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Final Order Indexing in the Electronic Age: The 2015 Amendment to F.S. §120.53 Finally Fulfills the Purpose of the Original Statute 40 Years Later

Administrative Law

As part of the 1974 amendments to Florida’s Administrative Practice Act, state agencies were required, for the first time, to index and list all of their final orders issued after January 1, 1975. The requirement sounded simple enough, but full compliance with F.S. §120.53 has eluded most state agencies since its passage. However, the 2015 amendment to F.S. §120.53 should provide the remedy to this chronic problem, as well as allow everyone electronic access to all agency final orders rendered after July 1, 2015, through one centralized data base. In this article, the author reviews the history of §120.53 from 1974 to 2008, and the Administrative Law Section’s work that led to the 2015 amendment to §120.53, which now requires all state agencies to use the Division of Administrative Hearings’ (DOAH) website for indexing their final orders.

A Brief History of F.S. §120.53 from 1974 to 2008
F.S. §120.53 came into being with the 1974 amendments to Ch. 120. It required all agencies to “make available for public inspection and copying at no more than cost all rules formulated, adopted, or used by the agency in the discharge of its functions; all agency orders; and a current subject matter index, identifying for the public any rule or order issued or adopted after the effective date of this act.”1 In the Reporter’s Comments for §120.53, it was noted that “[b]ecause this has never been done before and the task will be formidable, this one provision of the act has a deferred effective date of 14 months after the act becomes law.”2

It took only a few short years for courts to notice that agencies were struggling to comply with this provision. In 1978, the court in Graham Contracting, Inc. v. Department of General Services, 363 So. 2d 810 (Fla. 1st DCA 1978), noted that “the [d]epartment maintains no subject-matter index of its orders entered these past three years in such controversies. If that is true, the [d]epartment also violates [§]120.53(2) and deprives itself, its contractors, the general public, and this court of the continuity and rationality such a resource would provide.”3

The very next year, in 1979, §120.53 was amended to allow agencies to “designat[e] by rule an official reporter which publishes and indexes by subject matter all the agency’s orders rendered after a proceeding which affects substantial interests has been held.”4 Yet, even this helpful provision did nothing to cure the systemic problem of agencies not complying with the subject-matter index requirement of §120.53. In 1993, 18 years after the indexing requirement came into being, the court in Gessler v. Department of Business and Professional Regulation, 627 So. 2d 501 (Fla. 4th DCA 1993), went into great detail concerning the systemic failure of agencies to implement it. It quoted from the late Pat Dore’s “Seventh Administrative Law Conference Agenda and Report,” which stated bluntly:

We have had [15] years experience with the revised [Ch.] 120, and at all times during those [15] years agencies have been required to compile and maintain subject matter indexes of their orders and to keep those orders available for public inspection. Left to their own devices, agencies simply have not done the job.5

The court itself went on to admonish the Board of Medicine, stating: “The agency has received a legislative directive which it has substantially ignored. It has no discretion to ignore such a directive. The default is presumptively prejudicial and the issue of prejudice cannot be resolved without compliance with the directive.”6

The legislature was also aware of the systemic failure of agencies to compile subject-matter indexes as required by F.S. §120.53 and gave them a “do-over” in 1991 by amending §120.53 to delete the language from subsection (2)(c) that made it applicable to “any rule or order issued or adopted after January 1, 1975.”7 Instead, the section became applicable to actions instituted after March 1, 1992.8 As the court in Caserta v. Department of Business and Professional Regulation, 686 So. 2d 651 (Fla. 5th DCA 1996), explained, “[i]t is likely that the legislature recognized the impossible burden many agencies would face in providing subject-matter indexes that, in some instances, may not even exist, particularly in light of subsection 120.68(8)’s mandate that an agency’s failure to comply with section 120.53 is presumed to be prejudicial error.”9 In addition, the 1991 changes to §120.53 even spelled out the specific types of agency orders that must be indexed and authorized by the Department of State to create rules for the indexing of agency final orders.10

The very next year, in 1992, the legislature went even further by giving agencies an alternative means of compliance with the indexing requirements of §120.53 by allowing agencies to:

maintain, and make available for public use, an electronic data base of its orders that allows users to research and retrieve full texts of agency orders by devising an ad hoc indexing system employing any logical search terms in common usage which are composed by the user and which are contained in the orders of the agency.11

Thus, agencies were now encouraged to put their final orders into an electronic format that could be easily searched, thus, reducing the burden of compiling and updating a subject-matter index and making such final orders more accessible to the public. Yet even these changes did not resolve agencies’ struggles with correctly maintaining subject matter indexes.

In 2008, the legislature amended §120.53 to give agencies another method of compliance with the final order indexing requirements of the statutes. Agencies could now meet the indexing requirement “by electronically transmitting to [DOAH] a copy of such orders for posting on [DOAH’s] website.”12 DOAH’s website allows agencies to upload final orders for indexing purposes. The final orders can then be searched using a Google-driven text search, as well as by agency, agency case number, agency document number, issue date, type, and subject. In its 36th annual report, DOAH stated that two agencies had begun to use its website for final order indexing in the first fiscal year after the 2008 amendment to §120.53 was passed.13 Thereafter, five more agencies began using DOAH’s website to index final orders during fiscal year 2009-2010.14 During the 2011-2012 fiscal year, three more agencies began to use DOAH’s website for final order indexing.15 The author’s own agency began indexing its final orders using DOAH’s website in September 2013. The number of final orders uploaded to DOAH’s website by agencies grew from 48 in 2009 to over 62,000 by 2015.16 However, the majority of agencies were not using DOAH’s website to index their final orders, and the general public did not have easy access to agency final orders from most state agencies.

The Work of the Administrative Law Section’s Ad Hoc Orders Access Committee
During the 2012-2013 term of the Administrative Law Section’s Executive Council, the council voted to create the Ad Hoc Orders Access Committee (committee) in order to gather information on how final orders are indexed by agencies and accessed by the public, and to consider possible solutions for providing the public with better access to agency final orders that are required to be indexed by §120.53. The committee began its work by utilizing a survey that was completed by every state agency, detailing how they complied with the provisions of F.S. §120.53 and how the public could access their final orders. The results of the survey were published in the June 2013 edition of the Administrative Law Section’s newsletter.

The survey results indicated that while most agencies were indexing final orders, there was little uniformity in how agencies were indexing final orders and making them available to the public. The survey results also showed that most of the indexing systems in place were antiquated and not easily accessible by the general public. This creates a lot of headaches for citizens and practitioners alike who are accustomed to the new electronic age where vast amounts of information are available almost instantaneously on the Internet. The mishmash of indexing methods and final order locations was most likely the result of overburdened agency staff, a lack of technological resources available to agencies, and the language of the statute itself, which, through the various amendments over time, had become rather muddled. As a previous chair of the Administrative Law Section commented:

Without detailing the many well-intentioned, but sadly often counterproductive, amendments that followed, suffice it to say that we are left today with statutory provisions in [§§]120.53 and 120.533 that in some instances are contradictory and in others duplicative, and which are so poorly organized as to be nearly incomprehensible. This is no doubt because statutory “fixes” were crafted to respond to various issues without much regard for the existing statutory structure. Go ahead, take a quick look at these two sections, and any relevant rules of the Department of State (of course, the statutes call for rules, too) and see if you come away with a clear picture of the system that is in place. It would be one thing if all of this complication were the only way that we could provide broad public access to agency orders, but is anyone prepared to seriously argue that the current system meets that objective?17

Creating a Central Repository for All Indexed Agency Final Orders
The Ad Hoc Orders Access Committee came to the conclusion that the best possible solution to the issue would be to amend §120.53 to require all agencies to use the DOAH’s website to index their final orders. During the 2015 regular legislative session, the legislative Committee of the Administrative Law Section found sponsors in both the Senate and the House for proposed legislation to do just that. S.B. 1284 and H.B. 985 sailed through both chambers, garnering unanimous support, and narrowly passing just before the House unexpectedly adjourned prior to the end of the regular session. Signed into law by the governor on June 11, 2015, and effective as of July 1, 2015, the bill requires all agencies to “electronically transmit a certified text-searchable copy” of agency final orders rendered after July 1, 2015, (that were previously required to be indexed) to DOAH within 90 days of the date of rendition of the final order.18 Agencies are still required to maintain subject-matter indexes for final orders rendered prior to July 1, 2015, but, going forward, DOAH’s website will be the official subject-matter index for agency final orders.

There are two major benefits to having a central electronic repository for all agency final orders. First, everyone will know where to look for them and have immediate access to them. Previously, finding agency final orders has been akin to an Indiana Jones adventure. They could be housed in a myriad of places, and one would have to go to great lengths to learn who to ask for copies of them. Now, for the first time, all agency final orders that are required to be indexed will be located in one central repository, and the public will know where they are stored and will have immediate access to them. Second, the amendment will result in a net savings to those agencies who were using private vendors, such as the Florida Administrative Law Reports, to index their final orders since DOAH does not charge agencies for this service. In addition, DOAH has the capacity to expand its current repository of agency final orders to encompass all agencies with minimal additional expense.

The legislature, in 1974, had a very noble motive for requiring agencies to index their final orders. “The purpose of this requirement is to enable persons other than those expert in agency procedures to find the precedents and policies which pertain in all cases or govern any matter.”19 In other words, the legislature wanted the citizens of Florida to have access to the decisions made by their government. Yet, for over 40 years, that access has proven to be quite difficult for the average citizen. The 2015 amendment to F.S. §120.53 should resolve these difficulties and fulfill the purpose of the original statute.

1 Fla. Stat. §120.53(2) (1974).

2 Reporter’s Comments on Proposed Administrative Procedures Act for the State of Florida at 14 (Mar. 9, 1974).

3 Graham Contracting, 363 So. 2d at 815.

4 Ch. 79-299, Laws of Fla.

5 Gessler, 627 So. 2d at 504 (quoting Pat Dore’s Seventh Administrative Law Conference Agenda and Report, 18 Fla. St. U. L. Rev. 703, 721 (1991)).

6 Id. at 504.

7 Compare Fla. Stat. §120.53(2) (1991) with Fla. Stat. §120.53(2) (1993).

8 Ch. 91-191, Laws of Fla.

9 Caserta, 686 So. 2d at 653.

10 Ch. 91-30, Laws of Fla.

11 Ch. 92-166, Laws of Fla.

12 Ch. 2008-104, Laws of Fla.

13 The two agencies were the Department of Agriculture and Consumer Services and the Department of Environmental Protection. DOAH 36th Ann. Rpt. at 17 (Feb. 1, 2010).

14 They were the Agency for Persons with Disabilities, the Department of Children and Families, the Department of Education, the Department of Business and Professional Regulation, and the Department of Highway Safety and Motor Vehicles. DOAH 37th Ann. Rpt. at 8-9 and 17-18 (Feb. 1, 2011).

15 They were the Department of Economic Opportunity, the Department of Health, and the Office of the Governor. The Agency for Persons with Disabilities apparently stopped using DOAH’s website to index its final orders at some point in time between fiscal year 2010-2011 and 2011-2012. DOAH 39th Ann. Rpt. at 6-7 and 13 (Feb. 1, 2013).

16 These number are taken from a spreadsheet created by Susan Brown, chief information officer for DOAH on August 20, 2015.

17 F. Scott Boyd, From the Chair: “Order, Order!”, 34 Admin. L. Section Newsletter at 2 (Jan. 2013).

18 Ch. 2015-155, Laws of Fla.

19 Reporter’s Comments on Proposed Administrative Procedures Act for the State of Florida at 14 (Mar. 9, 1974).

Richard J. Shoop is the agency clerk for the Agency for Health Care Administration. He attended the University of Miami for both undergraduate studies and law school, obtaining a bachelor of arts in history with general honors in 1996 and a juris doctor in 1999. He has been a member of the Administrative Law Section’s Executive Council since 2009, and is currently serving as the chair of the section. He thanks Chief Judge Robert Cohen, Clerk Claudia Lladó, and Chief Information Officer Susan Brown of the Division of Administrative Hearings for their assistance in obtaining information on DOAH’s website for this article.

Please note that the opinions expressed in this article are not necessarily those of the Agency for Health Care Administration or the State of Florida.

This column is submitted on behalf of the Administrative Law Section, Richard J. Shoop, chair, and Stephen Emmanuel, editor.

Administrative Law