Open Records

The Florida Public Records Law, Chapter 119, Florida Statutes, gives the public access to public records, defined as "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 in connection with government agency business. The Florida Supreme Court has interpreted this definition to encompass all material prepared to "perpetuate, communicate, or formalize knowledge.

All records, regardless of whether they are in final form, are open for public inspection unless the Legislature has exempted them from disclosure.

When officials circulate material for review, comment, or information, the material is a public record. Records of advisory bodies, private organizations, or independent contractors acting as agents of government agencies are public unless covered by a specific exemption.


Access to Computerized Records

As technology has changed the means by which agencies communicate, manage, and store information, many public records are kept only in computer form.

Florida amended its definition of a public record recently to specifically include computer records and data processing software.

The statute says that automation of public records must not erode the public's right of access.

Accordingly, computerized public records are governed by the same rule as paper documents. Agencies must provide a copy of public records in the medium requested if the agency maintains the record in that medium. However, an agency is not required to create a new record to meet a requester's particular needs.

Agencies are responsible for ensuring reasonable access to records electronically maintained and should set up their databases to comply with the Public Records Law.

Email messages made or received in connection with official business are public records.

Examples of Public Records

· Most portions of arrest and crime reports;
· Most personnel records of government employees, including applications for state or local employment;
· Salaries and expense reports of government employees;
· Written communications between a government agency and its attorney, except information prepared for a pending suit;
· City utility authority records;
· Tape recordings of incoming calls to a public agency;
· County and municipal budgets; and
· Most records of the Florida Commission on Ethics.

What is Exempt from the Public Records Law?

The Florida Supreme Court has ruled that government agencies must provide access to public records unless the Legislature has specifically exempted them from disclosure. An agency claiming an exemption from disclosure bears the burden of proving a record is exempt by law. Before denying access, a public records custodian must specifically state -- in writing if requested -- which part of the law exempts a record.
There are more than 500 separate records exempted from the Public Records Law. Examples of them include:

• Medical and birth records;
• Identity of parents who leave a newborn infant at a hospital or fire station;
• Information provided to authorities by people who take minor children when fleeing domestic violence;
• Investigative and criminal intelligence records of law enforcement agencies that are related to active investigations;
• Law enforcement records identifying sexual abuse victims or confidential informants;
• Home addresses and phone numbers of Department of Children & Family Services investigators, law enforcement officers, state attorneys, judges, firefighters, and code enforcement officers;
• Adoption records;
• Student educational records;
• Reports of diseases of "public health significance" to the state Department of Children & Family Services;
• Information "necessary to security and integrity" of the Florida Lottery;
• Negotiation records of purchases of real property by state and local agencies, such as appraisals, offers, and counteroffers, until a deal is final or will be considered by the governing body within 30 days,
• Most tax information filed with the Department of Revenue;
• Layout plans of port facilities, if it is believed that they can could compromise seaport security; and
• Collective bargaining records.

Juvenile offender records are generally confidential and exempt from the Public Records Law. However, if the juvenile is arrested for a crime that would be a felony if committed by an adult or if the juvenile has committed three or more "adult" misdemeanors, the records are not exempt.

If a federal statute requires a record to be closed and the state is clearly subject to the provisions of that statute, the state must keep the records confidential. However, a Florida court ruled that tenant records of a public housing authority are not exempt from the Public Records Law, despite the Federal Privacy Act.

Which Government Bodies Are Subject to the Public Records Law?

All units of state, county, and local government are subject to the Public Records Law, as are advisory bodies, private organizations or independent contractors acting on behalf of any public agency. Thus any publicly created advisory board would be an agency subject to the law unless a statutory exemption exists. When a private corporation not otherwise connected with government provides services to a governmental body, the key question is whether the private organization is acting on behalf of a public agency.

Public funding or a government contract do not automatically make the private organization subject to the law. The Florida Supreme Court developed a "totality of factors" approach as a guide for evaluating whether a private entity is subject to the Public Records Law.

Generally, if the private organization is involved in the decision-making process, it becomes an "agency" for the purposes of the Public Records Law. In addition, when a private organization enters negotiations with a public agency, records of those negotiations are public records.

For example, the Chicago White Sox professional baseball team and the city of St. Petersburg were found to have violated the Public Records Law by denying access to draft lease documents generated during negotiations.

How To Get Access to Public Records

The Florida Public Records Law states that any person can inspect and copy public records. An individual does not need to state a purpose or special interest to obtain access to a record and does not need to present identification.

The first step toward seeing a record is identifying the agency holding it and the person within that agency who is the records custodian. The Public Records Law specifies the custodian is the official in charge of the office where the records are maintained. Citizens can call or write the agency for this information.

The request for a public record should be as specific as possible. Although a verbal request is sufficient, a written request is often more effective. A request for a record should include the subject matter, location, date, agency in charge, and the name or identification of the file, if known. Copies of all correspondence should be kept for future reference.

When a portion of the material requested is exempt from disclosure, a records custodian must provide the non-exempt material. For example, even though the name of the victim of a sexual assault is exempt from disclosure, the police report itself is not exempt. Once the identifying information is removed, the report must be released.

Remedies

If you are refused access to public records you should cite Chapter 119 of Florida Law, which states: "It is the policy of this state that all state, county, and minicipal records shall at all times be open for a personal inspection by any person." Public resords are defined as "all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received...in connection with the transaction of official business by any agency." Section 119.10 provides that: "Any person willfully and knowingly violating any of the provisions of this chapter shall be guilty of a misdemeanor of the first degree..."

If a government agency violates the Public Records law, it harms all citizens of the State of Florida. Therefore any citizen of the State who reasonably believes that there has been a violation may seek an order from the circuit court to force disclosure. Penalties include fines, injunctive relief, and in extreme cases incarceration of offenders. The cost of bringing a justifiable suit against a government entity should not deter citizens from enforcing the law. Even though legal fees may reach astronomical proportions, if a citizen brings a suit under the Sunshine Law and the court finds that there was a violation, the person who filed the lawsuit is entitled to recover reasonable attorney's fees from the agency. However, if the court finds that the suit was filed in bad faith, or on frivolous grounds, the agency may recover reasonable attorneys fees from the person filing the suit.

Knowingly withholding public records can cause more than financial trouble for public officials who mishandle the public trust. In 1992, a Hernando County School Board member was found guilty of violating the Open Meetings Law and was fined $322. She was additionally ordered to spend four hours studying the Government-in-the-Sunshine manual. In 1999, Escambia County School Board member Vanette Webb withheld records from a citizen who publicly criticized Webb's actions and political beliefs. Webb was ordered to pay a $1,000 fine plus $45 per month in probation costs. In addition, she was sentenced to 30 days in jail for abridging the state access laws.

Fees

If you want a copy of a record, the records custodian may charge only the actual cost of duplication. The law allows the records custodian to charge higher fees for certain records and when responding to a request requires extensive assistance.

For example, if a request requires extensive use of information technoloty resources or extensive clerical or supervisory assistance, or both, an agency may charge a reasonable service charge based on the actual cost incurred.

The Freedom of Information Act (FOIA)

Records of federal agencies in Florida are not covered by the Public Records Law. In 1966, Congress passed the Freedom of Information Act (FOIA) to increase public access to federal government documents. The FOIA generally applies to documents that serve the function of public records and can be reproduced. The FOIA does not apply to Congress, the White House, the federal courts, or independent regulatory agencies.

Nine categories of material are exempt from disclosure under the Act. They are: national security, agency rules and practices, specific statutory exemptions, confidential business information, internal memoranda, personnel or medical files, law enforcement investigations, banking reports and information about oil and gas wells.

Persons seeking records under the federal Freedom of Information Act should contact the agency in possession of the record to get the name of the agency information officer.

If this informal contact is not successful, a formal written request should be filed (requests can be patterned on the request letter illustrated in Appendix AHYPERLINK). Each agency is required to publish in the Federal Register a description of its structure and a lit of people to contact for an inquiry under the Act.

Once a formal request is made, the federal agency must release the document or advise the requester that it falls into on of the nine exempt categories.

The agency is required to respond within 20 working days, but ordinarily the process takes much longer and the agency will often ask for more time.

Appeals can be directed to an agency head and subsequently to a federal court.

Unfortunately, information can seldom be obtained for free under the Act. Members of the press may obtain a waiver of all or at least part of the fees. Waivers are also available if the information will serve a public interest as opposed to a commercial interest.