What fees may lawfully be imposed for inspecting and copying public records?
1. When may an agency charge a fee for the mere inspection of public records?
Providing access to public records is a statutory duty imposed by the Legislature upon all record custodians and should not be considered a profit-making or revenue-generating operation. AGO 85-03. Thus, public information must be open for inspection without charge unless otherwise expressly provided by law. See State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905). Nor may an agency impose a fee upon persons who wish to listen to tape recordings of city commission meetings. AGO 75-50 (agency may not precondition the inspection of a public document on the payment of a fee; the fact that the record sought to be inspected is a tape recording as opposed to a written document is of no import insofar as the imposition of a fee for inspection is concerned). And see AGOs 84-03 and 76-34 (only those fees or charges which are authorized by statute may be imposed upon an individual seeking access to public records).
Section 119.07(4)(d), F.S., however, authorizes the imposition of a special service charge when the nature or volume of public records to be inspected is such as to require extensive use of information technology resources, or extensive clerical or supervisory assistance, or both. The charge must be reasonable and based on the labor or computer costs actually incurred by the agency. See Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008) (special service charge applies to requests for both inspection and copies of public records when extensive clerical assistance is required). Thus, an agency may adopt a policy imposing a reasonable special service charge based on the actual labor cost for clerical personnel who are required, due to the nature or volume of a public records request, to safeguard such records from loss or destruction during their inspection. AGO 00-11. In doing so, however, the county's policy should reflect no more than the actual cost of the personnel's time and be sensitive to accommodating the request in such a way as to ensure unfettered access while safeguarding the records. Id.
2. Is an agency required to provide copies of public records if asked, or may the agency allow inspection only?
"It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person." (e.s.) Section 119.01(1), F.S. In addition, s. 119.07(1)(a), F.S., provides that "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so . . . ." Finally, s. 119.07(4), F.S., requires the custodian to "furnish a copy or a certified copy of the record upon payment of the fee prescribed by law . . . ." And see Fuller v. State ex rel. O'Donnell, 17 So. 2d 607 (Fla. 1944) ("The best-reasoned authority in this country holds that the right to inspect public records carries with it the right to make copies."); Winter v. Playa del Sol, Inc., 353 So. 2d 598, 599 (Fla. 4th DCA 1977) (right to inspect public records would in many cases be valueless without the right to make copies); Schwartzman v. Merritt Island Volunteer Fire Department, 352 So. 2d 1230, 1232n.2 (Fla. 4th DCA 1977) (Public Records Act requires custodian to furnish copies). Cf. Wootton v. Cook, 590 So. 2d 1039, 1040 (Fla. 1st DCA 1991) (if the requestor identifies a record with sufficient specificity to permit the agency to identify it and forwards the appropriate fee, the agency must furnish by mail a copy of the record).
In order to comply with the statutory directive that an agency provide copies of public records upon payment of the statutory fee, an agency must respond to requests for information as to copying costs. Wootton v. Cook, supra. See also Woodard v. State, 885 So. 2d 444 (Fla. 4th DCA 2004), remanding a case for further proceedings where the custodian forwarded only information relating to the statutory fee schedule rather than the total cost to copy the requested records. Cf. Mathis v. State, 722 So. 2d 235 (Fla. 2d DCA 1998) (petitioner seeking writ of mandamus to compel court reporter to inform him of the cost to obtain a transcript of trial court proceedings was entitled to a show cause order as he showed a prima facie basis for relief under Rule 2.420[e] [see now Rule 2.420(h)], Fla. R. Jud. Admin.).
3. Does Ch. 119, F.S., exempt certain individuals (such as indigent persons or inmates) from paying statutory fees to obtain copies of public records?
Chapter 119, F.S., does not contain a provision that prohibits agencies from charging indigent persons or inmates the applicable statutory fee to obtain copies of public records. See Roesch v. State, 633 So. 2d 1, 3 (Fla. 1993) (indigent inmate not entitled to receive copies of public records free of charge nor to have original state attorney files mailed to him in prison; prisoners are "in the same position as anyone else seeking public records who cannot pay" the required costs); Potts v. State, 869 So. 2d 1223 (Fla. 2d DCA 2004) (no merit to inmate's contention that Ch. 119, F.S., entitles him to free copies of all records generated in his case); Alexis v. State, 732 So. 2d 46 (Fla. 3d DCA 1999) (indigent defendant not entitled to public records free of charge); and Yanke v. State, 588 So. 2d 4 (Fla. 2d DCA 1991), review denied, 595 So. 2d 559 (Fla. 1992), cert. denied, 112 S.Ct. 1592 (1992) (prisoner must pay copying and postage charges to have copies of public records mailed to him).
Similarly, a labor union must pay the costs stipulated in Ch. 119, F.S., for copies of documents it has requested from a public employer for collective bargaining purposes because "[a] labor union seeking information from the employer with whom it is locked in collective bargaining negotiations is not exempt from the Florida Public Records Act." City of Miami Beach v. Public Employees Relations Commission, 937 So. 2d 226 (Fla. 3d DCA 2006). And see State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377, 1382n.7 (Fla. 1st DCA 1994) (indigent person "is not relieved by his indigency" from paying statutory costs to obtain public records).
An agency, however, is not precluded from choosing to provide informational copies of public records without charge. AGO 90-81.
4. Are members of an advisory council entitled to copies of public records free of charge?
A school district is under no statutory obligation to provide copies of public records free of charge to individual members of a school advisory council, but a school district may formulate a policy for the distribution of such records. AGO 99-46. If it is found that the advisory council needs certain school records in order to carry out its statutory functions, such records should be provided to the council in the same manner that records related to agenda items are provided to school board members. Id. Cf. Inf. Op. to Martin, November 21, 2006 (school board policy requiring that a request for information by an individual board member requiring more than sixty minutes of staff time to prepare must be presented to the school board for approval would be invalid if the school board member is asking under public records law; however, the school board member would be subject to any charges allowed by Chapter 119, F.S.).
5. What are the statutory fees to obtain copies of public records?
If no fee is prescribed elsewhere in the statutes, s. 119.07(4)(a)1., F.S., authorizes the custodian to charge a fee of up to 15 cents per one-sided copy for copies that are 14 inches by 81/2 inches or less. An agency may charge no more than an additional 5 cents for each two-sided duplicated copy. Section 119.07(4)(a)2., F.S. And see s. 119.011(7), F.S., defining the term "duplicated copies" to mean "new copies produced by duplicating, as defined in s. 283.30", F.S. "Duplicating" means "the process of reproducing an image or images from an original to a final substrate through the electrophotographic, xerographic, laser, or offset process or any combination of these processes, by which an operator can make more than one copy without rehandling the original." Section 283.30(3), F.S.
A charge of up to $1.00 per copy may be assessed for a certified copy of a public record. Section 119.07(4)(c), F.S.
For other copies, the charge is limited to the actual cost of duplication of the record. Section 119.07(4)(a)3., F.S. The phrase "actual cost of duplication" is defined to mean "the cost of the material and supplies used to duplicate the public record, but does not include the labor cost and overhead cost associated with such duplication." Section 119.011(1),F.S. An exception, however, exists for copies of county maps or aerial photographs supplied by county constitutional officers which may include a reasonable charge for the labor and overhead associated with their duplication. Section 119.07(4)(b), F.S. And see the discussion on the special service charge in s. M.11., infra.
6. May an agency charge for travel costs, search fees, development costs and other incidental costs?
An agency should not consider the furnishing of public records to be a "revenue-generating operation." AGO 85-03. See also AGO 89-93 (city not authorized to sell copies of its growth management book for $35.00 each when the actual cost to reproduce the book is $15.10 per copy; city is limited to charging only the costs authorized by Ch. 119, F.S.).
The Public Records Act does not authorize the addition of overhead costs such as utilities or other office expenses to the charge for public records. AGO 99-41. Similarly, an agency may not charge for travel time and retrieval costs for public records stored off-premises. AGO 90-07. Nor may an agency assess fees designed to recoup the original cost of developing or producing the records. AGO 88-23 (state attorney not authorized to impose a charge to recover part of costs incurred in production of a training program; the fee to obtain a copy of the videotape of such program is limited to the actual cost of duplication of the tape). And see State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377, 1382 (Fla. 1st DCA 1994) (once a transcript of an administrative hearing is filed with the agency, the transcript becomes a public record regardless of who ordered the transcript or paid for the transcription; the agency can charge neither the parties nor the public a fee that exceeds the charges authorized in the Public Records Act). Cf. s. 119.07(4)(b), F.S., providing that the charge for copies of county maps or aerial photographs supplied by county constitutional officers may also include a reasonable charge for the labor and overhead associated with their duplication.
Therefore, unless a specific request for copies requires extensive clerical or supervisory assistance or extensive use of information technology resources so as to trigger the special service charge authorized by s. 119.07(4)(d), F.S., an agency may charge only the actual cost of duplication for copies of computerized public records. AGO 99-41. The imposition of the service charge, however, is dependent upon the nature or volume of records requested, not on the cost to either develop or maintain the records or the database system. Id.
7. May an agency require that production and copying of public records be accomplished only through a private company that acts as a clearinghouse for the agency's public records?
No. Although an agency may contract with private companies to provide information also obtainable through the agency, it may not abdicate its duty to produce such records for inspection and copying by requiring those seeking public records to do so only through its designee and then paying whatever fee that company may establish for its services. AGO 02-37. The agency is the custodian of its public records and, upon request, must produce such records for inspection and copy such records at the statutorily prescribed fee. Id. And see AGO 05-34 (while the property appraiser may provide public records, excluding exempt or confidential information, to a private company, the property appraiser may receive only those fees that are authorized by statute and may not, in the absence of statutory authority, enter into an agreement with the private company where the property appraiser provides such records in exchange for either in-kind services or a share of the profits or proceeds from the sale of the information by the private company).
8. Should an agency charge sales tax when providing copies of public records?
No. In AGO 86-83, the Attorney General's Office advised that the sales tax imposed pursuant to s. 212.05, F.S., is not applicable to the fee charged for providing copies of records under s. 119.07, F.S. See s. 5(a) of Department of Revenue Rule 12A-1.041, F.A.C., stating that "[t]he fee prescribed by law, or the actual cost of duplication, for providing copies of public records . . . under Chapter 119, F.S., is exempt from sales tax."
9. Does s. 119.07(4), F.S., prescribe the fee that an agency may charge for furnishing a copy of a record to a person who is authorized to access an otherwise confidential record?
Unless another fee to obtain a particular record is prescribed by law, an agency may not charge fees that exceed those in Ch. 119, F.S, when providing copies of confidential records to persons who are authorized to obtain them. For example, in AGO 03-57, the Attorney General's Office advised that persons who are authorized by statute to obtain otherwise confidential autopsy photographs should be provided copies in accordance with the provisions of the Public Records Act, i.e., s. 119.07(4), F.S. The medical examiner is not authorized to charge a fee that exceeds those charges. Id.
10. What are the charges if the requestor makes his or her own copies (i.e., provides his or her own copying machine and makes the copies himself or herself )?
Section 119.07(3)(a), F.S., provides a "right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records." This subsection "applies to the making of photographs in the conventional sense by use of a camera device to capture images of public records but excludes the duplication of microfilm in the possession of the clerk of the circuit court" if the clerk can provide a copy of the microfilm. Section 119.07(3)(b), F.S.
The photographing is to be done in the room where the public records are kept. Section 119.07(3)(d), F.S. However, if in the custodian's judgment, this is impossible or impracticable, the copying shall be done in another room or place, as close as possible to the room where the public records are kept. Id. Where provision of another room or place is necessary, the expense of providing the same shall be paid by the person who wants to copy the records. Id. The custodian may charge the person making the copies for supervision services. Section 119.07(4)(e)2., F.S. In such cases the custodian may not charge the copy charges authorized in s. 119.07(4)(a), F.S., but may charge only the supervision service charge authorized in s. 119.07(4)(e)2., F.S. See AGO 82-23.
11. When may an agency charge a special service charge for extensive use of clerical or supervisory labor or extensive information technology resources?
Section 119.07(4)(d), F.S. [formerly s. 119.07(1)(b), F.S.], states that if the nature or volume of public records to be inspected or copied requires the extensive use of information technology resources or extensive clerical or supervisory assistance, or both, the agency may charge a reasonable service charge based on the cost actually incurred by the agency for such extensive use of information technology resources or personnel. See AGO 90-07, stating that a municipal police department may not ordinarily charge for travel time and retrieval costs for public records stored off-premises; however, if the nature or volume of the records requested, rather than the location of the records, is such as to require extensive clerical or supervisory assistance or extensive use of information technology resources, a reasonable service charge may be imposed); and AGO 92-38 (town may not restrict access to and copying of public records based upon the amount requested or the span of time which is covered by the public records; however, if extensive use of information technology resources or clerical or supervisory personnel is needed for retrieval of such records, the town may impose a reasonable service charge, based upon the actual costs incurred for the use of such resources). Cf. Cone & Graham, Inc. v. State, No. 97-4047 (Fla. 2d Cir. Ct. October 7, 1997) (an agency's decision to "archive" older e-mail messages on tapes so that they could not be retrieved or printed without a systems programmer was analogous to an agency's decision to store records off-premises in that the agency rather than the requestor must bear the costs for retrieving the records and reviewing them for exemptions). When warranted, the special service charge applies to requests for both inspection and copies of public records. Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008).
Unless the nature or volume of public records to be inspected or copied requires "extensive" use of information technology resources or "extensive" clerical or supervisory assistance, the special service charge is not authorized. If authorized due to the nature or volume of a request, the reasonable service charge should not be routinely imposed, but should reflect the information technology resources or labor costs actually incurred by the agency. AGO 90-07. And see AGOs 86-69 and
a. What is the meaning of the term "extensive" as used in the statute?
Section 119.07(4)(d), F.S., does not contain a definition of the term "extensive." In 1991, a divided First District Court of Appeal upheld a hearing officer's order rejecting an inmate challenge to a Department of Corrections rule that defined "extensive" for purposes of the special service charge to mean that it would take more than 15 minutes to locate, review for confidential information, copy and refile the requested material. Florida Institutional Legal Services, Inc. v. Florida Department of Corrections, 579 So. 2d 267 (Fla. 1st DCA 1991), review denied, 592 So. 2d 680 (Fla. 1991). The court agreed with the hearing officer that the burden was on the challenger to show that the administrative rule was invalid under Ch. 120, F.S, and the record did not indicate that the officer's ruling was "clearly erroneous" in this case. Judge Zehmer dissented, saying that the rule was inconsistent with legislative intent and exceeded the agency's delegated authority. More recently, however, the Second District Court of Appeal in Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008), approved a county's similar formula for calculating its special service charge.
In light of the lack of clear direction in the statute as to the meaning of the term "extensive," it may be prudent for agencies to define "extensive" in a manner that is consistent with the purpose and intent of the Public Records Act and that does not constitute an unreasonable infringement upon the public's statutory and constitutional right of access to public records.
Moreover, the statute mandates that the special service charge be "reasonable." See Carden v. Chief of Police, 696 So. 2d 772, 773 (Fla. 2d DCA 1996), in which the court reviewed a challenge to a service charge that exceeded $4,000 for staff time involved in responding to a public records request, and said that an "excessive charge could well serve to inhibit the pursuit of rights conferred by the Public Records Act." Accordingly, the court remanded the case and required the agency to "explain in more detail the reason for the magnitude of the assessment." Id.
b. What is meant by the term "information technology resources" as used in the statute?
"Information technology resources" is defined as data processing hardware and software and services, communications, supplies, personnel, facility resources, maintenance and training. Section 119.011(9), F.S. The term does not include a videotape or a machine to view a videotape. AGO 88-23. The fact that the request involves the use of information technology resources is not sufficient to incur the imposition of the special service charge; rather, extensive use of such resources is required. AGO 99-41.
c. What is meant by the term "clerical or supervisory assistance" as used in the statute?
(1) May an agency charge for the cost to review records for exempt information?
An agency is not ordinarily authorized to charge for the cost to review records for statutorily exempt material. AGO 84-81. However, the special service charge may be imposed for this work if the volume of records and the number of potential exemptions make review and redaction of the records a time-consuming task. See Florida Institutional Legal Services v. Florida Department of Corrections, 579 So. 2d at 269. And see Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), noting that "it would not be unreasonable in these types of cases [involving many documents and several different exemptions] to charge a reasonable special fee for the supervisory personnel necessary to properly review the materials for possible application of exemptions."
(2) How should the labor cost be calculated?
In Board of County Commissioners of Highlands County v. Colby, supra, the court approved a county’s special service charge pursuant to s. 119.07(4), Fla. Stat., which included both an employee’s salary and benefits in calculating the labor cost for the special service charge, recognizing, however, that the charge must be reasonable and based upon the actual labor costs incurred by or attributable to the county. Cf. AGO 00-11, stating that it would be difficult to justify the imposition of a fee for extensive clerical or supervisory assistance if the personnel providing such assistance were simultaneously performing regular duties.
The term "supervisory assistance" has not been widely interpreted. See Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), concluding that an appropriate charge for supervisory review is "reasonable" in cases involving a large number of documents that contain some exempt information. In State v. Gudinas, No. CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999), the circuit judge approved a rate of $35 per hour for an agency attorney's review of exempt material in a voluminous criminal case file. The court noted that "only an attorney or paralegal" could responsibly perform this type of review because of the "complexity of the records reviewed, the various public record exemptions and possible prohibitions, and the necessary discretionary decisions to be made with respect to potential exemptions . . . ." However, the court concluded that the agency could charge only a clerical rate for the time spent making copies, even if due to staff shortages, a more highly paid person did the work. See also Board of County Commissioners of Highlands County v. Colby, supra, in which the court approved a charge based on the salary of a lower paid employee even though the director actually handled the request.
d. May an agency require a reasonable deposit or advance payment or must the agency produce the records and then ask for payment?
Section 119.07(4)(a)1., F.S., states that the custodian of public records shall furnish a copy or a certified copy of the record "upon payment of the fee prescribed by law . . . ." See Wootton v. Cook, 590 So. 2d 1039, 1040 (Fla. 1st DCA 1991), stating that if a requestor "identifies a record with sufficient specificity to permit [the agency] to identify it and forwards the appropriate fee, [the agency] must furnish by mail a copy of the record." (e.s.).
In Malone v. City of Satellite Beach, No 94-10557-CA-D (Fla. Cir. Ct. Brevard Co. December 15, 1995), per curiam affirmed, 687 So. 2d 252 (Fla. 5th DCA 1997), the court noted that a city's requirement of an advance deposit was contemplated by the Public Records Act. See s. 119.07(4)(d), F.S. According to the court, the city "was authorized to require the payment of an advance deposit under the facts of this case before proceeding with the effort and cost of preparing the voluminous copies requested by the plaintiff ." And see Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), in which the court said that if an agency is asked for a large number of records, the fee should be communicated to the requestor before the work is undertaken. "If the agency gives the requesting party an estimate of the total charge, or the hourly rate to be applied, the party can then determine whether it appears reasonable under the circumstances." Id. Cf. AGO 05-28 (custodian authorized to bill the requestor for any shortfall between the deposit and the actual cost of copying the public records when the copies have been made and the requesting party subsequently advises the city that the records are not needed).
An agency may refuse to produce additional records if the fees for a previous request for records have not been paid by the requestor. See Lozman v. City of Riviera Beach, 995 So. 2d 1027 (Fla. 4th DCA 2008) (s. 119.07(4), F.S., "does not require the City to do any more than what it did in this case," i.e., require Lozman to pay the bill for the first group of records he requested before the city would make any further documents available).
12. Fee issues relating to specific records
a. Clerk of court records
(1) County records
Pursuant to s. 125.17, F.S., the clerk of the circuit court serves as the ex officio clerk to the board of county commissioners. Records maintained by the clerk which relate to this function (e.g., county resolutions, budgets, minutes, etc.) are public records which are subject to the copying fees set forth in Ch. 119, F.S., and not the service charges set forth in Ch. 28, F.S. AGO 85-80. Accord AGO 94-60 (documents such as minutes of public meetings, which are in the custody of the clerk as ex officio clerk of the board of county commissioners, are not subject to the $1.00 per page charge prescribed in Ch. 28). See also AGO 82-23 (when members of the public use their own photographic equipment to make their own copies, the clerk is not entitled to the fees prescribed in s. 28.24, F.S., but is entitled only to the supervisory service charge now found in s. 119.07[e]2., F.S.).
(2) Judicial records
When the clerk is exercising his or her duties derived from Article V of the Constitution, the clerk is not subject to legislative control. Times Publishing Company v. Ake, 660 So. 2d 255 (Fla. 1995). Thus, when the clerk is acting in his or her capacity as part of the judicial branch of government, access to the judicial records under the clerk's control is governed exclusively by Fla. R. Jud. Admin. 2.420, Public Access to Judicial Records. Id. See Fla. R. Jud. Admin. 2.420(b)(2), defining the term "judicial branch" for purposes of the rule, to include "the clerk of court when acting as an arm of the court."
Florida Rule of Judicial Administration 2.240(i)(3) states that "[f]ees for copies of records in all entities in the judicial branch of government, except for copies of court records, shall be the same as those provided in section 119.07, Florida Statutes." (e.s.). The fees to obtain copies of court records are set forth in s. 28.24, F.S. This statute establishes fees that are generally higher than those in Ch. 119, F.S. For example, the charge to obtain copies of court records is $1.00 per page, rather than 15 cents per page as established in s. 119.07(4)(a)1., F.S. See also WFTV, Inc. v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996) (the $1.00 per page copying charge in s. 28.24, F.S., applies to all court documents, whether unrecorded or recorded).
b. Traffic reports
In the absence of statutory provision, the charges authorized in s. 119.07(4) govern the fees to obtain copies of crash reports. However, there are specific statutes which apply to fees to obtain copies of reports from the Department of Highway Safety and Motor Vehicles. Section 321.23(2)(a), F.S., provides that the fee to obtain a copy of a crash report from the department is $10.00 per copy. A copy of a homicide report is $25 per copy. Section 321.23(2)(b), F.S. Separate charges are provided for photographs. Section 321.23(2)(c), F.S.
Pursuant to s. 316.066(2)(a), F.S., one or more counties may enter into an agreement with the appropriate state agency to be certified by the agency to have a traffic records center for the purpose of tabulating and analyzing countywide traffic crash reports. Fees for copies of public records provided by a certified traffic records center are $10.00 per copy for a crash report, $25 per copy for a homicide report, and 50 cents per copy for a uniform traffic citation. Section 316.066(2)(c), F.S.