What is a public record which is open to inspection and copying?
1. What materials are public records?
Section 119.011(12), F.S., defines "public records" to include:
all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.
The Florida Supreme Court has interpreted this definition to encompass all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). All such materials, regardless of whether they are in final form, are open for public inspection unless the Legislature has exempted them from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). The complete text of Ch. 119, F.S., the Public Records Act, is found in Appendix C. Cf. Inf. Op. to Burke, April 14, 2010 (state licensing board, and not the Attorney General's Office, must determine whether letter, allegedly sent to the board by mistake, was received in connection with the transaction of board business).
The term "public record" is not limited to traditional written documents. As the statutory definition states, "tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission" can all constitute public records. Accordingly, "the form of the record is irrelevant; the material issue is whether the record is made or received by the public agency in connection with the transaction of official business." AGO 04-33. And 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, as well, to documents that exist only in digital form"). Compare Rogers v. Hood, 906 So. 2d 1220, 1223 (Fla. 1st DCA 2005), review denied, 919 So. 2d 436 (Fla. 2005) (unused or unvoted Florida punch card ballots from 2000 election do not constitute public records because they do not "perpetuate, communicate, or formalize knowledge," but a ballot becomes a public record once it is voted because at that point "the voted ballot, as received by the supervisor of elections in a given county, has memorialized the act of voting").
Clearly, as technology changes the means by which agencies communicate, manage, and store information, public records will take on increasingly different forms. Yet, the comprehensive scope of the term "public records" will continue to make the information open to inspection, unless exempted by law. The broad definition of the term "public record" can be seen in numerous Attorney General Opinions and court decisions. The following are some examples of materials found by the Attorney General's Office to constitute public records: anonymous letters sent to city officials containing allegations of misconduct by city employees, AGO 04-22; guardianship files audit prepared by the clerk of court, AGO 04-33; list of subscribers to state publication, AGO 85-03; salary records of assistant state attorneys, AGO 73-30; tape recording of a staff meeting, AGO 04-15; travel itineraries and plane reservations for use of state aircraft, AGO 72-356; and videotaped training film, AGO 88-23.
Article I, s. 24, Fla. Const., establishes a constitutional right of access to any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except those records exempted pursuant to Art. I, s. 24, Fla. Const., or specifically made confidential by the Constitution. See State ex rel. Clayton v. Board of Regents, 635 So. 2d 937 (Fla. 1994) ("[O]ur Constitution requires that public officials must conduct public business in the open and that public records must be made available to all members of the public."). The complete text of Art. I, s. 24, Fla. Const., the Public Records and Meetings Amendment, may be found in Appendix A.
2. When are notes or nonfinal drafts of agency proposals subject to Ch. 119, F.S.?
There is no "unfinished business" exception to the public inspection and copying requirements of Ch. 119, F.S. If the purpose of a document prepared in connection with the official business of a public agency is to perpetuate, communicate, or formalize knowledge, then it is a public record regardless of whether it is in final form or the ultimate product of an agency. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980). "Interoffice 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." 379 So. 2d at 640. Cf. Gannett Corporation, Inc. v. Goldtrap, 302 So. 2d 174 (Fla. 2d DCA 1974) (county's concern that premature disclosure of a report could be harmful to the county does not make the document confidential).
Accordingly, any agency document, however prepared, if circulated for review, comment or information, is a public record regardless of whether it is an official expression of policy or marked "preliminary" or "working draft" or similar label. Examples of such materials would include interoffice memoranda, preliminary drafts of agency rules or proposals which have been submitted for review to anyone within or outside the agency, and working drafts of reports which have been furnished to a supervisor for review or approval.
In each of these cases, the fact that the records are part of a preliminary process does not detract from their essential character as public records. See Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990) (while the mere preparation of documents for submission to a public body does not create public records, the documents can become public records when exhibited to public officials and revised as part of a bargaining process); Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229 (Fla. 3d DCA 1998) (book selection forms completed by state university instructors and furnished to campus bookstore "are made in connection with official business, for memorialization and communication purposes" and are public records); Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), appeal pending, No. SC10-798 (Fla. April 20, 2010) (canvassing board's minutes, although not yet considered by city commission for its approval, constituted board's final work product and are subject to disclosure); and AGO 91-26 (minutes of city council meetings are public records once minutes have been prepared by clerk even though not yet sent to city council members or officially approved by the city council). Thus, such records are subject to disclosure unless the Legislature has specifically exempted the documents from inspection or has otherwise expressly acted to make the records confidential. See, e.g., s. 119.071(1)(d), F.S., providing a limited work product exemption for agency attorneys.
Similarly, "personal" notes can constitute public records if they are intended to communicate, perpetuate or formalize knowledge of some type. For example, the handwritten notes prepared by the assistant city labor attorney during her interviews with city personnel are public records when those notes are used to communicate information to the labor attorney regarding possible future personnel actions. AGO 05-23. See also City of Pinellas Park, Florida v. Times Publishing Company, No. 00-008234CI-19 (Fla. 6th Cir. Ct. January 3, 2001) (rejecting city's argument that employee responses to survey are "notes" which are not subject to disclosure because "as to each of the employees, their responses were prepared in connection with their official agency business and they were 'intended to perpetuate, communicate, or formalize knowledge' that they had about their department"); and Florida Sugar Cane League, Inc. v. Florida Department of Environmental Regulation, No. 91-4218 (Fla. 2d Cir. Ct. June 5, 1992) (handwritten notes of agency staff
, "utilized to communicate and formulate knowledge within [the agency] are public records subject to no exemption"); Miami Herald Media Co. v. Sarnoff, 971 So. 2d 915 (Fla. 3d DCA 2007) (memorandum prepared by a city commissioner after meeting with a former city official, summarizing details of what was said and containing alleged factual information about possible criminal activity, was a public record subject to disclosure as memorandum was not a draft or a note containing mental impressions that would later form a part of a government record, but rather formalized and perpetuated his final knowledge gained at the meeting).
However, "under chapter 119 public employees' notes to themselves which are designed for their own personal use in remembering certain things do not fall within the definition of 'public record.'" (e.s). The Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185, 192 (Fla. 1st DCA 2002). Accord Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988), holding that preliminary handwritten notes prepared by agency attorneys and intended only for the attorneys' own personal use are not public records; Inf. Op. to Trovato, June 2, 2009. (to the extent city commissioner has taken notes for his own personal use and such notes are not intended to perpetuate, communicate, or formalize knowledge, personal notes taken at a workshop or during a commission meeting would not be considered public records).