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2016 Amendments to the Public Records Act: Relief for Government Contractors from Predatory Requests, But Not for Public Agencies

Administrative Law

The Public Records Act has a huge impact on public agencies, those who do business with agencies, and those who are regulated by agencies. In the 2016 session, the legislature made some changes that will have big impacts on the ever-changing public records landscape, but failed to pass any law that would have had addressed a recurring problem of increased litigation related to public records requests from requestors who are seeking records for the purpose of instigating litigation.

Public Records Law
A Florida citizen’s right of access to records of state and local government records is rooted in the Florida Constitution.1 This right is codified in Ch. 119: “It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.”2 An “agency” subject to the Public Records Act is “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.”3 Thus, an entity (or person) that is not a governmental entity may be subject to the Public Records Act if it is determined to be acting on behalf of a public agency.

A person who violates the Public Records Act is subject to penalties ranging from a noncriminal infraction punishable by a fine to a misdemeanor or felony.4 In addition, pursuant to F.S. §119.12, a party who files a civil action to enforce the Public Records Act will be awarded costs of enforcement and attorneys’ fees if the court determines that the agency “unlawfully refused to permit a public record to be inspected or copied.”5

Of course, there are numerous exemptions to the Public Records Act scattered throughout the Florida Statutes. In fact, the First Amendment Foundation’s website indicates that there are currently 1,119 exemptions to Florida’s open government laws.6 These numerous exemptions can lead to confusion about what can and must be produced, delays in producing documents, and litigation.

Governmental Contractors
Prior to 2013, there was not a law that specifically addressed whether entities who had contracts with governmental agencies were subject to the public records laws. Instead, courts looked at the definition of an “agency” under F.S. §119.011(2), which included entities “acting on behalf of any public agency.” The Florida Supreme Court has explained that this definition ensures that a public agency cannot avoid the requirements of the Public Records Act by delegating its responsibilities to a private entity.7

In determining whether a government contractor is acting on behalf of a public agency, the courts consider whether the totality of the circumstances indicate a significant level of involvement by the public entity.8 The Florida Supreme Court laid out nine specific factors for a court to consider in determining whether a person or entity was acting on behalf of the agency, but noted that factors and circumstances varied from case to case and the factors were not all-inclusive.9 In addition, if an agency transfers or delegates its statutory responsibility to a private entity, that private entity is subject to the public records law.10

In 2013, the legislature enacted F.S. §119.0701.11 This statute specifically applied to government contractors and required that public agencies’ contracts for services12 must include certain provisions, including the requirement that the contractor “provide the public with access to public records on the same terms and conditions that the public agency would provide the records.”13 The statute defined “contractor” as an individual or entity that provides services to a public agency and is acting on behalf of the agency as provided in §119.011(2). The law provided that if the contractor did not comply with the public records request, the public agency would be required to enforce the contract provisions.14 While the new statute did not specifically address attorneys’ fees, the provision in §119.12 applies in any civil action against an agency, and the contractor presumably continued to meet the definition of an agency.

Recent Public Records Litigation
After this statute passed, some individuals/companies began submitting public records requests to governmental contractors seeking records and then suing the contractors if they did not immediately comply.15 In February 2015, The Florida Bar News reported that certain organizations had filed more than 140 lawsuits in 27 counties.16 Most notable was the case of Gray v. Lutheran Social Services of Northeast Florida, Inc., Case No. 2014-CA-4647 (4th Cir. 2014). In that case, Gray, a self-described “civil rights activist,” requested records from a nonprofit corporation that provided social services to those in need related to a contract it had with the Department of Children and Family Services.17 Gray filed a complaint under the Public Records Act when the corporation did not immediately produce the records requested.18 In a scathing opinion, which was upheld on appeal without opinion,19 the judge found that Gray and others were abusing the Public Records Act for financial gain, and the judge denied an award of attorneys’ fees.20

Contractors are not the only ones facing what some people refer to as “predatory public records requests.”21 State and local governmental entities have also been receiving public record requests that are deceptive and result in lawsuits when the agency does not respond. For example, an organization called Consumer Rights, LLC, made a public records request via email to Union County using an email address: [email protected]22 The request was on behalf of an unnamed Florida company with no additional contact information and was sent to a general email address that was not associated with a specific person.23 The organization then waited four months without following up on the request and filed a complaint seeking mandamus and an award of attorneys’ fees at which time the county provided the requested records.24 The trial court ultimately found that the delay in the response was not tantamount to a refusal as the email was intentionally deceptive and the person who read the email did not respond because he thought it was a scam. The appellate court agreed, finding that the record supported the trial court’s conclusion that the county was justified in declining to respond immediately to the request.25

The same organization used this same tactic on multiple state agencies in 2013.26 Ultimately, the First District Court of Appeal found that the organization was not entitled to an award of attorneys’ fees because it failed to comply with the condition precedent under F.S. §284.30.27 Section 284.30 requires any party to a suit in any court against the state for certain actions to serve a copy of the pleading seeking fees on the Department of Financial Services, and the Department of Financial Services is then entitled to participate in the defense of the lawsuit.

Some of these requestors target small counties or cities with limited resources and seek a quick settlement from the governmental entity.28 These requests and lawsuits have become such a widespread problem that in January 2016, Florida Tax Watch prepared an 18-page study, “Predatory Public Records Requests.”29 In the study, Florida Tax Watch identified two types of intentional misuses of the Public Records Act. The first is described above — parties using public records requests to create confusion that results in a lawsuit so the party can settle or recover attorneys’ fees.30 The second is when a person inundates a governmental entity with public record requests with the intent of preventing the government from functioning effectively.31

One of the most egregious examples of the second type involves the Town of Gulf Stream. Gulf Stream has a population of under 1,000 people and a small administrative staff.32 In the past several years, the town has received nearly 2,000 public records requests, mainly from one entity. Some of the requests were completely frivolous, such as a request for all documents with Social Security numbers on them, requiring the town to pull all documents and then redact all of the Social Security numbers as they are confidential.33 The vice mayor testified at a 2016 House Governmental Operations Appropriations Subcommittee meeting that although the town tried to keep up, the staff inevitably fell behind and was sued.34 The entity filed over 40 public record lawsuits against the town, and the town has now budgeted $1 million per year just for attorneys’ fees in responding to these lawsuits. Thus, the city raised the property tax millage by 40 percent to cover increased costs.35

2016 Session
Against this backdrop, several bills were filed in the 2016 session to address these issues. House Bill 273 passed and substantially changed a governmental contractor’s responsibilities under the Public Records Act.36 A contractor no longer has to provide public records in the same way a public agency does; instead, a public records request must be made to the public agency, and the agency then requests the records from the contractor if the agency does not possess the records. Upon request by the agency, the contractor must provide the records to the public agency or allow the records to be inspected or copied within a reasonable time. A contractor who does not provide the records upon request by the agency in reasonable time may by subject to the penalties in F.S. §119.10.

The statute adds a provision that specifically addresses civil actions against contractors. Attorneys’ fees are awarded in such action when the contractor unlawfully refuses to comply with the public records request, but only if the requestor provides written notice of the public records request, including a statement that the contractor has not complied with the request, to the public agency and the contractor at least eight business days prior to filing the action. A contractor is not liable for costs of enforcement if the contractor complies with the request within eight days of the notice.

The law also changes the requirement for a contractor’s maintenance of public records after the contract ends. Under the previous statute, a contractor was required to provide the agency with all public records upon completion of a contract. Now a contractor has the option of keeping and maintaining public records required by the public agency to perform the service; however, if the contractor chooses to maintain the records, the contractor must meet all applicable requirements for maintaining public records and must maintain the confidentiality of any information that is exempt. If the contractor transfers all public records to the agency at the end of the contract, the contractor must destroy any duplicate public records.

This change should substantially ease the burden on contractors. Government contractors are still required to comply with the Public Records Act, but it puts the burden on the agency to respond to the request and obtain the information from the contractor. Also, a contractor is protected from an individual who may target contractors because they may be unfamiliar with the public records laws by requiring the request to go through the agency. Requiring written notice before a lawsuit provides contractors an opportunity to comply with the law rather than automatically being subjected to a lawsuit.

The statute may, however, increase the burden on agencies as it requires public agency contracts for services to include contact information of the public agency’s custodian of record and in 14-point boldfaced type, the following language: “If the contractor has questions regarding the application of chapter 119, Florida Statutes, to the contractor’s duty to provide public records relating to this contract, contact the custodian of public records at….” Agencies must now respond to questions from contractors regarding the contractor’s responsibility under the Public Records Act related to the specific contract.

A bill with similar notice requirements before the initiation of a civil action against a public agency for a public records violation, and one that would have made the award of attorneys’ fees discretionary, did not pass. House Bill 1021 and Senate Bill 1220 would have required a complainant in a civil action against an agency to provide written notice of the public records request to the agency’s custodian of record at least five business days before filing the civil action. Senate Bill 1220, as originally filed, also would have amended the court’s duty to award fees from mandatory (“the court shall assess and award” fees) to discretionary (“the court may assess and award” fees). Critics of the Senate bill did not take issue with the notice provision, but had concerns that making an award of fees discretionary would limit people’s ability to bring suit because attorneys would not want to take cases without guarantee of fees.37

Although the House bill never changed and died in committee, the Senate bill was amended multiple times and, in the end, would have added the notice requirement to the statute (unless the agency failed to prominently display contact information for the agency custodian of records) and kept the fee award mandatory, but the bill prohibited a court from awarding fees against an agency if the court determined that the request to inspect or copy the public record was made primarily to harass the agency or cause a violation of the Public Records Act.38 The final version of the bill was a compromise negotiated with the First Amendment Foundation.39 The Senate passed the bill, but it died in messages.

Finally, there is one additional bill related to the Public Records Act that passed that may have an impact on private companies and public agencies. Chapter 2016-5, Laws of Florida, amends F.S. §812.081, specifying that a trade secret includes “scientific, technical, or commercial information, including financial information.” The information still must meet the other requirements in §812.081 to be considered a trade secret. Many contractors and regulated private companies that must provide financial information to governmental entities already argue that their financial information is a trade secret, and this amendment clarifies the issue. The companion bill, which includes other amendments related to trade secrets and public records, explains that in many instances, businesses are required to provide financial information for regulatory or other purposes to public entities, and that disclosure of such information to competitors of those businesses would be detrimental to the businesses.40

In sum, this past session, the legislature took some steps to address the recent flurry of litigation surrounding public records as it relates to governmental contractors. Given that no legislation passed related to public agencies, we can expect to see continued litigation this year and likely additional bills next session.

 

1 Fla. Const. art. I, §24 (“Every person has the right to inspect or copy 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 with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.”).

2 Fla. Stat. §119.01(1).

3 Fla. Stat. §119.011(2) (emphasis added).

4 Fla. Stat. §119.10. The penalties in subsection one apply to public officers, but the penalties in subsection two apply to “any person who knowingly and willfully” violates the Public Records Act.

5 The courts have recently been grappling with what is considered an “unlawful” refusal to permit a public record from being inspected. See Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) (resolving a conflict between district court opinions by determining that a party is entitled to attorneys’ fees when the agency violated the public records act and the agency did not have to have acted in an unreasonable manner or in bad faith); Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., 41 Fla. L. Weekly D1233, 2016 WL 3002334 (Fla. 4th DCA 2016) (distinguishing Lee, finding that a party was not entitled to attorneys’ fees because there was no “unlawful refusal” to provide records when the delay in producing records was justifiable).

6 First Amendment Foundation, http://floridafaf.org/. Because the reference is to the open government laws, this number presumably includes exemptions to the Public Records Act and to the Sunshine Law.

7 News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029, 1031 (Fla. 1992).

8 Id.; Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 927 So. 2d 961, 966 (Fla. 5th DCA 2006).

9 Schwab, 596 So. 2d at 1031.

10 Memorial Hospital-West Volusia, 927 So. 2d at 966.

11 Ch. 2013-154, §1, Laws of Fla.

12 This statute applied only to contracts for services as opposed to contracts for commodities.

13 Fla. Stat. §119.0701(2)(b).

14 Fla. Stat. §119.0701(3).

15 Jan Pudlow, A New Scam: Public Records Shakedown, Fla. Bar News, Feb. 1, 2015, available at /DIVCOM/JN/jnnews01.nsf/Articles/B7091C05E7C0EF1385257DD30046F19B.

16 Id.

17 Gray, Case. No. 2014-CA-4647 at 1-4.

18 Records were produced after the lawsuit was filed, which was the first time since the initial request that the corporation had the contact information for Gray, which the court found to be a reasonable time to produce the records. Id. at 6-8. The order did not address whether the corporation was actually an “agency” subject to the Public Records Act.

19 Gray v. Lutheran Social Servs. of NE Fla., Inc., 179 So. 3d 322 (Fla. 1st DCA 2015).

20 Gray, Case No. 2014-CA-4647 at 1-4. Mr. Gray has defended his actions, contending that he is not seeking financial gain, and instead, said his mission was to get compliance with the Public Records Law so it will be easier for others to access public records. See David Bauerlein. St. Augustine Activist Says State Should Provide Records, Not Change Laws, The St. Augustine Record, Feb. 17, 2016, available at http://staugustine.com/news/2016-02-16/st-augustine-activist-says-state-should-provide-records-not-change-laws#.V174iDcUVom.

21 See Mary Ellen Klaus, Compromise Reached in Attorneys Fees Provision of Controversial Florida Public Records Bill, Miami Herald, Feb. 18, 2016, available at http://www.miamiherald.com/news/politics-government/state-politics/article61022292.html.

22 Consumer Rights, LLC v. Union Cnty., 159 So. 3d 882, 883 (Fla. 1st DCA 2015).

23 Id.

24 Id.

25 Id. at 884-86. Judge Bilbrey, in a concurring opinion, added that the case could also have been resolved on the ground that the request for public records was not made to the proper custodian of records. Id. at 887.

26 Consumer Rights, LLC v. State of Fla., Dep’t of Corrs., Case No. 2013-CA-1427 (2d Cir. 2013) (consolidating cases against Department of Corrections, Department of Management Services, Department of Economic Opportunity, Department of Elder Affairs, and Department of Lottery).

27 State, Dep’t of Econ. Opportunity v. Consumer Rights, LLC, 181 So. 3d 1239 (Fla. 1st DCA 2015).

28 Fla. Tax Watch, Predatory Public Records Requests (Jan. 2016), available at http://www.floridataxwatch.org/library/publicrecords.aspx.

29 Id.

30 Id. at 2.

31 Id.

32 See Town of Gulf Stream v. O’Boyle, 2016 WL 3401681 (11th Cir. 2016).

33 Id. See also Predatory Public Records Requests at 5; Fla. Stat. §§119.071(4)-(5). The entities also submit impossible requests, such as a request for all public records situated atop the Chief of Police’s desk on July 15, 2014 at 11:12 a.m. Predatory Public Records Requests at 5.

34 Fla. H. Govt. Ops. Subcomm., recording of proceeding, Jan. 20, 2016 (beginning at minute 59:44), available at http://www.myfloridahouse.gov/Sections/Committees/committeesdetail.aspx?CommitteeId=2854.

35 Id. In an attempt to combat this problem, the Town of Gulf Stream and one of its contractors filed a class action suit in federal court against the individuals submitting these requests alleging that their actions violated the federal Racketeer Influenced and Corrupt Organizations Act. See Town of Gulf Stream, 2016 WL 3401681. While the 11th Circuit Court labeled the conduct “troubling” and “distasteful,” it upheld the trial court’s dismissal of the complaint because the allegations did not support a RICO claim. Id.

36 Ch. 2016-20, Laws of Fla. (amending Fla. Stat. §119.0701). The definition of contractor was not changed by this law.

37 Fla. H. Govt. Ops. Subcomm., recording of proceedings, Jan. 20, 2016 (beginning at minute 21:46) (comments by Rich Templin with Florida AFL-CIO), available at http://www.myfloridahouse.gov/Sections/Committees/committeesdetail.aspx?CommitteeId=2854. Barbara Peterson of the First Amendment Foundation also voiced concerns that the only enforcement mechanism was to go to court, and she recommended some kind of middle ground enforcement. Fla. H. Govt. Ops. Appropriations Subcomm., recording of proceedings, Feb. 2, 2016 (beginning at 1:00), available at http://www.myfloridahouse.gov/Sections/Committees/committeesdetail.aspx?CommitteeId=2832.

38 C.S./C.S./C.S./S.B. 1220 (2016).

39 Fla. S. Comm. on Fiscal Policy, recording of proceeding, Feb. 17, 2016 (beginning at minute 57:04) (comments from Barbara Peterson), available at http://www.flsenate.gov/Committees/Show/FP/. See also Mary Ellen Klaus, Compromise Reached in Attorneys Fees Provision of Controversial Florida Public Records Bill, Miami Herald, Feb. 18, 2016, http://www.miamiherald.com/news/politics-government/state-politics/article61022292.html (quoting Ms. Peterson regarding compromise).

40 Ch. 2016-5, §21, Laws of Fla.

Brittany Adams Long is a shareholder with the Radey Law Firm and is board certified by The Florida Bar in state and federal government and administrative practice. She thanks Lauren Thompson, a third-year student at Florida State University College of Law, for her assistance with research for this article.

This column is submitted on behalf of the Administrative Law Section, Jowanna Nicole Oates, chair, and Stephen Emmanuel, editor.

Administrative Law