What kinds of agency records are subject to the Public Records Act?
1. Computer records
a. Computer records are public records
Information stored in a public agency's computer "is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet . . . ." Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983).
Numerous Attorney General Opinions have cited Seigle for the principle that the Public Records Act includes computer records as well as paper documents, tape recordings, and other more tangible materials. See, e.g., AGO 98-54 (application and disciplinary reports maintained in a computer system operated by a national securities dealers association which are received electronically by state agency for use in licensing and regulating securities dealers doing business in Florida are public records subject to Ch. 119); AGO 91-61 (agency must provide copy of computer disk in response to Ch. 119 request); and AGO 85-03 (computer tape subject to disclosure).
Thus, information such as electronic calendars, databases, and word processing files stored in agency computers, can all constitute public records because records made or received in the course of official business and intended to perpetuate, communicate or formalize knowledge of some type, fall within the scope of Ch. 119, F.S. AGO 89-39. Compare AGO 85-87 (to the extent that "machine-readable intermediate files" may be intended to "communicate" knowledge, any such communication takes place completely within the data processing equipment and in such form as to render any inspection pursuant to Ch. 119, F.S., unintelligible and, except perhaps to the computer itself, meaningless; therefore, these files are analogous to notes used to prepare some other documentary material, and are not public records).
Moreover, the definition of "public records" specifically includes "data processing software" and establishes that a record made or received in connection with official business is a public record, regardless of physical form, characteristics, "or means of transmission." See s. 119.011(12), F.S. "Providing access to public records is a duty of each agency." Section 119.01(1), F.S. "Automation of public records must not erode the right of access to those records." Section 119.01(2)(a), F.S. "As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law." Id. Cf. s. 287.042(3)(h), F.S., providing for the Department of State, in consultation with the Agency Chief Information Officers Council, to develop procedures to be used by state agencies when procuring information technology commodities and contractual services to ensure compliance with public records requirements and records retention and archiving requirements.
Accordingly, electronic public records are governed by the same rule as written documents and other public records--the records are subject to public inspection unless a statutory exemption exists which removes the records from disclosure. See National Collegiate Athletic Association v. The Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010) (public records law is not limited to paper documents but applies to documents that exist only in digital form). Cf. AGO 90-04, stating that a county official is not authorized to assign the county's right to a public record (a computer program developed by a former employee while he was working for the county) as part of a settlement compromising a lawsuit against the county.
"E-mail" messages made or received by agency employees in connection with official business are public records and subject to disclosure in the absence of an exemption. AGO 96-34. Such messages are subject to the statutory restrictions on destruction of public records. See s. 257.36(6), F.S., stating that a public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the Division of Library and Information Services (division) of the Department of State; and s. 119.021(2)(b), F.S., providing that each agency shall comply with rules establishing retention schedules and disposal processes for public records which are adopted by the records and information management program of the division. And see In re Amendments to Rule of Judicial Administration 2.051.-- Public Access to Judicial Records, 651 So. 2d 1185, 1186 (Fla. 1995) (definition of "judicial records" [now in Rule 2.420 of Fla. R. Jud. Admin.] "includes information transmitted by an e-mail system").
The nature of information--that is, that it is electronically generated and transferred--has been determined not to alter its character as a public record under the Public Records Act. AGO 01-20. Thus, the e-mail communication of factual background information and position papers from one official to another is a public record and should be retained in accordance with the retention schedule for other records relating to performance of the agency's functions and formulation of policy. Id. Similarly, e-mails sent by city commissioners in connection with the transaction of official business are public records subject to disclosure even though the e-mails contain undisclosed or "blind" recipients and their e-mail addresses. AGO 07-14.
(1) Personal e-mail
The Florida Supreme Court has ruled that private e-mail stored in government computers does not automatically become a public record by virtue of that storage. State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003). "Just as an agency cannot circumvent the Public Records Act by allowing a private entity to maintain physical custody of documents that fall within the definition of 'public records,' . . . private documents cannot be deemed public records solely by virtue of their placement on an agency-owned computer." Id. at 154. The Court cautioned, however, that the case before it did not involve e-mails "that may have been isolated by a government employee whose job required him or her to locate employee misuse of government computers." Id. at 151n.2. Cf. Bent v. State, No. 4D10-2726 (Fla. 4th DCA filed September 29, 2010) (recordings of personal telephone calls between minors in jail awaiting trial and third parties made by sheriff's office are not public records when contents of the phone calls do not involve criminal activity or a security breach). Compare Miami-Dade County v. Professional Law Enforcement Association, 997 So. 2d 1289 (Fla. 3d DCA 2009) (personal flight log of pilots paid by county which are required as part of pilot's administrative duties are distinguishable from personal e-mails in City of Clearwater case and are subject to disclosure). Cf. Grapski v. Machen, Case No. 01-2005-CA-4005 J (Fla. 8th Cir. Ct. May 9, 2006), affirmed per curiam, 949 So. 2d 202 (Fla. 1st DCA 2007) (spam or bulk mail received by a public agency does not necessarily constitute a public record).
(2) E-mail address public records disclosure statement
Section 668.6076, F.S., requires that any agency as defined in s. 119.011(1), F.S., or legislative entity that operates a website and uses electronic mail must post the following statement in a conspicuous location on its website:
Under Florida law, e-mail addresses are public records.
If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing.
c. Facebook and Text Messages
The Attorney General's Office has stated that the placement of material on a city's Facebook page presumably would be in connection with the transaction of official business and thus subject to Ch. 119, F.S., although in any given instance, the determination would have to be made based upon the definition of "public record" contained in s. 119.11, F.S AGO 09-19. To the extent that the information on the city’s Facebook page constitutes a public record, the city is under an obligation to follow the public records retention schedules established by law. Id.
(2) Text Messages
While the Attorney General's Office is not aware of any court cases ruling on whether text messages are public records, in March 2010, the Attorney General wrote a letter to the Department of State (which is statutorily charged with development of public records retention schedules) and said that the "same rules that apply to e-mail should be considered for electronic communications including Blackberry PINS, SMS communications (text messaging, MMS communications (multimedia content), and instant messaging conducted by government agencies." (See http://myfloridalegal.com/webfilesnsf/WF/MRAY-83MJ8D/$file/BrowningLetter.pdf). In response, the department revised its records retention schedule to note that text messages may be public records and that retention of text messages could be required depending upon the content of those texts. (See General Records Schedule GS1-SL for State and Local Government Agencies, V., Electronic Records, Electronic Communications, and Transitory Messages).
d. Formatting issues
Each agency that maintains a public record in an electronic recordkeeping system shall provide to any person, pursuant to Ch. 119, F.S., a copy of any public record in that system which is not exempted by law from public disclosure. Section 119.01(2)(f), F.S. An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium, and the agency may charge a fee which shall be in accordance with Ch. 119, F.S. Id. Thus, a custodian of public records must, if asked for a copy of a computer software disk used by an agency, provide a copy of the disk in its original format; a typed transcript would not satisfy the requirements of s. 119.07(1), F.S. AGO 91-61. Cf. AGO 06-30, stating that an agency may respond to a public records request requiring the production of thousands of documents by composing a static web page where the responsive public documents are posted for viewing if the requesting party agrees to the procedure and agrees to pay the administrative costs, in lieu of copying the documents at a much greater cost.
However, an agency is not generally required to reformat its records to meet a requestor's particular needs. As stated in Seigle v. Barry, supra, the intent of Ch. 119, F.S., is "to make available to the public information which is a matter of public record, in some meaningful form, not necessarily that which the applicant prefers." 422 So. 2d at 66. Thus, in AGO 97-39, the Attorney General's Office concluded that a school district was not required to furnish electronic public records in an electronic format other than the standard format routinely maintained by the district.
Despite the general rule, however, the Seigle court recognized that an agency may be required to provide access through a specially designed program, prepared by or at the expense of the requestor, where:
1) available programs do not access all of the public records stored in the computer's data banks; or
2) the information in the computer accessible by the use of available programs would include exempt information necessitating a special program to delete such exempt items; or
3) for any reason the form in which the information is proffered does not fairly and meaningfully represent the records; or
4) the court determines other exceptional circumstances exist warranting this special remedy. 422 So. 2d at 66-67.
For the purpose of satisfying a public records request, the fee to be charged by an agency if it elects to provide a copy of a public record in a medium that is not routinely used by the agency, or if it elects to compile information that is not routinely developed or maintained by the agency or that requires a substantial amount of manipulation or programming, must be in accordance with s. 119.07(4), F.S. (authorizing imposition of a special service charge if extensive information technology resources or labor are required). Section 119.01(2)(f ), F.S.
When designing or acquiring an electronic recordkeeping system, an agency must consider whether such system is capable of providing data in some common format such as, but not limited to, the American Standard Code for Information Interchange. Section 119.01(2)(b), F.S. An agency may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of that agency, including public records that are on-line or stored in an electronic recordkeeping system used by the agency. Section 119.01(2)(c), F.S. And see s. 119.01(2)(a), F.S., stating that the "[a]utomation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law."
The importance of ensuring public access to computer records is recognized by statute and in the electronic recordkeeping rules of the Division of Library and Information Services of the Department of State. Section 287.042(3)(h), F.S., requires the Department of Management Services to develop, in consultation with the Agency Chief Information Officers Council, procedures to be used by state agencies when procuring information technology commodities and contractual services to ensure compliance with public-records requirements and records-retention and archiving requirements. See s. 257.14, F.S., establishing rulemaking authority of the Division regarding records management. Rule 1B-26.003(6)(g)3., F.A.C., provides that each agency shall "[e]nsure that agency electronic recordkeeping systems meet state requirements for public access to records in accordance with Chapter 119, F.S." Cf. Inf. Op. to Moore, October 19, 1993, noting that an agency considering the acquisition of computer software should be responsive to the need for preserving public access to the information through use of the computer's software and that "[t]he design and development of the software, therefore, should ensure that the system has the capability of redacting confidential or exempt information when a public records request is made."
e. Remote access
Section 119.07(2)(a), F.S., states that "[a]s an additional means of inspecting or copying public records," a custodian may provide access to public records by remote electronic means, provided exempt or confidential information is not disclosed. Thus, an agency is authorized but not required to permit remote electronic access to public records. And see s. 119.01(2)(e), F.S., establishing that "[p]roviding access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible," and that agencies providing remote access should do so "in the most cost-effective and efficient manner available to the agency providing the information." Cf. Rea v. Sansbury, 504 So. 2d 1315, 1317-1318 (Fla. 4th DCA 1987), review denied, 513 So. 2d 1063 (Fla. 1987) (while county possesses statutory authority to facilitate inspection of public records by electronic means, this "does not mean that every means adopted by the county to facilitate the work of county employees ipso facto requires that the public be allowed to participate therein").
Section 119.07(2)(b), F.S., requires the custodian to provide safeguards to protect the contents of the public records from unauthorized electronic access or alteration and to prevent the disclosure or modification of those portions of the records which are exempt from disclosure.
Unless otherwise required by law, the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. However, fees for remote electronic access provided to the general public must be in accordance with the provisions of s. 119.07, F.S. Section 119.07(2)(c), F.S.
f. Security exemptions
Risk analysis information relative to security threats to data, information, and information technology resources of an agency is confidential and exempt. Section 282.318(4)(c), F.S. And see s. 282.0041(1), F.S., defining "agency" for purposes of Ch. 282, F.S., as having the same meaning as in s. 216.011(1)(qq), F.S. Internal policies and procedures to assure the security of the data and information technology resources which, if disclosed, could facilitate the unauthorized modification, disclosure, or destruction of data, information, or information technology resources are confidential and exempt. Section 282.318(4)(d), F.S. Results of periodic audits and evaluations of a security program for an agency's data and information technology resources are confidential and exempt. Section 282.318(4)(f), F.S. Risk analysis information, internal policies and procedures and results of periodic audits and evaluations made confidential by the above subsections shall be available to the Auditor General and the Agency for Enterprise Information Technology for performing postauditing duties. Section 282.318(4)(c), (d) and (f), F.S.
g. Software created by an agency
(1) Copyrighted agency-created software
Section 119.084(2), F.S., authorizes agencies to hold and enforce copyrights for data processing software created by the agency. The agency may sell or license the copyrighted software and may establish a license fee for its use. The prices or fees for the sale or licensing of the copyrighted software may be based on market considerations.
However, the price or fee for providing agency-created and copyrighted data processing software to an individual solely for application to data or information maintained or generated by the agency that created the software must be limited to the fees prescribed in s. 119.07(4), F.S. Thus, while s. 119.084, F.S., allows public agencies to copyright software which they have created and to charge a fee based on market considerations, if the public must use the software in order to access agency public records, the agency must charge the fee provided in s. 119.07(4), F.S., and not the market-based fee.
(2) "Sensitive" agency-created software
Agency-produced data processing software which is sensitive is exempt from disclosure. Section 119.071(1)(f), F.S. Section 119.011(13), F.S., defines the term "sensitive" to mean "only those portions of [agency-produced] data processing software, including the specifications and documentation" which are used to collect, process, store and retrieve exempt information, financial management information such as payroll and accounting records, or to control and direct access authorizations and security measures for automated systems. See AGO 90-104, applying the exemption to agency-produced software used to process voter registration information.
h. Trade secret exemptions
The Legislature has created an exemption for data processing software which has been obtained by an agency under a licensing agreement prohibiting its disclosure and which is a trade secret as defined in s. 812.081, F.S. Section 119.071(1)(f), F.S. In order for the exemption to apply, two conditions must be present: The licensing agreement must prohibit disclosure of the software, and the software must meet the statutory definition of "trade secret" found in s. 812.081, F.S. See AGOs 90-104 and 90-102.
Section 815.04(3)(a), F.S., provides that data, programs, or supporting documentation which is a trade secret as defined in s. 812.081, F.S., and resides or exists internal or external to a computer, computer system, or computer system network held by an agency is confidential and exempt from s. 119.07(1), F.S. This exemption applies to trade secrets marked as confidential and sent via electronic mail to an agency. Sepro Corporation v. Department of Environmental Protection, 839 So. 2d 781, 785 (Fla. 1st DCA 2003), review denied sub nom., Crist v. Department of Environmental Protection, 911 So. 2d 792 (Fla. 2005).
2. Election records
Election records are generally open to public inspection. An individual or group is entitled to inspect the ballots and may take notes regarding the number of votes cast. AGO 93-48. See also Rogers v. Hood, 906 So. 2d 1220, 1223 (Fla. 1st DCA 2005), review denied, 919 So. 2d 436 (Fla. 2005) (voted ballots are public records because they have "memorialized the act of voting").
Section 119.07(5), F.S., prohibits any person other than the supervisor of elections or the supervisor's employees from touching the ballots. And see s. 101.572, F.S. (no persons other than the supervisor, supervisor's employees, or the county canvassing board shall handle any official ballot or ballot card). However, this restriction does not prohibit the supervisor from producing copies of optically scanned ballots which were cast in an election in response to a public records request. AGO 04-11. And see AGO 01-37 (supervisor of elections required to segregate overvote and undervote ballots by use of the county's optical scanning equipment pursuant to a public records request even though the overvote and undervote ballots had already been segregated manually, provided that the requestor pays for the costs of the mechanical segregation in accordance with the Public Records Act).
b. Voter registration and voter records
Each supervisor of elections shall maintain for at least two years and make available for public inspection and copying, all records concerning implementation of registration list maintenance programs and activities conducted pursuant to ss. 98.065 and 98.075, F.S. Section 98.045(3), F.S. The records must include lists of the name and address of each person to whom a notice was sent and information as to whether each such person responded to the mailing, but may not include any information that is confidential or exempt from public records requirements under the Election Code. Id.
Section 97.0585, F.S., states that the following information is confidential and exempt from public disclosure requirements and may be used only for purposes of voter registration: declinations to register to vote; information relating to the place where a person registered to vote or updated a voter registration; the social security number, driver's license number, and the Florida identification number of a voter registration applicant or voter. The signature of a voter registration applicant or a voter is exempt from copying requirements. Id. And see s. 741.465(2), F.S., providing an exemption for the names, addresses, and telephone numbers of participants in the Address Confidentiality Program for Victims of Domestic Violence contained in voter registration and voting records. In addition, s. 97.0585(3), F.S., provides that the names, addresses, and telephone numbers of stalking or aggravated stalking victims are exempt from disclosure in the same manner as such information of participants in the Address Confidentiality Program for Victims of Domestic Violence under s. 741.465, F.S., is exempt, provided that the stalking victim has filed a sworn statement of stalking with the Attorney General's Office and otherwise complies with the procedures in ss. 741.401-741.409, F.S.
Verified petition cards submitted by a candidate qualifying by the alternative method, however, are not registration records subject to restrictions on inspection and copying under the Florida Election Code. AGO 02-63. See also AGO 02-67 (designation that a change of address has occurred does not make a candidate petition card a voter registration record). Compare AGO 04-18, concluding that the supervisor of elections must maintain the confidentiality of personal information (home address, telephone number) for certain officers and employees which appears in petitions or campaign papers if the affected employee or officer or his or her employing agency has filed a written request for confidentiality to the supervisor as authorized in s. 119.07(3)(i)4., F.S. [see now s. 119.071(4)(d)2., F.S.].
3. Financial records
Many agencies prepare or receive financial records as part of their official duties and responsibilities. As with other public records, these materials are generally open to inspection unless a specific statutory exemption exists. See AGO 96-96 (financial information submitted by harbor pilots in support of a pilotage rate increase application is not exempt from disclosure requirements).
a. Audit reports
(1) Auditor General audits
The audit report prepared by the Auditor General is a public record once finalized. Section 11.45(4)(c), F.S. The audit workpapers and notes are not a public record; however, those workpapers necessary to support the computations in the final audit report may be made available by a majority vote of the Legislative Auditing Committee after a public hearing showing proper cause. Id. And see AGO 79-75 ("the term 'audit work papers and notes' should be construed narrowly and limited to such 'raw data' as is commonly considered to constitute the work papers of an accountant").
At the conclusion of the audit, the Auditor General provides the head of the agency being audited with a list of the adverse findings so that the agency head may explain or rebut them before the report is finalized. Section 11.45(4)(d), F.S. This list of adverse audit findings is a public record. AGO 79-75.
(2) Local government audits
The audit report of an internal auditor prepared for or on behalf of a unit of local government becomes a public record when the audit becomes final. Section 119.0713(3), F.S. The audit becomes final when the audit report is presented to the unit of local government; until the audit becomes final, the audit workpapers and notes related to such audit report are confidential. Id.
Thus, a draft audit report of a county legal department prepared by the clerk of court, acting in her capacity as county auditor, did not become subject to disclosure when the clerk submitted copies of her draft report to the county administrator for review and response. Nicolai v. Baldwin, 715 So. 2d 1161, 1163 (Fla. 5th DCA 1998). According to the exemption, the report would become "final," and hence subject to disclosure, when presented to the county commission. Id.
The term "internal auditor" is not defined for purposes of this exemption. However, the term would appear to encompass an official within county government who is responsible under the county code for conducting an audit. AGO 99-07. Thus, the exemption would apply to the Miami-Dade Inspector General when conducting audits of county contracts pursuant to the county code. Id. Compare AGO 04-33 (exemption does not apply to audit of guardianship files prepared by clerk of court because that audit "is not an internal audit performed by or on behalf of any of the specified units of local government").
(3) State agency inspector general audits
Section 20.055, F.S., requires each state agency to appoint an inspector general to conduct audits of the agency and prepare audit reports of the findings. Such audit reports and workpapers are public records to the extent that they do not include information which has been made confidential and exempt from disclosure. Section 20.055(5)(b), F.S. Compare s. D.4.b.(4), infra, relating to whistle-blower investigations.
Section 119.071(1)(b)1.a, F.S., provides an exemption for "sealed bids or proposals received by an agency pursuant to invitations to bid or requests for proposals" until such time as the agency provides notice of a decision or intended decision pursuant to s. 120.57(3)(a), F.S., or within 10 days after bid or proposal opening, whichever is earlier. And see s. 119.071(1)(b)1. b., F.S., providing a temporary exemption if an agency rejects all bids or proposals submitted in response to an invitation to bid or request for proposals and the agency concurrently provides notice of its intent to reissue the invitation to bid or request for proposals; s. 119.071(1)(b)2.a., F.S., providing a temporary exemption for a competitive sealed reply in response to an invitation to negotiate, as defined in s. 287.012, F.S.; and s. 119.071(1)(b)2.b., F.S., providing a temporary exemption if an agency rejects all competitive sealed replies in response to an invitation to negotiate and concurrently provides notice of its intent to reissue the invitation to negotiate and reissues the invitation to negotiate as provided in the exemption.
Any financial statement that an agency requires a prospective bidder to submit in order to prequalify for bidding or for responding to a proposal for a road or any other public works project is exempt from disclosure requirements. Section 119.071(1)(c), F.S. See also s. 119.0713(4), F.S., providing a limited exemption for materials used by municipal utilities to prepare bids.
Budgets and working papers used to prepare them are normally subject to inspection. Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747 (Fla. 1st DCA 1980); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976); and City of Gainesville v. State ex. rel. International Association of Fire Fighters Local No. 2157, 298 So. 2d 478 (Fla. 1st DCA 1974). Accord Inf. Op. to Pietrodangelo, Nov. 29, 1972 (financial operating budget of athletic department of state university constitutes a public record). Cf. News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982), holding that the preponderant interest in allowing public participation in the budget process justified the inclusion of an agency's internal budget committee within the provisions of the Government in the Sunshine Law.
The exemption afforded by s. 447.605(3), F.S., for work products developed by the public employer in preparation for collective bargaining negotiations does not remove the working papers used in preparing an agency budget from disclosure. Warden v. Bennett, supra. See also AGO 92-56 (budget of a public hospital would not, in and of itself, appear to constitute either a trade secret or marketing plan for purposes of a statutory exemption for documents revealing a hospital's marketing plan or trade secrets).
d. Economic development records
(1) Convention center booking business records
Booking business records of a public convention center, sports facility, or auditorium are exempt from public disclosure. Section 255.047(2), F.S. The statute defines "booking business records" to include "client calendars, client lists, exhibitor lists, and marketing files." Section 255.047(1)(a), F.S. The term does not include "contract negotiation documents, lease agreements, rental rates, event invoices, event work orders, ticket sales information, box office records, attendance figures, payment schedules, certificates of insurance, accident reports, incident reports, or correspondence specific to a confirmed event." Id.
(2) Business location or expansion plans
Upon written request from a private entity, information held by an economic development agency concerning the plans, intentions, or interests of such entity to locate or expand its business activities in Florida is confidential and exempt from disclosure for 12 months after the date an economic development agency receives a request for confidentiality or until the information is otherwise disclosed, whichever occurs first. Section 288.075(2)(a), F.S. Confidentiality may be extended for up to an additional 12 months upon the written request of the private entity if the agency finds that the private entity is still actively considering locating or expanding its business activities in Florida. Section 288.075(2)(b), F.S. A public officer or employee may not enter into a binding agreement with an entity who has requested confidentiality of the information under this subsection until 90 days after the information is made public unless: 1. The public officer or employee is acting in an official capacity; 2. The agreement does not accrue to the personal benefit of such public officer or employee; and 3. In the professional judgment of the officer or employee, the agreement is necessary to effectuate an economic development project. Section 288.075(2)(c), F.S.
Development plans, financial records, financial commitment letters and draft memoranda of understanding between a Florida city and a company that is interested in locating its business activities in the city and developing a large project there would appear to be "records which contain or would provide information concerning plans, intentions, or interests of such private corporation . . . to locate, relocate, or expand any of its business activities" in Florida. AGO 04-19. However, the burden is on the economic development agency "to carefully and in good faith distinguish between those documents clearly covered by the exemption and those not covered." Id.
A written request for confidentiality under s. 288.075(2), F.S., may constitute or contain information required to be held confidential under that statute; however, such a determination must be made by the custodian on a case-by-case basis as to whether a particular record or portion of a record falls within the scope of the exemption. AGO 07-15. The section, however, may be cited by the records custodian as statutory authority for withholding information from public inspection and copying under the Public Records Law without violating the required confidentiality provisions of the statute. Id.
Trade secrets, as defined in s. 812.081, F.S., contained in the records held by an economic development agency are confidential and exempt from disclosure. Section 288.075(3), F.S. Cf. AGO 80-78 (county industrial development authority permitted to withhold access only to those records "clearly falling" within the exemption provided in s. 288.075; "policy considerations" do not justify nondisclosure of public records).
Proprietary confidential business information held by an economic development agency is confidential and exempt until such information is otherwise publicly available or is no longer treated by the proprietor as proprietary confidential business information. Section 288.075(4), F.S. Federal employer identification numbers, unemployment compensation account numbers, or Florida sales tax registration numbers held by an economic development agency are confidential and exempt. Section 288.075(5), F.S. In addition, section 288.075(6), F.S., makes certain other information held by an economic development agency pursuant to the administration of an economic incentive program for qualified businesses confidential and exempt for a period not to exceed the duration of the incentive agreement, including an agreement authorizing a tax refund or tax credit, or upon termination of the incentive agreement.
The term "economic development agency" means the state Office of Tourism, Trade, and Economic Development, an industrial development authority, Space Florida, the public economic development agency of a county or municipality, or a research and development authority. Also included are the county or municipal officers or employees assigned the duty to promote the general business interests or industrial interests of that county or municipality or the related responsibilities, if the county or municipality does not have a public economic development agency. The term also includes private persons or agencies authorized by the state, a county or a municipality to promote the general business interests of the state or that municipality or county. Section 288.075(1)(a), F.S. Cf. s. 288.9551, F.S. (Scripps Florida Funding Corporation).
(3) Tourism promotion records
There are several statutes which exempt certain information obtained or held by state or local tourism agencies. For example, s. 125.0104(9)(d)1., F.S., exempts information given to a county tourism promotion agency, which, if released, would reveal the identity of those who provide information in response to a sales promotion, advertisement, or research project or whose names, addresses, meeting or convention plan information or accommodations or other visitation needs become booking or reservation list data.
Section 125.0104(9)(d)2., F.S., provides an exemption for the following records when held by a county tourism promotion agency: booking business records, as defined in s. 255.047, F.S.; a trade secret as defined in s. 812.081, F.S.; trade secrets and commercial or financial information gathered from a person and privileged or confidential, as defined and interpreted under cited federal law. See also ss. 288.1224(7) and 288.1226(8), F.S. (confidentiality of certain data submitted as part of marketing or advertising research projects undertaken by state tourism agencies).
e. Personal financial records
In the absence of statutory exemption, financial information prepared or received by an agency is usually subject to Ch. 119, F.S. See Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) (personal income tax returns and financial statements submitted by housing finance authority members as part of the authority's application to organize a bank are subject to disclosure).
For example, county records of payments made by individuals for waste collection services are public records. AGO 88-57. See also AGO 04-16 (financial documents contained in licensing file); AGO 92-09 (customer delinquency information held by a utilities commission is subject to disclosure); and Inf. Op. to Lovelace, April 3, 1992 (records identifying mortgage recipients held by a bank acting as agent of a housing finance authority in granting mortgages funded by the authority are public records). Cf. AGO 73-278 (reports submitted to agency in connection with permit application open to inspection unless submitted by a consumer reporting agency whose reports are subject to nondisclosure provisions in federal law; in that event, reports are subject to public inspection only as authorized in federal law).
There are some specific exemptions, however, that are applicable to certain payment records or information. Bank account numbers and debit, charge, and credit card numbers held by an agency are exempt from public disclosure. Section 119.071(5)(b), F.S. See also s. 119.0714(1)(j), F.S. (bank account numbers and debit, charge, and credit card numbers held in court records are exempt as provided in s. 119.071[b]); and s. 119.0714(2)(a)and (e)1., F.S. (until January 1, 2012, if a bank account, debit, charge, or credit card number is included in a court file, such number may be included as part of the court record available for public inspection and copying unless redaction is requested by the holder of such number or by the holder’s attorney or legal guardian; after that date no request for redaction is required to keep such records confidential and exempt as provided in s. 119.071[b], F.S.). And see s. 119.0714(3)(b), F.S., providing that if a bank account, debit, charge, or credit card number is included in an official record, such number may be made available as part of the official records available for public inspection and copying unless redaction is requested by the holder of such number or the holder’s attorney or legal guardian; however, if such record is in electronic format, on or after January 1, 2011, the county recorder must use his or her best effort, to keep complete bank account, debit, charge, and credit card numbers exempt as provided for in s. 119.071(5)(b), without a request for redaction. The holder of a bank account, debit, charge, or credit card number, or the holder’s attorney or legal guardian, may request that a county recorder redact from an image or copy of an official record placed on a county recorder’s publicly available Internet website or on a publicly available Internet website used by a county recorder to display public records, or otherwise made electronically available to the public, his or her bank account, debit, charge, or credit card number contained in that official record. Section 119.0714(3)(c), F.S.
Health or property insurance information furnished by an applicant for or participant in federal, state, or local housing assistance programs is confidential. Section 119.071(5)(f), F.S. And see s. 717.117(8), F.S. (property identifiers contained in unclaimed property reports held by the Department of Financial Services are confidential); and s. 624.23, F.S. (personal financial information of a consumer held by the Department of Financial Services or the Office of Insurance Regulation, relating to a consumer's complaint or inquiry is confidential).
Section 338.155(6), F.S., provides an exemption for personal identifying information obtained by the Department of Transportation, a county, or an expressway authority relating to payment of tolls by credit card, charge card, or check. And see s. 414.295(1), F.S. (personal identifying information of a temporary cash assistance program participant is confidential).
f. Security interests
Records regarding ownership of, or security interests in, registered public obligations are not open to inspection. Section 279.11, F.S.
g. Taxpayer records
There are a number of statutes providing for confidentiality of taxpayer records held by the Department of Revenue. Unless otherwise specified by law, Florida taxpayers have the right to have tax information kept confidential. Section 213.015(9), F.S. See, e.g., s. 213.053(2)(a), F.S. (all information contained in returns, reports, accounts, or declarations received by the Department of Revenue, including investigative reports and information and letters of technical advice, is confidential except for official purposes and exempt from s. 119.07, F.S.); s. 213.21(3), F.S. (records of compromises of taxpayer liability not subject to disclosure); and s. 213.27(6), F.S. (confidential information shared by the Department of Revenue with debt collection or auditing agencies under contract with the department is exempt from public disclosure and such debt collection or auditing agencies are bound by the same confidentiality requirements as the department).
In light of the position taken by the Department of Revenue that its form entitled "Original Application for Ad Valorem Tax Exemption" constitutes a "return," such form should be treated as a "return" that is confidential pursuant to s. 193.074, F.S. AGO 05-04. Accord AGO 95-07. And see NYT Management Services, Inc. v. Florida Department of Revenue, Case No. 2006-CA-0896 (Fla. 2d Cir. Ct. April 25, 2006) (declarations or written statements filed with the Department of Revenue pursuant to the state's revenue laws would be a return and thus confidential under s. 193.074, F.S.). However, taxpayer information that is confidential in the hands of certain specified officers under s. 193.074, F.S., is subject to disclosure under the Public Records Act when it has been submitted by a taxpayer to a value adjustment board as evidence in an assessment dispute. AGO 01-74. Cf. Inf. Op. to Echeverri, April 30, 2010 (while property appraiser may use confidential records submitted to the value adjustment board by the taxpayer, it is not clear whether property appraiser may independently submit confidential material to the board in the absence of a taxpayer's submission although board may order production of confidential records). Similarly, absent a specific statutory exemption for assessment rolls and public information cards, such documents made or received by the property appraiser are public records subject to the Public Records Act, regardless of the confidentiality of a return that may contain information used in their creation. AGO 05-04.
h. Telephone bills
Records of telephone calls made from agency telephones are subject to disclosure in the absence of statutory exemption. See Gillum v. Times Publishing Company, No. 91-2689-CA (Fla. 6th Cir. Ct. July 10, 1991). See also Media General Operation, Inc. v. Feeney, 849 So. 2d 3, 6 (Fla. 1st DCA 2003), rejecting the argument that redaction of telephone numbers for calls made in the course of official business could be justified because disclosure could result in "unreasonable consequences" to the persons called. Compare Bent v. State, No. 4D10-2726 (Fla. 4th DCA filed September 29, 2010) (recordings of personal telephone calls between minors in jail awaiting trial and third parties made by sheriff's office are not public records when contents of the phone calls do not involve criminal activity or a security breach). Cf. AGO 97-05 (exemption now found in s. 119.071[d], F.S., for records supplied by a telecommunications company to a state or local governmental agency which contain the name, address, and telephone number of subscribers, applies to telecommunications records of a city-operated telecommunications company when the records are supplied by the city to another state or local governmental agency).
The Attorney General's Office has advised that telephone numbers in a school district's records of calls made on agency telephones are public records even when those calls may be personal and the employee pays or reimburses the school district for the calls. AGO 99-74. And see Bill of Rights, Inc. v. City of New Smyrna Beach, No. 2009-20218-CINS (Fla. 7th Cir. Ct. April 8, 2010), in which the court, striking the city's affirmative defense, stated that "as a matter of law, . . . billing documents regarding personal calls made and received by city employees on city-owned or city-leased cellular telephones are public records, when those documents are received and maintained in connection with the transaction of official business; and, the 'official business' of a city includes paying for telephone service and obtaining reimbursement from employees for personal calls." Compare Media General Operation, Inc. v. Feeney, supra, in which the court held that under the circumstances of that case (involving access to records of cellular phone service provided by a political party for legislative employees), records of personal or private calls of the employees fell outside the definition of public records. Cf. Inf. to Michelson, January 27, 1992 (cellular telephone company which provided city with statements reflecting amount of usage of cell phones by city staff rather than listing individual calls, did not appear to be an "agency" for purposes of Ch. 119, F.S., making company's records of individual calls subject to disclosure).
i. Trade secrets and proprietary confidential business information
(1) Trade Secrets
The Legislature has created a number of specific exemptions from Ch. 119, F.S., for trade secrets. See, e.g., s. 1004.78(2), F.S. (trade secrets produced in technology research within community colleges); s. 365.174, F.S. (proprietary confidential business information and trade secrets submitted by wireless 911 provider to specified agencies); s. 570.544(7), F.S. (trade secrets contained in records of the Division of Consumer Services of the Department of Agriculture and Consumer Services); and s. 627.6699(8)(c), F.S. (trade secrets involving small employer health insurance carriers).
In addition, the First District has concluded that s. 815.045, F.S., "should be read to exempt from disclosure as public records all trade secrets as defined in [s. 812.081(1)c), F.S.]. . . ." Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781, 785-787 (Fla. 1st DCA 2003), review denied sub nom., Crist v. Florida Department of Environmental Protection, 911 So. 2d 792 (Fla. 2005). In Sepro, the court ruled that while "a conversation with a state employee is not enough to prevent [alleged trade secrets] from being made available to anyone who makes a public records request," documents submitted by a private party which constituted trade secrets as defined in s. 812.081, and which were stamped as confidential at the time of submission to a state agency, were not subject to public access. Sepro, at 784. And see Cubic Transportation Systems, Inc. v. Miami-Dade County, 899 So. 2d 453, 454 (Fla. 3d DCA 2005) (company, which supplied documents to an agency and failed to mark them as "confidential" and which continued to supply them without asserting even a legally ineffectual post-delivery claim to confidentiality for some thirty days, failed adequately to protect an alleged trade secret claim); Seta Corporation of Boca, Inc. v. Office of the Attorney General, 756 So. 2d 1093 (Fla. 4th DCA 2000); and James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A., v. Rodale, Inc., 41 So.3d 386 (Fla. 1st DCA 2010), rejecting company’s claim that information in customer complaints and company responses were trade secrets; such information “is not secret and is not [the company’s] to control”). See also AGO 09-02 (authorized representatives of Division of Plant Industry in Department of Agriculture and Consumer Services prohibited from disclosing trade secrets under Ch. 581, F.S., to any unauthorized person, provided such trade secrets fall within the statutory definition in s. 812.081, F.S., and owner of trade secrets has taken measures to maintain the information’s secrecy). Cf. Allstate Floridian Ins. Co. v. Office of Ins. Regulation, 981 So. 2d 617 (Fla. 1st DCA 2008), review denied, 987 So. 2d 79 (Fla. 2008) (to the extent Allstate believed any documents sought by the Office of Insurance Regulation were privileged as trade secrets, Allstate was required to timely seek a protective order in circuit court).
For more information on computer trade secrets, please refer to the discussion on that topic in s. D.1.h., supra.
(2) Proprietary Confidential Business Information
The Legislature has created a number of exemptions from Ch. 119, F.S., for proprietary confidential business information. The term is generally defined by the statute creating the exemption and frequently includes trade secrets. See, e.g., s. 215.44, F.S. (State Board of Administration); s. 288.075, F.S. (economic development agency); s. 288.9626, F.S. (Florida Opportunity Fund and Institute for the Commercialization of Public Research); ss. 364.183, 366.093, 367.156, and 368.108, F.S. (Public Service Commission). Cf. Florida Power & Light Company v. Public Service Commission, 31 So. 3d 860 (Fla. 1st DCA 2010) (listed categories of proprietary confidential business information in s. 366.093, F.S., as exempt are not exhaustive; information relating to employees' compensation warranted confidential classification as it would have impaired utility's competitive interests). Compare Southern Bell Telephone and Telegraph Company v. Beard, 597 So. 2d 873, 876 (Fla. 1st DCA 1992) (Public Service Commission's determination that statutory exemption for proprietary confidential business information should be narrowly construed and did not apply to company's internal self-analysis was "consistent with the liberal construction afforded the Public Records Act in favor of open government").
4. Investigative records of non law enforcement agencies
a. Investigative records subject to Ch. 119, F.S., in absence of legislative exemption
In the absence of a specific legislative exemption, investigative records made or received by public agencies are open to public inspection pursuant to Ch. 119, F.S. State ex rel. Veale v. City of Boca Raton, 353 So. 2d 1194 (Fla. 4th DCA 1977), cert. denied, 360 So. 2d 1247 (Fla. 1978). And see Caswell v. Manhattan Fire and Marine Insurance Company, 399 F.2d 417 (5th Cir. 1968) (ordering that certain investigative records of the State Insurance Commission be produced for inspection under Ch. 119, F.S.). Accord AGO 91-75 (documents containing information compiled by school board employees during an investigation of school district departments are open to inspection in the absence of statutory exemption); AGO 85-79 (interoffice memoranda, correspondence, inspection reports of restaurants, grocery stores and other such public premises, nuisance complaint records, and notices of violation of public health laws maintained by county public health units are subject to disclosure in the absence of any statutory exemption or confidentiality requirement); and AGO 71-243 (inspection reports made or received by a school board in connection with its official investigation of the collapse of a school roof constitute public records). Cf. Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973) (no quasi-judicial exception to the Sunshine Law which would allow closed door hearings or deliberations when a board or commission is acting in a "quasi-judicial" capacity).
Disclosure of records of investigative proceedings is not violative of privacy rights arising under the state or federal Constitutions. See Garner v. Florida Commission on Ethics, 415 So. 2d 67 (Fla. 1st DCA 1982), review denied, 424 So. 02d 761 (Fla. 1983) (public's right to view commission files prepared in connection with investigation of alleged violations of the Code of Ethics outweighs an individual's disclosural privacy rights). For more information on privacy issues, please see s. E.15., infra.
The investigative exemptions now found in paragraphs (2)(c) through (f ), (h) and (i) of s. 119.071(2), F.S., limit disclosure of specified law enforcement records, and thus do not apply to investigations conducted by agencies outside the criminal justice system. See Douglas v. Michel, 410 So. 2d 936, 939 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985) (exemption for "information revealing surveillance techniques or procedures or personnel" [now found at s. 119.071(2)(d)] does not apply to a hospital's personnel files). See also AGO 91-75, stating that the active criminal investigation and intelligence exemption does not apply to information compiled in a school board investigation into the conduct of certain school departments; and AGO 87-51, concluding that complaints from state labor department employees relating to departmental integrity and efficiency do not constitute criminal intelligence information or criminal investigative information.
Thus, the contents of an investigative report compiled by the Inspector General for a state agency in carrying out his duty to determine program compliance are not converted into criminal intelligence information merely because the Florida Department of Law Enforcement also conducts an investigation or because such report or a copy thereof has been transferred to the department. Inf. Op. to Slye, August 5, 1993.
b. Statutory exemptions
A number of exemptions exist for certain investigatory records. For a more complete listing, please refer to Appendix D.
(1) Ethics investigations
The complaint and records relating to the complaint or to any preliminary investigation of the Florida Ethics Commission, a Commission on Ethics and Public Trust established by a county or municipality, or by any county or municipality that has established a local investigatory process to enforce more stringent standards of conduct and disclosure requirements as provided in s. 112.326, F.S., are confidential and exempt until the complaint is dismissed as legally insufficient, until the alleged violator requests in writing that such records be made public, or until the commission or county or municipality that has established such a local investigatory process determines, based on such investigation, whether probable cause exists to believe that a violation has occurred. Section 112.324(2)(a) and (c), F.S. See also s. 112.3215(8)(b) and (d), F.S. (providing confidentiality for certain records relating to Ethics Commission investigation of alleged violations of lobbying laws).
However, nothing in s. 112.324, F.S., provides confidentiality for similar or identical information in the possession of other agencies of government. AGO 96-05. Thus, a police report of an investigation of a public employee that has been concluded and is in the possession of the police department is not made confidential by the fact that the same issue and the same individual are the subject of an ethics complaint pursuant to Part III, Ch. 112, F.S., or because a copy of the police report may be included in information obtained by the Ethics Commission pursuant to its powers to investigate complaints of ethics violations. Id.
(2) State inspector general investigations
Audit workpapers and reports of state agency inspectors general appointed in accordance with s. 20.055, F.S., are public records to the extent that they do not include information which has been made confidential and exempt from s. 119.07(1), F.S. Section 20.055(5)(b), F.S.
However, s. 112.31901(2), F.S., authorizes the Governor, in the case of the Chief Inspector General, or agency head, in the case of an employee designated as the agency inspector general under s. 112.3189, F.S., to certify that an investigatory record of the Chief Inspector General or an agency inspector general requires an exemption in order to protect the integrity of the investigation or avoid unwarranted damage to an individual's good name or reputation. If so certified, the investigatory records are exempt from s. 119.07(1), F.S., until the investigation ceases to be active, or a report detailing the investigation is provided to the Governor or the agency head, or 60 days from the inception of the investigation for which the record was made or received, whichever first occurs. Section 112.31901(1), F.S. The provisions of this section do not apply to whistle-blower investigations conducted pursuant to the whistle-blower act. Section 112.31901(3), F.S. Cf. s. 943.03(2), F.S., providing for confidentiality of Department of Law Enforcement records relating to an active investigation of official misconduct.
(3) State licensing investigations
Pursuant to s. 455.225(10), F.S., complaints against a licensed professional filed with the state licensing board or the Department of Business and Professional Regulation are confidential and exempt from disclosure until 10 days after probable cause has been found to exist by the probable cause panel of the licensing board or by the Department of Business and Professional Regulation, or the professional waives his or her privilege of confidentiality whichever occurs first. A similar exemption applies to complaints and investigations conducted by the Department of Health and licensing boards within that department as provided in s. 456.073(10), F.S.
Complaints filed by a municipality against a licensed professional are included within the confidentiality provisions. AGO 02-57. However, while the complaint filed by the municipality with the state licensing agency is exempt, the exemption afforded by the statute does not extend to other records held by the city related to the nature of the alleged offense by the licensed professional. Id.
(4) Whistle-blower investigations
Section 112.3188(1), F.S., provides, with limited exceptions, for the confidentiality of the identity of a whistle-blower who discloses in good faith to the Chief Inspector General, an agency inspector general, a local chief executive officer, or other appropriate local official information that alleges that an employee or agent of an agency or independent contractor has violated or is suspected of having violated any federal, state, or local law, rule or regulation, thereby creating and presenting a substantial and specific danger to the public's health, safety, or welfare; or has committed or is suspected of having committed an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty. A complainant may waive the right to confidential treatment of his or her name or identity. AGO 95-20. However, an individual may not be required to sign a waiver of confidentiality as a condition of processing a complaint. AGO 96-40.
In order to qualify as a whistle-blower complaint, particular information must be disclosed to the statutorily designated officials; a general complaint of wrongdoing to officials other than those specifically named in s. 112.3188(1), F.S., does not entitle the complainant to whistle-blower protection. AGO 98-37. And see AGO 99-07 (county inspector general qualifies as an "appropriate local official" for purposes of the whistle-blower law); and AGO 96-40 (town ethics commission constitutes "appropriate local official" for purposes of processing complaints under the whistle-blower law).
Section 112.3188(2)(a), F.S., states that except as specifically authorized in s. 112.3189, F.S., all information received by the Chief Inspector General or an agency inspector general or information produced or derived from fact-finding or other investigations conducted by the Florida Commission on Human Relations or the Department of Law Enforcement is confidential and exempt if the information is being received or derived from allegations as set forth in s. 112.3188(1)(a) or (b), F.S., and an investigation is "active" as defined s. 112.3188(2)(c), F.S.
Information received by an appropriate local official or local chief executive officer or produced or derived from fact-finding or investigations by local government pursuant to s. 112.3187(8)(b), F.S. [authorizing administrative procedures for handling whistle-blower complaints filed by local public employees] is confidential and exempt, provided that the information is being received or derived from allegations set forth in s. 112.3188(1) and an investigation is active as defined in the section. Section 112.3188(2)(b), F.S. The exemption applies to records received by a municipality conducting an active investigation of a whistle-blower complaint, and is not limited to records received as part of an active investigation of a complaint of retaliation against a whistle-blower. AGO 98-37. The exemption applies whether the allegations of wrongdoing were received from an anonymous source or a named individual; in either case information received or generated during the course of the investigation is subject to the exemption. AGO 99-07.
However, while the name or identity of the individual disclosing this information is confidential, the initial report of wrongdoing received by the municipality is a public record, since that information was received before an investigation began. AGO 98-37.
5. Litigation records
a. Attorney-client communications
The Public Records Act applies to communications between attorneys and governmental agencies; there is no judicially created privilege which exempts these documents from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979) (only the Legislature and not the judiciary can exempt attorney-client communications from Ch. 119, F.S.). See also City of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218 (Fla. 1985) (although s. 90.502, F.S., of the Evidence Code establishes an attorney-client privilege for public and private entities, this evidentiary statute does not remove communications between an agency and its attorney from the open inspection requirements of Ch. 119, F.S.).
Moreover, public disclosure of these documents does not violate the public agency's constitutional rights of due process, effective assistance of counsel, freedom of speech, or the Supreme Court's exclusive jurisdiction over The Florida Bar. City of North Miami v. Miami Herald Publishing Company, supra. And see Seminole County, Florida v. Wood, 512 So. 2d 1000, 1001 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988) (the rules of ethics provide that an attorney may divulge a communication when required by law; the Legislature has plenary authority over political subdivisions and can require disclosure of otherwise confidential materials); and AGO 98-59 (records in the files of the former city attorney, who served as a contract attorney for the city, which were made or received in carrying out her duties as city attorney and which communicate, perpetuate, or formalize knowledge constitute public records and are required to be turned over to her successor).
On the other hand, the Florida Supreme Court has ruled that files in the possession of the Capital Collateral Representative (CCR) in furtherance of its representation of an indigent client are not subject to public disclosure under Ch. 119, F.S. The Court noted that the files are not governmental records for purposes of the public records law but are the "private records" of the CCR client. Kight v. Dugger, 574 So. 2d 1066 (Fla. 1990). And see Times Publishing Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999) (private attorneys retained by individual county commissioners in a criminal case were not "acting on behalf" of a public agency so as to become subject to the Public Records Act, even though the board of county commissioners subsequently voted to pay the commissioners' legal expenses in accordance with a county policy providing for reimbursement of legal expenses to individual county officers who successfully defend criminal charges filed against them arising out of the performance of their official duties).
b. Attorney work product
The Supreme Court has ruled that the Legislature and not the judiciary has exclusive authority to exempt litigation records from the scope of Ch. 119, F.S. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). See also Edelstein v. Donner, 450 So. 2d 562 (Fla. 3d DCA 1984), approved, 471 So. 2d 26 (Fla. 1985), noting that in the absence of legislation, a work product exemption is "non-existent;" and Hillsborough County Aviation Authority v. Azzarelli Construction Company, 436 So. 2d 153, 154 (Fla. 2d DCA 1983), stating that the Supreme Court's decision in Wait "constituted a tacit recognition that work product can be a public record."
With the enactment of s. 119.071(1)(d), F.S., the Legislature created a narrow statutory exemption for certain litigation work product of agency attorneys. See City of Orlando v. Desjardins, 493 So. 2d 1027, 1029 (Fla. 1986), in which the Court noted that the exemption was enacted because of "developing case law affording public entities no protection under either the work product doctrine or the attorney-client privilege . . . ."
Section 119.071(1)(d)1., F.S., states:
A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt [from disclosure] until the conclusion of the litigation or adversarial administrative proceedings. For purposes of capital collateral litigation as set forth in s. 27.7001, the Attorney General's office is entitled to claim this exemption for those public records prepared for direct appeal as well as for all capital collateral litigation after direct appeal until execution of sentence or imposition of a life sentence.
Note that this statutory exemption applies to attorney work product that has reached the status of becoming a public record; as discussed more extensively in s. D.5.e., of this manual, relating to "attorney notes," certain preliminary trial preparation materials, such as handwritten notes for the personal use of the attorney, are not considered to be within the definitional scope of the term "public records" and, therefore, are outside the scope of Ch. 119, F.S. See Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998). Under the terms of the statute, the work product exemption "is not waived by the release of such public record to another public employee or officer of the same agency or any person consulted by the agency attorney." Section 119.071(1)(d)2., F.S. See also AGO 94-77 (work product exemption continues to apply to records prepared by the county attorney when these records are transferred to the city attorney pursuant to a transfer agreement whereby the city is substituted for the county as a party to the litigation).
An agency asserting the work product exemption must identify the potential parties to the litigation or proceedings. Section 119.071(1)(d)2., F.S. If a court finds that the record was improperly withheld, the party seeking the record shall be awarded reasonable attorney's fees and costs in addition to any other remedy ordered by the court. Id. As one court has noted, the inclusion of an attorney's fee sanction "was prompted by the legislature's concern that government entities might claim the work product privilege whenever public access to their records is demanded." Smith & Williams, P.A. v. West Coast Regional Water Supply Authority, 640 So. 2d 216, 218 (Fla. 2d DCA 1994).
(1) Scope of exemption
(a) Attorney bills and payments
Only those records which reflect a "mental impression, conclusion, litigation strategy, or legal theory" are included within the parameters of the work product exemption. Accordingly, in AGO 85-89, the Attorney General's Office concluded that a contract between a county and a private law firm for legal counsel and documentation for invoices submitted by such firm to the county do not fall within the work product exemption. Accord AGO 00-07 (records of outside attorney fee bills for the defense of the county, as well as its employees who are sued individually, for alleged civil rights violations are public records subject to disclosure).
If the bills and invoices contain some exempt work product--i.e., "mental impression[s], conclusion[s], litigation strateg[ies], or legal theor[ies],"--the exempt material may be deleted and the remainder disclosed. AGO 85-89. However, information such as the hours worked or the hourly wage clearly would not fall within the scope of the exemption. Id. And see Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998) ("Obviously, an entry on a [billing] statement which identifies a specific legal strategy to be considered or puts a specific amount of settlement authority received from the client, would fall within the exemption. On the other hand, a notation that the file was opened, or that a letter was sent to opposing counsel, would not.").
Thus, an agency which "blocked out" most notations on invoices prepared in connection with services rendered by and fees paid to attorneys representing the agency, "improperly withheld" nonexempt material when it failed to limit its redactions to those items "genuinely reflecting its 'mental impression, conclusion, litigation strategy, or legal theory.'" Smith & Williams, P.A. v. West Coast Regional Water Supply Authority, supra. And see Davis v. Sarasota County Public Hospital Board, 480 So. 2d 203 (Fla. 2d DCA 1985), review denied, 488 So. 2d 829 (Fla. 1986), holding in part that a citizen seeking to examine records of a public hospital board concerning the payment of legal fees was entitled to examine actual records, not merely excerpts taken from information stored in the hospital's computer.
Section 119.071(1)(d), F.S., does not create a blanket exception to the Public Records Act for all attorney work product. AGO 91-75. The exemption is narrower than the work product privilege recognized by the courts for private litigants. AGO 85-89. In order to qualify for the work product exemption, the records must have been prepared exclusively for or in anticipation of imminent or pending litigation or adversarial administrative proceedings; records prepared for other purposes may not be converted into exempt material simply because they are also used in or related to the litigation. See, e.g., Lightbourne v. McCollum, 969 So. 2d 326, 333 (Fla. 2007), cert. denied, 553 U.S. 1059 (2008) (memoranda prepared by corrections department attorney regarding lethal injection procedures does not constitute exempt attorney work product because memorandum does not relate to any pending litigation nor appears to have been prepared exclusively for litigation); MHM Correctional Services, Inc. v. State, Department of Corrections, No. 2009 CA 2105 (Fla. 2d Jud. Cir., June 10, 2009) (department wrongfully withheld portions of an e-mail stream regarding the bid process as protected work product or privileged communications as none of the emails were prepared in contemplation of litigation as required by the statute).
Moreover, only those records which are prepared by or at the express direction of the agency attorney and reflect "a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency" are exempt from disclosure until the conclusion of the proceedings. (e.s.) See City of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218, 219 (Fla. 1985) (noting application of exemption to "government agency, attorney-prepared litigation files during the pendency of litigation"); and City of Miami Beach v. DeLapp, 472 So. 2d 543 (Fla. 3d DCA 1985) (opposing counsel not entitled to city's legal memoranda as such material is exempt work product). And see City of Orlando v. Desjardins, 493 So. 2d 1027, 1028 (Fla. 1986) (trial court must examine city's litigation file in accident case and prohibit disclosure only of those records reflecting mental impression, conclusion, litigation strategy or legal theory of attorney or city); Jordan v. School Board of Broward County, 531 So. 2d 976, 977 (Fla. 4th DCA 1988) (record did not constitute exempt work product because it "was not prepared at an attorney's express direction nor did it reflect a conclusion and mental impression of appellee"); and Lightbourne v. McCollum, supra (exemption inapplicable as memoranda conveyed specific factual information rather than mental impressions or litigation strategies).
Thus, a circuit judge refused to apply the exemption to tapes, witness statements and interview notes taken by police as part of an investigation of a drowning accident at a city summer camp. See Sun-Sentinel Company v. City of Hallandale, No. 95-13528(05) (Fla. 17th Cir. Ct. October 11, 1995). Similarly, in AGO 05-23, the Attorney General's Office advised that notes taken by the assistant city attorney during interviews with co-workers of certain city employees in order to ascertain if employee discipline was warranted are not exempt from disclosure. See also AGO 91-75 (work product exemption not applicable to documents generated or received by school district investigators, acting at the direction of the school board to conduct an investigation of certain school district departments). Cf. Tober v. Sanchez, 417 So. 2d 1053, 1055 (Fla. 3d DCA 1982), review denied sub nom., Metropolitan Dade County Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (documents which are given by a client to an attorney in the course of seeking legal advice are privileged in the attorney's hands only if the documents were privileged in the client's hands; thus, otherwise public records made or received by agency personnel do not become privileged merely by transferring them to the agency attorney).
(2) Commencement and termination of exemption
Unlike the open meetings exemption in s. 286.011(8), F.S., for certain attorney-client discussions between a governmental agency and its attorney, s. 119.071(1)(d), F.S., is not limited to records created for pending litigation or proceedings, but applies also to records prepared "in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings." (e.s.) See AGO 98-21, discussing the differences between the public records work product exemption in s. 119.071(1)(d) and the Sunshine Law exemption in s. 286.011.
The exemption from disclosure provided by s. 119.071(1)(d), F.S., is temporary and limited in duration. City of North Miami v. Miami Herald Publishing Co., supra. The exemption exists only until the "conclusion of the litigation or adversarial administrative proceedings" even if disclosure of the information in the concluded case could negatively impact the agency's position in related cases or claims. See State v. Coca-Cola Bottling Company of Miami, Inc., 582 So. 2d 1 (Fla. 4th DCA 1990); Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988); Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. 10th Cir. Ct. August 19, 1991); and Lightbourne v. McCollum, supra (rejecting a "continuing exemption" claim by the state). See also Wagner v. Orange County, 960 So. 2d 785 (Fla. 5th DCA 2007), stating that the phrase "conclusion of the litigation or adversarial administrative proceedings" encompasses post-judgment collection efforts such as a legislative claims bill. Cf. State v. Coca-Cola Bottling Company of Miami, Inc., supra (although state cannot claim work product exemption for litigation records after conclusion of litigation, Ch. 119 does not cover oral testimony; thus, opposing counsel not entitled to take depositions of state representatives regarding the concluded litigation).
(a) Settlement records
Settlement documents are normally subject to release once litigation is over between the parties, even if other issues remain, because the work product exemption does not apply once the litigation is no longer pending. And see s. 69.081(8)(a), F.S., stating, subject to limited exceptions, that "[a]ny portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against the state, its agencies or subdivisions or against any municipality or constitutionally created body or commission is void, contrary to public policy, and may not be enforced;" and Inf. Op. to Barry, June 24, 1998, citing to s. 69.081(8)(a), F.S., and stating that a state agency may not enter into a settlement agreement or other contract which contains a provision authorizing the concealment of information relating to a disciplinary proceeding or other adverse employment decision from the remainder of a personnel file.
For example, if the state settles a claim against one company accused of conspiracy to fix prices, the state has concluded the litigation against that company. Thus, the records prepared in anticipation of litigation against that company are no longer exempt from disclosure even though the state has commenced litigation against the alleged co-conspirator. State v. Coca-Cola Bottling Company of Miami, Inc., 582 So. 2d 1 (Fla. 4th DCA 1990). And see Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. 10th Cir. Ct. August 19, 1991) (settlement agreement not exempt as attorney work product even though another related case was pending, and agency attorneys feared disclosure of their assessment of the merits of the settled case and their litigation strategy would have a detrimental effect upon the agency's position in the related case). Cf. Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204, 205 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (private company under contract with sheriff to provide medical services for inmates at county jail must release records relating to a settlement agreement with an inmate because all of its records that would normally be subject to the Public Records Act if in the possession of the public agency, are likewise covered by that law, even though in the possession of the private corporation).
Regarding draft settlements received by an agency in litigation, a circuit court held that draft settlement agreements furnished to a state agency by a federal agency were public records despite the department's agreement with the federal agency to keep such documents confidential. Florida Sugar Cane League, Inc. v. Department of Environmental Regulation, No. 91-2108 (Fla. 2d Cir. Ct. September 20, 1991), per curiam affirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992). And see Florida Sugar Cane League, Inc. v. Florida Department of Environmental Regulation, No. 91-4218 (Fla. 2d Cir. Ct. June 5, 1992) (technical documents or data which were not prepared for the purpose of carrying litigation forward but rather were jointly authored among adversaries to promote settlement are not exempted as attorney work product).
(b) Criminal cases
In a criminal case, the "conclusion of the litigation" for purposes of the termination of the work product exemption occurs when the conviction and sentence have become final. State v. Kokal, 562 So. 2d 324 (Fla. 1990). However, the state attorney may still claim the work product exemption for his or her current file in a pending motion for postconviction relief because there is ongoing litigation with respect to those documents. See Walton v. Dugger, 634 So. 2d 1059 (Fla. 1993) (state attorney not required to disclose information from a current file relating to a postconviction relief motion).
The Florida Supreme Court, however, has noted the state's obligation in a criminal case to "disclose any exculpatory document within its possession or to which it has access, even if such document is not subject to the public records law. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)." Walton v. Dugger, 634 So. 2d at 1062. Accord Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998).
c. Other statutory exemptions relating to litigation records
Section 768.28(16)(b), F.S., provides an exemption for claim files maintained by agencies pursuant to a risk management program for tort liability until the termination of all litigation and settlement of all claims arising out of the same incident. See Wagner v. Orange County, 960 So. 2d 785 (Fla. 5th DCA 2007), stating that the phrase "settlement of all claims arising out of the same incident" included a legislative claims bill.
The exemption afforded by s. 768.28(16), F.S., is limited to tort claims for which the agency may be liable under s. 768.28, F.S., and does not apply to federal civil rights actions under 42 U.S.C. s. 1983. AGOs 00-20 and 00-07. And see Sun-Sentinel Company v. City of Hallandale, No. 95-13528(05) (Fla. 17th Cir. Ct. October 11, 1995) (exemption now found at s. 758.28[b], F.S., for risk management files did not apply to tapes, witness statements and interview notes taken by police as part of an investigation of a drowning accident at a city summer camp). Moreover, the exemption does not include outside attorney invoices indicating hours worked and amount to be paid by the public agency, even though the records may be maintained by the agency's risk management office pursuant to a risk management program. AGO 00-07. And see AGO 92-82 (open meetings exemption provided by s. 768.28, F.S., applies only to meetings held after a tort claim is filed with the risk management program).
Section 624.311(2), F.S., provides that the "records of insurance claim negotiations of any state agency or political subdivision are confidential and exempt [from disclosure] until termination of all litigation and settlement of all claims arising out of the same incident." A county's self-insured workers compensation program is the legal equivalent of "insurance" for purposes of this exemption. Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998). And see AGO 85-102 (s. 624.311, F.S., exemption includes correspondence regarding insurance claims negotiations between a county's retained counsel and its insurance carriers until termination of litigation and settlement of claims arising out of the same incident). Compare s. 284.40(2), F.S. (claim files maintained by the risk management division of the Department of Financial Services are confidential, shall be only for the use of the department, and are exempt from disclosure); and s. 1004.24(4), F.S. (claim files of self-insurance program adopted by Board of Governors, or the board's designee, are confidential and exempt); 627.3121(1), F.S. (claims files held by the Florida Workers' Compensation Joint Underwriting Association, Inc., are confidential and exempt).
d. Attorney notes
Relying on its conclusion in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980), the Florida Supreme Court has recognized that "not all trial preparation materials are public records." State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990). In Kokal, the Court approved the decision of the Fifth District in Orange County v. Florida Land Co., 450 So. 2d 341, 344 (Fla. 5th DCA 1984), review denied, 458 So. 2d 273 (Fla. 1984), which described certain documents as not within the term "public records" because they were not used to perpetuate, formalize, or communicate knowledge:
Document No. 2 is a list in rough outline form of items of evidence which may be needed for trial. Document No. 9 is a list of questions the county attorney planned to ask a witness. Document No. 10 is a proposed trial outline. Document No. 11 contains handwritten notes regarding the county's sewage system and a meeting with Florida Land's attorneys. Document No. 15 contains notes (in rough form) regarding the deposition of an anticipated witness. These documents are merely notes from the attorneys to themselves designed for their own personal use in remembering certain things. They seem to be simply preliminary guides intended to aid the attorneys when they later formalized the knowledge. We cannot imagine that the Legislature, in enacting the Public Records Act, intended to include within the term 'public records' this type of material. [Emphasis supplied by Court]
Similarly, in Johnson v. Butterworth, 713 So. 2d 985, 987 (Fla. 1998), the Court ruled that "outlines, time lines, page notations regarding information in the record, and other similar items" in the case file, do not fall within the definition of public record, and thus are not subject to disclosure. See also Patton v. State, 784 So. 2d 380, 389 (Fla. 2000) (prosecutor's personal notes, i.e., handwritten details of specific questions to ask jurors during voir-dire, notes on potential jurors, a time-line of events, or specific detailed questions for witnesses, are not public records); Scott v. Butterworth, 734 So. 2d 391, 393 (Fla. 1999) (handwritten notes and drafts of pleadings are not public records); Ragsdale v. State, 720 So. 2d 203, 205 (Fla. 1998) ("attorney's notes and other such preliminary documents are not public records and are never subject to public records disclosure"); Valle v. State, 705 So. 2d 1331, 1335 (Fla. 1997) (prosecutors' notes to themselves for their own personal use, including outlines of opening and closing arguments and notes of witness depositions are not public records); Lopez v. State, 696 So. 2d 725, 727 (Fla. 1997) (handwritten notes dealing with trial strategy and cross-examination of witnesses are not public records); and Atkins v. State, 663 So. 2d 624, 626 (Fla. 1995) (notes of state attorney's investigations and annotated photocopies of decisional case law are not public records).
By contrast, documents prepared to communicate, perpetuate, or formalize knowledge constitute public records and are, therefore, subject to disclosure in the absence of statutory exemption. See Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), stating that "[i]nter-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."
Thus, in Coleman v. Austin, 521 So. 2d 247, 248 (Fla. 1st DCA 1988), the court observed that "although notes from attorneys to themselves might not be public records when intended for their own personal use, inter-office and intra-office memoranda may constitute public records even though encompassing trial preparation materials." And see Hillsborough County Aviation Authority v. Azzarelli Construction Company, 436 So. 2d 153 (Fla. 2d DCA 1983) (rejecting an agency's contention that when a public body is engaged in litigation, the pleadings and evidence it presents in court constitute the formal agency statement on the subject matter and all else is merely preliminary or preparatory and, therefore, not a public record). Accord Orange County v. Florida Land Company, supra, in which the court concluded that trial preparation materials consisting of interoffice and intraoffice memoranda communicating information from one public employee to another or merely prepared for filing, even though not part of the agency's formal work product, were public records although such circulated trial preparation materials might be exempt from disclosure pursuant to s. 119.071(1)(d), F.S., while the litigation is ongoing. See also AGO 05-23 (notes taken by city's assistant labor attorney and used to communicate information to the labor attorney regarding possible future personnel actions were public records available for inspection).
6. Personnel records
a. Personnel records open to inspection unless exempted by law
The general rule with regard to personnel records is the same as for other public records; unless the Legislature has expressly exempted an agency's personnel records from disclosure or authorized the agency to adopt rules limiting access to such records, personnel records are subject to public inspection and copying under s. 119.07(1), F.S. Michel v. Douglas, 464 So. 2d 545 (Fla. 1985). And see Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla. 2002) ("only the custodian of such records can assert any applicable exemption; not the employee").
In accordance with this principle, the following are some of the personnel records which have been determined to be subject to disclosure:
Applications for employment--AGOs 77-48 and 71-394;
Communications from third parties--Douglas v. Michel, 410 So. 2d 936 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985);
Grievance records--Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981);
Resumes--Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980);
Salary information--Lewis v. Schreiber, No. 92-8005(03) (Fla. 17th Cir. Ct. June 12, 1992), per curiam affirmed, 611 So. 2d 531 (Fla. 4th DCA 1992); AGO 73-30;
Travel vouchers--Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., supra; Lewis v. Schreiber, supra.
Accordingly, an agency should assume that all information in a personnel file is subject to inspection unless a specific statutory exemption exists which would permit withholding a particular document from disclosure. For more information on the exemptions applicable to law enforcement officers, please refer to the discussion of law enforcement personnel records found at s. G.11., infra. Exemptions that pertain to personnel records of educators are discussed in s. J.2., infra.
b. Employment search or consultant records
"[D]ocuments provided to a consultant in relation to his acting on behalf of a public agency are public documents." Wallace v. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997). Thus, if an agency uses a recruitment company to conduct an employment search for the agency, records made or received by the private company in connection with the search are public records. AGO 92-80. See also Shevin v. Byron, Harless, Schaffer, Reid and Associates, 379 So. 2d 633 (Fla. 1980) (firm of consultants hired to conduct an employment search for position of managing director of a public agency was "acting on behalf of" a public agency and thus letters, memoranda, resumes, and travel vouchers made or received by consultants as part of search were public records).
c. Privacy concerns
The courts have rejected claims that constitutional privacy interests operate to shield agency personnel records from disclosure. See Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985), holding that the state constitution "does not provide a right of privacy in public records" and that a state or federal right of disclosural privacy does not exist.
"Absent an applicable statutory exception, pursuant to Florida's Public Records Act (embodied in chapter 119, Florida Statutes), public employees (as a general rule) do not have privacy rights in such records." Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla. 2002). See also Forsberg v. Housing Authority of City of Miami Beach, 455 So. 2d 373 (Fla. 1984); Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., supra; and Mills v. Doyle, supra. But see Fadjo v. Coon, 633 F.2d 1172, 1175n.3 (5th Cir. 1981), noting that "it is clear that the legislature cannot authorize by statute an unconstitutional invasion of privacy." For additional information on general privacy issues, please refer to the discussion in s. E.15., infra.
Additionally, the judiciary has refused to deny access to personnel records based on claims that the release of such information could prove embarrassing or unpleasant for the employee. As the Florida Supreme Court pointed out in News-Press Publishing Company v. Wisher, 345 So. 2d 646, 648 (Fla. 1977):
No policy of the state protects a public employee from the embarrassment which results from his or her public employer's discussion or action on the employee's failure to perform his or her duties properly.
See also News-Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) (absent a statutory exemption, a court is not free to consider public policy questions regarding the relative significance of the public's interest in disclosure and damage to an individual or institution resulting from such disclosure); Browning v. Walton, 351 So. 2d 380 (Fla. 4th DCA 1977) (city cannot refuse to allow inspection of records containing the names and addresses of city employees who have filled out forms requesting that the city maintain the confidentiality of their personnel files); and AGO 87-48 (statute prohibiting the placement of anonymous materials in district school employee's personnel file does not create an exemption from disclosure requirements of Ch. 119, F.S.). Cf. United Teachers of Dade v. School Board of Dade County, No. 9217803 (01) (Fla. 11th Cir. Ct. Nov. 30, 1992) (home telephone numbers and addresses of school district employees not protected by constitutional right to privacy; only the Legislature can exempt such information).
Public employers should note, however, that a court has held that an agency must provide a discharged employee with an opportunity for a post-termination name-clearing hearing when stigmatizing information concerning the employee is made a part of the public records or is otherwise published. Buxton v. City of Plant City, Florida, 871 F.2d 1037 (11th Cir. 1989). See also Garcia v. Walder Electronics, Inc., 563 So. 2d 723 (Fla. 3d DCA 1990), review denied, 576 So. 2d 287 (Fla. 1990) (public employer has an affirmative duty to inform a discharged employee of his right to seek a post-termination name-clearing hearing). Cf. Cannon v. City of West Palm Beach, 250 F.3d 1299, 1303 (11th Cir. 2001) (failure to provide name-clearing hearing to employee who alleged that he was denied a promotion due to stigmatizing information in his personnel file does not violate the employee's due process rights, because "in this circuit a 'discharge or more' is required").
d. Conditions for inspection of personnel records
An agency is not authorized to unilaterally impose special conditions for the inspection of personnel records. An automatic delay in the production of such records is invalid. Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985) (automatic 48 hour delay unauthorized by Ch. 119, F.S.).
(1) Presence of employee
In the absence of express legislative authority, the inspection of personnel records may not be delayed in order to allow the employee to be notified or present during the inspection of the public records relating to that employee. As stated by the Supreme Court, the "[Public Records] Act does not provide that the employee be present during the inspection, nor even that the employee be given notice that an inspection has been requested or made." Tribune Company v. Cannella, 458 So. 2d at 1078. Compare s. 1012.31(3)(a)3., F.S., providing that no material derogatory to a public school employee may be inspected until 10 days after the employee has been notified by certified mail or personal delivery as provided in s. 1012.31(2)(c), F.S.
(2) Separate files
An agency is not authorized to maintain personnel records of its employees under two headings, one open and one confidential, in the absence of statutory authorization. AGO 73-51. Nor may a city, absent a statutory exemption for such records, agree to remove counseling slips and written reprimands from an employee's personnel file and maintain such documents in a separate disciplinary file. AGO 94-54. Similarly, an agency is not authorized to "seal" disciplinary notices and thereby remove such notices from disclosure under the Public Records Act. AGO 94-75. Cf. s. 69.081(8)(a), F.S., providing, subject to limited exceptions, that any portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against an agency is "void, contrary to public policy, and may not be enforced;" and Inf. Op. to Barry, June 24, 1998, citing to s. 69.081(8)(a), and stating that "a state agency may not enter into a settlement agreement or other contract which contains a provision authorizing the concealment of information relating to a disciplinary proceeding or other adverse employment decision from the remainder of a personnel file."
e. Collective bargaining
(1) Relationship of collective bargaining agreement to personnel records
A collective bargaining agreement between a public employer and its employees may not validly make the personnel records of public employees confidential or exempt the same from the Public Records Act. AGO 77-48. Thus, employee grievance records are disclosable even though classified as confidential in a collective bargaining contract because "to allow the elimination of public records from the mandate of Chapter 119 by private contract would sound the death knell of the Act." Mills v. Doyle, 407 So. 2d 348, 350 (Fla. 4th DCA 1981). Cf. Palm Beach County Classroom Teacher's Association v. School Board of Palm Beach County, 411 So. 2d 1375, 1376 (Fla. 4th DCA 1982) (collective bargaining agreement cannot be used "to circumvent the requirements of public meetings" in s. 286.011, F.S.).
Similarly, unless authorized by law, a city may not agree through collective bargaining to remove references to the initial proposed disciplinary action in an employee's personnel file when a settlement agreement results in a reduced disciplinary action. AGO 94-54. Accord AGO 94-75 (city may not remove and destroy disciplinary notices, with or without the employee's consent, during the course of resolving collective bargaining grievances, except in accordance with the established retention schedule approved by the Division of Library and Information Services of the Department of State).
(2) Collective bargaining work product exemption
Section 447.605(3), F.S., provides:
All work products developed by the public employer in preparation for negotiations, and during negotiations, shall be confidential and exempt from the provisions of s. 119.07(1), F.S.
The exemption is limited and does not remove budgetary or fiscal information from the purview of Ch. 119, F.S. See Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747, 749 (Fla. 1st DCA 1980), noting that records which are prepared for other purposes do not, as a result of being used in negotiations, come within the s. 447.605(3) exemption; and Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976), ordering that working papers used in preparing a college budget be produced for inspection by a labor organizer.
Thus, proposals and counter proposals presented during the course of collective bargaining would appear to be subject to public disclosure. However, written notes taken by the representative of a fire control district during collective bargaining sessions for use in preparing for subsequent bargaining sessions which reflect the impressions, strategies and opinions of the district representative are exempt pursuant to s. 447.605(3), F.S. Inf. Op. to Fulwider, June 14, 1993.
f. Statutory exemptions
As emphasized in the preceding discussion, the exclusive authority to exempt personnel records from disclosure is vested in the Legislature. A number of exemptions have been enacted relating to various kinds of personnel records. The following are examples of some of the exemptions provided by statute. For a more complete listing of exemptions, please see Appendix D.
(1) Annuity or custodial account activities
Records identifying individual participants in any annuity contract or custodial account under s. 112.21, F.S. (relating to tax-sheltered annuities or custodial accounts for employees of governmental agencies) and their personal account activities are confidential and exempt from s. 119.07(1), F.S. Section 112.21(1), F.S.
Complaints filed against law enforcement officers are discussed in s. G.11.a., infra, of this manual. Complaints against public school system employees are discussed in s. J.2., infra, of this manual.
Complaints and other records in the custody of any agency which relate to a complaint of discrimination based on race, color, religion, sex, national origin, age, handicap, or marital status in connection with hiring practices, position classifications, salary, benefits, discipline, discharge, employee performance evaluation, or related activities are exempt from 119.07(1), F.S., until a probable cause finding is made, the investigation becomes inactive, or the complaint or other record is made part of the record of a hearing or court proceeding. Section 119.071(2)(g), F.S. See City of St. Petersburg Junior College, No. 93-0004210-CI-13 (Fla. 6th Cir. Ct. January 3, 1994) (exemption no longer applicable once city has issued a “letter of cause” determination following its investigation of a discrimination complaint). And see AGO 96-93 (prior to completion of an investigation and a finding of probable cause, records of a county equal opportunity board are exempt from disclosure). But see AGO 09-10 stating that when an agency has reached a settlement with an individual who has filed a discrimination complaint, the claimant is considered to have pursued the claim and may not request confidentiality pursuant to s. 119.071(2)(g)2., F.S.
(3) Criminal history information
In some cases, criminal or juvenile records information obtained by specific agencies as part of a background check required for certain positions has been made confidential and exempt from s. 119.07(1), F.S., or use of the information is restricted. See, e.g., s. 110.1127(3)(d) and (e), F.S. (positions in programs providing care to children, the developmentally disabled, or vulnerable adults, or positions having access to abuse records); s. 1002.36(7)(d), F.S. (School for the Deaf and the Blind); and s. 39.821, F.S. (guardian ad litem).
Federal confidentiality provisions may also apply to criminal history information received from the U.S. government. See AGO 99-01 (criminal history information shared with a public school district by the Federal Bureau of Investigation retains its character as a federal record to which only limited access is provided by federal law and is not subject to public inspection under Florida's Public Records Act).
Sections 943.0585 and 943.059, F.S., prohibit a records custodian who has received information relating to the existence of an expunged or sealed criminal history record from disclosing the existence of such record. AGO 94-49.
(4) Deferred compensation
All records identifying individual participants in any deferred compensation plan under the Government Employees' Deferred Compensation Plan Act and their personal account activities shall be confidential and exempt from s. 119.07(1), F.S. Section 112.215(7), F.S.
(5) Department of the Lottery
Department of the Lottery employee personnel information unrelated to compensation, duties, qualifications, or responsibilities of employees, which the Department has deemed confidential by rule in accordance with the terms and conditions of the subsection is confidential and exempt from s. 119.07(1), F.S. Section 24.105(12)(a), F.S.
(6) Direct deposit
Direct deposit records made prior to October 1, 1986, are exempt from s. 119.07(1), F.S. With respect to direct deposit records made on or after October 1, 1986, the names of the authorized financial institutions and the account numbers of the beneficiaries are confidential and exempt. Section 17.076(5), F.S.
(7) Drug test results
Drug test results and other information received or produced by a state agency employer as a result of a drug-testing program in accordance with s. 112.0455, F.S., the Drug-Free Workplace Act, are confidential and exempt from s. 119.07(1), F.S., and may not be disclosed except as authorized in the statute. Section 112.0455(11), F.S. See also s. 112.0455(8)(l) and (u), F.S.
While the provisions of s. 112.0455, F.S., are applicable to state agencies and not to municipalities, ss. 440.101-440.102, F.S., may be used by a municipality or other entity that is an "employer" for purposes of these statutes, to establish a drug-free workplace program. See AGO 98-38. Section 440.102(8)(a), F.S., provides for confidentiality of drug test results or other information received as a result of a drug-testing program. Cf. AGO 94-51 (city not authorized to delete or remove consent forms or records of disciplinary action relating to city employees' drug testing from personnel records when drug testing was not conducted pursuant to s. 440.102, F.S.); and Inf. Op. to McCormack, May 13, 1997 (s. 440.102, F.S., applies to public employees and not to drug test results of public assistance applicants). And see s. 443.1715(3), F.S., relating to confidentiality of drug test information and limited disclosure in proceedings conducted for purposes of determining compensability under the unemployment compensation law.
In AGO 96-58, the Attorney General's Office advised that the medical director for a city fire and rescue department may submit drug test results to the state health department pursuant to s. 401.265(2), F.S., requiring a medical director to report to the department any emergency medical technician or paramedic who may have acted in a manner constituting grounds for discipline under the licensing law. The tests were conducted during routine pre-employment and annual fitness for duty examinations and not pursuant to ss. 440.101-440.102, F.S.
(8) Employee assistance program
An employee's personal identifying information contained in records held by the employing agency relating to that employee's participation in an employee assistance program is confidential and exempt from disclosure. See ss. 110.1091 (state employees), 125.585 (county employees), and 166.0444 (municipal employees), F.S.
(9) Evaluations of employee performance
There are exemptions from s. 119.07(1), F.S., for evaluations of employee performance contained in limited access records which are prescribed by a hospital or other facility licensed under Ch. 395, F.S., for employees of the facility, s. 395.3025(9), F.S.; or prescribed by the State Board of Education for community college personnel, s. 1012.81, F.S.; or prescribed by a university board of trustees for its employees, s. 1012.91, F.S. Employee evaluations of public school system employees are confidential until the end of the school year immediately following the school year during which the evaluation was made; however, no evaluations made prior to July 1, 1983, shall be made public. Section 1012.31(3)(a)2., F.S.
For more information on this subject, please refer to s. I.3.a.(1), infra (hospital records) and s. J.2., infra (education personnel records).
(10) Examination questions and answer sheets
Examination questions and answer sheets of examinations administered by governmental entities for the purpose of licensure, certification, or employment are exempt from mandatory disclosure requirements. Section 119.071(1)(a), F.S. See
A person who has taken an examination has the right to review his or her own completed examination. Section 119.071(1)(a), F.S. See AGO 76-210, stating that an examinee has the right to inspect the results of a completed civil service promotional examination, including question and answer sheets, after the examination has been completed. However, the examinee possesses only the right to review his or her own completed examination and may not make or obtain copies of that examination. AGO 81-12.
The exemption from disclosure in s. 119.071(1)(a), F.S., applies to examination questions and answers, and does not include the "impressions and grading of the responses" by the examiners. See Dickerson v. Hayes, supra at 837. See also Gillum v. Times Publishing Company, No. 91-2689-CA (Fla. 6th Cir. Ct. July 10, 1991) (newspaper entitled to access to employment polygraph records "to the extent such records consist of polygraph machine graph strips and examiners' test results, including the bottom portion of the machine graph denoted 'Findings and Comments' or similar designation"; however, agency could redact "any examinee's actual answers to questions or summaries thereof"). Compare s. 455.229(1), F.S., providing confidentiality for "examination questions, answers, papers, grades, and grading keys" used in licensing examinations administered by the Department of Business and Professional Regulation. And see s. 472.0201, F.S., providing a similar exemption for such records used in surveyor and mapper licensure by the Department of Agriculture and Consumer Services.
(11) Home addresses and telephone numbers, photographs, family information
As a rule, home addresses and telephone numbers of public officers and employees are not exempt from disclosure. See AGO 96-88 (home addresses and telephone numbers and business addresses and telephone numbers of members of state and district human rights advocacy committees are public records).
Section 119.071(4)(d), F.S., however, contains a number of exemptions for specified categories of public officials and employees and their families. For example, s. 119.071(4)(d)1.a., F.S., exempts from disclosure the home addresses, telephone numbers, photographs, and social security numbers of the following officers and employees, as well as the home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of such officers and personnel and the names and locations of the schools and day care facilities attended by their children; active or former law enforcement personnel, including correctional and correctional probation officers; Department of Children and Family Services personnel whose duties include the investigation of abuse, neglect, exploitation, fraud, theft, or other criminal activities; Department of Health personnel whose duties are to support the investigation of child abuse or neglect; and Department of Revenue or local government personnel whose responsibilities include revenue collection and enforcement or child support enforcement.
A similar exemption for current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors is provided in s. 119.071(4)(d)1.d, F.S. See AGO 96-57 stating that the exemption for personnel of the Department of Revenue or local governments with revenue responsibilities requires that such duties include both revenue collection and enforcement responsibilities. The above exemption for telephone numbers of law enforcement officers, however, does not exempt from disclosure the cellular telephone number of telephones provided to law enforcement officers and used in performing law enforcement duties. See Inf. Op. to Laquidara, July 17, 2003.
Home addresses and telephone numbers of Florida Supreme Court justices and district court of appeal, circuit court, and county judges are exempt as are the home addresses, telephone numbers, and places of employment of the spouses and children of justices and judges and the names and locations of the schools and day care facilities attended by their children. Section 119.071(4)(d)1.c., F.S. A similar exemption exists for general magistrates, judges of compensation claims, administrative law judges and child support enforcement hearing officers provided the officer has provided a written statement that he or she has made reasonable efforts to protect such information from being accessible through other means available to the public. Section 119.071(4)(d)1.e., F.S.
Home addresses, telephone numbers, and photographs of firefighters certified in compliance with s. 633.35, F.S., as well as the names, home addresses, telephone numbers, and places of employment of spouses and children of such officers and personnel and the names and locations of the schools and day care facilities attended by their children, are exempt. Section 119.071(4)(d)1.b., F.S. A similar exemption exists for: current or former human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district whose duties include hiring and firing employees, labor contract negotiation, administration, or other personnel-related duties are exempt, s. 119.071(4)(d)1.f., F.S.; current or former code enforcement officers, s. 119.071(4)(d)1.g., F.S.; current and former juvenile probation and detention officers and supervisors, house parents and supervisors, group treatment leaders and supervisors, rehabilitation therapists, and social services counselors of the Department of Juvenile Justice, s. 119.071(4)(d)1.i., F.S.; and current or former public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel, s. 119.071(4)(d)1.j., F.S.
The home addresses, telephone numbers, places of employment, and photographs of current or former guardians ad litem, as defined in s. 39.820, F.S., as well as the names and other identifying information about the spouses and children of such persons and the names and locations of schools and day care facilities attended by the children of such persons, are exempt from disclosure requirements, if the guardian ad litem provides a written statement that he or she has made reasonable efforts to protect such information from being accessible through other means available to the public. Section 119.071(4)(d)1.h., F.S.
An agency that is the custodian of the personal information specified above but is not the employer of the officer, employee, justice, judge or other person, shall maintain the exempt status of the personal information only if the officer, employee, judge, other person, or the employing agency of the designated employee submits a written request for maintenance of the exemption to the custodial agency. Section 119.071(4)(d)2., F.S. See AGOs 05-38 (clerk of value adjustment board), 04-20 (request submitted to property appraiser), 04-18 (supervisor of elections), and 97-67 (clerk of court). And see AGO 05-38 (exemption "governs the protection of identifying information and does not discriminate as to the documents and records in which the information may be found"). See also Inf. Op. to Cook, December 22, 2008 (nothing in the statute indicates that such a written request may be made after a request for the public record has been made and generally, the date in determining whether a document is subject to disclosure is the date the public records request is made, making the law in effect on that date applicable).
It should be noted that the exemptions afforded by s. 119.071(4)(d), F.S., apply only to records held by a public agency or a private entity acting on behalf of a public agency; it does not apply to or preclude a private company from releasing such information unless that company falls within the definition of "Agency" because it is acting on behalf of a public agency. Inf. Op. to Gomez, November 3, 2008.
Section 119.071(5)(i), F.S., provides an exemption for identification and location information, defined as the home address, telephone number and photograph of a current or former United States attorney, assistant United States attorney, United States Court of Appeals judge, United States district court judge or United States magistrate, as well as the home address, telephone number, photograph, and place of employment of the spouse or child or the name and location of the school or day care facility attended by the child of such attorney, judge or magistrate. The statute requires the attorney, judge or magistrate to submit to the agency having custody of such information a written request to exempt such information from public disclosure as well as a written statement that that he or she has made reasonable efforts to protect such information from being available to the public.
Section 395.3025(10), F.S., establishes that the home addresses, telephone numbers, and photographs of hospital or surgical center employees who provide direct patient care or security services, as well as specified information about the spouses and children of such employees, are confidential and exempt from disclosure requirements. The same information must also be held confidential by the facility upon written request by other employees who have a reasonable belief, based upon specific circumstances that have been reported in accordance with the procedure adopted by the facility, that release of the information may be used to threaten, intimidate, harass, inflict violence upon, or defraud the employee or any member of the employee's family. Section 395.3025(11), F.S.
(12) Medical information
Medical information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, would identify that officer or employee is exempt from s. 119.07(1), F.S. Section 119.071(4)(b)1., F.S. Such information may be disclosed if the person or the person's legal representative provides written permission or pursuant to court order. Id. See AGO 98-17 (exemption "appears to extend to governmental employees the protection for personal medical records that is generally enjoyed by private sector employees").
While medical information of a prospective, current or former officer or employee of an agency is exempt, identifying information regarding participants in a school district’s health insurance plan does not clearly constitute protected medical information. Chandler v. School Board of Polk County, No. 2008CA-004389 (Fla. 10th Cir. Ct. October 9, 2008). And see Inf. Op. to Dockery, November 10, 2008. Subsequent to the issuance of these opinions, the Legislature enacted an exemption for personal identifying information of a dependent child of a current or former officer or employee of an agency, whose dependent child (as defined in 409.2554, F.S.) is insured by the agency's group insurance plan. Section 119.071(4)(b)2., F.S. The exemption applies to personal identifying information held by an agency before, on, or after the effective date of this exemption. Id. While personal identifying information relating to the dependent child's participation in an agency's group insurance plan is now confidential, personal identifying information relating to the current or former officer's or employee's participation in such plan is subject to disclosure.
Every employer who provides or administers health insurance benefits or life insurance benefits to its employees shall maintain the confidentiality of information relating to the medical condition or status of any person covered by such insurance benefits. Such information is exempt from s. 119.07(1), F.S. Section 760.50(5), F.S.
Patient medical records and medical claims records of current or former employees and eligible dependents enrolled in group insurance plans of specified governmental entities are confidential and exempt from s. 119.07(1), F.S.; such records shall not be furnished to any person other than the employee or the employee's legal representative, except as authorized in the subsection. Sections 110.123(9) (state employees), 112.08(7) (county or municipal employees), and 112.08(8) (water management district employees), F.S. See AGO 91-88, citing to News-Press Company, Inc. v. Kaune, 511 So. 2d 1023 (Fla. 2d DCA 1987), stating that the exemption applies broadly and is not limited solely to medical records filed in conjunction with an employee's participation in a group insurance plan; rather, the exemption applies to all medical records relating to employees enrolled in a group insurance plan. And see AGOs 94-78 (monthly printout of medical claims paid under city group health insurance plan that identifies the public employees who obtained medical services and the amounts of the claims, together with some account information, is exempt from public inspection), and 94-51 (agency "should be vigilant in its protection of the confidentiality provided by statute for medical records of [its] employees").
Public school system employee medical records are confidential and exempt from s. 119.07(1), F.S. Section 1012.31(3)(a)5., F.S.
If a city owns and operates a medical clinic for the use and benefit of its employees, the patient records at the clinic are confidential and may be released only upon the written consent of the patient or under the specific circumstances provided under Florida law. AGO 01-33. Under its duty to ensure the confidentiality of such records, the city may allow access to such records to city employees whose duties are related to the furnishing of medical services to the patient/employee. Id.
(13) Retiree names and addresses
The names and addresses of retirees are confidential and exempt from s. 119.07(1), F.S., to the extent that no state or local governmental agency may provide the names or addresses of such persons in aggregate, compiled or list form except to public agencies engaged in official business, to collective bargaining agents or to retiree organizations for official business use. Section 121.031(5), F.S. And see s. 121.4501(19), F.S. (personal identifying information regarding participants in the Public Employee Optional Retirement Program is exempt).
(14) Ridesharing information
Any information provided to an agency for the purpose of forming ridesharing arrangements, which reveals the identity of an individual who has provided his or her name for ridesharing, as defined in s. 341.031, F.S., is exempt from public disclosure requirements. Section 119.071(5)(e), F.S.
7. Social security numbers
Section 119.071(5)(a)5., F.S., states that social security numbers held by an agency are confidential and exempt from public disclosure requirements; however, the exemption does not supersede any federal law prohibiting the release of social security numbers or any other applicable public records exemptions for such numbers. See, e.g., s. 193.114(5), F.S. (social security number submitted on an application for a tax exemption is confidential); and s. 119.071(4)(a), F.S. (social security numbers of current and former employees held by the employing agency are confidential and exempt from disclosure).
Disclosure to another agency or governmental agency is authorized if: expressly required by federal or state law or by court order; necessary for the agency to perform its duties and responsibilities; expressly authorized in writing by the individual to whom the social security number relates; made to comply with the federal Patriot Act, Pub. L. No. 107-56, or Presidential Executive Order 13224; for the administration of health benefits to agency employees or their dependents; for the administration of a pension fund administered for agency employees, deferred compensation plan or defined contribution plan; or for the administration of the Uniform Commercial Code by the Office of the Secretary of State. Section 119.071(5)(a)6., F.S. Cf. Florida Department of Education v. NYT Management Services, Inc., 895 So. 2d 1151 (Fla. 1st DCA 2005) (federal law does not authorize newspaper to obtain social security numbers in state teacher certification database).
Pursuant to s. 119.071(5)(a)7.b., F.S., an agency may not deny a commercial agency engaged in commercial activity access to social security numbers, provided the social security numbers will be used only in the performance of a commercial activity and provided the commercial entity makes a written request for the social security numbers as prescribed therein. "Commercial activity" is defined to mean the permissible uses set forth in the federal Driver's Privacy Protection Act of 1993, 18 U.S.C. ss. 2721 et seq., the Fair Credit Reporting Act, 15 U.S.C. ss. 1681 et seq., the Financial Services Modernization Act of 1999, 15 U.S.C. ss. 6801 et seq., or verification of the accuracy of personal information received by a commercial entity in the normal course of its business, including identification or prevention of fraud or matching, verifying, or retrieving information. Section 119.071(5)(a)7.a.(l), F.S. It does not include the display or bulk sale of social security numbers to the public or the distribution of such numbers to any customer not identifiable by the commercial entity. Id. And see AGO 10-06, stating that while s. 119.071(5)(a)6. and 7., F.S., authorize the disclosure of social security numbers to commercial entities engaged in the commercial activities identified in the statute, these provisions authorize the agency holding social security numbers to request additional information that is reasonably necessary to verify the identity of the commercial entity and the specific purposes for which the social security numbers will be used.
Pursuant to s. 119.0714(1)(i), F.S., social security numbers held in court records are exempt as provided in s. 119.071(5)(a). Section 119.0714(2)(a)and (e)1., F.S., however, provide that until January 1, 2012, if a social security number is included in a court file, such number may be included as part of the court record available for public inspection and copying unless redaction is requested by the holder of such number or by the holder’s attorney or legal guardian; after that date, such records are confidential and exempt as provided in s. 119.071(5)(a), F.S.
Social security numbers included in an official record may be made available as part of the official records available for public inspection and copying unless redaction is requested by the holder of such number or the holder’s attorney or legal guardian; however, if such record is in electronic format, on or after January 1, 2011, the county recorder must use his or her best effort to keep the social security number confidential and exempt as provided for in s. 119.071(5)(a), F.S. Section 119.0714(3)(b), F.S. The holder of a social security number, or the holder’s attorney or legal guardian, may request that a county recorder redact from an image or copy of an official record placed on a county recorder’s publicly available Internet website or on a publicly available Internet website used by a county recorder to display public records, or otherwise made electronically available to the public, his or her social security number contained in that official record. Section 119.0714(3)(c), F.S. Cf. AGO 05-37, concluding that the clerk of court, in recording documents in the Official Records that are required to contain social security numbers, may not redact social security numbers or other confidential information upon receipt; however, the clerk is required to maintain the confidentiality of that information.