To what extent may an agency regulate or limit inspection and copying of Public Records?
1. May an agency impose its own restrictions on access to or copying of public records?
a. Agency-imposed restrictions invalid
Section 119.07(1)(a), F.S., establishes a right of access to public records in plain and unequivocal terms:
Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.
A custodian of public records may not impose a rule or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. See also Davis v. Sarasota County Public Hospital Board, 480 So. 2d 203 (Fla. 2d DCA 1985), review denied, 488 So. 2d 829 (Fla. 1986) (person making a public records request under s. 119.07(1), F.S., entitled to see the actual nonexempt records of legal fees paid by the hospital board and not merely extracts from such records). And see State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001) (requirement that persons with custody of public records allow records to be examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests).
The custodian "is at all times responsible for the custody of the [public] records but when a citizen applies to inspect or make copies of them it is his duty to make provision for this to be done in such a manner as will accommodate the applicant and at the same time safeguard the records." Fuller v. State ex rel. O'Donnell, 17 So. 2d 607 (Fla. 1944). Thus, the right of inspection may not be frustrated or circumvented through indirect means such as the use of a code book. State ex rel. Davidson v. Couch, 158 So. 103, 105 (Fla. 1934) (right of inspection was "hindered and obstructed" by city "imposing conditions to the right of examination which were not reasonable nor permissible under the law"). Accord AGO 05-12 (city may not require the use of a code to review e-mail correspondence of city's police department and human resources department).
Accordingly, the "reasonable conditions" referred to in s. 119.07(1), F.S., do not include anything that would hamper or frustrate, directly or indirectly, a person's right of inspection and copying. The term "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla. 1979). See also State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction).
Any local enactment or policy which purports to dictate additional conditions or restrictions on access to public records is of dubious validity since the legislative scheme of the Public Records Act has preempted any local regulation of this subject. Tribune Company v. Cannella, supra at 1077. A policy of a governmental agency cannot exempt it from the application of Ch. 119, F.S., a general law. Douglas v. Michel, 410 So. 2d 936, 938 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985). Accord AGO 92-09 (utilities commission not authorized to alter terms of Ch. 119, F.S.); and AGO 75-50 (local agency has no discretion to alter Ch. 119, F.S., requirements because the state possesses exclusive control over access, maintenance, retention and disposal of public records). And see AGO 90-04 (county official not authorized to assign county's rights to a public record as part of a settlement agreement compromising a lawsuit against the county).
b. Mail procedures
The Public Records Act is applicable to letters or other documents received by a public official in his or her official capacity. AGO 77-141. As with other public records, upon receipt of a public records request for correspondence, the custodian should retrieve the records, review them for exemptions and allow public inspection of the nonexempt material. Mail addressed to the mayor or a city council member at City Hall and received at City Hall should not be forwarded unopened to the private residence of the mayor or council member, but rather the original or a copy of the mail that constitutes a public record should be maintained at city offices. AGO 04-43.
c. Inspection at off-premises location
A trial court erred when it failed to hold a hearing before denying a request to require a district to permit inspection at the district offices, rather than at an off-premises location. James v. Loxahatchee Groves Water Control District, 820 So. 2d 988 (Fla. 4th DCA 2002). The agency argued that it would be "disruptive" to require that the records inspection be conducted at its offices. Id. However, the appeals court ruled that a hearing should have been held to determine whether the requestor, who was in litigation with the district, should be allowed to view the records at the district offices, and if so, under what conditions. Id.
2. What individuals are authorized to inspect and receive copies of public records?
Section 119.01, F.S., provides that "[i]t 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.) A state citizenship requirement was deleted from the law in 1975. A public employee is a person within the meaning of Ch. 119, F.S. and, as such, possesses the same right of inspection as any other person. AGO 75-175. Likewise, a county is "any person" who is allowed to seek public records under Ch. 119, F.S. Hillsborough County, Florida v. Buccaneers Stadium Limited Partnership, No. 99-0321 (Fla. 13th Cir. Ct. February 5, 1999), affirmed per curiam, 758 So. 2d 676 (Fla. 2d DCA 2000).
Thus, "the law provides any member of the public access to public records, whether he or she be the most outstanding civic citizen or the most heinous criminal." Church of Scientology Flag Service Org., Inc. v. Wood, No. 97-688CI-07 (Fla. 6th Cir. Ct. February 27, 1997). "[A]s long as the citizens of this state desire and insist upon 'open government' and liberal public records disclosure, as a cost of that freedom public officials have to put up with demanding citizens even when they are obnoxious as long as they violate no laws." State v. Colby, No. MM96-317A-XX (Fla. Highlands Co. Ct. May 23, 1996). "Even though a public agency may believe that a person or group are fanatics, harassers or are extremely annoying, the public records are available to all of the citizens of the State of Florida." Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991). And see Curry v. State, 811 So. 2d 736, 741 (Fla. 4th DCA 2002) (defendant's conduct in making over 40 public records requests concerning victim constituted a "legitimate purpose," and thus cannot violate the stalking law "because the right to obtain the records is established by statute and acknowledged in the state constitution").
3. Must an individual show a "special interest" or "legitimate interest" in public records before being allowed to inspect or copy same?
No. Chapter 119, F.S., requires no showing of purpose or "special interest" as a condition of access to public records. "The motivation of the person seeking the records does not impact the person's right to see them under the Public Records Act." Curry v. State, 811 So. 2d 736, 742 (Fla. 4th DCA 2002). See also Timoney v. City of Miami Civilian Investigative Panel, 917 So. 2d 885, 886n.3 (Fla. 3d DCA 2005) ("generally, a person's motive in seeking access to public records is irrelevant"); Staton v. McMillan, 597 So. 2d 940, 941 (Fla. 1st DCA 1992), review dismissed sub nom., Staton v. Austin, 605 So. 2d 1266 (Fla. 1992) (petitioner's reasons for seeking access to public records "are immaterial"); Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985) (legislative objective underlying the creation of Ch. 119 was to insure to the people of Florida the right freely to gain access to governmental records; the purpose of such inquiry is immaterial); and News-Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) ("the newspaper's motives [for seeking the documents], as well as the hospital's financial harm and public harm defenses, are irrelevant in an action to compel compliance with the Public Records Act").
"[T]he fact that a person seeking access to public records wishes to use them in a commercial enterprise does not alter his or her rights under Florida's public records law." Microdecisions, Inc. v. Skinner, 889 So. 2d 871, 875 (Fla. 2d DCA 2004), review denied, 902 So. 2d 791 (Fla. 2005), cert. denied, 126 S.Ct. 746 (2005). See also State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905) (abstract companies may copy documents from the clerk's office for their own use and sell copies to the public for a profit); Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 228n.2 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) ("Booksmart's reason for wanting to view and copy the documents is irrelevant to the issue of whether the documents are public records"). Cf. Fla. R. Jud. Admin. 2.420(i)(1), stating that a person requesting records of the judicial branch is not required to disclose the reason for the request. Accord Tedesco v. State, 807 So. 2d 804, 806 (Fla. 4th DCA 2002) (no requirement that any person show a "need" in order to obtain public records of the judicial branch).
Section 817.568, F.S., provides criminal penalties for the unauthorized use of personal identification information for fraudulent or harassment purposes. Criminal use of a public record or public records information is proscribed in s. 817.569, F.S.
4. What agency employees are responsible for responding to public records requests?
Section 119.011(5), F.S., defines the term "custodian of public records" to mean "the elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee." However, the courts have concluded that the statutory reference to the records custodian does not alter the "duty of disclosure" imposed by s. 119.07(1), F.S., upon "[e]very person who has custody of a public record." Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996). [Emphasis supplied by the court].
Thus, the term "custodian" for purposes of the Public Records Act refers to all agency personnel who have it within their power to release or communicate public records. Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998) (citing Williams v. City of Minneola, 575 So. 2d 683, 687 [Fla. 5th DCA 1991]). But, "the mere fact that an employee of a public agency temporarily possesses a document does not necessarily mean that the person has custody as defined by section 119.07." Id. at 1361. In order to have custody, one must have supervision and control over the document or have legal responsibility for its care, keeping or guardianship. Id. And see Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla. 2002), noting that "only the custodian" of agency personnel records may assert any applicable statutory exemption to disclosure, "not the employee."
The custodian of public records, or a person having custody of public records, may designate another officer or employee of the agency to permit the inspection and copying of public records, but must disclose the identity of the designee to the person requesting to inspect or copy public records. Section 119.07(1)(b), F.S. The custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. Section 119.07(1)(c), F.S. A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed. Id. Cf. Remia v. City of St. Petersburg Police Pension Board of Trustees, 14 F.L.W. Supp. 854a (Fla. 6th Cir. Ct. July 17, 2007), cert. denied, 996 So. 2d 860 (Fla. 2d DCA 2008) (since city clerk's responsibility to provide public records was ministerial, city was not entitled to protective order prohibiting attorney in litigation with the city from directly contacting the clerk with a public records request without first contacting the city attorney).
5. May an agency refuse to comply with a request to inspect or copy the agency's public records on the grounds that the records are not in the physical possession of the custodian?
No. An agency is not authorized to refuse to allow inspection of public records it made or received in connection with the transaction of official business on the grounds that the documents are in the actual possession of an agency or official other than the records custodian. See Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) (public records cannot be hidden from the public by transferring physical custody of the records to the agency's attorneys); Tober v. Sanchez, 417 So. 2d 1053 (Fla. 3d DCA 1982), review denied sub nom., Metropolitan Dade County Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (official charged with maintenance of records may not transfer actual physical custody of records to county attorney and thereby avoid compliance with request for inspection under Ch. 119, F.S.); and AGO 92-78 (public housing authority not authorized to withhold its records from disclosure on the grounds that the records have been subpoenaed by the state attorney and transferred to that office).
Thus, in Barfield v. Florida Department of Law Enforcement, No. 93-1701 (Fla. 2d Cir. Ct. May 19, 1994), the court held that an agency that received records from a private entity in the course of official business and did not make copies of the documents could not "return" them to the entity following receipt of a public records request. The court ordered the agency to demand the return of the records from the private entity so they could be copied for the requestor.
Similarly, in Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 492-493 (Fla. 2d DCA 1990), the court found that both the city and a private entity violated the Public Records Act when, pursuant to a plan to circumvent Ch. 119, F.S., the city avoided taking possession of negotiation documents reviewed and discussed by both parties and instead left them with the private entity's attorney. The court determined that although city officials may have intended merely to "avoid" the law, the effect of their actions was to "evade the broad policy of open government." And see Wisner v. City of Tampa Police Department, 601 So. 2d 296, 298 (Fla. 2d DCA 1992) (city may not allow a private entity to maintain physical custody of public records [polygraph chart used in internal investigation] "to circumvent the public records chapter"); and National Collegiate Athletic Association v. The Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010), (records on private entity's secure website that were viewed and used by a state university in carrying out its official duties were public records even though the university did not take physical possession).
If municipal pension records are stored in a records storage facility outside city limits, the city may not pass along to the public records requestor the costs to retrieve the records. Inf. Op. to Sugarman, September 5, 1997. Any delay in production of the records beyond what is reasonable under the circumstances may subject the custodian to liability for failure to produce public records. Id. And see AGO 02-37 (agency not authorized to 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 information pursuant to a contract between the agency and the private company).
While Ch. 119, F.S., does not require a county to transport microfilmed copies of public records maintained in a storage facility outside the county to the county courthouse when the originals are available at the courthouse, the microfilmed copies
Pursuant to Ch. 119, F.S., public records may routinely be removed from the building or office in which such records are ordinarily kept only for official purposes. AGO 93-16. The retention of such records in the home of a public official, however, would appear to circumvent the public access requirements of the Public Records Act and compromise the rights of the public to inspect and copy such records. Id. See s. 119.021, F.S. And see AGO 04-43 (mail addressed to city officials at City Hall and received at City Hall should not be forwarded unopened to the private residences of the officials, but rather the original or a copy of the mail that constitutes a public record should be maintained at city offices).
6. May an agency refuse to allow access to public records on the grounds that the records are also maintained by another agency?
No. The fact that a particular record is also maintained by another agency does not relieve the custodian of the obligation to permit inspection and copying in the absence of an applicable statutory exemption. AGO 86-69. If information contained in the public record is available from other sources, a person seeking access to the record is not required to make an unsuccessful attempt to obtain the information from those sources as a condition precedent to gaining access to the public records. Warden v. Bennett, 340 So. 2d 977, 979 (Fla. 2d DCA 1976).
7. May an agency refuse to allow inspection or copying of public records on the grounds that the request for such records is "overbroad" or lacks particularity?
No. In Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985), the court recognized that the "breadth of such right [to gain access to public records] is virtually unfettered, save for the statutory exemptions . . . ." Accordingly, in the absence of a statutory exemption, a custodian must produce the records requested regardless of the number of documents involved or possible inconvenience. Note, however, s. 119.07(4)(d), F.S., authorizes a custodian to charge, in addition to the cost of duplication, a reasonable service charge for the cost of the extensive use of information technology resources or of personnel, if such extensive use is required because of the nature or volume of public records to be inspected or copied. And see AGO 92-38 (agency 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 agency may impose a reasonable service charge pursuant to former s. 119.07[b] [now s. 119.07(4)(d), F.S.], based upon the actual costs incurred for the use of such resources or personnel).
Thus, a person seeking to inspect "all" financial records of a municipality may not be required to specify a particular book or record he or she wishes to inspect. State ex rel. Davidson v. Couch, 156 So. 297, 300 (Fla. 1934). In Davidson, the Florida Supreme Court explained that if this were the case, "one person may be required to specify the book, while another and more favored one, because of his pretended ignorance of the name of the record might be permitted examination of all of them." Id. Such a result would be inconsistent with the mandate in the Public Records Act that public records are open to all who wish to inspect them. Id. Cf. Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991), stating that if a public records request is insufficient to identify the records sought, the city has an affirmative duty to promptly notify the requestor that more information is needed in order to produce the records; it is the responsibility of the city and not the requestor to follow up on any requests for public records. Compare Woodard v. State, 885 So. 2d 444, 446 (Fla. 4th DCA 2004) (records custodian must furnish copies of records when the person requesting them identifies the portions of the record with sufficient specificity to permit the custodian to identify the record and forwards the statutory fee).
8. May an agency require that a request to examine or copy public records be made in writing?
Chapter 119, F.S., does not authorize an agency to require that requests for records be in writing. See Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 305n.1 (Fla. 3d DCA 2001) ("There is no requirement in the Public Records Act that requests for records must be in writing"). As noted in AGO 80-57, a custodian must honor a request for copies of records which is sufficient to identify the records desired, whether the request is in writing, over the telephone, or in person, provided that the required fees are paid.
If a public agency believes that it is necessary to provide written documentation of a request for public records, the agency may require that the custodian complete an appropriate form or document; however, the person requesting the records cannot be required to provide such documentation as a precondition to the granting of the request to inspect or copy public records. See Sullivan v. City of New Port Richey, No. 86-1129CA (Fla. 6th Cir. Ct. May 22, 1987), per curiam affirmed, 529 So. 2d 1124 (Fla. 2d DCA 1988), noting that a demandant's failure to complete a city form required for access to documents did not authorize the custodian to refuse to honor the request to inspect or copy public records.
However, a request for records of the judicial branch (which is not subject to Ch. 119, F.S., see Times Publishing Company v. Ake, 660 So. 2d 255 [Fla. 1995]), must be in writing. Rule 2.420(i)(1), Fla. R. Jud. Admin. In its commentary accompanying the rule change that incorporated this requirement, the Court said that the "writing requirement is not intended to disadvantage any person who may have difficulty writing a request; if any difficulty exists, the custodian should aid the requestor in reducing the request to writing." In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
9. May an agency require that the requestor furnish background information to the custodian?
A person requesting access to or copies of public records may not be required to disclose his or her name, address, telephone number or the like to the custodian, unless the custodian is required by law to obtain this information prior to releasing the records. AGOs 92-38 and 91-76. See also Bevan v. Wanicka, 505 So. 2d 1116 (Fla. 2d DCA 1987) (production of public records may not be conditioned upon a requirement that the person seeking inspection disclose background information about himself or herself ). Cf. s. 1012.31(2)(f), F.S., providing that the custodian of public school employee personnel files shall maintain a record in the file of those persons reviewing an employee personnel file each time it is reviewed.
10. Is an agency required to: answer questions about its public records; create a new record in response to a request for information; or reformat its records in a particular form as demanded by the requestor?
The statutory obligation of the custodian of public records is to provide access to, or copies of, public records "at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records" provided that the required fees are paid. Section 119.07(1)(a) and (4), F.S. However, a custodian is not required to give out information from the records of his or her office. AGO 80-57. The Public Records Act does not require a town to produce an employee, such as the financial officer, to answer questions regarding the financial records of the town. AGO 92-38. Cf. In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002) (the custodian of judicial records "is required to provide access to or copies of records but is not required either to provide information from records or to create new records in response to a request").
In other words, Ch. 119, F.S., provides a right of access to inspect and copy an agency's existing public records; it does not mandate that an agency create new records in order to accommodate a request for information from the agency. Thus, the clerk of court is not required to provide an inmate with a list of documents from a case file which may be responsive to some forthcoming request. Wootton v. Cook, 590 So. 2d 1039 (Fla. 1st DCA 1991). However, 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 by mail for information as to copying costs. Id. See also Woodard v. State, 885 So. 2d 444, 445n.1 (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 copying cost of the requested records; cf. Gilliam v. State, 996 So. 2d 956 (Fla. 2d DCA 2008) (clerk, as custodian of judicial records, had a legal duty to respond to Gilliam's request for information regarding costs).
Similarly, an agency is not ordinarily required to reformat its records and provide them in a particular form as demanded by the requestor. AGO 08-29. As explained in Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983):
If the health department maintains a chronological list of dog-bite incidents with rabies implications [a] plaintiff, bitten by a suspect dog, may not require the health department to reorder that list and furnish a record of incidents segregated by geographical areas. Nothing in the statute, case law or public policy imposes such a burden upon our public officials.
However, an agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium. Section 119.01(2)(f), F.S. 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. Miami-Dade County v. Professional Law Enforcement Association, 997 So. 2d 1289 (Fla. 3d DCA 2009) (fact that pertinent information may exist in more than one format is not a basis for exemption or denial of the request).
11. When must an agency respond to a public records request?
The custodian of public records or his or her designee is required to acknowledge requests to inspect or copy records promptly and to respond to such requests in good faith. Section 119.07(1)(c), F.S. The Public Records Act, however, does not contain a specific time limit (such as 24 hours or 10 days) for compliance with public records requests. The Florida Supreme Court has stated that the only delay in producing records permitted under Ch. 119, F.S., "is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt." Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985).
a. Automatic delay impermissible
A municipal policy which provides for an automatic delay in the production of public records is impermissible. Tribune Company v. Cannella, 458 So. 2d 1075, 1078-1079 (Fla. 1984), appeal dismissed sub nom., Deperte v. Tribune Company, 105 S.Ct. 2315 (1985). See also Michel v. Douglas, 464 So. 2d 545, 546 at n.2 (Fla. 1985), wherein the Supreme Court noted that a county resolution imposing a 24-hour waiting period before allowing inspection of county personnel records which had been upheld in an earlier appellate decision [Roberts v. News-Press Publishing Company, Inc., 409 So. 2d 1089 (Fla. 2d DCA), review denied, 418 So. 2d 1280 (Fla. 1982)], was no longer enforceable in light of subsequent judicial decisions.
Thus, an agency is not authorized to delay inspection of personnel records in order to allow the employee to be present during the inspection of his or her records. Tribune Company v. Cannella, 458 So. 2d at 1078. Compare s. 1012.31(3)(a)3., F.S., in which the Legislature has expressly provided that no material derogatory to a public school employee may be inspected until 10 days after the employee has been notified as prescribed by statute.
Similarly, the Attorney General's Office has advised that a board of trustees of a police pension fund may not delay release of its records until such time as the request is submitted to the board for a vote. AGO 96-55. And see Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), appeal pending, No. SC10-798 (Fla. April 20, 2010) (city may not delay public access to board meeting minutes until after the city commission has approved the minutes).
b. Delay in response
An agency's unreasonable and excessive delays in producing public records can constitute an unlawful refusal to provide access to public records. See Rechler v. Town of Manalapan, No. CL 94-2724 AD (Fla. 15th Cir. Ct. November 21, 1994), affirmed, 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996), finding that the town engaged in a "pattern of delays" by taking months to fully comply with the petitioner's public records requests.
Similarly, in State v. Webb, 786 So. 2d 602, 604 (Fla. 1st DCA 2001), the court held that it was error for a lower court judge to vacate a misdemeanor conviction of a records custodian (Webb) who had been found guilty of willfully violating s. 119.07(1)(a), F.S., based on her "dilatory" response to public records requests filed by a citizen (Watson):
Evidence was presented that Webb took one and one-half months to respond to Watson's initial public-records request; that it was nearly four months before Webb attempted to schedule a time for Watson to review documents responsive to the requests; that Webb gave Watson one hour to review a ten-inch stack of documents and then allowed only two additional one-hour sessions five weeks later; that Webb terminated Watson's review after this third session; and that Webb did not provide all of her public records until she received a request from the grand jury nearly seven months after Watson's request.
By contrast, in Lang v. Reedy Creek Improvement District, No. CJ-5546 (Fla. 9th Cir. Ct. October 2, 1995), affirmed per curiam, 675 So. 2d 947 (Fla. 5th DCA 1996), the circuit court rejected the petitioner's claim that the agency should have produced requested records within 10, 20 and 60-day periods. The court determined that the agency's response to numerous (19) public records requests for 135 categories of information and records filed by the opposing party in litigation was reasonable in light of the cumulative impact of the requests and the fact that the requested records contained exempt as well as nonexempt information and thus required a considerable amount of review and redaction. And see Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), in which the court said that in view of the "nature and volume of the materials requested [over 9000 pages], their location, and the need for close supervision by some knowledgeable person of the review of those records for possible exemptions," the amount of time expended by the county to produce the records (several weeks) to opposing counsel was not unreasonable.
c. Arbitrary time for inspection
While an agency may restrict the hours during which public records may be inspected to those hours when the agency is open to the public, a custodian is not authorized to establish an arbitrary time period during which records may or may not be inspected. AGO 81-12. Thus, an agency policy which permits inspection of its public records only from 1:00 p.m. to 4:30 p.m., Monday through Friday, violates the Public Records Act. Inf. Op. to Riotte, May 21, 1990. There may be instances where, due to the nature or volume of the records requested, a delay based upon the physical problems in retrieving the records and protecting them is necessary; however, the adoption of a schedule in which public records may be viewed only during certain hours is impermissible. Id.
d. Standing requests
The Florida Attorney General’s Office has stated that upon receipt of a public records request, the agency must comply by producing all non-exempt documents in the custody of the agency that are responsive to the request, upon payment of the charges authorized in Chapter 119, F.S. However, this mandate applies only to those documents in the custody of the agency at the time of the request; nothing in the Public Records law appears to require that an agency respond to a so-called “standing” request for production of public records that it may receive in the future. See Inf. Op. to Worch. June 15, 1995.
12. In the absence of express legislative authorization, may an agency refuse to allow public records made or received in the normal course of business to be inspected or copied if requested to do so by the maker or sender of the document?
No. To allow the maker or sender of documents to dictate the circumstances under which the documents are to be deemed confidential would permit private parties as opposed to the Legislature to determine which public records are subject to disclosure and which are not. Such a result would contravene the purpose and terms of Ch. 119, F.S. See Gadd v. News-Press Publishing Company, 412 So. 2d 894 (Fla. 2d DCA 1982) (records of a county hospital's utilization review committee were not exempt from Ch. 119, F.S., even though the information may have come from sources who expected or were promised confidentiality); 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 filled out forms requesting that city maintain the confidentiality of all material in their personnel files); City of Pinellas Park, Florida v. Times Publishing Company, No. 00-008234CI-19 (Fla. 6th Cir. Ct. January 3, 2001) ("there is absolutely no doubt that promises of confidentiality [given to employees who were asked to respond to a survey] do not empower the Court to depart from the public records law"). And see Hill v. Prudential Insurance Company of America, 701 So. 2d 1218 (Fla. 1st DCA 1997), review denied, 717 So. 2d 536 (Fla. 1998) (materials obtained by state agency from anonymous sources during its investigation of an insurance company were public records subject to disclosure in the absence of statutory exemption, notwithstanding the company's contention that the records were "stolen" or "misappropriated" privileged documents that were delivered to the state without the company's permission). Compare Doe v. State, 901 So. 2d 881 (Fla. 4th DCA 2005) (where citizen provided information to state attorney's office which led to a criminal investigation was justified in inferring or had a reasonable expectation that he would be treated as a confidential source in accordance with statutory exemption now found at s. 119.071[f], F.S., the citizen was entitled to have his identifying information redacted from the closed file, even though there was no express assurance of confidentiality by the state attorney's office).
Thus, it has been held that an agency "cannot bargain away its Public Records Act duties with promises of confidentiality in settlement agreements." The Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. 10th Cir. Ct. August 19, 1991), stating that a confidentiality provision in a settlement agreement which resolved litigation against a public hospital did not remove the document from the Public Records Act. Cf. s. 69.081(8), F.S., part of the "Sunshine in Litigation Act," providing, subject to certain exceptions, that any portion of an agreement 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 requiring that settlement records be maintained in compliance with Ch. 119, F.S. And see 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." See also National Collegiate Athletic Association v. The Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010), holding that a confidentiality agreement entered into by a private law firm on behalf of a state university with the NCAA that allowed access to records contained on the NCAA's secure custodial website that were used by the university in preparing a response to possible NCAA sanctions, had no impact on whether such records were public records, stating that "[a] public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private."
Accordingly, it is clear that the determination as to when public records are to be deemed confidential rests exclusively with the Legislature. See Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781 (Fla. 1st DCA 2003), review denied sub nom., Crist v. Department of Environmental Protection, 911 So. 2d 792 (Fla. 2005) (private party cannot render public records exempt from disclosure merely by designating as confidential the material it furnishes to a state agency). See also AGO 90-104 (desire of data processing company to maintain "privacy" of certain materials filed with Department of State is of no consequence unless such materials fall within a legislatively created exemption to Ch. 119, F.S.); AGO 71-394 (reports received and marked "confidential" or "return to sender" must be open to public inspection unless exempted from disclosure by the Legislature); AGO 97-84 (architectural and engineering plans under seal pursuant to s. 481.221 or s. 471.025, F.S., that are held by a public agency in connection with the transaction of official business are subject to public inspection); and Inf. Op. to Echeverri, April 30, 2010 (taxpayer may not request that records submitted to value adjustment board be kept confidential). Cf. Inf. Op. to Burke, April 14, 2010 (state licensing board must determine whether letter, although allegedly sent to the board by mistake, was received in connection with the transaction of board business).
Therefore, unless the Legislature has expressly authorized the maker of documents received by an agency to keep the material confidential, the wishes of the sender in this regard cannot supersede the requirements of Ch. 119, F.S. Compare, e.g., s. 377.2409(1), F.S. (information on geophysical activities conducted on state-owned mineral lands received by Department of Environmental Protection shall, on the request of the person conducting the activities, be held confidential and exempt from Ch. 119, F.S., for 10 years).
13. Must an agency state the basis for its refusal to release an exempt record?
Yes. Section 119.07(1)(e), F.S., states that a custodian of a public record who contends that a record or part of a record is exempt from inspection must state the basis for the exemption, including the statutory citation to the exemption. Additionally, upon request, the custodian must state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential. Section 119.07(1)(f), F.S. See Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000) (agency’s response that it had provided all records "with the exception of certain information relating to the victim" deemed inadequate because the response "failed to identify with specificity either the reasons why records were believed to be exempt, or the statutory basis for any exemption"); and Langlois v. City of Deerfield Beach, Florida, 370 F. Supp 2d 1233 (S.D. Fla. 2005) (city fire chief's summary rejection of request for employee personnel file violated the Public Records Act because the chief gave no statutory reason for failing to produce the records). Cf. City of St. Petersburg v. Romine ex rel. Dillinger, 719 So. 2d 19, 21 (Fla. 2d DCA 1998), noting that the Public Records Act "may not be used in such a way to obtain information that the legislature has declared must be exempt from disclosure"; and AGO 06-04 (request for agency records may not be phrased or responded to in terms of a request for the specific documents asked for and received by a law enforcement agency during the course of an active criminal investigation).
It has been held that a federal agency subject to the federal Freedom of Information Act, 5 U.S.C. s. 552, must, in addition to providing a detailed justification of the basis for claimed exemptions under the Act, specifically itemize and index the documents involved so as to show which are disclosable and which are exempt. See Vaughn v. Rosen, 484 F.2d 820, 827-828 (D.C. Cir. 1973), cert. denied, 94 S.Ct. 1564 (1974). However, a Florida court refused to apply the Vaughn requirements to the state Public Records Act; and Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985). And see Lopez v. State, 696 So. 2d 725 (Fla. 1997) (state attorney's contention that requested records were work product and not subject to public records disclosure was sufficient to identify asserted statutory exemptions).
14. May an agency refuse to allow inspection and copying of an entire public record on the grounds that a portion of the record contains information which is exempt from disclosure?
No. Where a public record contains some information which is exempt from disclosure, s. 119.07(1)(d), F.S., requires the custodian of the record to delete or excise only that portion or portions of the record for which an exemption is asserted and to provide the remainder of the record for examination. See Ocala Star Banner Corp. v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA 1994) (city may redact confidential identifying information from police report but must produce the rest for inspection); City of Riviera Beach v. Barfield, 642 So. 2d 1135, 1137 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995) (police department authorized to withhold statutorily exempt criminal investigative information but must allow inspection of nonexempt portions of the records); and AGO 95-42 (statute providing for confidentiality of certain audit information did not make the entire report confidential and exempt from disclosure; the portions of the report which do not contain exempt information must be released).
The fact that an agency believes that it would be impractical or burdensome to redact confidential information from its records does not excuse noncompliance with the mandates of the Public Records Act. AGO 99-52. Cf. AGO 02-73 (agency must redact confidential and exempt information and release the remainder of the record; agency not authorized to release records containing confidential information, albeit anonymously).
A custodian of records containing both exempt and nonexempt material may comply with s. 119.07(1)(d), F.S., by any reasonable method which maintains and does not destroy the exempted portion while allowing public inspection of the nonexempt portion. AGO 84-81. And see AGO 97-67 (clerk is under a duty to prevent the release of confidential material that may be contained in the Official Records; the manner by which this is to be accomplished rests within the sound discretion of the clerk). Accord AGO 05-37.
Section 119.011(12), F.S., defines the term "redact" to mean "to conceal from a copy of an original public record, or to conceal from an electronic image that is available for public viewing, that portion of the record containing exempt or confidential information." See AGO 02-69 (statute providing for redaction of certain information in court records available for public inspection does not authorize clerk of court to permanently remove or obliterate such information from the original court records).
15. May an agency refuse to allow inspection of public records because the agency believes disclosure could violate privacy rights?
It is well established in Florida that "neither a custodian of records nor a person who is the subject of a record can claim a constitutional right of privacy as a bar to requested inspection of a public record which is in the hands of a government agency." Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991).
In reaching the conclusion that public records must be open to public inspection unless the Legislature provides otherwise, the courts have rejected claims that the constitutional right of privacy bars disclosure. Article I, s. 23, Fla. Const., provides:
Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. (e.s.)
Accordingly, the Florida Constitution "does not provide a right of privacy in public records" and a state or federal right of disclosural privacy does not exist. Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985). See also Forsberg v. Housing Authority of City of Miami Beach, 455 So. 2d 373 (Fla. 1984); and AGO 09-19 (to extent that information on an agency’s Facebook page constitutes a public record within the meaning of Ch. 119, F.S., Art. I, s. 23, Fla. Const., “is not implicated"). "[I]n Florida the right to privacy is expressly subservient to the Public Records Act." Board of County Commissioners of Palm Beach County v. D.B., 784 So. 2d 585, 591 (Fla. 4th DCA 2001). But see Post-Newsweek Stations, Florida Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (public's right of access to pretrial criminal discovery materials must be balanced against a nonparty's constitutional right to privacy).
However, in Times Publishing Company v. A.J., 626 So. 2d 1314 (Fla. 1993), the Supreme Court blocked the release of a sheriff's initial incident report of alleged child abuse that was referred to the child welfare department for investigation pursuant to state child protection laws. Noting that the department found no probable cause, the Court held that the confidentiality provisions in Ch. 415, F.S. 1990 [now found in Ch. 39, F.S.], are intended to accommodate the privacy rights of those involved in these cases "during the initial stages of an investigation before probable cause has been found." Id. at 1315. Additionally, the Court held that a member of the class the exception was intended to protect--i.e., the minor children who were the subject of the child abuse incident report--had standing to assert a statutory exception. Cf. Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla. 2002), noting that "only the custodian" of agency personnel records "can assert any applicable exemption; not the employee." Although the statutes did not require the sheriff to notify third parties about the public records request, the Court could not fault the sheriff for providing such notification. Times Publishing Company v. A.J., supra at 1316. Cf. Tribune Company v. Cannella, supra (automatic delay in production of personnel records to allow employees time to assert constitutional privacy interests invalid). In a lengthy footnote, however, the Court cautioned that its ruling addressed only the factual question of a statutory exception relating to child abuse, and did not necessarily apply in any other context. Times Publishing v. A.J., supra at 1315n.1. Cf. AGO 94-47, regarding the application of the Times Publishing Company standard to complaints of abuse filed with a human rights advocacy committee.
16. What is the liability of a custodian for release of public records?
Nothing in Ch. 119, F.S., indicates an intent to give private citizens a right to recovery for an agency negligently maintaining and providing information from public records. City of Tarpon Springs v. Garrigan, 510 So. 2d 1198 (Fla. 2d DCA 1987); Friedberg v. Town of Longboat Key, 504 So. 2d 52 (Fla. 2d DCA 1987). Cf. Layton v. Florida Department of Highway Safety and Motor Vehicles, 676 So. 2d 1038 (Fla. 1st DCA 1996) (agency has no common law or statutory duty to citizen to maintain accurate records). Accord Hillsborough County v. Morris, 730 So. 2d 367 (Fla. 2d DCA 1999).
However, a custodian is not protected against tort liability resulting from that person intentionally communicating public records or their contents to someone outside the agency which is responsible for the records unless the person inspecting the records has made a bona fide request to inspect the records or the communication is necessary to the agency's transaction of its official business. Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991), review denied, 589 So. 2d 289 (Fla. 1991). On appeal, after remand, the Fifth District held the claim against the city was barred on the basis of sovereign immunity. Williams v. City of Minneola, 619 So. 2d 983 (Fla. 5th DCA 1993). Cf. AGO 97-09 (law enforcement agency's release of sexual offender records for purposes of public notification is consistent with its duties and responsibilities).