Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996) (where a county hired a private company to be the construction manager on a renovation project and delegated to the company the responsibility of maintaining records necessary to show compliance with a "fairness in procurement ordinance," the company's records for this purpose were public records).
Section 119.035, Florida Statutes, requires an “officer-elect” [defined for purposes of that section to mean the Governor, the Lieutenant Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture] to adopt and implement reasonable measures to ensure compliance with the public records obligations set forth in chapter 119, Florida Statutes. Cf., section 286.011(1), Florida Statutes, providing that meetings subject to the Sunshine Law include “meetings with or attended by any person elected to such board or commission, but who has not yet taken office. . . .”
C. WHAT KINDS OF AGENCY RECORDS ARE SUBJECT TO THE PUBLIC RECORDS ACT?
1. Computer records
In 1982, the Fourth District Court of Appeal stated that information stored in a public agency's computer "is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet . . . ." Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983). Thus, the Public Records Act includes computer records as well as paper documents, tape recordings, and other more tangible materials. See, e.g., Op. Att'y Gen. Fla. 98-54 (1998) (applications and disciplinary reports maintained in a computer system operated by a national securities dealers association which are received electronically by state agency for use in licensing and regulating securities dealers doing business in Florida are public records subject to Chapter 119); Op. Att'y Gen. Fla. 91-61 (1991) (computer data software disk is a public record); Op. Att'y Gen. Fla. 89-39 (1989) (information stored in computer utilized by county commissioners to facilitate and conduct their official business is subject to Chapter 119, Florida Statutes); and Op. Att'y Gen. Fla. 85-03 (1985) (computer tapes are public records). Cf. Grapski v. Machen, No. 01-2005-CA-4005 J (Fla. 8th Cir. Ct. May 9, 2006), affirmed per curiam, 949 So. 2d 202 (Fla. 1st DCA 2007) (spam or bulk mail received by a public agency does not necessarily constitute a public record).
Thus, computerized public records made or received in the course of official business are governed by the same rule as written documents and other public records -- the records are subject to public inspection unless a statutory exemption exists which removes the records from disclosure. See, National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010) (public records law is not limited to paper documents but applies to documents that exist only in digital form). Cf., AGO 90-04, stating that a county official is not authorized to assign the county's right to a public record (a computer program developed by a former employee while he was working for the county) as part of a settlement of a lawsuit against the county.
a. E-Mail, Facebook and text messages
E-mail messages made or received by agency employees in connection with official business are public records and subject to disclosure in the absence of a statutory exemption from public inspection. Op. Att'y Gen. Fla. 96-34 (1996) and Op. Att’y Gen. Fla. 07-14 (2007). And see, Op. Att’y Gen. Fla. 08-07 (2008) (postings relating to city business which are submitted by a city council member to a privately-owned and operated internet website are public records).
Like other public records, e-mail messages are subject to the statutory restrictions on destruction of public records, which require agencies to adopt a schedule for the disposal of records no longer needed. Op. Att’y Gen. Fla. 96-34 (1996). For example, the e-mail communication of factual background information and position papers from one official to another is a public record and should be retained in accordance with the retention schedule for other records relating to performance of the agency's functions and formulation of policy. Op. Att'y Gen. Fla. 01-20 (2001). See, section 257.36(6), Florida Statutes, stating that a public record may be destroyed only in accordance with retention schedules established by the Division of Library and Information Services of the Department of State. Id. Cf., section 668.6076, Florida Statutes (e-mail address public record disclosure statement).
The Attorney General’s Office has stated that the placement of material on a city’s Facebook page presumably would be in connection with the transaction of official business and thus subject to Ch. 119, F.S. Thus, to the extent that the information on a city’s Facebook page constitutes a public record, the city is under an obligation to follow the public records retention schedules established by law. Op. Att’y Gen. Fla. 09-19 (2009).
In Inf. Op. to Browning, March 17, 2010, the Attorney General’s Office advised the Department of State (which is statutorily charged with development of public records retention schedules) that “the same rules that apply to e-mail should be considered for electronic communications including Blackberry PINS, SMS communications (text messaging), MMS communications (multimedia content) and instant messaging conducted by government agencies.” In response, the Department of State revised its records retention schedule to note that text messages may be public records and that retention of text messages could be required depending upon the content of those texts.
b. Formatting issues
Each agency that maintains a public record in an electronic recordkeeping system shall provide to any person, pursuant to Chapter 119, a copy of any public record in that system which is not exempted by law from public disclosure. Section 119.01(2)(f), Florida Statutes. An agency that maintains a public record in an electronic recordkeeping system must provide a copy of the record in the medium requested by the person making a Chapter 119 demand, if the agency maintains the record in that medium, and the fee charged shall be in accordance with Chapter 119, Florida Statutes. Id. Thus, a custodian of public records must, if asked for a copy of a computer software disk used by an agency, provide a copy of the disk in its original format; a typed transcript would not satisfy the requirements of section 119.07(1), Florida Statutes. Op. Att'y Gen. Fla. 91-61 (1991).
However, an agency is not generally required to reformat its records to meet a requestor's particular needs. As stated in Seigle v. Barry, the intent of Ch. 119, Florida Statutes, is "to make available to the public information which is a matter of public record, in some meaningful form, not necessarily that which the applicant prefers." 422 So. 2d at 66. Thus, the Attorney General’s Office concluded that a school district was not required to furnish electronic public records in electronic format other than the standard format routinely maintained by the district. Op. Att'y Gen. Fla. 97-39 (1997).
Despite the general rule, however, the Seigle court recognized that an agency may be required to provide access through a specially designed program prepared by or at the expense of the applicant where:
(1) available programs do not access all of the public records stored in the computer's data banks; or
(2) the information in the computer accessible by the use of available programs would include exempt information necessitating a special program to delete such exempt items; or
(3) for any reason the form in which the information is proffered does not fairly and meaningfully represent the records; or
(4) the court determines other exceptional circumstances exist warranting this special remedy. 422 So. 2d at 66, 67.
c. Remote access
Section 119.07(2)(a), Florida Statutes, authorizes but does not require agencies to provide remote electronic access to public records. However, unless otherwise required by law, the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. Fees for remote electronic access provided to the general public must be in accordance with the provisions of section 119.07(4), Florida Statutes. And see, section 119.07(2)(b), Florida Statutes, which requires the custodian to provide safeguards to protect the records from unauthorized disclosure or alteration.
2. Financial records
Many agencies prepare or receive financial records as part of their official duties and responsibilities. As with other public records, these materials are generally open to inspection unless a specific statutory exemption exists. See, Op. Att'y Gen. Fla. 96-96 (1996) (financial information submitted by harbor pilots in support of a rate increase application is not exempt from disclosure requirements).
Section 119.071(1)(b)2., Florida Statutes, provides an exemption for "sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation” or until such time as the agency provides notice of an intended decision or until 30 days after opening, whichever is earlier. And see, s. 119.071(1)(b)3., Florida Statutes, providing a temporary exemption if an agency rejects all bids, proposals or replies and concurrently provides notice of an intended decision concerning the reissued competitive solicitation or until the agency withdraws it.
Budgets and working papers used to prepare them are normally subject to inspection. Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747 (Fla. 1st DCA 1980); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976); City of Gainesville v. State ex. rel. International Association of Fire Fighters Local No. 2157, 298 So. 2d 478 (Fla. 1st DCA 1974).
c. Personal financial records
In the absence of statutory exemption, financial information prepared or received by an agency is usually subject to Chapter 119, Florida Statutes. See, Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) (personal income tax returns and financial statements submitted by public officials as part of an application to organize a bank are subject to disclosure); Op. Att'y Gen. Fla. 04-16 (2004) (financial documents contained in licensing file).
Bank account numbers and debit, charge, and credit card numbers held by an agency are exempt from public disclosure. Section 119.071(5)(b), Florida Statutes.
d. Trade secrets
The Legislature has created a number of specific exemptions from Ch. 119, Florida Statutes, for trade secrets. See, e.g., section 1004.22(2), Florida Statutes (trade secrets produced in research conducted within state universities); and section 570.544(8), Florida Statutes (trade secrets contained in records of the Division of Consumer Services of the Department of Agriculture and Consumer Services).
In addition, section 815.045, Florida Statutes, "should be read to exempt from disclosure as public records all trade secrets as defined in [section 812.081(1)c), Florida Statutes]. . . ." Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781, 785 (Fla. 1st DCA 2003), review denied sub nom., Crist v. Florida Department of Environmental Protection, 911 So. 2d 792 (Fla. 2005).
In Sepro, the court ruled that while "a conversation with a state employee is not enough to prevent the information from being made available to anyone who makes a public records request," documents submitted by a private party which constituted trade secrets as defined in s. 812.081, and which were stamped as confidential at the time of submission to a state agency, were not subject to public access. Sepro, at 784. Compare, James, Hoyer, Newcomer, Smiljanich & Yanchunis, P.A. v. Rodale, Inc., 41 So. 3d 386 (Fla. 1st DCA 2010) (customer complaints and company responses are not protected trade secrets); Cubic Transportation Systems, Inc. v. Miami-Dade County, 899 So. 2d 453, 454 (Fla. 3d DCA 2005) (company, which supplied documents to an agency and failed to mark them as "confidential" and which continued to supply them without asserting even a legally ineffectual post-delivery claim to confidentiality for some thirty days failed adequately to protect an alleged trade secret claim). (emphasis supplied by the court). Cf., Allstate Floridian Ins. Co. v. Office of Ins. Regulation, 981 So. 2d 617 (Fla. 1st DCA 2008), review denied, 987 So. 2d 79 (Fla. 2008) (to the extent Allstate believed any documents sought by the Office of Insurance Regulation were privileged as trade secrets, Allstate was required to timely seek a protective order in circuit court).
3. Litigation records
a. Attorney-client communications subject to Chapter 119, Florida Statutes
The Public Records Act applies to communications between attorneys and governmental agencies; there is no judicially created privilege which exempts these documents from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979) (only the Legislature and not the judiciary can exempt attorney-client communications from Chapter 119, Florida Statutes). See also, City of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218 (Fla. 1985) (although section 90.502, Florida Statutes, of the Evidence Code establishes an attorney-client privilege for public and private entities, this evidentiary statute does not remove communications between an agency and its attorney from the open inspection requirements of Chapter 119, Florida Statutes).
Moreover, public disclosure of these documents does not violate the public agency's constitutional rights of due process, effective assistance of counsel, freedom of speech, or the Supreme Court's exclusive jurisdiction over The Florida Bar. City of North Miami v. Miami Herald Publishing Company, supra. Accord, Brevard County v. Nash, 468 So. 2d 240 (Fla. 5th DCA 1984); Edelstein v. Donner, 450 So. 2d 562 (Fla. 3d DCA 1984), approved, 471 So. 2d 26 (Fla. 1985).
b. Limited statutory work product exemption
(1) Application of the exemption
The Supreme Court has ruled that the Legislature and not the judiciary has exclusive authority to exempt litigation records from the scope of Chapter 119, Florida Statutes. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). With the enactment of section 119.071(1)(d), Florida Statutes, the Legislature has created a narrow exemption for certain litigation work product of agency attorneys. However, this exemption applies to attorney work product that has reached the status of becoming a public record; as discussed more extensively in the section relating to "attorney notes," certain preliminary trial preparation materials, such as handwritten notes for the personal use of the attorney, are not considered to be within the definitional scope of the term "public records" and, therefore, are outside the scope of Chapter 119, Florida Statutes. See, Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998).
a. Attorney bills and payments
Only those records which reflect a "mental impression, conclusion, litigation strategy, or legal theory" are included within the parameters of the work product exemption. Accordingly, a contract between a county and a private law firm for legal counsel and documentation for invoices submitted by such firm to the county do not fall within the work product exemption. Op. Att'y Gen. Fla. 85-89 (1985). If the bills and invoices contain exempt work product under section 119.071(1)(d) -- i.e., "mental impression[s], conclusion[s], litigation strateg[ies], or legal theor[ies]," -- the exempt material may be deleted and the remainder disclosed. Id. However, information such as the hours worked or the hourly wage clearly would not fall within the scope of the exemption. Id.
Thus, an agency which improperly "blocked out" most notations on invoices prepared in connection with services rendered by and fees paid to attorneys representing the agency, "improperly withheld" nonexempt material when it failed to limit its redactions to those items "genuinely reflecting its 'mental impression, conclusion, litigation strategy, or legal theory.'" Smith & Williams, P.A. v. West Coast Regional Water Supply Authority, 640 So. 2d 216 (Fla. 2d DCA 1994). And see, Op. Att'y Gen. Fla. 00-07 (2000) (records of outside attorney fee bills received by the county's risk management office for the defense of the county, as well as its employees who are sued individually, for alleged civil rights violations are public records subject to disclosure).
b. Scope of the exemption
Section 119.071(1)(d), Florida Statutes, does not create a blanket exception to the Public Records Act for all attorney work product. Op. Att'y Gen. Fla. 91-75 (1991). The exemption is narrower than the work product privilege recognized by the courts for private litigants. Op. Att'y Gen. Fla. 85-89 (1985). In order to qualify for the work product exemption, the records must have been prepared exclusively for or in anticipation of litigation or adversarial administrative proceedings; records prepared for other purposes may not be converted into exempt material simply because they are also used in or related to the litigation. For example, memoranda prepared by a state corrections department attorney regarding lethal injection procedures do not constitute exempt attorney work product because neither memorandum “relates to any pending litigation or appears to have been prepared ‘exclusively for litigation.’” Lightbourne v. McCollum, 969 So. 2d 326, 333 (Fla. 2007). Similarly, in MHM Correctional Services, Inc. v. State, Department of Corrections, No. 2009 CA 2105 (Fla. 2d Cir. Ct. June 10, 2009), the court held that the department wrongfully withheld portions of an e-mail stream regarding the bid process as protected work product because none of the emails were prepared in contemplation of litigation as required by the statute).
Moreover, only those records which are prepared by or at the express direction of the agency attorney and reflect "a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency" are exempt from disclosure until the conclusion of the proceedings. (e.s.) See, City of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218, 219 (Fla. 1985) (noting application of exemption to "government agency, attorney-prepared litigation files during the pendency of litigation"); and City of Miami Beach v. DeLapp, 472 So. 2d 543 (Fla. 3d DCA 1985) (opposing counsel not entitled to city's legal memoranda as such material is exempt work product). Compare, City of Orlando v. Desjardins, 493 So. 2d 1027, 1028 (Fla. 1986) (trial court must examine city's litigation file in accident case and prohibit disclosure only of those records reflecting mental impression, conclusion, litigation strategy or legal theory of attorney or city) and Lightbourne v. McCollum, supra (memoranda do not constitute exempt work product because they appear to be “final in form” and convey “specific factual information” rather than mental impressions or litigation strategies). See also, Op. Att'y Gen. Fla. 91-75 (1991) (work product exemption not applicable to documents generated or received by school district investigators, acting at the direction of the school board to conduct an investigation of certain school district departments).
(2) Commencement and termination of exemption
Unlike the open meetings exemption in section 286.011(8), Florida Statutes, for certain attorney-client discussions between a governmental agency and its attorney, section 119.071(1)(d), Florida Statutes, is not limited to records created for pending litigation or proceedings, but applies also to records prepared "in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings." See, Op. Att'y Gen. Fla. 98-21 (1998), discussing the differences between the public records work product exemption in section 119.071(1)(d), and the Sunshine Law exemption in section 286.011.
But, the exemption from disclosure provided by section 119.071(1)(d), Florida Statutes, is temporary and limited in duration. City of North Miami v. Miami Herald Publishing Co., supra. The exemption exists only until the "conclusion of the litigation or adversarial administrative proceedings" even if other issues remain. Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988). Cf., Lightbourne v. McColllum, supra (even if memoranda might have been exempt work product at one time, the state waived the exemption by producing them as part of a public records response and filing copies in the court file).
For example, if the state settles a claim against one company accused of conspiracy to fix prices, the state has concluded the litigation against that company. Thus, the records prepared in anticipation of litigation against that company are no longer exempt from disclosure even though the state has commenced litigation against the alleged co-conspirator. State v. Coca-Cola Bottling Company of Miami, Inc., 582 So. 2d 1 (Fla. 4th DCA 1990). And see, Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. 10th Cir. Ct. Aug. 19, 1991) (settlement agreement not exempt as attorney work product even though another related case was pending, and agency attorneys feared disclosure of their assessment of the merits of the case and their litigation strategy). Cf., Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (private prison company under contract with sheriff to provide medical services for inmates at county jail must release records relating to a settlement agreement with an inmate because all of its records that would normally be subject to the Public Records Act if in the possession of the public agency, are likewise covered by that law, even though in the possession of the private corporation).
The Legislature has, however, established specific exemptions which address disclosure of some risk management files when other related claims remain. For example, section 768.28(16), Florida Statutes, provides an exemption for claim files maintained by agencies pursuant to a risk management program for tort liability until the termination of the litigation and settlement of all claims arising out of the same incident. See, Wagner v. Orange County, 960 So. 2d 785 (Fla. 5th DCA 2007) (section 768.28, Florida Statutes, exemption continues to apply to county’s litigation file when plaintiff pursues a portion of judgment entered against the county through the state legislative claims bill process).
The exemption afforded by section 768.28(16)(d), Florida Statutes, however, is limited to tort claims for which the agency may be liable under section 768.28, Florida Statutes, and does not apply to federal civil rights actions under 42 U.S.C. section 1983. Ops. Att'y Gen. Fla. 00-20 (2000) and 00-07 (2000). And see, Op. Att'y Gen. Fla. 92-82 (1992) (open meetings exemption provided by section 768.28, Florida Statutes, applies only to meetings held after a tort claim is filed with the risk management program). Cf., Op. Att’y Gen. Fla. 07-47 (2007) (nothing in section 768.28 expressly includes or excludes the “notice of claim” from the exemption and the Attorney General’s Office may not conclude that all such notices are per se exempt from disclosure; it is the public agency “which must make the determination in good faith whether the notice of claim falls within the public records exemption for claims files”).
Regarding draft settlements received by an agency in litigation, a circuit court has held that draft settlement agreements furnished to a state agency by a federal agency were public records despite the department's agreement with the federal agency to keep such documents confidential. Florida Sugar Cane League, Inc. v. Department of Environmental Regulation, No. 91-2108 (Fla. 2d Cir. Ct. Sept. 20, 1991), affirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992).
c. Attorney notes
Relying on its conclusion in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980), the Florida Supreme Court has recognized that "not all trial preparation materials are public records." State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990). In Kokal, the Court approved the decision of the Fifth District in Orange County v. Florida Land Co., 450 So. 2d 341, 344 (Fla. 5th DCA 1984), review denied, 458 So. 2d 273 (Fla. 1984), which described certain documents as not within the term 'public records.'
Similarly, in Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998), the Court ruled that "outlines, time lines, page notations regarding information in the record, and other similar items" in the case file, did not fall within the definition of public record, and thus were not subject to disclosure. See also, Lopez v. State, 696 So. 2d 725 (Fla. 1997) (handwritten notes dealing with trial strategy and cross examination of witnesses, not public records); and Atkins v. State, 663 So. 2d 624 (Fla. 1995) (notes of state attorney's investigations and annotated photocopies of decisional case law, not public records).
By contrast, documents prepared to communicate, perpetuate, or formalize knowledge constitute public records and are, therefore, subject to disclosure in the absence of statutory exemption. See, Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), in which the Court noted that "[i]nter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency's later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business."
Thus, in Orange County v. Florida Land Company, supra, the court concluded that trial preparation materials consisting of interoffice and intraoffice memoranda communicating information from one public employee to another or merely prepared for filing, even though not part of the agency's formal work product, were public records. As public records, such circulated trial preparation materials might be exempt from disclosure pursuant to section 119.071(1)(d), Florida Statutes, while the litigation is ongoing; however, once the case is over the materials would be open to inspection. And see, Op. Att'y Gen. Fla. 05-23 (2005).
4. Personnel records
The general rule with regard to personnel records is the same as for other public records; unless the Legislature has expressly exempted an agency's personnel records from disclosure or authorized the agency to adopt rules limiting access to such records, personnel records are subject to public inspection and copying under section 119.07(1), Florida Statutes. Michel v. Douglas, 464 So. 2d 545 (Fla. 1985).
a. Privacy concerns
The courts have rejected claims that constitutional privacy interests operate to shield agency personnel records from disclosure. See, Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985), holding that the state constitution "does not provide a right of privacy in public records" and that a state or federal right of disclosural privacy does not exist. "Absent an applicable statutory exception, pursuant to Florida's Public Records Act . . . public employees (as a general rule) do not have privacy rights in such records." Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla. 2002).
Additionally, the judiciary has refused to deny access to personnel records based on claims that the release of such information could prove embarrassing or unpleasant for the employee. See, News-Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276 (Fla. 2d DCA 1980), stating that a court is not free to consider public policy questions regarding the relative significance of the public's interest in disclosure and damage to an individual or institution resulting from such disclosure.
b. Conditions for inspection of personnel records
An agency is not authorized to unilaterally impose special conditions for the inspection of personnel records. An automatic delay in the production of such records is invalid. Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985) (automatic 48 hour delay unauthorized by Chapter 119, Florida Statutes).
Thus, an agency is not authorized to "seal" disciplinary notices and thereby remove such notices from disclosure under the Public Records Act. Op. Att'y Gen. Fla. 94-75 (1994). Nor may an agency agree to remove disciplinary records from an employee’s personnel file and maintain them in separate disciplinary file for the purpose of removing such records from public access. Op. Att’y Gen. Fla. 94-54 (1994). Accord Op. Att’y Gen. Fla. 11-19 (2011) (superintendent’s failure to comply with a statutory requirement to discuss a performance evaluation with the employee before filing it in the employee’s personnel file does not change the public records status of the evaluation; the evaluation is a public record and may not be removed from public view or destroyed). Cf., section 69.081(8)(a), Florida Statutes, providing, subject to limited exceptions, that any portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of a claim against the state or its subdivisions is "void, contrary to public policy, and may not be enforced." See also section 215.425(4)(b), Florida Statutes (on or after July 1, 2011, settlements to resolve employment disputes which result in the payment of severance pay authorized by that statute “may not include provisions that limit the ability of any party to the settlement to discuss the dispute or settlement”).
c. Collective bargaining
A collective bargaining agreement between a public employer and its employees may not validly make the personnel records of public employees confidential or exempt the same from the Public Records Act. Op. Att'y Gen. Fla. 77-48 (1977). Thus, employee grievance records are disclosable even though classified as confidential in a collective bargaining contract because "to allow the elimination of public records from the mandate of Chapter 119 by private contract would sound the death knell of the Act." Mills v. Doyle, 407 So. 2d 348, 350 (Fla. 4th DCA 1981).
Section 447.605(3), Florida Statutes, provides an exemption for "work products developed by the public employer in preparation for negotiations, and during negotiations." The exemption is limited and does not remove budgetary or fiscal information from the purview of Chapter 119, Florida Statutes. See, Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747, 749 (Fla. 1st DCA 1980), noting that "[r]ecords which are prepared for other purposes do not, as a result of being used in negotiations, come within the exemption of section 447.605(3)."
5. Social security numbers
Section 119.071(5)(a)5., Florida Statutes, states that social security numbers held by an agency are confidential and exempt from disclosure requirements. Disclosure to another governmental agency is authorized if disclosure is necessary to the performance of the receiving agency's duties and responsibilities. Section 119.071(5)(a)6., Florida Statutes.
Upon verified written request which contains the information specified in the statute, a commercial entity engaged in a commercial activity as defined in the exemption may be allowed access to social security numbers, provided that the numbers will be used only in the performance of a commercial activity. Section 119.071(5)(a)7., Florida Statutes. The question of whether a particular type of activity constitutes “commercial activity” for purposes of this provision cannot be resolved by the Attorney General’s Office. Op. Att’y Gen. Fla. 10-06 (2010).
D. TO WHAT EXTENT MAY AN AGENCY REGULATE OR LIMIT INSPECTION AND COPYING OF PUBLIC RECORDS?
1. May an agency impose its own restrictions on access to or copying of public records?
Any local enactment or policy which purports to dictate additional conditions or restrictions on access to public records is of dubious validity since the legislative scheme of the Public Records Act has preempted any local regulation of this subject. See, Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315, (1985). See also, James v. Loxahatchee Groves Water Control District, 820 So. 2d 988 (Fla. 4th DCA 2002) (trial court should have held a hearing before denying a request to inspect records at the agency's offices rather than at an off-premises location).
2. What agency employees are responsible for responding to public records requests?
Section 119.011(5), Florida Statutes, defines the term "custodian of public records" to mean "the elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee." A custodian of public records or a person having custody of public records may designate another officer or employee of the agency to permit the inspection and copying of public records, but must disclose the identity of the designee to the person requesting to inspect or copy public records. Section 119.07(1)(b), Florida Statutes.
However, the statutory reference to the records custodian does not alter the "duty of disclosure" imposed by section 119.07(1), Florida Statutes, upon "[e]very person who has custody of a public record." Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996).
Thus, the term "custodian" for purposes of the Public Records Act refers to all agency personnel who have it within their power to release or communicate public records. Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998), citing to, Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991). But, "the mere fact that an employee of a public agency temporarily possesses a document does not necessarily mean that the person has custody as defined by section 119.07." Mintus, supra, at 1361.
3. What individuals are authorized to inspect and receive copies of public records?
Section 119.01, Florida Statutes, provides that "[i]t is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person." (e.s.) See, Curry v. State, 811 So. 2d 736 (Fla. 4th DCA 2002) (defendant's conduct in making over 40 public records requests concerning victim constituted a "legitimate purpose" within the meaning of the aggravated stalking law "because the right to obtain the records is established by statute and acknowledged in the state constitution").
4. Must an individual show a "special interest" or "legitimate interest" in public records before being allowed to inspect or copy same?
No. Chapter 119, Florida Statutes, requires no showing of purpose or "special interest" as a condition of access to public records. See, State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905) (abstract companies may copy documents from the clerk's office for their own use and sell copies to the public for a profit); Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 228 at n.2 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) ("Booksmart's reason for wanting to view and copy the documents is irrelevant to the issue of whether the documents are public records"). "[T]he fact that a person seeking access to public records wishes to use them in a commercial enterprise does not alter his or her rights under Florida's public records law." Microdecisions, Inc. v. Skinner, 889 So. 2d 871,875 (Fla. 2d DCA 2004), review denied, 902 So. 2d 791 (Fla. 2005).
Note, however, that section 817.568, Florida Statutes, provides criminal penalties for unauthorized use of personal identification information for fraudulent or harassment purposes. And see, section 817.569, Florida Statutes, providing penalties for criminal use of a public record or public records information.
5. May an agency refuse to allow inspection or copying of public records on the grounds that the request for such records is "overbroad" or lacks particularity?
No. The custodian is not authorized to deny a request to inspect and/or copy public records because of a lack of specifics in the request. See, Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985), recognizing that the "breadth of such right [to inspect] is virtually unfettered, save for the statutory exemptions . . . ." Cf., Woodard v. State, 885 So. 2d 444 (Fla. 4th DCA 2004) (records custodian must furnish copies of records when the person requesting them identifies the portions of the record with sufficient specificity to permit the custodian to identify the record and forwards the statutory fee).
6. When must an agency respond to a public records request?
A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. Section 119.07(1)(c), Florida Statutes. A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed. Id.
The Public Records Act does not contain a specific time limit (such as 24 hours or 10 days) for compliance with public records requests. The Florida Supreme Court has stated that the only delay in producing records permitted under Chapter 119, Florida Statutes, is the reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt. Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., Deperte v. Tribune Company, 105 S.Ct. 2315 (1985).
A municipal policy which provides for an automatic delay in the production of public records is impermissible. Tribune Company v. Cannella, supra. Thus, an agency is not authorized to delay inspection of personnel records in order to allow the employee to be present during the inspection of his records. Tribune Company v. Cannella, supra. Nor may a city delay public access to board meeting minutes until after the city commission has approved them. Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010). And see 96-55 (1996) (board of trustees of a police pension fund may not delay release of its records until such time as the request is submitted to the board for a vote).
An agency's unreasonable and excessive delays in producing public records can constitute an unlawful refusal to provide access to public records. Town of Manalapan v. Rechler, 674 So. 2d 789 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996). For example, in Johnson v. Jarvis, 74 So. 3d 168 (Fla. 1st DCA 2011), the appellate court reviewed a state attorney’s policy requiring that certain records requests be directed to the state attorney’s main office rather than produced at a branch office where the records were located. The court said that the trial judge must hold a hearing to determine whether there was a delay to produce the requested records to the petitioner, and if so, whether the delay was reasonable under the facts of the case. See also, State v. Webb, 786 So. 2d 602, 604 (Fla. 1st DCA 2001), in which the court held that it was error for a lower court judge to vacate a misdemeanor conviction of a records custodian who had been found guilty of willfully violating section 119.07(1)(a), Florida Statutes, based on her "dilatory" response to public records requests filed by a citizen; and Hewlings v. Orange County, Florida, 87 So. 3d 839 (Fla. 5th DCA 2012) (mere fact that county quickly responded to public records request by voicemail and fax is not dispositive of whether county unjustifiably delayed in complying with the request).
An agency is not authorized to establish an arbitrary time period during which records may or may not be inspected. Op. Att'y Gen. Fla. 81-12 (1981).
7. May an agency require that a request to examine or copy public records be made in writing or require that the requestor furnish background information to the custodian?
No. Nothing in Chapter 119, Florida Statutes, requires that a requesting party make a demand for public records in person or in writing. See, Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 305n. 1 (Fla. 3d DCA 2001) ("There is no requirement in the Public Records Act that requests for records must be in writing"). And see Inf. Op. to Cook, May 27, 2011 (agency may not require public records requestor to provide physical address for mailing copies or to be physically present in order to inspect records).
If a public agency believes that it is necessary to provide written documentation of a request for public records, the agency may require that the custodian complete an appropriate form or document; however, the person requesting the records cannot be required to provide such documentation as a precondition to the granting of the request to inspect or copy public records. See, Sullivan v. City of New Port Richey, No. 86-1129CA (Fla. 6th Cir. Ct. May 22, 1987), affirmed, 529 So. 2d 1124 (Fla. 2d DCA 1988), noting that a public records requestor’s failure to complete a city form required for access to documents did not authorize the custodian to refuse to honor the request to inspect or copy public records.
8. Is an agency required to give out information from public records or to otherwise produce records in a particular form as demanded by the requestor?
A custodian is not required to give out information from the records of his or her office. Op. Att'y Gen. Fla. 80-57 (1980). The Public Records Act does not require a town to produce an employee, such as the financial officer, to answer questions regarding the financial records of the town. Op. Att'y Gen. Fla. 92-38 (1992).
Similarly, if an agency maintains a list of the names of officers and employees who have requested the exemption of their home addresses and telephone numbers under section 119.071(4)(d), Florida Statutes, the agency must provide the list. Op. Att’y Gen. Fla. 08-29 (2008). However, the agency is not required to reformat its records to make such a list in order to comply with a request under Chapter 119. Id. Nor is the clerk of court required to provide an inmate with a list of documents from a case file which may be responsive to some forthcoming request. Wootton v. Cook, 590 So. 2d 1039 (Fla. 1st DCA 1991). However, in order to comply with the statutory directive that an agency provide copies of public records upon payment of the statutory fee, an agency must respond to requests by mail for information as to copying costs. Id. And see, Woodard v. State, 885 So. 2d 444, 445n.1 (Fla. 4th DCA 2004) (case remanded where agency provided only information relating to statutory fee schedule rather than total copying cost of requested records).
An agency is not ordinarily required to reformat its records and provide them in a particular form as demanded by the requestor. Seigle v. Barry, 422 So. 2d 63 (Fla. 2d DCA 1982). However, an agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium. Section 119.01(2)(f), Florida Statutes. See Op. Att’y Gen. Fla. 91-61 (1991) (if asked, custodian must provide copy of computer disk; a typed transcript would not satisfy the requirements of section 119.07, Florida Statutes). Cf., Miami-Dade County v. Professional Law Enforcement Association, 997 So. 2d 1289 (Fla. 3d DCA 2009) (the fact that pertinent information may exist in more than one format is not a basis for exemption or denial of a public records request).
Thus, upon receipt of a public records request, the agency must comply by producing all non-exempt records in the custody of the agency that are responsive to the request, upon payment of the charges authorized in Chapter 119, Florida Statutes. However, this mandate applies only to those records in the custody of the agency at the time for request; nothing in the Public Records Act appears to require that an agency respond to a so-called “standing” request for production of public records that it may receive in the future. See, Inf. Op. to Worch, June 15, 1995.
9. May an agency refuse to comply with a request to inspect or copy the agency's public records on the grounds that the records are not in the physical possession of the custodian?
No. An agency is not authorized to refuse to allow inspection of public records on the grounds that the documents have been placed in the actual possession of an agency or official other than the records custodian. See, Tober v. Sanchez, 417 So. 2d 1053 (Fla. 3d DCA 1982), review denied sub nom., Metropolitan Dade County Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (official charged with maintenance of records may not transfer actual physical custody of records to county attorney and thereby avoid compliance with request for inspection under Chapter 119, Florida Statutes).
10. May an agency refuse to allow access to public records on the grounds that the records are also maintained by another agency?
No. The fact that a particular record is also maintained by another agency does not relieve the custodian of the obligation to permit inspection and copying in the absence of an applicable statutory exemption. Op. Att'y Gen. Fla. 86-69 (1986).
11. In the absence of express legislative authorization, may an agency refuse to allow public records made or received in the normal course of business to be inspected or copied if requested to do so by the maker or sender of the document?
No. To allow the maker or sender of documents to dictate the circumstances under which the documents are to be deemed confidential would permit private parties as opposed to the Legislature to determine which public records are subject to disclosure and which are not. Such a result would contravene the purpose and terms of Chapter 119, Florida Statutes. See, Browning v. Walton, 351 So. 2d 380 (Fla. 4th DCA 1977) (a city cannot refuse to allow inspection of records containing the names and addresses of city employees who have filled out forms requesting that the city maintain the confidentiality of all material in their personnel files). Accord, Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781 (Fla. 1st DCA 2003), review denied sub nom, Crist v. Department of Environmental Protection, 911 So. 2d 792 (Fla. 2005), (private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential). Cf., Hill v. Prudential Ins. Co. of America, 701 So. 2d 1218 (Fla. 1st DCA 1997), review denied, 717 So. 2d 536 (Fla. 1998) (materials obtained by state agency from anonymous sources during the course of its investigation of an insurance company were public records and subject to disclosure in the absence of statutory exemption, notwithstanding the company's contention that the records were "stolen" or "misappropriated" privileged documents that were delivered to the state without the company's permission).
Similarly, it has been held that an agency "cannot bargain away its Public Records Act duties with promises of confidentiality in settlement agreements." Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. 10th Cir. Ct. Aug. 19, 1991), stating that a confidentiality provision in a settlement agreement which resolved litigation against a public hospital did not remove the document from the Public Records Act. Cf., section 69.081(8), Florida Statutes, part of the "Sunshine in Litigation Act," providing, subject to certain exceptions, that any portion of an agreement which conceals information relating to the settlement or resolution of any claim or action against an agency is void, contrary to public policy, and may not be enforced, and requiring that settlement records be maintained in compliance with Chapter 119, Florida Statutes. And see, National Collegiate Athletic Association v. The Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010), holding that a confidentiality agreement entered into by a private law firm on behalf of a state university with the NCAA that allowed access to records contained on the NCAA’s secure custodial website that were used by the university in preparing a response to possible NCAA sanctions, had no impact on whether such records were public records stating that “[a] public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private”; and Inf. Op. to Barry, June 24, 1998, stating that “a state agency may not enter into a settlement agreement or other contract which contains a provision authorizing the concealment of information relating to a disciplinary proceeding or other adverse employment decision from the remainder of a personnel file.”
12. Must an agency state the basis for its refusal to release an exempt record?
Yes. Section 119.07(1)(e), Florida Statutes, states that a custodian of a public record who contends that a record or part of a record is exempt from inspection must state the basis for the exemption, including the statutory citation to the exemption. Additionally, upon request, the custodian must state in writing and with particularity the reasons for the conclusion that the record is exempt from inspection. Section 119.07(1)(f), Florida Statutes. See, Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000)(agency's response that it had provided all records "with the exception of certain information relating to the victim" deemed inadequate because the response "failed to identify with specificity either the reasons why the records were believed to be exempt, or the statutory basis for any exemption. Cf., City of St. Petersburg v. Romine, 719 So. 2d 19, 21 (Fla. 2d DCA 1998), noting that the Public Records Act "may not be used in such a way as to obtain information that the Legislature has declared must be exempt from disclosure."
13. May an agency refuse to allow inspection and copying of an entire public record on the grounds that a portion of the record contains information which is exempt from disclosure?
No. Where a public record contains some information which is exempt from disclosure, section 119.07(1)(d), Florida Statutes, requires the custodian of that document to redact only that portion of the record for which a valid exemption is asserted and to provide the remainder of the record for inspection and copying. See, Ocala Star Banner Corp. v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA 1994) (city may redact confidential identifying information from police report but must produce the rest for inspection). The fact that an agency believes that it would be impractical or burdensome to redact confidential information from its records does not excuse noncompliance with the mandates of the Public Records Act. Op. Att'y Gen. Fla. 99-52 (1999). Cf., Op. Att'y Gen. Fla. 02-73 (2002) (agency must redact confidential and exempt information and release the remainder of the record; agency is not authorized to release records containing confidential information, albeit anonymously.)
14. May an agency refuse to allow inspection of public records because the agency believes disclosure could violate privacy rights?
It is well established in Florida that "neither a custodian of records nor a person who is the subject of a record can claim a constitutional right of privacy as a bar to requested inspection of a public record which is in the hands of a government agency." Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991), review denied, 589 So. 2d 289 (Fla. 1991). Thus, to the extent that information on a city’s Facebook page constitutes a public record within the meaning of the Public Records Act, the state constitutional privacy provision in Article I, section 23, Florida Constitution, “is not implicated.” Op. Att’y Gen. Fla. 09-19 (2009).
15. What is the liability of a custodian for release of public records?
It has been held that there is nothing in Chapter 119, Florida Statutes, indicating an intent to give private citizens a right to recovery for negligently maintaining and providing information from public records. Friedberg v. Town of Longboat Key, 504 So. 2d 52 (Fla. 2d DCA 1987).
However, a custodian is not protected against tort liability resulting from that person intentionally communicating public records or their contents to someone outside the agency which is responsible for the records unless the person inspecting the records has made a bona fide request to inspect the records or the communication is necessary to the agency's transaction of its official business. Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991), review denied, 589 So. 2d 289 (Fla. 1991).
E. WHAT IS THE LEGAL EFFECT OF STATUTORY EXEMPTIONS FROM DISCLOSURE?
1. Creation of exemptions
"Courts cannot judicially create any exceptions, or exclusions to Florida's Public Records Act." Board of County Commissioners of Palm Beach County v. D.B., 784 So. 2d 585, 591 (Fla. 4th DCA 2001). Accord, Wait v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla. 1979) (Public Records Act "excludes any judicially created privilege of confidentiality;" only the Legislature may exempt records from public disclosure).
Article I, section 24(c), Florida Constitution, authorizes the Legislature to enact general laws creating exemptions provided that such laws "shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law." See, Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373, 380 (Fla. 1999), in which the Court refused to "imply" an exemption from open records requirements, stating "we believe that an exemption from public records access is available only after the legislature has followed the express procedure provided in Article I, section 24(c) of the Florida Constitution."
2. Exemptions are strictly construed
The Public Records Act is to be liberally construed in favor of open government, and exemptions from disclosure are to be narrowly construed so they are limited to their stated purpose. Krischer v. D'Amato, 674 So. 2d 909 (Fla. 4th DCA 1996); Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988). And see, Halifax Hospital Medical Center v. News-Journal Corporation, 724 So. 2d 567 (Fla. 1999) (1995 exemption to the Sunshine Law for certain hospital board meetings ruled unconstitutional because it did not meet the constitutional standard for exemptions set forth in article I, section 24[b] and [c], Florida Constitution). An agency claiming an exemption from disclosure bears the burden of proving the right to an exemption. See, Florida Freedom Newspapers, Inc. v. Dempsey, 478 So. 2d 1128 (Fla. 1st DCA 1985).
Access to public records is a substantive right. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 784 So. 2d 438 (Fla. 2001). Thus, a statute affecting that right is presumptively prospective and there must be a clear legislative intent for the statute to apply retroactively. Id. See also, Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189, 192-193 (Fla. 1st DCA 2004) (generally, the critical date in determining whether a document is subject to disclosure is the date the public records request is made; the law in effect on that date applies).
However, if the Legislature is "clear in its intent," an exemption may be applied retroactively. Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388, 396 (Fla. 5th DCA 2002), review denied, 848 So. 2d 1153 (Fla. 2003) (statute exempting autopsy photographs from disclosure is remedial and may be retroactively applied). Accord Op. Att’y Gen. Fla. 11-16 (2011) (applying exemption to a public records request received before the statute’s effective date because the legislation creating the exemption states that it “applies to information held by an agency, before, on or after the effective date of this exemption”).
3. Release or transfer of confidential or exempt records
There is a difference between records the Legislature has determined to be exempt from the Public Records Act and those which the Legislature has determined to be exempt from the Act and confidential. WFTV, Inc. v. School Board of Seminole, 874 So. 2d 48 (Fla. 5th DCA 2004), review denied, 892 So. 2d 1015 (Fla. 2004). If information is made confidential in the statutes, the information is not subject to inspection by the public and may be released only to those persons and entities designated in the statute. Id. And see, Ops. Att'y Gen. Fla. 04-09 (2004) and 86-97 (1986).
On the other hand, if the records are not made confidential but are simply exempt from the mandatory disclosure requirements in section 119.07(1)(a), Florida Statutes, the agency is not prohibited from disclosing the documents in all circumstances. See, Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991), review denied, 589 So. 2d 289 (Fla. 1991), in which the court observed that pursuant to section 119.07(3)(d), Florida Statutes, [now section 119.071(2)(c), Florida Statutes] "active criminal investigative information" was exempt from the requirement that public records be made available for public inspection. However, as stated by the court, "the exemption does not prohibit the showing of such information." 575 So. 2d at 686.
In City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995), the court stated that when a criminal justice agency transfers exempt information to another criminal justice agency, the information retains its exempt status. And see, Ragsdale v. State, 720 So. 2d 203, 206 (Fla. 1998) ("the focus in determining whether a document has lost its status as a public record must be on the policy behind the exemption and not on the simple fact that the information has changed agency hands").
F. TO WHAT EXTENT DOES FEDERAL LAW PREEMPT STATE LAW REGARDING PUBLIC INSPECTION OF RECORDS?
The general rule is that records which would otherwise be public under state law are unavailable for public inspection only when there is an absolute conflict between federal and state law relating to confidentiality of records. If a federal statute requires particular records to be closed and the state is clearly subject to the provisions of such statute, then pursuant to the Supremacy Clause of the United States Constitution, Article VI, section 2, United States Constitution, the state must keep the records confidential. State ex rel. Cummer v. Pace, 159 So. 679 (Fla. 1935); Ops. Att'y Gen. Fla. 90-102 (1990), 85-3 (1985), 81-101 (1981), 80-31 (1980), 74-372 (1974), and 73-278 (1973). And see, Florida Department of Education v. NYT Management Services, Inc., 895 So. 2d 1151 (Fla. 1st DCA 2005) (federal law prohibits public disclosure of social security numbers in state teacher certification database).
Thus, tenant records of a public housing authority are not exempt, by reason of the Federal Privacy Act, from disclosure otherwise required by the Florida Public Records Act. Housing Authority of the City of Daytona Beach v. Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994). And see, Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) (exemptions from disclosure in Federal Freedom of Information Act apply to documents in the custody of federal agencies; the Act is not applicable to state agencies).
In the absence of statutory authorization, a public official is not empowered to obtain a copyright for material produced by his or her office in connection with the transaction of official business. Ops. Att'y Gen. Fla. 03-42 (2003) and 88-23 (1988). Thus, a property appraiser is not authorized to assert copyright protection in the Geographic Information Systems maps created by his office. Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. 2d DCA 2004), review denied, 902 So. 2d 791 (Fla. 2005).
The federal copyright law, when read together with Florida's Public Records Act, authorizes and requires the custodian of records of the Department of State to make maintenance manuals supplied to that agency pursuant to law available for examination and inspection purposes. With regard to reproducing, copying, and distributing copies of these maintenance manuals which are protected under the federal copyright law, state law must yield to the federal law on the subject. Op. Att'y Gen. Fla. 03-26 (2003). Cf., State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377 (Fla. 1st DCA 1994) (agency copy of administrative hearing transcript is a public record regardless of who ordered the transcription or bore its expense; thus, agency can charge only the fees authorized in Chapter 119, Florida Statutes, regardless of the fact that the court reporter may have copyrighted the transcript).
G. WHAT FEES MAY LAWFULLY BE IMPOSED FOR INSPECTING AND COPYING PUBLIC RECORDS
1. When may an agency charge a fee for the mere inspection of public records?
As noted in Op. Att'y Gen. Fla. 85-03 (1985), providing access to public records is a statutory duty imposed by the Legislature upon all record custodians and should not be considered a profit-making or revenue-generating operation. Thus, public information must be open for inspection without charge unless otherwise expressly provided by law. See, State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905).
Section 119.07(4)(d), Florida Statutes, authorizes the imposition of a special service charge when the nature or volume of public records to be inspected is such as to require extensive use of information technology resources, or extensive clerical or supervisory assistance, or both. The charge must be reasonable and based on the labor or computer costs actually incurred by the agency. Thus, an agency may adopt a policy imposing a reasonable special service charge based on the actual labor cost for personnel who are required, due to the nature or volume of a public records request, to safeguard such records from loss or destruction during their inspection. Op. Att'y Gen. Fla. 00-11 (2000). In doing so, however, the county's policy should reflect no more than the actual cost of the personnel's time and be sensitive to accommodating the request in such a way as to ensure unfettered access while safeguarding the records. Id.
2. Is an agency required to provide copies of public records if asked, or may the agency allow inspection only?
Section 119.07(4), Florida Statutes, provides that the custodian shall furnish a copy or a certified copy of a public record upon payment of the fee prescribed by law. See, Fuller v. State ex rel. O'Donnell, 17 So. 2d 607 (Fla. 1944) ("The best-reasoned authority in this country holds that the right to inspect public records carries with it the right to make copies.")
3. What fees may be charged for copies?
Chapter 119 does not prohibit agencies from providing informational copies of public records without charge. Op. Att'y Gen. Fla. 90-81 (1990). An agency may, however, charge a fee for copies provided that the amount of the fee does not exceed that authorized by Chapter 119, Florida Statutes, or established elsewhere in the statutes for a particular record. See, Roesch v. State, 633 So. 2d 1, 3 (Fla. 1993) (indigent inmate not entitled to receive copies of public records free of charge nor to have original state attorney files mailed to him in prison; prisoners are "in the same position as anyone else seeking public records who cannot pay" the required costs); and City of Miami Beach v. Public Employees Relations Commission, 937 So. 2d 226 (Fla. 3d DCA 2006) (labor union must pay costs stipulated in Chapter 119, Florida Statutes, for copies of documents it has requested from a public employer for collective bargaining purposes).
If no fee is prescribed elsewhere in the statutes, section 119.07(4)(a)1., Florida Statutes, authorizes the custodian to charge a fee of up to 15 cents per one-sided copy for copies that are 14 inches by 8 ½ inches or less. An agency may charge no more than an additional 5 cents for each two-sided duplicated copy. Section 119.07(4)(a)2., Florida Statutes. A charge of up to $1.00 per copy may be assessed for a certified copy of a public record. Section 119.07(4)(c), Florida Statutes.
For other copies, the charge is limited to the actual cost of duplication of the record. Section 119.07(4)(a)3., Florida Statutes. The phrase "actual cost of duplication" is defined to mean "the cost of the material and supplies used to duplicate the public record, but does not include the labor cost and overhead cost associated with such duplication." Section 119.011(1), Florida Statutes. An exception, however, exists for copies of county maps or aerial photographs supplied by county constitutional officers which may include a reasonable charge for the labor and overhead associated with their duplication. Section 119.07(4)(b), Florida Statutes. And see, the discussion on the special service charge.
4. May an agency charge for travel costs, search fees, development costs and other incidental costs?
With the exception of county maps or aerial photographs supplied by county constitutional officers, the Public Records Act does not authorize the addition of overhead costs such as utilities or other office expenses to the charge for public records. Op. Att'y Gen. Fla. 99-41 (1999). Thus, an agency may not charge for travel time and retrieval costs for public records stored off-premises. Op. Att'y Gen. Fla. 90-07 (1990). And see, Op. Att'y Gen. Fla. 02-37 (2002) (although an agency may contract with a private company to provide information also obtainable through the agency, it may not abdicate its duty to provide such records for inspection and copying by requiring those seeking public records to do so only through its designee and then paying whatever fee that company may establish for its services).
Similarly, an agency may not charge fees designed to recoup the original cost of developing or producing the records. Op. Att'y Gen. Fla. 88-23 (1988) (state attorney not authorized to impose a charge to recover part of costs incurred in production of a training program; the fee to obtain a copy of the videotape of such program is limited to the actual cost of duplication of the tape). And see, State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377, 1382 (Fla. 1st DCA 1994) (once a transcript of an administrative hearing is filed with the agency, the transcript becomes a public record regardless of who ordered the transcript or paid for the transcription; the agency can charge neither the parties nor the public a fee that exceeds the charges authorized in the Public Records Act).
5. When may an agency charge a special service charge for extensive use of clerical or supervisory labor or extensive information technology resources?
Section 119.07(4)(d), Florida Statutes, states that if the nature or volume of public records to be inspected or copied requires the extensive use of information technology resources or extensive clerical or supervisory assistance, or both, the agency may charge a special service charge which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both. The special service charge applies to requests for both inspection and copies of public records when extensive clerical assistance is required. Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008).
a. Labor costs may include salary and benefits but must be reasonable
The term “labor cost” for purposes of the special service charge may include both salary and benefits. Board of County Commissioners v. Colby, supra. However, the statute requires that the special service charge be “reasonable” and based on actual costs. Id. See, Carden v. Chief of Police, 696 So. 2d 772, 773 (Fla. 2d DCA 1996), stating that an "excessive charge" under section 119.07(4)(d), Florida Statutes, "could well serve to inhibit the pursuit of rights conferred by the Public Records Act." Cf., Cone & Graham, Inc. v. State, No. 97-4047 (Fla. 2d Cir. Ct. October 7, 1997) (an agency's decision to "archive" older e-mail messages on tapes so that they could not be retrieved or printed without a systems programmer was analogous to an agency's decision to store records off-premises in that the agency rather than the requestor must bear the costs for retrieving the records). Moreover, in State v. Gudinas, No. CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999), the court concluded that an agency could charge only a clerical rate for the time spent making copies, even if due to staff shortages, a more highly paid person did the work. See also, Board of County Commissioners of Highlands County v. Colby, supra, in which the court approved a charge based on the salary of the director’s assistant, even though the director actually handled the request.
b. What is an “extensive” use of labor or information technology resources?
Section 119.07(4)(d), Florida Statutes, does not contain a definition of the term "extensive." In 1991, a divided First District Court of Appeal upheld a hearing officer's order rejecting an inmate challenge to a Department of Corrections (DOC) rule that defined "extensive" for purposes of the special service charge. Florida Institutional Legal Services, Inc. v. Florida Department of Corrections, 579 So. 2d 267 (Fla. 1st DCA 1991), review denied, 592 So. 2d 680 (Fla. 1991). The agency rule defined "extensive" to mean that it would take more than 15 minutes to locate, review for confidential information, copy and refile the requested material.
An agency is not ordinarily authorized to charge for the cost to review records for statutorily exempt material. Op. Att'y Gen. Fla. 84-81 (1984). However, the special service charge may be imposed for this work if the volume of records and the number of potential exemptions make review and redaction of the records a time-consuming task. See, Florida Institutional Legal Services, Inc. v. Florida Department of Corrections, 579 So. 2d at 269. And see, Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), noting that "it would not be unreasonable in these types of cases [involving many documents and several different exemptions] to charge a reasonable special fee for the supervisory personnel necessary to properly review the materials for possible application of exemptions."
c. May an agency require an advance deposit?
A county policy to require an advance deposit “seems prudent given the legislature’s determination that taxpayers should not shoulder the entire expense of responding to an extensive request for public records.” Board of County Commissioners v. Colby, 976 So. 2d 31, 37 (Fla. 2d DCA 2008). Similarly, an agency may require that a public records requestor pay past due fees for records compiled for a previous request before complying with the requestor’s subsequent request. Lozman v. City of Riviera Beach, 995 So. 2d 1027 (Fla. 4th DCA 2008).
H. WHAT ARE THE OPTIONS IF AN AGENCY REFUSES TO PRODUCE PUBLIC RECORDS FOR INSPECTION AND COPYING?
1. Voluntary mediation program
Section 16.60, Florida Statutes, establishes the open government mediation program as a voluntary alternative for resolution of public access disputes. For more information about mediation, please contact the Attorney General's Office at the following address and telephone number: The Capitol, PL-01, Tallahassee, Florida 32399-1050; telephone: (850) 245-0140.
2. Civil action
A person who has been denied the right to inspect and/or copy public records under the Public Records Act may bring a civil action against the agency to enforce the terms of Ch. 119, Florida Statutes. See, Radford v. Brock, 914 So. 2d 1066 (Fla. 2d DCA 2005) (trial judge dismissal of a writ of mandamus directed to clerk of court and court reporter who were alleged to be records custodians was erroneous because trial judge did not issue a show cause order to the clerk of court and court reporter, and because there was no sworn evidence refuting the petitioner's allegations).
Before filing a lawsuit, the petitioner must have furnished a public records request to the agency. Villarreal v. State, 687 So. 2d 256 (Fla. 1st DCA 1996), review denied, 694 So. 2d 741 (Fla. 1997), cert. denied, 118 S.Ct. 316 (1997) (improper to order agency to produce records before it has had an opportunity to comply). And see, Hillier v. City of Plantation, 935 So. 2d 105 (Fla. 4th DCA 2006) (trial court ruling finding that city had complied with Hillier's public records requests was supported by competent, substantial evidence).
Section 119.11(1), Florida Statutes, mandates that actions brought under Ch. 119 are entitled to an immediate hearing and take priority over other pending cases. See, Matos v. Office of the State Attorney for the 17th Judicial Circuit, 80 So. 3d 1149 (Fla. 4th DCA 2012) (“[a]n immediate hearing does not mean one scheduled within a reasonable time, but means what the statute says: immediate”) and Salvador v. Fennelly, 593 So. 2d 1091 (Fla. 4th DCA 1992) (the early hearings provision reflects a legislative recognition of the importance of time in public records cases; such hearings must be given priority over more routine matters).
Generally, mandamus is the appropriate remedy to enforce compliance with the Public Records Act. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992), review dismissed sub nom., Staton v. Austin, 605 So. 2d 1266 (Fla. 1992). See also, Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000). If the requestor's petition presents a prima facie claim for relief, an order to show cause should be issued so that the claim may receive further consideration on the merits. Staton v. McMillan, supra. Accord, Gay v. State, 697 So. 2d 179 (Fla. 1st DCA 1997).
Mandamus is a "one time order by the court to force public officials to perform their legally designated employment duties." Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996). Thus, a trial court erred when it retained continuing jurisdiction to oversee enforcement of a writ of mandamus granted in a public records case. Id. However, it has been recognized that injunctive relief may be available upon an appropriate showing for a violation of Chapter 119, Florida Statutes. See, Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989). And see, Areizaga v. Board of County Commissioners of Hillsborough County, 935 So. 2d 640 (Fla. 2d DCA 2006) (circuit courts may not refer extraordinary writs to mediation; thus, trial judge should not have ordered mediation of petition for writ of mandamus seeking production of public records).
b. Procedural issues
(1) In camera inspection
Section 119.07(1)(g), Florida Statutes, provides that in any case in which an exemption to the public inspection requirements in section 119.07(1), Florida Statutes, is alleged to exist pursuant to section 119.071(1)(d) or (f), (2)(d), (e), or (f), or (4)(c), Florida Statutes, the public record or part of the record in question shall be submitted to the trial court for an in camera examination.
While section 119.07(1)(g), Florida Statutes, states that an in camera inspection is “discretionary” in cases where an exemption is alleged under section 119.071(2)(c), Florida Statutes, it has been held that an in camera inspection is necessary in order for the court to determine whether the exemption applies to the records at issue. See Woolling v. Lamar, 764 So. 2d 765 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186 (Fla. 2001).
While the trial court’s failure to conduct an in camera inspection usually constitutes reversible error, where the petitioner objected to an inspection and thereby precluded the trial judge from conducting “an intelligent review of the documents,” the appellate court was “compelled to affirm” the trial court’s denial of a petition seeking documents relating to a pending criminal investigation. Althouse v. Palm Beach County Sheriff’s Office, 89 So. 3d 288 (Fla. 4th DCA 2012).
In Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), the court noted that "[p]roduction of the records after the [public records] lawsuit was filed did not moot the issues raised in the complaint." See also, Mazer v. Orange County, Florida, 811 So. 2d 857 (Fla. 5th DCA 2002) ("the fact that the requested documents were produced in the instant case after the action was commenced, but prior to final adjudication of the issue by the trial court, does not render the case moot or preclude consideration of [the petitioner's] entitlement to fees under the statute") and Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (city’s refusal to provide canvassing board minutes until they had been approved by city commission “denied any realistic access for the only purpose appellants sought to achieve—review of the Minutes before the Commission meeting[;]” accordingly, “the damage to appellants was not mooted”).
If the person seeking public records prevails in the trial court, the public agency must comply with the court's judgment within 48 hours unless otherwise provided by the trial court or such determination is stayed within that period by the appellate court. Section 119.11(2), Florida Statutes. An automatic stay shall exist for 48 hours after the filing of the notice of appeal for public records and public meeting cases. Rule 9.310(b)(2), Florida Rules of Appellate Procedure.
(4) Attorney's fees
Section 119.12, Florida Statutes, provides that if a civil action is filed against an agency to enforce the provisions of this chapter and the court determines that the 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 reasonable attorney's fees. A successful pro se litigant is entitled to reasonable costs of enforcement. Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000). And see, Weeks v. Golden, 846 So. 2d 1247 (Fla. 1st DCA 2003) (prevailing pro se inmate entitled to an award of costs including postage, envelopes and copying, in addition to filing and service of process fees).
“[A]ttorney’s fees are awardable for unlawful refusal to provide public records under two circumstances: first, when a court determines that the reason proffered as a basis to deny a public records request is improper, and second, when the agency unjustifiably fails to respond to a public records request by delaying until after the enforcement action has been commenced.” Office of the State Attorney v. Gonzalez, 953 So. 2d 759, 764 (Fla. 2d DCA 2007). Thus, attorney's fees are recoverable even where access is denied on a good faith but mistaken belief that the documents are exempt from disclosure. News and Sun-Sentinel Company v. Palm Beach County, 517 So. 2d 743 (Fla. 4th DCA 1987); Times Publishing Company, Inc. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990). And see Hewlings v. Orange County, Florida, 87 So. 3d 839 (Fla. 5th DCA 2012) (mere fact that county quickly responded to public records request via voicemail and fax is not dispositive of whether the county’s 45-day delay in complying with the request was unjustified; thus trial court erred in ruling that petitioner was not entitled to recover attorney’s fees simply because county had responded to the request in a timely manner).
Similarly, an agency that misplaced a public records request and thus failed to produce the documents until a lawsuit was filed more than 90 days after the request was made, was required to pay fees. Office of the State Attorney v. Gonzalez, supra. And see, Weeks v. Golden, 798 So. 2d 848 (Fla. 1st DCA 2001)(where prison inmate made public records request and state attorney offered no reason for failing to respond to request, trial judge erred in refusing to award costs to inmate). Cf., Alston v. City of Riviera Beach,882 So. 2d 436 (Fla. 4th DCA 2004) (denial of attorney's fee claim affirmed because "[t]he record supports the trial court's conclusion that the city had a good faith and reasonable belief that Alston's request applied only to documents under the control of the parks and recreation department and that Alston failed to establish that the city unlawfully withheld police department records").
In accordance with the appellate rules, attorney's fees may also be awarded for a successful appeal of a denial of access. Downs v. Austin, 559 So. 2d 246 (Fla. 1st DCA 1990). When the appellate court grants a motion seeking attorney’s fees and remands only for the purpose of calculating the amount of the fees, the circuit court is required to follow the appellate court’s mandate without further consideration. Office of the State Attorney v. Gonzalez, supra, And see Johnson v. Jarvis, 37 F.L.W. D2107 (Fla. 1st DCA 2012) (trial court erred in denying motion for costs based on appellant’s failure to comply with the notice requirement in s. 284.30, F.S.; [f]or purposes of appellate costs, the appellant was the prevailing party . . . and is entitled to an award of his costs incurred therein”).
c. Criminal penalties
In addition to judicial remedies, section 119.10(1)(b), Florida Statutes, provides that a public officer who knowingly violates the provisions of section 119.07(1), Florida Statutes, is subject to suspension and removal or impeachment and is guilty of a misdemeanor of the first degree, punishable by possible criminal penalties of one year in prison, or $1,000 fine, or both. See, State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001).
Section 119.10(1)(a), Florida Statutes, provides that a violation of any provision of Chapter 119, Florida Statutes, by a public official is a noncriminal infraction, punishable by fine not exceeding $500. A state attorney may prosecute suits charging public officials with violations of the Public Records Act, including those violations which may result in a finding of guilt for a noncriminal infraction. Op. Att'y Gen. Fla. 91-38 (1991).
I. HOW LONG MUST AN AGENCY RETAIN A PUBLIC RECORD?
1. Delivery of records to successor
Section 119.021(4)(a), Florida Statutes, provides that whoever has custody of public records shall deliver such records to his successor at the expiration of his term of office or, if there is no successor, to the records and information management program of the Division of Library and Information Services of the Department of State. See, Maxwell v. Pine Gas Corporation, 195 So. 2d 602 (Fla. 4th DCA 1967) (state, county, and municipal records are not the personal property of a public officer). And see, Op. Att’y Gen. Fla. 09-39 (2009) (delivery of public records to records custodian of successor agency).
2. Retention and disposal of records
Pursuant to section 257.36(6), Florida Statutes, "[a] public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the [Division of Library and Information Services of the Department of State]." This statutory mandate applies to exempt records as well as those subject to public inspection. See, Ops. Att'y Gen. Fla. 94-75 (1994), 87-48 (1987) and 81-12 (1981). Questions regarding record destruction schedules should be referred to the Department of State, Bureau of Archives and Records Management at (850) 245-6750.
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.