2016 amendments to the Public Records Act: relief for government contractors from predatory requests, but not for public agencies.

• Author: Long, Brittany Adams
• Position: Florida

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. [section]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. [section]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. [section]119.0701. (11) This statute specifically applied to government contractors and required that public agencies' contracts for services (12) 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 [section]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 [section]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...