FROM THE FLORIDA BAR JOURNAL
The State of Florida is known as “the Sunshine State” for many reasons, not the least of which is its year-round lovely weather and its beautiful beaches, lakes, and rivers, which provide recreation and sport for millions of residents and visitors every year. To lawyers and government employees, Florida is known as the home of “Government-in-the-Sunshine” laws, which promote open government meetings and records. This article provides a brief history of Florida Government in the Sunshine, discusses the public policy underpinning them, and explicates some of the significant current issues in public records law occasioned by the advent of modern technology.
Since the late 1800s, Florida has had a public policy that records or documents created in the discharge of official duties belong to the public office — not the individual who created the records — and should be preserved.1 As stated by the Florida Supreme Court in 1889: “[W]henever a written record of the transactions of a public officer is a convenient and appropriate mode of discharging the duties of his office, it is not only his right, but his duty, to keep that written memorial, . . . and, when kept, it becomes a public document — a public record — belonging to the office, and not to the officer.”2
The Florida Supreme Court reiterated this holding in 1922 when it held, “A public record is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done.”3
In 1968, the right to access public records and meetings was guaranteed by Fla. Const. art. 1, 24, which provides in relevant part:
“(a) Every person has the right to inspect or copy 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 records exempted pursuant to this section or specifically made confidential by this [c]onstitution. This section specifically includes the legislative, executive and judicial branches of government….”
Almost 60 years after the Florida Supreme Court first described a “public record,” and after the right to access public records was added to the Florida Constitution, the Supreme Court in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980), construed the definition of public records to encompass all materials made or received by an agency, in connection with official business, which are used to “perpetuate, communicate, or formalize knowledge of some type.” 4 In Shevin, Jacksonville Electric Authority (JEA) hired an independent consulting firm composed of psychologists to conduct a nationwide search for applicants for the managing director position.5 JEA’s general counsel advised the consultant that only the written report would be a public record, not the consultant’s written notes prepared for its own use.6 Prior to the consultant’s report being submitted, a local television executive made a public records request to examine the consultant’s notes relating to the search, but the request was refused.7 The television executive and attorney general applied for a writ of mandamus, alleging that the papers were public records under Ch. 119, so they were open to public inspection.8 After an evidentiary hearing, the trial court determined that the notes were public records and issued the writ.9 The First District Court of Appeal reversed the circuit court’s issuance of the writ on the basis that “public disclosure of the consultant’s papers would deprive the intervenors of fundamental privacy rights secured by the United States and Florida [c]onstitutions.”10
On appeal to the Florida Supreme Court, the petitioners challenged the district court’s conclusion that the Florida Constitution provides a right of disclosure privacy.11 The Supreme Court agreed12 and further explained:
“To be contrasted with ‘public records’ are materials prepared as drafts or notes, which constitute mere precursors of governmental ‘records’ and are not, in themselves, intended as final evidence of the knowledge to be recorded. Matters which obviously would not be public records are rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency’s later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.”13
The Supreme Court acknowledged that “[i]t is impossible to lay down a definition of general application that identifies all items subject to disclosure under the act.”14 Thus, a determination of whether a document is a public record must be made on a case-by-case basis.15
The right to access public records is also codified in Ch. 119, known as the Public Records Act,16 and states: “It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.”17 A “public record” is defined by statute as: “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”18
It is well settled that “the general purpose of the Florida Public Records Act is to open public records so that Florida’s citizens can discover the actions of their government.”19 The policy has been described as a “cornerstone of our political culture.”20 It is liberally construed in favor of open access to public records.21 “If there is any doubt as to whether a matter is a public record subject to disclosure, the doubt is to be resolved in favor of disclosure.”22
Florida’s Public Records Act Exemptions and Process
Notwithstanding the above policy of open public records, “not all private facts that come into the public domain via a governmental agency, however, are necessarily open to inspection by the general public.”23 Even though Florida’s Public Records Act is broad, there are many exemptions.24 Only the Florida Legislature is authorized to create exemptions — courts may not do so.25 Exemptions are construed narrowly.26 For example, under F.S. 119.071(3)(a), public records relating to the physical security of a facility or revealing its security systems are exempt from public access. Another exemption is when the executive branch exercises its power of eminent domain, all appraisals and reports relating to the value of land, the offers, and counteroffers are exempt from public access.27
The Florida Legislature has provided a simple process for claiming an exemption to the disclosure requirements in F.S. 119.07(1)(d)-(f). “The [s]tate bears the burden of showing that requested material meets the statutory requirements for exemption from public disclosure.”28 This means that when the records custodian contends that “all or part of the record is exempt,” the custodian “shall state the basis of the exemption…including the statutory citation.”29 Furthermore, if a records custodian asserts that an exemption applies to part of the record, then the custodian must “redact that portion of the record to which an exemption has been asserted and validity applies,” and produce the remaining record.30 Finally, if the requesting person would like additional explanation for the exemption, then the records custodian is required to “state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential.”31 In other words, the agency or government entity has to explain why it denied access.32 Thus, whether information is ultimately exempt from disclosure or not, the agency must do more than simply cite the statute that it claims applies.
The exemptions from public disclosure have limitations. For example, the exemptions from public disclosure do not limit the auditor general, the Office of Program Policy Analysis and Government Accountability, or any state, county, municipal, university, board of community college, school district, or special district internal auditor when “such records are needed for a properly authorized audit, examination, or investigation.”33 Likewise, the exemptions do not expand or limit the rules for discovery in criminal cases.34 None of the exemptions imply an exemption to the requirements for conducting public meetings and recording minutes to public meetings.35
In the discovery context, even when records are exempt, the records “may be discovered upon a showing of exceptional necessity or extraordinary circumstances.”36 For example, in Henderson v. Perez, 835 So. 2d 390 (Fla. 2d DCA 2003), Perez filed a complaint against the local sheriff alleging false imprisonment, malicious prosecution, and battery, arising from an incident in which Perez was arrested for offenses that he did not commit.37 During the discovery phase of the litigation, Perez sought personnel files of all the employees who had any connection with his arrest and, after being heavily redacted to remove information such as Social Security numbers, home addresses, and the names of their children’s daycare facilities, the sheriff provided the records.38 Perez filed a motion to compel in order to get the unredacted records.39 After a hearing, the trial court ordered the sheriff to provide the unredacted information to Perez.40 The sheriff filed a petition for writ of certiorari, which the Second District granted. In quashing the trial court’s order, the Second District disagreed that the requested materials were “essential to the plaintiff” without making any showing of necessity.41 The court explained that Perez failed to demonstrate that without the home addresses and photographs of the 10 law enforcement officers, he would be unable to effectively investigate the officers and attack their credibility should they be witnesses.42 Thus, the court held that Perez made no showing of “exceptional necessity or extraordinary circumstances” to justify access to the redacted information.43
In contrast to an exempt record, where some limitations exist, a different set of rules apply to a “confidential” record — the terms are not interchangeable.44 If information is made confidential by a statute, the information is not subject to inspection by the public and may only be released to the person or organizations designated in the statute.45 “If records are not confidential but are only exempt from the Public Records Act, the exemption does not prohibit the showing of such information.”46 In other words, the agency has discretion to disclose exempt records, but does not have discretion to disclose confidential records.47 Florida’s First Amendment Foundation aptly explained:
“Confidential information is not subject to inspection by the public and may only be released to those persons and entities designated in the statute. Exempt records are not subject to the mandatory disclosure requirements of the Public Records Law; an agency, however, is not prohibited from disclosing such records.”48
Penalties for Violations and Attorneys’ Fees
Violations of the Public Records Act carry various penalties ranging from a fee (not to exceed $500) to a third-degree felony.49 Penalties for violating the Public Records Act are outlined in F.S. 119.10. The act can be violated in a variety of ways. For example, in Lake Shore Hospital Authority v. Lilker, 168 So. 3d 332 (Fla. 1st DCA 2015), the First District Court of Appeal determined that Lake Shore Hospital, the records custodian, violated the act when it hampered a requesting party’s right to inspect a record by limiting access to the records to a single hour on weekday mornings and requiring a 24-hour notice before inspection.50 Additionally, in Promenade D’Iberville, LLC v. Sundy, 145 So. 3d 980 (Fla. 1st DCA 2014), the First District discussed other pitfalls by explaining that although a delay in making public records available is not a violation of the act in certain circumstances, an unjustified delay in making nonexempt public records available is a violation.51 Examples of a justified delay include when a records custodian needs time to determine whether the records exist;52 when the custodian believes that some or all of the records are exempt under the act;53 and if the requesting party fails to remit the appropriate fees.54
Courts are authorized to assess prevailing party attorneys’ fees for challenges before the court.55 The Florida Supreme Court has explained that:
[A] prevailing party is entitled to statutory attorneys’ fees under the Public Records Act when the trial court finds that the public agency violated a provision of the Public Records Act in failing to permit a public record to be inspected or copied. There is no additional requirement, before awarding attorneys’ fees under the Public Records Act, that the trial court find that the public agency did not act in good faith, acted in bad faith, or acted unreasonably.56
In Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016), the Florida Supreme Court explained that “[u]nlawful conditions or excessive, unwarranted special service charges deter individuals seeking public records from gaining access to the records to which they are entitled.”57 The court elaborated that even if not malicious or done in bad faith, the record custodians’ actions had “the effect of frustrating” the requestor’s constitutional right to access public records, which required the requestor to turn to the courts to vindicate that right.58 Thus, F.S. 119.12 has “the dual role of both deterring agencies from wrongfully denying access to public records and encouraging individuals to continue pursuing their right to access public records.”59
The ultimate take-away of the above opinions is that failing to adhere to the Public Records Act is both illegal and can be quite costly. The laws in this area are under even more scrutiny as a result of advancements in modern technology and, in particular, electronic communications devices, discussed below.
In 2003, the Florida Supreme Court recognized an emerging problem within the public records law realm — the use of publicly owned devices to conduct personal business, such as sending personal emails. In State v. City of Clearwater, 863 So. 2d 149, 151 (Fla. 2003), the Florida Supreme Court was presented with the question “whether personal emails are considered public records by virtue of their placement on a government-owned computer system.” The court reviewed the history and intent of Florida’s public records policy and opined that “it cannot merely be the placement of the emails on the [c]ity’s computer system that makes the emails public records. Rather, the emails must have been prepared ‘in connection with official agency business’ and be ‘intended to perpetuate, communicate, or formalize knowledge of some type.’”60 The court went on to state “common sense…opposes a mere possession rule.”61 The court held that “private documents cannot be deemed public records solely by virtue of their placement on an agency-owned computer. The determining factor is the nature of the record, not its physical location.”62 Although City of Clearwater is an older case, it is still good law; it has been distinguished, but not disagreed with.63
Because it is the nature of the document that determines whether it is a public record, and not its location, there is a strong argument that records “prepared in connection with official agency business” and “intended to perpetuate, communicate, or formalize knowledge of some type,” but that are stored on a personal device — the reverse situation of City of Clearwater — would also be considered public records.
Ten years after City of Clearwater, the First District addressed another modern challenge in the public records realm in Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d 851 (Fla. 1st DCA 2013), when the court explained that “[t]he physical format of the record is irrelevant; electronic communications, such as email, are covered just like communications on paper.”64 In Rhea, a college professor brought an action against his employer, a public college, seeking a writ of mandamus to compel the college to reveal the name of a student who sent an email complaining about the professor’s classroom behavior and teaching style, and for a declaration of the professor’s rights under the college’s rule regarding student complaints.65 The college refused to comply with Rhea’s repeated requests to disclose the student’s name on the basis that the student’s identity was protected from disclosure under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g (2009).66 The trial court dismissed the complaint, and Rhea appealed.67 On appeal, the First District concluded that “the email at issue is a communication that was sent to, and received by, the [c]ollege in connection with the transaction of its official business, [so Rhea] has sufficiently pled that it is a Florida public record subject to disclosure in the absence of a statutory exemption.”68 In the remainder of the opinion, the court discussed the applicability of FERPA and the propriety of a declaratory action.69
Thus, regardless of whether the record is in digital or physical form and regardless of where the record is physically located, the nature of the document is the ultimate factor in determining whether the public has a right to access that record.
In 2014, the American Bar Association predicted that:
Over the next six years, the available computing power will likely double at least twice and maybe three times. This increase in computing power and new devices will likely drive current lawyering technologies, such as document automation, decisions engines, e-discovery tools, communication and collaboration tools, legal research tools, and legal expert systems, to continue to mature and progress in functionality and availability.70
This prediction is proving to be correct and Florida courts are increasingly forced to determine how modern technology, including the ever-emerging forms of communication, such as direct messaging in various platforms, must conform to our historic policy of access to public records. The current case-by-case approach to determining whether a record is a “public record” seems to best serve the public’s interest since it makes little sense, for example, to craft new legislation to declare that all emails housed on a government-issued iPad are a public record. Reflecting back to the City of Clearwater, it is the nature of the document that matters, not its location. Now, if an agency or local government decides to pass more stringent policies for public records, then the public policy is all-the-more served.
The American Bar Association recently opined about the ethics of electronic communication, which has relevance in the context of Florida’s right to access of public records.71
“The new opinion, Formal Opinion 477 […], updates Formal Opinion 99-413, issued in 1999, to reflect changes in the digital landscape as well as 2012 changes to the ABA’s Model Rules of Professional Conduct, particularly the addition of the duty of technology competence in Model Rule 1.1 and changes to Rule 1.6 regarding client confidences.”
Indeed, the ABA’s Formal Opinion 477 acknowledges the “ever-changing” era of modern technology, and offers this guidance:
The Model Rules do not impose greater or different duties of confidentiality based upon the method by which a lawyer communicates with a client. But how a lawyer should comply with the core duty of confidentiality in an ever-changing technological world requires some reflection.72
Furthermore, The Florida Bar has also recognized the need for advising attorneys of the best practices for communicating electronically.73
Lawyers use multiple forms of communication on a daily basis to diligently advocate and are in a constant state of communication with clients, opposing counsel, the court and colleagues…. The Oath of Admission to The Florida Bar includes a pledge of “fairness, integrity and civility, not only in court, but also in all written and oral communications.”74
Outside of the attorney-client context, The Florida Bar notes:
There is no expectation of privacy on the internet. There is no such thing as a true delete of information. Privacy settings are not a safeguard to protect what you post, and information is stored forever. In general, if you would be ashamed to see it on a billboard, do not post it.75