What agencies are subject to the Public Records Act?
Section 119.011(2), F.S., defines "agency" to include:
any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.
In addition, Art. I, s. 24(a), 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 with respect to those records exempted pursuant to this section or specifically made confidential by this Constitution." This constitutional right of access includes the legislative, executive, and judicial branches of government; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or by the Constitution.
1. Advisory boards
The definition of "agency" for purposes of Ch. 119, F.S., is not limited to governmental entities. A "public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency" is also subject to the requirements of the Public Records Act. See also Art. I, s. 24(a), Fla. Const., providing that the constitutional right of access to public records extends to "any public body, officer, or employee of the state, or persons acting on their behalf . . . ." (e.s.)
Thus, the Attorney General's Office has concluded that the records of an employee advisory committee, established pursuant to special law to make recommendations to a public hospital authority, are subject to Ch. 119, F.S., and Art. I, s. 24(a), Fla. Const. AGO 96-32. And see Inf. Op. to Nicoletti, November 18, 1987, stating that the Loxahatchee Council of Governments, Inc., formed by eleven public agencies to study and make recommendations on local governmental issues was an "agency" for purposes of Ch. 119, F.S.
2. Private organizations
A more complex question is presented when a private corporation or entity provides services for, or receives funds from, a governmental body. The term "agency" as used in the Public Records Act includes private entities "acting on behalf of any public agency." Section 119.011(2), F.S. The Florida Supreme Court has stated that this broad definition of "agency" ensures that a public agency cannot avoid disclosure by contractually delegating to a private entity that which would otherwise be an agency responsibility. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). Cf. Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229n.4 (Fla. 3d DCA 1998) (private company operating state university bookstores is an "agency" as defined in s. 119.011(2), F.S., "[n]otwithstanding the language in its contract with the universities that purports to deny any agency relationship"). While the mere act of contracting with, or receiving public funds from, a public agency is not sufficient to subject a private entity to Ch.119, F.S., the following discussion considers when the statute has been held applicable to private entities.
a. Private entities created pursuant to law or by public agencies
The fact that a private entity is incorporated as a nonprofit corporation is not dispositive as to its status under the Public Records Act, but rather the issue is whether the entity is "acting on behalf of" a public agency. The Attorney General's Office has issued numerous opinions advising that if a private entity is created by law or by a public agency, it is subject to Ch. 119 disclosure requirements. The following are some examples of such entities: Pace Property Finance Authority, Inc., created as a Florida nonprofit corporation by Santa Rosa County to provide assistance in the funding and administration of certain governmental programs, AGO 94-34; South Florida Fair and Palm Beach County Expositions, Inc., created pursuant to Ch. 616, F.S., AGO 95-17; rural health networks established as nonprofit legal entities to plan and deliver health care services on a cooperative basis pursuant to s. 381.0406, F.S., Inf. Op. to Ellis, March 4, 1994.
b. Private entities contracting with public agencies or receiving public funds
There is no single factor which is controlling on the question of when a private corporation, not otherwise connected with government, becomes subject to the Public Records Act. However, the courts have held that the mere act of contracting with a public agency is not dispositive. See, e.g., News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra (private corporation does not act "on behalf of" a public agency merely by entering into a contract to provide architectural services to the agency); Parsons & Whittemore, Inc. v. Metropolitan Dade County, 429 So. 2d 343 (Fla. 3d DCA 1983); Stanfield v. Salvation Army, 695 So. 2d 501, 503 (Fla. 5th DCA 1997) (contract with county to provide services does not in and of itself subject the organization to Ch. 119 disclosure requirements). And see Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970 (Fla. 2d DCA 2002) (fact that private development is located on land the developer leased from a governmental agency does not transform the leases between the developer and other private entities into public records).
Similarly, the receipt of public funds, standing alone, is not dispositive of the organization's status for purposes of Ch. 119, F.S. See Sarasota Herald-Tribune Company v. Community Health Corporation, Inc., 582 So. 2d 730 (Fla. 2d DCA 1991) (mere provision of public funds to the private organization is not an important factor in this analysis, although the provision of a substantial share of the capitalization of the organization is important); Times Publishing Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999) (attorneys retained by individual commissioners in a criminal matter were not "acting on behalf of" a public agency for purposes of Ch. 119, F.S., even though county commission subsequently voted to pay the legal expenses in accordance with a county policy providing for reimbursement of legal expenses to officers successfully defending charges filed against them arising out of the performance of their official duties); and State v. Bartholomew, No. 08-5656CF10A (Fla. 17th Cir. Ct. August 7, 2009) (status of Crimestoppers Council of Broward County, as a private organization not subject to Ch. 119, F.S., is unaltered by its receipt of money from the Attorney General's Office). And compare Inf. Op. to Gaetz and Coley, December 17, 2009 (mere receipt of federal grant does not subject private economic development organization to Ch. 119, F.S.); and Inf. Op. to Cowin, November 14, 1997 (fact that nonprofit medical center is built on property owned by the city would not in and of itself be determinative of whether the medical center's meetings and records are subject to open government requirements) with AGO 10-30 (subcommittee of a private economic development advisory council is subject to open government laws when county has delegated Its authority to conduct public business).
The courts have relied on “two general sets of circumstances” in determining when a private entity is "acting on behalf of" a public agency and must therefore produce its records under Ch. 119, F.S. See Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002); B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17 (Fla. 1st DCA 2008) review denied, 4 So. 3d 1220 (Fla. 2009); and County of Volusia v. Emergency Communications Network, Inc., No. 5D09-3417 (Fla. 5th DCA July 23, 2010). These circumstances are discussed below.
1. "Totality of factors" test
Recognizing that "the statute provides no clear criteria for determining when a private entity is 'acting on behalf of' a public agency," the Supreme Court adopted a "totality of factors" approach to use as a guide for evaluating whether a private entity is subject to Ch. 119, F.S. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029, 1031 (Fla. 1992). Accord New York Times Company v. PHH Mental Health Services, Inc., 616 So. 2d 27 (Fla. 1993) (private entities should look to the factors announced in Schwab to determine their possible agency status under Ch. 119); Wells v. Aramark Food Service Corporation, 888 So. 2d 134 (Fla. 4th DCA 2004). Cf. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373, 381 (Fla. 1999), noting that the "totality of factors" test presents a "mixed question of fact and law." Thus, when a public agency contracts with a private entity to provide goods or services to facilitate the agency’s performance of its duties, the courts have considered the “totality of factors” in determining whether there is a significant level of involvement by the public agency so as to subject the private entity to Ch. 119, F.S. See Weekly Planet, Inc. v. Hillsborough County Aviation Authority, supra at 974.
The factors listed by the Supreme Court in Schwab include the following:
1) the level of public funding;
2) commingling of funds;
3) whether the activity was conducted on publicly-owned property;
4) whether the contracted services are an integral part of the public agency's chosen decision-making process;
5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform;
6) the extent of the public agency's involvement with, regulation of, or control over the private entity;
7) whether the private entity was created by the public agency;
8) whether the public agency has a substantial financial interest in the private entity;
9) for whose benefit the private entity is functioning.
In explaining the totality test, the Court cited to several earlier district court opinions, including the Fourth District's decision in Schwartzman v. Merritt Island Volunteer Fire Department, 352 So. 2d 1230 (Fla. 4th DCA 1977), cert. denied, 358 So. 2d 132 (Fla. 1978), that held that a private nonprofit volunteer fire department, which had been given stewardship over firefighting, which conducted its activities on county-owned property, and which was funded in part by public money, was an agency and its membership files, minutes of its meetings and charitable activities were subject to disclosure.
Thus, the application of the totality of factors test will often require an analysis of the statutes, ordinances or charter provisions which establish the function to be performed by the private entity as well as the contract, lease or other document between the governmental entity and the private organization. See, e.g., AGO 92-37 in which the Attorney General's Office, following a review of the Articles of Incorporation and other materials relating to the establishment and functions of the Tampa Bay Performing Arts Center, Inc., concluded that the center was an "agency" subject to the Public Records Act, noting that the center was governed by a board of trustees composed of a number of city and county officials or appointees of the mayor, utilized city property in carrying out its goals to benefit the public, and performed a governmental function. See also AGOs 97-27 (documents created or received by the Florida International Museum after the date of its purchase/lease/option agreement with city subject to disclosure under Ch. 119, F.S.), and 92-53 (John and Mable Ringling Museum of Art Foundation, Inc., subject to Public Records Act). But see AGO 87-44 (records of a private nonprofit corporation pertaining to a fund established for improvements to city parks were not public records since the corporation raised and disbursed only private funds and had not been delegated any governmental responsibilities or functions); Inf. Op. to Michelson, January 27, 1992 (telephone company supplying cellular phone services to city officials for city business is not an "agency" since company was not created by the city, did not perform a city function, and did not receive city funding except in payment for services rendered); and Inf. Op. to Gaetz and Coley, December 17, 2009 (private economic development organization, which is not acting on behalf of a public agency, is not subject to Ch. 119, F.S., merely because it encourages economic development in the county and is funded by a federal grant).
Under the 'totality of factors" test, the courts have held the following businesses or organizations to be outside the scope of the Public Records Act:
Architectural firm providing architectural services associated with the construction of school facilities: News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra;
Manufacturer of breath analyzer machine used by law enforcement: State v. Spalding, 13 F.L.W. Supp. 627 (Fla. 15th Cir. Ct. February 28, 2006);
Private security force providing services on Walt Disney World property, including traffic control and accident reports: Sipkema v. Reedy Creek Improvement District, No. CI96114 (Fla. 9th Cir. Ct. May 29, 1996), per curiam affirmed, 697 So. 2d 880 (Fla. 5th DCA 1997), review dismissed, 699 So. 2d 1375 (Fla. 1997);
Soft drink company cooperating with law enforcement in the testing of soda bottles during an investigation of a poisoning death: Trepal v. State, 704 So. 2d 498 (Fla. 1997).
2. Delegation test
While the mere act of contracting with a public agency is not sufficient to bring a private entity within the scope of the Public Records Act, there is a difference between a party contracting with a public agency to provide services to the agency and a contracting party which provides services in place of the public body. News-Journal Corporation v. Memorial Hospital-West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999); and Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002) (when a public entity delegates a statutorily authorized function to a private entity, the records generated by the private entity’s performance of that duty become public records).
Stated another way, business records of entities which merely provide services for an agency to use (e.g., legal professional services) are probably not subject to the open government laws. Memorial Hospital-West Volusia, Inc., supra. But, if the entity contracts to relieve the public body from the operation of a public obligation such as operating a jail or providing fire protection, the open government laws do apply. Id. And see Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 307 (Fla. 3d DCA 2001) (consortium of private businesses created to manage a massive renovation of an airport was an "agency" for purposes of the Public Records Act because it was created for and had no purpose other than to work on the airport contract; "when a private entity undertakes to provide a service otherwise provided by the government, the entity is bound by the Act, as the government would be").
Thus, in Stanfield v. Salvation Army, 695 So. 2d 501, 502-503 (Fla. 5th DCA 1997), the court ruled that the Salvation Army was subject to the Public Records Act when providing misdemeanor probation services pursuant to a contract with Marion County. See also Putnam County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th DCA 1999) (where county humane society assumed the governmental function to investigate acts of animal abuse pursuant to statutory authority, the records created and maintained in connection with this function were governed by the Public Records Act).
Similarly, a private company under contract with a sheriff to provide medical services for inmates at the county jail must release its records relating to a settlement agreement with an inmate. Since these records would normally be subject to the Public Records Act if in the possession of the public agency, they are likewise covered by that law even though in the possession of the private corporation. Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999). And see Times Publishing Company v. Corrections Corporation of America, No. 91-429 CA 01 (Fla. 5th Cir. Ct. December 4, 1991), affirmed per curiam, 611 So. 2d 532 (Fla. 5th DCA 1993) (private corporation that operates and maintains county jail pursuant to contract with the county is "acting on behalf of" the county and must make available its records for the jail in accordance with Ch. 119); Mae Volen Senior Center, Inc. v. Area Agency on Aging, 978 So. 2d 191 (Fla. 4th DCA 2008), review denied, 1 So. 3d 172 (Fla. 2009) (private agencies on aging designated by the Department of Elder Affairs to coordinate and administer department programs and to provide services for the elderly within a planning and service area are subject to Public Records Law when considering any contracts requiring the expenditure of public funds).
In Multimedia Holdings Corporation Inc. v. CRSPE, Inc., No. 03-CA-3474-G (Fla. 20th Cir. Ct. December 3, 2003), the circuit court required a consulting firm to disclose its time sheets and internal billing records generated pursuant to a subcontract with another firm (CRSPE) which had entered into a contract with a town to prepare a traffic study required by the Department of Transportation. Rejecting the subcontractor's argument that Ch. 119, F.S., did not apply to it because it was a subcontractor, not the contractor, the court found that the study was prepared and submitted jointly by both consultants; both firms had acted in place of the town in performing the tasks required by the department: "[T]he Public Records Act cannot be so easily circumvented simply by CRSPE delegating its responsibilities to yet another private entity." And see AGOs 08-66 (not-for-profit corporation contracting with city to carry out affordable housing responsibilities and screening applicant files for such housing is an agency within the scope of Ch. 119), 99-53 (while not generally applicable to homeowners associations, Ch. 119 applies to architectural review committee of a homeowners association which is required by county ordinance to review and approve applications for county building permits as a prerequisite to consideration by the county building department), and 07-44 (property owners association, delegated performance of services otherwise performed by municipal services taxing unit, subject to Public Records Law when acting on behalf of the taxing unit).
The following are other examples of private entities that have been found to have been delegated a governmental function and thus subject to the Public Records Act in carrying out those functions:
Employment search firm: Shevin v. Byron, Harless, Schaffer, Reid and Associates, supra. Accord AGO 92-80 (materials made or received by recruitment company in the course of its contract with a public agency to seek applicants and make recommendations to the board regarding the selection of an executive director, subject to Ch. 119).
Engineering company providing ongoing engineering services to city: B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17 (Fla. 1st DCA 2008), review denied, 4 So. 3d 1220 (Fla. 2009)
Towing company: Fox v. News-Press Publishing Company, Inc., 545 So. 2d 941 (Fla. 2d DCA 1989)
But see Sipkema v. Reedy Creek Improvement District, No. CI96114 (Fla. 9th Cir. Ct. May 29, 1996), per curiam affirmed, 697 So. 2d 880 (Fla. 5th DCA 1997), review dismissed, 699 So. 2d 1375 (Fla. 1997), in which the court, utilizing both the delegation and totality of factors tests, held that reports prepared by Walt Disney World's private security force regarding incidents on roads within the Disney property are not public records even though Disney contracted to provide some security services for a public entity, the Reedy Creek Improvement District.
c. Private company delegated authority to keep certain records
In Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 494 (Fla. 2d DCA 1990), a private entity (the White Sox baseball organization) refused to allow access to draft lease documents and other records generated in connection with negotiations between the White Sox and the city for use of a municipal stadium. The court determined that both the White Sox and the city improperly attempted to circumvent the Public Records Act by agreeing to keep all negotiation documents confidential and in the custody of the White Sox. Noting the dangers that exist if private entities “are allowed to demand that they retain custody [and prevent inspection] of documents as a condition of doing business with a governmental body,” the court ruled that both the city and the White Sox had violated Ch. 119, F.S.
Relying in part on the White Sox case, the court in National Collegiate Athletic Association v. The Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010), held that National Collegiate Athletic Association records which were provided to a state university on the NCAA’s secure custodial website for use by the university in preparing a response to possible NCAA sanctions were public records. Although the documents in the White Sox case had been modified at the request of the city, the court found that to be "a distinction without a difference." Id. Holding that the records which were viewed and used by a public agency in carrying out its official business were public records, the court stated:
[T]he public records law can be enforced against any person who has custody of public records, whether that person is employed by the public agency creating or receiving the records or not. It makes no difference that the records in question are in the hands of a private party. If they are public records, they are subject to compelled disclosure under the law.
Thus, if a public agency has delegated its responsibility to maintain records necessary to perform its functions, such records will be deemed accessible to the public. See, e.g., Harold v. Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996) (where county hired a private company to be the construction manager on a county project and delegated to the company the responsibility of maintaining records necessary to show compliance with a "fairness in procurement ordinance," the company's records for this purpose were public records); Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) (private company operating a campus bookstore pursuant to a contract with a state university is the custodian of public records made or received by the store in connection with university business); WFTV, Inc. v. School Board of Palm Beach County, No. CL 94-8549-AD (Fla. 15th Cir. Ct. March 29, 1995), affirmed per curiam, 675 So. 2d 945 (Fla. 4th DCA 1996) (school board which hired a marketing firm to conduct a survey, then reviewed and commented upon survey questionnaires designed by the firm but avoided taking possession of the documents, unlawfully refused a public records request for the documents); 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 polygraph chart used in police internal affairs investigation to circumvent Ch. 119, F.S.). And see AGO 98-54 (registration and disciplinary records stored in a computer database maintained by a national securities association which are used by a state agency in licensing and regulating securities dealers doing business in Florida are public records). Cf. B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17, 20 (Fla. 1st DCA 2008), review denied, 4 So. 3d 1220 (Fla. 2009) ("Florida's policy of guaranteeing that public records are open for inspection contemplates the possibility that public records may sometimes be found in private hands.").
d. Other statutory provisions
(1) Legislative appropriation
Section 11.45(3)(e), F.S., states that all records of a nongovernmental agency, corporation, or person with respect to the receipt and expenditure of an appropriation made by the Legislature to that entity "shall be public records and shall be treated in the same manner as other public records are under general law." Cf. AGO 96-43 (Astronauts Memorial Foundation, a nonprofit corporation, is subject to the Sunshine Law when performing those duties funded under the General Appropriations Act).
(2) Public funds used for dues
Section 119.01(3), F.S., provides that if an agency spends public funds in payment of dues or membership contributions to a private entity, then the private entity's financial, business and membership records pertaining to the public agency are public records and subject to the provisions of s. 119.07, F.S.
(3) State contracts
Section 287.058(1)(c), F.S., requires, with limited exceptions, that every procurement for contracted services by a state agency be evidenced by a written agreement containing a provision allowing unilateral cancellation by the agency for the contractor's refusal to allow public access to "all documents, papers, letters, or other material made or received by the contractor in conjunction with the contract, unless the records are exempt" from disclosure.
a. Public Records Act inapplicable to judicial records
Relying on separation of powers principles, the courts have consistently held that the judiciary is not an "agency" for purposes of Ch. 119, F.S. See, e.g., Times Publishing Company v. Ake, 660 So. 2d 255 (Fla. 1995) (the judiciary, as a coequal branch of government, is not an "agency" subject to supervision or control by another coequal branch of government) and Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). Cf. s. 119.0714(1), F.S., stating that "[n]othing in this chapter shall be construed to exempt from [s. 119.07(1), F.S.] a public record that was made a part of a court file and that is not specifically closed by order of court . . . ." (e.s.). And see Tampa Television, Inc. v. Dugger, 559 So. 2d 397 (Fla. 1st DCA 1990) (Legislature has recognized the distinction between documents sealed under court order and those not so sealed, and has provided for disclosure of the latter only).
However, the Florida Supreme Court has expressly recognized that "both civil and criminal proceedings in Florida are public events" and that it will "adhere to the well established common law right of access to court proceedings and records." Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 116 (Fla. 1988). See also Russell v. Miami Herald Publishing Co., 570 So. 2d 979, 982 (Fla. 2d DCA 1990), in which the court stated: "[W]e recognize that the press has a general right to access of judicial records."
Although the judiciary is not an "agency" for purposes of Ch. 119, F.S., there is a constitutional right of access to judicial records established by Art. I, s. 24, of the Florida Constitution. This provision states that the public has a right of access to records in the judicial branch of government, except for those records exempted in the Constitution, records exempted by law in effect on July 1, 1993, records exempted pursuant to court rules in effect on November 3, 1992 [the date of adoption of the constitutional amendment], and records exempted by law in the future in accordance with the procedures specified in s. 24(c), Fla. Const. See Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208, 209 (Fla. 1998), noting that under Art. I, s. 24, Fla. Const., "any person has the right to inspect court files unless those files are specifically exempted from public inspection."
b. Public access to judicial branch records, Fla. R. Jud. Admin. 2.420
(1) Scope of the rule
In accordance with the directive in Art. I, s. 24, Fla. Const., access to records of the judicial branch is governed by Florida Rule of Judicial Administration 2.420 (formerly 2.051), entitled "Public Access to Judicial Branch Records." The rule, initially adopted in 1992, has been amended several times, including a recent amendment in 2010 which seeks "to balance the public's constitutional right to access to court records with the courts' responsibility to protect from public access court records that are confidential." See In re Amendments to the Florida Rules of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, 31 So. 3d 756 (Fla. 2010).
According to the Florida Supreme Court, rule 2.420 is "intended to reflect the judiciary's responsibility to perform both an administrative function and an adjudicatory function." In re Amendments to the Florida Rules of Judicial Administration--Public Access to Judicial Records, 608 So. 2d 472 (Fla. 1992). In its administrative role, the judiciary is a governmental entity expending public funds and employing government personnel. Thus, "records generated while courts are acting in an administrative capacity should be subject to the same standards that govern similar records of other branches of government." Id. at 472-473. See also Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008, 1016 (Fla. 2003) (when an individual complains to a chief circuit judge about judicial misconduct involving sexual harassment or sexually inappropriate behavior by a judge, the records made or received by the chief judge "constitute 'judicial records' subject to public disclosure absent an applicable exemption").
"Records of the judicial branch" are defined to include "all records, regardless of physical form, characteristics, or means of transmission, made or received in connection with the transaction of official business by any judicial branch entity" and consist of "court records" and "administrative records." Fla. R. Jud. Admin. 2.420(b)(1).
The term "judicial branch" means "the judicial branch of government, which includes the state courts system, the clerk of court when acting as an arm of the court, The Florida Bar, the Florida Board of Bar Examiners, the Judicial Qualifications Commission, and all other entities established by or operating under the authority of the supreme court or the chief justice." Fla. R. Jud. Admin. 2.420(b)(2).
The term "confidential," as applied to information contained within a record of the judicial branch, means that such information is exempt from the public right of access under Art. I, s. 24(a), Fla. Const., and may be released only to the persons or organizations designated by law, statute, or court order. Fla. R. Jud. Admin. 2.420(b)(4). The term "exempt," as applied to information contained in a court file, means that such information is confidential. Id. Confidential information includes information that is confidential under the rule or under a court order entered pursuant to the rule; however, to the extent reasonably practicable, the restriction of access to confidential information shall be implemented in a manner that does not restrict access to any portion of the record that is not confidential. Id.
In order to clarify the non-parties entitled to receive notice of certain filings under the rule, the term "affected non-party" is defined to mean "any non-party identified by name in a court records that contains confidential information pertaining to that non-party." Fla. R. Jud. Admin. 2.420(b)(5).
The text of Fla. R. Jud. Admin. 2.420, is included as Appendix E to this manual.
(2) Confidential judicial records
In the absence of an exemption, judicial records are subject to disclosure. See Tedesco v. State, 807 So. 2d 804 (Fla. 4th DCA 2002), noting that the files in criminal cases are included within the definition of "judicial records" contained in Florida Rule of Judicial Administration 2.420(b), and that there is no exemption in the rule which would preclude release of the progress docket or the clerk's minutes from a criminal case. Id. And see Friend v. Friend, 866 So. 2d 116, 117 (Fla. 3d DCA 2004) (denial of access to records in dissolution of marriage case "may not be based solely upon the wishes of the parties to the litigation").
Rule 2.420(c) contains a list of confidential and exempt judicial branch records. Examples include trial and appellate court memoranda, complaints alleging misconduct against judges and other court personnel until probable cause is established, periodic evaluations implemented solely to assist judges in improving their performance, information (other than names and qualifications) about persons seeking to serve as unpaid volunteers unless made public by the court based upon a showing of materiality or good cause, and copies of arrest and search warrants until executed or until law enforcement determines that execution cannot be made. Fla. R. Jud. Admin. 2.240(c)(1) through (6).
Although rule 2.420(c)(1)-(6) lists specific confidential and exempt records, subdivision (c)(8) of the rule provides a general exemption from disclosure for records deemed to be confidential by court rule, Florida Statutes, prior Florida case law, and by rules of the Judicial Qualifications Commission. Thus, an executed search warrant could be withheld from disclosure pursuant to the statutory exemption for active criminal investigative material even though subdivision (c)(6) of the rule exempts only unexecuted search warrants. Florida Publishing Company v. State, 706 So. 2d 54 (Fla. 1st DCA 1998), review dismissed, 717 So. 2d 531 (Fla. 1998). Accord State v. Buenoano, 707 So. 2d 714, 718 (Fla. 1998) (documents that are exempt from public access under Ch. 119, F.S., are likewise exempt under rule 2.420). In addition, Fla. R. Jud. Admin. 2.420(c)(7) provides an exemption for "all records made confidential under the Florida and United States Constitutions and Florida and federal law."
Subdivision (c)(9) of rule 2.420 incorporates the holdings in Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988), and Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982) by "establishing that confidentiality [of court records] may be required to protect the rights of defendants, litigants, or third parties; to further the administration of justice; or to otherwise promote a compelling governmental interest." Commentary, In re Amendments to Rule of Judicial Administration 2.051.--Public Access to Judicial Records, 651 So. 2d 1185, 1191 (Fla. 1995).
The degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect these interests. Fla. R. Jud. Admin. 2.420(c)(9)(B). And see Smithwick v. Television 12 of Jacksonville, Inc., 730 So. 2d 795 (Fla. 1st DCA 1999) (trial court properly required defense counsel to return discovery documents once it realized that its initial order permitting removal of the documents from the court file had been entered in error because the requirements of rule 2.420 had not been met).
"The burden of proof . . . shall always be on the party seeking closure." Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988). "Our reasons for placing the burden on the party seeking closure and maintaining closure remains the same today as it did when we issued Barron in 1988; that is, the strong presumption of openness of court proceedings, and the fact that those challenging the closure order will generally have little or no knowledge of the specific grounds requiring closure." Amendments to the Florida Family Law Rules of Procedure, 853 So. 2d 303, 306 (Fla. 2003). Commentary, supra at 1191. See In re: Guardianship of Cosio, 841 So. 2d 693, 694 (Fla. 2d DCA 2003), in which the court stated that "[a]ccess to court records may be restricted to protect the interests of litigants only after a showing that the following three-prong test has been met: (1) the measure limiting or denying access (closure or sealing of records or both) is necessary to prevent a serious and imminent threat to the administration of justice; (2) no less restrictive alternative measures are available which would mitigate the danger; and (3) the measure being considered will in fact achieve the court's protective purpose."
In addition, rule 2.420(d)(1)(B) identifies 19 statutory exemptions that the Court refers to as "type 1" information. In re Amendments to the Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, supra. The clerk of court is required to designate and maintain as confidential "type 1" information and information listed under subdivision (c)(1) through (6). A person filing documents with the court is required to identify type I information by filing a "Notice of Confidential Information Within Court Filing," which the clerk must review and provide the filer with notice of the determination regarding the confidentiality of such information. Fla. R. Jud. Admin. 2.420(d)(2). Such information must be maintained as confidential for ten days, unless the filer has filed a motion to determine confidentiality pursuant to subdivision (d)(3). Id.
Information that may be confidential under subdivision (c)(7) or (c)(8), but is not automatically confidential, i.e., it does not fall within one of the statutory exemptions listed in subdivision (d)(1)(B), is referred to as "type II" information. It is the duty of the filer to determine the confidentiality of the information. Fla. R. Jud. Admin. 2.420(d)(3). If he or she believes in good faith the information to be confidential, the filer must request that the information be maintained as confidential by filing a "Motion to Determine Confidentiality of Court Records." Id. Any interested party may also request that "type II" information be maintained as confidential by filing a motion. Id. And see Rule 2.420(d)(4) requiring a filer to give a non-party notice of certain filings involving confidential information relating to the non-party.
(3) Requests to determine confidentiality of court records
(a) Trial court records in noncriminal cases
Requests to determine the confidentiality of "type II" information contained in trial court records in noncriminal cases must be made in the form of a written motion captioned "Motion to Determine Confidentiality of Court Records" and must identify the particular court records, or portions thereof, to be determined to be confidential, the basis for making such a determination, and the specific legal authority and any applicable legal standards for making such a determination. Fla. R. Jud. Admin. 2.420(e)(1). A motion must include a signed certification by the party making the request, or the party's attorney, that the motion is made in good faith and is supported by a sound factual and legal basis. Id. Information subject to the motion must be treated as confidential by the clerk pending the court's ruling on the motion; however, the case number, docket number or other number used by the clerk's office to identify the case file are not confidential. Id.
Unless specified in the motion that all parties agree to the relief requested, the court must hold a public hearing no later than 30 days after the filing of the motion, and may hold a hearing on an uncontested motion. Fla. R. Jud. Admin. 2.420(e)(2). Such hearing must be an open proceeding except that any person may request the court to conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c) of the rule. Id. The court may, in its discretion, require prior public notice of the hearing and must issue a ruling on the motion within 30 days of the hearing. Id. An order granting the motion in whole or in part must state with specificity the grounds for determining the confidentiality of the records. Fla. R. Jud. Admin. 2.420(e)(3). Except as provided by law or court rule, notice of any order granting the motion, in whole or in part, must be given to the public as provided by the rule. Such notice is not required, however, for orders determining court records confidential under subdivision (c)(7) [records made confidential under the state or federal constitution or state or federal law], or (c)(8) [records deemed confidential by court rule, prior case law or rules of the Judicial Qualifications Commission]. Fla. R. Jud. Admin. 2.420(e)(4).
A nonparty may file a written motion to vacate a sealing order. Fla. R. Jud. Admin. 2.420(e)(5). The court must hold a hearing on any contested motion and may hold a hearing on uncontested motions; such hearing must be an open proceeding except that a party may request the court to conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A) of the rule. Id.
Provision is made for the expedited consideration of and rulings on the motions as well as posting of orders. See Fla. R. Jud. Admin. 2.420(e)(2), (4), and (5). The rule also authorizes the imposition of sanctions in connection with bad-faith designations of confidential information or sealing motions or for the failure to comply with the requirements for filing confidential information. Fla. R. Jud. Admin. 2.420(e)(6).
(b) Appellate court records in noncriminal cases
Subdivision (g) of the rule addresses requests to determine the confidentiality of appellate court records in noncriminal cases and is modeled after subdivision (e). It includes provisions relating to notice, posting of orders, and sanctions; however, unlike subdivision (e), subdivision (g) does not provide for holding a hearing to seal such records. Records of a lower tribunal determined by that court to be confidential must be treated as confidential during any review process. Subdivision (g), however, does not preclude review by an appellate court under Florida Rule of Appellate Procedure 9.100(d) or affect the standard of review by an appellate court of an order by the lower court determining a record to be confidential.
(c) Trial and appellate court records in criminal cases
The procedures for a request to determine confidentiality in subdivisions (e) and (g), discussed supra, for noncriminal trial and appellate court records generally apply to requests to determine the confidentiality of court records in criminal cases. Subdivision (f)(3), however, establishes more restrictive provisions for records pertaining to a plea agreement, substantial assistance agreement, or that reveal the identity of a confidential informant or active criminal investigative information. Only certain procedures set forth in subdivisions (e) and (g) apply to subdivision (f)(3) records. See Fla. R. Jud. Admin. 2.420(f)(3)(B).
A subdivision (f)(3) motion must be based on a request for confidentiality under subdivisions (c)(9)(A)(i) (prevention of a serious or imminent threat to the administration of justice), (c)(9)(iii) (protection of a compelling governmental interest), (c)(9)(A)(v) (avoidance of a substantial injury to innocent third parties), or (c)(9)(A)(vii) (compliance with established public policy). The motion is treated as confidential and is indicated on the court docket by generic title only, pending a ruling on the motion or further order of the court. Fla. R. Jud. Admin. 2.420(f)(3). The information that is the subject of a subdivision (f)(3) motion must be treated as confidential by the clerk pending a ruling on the motion and a filing containing such information must be indicated on the docket in a manner that does not reveal the confidential nature of the information. Fla. R. Jud. Admin. 2.420(f)(3)(A). And see Fla. R. Jud. Admin. 2.420(f)(4) stating that subdivision (f) does not authorize the falsification of court records or progress dockets.
(4) Procedures for accessing judicial branch records under rule 2.420
"Requests and responses to requests for access to records under this rule shall be made in a reasonable manner." Fla. R. Jud. Admin. 2.420(i). Requests must be in writing and directed to the custodian. Id. See Morris Publishing Group, LLC v. State, 13 So. 3d 120 (Fla. 1st DCA 2009), in which the court denied a Florida newspaper's records request for an audio tape related to a shooting since the request was made orally instead of in writing as required by the rule. In a commentary to the decision incorporating the written request provision, the Court cautioned 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." Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
A public records request "shall provide sufficient specificity to enable the custodian to identify the requested records. The reason for the request is not required to be disclosed." Fla. R. Jud. Admin. 2.420(i)(1).
The custodian "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." Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
The custodian shall determine whether the requested records are subject to the rule, whether there are any exemptions, and the form in which the record is provided. Fla. R. Jud. Admin. 2.420(i)(2). If the request is denied, the custodian shall state in writing the basis for the denial. Id.
(5) Review of denial of access to administrative records
Expedited review of denials of access to administrative records of the judicial branch shall be provided through an action for mandamus, or other appropriate relief. Fla. R. Jud. Admin. 2.420(h). Cf. Mathis v. State, 722 So. 2d 235, 236 (Fla. 2d DCA 1998) (petition for writ of mandamus "is the proper vehicle to seek review of the denial of access to judicial records"). Where a judge who has denied a request for access to records is the custodian, the action shall be filed in the appellate court having appellate jurisdiction to review the decisions of the judge denying access. Fla. R. Jud. Admin. 2.420(h)(1). Upon order issued by the appellate court, the judge denying access to records shall file a sealed copy of the requested records with the appellate court. Id. All other actions shall be filed in the circuit court where the denial of access occurred. Fla. R. Jud. Admin. 2.420(h)(2).
c. Electronic judicial records
The Florida Supreme Court, in Administrative Order of the Supreme Court 09-30 (http://www.floridasupremecourt.org/clerk/adminorders/2009/AOSC09-30.pdf), adopted statewide standards for electronic access to the courts. Recognizing that "the transition of Florida’s courts from paper-based information management to systems that rely primarily on digital records represents a fundamental change in the internal operations of the courts," the Court stated that "care must be taken to ensure that this transformation is accomplished in a deliberate and responsible manner" as "'these issues are not merely technical but are central to the future functioning of the courts and to relations between citizens and their government.'" Id., quoting In Re: Implementation of Report and Recommendations of the Committee on Privacy and Court Records, 06-20 (Fla. June 30, 2006).
Administrative Order 09-30 provides for the establishment of a single statewide Internet portal for electronic access to and transmission of court records to and from all Florida courts. Section 4.1.18 provides that public access to electronically filed documents "must be provided in accordance with the judicial branch policy on access to court records" and comply with the requirements of the Americans with Disabilities Act, the federal law known as Section 508 of the Rehabilitation Act of 1973, as amended, which lists standards necessary to make electronic and information technology accessible to persons with disabilities, and the Florida Accessible Electronic and Information Technology Act, ss. 282.601-282.606, F.S. Section 4.1.15 requires a filer who electronically files a document containing exempt information to indicate that the document contains confidential information by placing the notation “confidential” in the comments section. Documents that are exempt or claimed to be exempt from public access shall be processed pursuant to Rule 2.420. Id.
d. Discovery material
The Florida Supreme Court has ruled that there is no First Amendment right of access to unfiled discovery materials. Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987) (discovery in criminal proceedings); and Miami Herald Publishing Company v. Gridley, 510 So. 2d 884 (Fla. 1987), cert. denied, 108 S.Ct. 1224 (1988) (civil discovery). But see SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796, 798 (Fla. 4th DCA 2002), noting that even though there is no constitutional right of access to prefiled discovery materials, "it does not necessarily follow that there is a constitutional right to prevent access to discovery." (emphasis supplied by the court).
Even though unfiled discovery material is not accessible under the First Amendment, it may be open to inspection under Ch. 119, F.S., if the document is a public record which is otherwise subject to disclosure under that law. See, e.g., Tribune Company v. Public Records, 493 So. 2d 480, 485 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987), in which the court reversed a trial judge's ruling limiting inspection of police records produced in discovery to those materials which were made part of an open court file because "this conflicts with the express provisions of the Public Records Act." Cf. Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988), in which the Court noted that where pretrial discovery material developed for the prosecution of a criminal case had reached the status of a public record under Ch. 119, F.S., the material was subject to public inspection as required by that statute in the absence of a court order finding that release of the material would jeopardize the defendant's right to a fair trial. See also Rameses, Inc. v. Demings, 29 So. 3d 418 (Fla. 5th DCA 2010) (government not precluded from asserting applicable statutory exemptions to public records that have been disclosed during discovery to a criminal defendant). And see Post-Newsweek Stations, Florida, Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (public's statutory right of access to pretrial discovery information in a criminal case must be balanced against a nonparty's constitutional right to privacy).
e. Florida Bar
"Given that The Florida Bar is 'an official arm of the court,' see R. Regulating Fla. Bar, Introduction, [the Florida Supreme] Court has previously rejected the Legislature's power to regulate which Florida Bar files were subject to public records law . . . ." The Florida Bar v. Committee, 916 So. 2d 741, 745 (Fla. 2005). See also The Florida Bar, In re Advisory Opinion Concerning the Applicability of Ch. 119, Florida Statutes, 398 So. 2d 446, 448 (Fla. 1981) (Ch. 119, F.S., does not apply to unauthorized practice of law investigative files maintained by the Bar). Cf. Florida Board of Bar Examiners Re: Amendments to the Rules of the Supreme Court of Florida Relating to Admissions to the Bar, 676 So. 2d 372 (Fla. 1996) (no merit to argument that under Art. I, s. 24, Fla. Const., all records in possession of Board of Bar Examiners should be open for inspection by applicant and the public).
f. Judicial Qualifications Commission and judicial nominating commissions
Proceedings by or before the Judicial Qualifications Commission are confidential until formal charges against a justice or judge are filed by the Commission with the clerk of the Florida Supreme Court; upon a finding of probable cause and the filing of formal charges with the clerk, the charges and all further proceedings before the Commission are public. See Art. V, s. 12(a)(4), Fla. Const; Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008 (Fla. 2003).
With regard to judicial nominating commissions, Art. V, s. 11(d), Fla. Const., provides that "[e]xcept for deliberations of the . . . commissions, the proceedings of the commissions and their records shall be open to the public." See Inf. Op. to Frost, November 4, 1987, concluding that correspondence between a member of a judicial nominating commission and persons wishing to obtain an application for a vacant seat on a District Court of Appeal is a public record subject to disclosure. Accord Inf. Op. to Russell, August 2, 1991 (documents made or received by a judicial nominating commission in carrying out its duties are open to inspection).
However, records pertaining to voting, including vote sheets, ballots, and ballot tally sheets "are clearly part of the deliberation process" and, therefore, are not subject to public disclosure. The Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185, 192 (Fla. 1st DCA 2002). In addition, personal notes of individual commission members made during the deliberation process are not subject to disclosure because they are mere "precursors" of governmental records, and thus fall outside the definition of "public record." Id., citing to Shevin v. Byron, Harless, Schaffer, Reid and Associates Inc., 379 So. 2d 633 (Fla. 1980).
g. Jury records
(1) Grand jury
Proceedings before a grand jury are secret; therefore, records prepared for use of the grand jury during the regular performance of its duties are not subject to s. 119.07(1), F.S. See Buchanan v. Miami Herald Publishing Company, 206 So. 2d 465 (Fla. 3d DCA 1968), modified, 230 So. 2d 9 (Fla. 1969) (grand jury proceedings are "absolutely privileged"); and In re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988), affirming a trial court order barring public disclosure of motions filed in accordance with s. 905.28, F.S., to repress or expunge stemming from a grand jury presentment not accompanied by a true bill or indictment. See also AGO 90-48 (as an integral part of the grand jury proceeding to secure witnesses, grand jury subpoenas would fall under the "absolute privilege" of the grand jury and not be subject to disclosure under Ch. 119, F.S.).
Thus, a letter written by a city official to the grand jury is not subject to public inspection. AGO 73-177. Nor are the names and addresses of the members of the grand jury subject to public disclosure under s. 119.07(1), F.S., because this information is privileged as part of the grand jury proceedings. Inf. Op. to Alexander, September 8, 1995. However, the clerk of court is not authorized to redact the name of a grand jury foreperson or the acting foreperson from an indictment after it has been made public. AGO 99-09.
It is important to emphasize, however, that the exemption from disclosure for grand jury records does not apply to those records which were prepared by a public agency independent of a grand jury investigation. Thus, public records which are made or received by an agency in the performance of its official duties do not become confidential simply because they are subsequently viewed by the grand jury as part of its investigation. As the court stated in In re Grand Jury Investigation, Spring Term 1988, 543 So. 2d 757, 759 (Fla. 2d DCA 1989):
Nor can we allow the grand jury to become a sanctuary for records which are otherwise accessible to the public. The mere fact that documents have been presented to a grand jury does not, in and of itself, cloak them in a permanent state of secrecy.
Accordingly, a state attorney and sheriff must provide public access to investigative records regarding a judge that were compiled independently of and prior to a grand jury's investigation of the judge. In re Grand Jury Investigation, Spring Term 1988, supra. See also In re Subpoena To Testify Before Grand Jury, 864 F.2d 1559 (11th Cir. 1989) (trial court's authority to protect grand jury process enabled court to prevent disclosure of materials prepared for grand jury proceedings; however, court not empowered to prohibit disclosure of documents assembled independent of grand jury proceedings).
There are a number of statutes which relate to secrecy of grand jury proceedings. See ss. 905.24-905.28, F.S., and s. 905.395, F.S. (statewide grand jury). But see Butterworth v. Smith, 110 S.Ct. 1376 (1990) (provisions of s. 905.27, F.S., which prohibit "a grand juror . . . reporter . . . or any other person" appearing before a grand jury from ever disclosing testimony before the grand jury except pursuant to a court order were unconstitutional insofar as they prohibit a grand jury witness from disclosing his own testimony after the term of the grand jury has ended).
(2) Trial jury
In Kever v. Gilliam, 886 So. 2d 263 (Fla. 1st DCA 2004), the appellate court ruled that the clerk of court was required to comply with appellant's public records request for names and addresses of trial court jurors empanelled in his trial. Accord AGO 05-61 (statute requiring Department of Highway Safety and Motor Vehicles to provide driver license information to courts for purposes of establishing jury selection lists does not operate to exempt from public disclosure jurors' names and addresses appearing on a jury list compiled by the clerk of court). Cf. Sarasota Herald-Tribune v. State, 916 So. 2d 904, 909 (Fla. 2d DCA 2005) (while "[t]here are unquestionably times when it might be necessary for a trial judge to impose media restrictions on the publication of juror information, . . ." trial court order prohibiting news media from publishing names and addresses of prospective or seated jurors in the high profile murder trial constituted a prior restraint on speech).
h. Sunshine in Litigation Act
The Sunshine in Litigation Act, s. 69.081, F.S., provides, with limited exceptions, that no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard. See Jones v. Goodyear Tire & Rubber Company, 871 So. 2d 899 (Fla. 3d DCA 2003), review denied, 886 So. 2d 227 (Fla. 2004) (jury finding in favor of mechanic who was injured by an exploding tire established that the tire was a "public hazard" for purposes of the Sunshine in Litigation Act; thus, reversal of pretrial confidentiality order was required). See also State v. American Tobacco Company, No. CL 95-1466-AH (Fla. 15th Cir. Ct. July 28, 1997) (Sunshine in Litigation Act is constitutional).
Additionally, s. 69.081(8), F.S., provides 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. Settlement records must be maintained in compliance with Ch. 119, F.S. 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." However, this subsection does not apply to trade secrets protected under Ch. 688, F.S., proprietary confidential business information, or other information that is confidential under state or federal law. Section 69.081(8), F.S.
The Public Records Act does not apply to the legislative branch. Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992) (definition of "agency" in the Public Records Act does not include the Legislature or its members). There is, however, a constitutional right of access to legislative records provided in Art. I, s. 24, Fla. Const., which provides that "[e]very person has the right to inspect or copy any public record made or received in connection with the official business of any public body . . . ." This right of access specifically includes the legislative branch. Article I, s. 24(a), Fla. Const. The Legislature, however, may provide by general law for the exemption of records provided that such law must state with specificity the public necessity justifying the exemption and be no broader than necessary to accomplish the stated purpose of the law. Article I, s. 24(c), Fla. Const. Each house of the Legislature is authorized to adopt rules governing the enforcement of this section in relation to records of the legislative branch. Id. Any statutes providing limitations on access which were in effect on July 1, 1993, continue in force and apply to records of the legislative branch until repealed. Article I, s. 24(d), Fla. Const.
Section 11.0431(2), F.S., lists legislative records which are exempt from inspection and copying. The text of s. 11.0431, F.S., is set forth in Appendix F. And see s. 11.26(1), F.S. (legislative employees are forbidden from revealing to anyone outside the area of their direct responsibility the contents or nature of any request for services made by any member of the Legislature except with the consent of the legislator making the request); and s. 15.07, F.S. (the journal of the executive session of the Senate shall be kept free from inspection or disclosure except upon order of the Senate itself or some court of competent jurisdiction). Cf. Media General Operation, Inc. v. Feeney, 849 So. 2d 3, 6 (Fla. 1st DCA 2003), in which the court rejected the argument that records containing telephone numbers for calls made by legislative employees in connection with official business could be redacted because disclosure of the numbers could result in "unreasonable consequences to the persons called"; however, under the circumstances of the case, employees could redact those portions of the records reflecting personal calls.
5. Governor and Cabinet
The Governor and Cabinet have duties which derive from both the Constitution and the Legislature. Because of separation of powers principles, the legislatively created Public Records Act does not apply to records gathered in the course of carrying out a specific duty or function which has been assigned to the Governor and Cabinet by the Constitution rather than by statute. See AGO 86-50, stating that materials collected by the Parole and Probation Commission pursuant to direction of the Governor and Cabinet for pardons or other forms of clemency authorized by Art IV, s. 8(a), Fla. Const., are not subject to Ch. 119, F.S.
The Public Records Act, however, does apply to the Governor and Cabinet when sitting in their capacity as a board created by the Legislature or whose powers are prescribed by the Legislature, such as the Board of Trustees of the Internal Improvement Trust Fund. In such cases, the Governor and Cabinet are not exercising powers derived from the Constitution but are subject to the "dominion and control" of the Legislature.
In addition, Art. I, s. 24, Fla. Const., establishes a constitutional right of access by providing that "every person" shall have a right of access to public records of the executive branch and of "each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution" except as otherwise provided in this section or specifically made confidential in the Constitution.
6. Commissions created by the Constitution
A board or commission created by the Constitution is not subject to Ch. 119, F.S., inspection requirements when such board or commission is carrying out its constitutionally prescribed duties. See AGO 86-50 (Ch. 119, F.S., is not applicable to materials gathered by the Parole and Probation Commission regarding an application for clemency since the clemency power is exclusively constitutional). Cf. Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (judicial nominating commissions are not subject to s. 286.011, F.S.), and AGO 77-65 (Ch. 120, F.S., is inapplicable to Constitution Revision Commission established by Art. XI, s. 2, Fla. Const., because the commission is authorized in that section to adopt its own rules of procedure).
Accordingly, the Florida Supreme Court has ruled that the Public Records Act does not apply to the clemency investigative files and reports produced by the Parole Commission on behalf of the Governor and Cabinet relating to the granting of clemency. Release of such materials is governed by the Rules of Executive Clemency adopted by the Governor and Cabinet, sitting as the clemency board. Parole Commission v. Lockett, 620 So. 2d 153 (Fla. 1993). Accord Jennings v. State, 626 So. 2d 1324 (Fla. 1993).
There is, however, a difference between the status of a commission created by the Constitution which exercises constitutional duties and a commission whose creation is merely authorized by the Constitution and whose duties are established by law. While the former is not subject to the Public Records Act, it has been held that a commission performing duties assigned to it by the Legislature must comply with the open government laws. See Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980), holding that the Parole Commission, which Art. IV, s. 8(c), Fla. Const., recognizes may be created by law, is subject to s. 286.011, F.S., in carrying out its statutory duties and responsibilities relating to parole.
Moreover, Art. I, s. 24, Fla. Const., provides a constitutional right of access for public records of each branch of government, and "each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution." The only exceptions to the right of access are those records exempted pursuant to s. 24 or specifically made confidential by the Constitution. Article I, s. 24(a), Fla. Const. See King v. State, 840 So. 2d 1047 (Fla. 2003) (clemency records exempt pursuant to s. 14.28, F.S., providing that records made or received by any state entity pursuant to a Board of Executive Clemency investigation are not subject to public disclosure).