Government-in-the-Sunshine Manual
Chapter updated: 01/14/2011

To what extent does federal law preempt state law regarding public inspection of records?

1. Under what circumstances will a federal statute operate to make agency records confidential?

The general rule is that records which would otherwise be public under state law are unavailable for public inspection only when there is an absolute conflict between federal and state law relating to confidentiality of records. If a federal statute requires particular records to be closed and the state is clearly subject to the provisions of such statute, then pursuant to the Supremacy Clause of the United States Constitution, Art. VI, U.S. Const., the state must keep the records confidential. State ex rel. Cummer v. Pace, 159 So. 679 (Fla. 1935); AGOs 90-102, 85-03, 81-101, 80-31, 74-372, and 73-278. See also Wallace v. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997) (exemptions from disclosure set forth in federal Freedom of Information Act apply to federal agencies but not to state agencies). Compare Florida Department of Education v. NYT Management Services, Inc., 895 So. 2d 1151 (Fla. 1st DCA 2005) (federal law prohibits public disclosure of social security numbers in state teacher certification database).

Thus, tenant records of a public housing authority are not exempt, by reason of the Federal Privacy Act, from disclosure otherwise required by the Florida Public Records Act. Housing Authority of the City of Daytona Beach v. Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994). Rejecting the housing authority's argument that it was an agency of the federal government and thus subject to the Federal Privacy Act, the court concluded that while the authority received federal funds and was subject to some oversight, the federal government was not involved in the day-to-day operations of the authority and the records produced and submitted to the federal government were simply "monitoring devices." See now s. 119.071(5)(f), F.S., providing confidentiality for medical history records and certain insurance information provided by applicants for or participants in government housing assistance programs. Cf. Florida Department of Children and Family Services v. Florida Statewide Advocacy Council, 884 So. 2d 1162, 1164 (Fla. 2d DCA 2004) (rejecting state agency's contention that federal regulations adopted pursuant to the Health Insurance Portability and Accountability Act of 1996 [HIPAA] prohibited a trial judge from issuing an "access warrant" requiring the agency to provide client records to the advocacy council; the appellate court found that the federal regulations expressly authorized such disclosures if made to another agency pursuant to court order).

Similarly, since federal law did not clearly require that documents received by a state agency in the course of settlement negotiations to resolve a federal lawsuit be kept confidential, such documents were found to be open to inspection under Ch. 119, F.S. Florida Sugar Cane League, Inc. v. Florida Department of Environmental Regulation, No. 91-2108 (Fla. 2d Cir. Ct. September 20, 1991), per curiam affirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992). Accord Lakeland Ledger Publishing Corporation v. School Board of Polk County, No. GC-G-91-3803 (Fla. 10th Cir. Ct. November 21, 1991) (map prepared by U.S. Justice Department concerning desegregation of Lakeland schools and given to school district employees was a public record and open to inspection). Cf. State v. Buenoano, 707 So. 2d 714 (Fla. 1998) (materials furnished to state attorney by federal government were not subject to public inspection even though erroneously furnished to defendant in criminal case because Florida law provides an exemption from disclosure for criminal investigative information received from a non-Florida criminal justice agency on a confidential or restricted basis); Morris v. Whitehead, 588 So. 2d 1023, 1024 (Fla. 2d DCA 1991) (upholding nondisclosure of confidential records received by housing authority from the federal government pursuant to agreement authorized by state housing law); and City of Miami v. Metropolitan Dade County, 745 F. Supp. 683 (S.D. Fla. 1990) (while the actions of the State of Florida in releasing documents are subject to the mandates of Ch. 119, F.S., the actions of the federal government in a criminal prosecution undertaken by the Office of the United States Attorney are not).

2. To what extent is copyrighted material in possession of an agency subject to public inspection and copying?

a. Copyrights held by agencies

In the absence of statutory authorization, a public official is not empowered to obtain a copyright for material produced by his or her office in connection with the transaction of official business. Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. 2d DCA 2004), review denied, 902 So. 2d 791 (Fla. 2005), cert. denied, 126 S.Ct. 746 (2005) (property appraiser not authorized to assert copyright protection for the Geographic Information System maps created by his office). Accord AGOs 03-42, 88-23, and 86-94. Cf. AGO 00-13 (in the absence of express statutory authority, state agency not authorized to secure a trademark).

Section 119.084(2), F.S., however, specifically authorizes agencies to hold a copyright for data processing software created by the agency. The agency may sell the copyrighted software to public or private entities or may establish a license fee for its use. See also s. 24.105(10), F.S., authorizing the Department of the Lottery to hold patents, copyrights, trademarks and service marks; and see ss. 286.021 and 286.031, F.S., prescribing duties of the Department of State with respect to authorized copyrights obtained by state agencies.

b. Copyrighted material obtained by agencies

The federal copyright law vests in the owner of a copyright, subject to certain limitations, the exclusive right to do or to authorize, among other things, the reproduction of the copyrighted work and the distribution of the copyrighted work to the public by sale or other transfer of ownership. See AGO 97-84, citing to pertinent federal law and interpretive cases. However, the Attorney General's Office has concluded that the fact that material received by a state agency may be copyrighted does not preclude the material from constituting a public record. For example, AGO 90-102 advised that copyrighted data processing software which was not specifically designed or created for the county but was being used by the county in its official capacity for official county business fell within the definition of "public record."

Moreover, in State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377, 1382-1383 (Fla. 1st DCA 1994), the court rejected a state agency's argument that a transcript of a hearing that had been copyrighted by the court reporter and filed with the agency should not be copied without the copyright holder's permission. The court stated that the agency was under a statutory obligation to preserve all testimony in the proceeding and make a transcript available in accordance with the fees set forth in Ch. 119, F.S. And see AGO 75-304 (agency may not enter into agreement with court reporter to refer all requests for copies of agency proceedings to court reporter who originally transcribed proceedings; agency must provide copies of transcripts in accordance with charges set forth in Public Records Act). Cf. AGO 95-37 (fee prescribed in s. 119.07, F.S., applies to the duplication of copyrighted materials contained in a county law library when such reproduction is permissible under the federal copyright law).

The federal copyright law, when read together with Ch. 119, F.S., authorizes and requires the custodian of records of the Department of State to make maintenance manuals supplied to that agency pursuant to law, available for examination and inspection purposes. AGO 03-26. "With regard to reproducing, copying, and distributing copies of these maintenance manuals which are protected under the federal copyright law, state law must yield to the federal law on the subject." Id. The custodian should advise individuals seeking to copy such records of the limitations of the federal copyright law and the consequences of violating its provisions; such notice may take the form of a posted notice that the making of a copy may be subject to the copyright law. AGOs 03-26 and 97-84. However, it is advisable for the custodian to refrain from copying such records himself or herself. AGO 03-26. But see State v. Allen, 14 F.L.W. Supp. 172a (Fla. 7th Cir. Ct. November 2, 2006) (defendant entitled to inspect and copy copyrighted operating manual for the radar unit and speedometer used by the police under Art. I, s. 24, Fla. Const.; if police department declined to make copies, defendant or his representative must be allowed reasonable access to the documents and a copy machine to make copies).

Moreover, as noted by the court in State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, supra, once a transcript of an administrative hearing conducted by or on behalf of an agency has been filed with the agency, the transcript becomes a public record, without regard to who ordered the transcription or bore its expense. The agency which is under a statutory obligation to preserve all testimony (see now s. 120.57[1][g], F.S.) can charge neither the parties nor the public more than the charges authorized by Ch. 119, F.S., regardless of the fact that the court reporter may have copyrighted the transcript.

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