249 Similarly, a policy requiring a physical address for mailing copies of requested public records or the 49 personal appearance of the requestor would not appear to relate to the custodian’s duty to protect public records from alteration or destruction, but to impose additional constraints on the requestor.
250 Any local enactment or policy which purports to dictate additional conditions or restrictions on access to public records is of doubtful validity since the legislative scheme of the Public Records Act has preempted any local regulation of this subject.
251 A policy of a governmental agency cannot exempt it from the application of Ch. 119, F.S.252.
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 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.253 As one court has stated, “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.
”254 3. Must an individual show a “legitimate interest” or “noncommercial interest” in public records before being allowed to inspect or copy same?No. The requestor is not required to explain the purpose or reason for a public records request.“The motivation of the person seeking the records does not impact the person’s right to see them under the Public Records Act.”255 Thus, an agency is not authorized to impose conditions or limit access to public records based on a suspicion that the request may be for an improper purpose.256 However, Florida Statutes impose criminal penalties for the unauthorized use of personal 50 identification information for fraudulent or harassment purposes and for the criminal use of a public record or public records information.257 Similarly, “the 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.
”258 4. What agency employees are responsible for responding to public records requests? Custodian of public records 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.”259 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.”260 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. 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.”261 In order to have custody, one must have supervision and control over the document or have legal responsibility for its care, keeping or guardianship.262 b. Duty to acknowledge requests promptly and to respond in good faith 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.263 A good faith response includes making reasonable efforts to determine from 51 other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed.264 5.
Is an agency required to provide copies of public records if asked, or may the agency allow inspection only?“It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person.” (e.s.)265 In addition, s. 119.07(1)(a), F.S., provides that “[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so . . . .” Finally, s. 119.07(4), F.S., requires the custodian to “furnish a copy or a certified copy of the record upon payment of the fee prescribed by law . . ..
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.267 Thus, in Barfield v. Florida Department of Law Enforcement,268 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 52 to demand the return of the records from the private entity so they could be copied for the requestor.269 7.
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.270 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.271 8.
May an agency refuse to allow inspection or copying of public records on the grounds that the request is “overbroad” or lacks specificity? No. In Lorei v. Smith, 272 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 records 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.273 As one court stated, 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 53 and not the requestor to follow up on any requests for public records.274 9.
May an agency require that a request to inspect or copy public records be made in writing? No. Chapter 119,S., does not authorize an agency to require that requests for records be in person or in writing.275 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.276 10.
May an agency require that the requestor disclose his or her name or 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.277 Accordingly, an agency may not require an anonymous requestor to disclose his or her name, address, telephone number, or similar identifying information to the custodian prior to inspecting or receiving copies of public records.278 11.
Is an agency required to answer questions about its public records or create a new record in response to a request for information? 54 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.279 However, a custodian is not required to give out information from the records of his or her office.280 For example, 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.281 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.282 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.283 12.
Is an agency required to provide public records in the medium or format requested or may the agency select the medium or format for production? Records available in more than one medium An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium, and the agency may charge a fee which shall be in accordance with Ch. 119, F.S.284 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.285 b. Reformatting records 55 As stated in Seigle v. Barry, 286 the intent of Ch. 119, F.S., is “to make available to the public information which is a matter of public record, in some meaningful form, not necessarily that which the applicant prefers.” Accordingly, an agency is not ordinarily required to reformat its records and provide them in a particular form as demanded by the requestor.287 Thus, the Attorney General’s Office concluded that a school district was not required to furnish electronic public records in an electronic format other than the standard format routinely maintained by the district.288 Despite the general rule, agency may be required to provide access to electronic records through a specially designed program, prepared by or at the expense of the requestor, where: 1) available programs do not access all of the public records stored in the computer’s data banks; or 2) the information in the computer accessible by the use of available programs would include exempt information necessitating a special program to delete such exempt items; or 3) for any reason the form in which the information is proffered does not fairly and meaningfully represent the records; or 4) the court determines other exceptional circumstances exist warranting this special remedy.289 For the purpose of satisfying a public records request, the fee to be charged by an agency if it elects to provide a copy of a public record in a medium that is not routinely used by the agency, or if it elects to compile information that is not routinely developed or maintained by the agency or that requires a substantial amount of manipulation or programming, must be in accordance with s. 119.07(4), F.S. (authorizing imposition of a special service charge if extensive information technology resources or labor are required).290 56 c. Remote access Section 119.07(2)(a), F.S., states that “[a]s an additional means of inspecting or copying public records,” a custodian may provide access to public records by remote electronic means, provided exempt or confidential information is not disclosed.291 Thus, an agency is authorized, but not required, to permit remote electronic access to public records. Section 119.07(2)(b), F.S., requires the custodian to provide safeguards to protect the contents of the public records from unauthorized electronic access or alteration and to prevent the disclosure or modification of those portions of the records which are exempt from disclosure. Unless otherwise required by law, the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. However, fees for remote electronic access provided to the general public must be in accordance with the provisions of s. 119.07, F.S.292 13.
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.293 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.”294 A municipal policy which provides for an automatic delay in the production of public records is impermissible.2Thus, 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.296 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.297 a. 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.298 For example, an appellate court ordered a trial judge to hold a hearing on a public records complaint challenging a state attorney’s policy requiring that all public records requests to inspect or copy case files be directed to the state attorney’s main office. The appellate court said that the trial judge must determine whether the policy “resulted in an unjustified delay that amounted to an unlawful refusal to comply with chapter 119,” when applied to a requestor who asked to see the records at a branch office where the requestor lives and where the records were located.299 b. 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.300 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.301 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.302 58 c. Standing requests for production of records an agency may produce or receive in the future The 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 Act appears to require that an agency respond to a so-called “standing” request for production of public records that it may receive or produce in the future.303 14. May an agency enter into a confidentiality agreement or refuse to allow public records to be inspected or copied if requested to do so by the maker or sender of the records?An agency “cannot bargain away its Public Records Act duties with promises of confidentiality in settlement agreements.”304 For example, in National Collegiate Athletic Association v. Associated Press, 305 the court held 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.”306 Moreover, to allow the maker or sender of records to dictate the circumstances under which the records 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.307 59 Therefore, unless the Legislature has expressly authorized the maker of records received by an agency to keep the material confidential, the wishes of the sender or the agency in this regard cannot supersede the requirements of Ch. 119, F.S.308 15.
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.309 However, in City of St. Petersburg v. Romine ex rel. Dillinger, 310 the court cautioned 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.” Thus, a 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.311 16.
What options are available to an agency if a record contains both exempt and nonexempt information? 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.312 17.
May an agency refuse to allow inspection of public records because the agency believes disclosure could violate privacy rights? 60 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.”313 E.
WHAT FEES MAY LAWFULLY BE IMPOSED FOR INSPECTING AND COPYING PUBLIC RECORDS? When may an agency charge a fee for the mere inspection of public records? Providing access to public records is a statutory duty imposed by the Legislature upon all record custodians and should not be considered a profit-making or revenue-generating operation.314 Thus, public information must be open for inspection without charge unless otherwise expressly provided by law.315 Section 119.07(4)(d), F.S., however, authorizes the imposition of a special service charge when the nature or volume of public records to be inspected is such as to require extensive use of information technology resources, or extensive clerical or supervisory assistance, or both. The charge must be reasonable and based on the labor or computer costs actually incurred by the agency. The special service charge applies to requests for both inspection and copies of public records when extensive clerical assistance is required or extensive use of information technology resources is required.316 For example, if the volume of records to be inspected requires an agency to use extensive clerical labor to redact confidential material from the records prior to their inspection, s. 119.07(4) (d), F.S., authorizes the agency to impose a reasonable charge for the actual labor costs for the clerical personnel who are required to perform this task. Similarly, if the agency is required to make copies of the public records in order to redact confidential material prior to inspection, the agency may charge the actual cost of the extensive labor required to copy the records. However, the agency may not also charge the statutory fee of 61 15 cents per page for the copies, unless the requestor chooses to obtain copies of records, in addition to inspecting them. In addition, an agency may adopt a policy imposing a reasonable special service charge based on the actual labor cost for clerical personnel who are required, due to the nature or volume of a public records request, to safeguard such records from loss or destruction during their inspection.317 In doing so, however, the county’s policy should reflect no more than the actual cost of the personnel’s time and be sensitive to accommodating the request in such a way as to ensure unfettered access while safeguarding the records.318 Moreover, it would be difficult to justify the imposition of a fee for extensive clerical or supervisory assistance if the personnel providing such assistance were simultaneously performing regular duties.319 2. What are the statutory fees to obtain copies of public records? If no fee is prescribed elsewhere in the statutes, s. 119.07(4)(a)1., F.S., authorizes the custodian to charge a fee of up to 15 cents per one-sided copy for copies that are 14 inches by 8 1 / 2 inches or less. An agency may charge no more than an additional 5 cents for each two-sided duplicated copy.320 A charge of up to $1.00 per copy may be assessed for a certified copy of a public record.321 For other copies, the charge is limited to the actual cost of duplication of the record.322 The phrase “actual cost of duplication” is defined to mean “the cost of the material and supplies used to duplicate the public record, but does not include the labor cost and overhead cost associated with such duplication.”323 An exception, however, exists for copies of county maps or aerial photographs supplied by county constitutional officers which may include a reasonable charge for the labor and overhead associated with their duplication.324 62 3. When may an agency charge a special service charge for extensive use of clerical or supervisory labor or extensive information technology resources? Section 119.07(4)(d), F.S., states that if the nature or volume of public records to be inspected or copied requires the extensive use of information technology resources or extensive clerical or supervisory assistance, or both, the agency may charge a reasonable service charge based on the cost actually incurred by the agency for such extensive use of information technology resources or personnel.When warranted, the special service charge applies to requests for both inspection and copies of public records.325 Thus, while an agency may not refuse to allow inspection or copying of public records based upon the number of records requested or the span of time which is covered by the public records request, if extensive use of information technology resources or clerical or supervisory personnel is needed in order to produce the requested records, the agency may impose a reasonable special service charge that reflects the actual costs incurred for the extensive use of such resources or personnel.326 a.
What does the term “extensive” mean? Section 119.07(4)(d), F.S., does not contain a definition of the term “extensive.” In 1991, a divided First District Court of Appeal upheld a hearing officer’s order rejecting an inmate challenge to a Department of Corrections rule that defined “extensive” for purposes of the special service charge to mean that it would take more than 15 minutes to locate, review for confidential information, copy and refile the requested material.327 Moreover, the statute mandates that the special service charge be “reasonable.” For example, in one case a court reviewed a challenge to a service charge that exceeded $4,000 for staff time involved in responding to a public records request, and said that an “excessive charge could well serve to inhibit the pursuit of rights conferred by the Public Records Act.”328 Accordingly, the court required the agency to “explain in more detail the reason 63 for the magnitude of the assessment.”329 b. What does the term “information technology resources” mean? “Information technology resources” is defined as data processing hardware and software and services, communications, supplies, personnel, facility resources, maintenance and training.330 The term does not include a videotape or a machine to view a videotape.331 The fact that the request involves the use of information technology resources is not sufficient to incur the imposition of the special service charge; rather, extensive use of such resources is required.332 c.
May an agency charge for the cost to review records for exempt information? An agency is not ordinarily authorized to charge for the cost to review records for statutorily exempt material.333 However, the special service charge may be imposed for this work if the volume of records and the number of potential exemptions make review and redaction of the records a time-consuming task.334 d.
How should the labor cost be calculated? In Board of County Commissioners of Highlands County v. Colby,335 the court concluded that an agency’s charge for labor in responding to an extensive public records request could include both the salary and benefits of the personnel providing the service.336 Similarly, a court concluded that the agency could charge only a clerical rate for the time spent making copies, even if due to staff shortages, a more highly paid person did the work.337 The term “supervisory assistance” has not been widely interpreted. In one case, the circuit judge approved a rate based on an agency attorney’s salary when the attorney was required to review exempt material in a voluminous criminal case file. The court noted that “only an attorney or paralegal” could responsibly perform this type of review because of the “complexity of the 64 records reviewed, the various public record exemptions and possible prohibitions, and the necessary discretionary decisions to be made with respect to potential exemptions . . . .”338 e.
May an agency require a reasonable deposit or advance payment or must the agency produce the records and then ask for payment? Section 119.07(4)(a)1., F.S., states that the custodian of public records shall furnish a copy or a certified copy of the record “upon payment of the fee prescribed by law. . . .”339 In Malone v. City of Satellite Beach, 340 the court noted that a city’s requirement of an advance deposit was contemplated by the Public Records Act.341 An agency may refuse to produce additional records if the fees for a previous request for records have not been paid by the requestor. As stated by the court in Lozman v. City of Riviera Beach, 342 s. 119.07, F.S., “does not require the City to do any more than what it did in this case,” i.e., require Lozman to pay the bill for the first group of records he requested before the city would make any further documents available.
Is an agency required to respond to requests for information regarding costs to obtain public records?In order to comply with the statutory directive that an agency provide copies of public records upon payment of the statutory fee, an agency must respond to requests for information as to copying costs.343 Similarly, a court said that if an agency is asked for a large number of records, the fee should be communicated to the requestor before the work is undertaken.344 “If the agency gives the requesting party an estimate of the total charge, or the hourly rate to be applied, the party can then determine whether it appears reasonable under the circumstances.”345 65 5.
Does Ch. 119, F.S., exempt certain individuals (such as indigent persons or inmates) from paying statutory fees to obtain copies of public records? Chapter 119, F.S., does not contain a provision that prohibits agencies from charging indigent persons or inmates the applicable statutory fee to obtain copies of public records.346 An agency, however, is not precluded from choosing to provide informational copies of public records without charge.347 6.
May an agency charge for development, travel or overhead costs?An agency should not consider the furnishing of public records to be a “revenue-generating operation.”348 The Public Records Act does not authorize the addition of overhead costs such as utilities or other office expenses to the charge for public records.349 Similarly, an agency may not charge for travel time to obtain public records stored off-premises.350 For example, 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.351 Nor may an agency assess fees designed to recoup the original cost of developing or producing the records.352 Therefore, unless a specific request for copies requires extensive clerical or supervisory assistance or extensive use of information technology resources so as to trigger the special service charge authorized by s. 119.07(4)(d), F.S., an agency may charge only the actual cost of duplication for copies of computerized public records.353 The imposition of the service charge, however, is dependent upon the nature or volume of records requested, not on the cost to either develop or maintain the records or the database system.354 7.
May an agency require that production and copying 66 of public records be accomplished only through a private company that acts as a clearinghouse for the agency’s public records?No. Although an agency may contract with private companies to provide information also obtainable through the agency, it may not abdicate its duty to produce such records for inspection and copying by requiring those seeking public records to do so only through its designee and then paying whatever fee that company may establish for its services.355 The agency is the custodian of its public records and, upon request, must produce such records for inspection and copy such records at the statutorily prescribed fee.356 8.
Should an agency charge sales tax when providing copies of public records?The sales tax imposed pursuant to s. 212.05, F.S., is not applicable to the fee charged for providing copies of records under s. 119.07, F.S.357 9. Does s. 119.07(4), F.S., prescribe the fee that an agency may charge for furnishing a copy of a record to a person who is authorized to access an otherwise confidential record? Unless another fee to obtain a particular record is prescribed by law, an agency may not charge fees that exceed those in Ch. 119, F.S, when providing copies of confidential records to persons who are authorized to obtain them.358 10. Department of Highway Safety and Motor Vehicles crash reports In the absence of statutory provision, the charges authorized in s. 119.07(4), F.S., govern the fees to obtain copies of crash reports from law enforcement agencies. However, there are specific statutes which apply to fees to obtain copies of reports from the Department of Highway Safety and Motor Vehicles. 359 67 F.
WHAT ARE THE OPTIONS IF AN AGENCY REFUSES TO PRODUCE PUBLIC RECORDS FOR INSPECTION AND COPYING? 1. Voluntary mediation program Section 16.60, F.S., establishes an informal mediation program within the Office of the Attorney General as an alternative for resolution of open government disputes. For more information about the voluntary mediation program, please contact the Office of the Attorney General at the following address: The Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050; telephone (850)245-0140; or you may visit the Office of the Attorney General website: www.myfloridalegal.com. 2. Civil action A person denied the right to inspect and/or copy public records under the Public Records Act may bring a civil action against the agency to enforce the terms of Ch. 119, F.S. Before filing a lawsuit, the petitioner must have furnished a public records request to the agency.360 Section 119.11(1), F.S., mandates that actions brought under ch. 119 are entitled to an immediate hearing and taking priority over other pending cases. Section 119.12, F.S., provides that if a civil action is filed against an agency to enforce the provisions of this chapter and the court determines that the agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award against the agency responsible the reasonable costs of enforcement including reasonable attorney’s fees.
A successful pro se litigant is entitled to reasonable costs under this section.361 “[A]ttorney’s fees are awardable for unlawful refusal to provide public records under two circumstances: first, when a court determines that the reason proffered as a basis to 68 deny a public records request is improper, and second, when the agency unjustifiably fails to respond to a public records request by delaying until after the enforcement action has been commenced. ”362 3. Criminal penalties Section 119.10(1)(b), F.S., states that a public officer who knowingly violates the provisions of s. 119.07(1), F.S., is subject to suspension and removal or impeachment and commits a misdemeanor of the first degree, punishable by possible criminal penalties of one year in prison, or $1,000 fine, or both. Section 119.10(1)(a), F.S., provides that a violation of any provision of Ch. 119, F.S., by a public officer is a noncriminal infraction, punishable by fine not exceeding $500.363 G
29. WHAT ARE THE REQUIREMENTS FOR THE MAINTENANCE, STORAGE AND RETENTION OF PUBLIC RECORDS?1. Maintenance and storage of records All public records should be kept in the buildings in which they are ordinarily used.364 Moreover, insofar as practicable, a custodian of public records of vital, permanent, or archival records shall keep them in fireproof and waterproof safes, vaults, or rooms fitted with noncombustible materials and in such arrangement as to be easily accessible for convenient use.365 Records that are in need of repair, restoration, or rebinding may be authorized by the head of the governmental entity to be removed from the building or office in which such records are ordinarily kept for the length of time required to repair, restore, or rebind them.366Thus, as a general rule, public records may routinely be removed from the building or office in which such records are ordinarily kept only for official purposes.367 The retention of such records 69 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.368 2. Delivery of records to successor Section 119.021(4)(a), F.S., provides that whoever has custody of public records shall deliver such records to his or her successor at the expiration of his or her term of office or, if there is no successor, to the records and information management program of the Division of Library and Information Services of the Department of State.369 3. Retention and disposal of records a. Retention schedules for public records Section 119.021(2)(a), F.S. requires the Division of Library and Information Services (division) of the Department of State to adopt rules establishing retention schedules and a disposal process for public records. Each agency must comply with these rules.370 Section 257.36(6), F.S., states that a “public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the division.” Thus, for example, a municipality may not remove and destroy disciplinary notices, with or without the employee’s consent, during the course of resolving collective bargaining grievances, except in accordance with the statutory restrictions on disposal of records.371 b. Exempt records The statutory restrictions on destruction of public records apply even if the record is exempt from disclosure. For example, in AGO 81-12, the Attorney General’s Office concluded that the City of Hollywood could not destroy or dispose of licensure, certification, 70 or employment examination question and answer sheets except as authorized by statute. An exemption only removes the records from public access requirements, it does not exempt the records from the other provisions of Ch. 119, F.S., such as those requiring that public records be kept in a safe place or those regulating the destruction of public records.372 Moreover, if an assertion is made by the custodian that a requested record is not a public record subject to public inspection or copying, the requested record may not be disposed of for a period of 30 days after the date on which a written request to inspect or copy the record was made to the custodian; if a civil action is instituted within the 30-day period to enforce the provisions of this section with respect to the requested record, the custodian may not dispose of the record except by order of a court of competent jurisdiction after notice to all affected parties.373 c. Evidence obtained by law enforcement agencies Documentary evidence obtained by a police department is a public record subject to retention schedules approved by the division.374 However, “the disposition of evidence not constituting a public record within the meaning of Chapter 119, Florida Statutes, would appear to be dependent upon an agency’s determination that it is no longer needed.”375 71 ENDNOTES 1 Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). 2 Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). 3 Cf. Church of Scientology Flag Service Org., Inc. v. Wood, No. 97-688CI-07 (Fla. 6th Cir. Ct. February 27, 1997) (physical specimens relating to an autopsy are not public records because in order to constitute a “public record” for purposes of Ch. 119, “the record itself must be susceptible of some form of copying”). 4 Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). 5 The public records status of uncirculated personal notes prepared for the personal use of the writer can be more difficult to determine. Compare The Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185, 192 (Fla. 1st DCA 2002) (public employees’ notes to themselves “which are designed for their own personal use in remembering certain things do not fall within the definition of ‘public record’”); and AGO 10-55 (handwritten personal notes taken by city manager to assist in remembering matters discussed during manager’s interviews of city employees are not public records “if the notes have not been transcribed or shown to others and were not intended to perpetuate, communicate, or formalize knowledge”) with Miami Herald Media Co. v. Sarnoff, 971 So. 2d 915 (Fla. 3d DCA 2007) (memorandum prepared by a city commissioner after a meeting with a former city 72 official, summarizing details of what was said and containing alleged factual information about possible criminal activity, was a public record subject to disclosure). The agency attorney should be consulted on any question about the public records status of handwritten personal notes. 6 Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). See, e.g., s. 119.071(1)(d), F.S., providing a limited work product exemption for agency attorneys. 7 Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983). And see National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010) (public records law is not limited to paper documents but applies to documents that exist only in digital form). 8 AGO 89-39. 9 AGO 96-34. Accord AGO 01-20. And see s. 668.6076, F.S., requiring agencies that operate a website and use electronic mail to post the following statement in a conspicuous location on the agency website: “Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing.” 10 See s. 257.36(6), F.S., stating that a public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the Division of Library and Information Services of the Department of State.