Final order indexing in the electronic age: the 2015 amendment to F.S. s. 120.53 finally fulfills the purpose of the original statute 40 years later.

• Author: Shoop, Richard J.
• Position: Florida Statutes - Special Issue: Technology & the Practice of 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. [section]120.53 has eluded most state agencies since its passage. However, the 2015 amendment to F.S. [section]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 [section]120.53 from 1974 to 2008, and the Administrative Law Section's work that led to the 2015 amendment to [section]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. [section]120.53 from 1974 to 2008

F.S. [section]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 [section]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 [[section]]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, [section]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 [section]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...