Florida public records law: the battle over attorneys' fees.

• Author: Taitt, Sarah Rissman
• Position: City, County and Local Government Law

Access to public records is a right rooted in the Florida Constitution and implemented through statute in the state of Florida. (1) Although in essence it is a simple concept, providing public records to the public has become a nuanced web of laws, exemptions, and interpretations. A recent spate of public records lawsuits exposed the struggles of many governmental agencies to understand and uphold the public records law. These lawsuits also showed the relative ease in exploiting public records violations for private gain.

This article outlines current public records law issues and examines the difficult balance between protecting the right to access public records and deterring abuses. Potential solutions to public records litigation have ranged from legislative proposals to suggestions for enhanced training for public employees. (2) This article focuses on the recent battles in the legislature to limit attorneys' fees in public records cases.

Public Records Law Basics

The essence of the public records law is relatively simple: Every person has the right to inspect or copy any public record of any public agency. (3) The general rule is that the public records law is liberally construed in favor of the state's policy of open government. (4) If there is any doubt whether the law applies, the doubt is resolved in favor of providing the records. (5) It is easy to see how things get complicated when each section of the law is analyzed.

1) Who is every person?

Any person can request a public record. (6) A public agency cannot require a person to provide identification, (7) state a reason for the request, (8) or make the request in writing. (9) Further, Florida law does not require residency or citizenship in order for a person to make a public records request. (10) This is due to the "aggressive nature" of the public records law. (11)

2) What is a public record?

A public record is anything made or received in connection with the official business of a public agency. (12) The definition of a public record is far-reaching, including not only documents, papers, and letters, but also tapes, photographs, emails, and sound recordings. (13) The Florida Supreme Court interpreted the definition as encompassing all records used to perpetuate, communicate, or formalize knowledge. (14) 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. (15) 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. (16)

3) What is a public agency?

Agencies subject to the public records law include state agencies, local governments, public universities, and private entities, such as contractors, acting on their behalf. (17)

An agency cannot absolve itself of responsibility by transferring records to another agency or entity. (18) Although the public records law primarily applies to government records in the possession of the government, the law also includes application to private entities when 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: 1) whether a public entity delegates a statutorily authorized function to a private entity; or 2) whether a private entity is providing goods or services and the "totality of factors" indicates a significant level of public agency involvement. (19)

4) What are the remedies for an unlawful denial of a public records request?

If an agency denies a public records request or takes an unreasonably long time to respond, there are several options to enforce compliance: Seek mediation through the Office of the Attorney General Open Government Mediation Program; (20) file a complaint with the local state attorney; (21) file a lawsuit in court. (22)

Case Study

Consider the following scenario to demonstrate the many opportunities for public records violations in a simple request: A man walks into a jail and asks the front desk attendant if he can inspect the jail visitor's log. The log is a daily signin sheet that is kept at the front desk. [It is a public record.] The attendant asks the man for identification. [Public records violation.] The man refuses to identify himself. The attendant asks the man the reason for his request. [Public records violation.] The man refuses to provide a reason. The attendant tells the man he is required to make an official public records request before he can inspect the jail log. [Public records violation.] The man replies he is making the official request. The attendant refuses to allow...