In Florida, access to public records created by the government is a right rooted in the State Constitution. See Fla. Const. art. I, § 24. That constitutional right was implemented by statute. See Fla. Stat. § 119.07. This article provides a general outline of Florida’s public records law, which protects the right to access public records.
In 1992, the Florida Constitution was amended to provide that: “[e]very 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 … records exempted pursuant to this section or specifically made confidential by this Constitution.” Fla. Const. art. I, § 24(a).
The Florida Constitution further provides, “[a]ll meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public ….” Fla. Const. art. I, § 24(b). Additionally, “meetings of the legislature shall be open and noticed … except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.” Id.
Finally, the Florida Constitution states, “[t]he legislature shall enact laws governing the enforcement of this section, including the maintenance, control, destruction, disposal, and disposition of records made public by this section, except that each house of the legislature may adopt rules governing the enforcement of this section in relation to records of the legislative branch.” Fla. Const. art. I, § 24(c). The Florida legislature did enact laws governing the enforcement of the right to access to public records.
Specifically, Florida’s public records law is found at Fla. Stat. § 119.07. While the statue itself is complex, the right it protects is not—every person has the right to inspect or copy any public record of any public agency. Fla. Stat. § 119.07 provides, “[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.” Fla. Stat. § 119.07(1)(a).
Importantly, Florida’s public records law is liberally construed in favor of the state’s policy of open government. See NCAA v. Associated Press, 18 So. 3d 1201, 1207 (Fla. 1st DCA 2009). If there is any doubt whether the law applies, the doubt is resolved in favor of providing the records. Id.
Any (and every) person has the right to access public records and can request a public record. The constitutional right of public access to government records is “virtually unfettered” save for certain constitutional and statutory exemptions. See Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985); Times Publ’g Co. v. St. Petersburg, 558 So. 2d 487, 492 (Fla. 2d DCA 1990).
A public record is anything made or received in connection with the official business of a public agency. Fla. Const. art. I, §24(a). The definition of a public record is far-reaching, including not only documents, papers, and letters, but also tapes, photographs, emails, and sound recordings. See Fla. Stat. § 119.011(11). This expansive definition likely includes text messages, Facebook entries, and other social media communications. See Op. Att’y Gen. Fla. 08-07 (2008); Op. Att’y Gen. Fla. 09-19 (2009).
The Florida Supreme Court interpreted the definition as encompassing all records used to perpetuate, communicate, or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). Regardless of the format of the record, if it pertains to the official business of an agency, it is a public record subject to disclosure, with some exceptions. See Fla. Office of the Att’y General, Government-in-the-Sunshine Manual (2015).
Additionally, public employees and officers who use personal equipment or resources to communicate public business, such as personal email addresses or text messages on personal cell phones, also have a duty to produce those records. It is the content, not the means of transmission, which determines whether a record is a public record. See Fla. Stat. § 119.011(12).
Agencies subject to Florida’s public records law include state agencies, local governments, public universities, and private entities, such as contractors, acting on their behalf. See Fla. Stat. § 119.011(2).
According to the Florida Constitution, the right includes records maintained by “the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.” Fla. Const. art. I, § 24(a).
An agency cannot absolve itself of responsibility by transferring records to another agency or entity. See Chandler v. Sanford, 121 So. 3d 657, 660 (Fla. 5th DCA 2013). Similarly, although the public records law primarily applies to records in the possession of the government, the law applies to private entities when they are acting on behalf of a public agency.
Courts look at two general sets of circumstances to determine when records belonging to a private entity must be produced as public records:
News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Grp., Inc., 596 So. 2d 1029, 1031 (Fla. 1992) (establishing the totality of factors test).
As mentioned above, Florida’s public records law applies to government contractors. Prior to 2016, any person could request records from a government contractor and sue the contractor for unlawfully refusing or otherwise not responding appropriately.
The purpose of the broad application was to prevent the government from circumventing the public records law by contracting with private entities. Allegedly, many private entities were unaware of the existence and/or requirements of the public records law. They professed confusion, which often resulted in attorneys’ fees being levied against them, outcomes that left fat-cat contractors with a sour taste.
As might be expected, these wealthy private contractors used their considerable clout to change the law. In 2016, the Florida Legislature addressed the private sector’s main complaint by amending Fla. Stat. § 119.0701, to require any requests for records to be made directly to the public agency, not the private contractor. See Fla. Stat. § 119.0701(3).
Since 2016, a public agency must coordinate responding to the request, including notifying the contractor of the request. Private contractors may still be assessed costs and attorneys’ fees for failure to provide timely access, but the law established a new condition precedent to that award. See Fla. Stat. § 119.0701(4)(a).
The party bringing a public records suit must give both the public agency and the contractor eight business days’ notice before filing suit. See Fla. Stat. § 119.0701(4)(a). If the contractor complies within eight business days after the notice is sent, the contractor is not liable for any costs of enforcement, including attorneys’ fees. See Fla. Stat. § 119.0701(4)(c).
The requirements of Florida’s public records law inevitably cause some amount of burden on government agencies, as there is necessary time, money, and staffing commitments to comply with and fulfill public records responsibilities. However, the same could be said of ensuring compliance with any constitutional right and while some reasonable restrictions may be appropriate, generally:
A public agency cannot require a person to provide identification. See Bevan v. Wanicka, 505 So. 2d 1116, 1118 (Fla. 2d DCA 1987) (“[T]he Public Records Act does not condition the inspection of public records on any requirement that the person seeking to inspect records reveal that person’s background information.”); Chandler v. Greenacres, 140 So. 3d 1080, 1084 (Fla. 4th DCA 2014) (“[T]he city could not properly condition disclosure of the public records, to the then-anonymous requester on filling out the city’s form and giving an “address or other identifiable source for payment of the associated costs.”).
A public agency cannot require a person to state a reason for the request. See Rameses, Inc. v. Demings, 29 So. 3d 418, 421 (Fla. 5th DCA 2010) (“The motivation or purpose of the person seeking disclosure of public records is irrelevant.”); News-Press Publ’g Co. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) (holding that even an alleged malicious motive for seeking records is irrelevant).
A public agency cannot require a person to require make the request in writing. See Cnty. Aviation Cons. v. Knight Ridder, Inc., 800 So. 2d 302, 305 n.1 (Fla. 3d DCA 2001) (“There is no requirement in the Public Records Act that requests for records must be in writing.”).
In reality, agencies across the State routinely violate one or more of requirements of Florida’s public records law, not for nefarious reasons, but simply by failing to allocate adequate resources and training for public records compliance.
Under Florida’s public records law, an agency that maintains public records may, and usually does, designate an officer or employee of the agency to permit the inspection and copying of public records. Fla. Stat. § 119.07(1)(b). If it does, the agency must disclose the identity of the designee to the person requesting to inspect or copy public records. Id.
In either event, upon receiving a public records request, the custodian of public records must promptly acknowledge the request and respond in good faith. Fla. Stat. § 119.07(1)(c). “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.
However, certain public records are exempted from disclosure by law. They are too many exemptions to list individually here but many are found in Fla. Stat. § 119.071. If the agency believes that an exemption applies to a part of such record, it “shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.” Fla. Stat. § 119.07(1)(d).
If the agency believes that all or part of the record is exempt from inspection and copying, he or she “shall state the basis of the exemption that he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute.” Fla. Stat. § 119.07(1)(e).
“If requested by the person seeking to inspect or copy the record, the custodian of public records shall state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential.” Fla. Stat. § 119.07(1)(f). Note that this only applies if requested by the person seeking to inspect or copy the record.
If an agency denies a public records request or takes an unreasonably long time to respond, there are several options for the requester to enforce compliance under Florida’s public records law.
The person denied access to public records can seek mediation through the Office of the Attorney General’s Open Government Mediation Program. The Attorney General offers mediation as a cost-effective and efficient way to resolve public records disputes without litigation.
The person denied access to public records can file a complaint with the local state attorney. A knowing violation of the public records law is a first-degree misdemeanor. See Fla. Stat. § 119.10. However, as local state attorney’s offices are unusual overworked and understaffed, it is unlikely they will pursue the matter simply due to a lack of resources.
Finally, the person denied access to public records can also file a lawsuit in court. Importantly, lawsuits over public records are given priority over other cases. Upon filing, the court sets an immediate hearing. See Fla. Stat. § 119.11(1) (mandating that public record actions are entitled to an immediate hearing and take priority over other pending cases).
So unlike other cases litigated in Florida’s courts, public record cases can be resolved relatively quickly. More importantly, the person denied access to public records can recover attorneys’ fees and costs if they must bring suit to enforce compliance. See Fla. Stat. § 119.12. Specifically, the public records law includes a prevailing party attorneys’ fee provision, which provides:
“If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement, including attorney’s fees.” Fla. Stat. § 119.12.
As written, the attorneys’ fee provision allows the person denied access to public records to recover attorney fees and costs if they prevail in court but the agency cannot recover attorney fees and costs even if it prevails. Usually, the agency will cough up the withheld records after a lawsuit is filed.
However, if the court finds a violation of the public records act occurred, it orders attorneys’ fees and costs for the plaintiff, even if the agency provided the record in the meantime. See Mazer v. Orange Cnty., 811 So. 2d 857, 859 (Fla. 5th DCA 2002) (holding production of the public record renders the request moot but not the request for attorneys’ fees).
The purpose of the fee-shifting provision is to enable public records challenges, thereby enforcing the public’s constitutional right of access to public records. See Consumer Rights LLC v. Union Cnty., Fla., 159 So. 3d 882, 885 (Fla. 1st DCA 2015) (“The purpose of the attorneys’ fees provision is to encourage public agencies to voluntarily comply with the requirements of [Fla. Stat. § 119.07], thereby ensuring that the state’s general policy is effectuated.”).
Initially, Florida’s appellate courts were divided over whether to require a showing that the public agency acted unreasonably or in bad faith in order to award attorneys’ fees. The Third, Fourth, and Fifth District Courts of Appeal required a showing that the public agency acted unreasonably or in bad faith. See Althouse v. Palm Beach Cnty. Sheriff’s Office, 92 So. 3d 899 (Fla. 4th DCA 2012); Greater Orlando Aviation Auth. v. Nejame, Lafay, Jancha, Vara, Barker, 4 So. 3d 41 (Fla. 5th DCA 2009); Knight Ridder, Inc. v. Dade Aviation Cons., 808 So. 2d 1268 (Fla. 3d DCA 2002).
Conversely, the Second District Court of Appeal did not require a showing that the public agency acted unreasonably or in bad faith decision. See Office of State Att’y for 13th Jud. Cir. of Fla. v. Gonzalez, 953 So. 2d 759 (Fla. 2d DCA 2007). However, in 2016, the Florida Supreme Court definitively settled the matter. In Board of Trustees, Jacksonville Police and Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016), the Court held that there is no “good faith” exception in the public records law.
The Florida Supreme Court recognized that a lawsuit is the primary means of enforcing the public records law, and that the attorney fee provision serves both to deter agencies from wrongfully denying access and encourage individuals to continue pursuing their right to public records. Board of Trustees, 189 So. 3d at 126–27.
“If an individual is required to enforce his or her entitlement to public records through the filing of a civil action and prevails, the purpose of the statute is frustrated if the prevailing individual must incur the attorney’s fees—rather than the public agency that violated the Public Records Act—merely because the individual is unable to establish that the public agency acted unreasonably or in bad faith.” Board of Trustees, 189 So. 3d at 127.
The Florida Supreme Court declined to create a “good faith” or “reasonableness” exception and concluded “that a prevailing party is entitled to statutory attorney’s fees under the Public Records Act when the trial court finds that the public agency violated a provision of the Public Records Act in failing to permit a public record to be inspected or copied.” Board of Trustees, 189 So. 3d at 127.
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