In reaching the conclusion that public records must be open to public inspection unless the Legislature provides otherwise, the courts have rejected claims that the constitutional right of privacy bars disclosure. Article I, s. 23, Fla. Const., provides:
Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law. (e.s.)Accordingly, the Florida Constitution “does not provide a right of privacy in public records” and a state or federal right of disclosural privacy does not exist. Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985). See also Forsberg v. Housing Authority of City of Miami Beach, 455 So. 2d 373 (Fla. 1984); and AGO 09-19 (to extent that information on an agency’s Facebook page constitutes a public record within the meaning of Ch. 119, F.S., Art. I, s. 23, Fla. Const., “is not implicated”). “[I]n Florida the right to privacy is expressly subservient to the Public Records Act.” Board of County Commissioners of Palm Beach County v. D.B., 784 So. 2d 585, 591 (Fla. 4th DCA 2001). But see Post-Newsweek Stations, Florida Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (public’s right of access to pretrial criminal discovery materials must be balanced against a nonparty’s constitutional right to privacy).
In O’Boyle v. Town of Gulf Stream, 257 So. 3d 1036, 1040 (Fla. 4th DCA 2018), the court recognized that a public official’s use of a private cell phone to conduct public business via text messaging could create a written public record subject to disclosure. “The purpose of both Article I, section 24 and Chapter 119 is to ensure that citizens may review (and criticize) government actions. That purpose would be defeated if a public official could shield the disclosure of public records by conducting business on a private phone.” 257 So. 3d at 1042. The court acknowledged that the public’s right to public records “does not extinguish an individual’s constitutional and statutory rights in private information.” However, the court found that a judicial review of the records could safeguard “all legitimate privacy concerns.” Id. (Florida Office of the Attorney General // © )
