The Florida Public Records Act in the Era of Modern Technology.

• Date: 01 November 2018
• Author: DeMeo, Ralph A.

The State of Florida is known as "the Sunshine State" for many reasons, not the least of which is its year-round lovely weather and its beautiful beaches, lakes, and rivers, which provide recreation and sport for millions of residents and visitors every year. To lawyers and government employees, Florida is known as the home of "Government-in-the-Sunshine" laws, which promote open government meetings and records. This article provides a brief history of Florida Government in the Sunshine, discusses the public policy underpinning them, and explicates some of the significant current issues in public records law occasioned by the advent of modern technology.

Since the late 1800s, Florida has had a public policy that records or documents created in the discharge of official duties belong to the public office--not the individual who created the records--and should be preserved. (1) As stated by the Florida Supreme Court in 1889:

[W]henever a written record of the transactions of a public officer is a convenient and appropriate mode of discharging the duties of his office, it is not only his right, but his duty, to keep that written memorial, ... and, when kept, it becomes a public document --a public record--belonging to the office, and not to the officer. (2)

The Florida Supreme Court reiterated this holding in 1922 when it held, "A public record is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done." (3)

In 1968, the right to access public records and meetings was guaranteed by Fla. Const. art. 1, [section]24, which provides in relevant part:

(a) Every 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 with respect to records exempted pursuant to this section or specifically made confidential by this [c]onstitution. This section specifically includes the legislative, executive and judicial branches of government....

Almost 60 years after the Florida Supreme Court first described a "public record," and after the right to access public records was added to the Florida Constitution, the Supreme Court in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980), construed the definition of public records to encompass all materials made or received by an agency, in connection with official business, which are used to "perpetuate, communicate, or formalize knowledge of some type." (4) In Shevin, Jacksonville Electric Authority (JEA) hired an independent consulting firm composed of psychologists to conduct a nationwide search for applicants for the managing director position. (5) JEA's general counsel advised the consultant that only the written report would be a public record, not the consultant's written notes prepared for its own use. (6) Prior to the consultant's report being submitted, a local television executive made a public records request to examine the consultant's notes relating to the search, but the request was refused. (7) The television executive and attorney general applied for a writ of mandamus, alleging that the papers were public records under Ch. 119, so they were open to public inspection. (8) After an evidentiary hearing, the trial court determined that the notes were public records and issued the writ. (9) The First District Court of Appeal reversed the circuit court's issuance of the writ on the basis that "public disclosure of the consultant's papers would deprive the intervenors of fundamental privacy rights secured by the United States and Florida [c]onstitutions." (10)

On appeal to the Florida Supreme Court, the petitioners challenged the district court's conclusion that the Florida Constitution provides a right of disclosure privacy. (11) The Supreme Court agreed (12) and further explained:

To be contrasted with "public records" are materials prepared as drafts or notes, which constitute mere precursors of governmental "records" and are not, in themselves, intended as final evidence of the knowledge to be recorded. Matters which obviously would not be public records are rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency's later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business. (13)

The Supreme Court acknowledged that "[i]t is impossible to lay down a definition of general application that identifies all items subject to disclosure under the act." (14) Thus, a determination of whether a document is a public record must be made on a case-by-case basis. (15)

The right to access public records is also codified in Ch. 119, known as the Public Records Act, (16) and states: "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." (17) A "public record" is defined by statute 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 pursuant to law or ordinance or in connection with the transaction of official business by any agency. (18)

It is well settled that "the general purpose of the Florida Public Records Act is to open public records so that Florida's citizens can discover the actions of their government." (19) The policy has been described as a "cornerstone of our political culture." (20) It is liberally construed in favor of open access to public records. (21) "If there is any doubt as to whether a matter is a public record subject to disclosure, the doubt is to be resolved in favor of disclosure." (22)

Florida's Public Records Act Exemptions and Process

Notwithstanding the above policy of open public records, "not all private facts that come into the public domain via a governmental agency, however, are necessarily open to inspection by the general public." (23) Even though Florida's Public Records Act is broad, there are many exemptions. (24) Only the Florida Legislature is authorized to create exemptions--courts may not do so. (25) Exemptions are construed narrowly. (26) For example, under F.S. [section]119.071(3)(a), public records relating to the physical security of a facility or revealing its security systems are exempt from public access. Another exemption is when the executive branch exercises its power of eminent domain, all appraisals and reports relating to the value of land, the offers, and counteroffers are exempt from public access. (27)

The Florida Legislature has provided a simple process for claiming an exemption to the disclosure requirements in F.S. [section]119.07(1)(d)-(f). "The [s]tate bears the burden of showing that requested material meets the statutory requirements for exemption from public disclosure." (28) This means that when the records custodian contends that "all or part of the record is exempt," the custodian "shall state the basis of the exemption ... including the statutory citation." (29) Furthermore, if a records custodian asserts that an exemption applies to part of the record, then the custodian must "redact that portion of the record to which an exemption has been asserted and validity applies," and produce the remaining record. (30) Finally, if the requesting person would like additional explanation for the exemption, then the records custodian is required to "state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential." (31) In other words, the agency or government entity has to explain why it denied access. (32) Thus, whether information is ultimately exempt from disclosure or not, the agency must do more than simply cite the statute that it claims applies.

The exemptions from public disclosure have limitations. For example, the exemptions from public disclosure do not limit the auditor general, the Office of Program Policy Analysis and Government Accountability, or any state, county, municipal, university, board of community college, school district, or special district internal auditor when "such records are needed for a properly authorized audit, examination, or investigation." (33) Likewise, the exemptions do not expand or limit the rules for discovery in criminal cases. (34) None of the exemptions imply an exemption to the requirements for conducting public meetings and recording minutes to public meetings. (35)

In the discovery context, even when records are exempt, the records "may be discovered upon a showing of exceptional necessity or extraordinary circumstances." (36) For example, in Henderson v. Perez, 835 So. 2d 390 (Fla. 2d DCA 2003), Perez filed a complaint against the local sheriff alleging false imprisonment, malicious prosecution, and battery, arising from an incident in which Perez was arrested for offenses that he did not commit. (37) During the discovery phase of the litigation, Perez sought personnel files of all the employees who had any connection with his arrest and, after being heavily redacted to remove information such as Social Security numbers, home addresses, and the names of their children's daycare facilities, the sheriff provided the records. (38) Perez filed a motion to compel in order to get the unredacted records. (39) After a hearing, the trial court ordered the sheriff to provide the unredacted information to...