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Florida's Sunshine Manual
Subpart 2-D: Providing Public Records

§2-D-1 | VALIDITY OF AGENCY CONDITIONS ON ACCESS

Section 119.07(1)(a), F.S., establishes a right of access to public records in plain and unequivocal terms:
Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.
The term “reasonable conditions” as used in s. 119.07(1)(a), F.S., “refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review.” Wait v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla. 1979).

See also Chandler v. City of Greenacres, 140 So. 3d 1080, 1084 (Fla. 4th DCA 2014) (noting the narrow interpretation of the phrase “reasonable conditions”); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction).

Accordingly, the “reasonable conditions” do not include a rule or condition of inspection which operates to restrict or circumvent a person’s right of access. AGO 75-50. “The courts of this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to obtain records” under Ch. 119, F.S. Inf. Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001) (requirement that persons with custody of public records allow records to be examined “at any reasonable time, under reasonable conditions” is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests).

The Public Records Act “embodies important public policy” and “is designed to provide citizens with a simple and expeditious method of accessing public records.” Orange County v. Hewlings, 152 So. 3d 812, 817 (Fla. 5th DCA 2014). Thus, an agency violated the Act when instead of complying with Hewlings’ “simple request” for records, it “chose to interpose the additional bureaucratic hurdles of forcing her to come to its offices, comb through the records, mark the records in a certain manner, wait for a written estimate of costs, then, after paying the costs, wait again for the records to be mailed to her.” Id.

The custodian “is at all times responsible for the custody of the [public] records but when a citizen applies to inspect or make copies of them it is his duty to make provision for this to be done in such a manner as will accommodate the applicant and at the same time safeguard the records.” Fuller v. State ex rel. O’Donnell, 17 So. 2d 607 (Fla. 1944). Thus, the right of inspection may not be frustrated or circumvented through indirect means such as the use of a code book. State ex rel. Davidson v. Couch, 158 So. 103, 105 (Fla. 1934) (right of inspection was “hindered and obstructed” by city “imposing conditions to the right of examination which were not reasonable nor permissible under the law”). Accord AGO 05-12 (city may not require the use of a code to review e-mail correspondence of city’s police department and human resources department). And see Inf. Op. to Cook, May 27, 2011, noting that “[a] policy requiring a physical address for mailing copies of requested public records or the 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.” Compare Siegmeister v. Johnson, 240 So. 3d 70 (Fla. 1st DCA 2018) (state attorney did not violate the Public Records Act by making requested records available for inspection and copying at the main office of the state attorney, rather than at a branch office closer to the requester’s home, because the Public Records Act “does not require government officials to move records from where they are being maintained to a different place convenient to the requester”).

Moreover, any local enactment or policy which purports to dictate additional conditions or restrictions on access to public records is of dubious validity since the legislative scheme of the Public Records Act has preempted any local regulation of this subject. Tribune Company v. Cannella, supra at 1077. A policy of a governmental agency cannot exempt it from the application of Ch. 119, F.S., a general law. Douglas v. Michel, 410 So. 2d 936, 938 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985). And see AGO 90-04 (county official not authorized to assign county’s rights to a public record as part of a settlement agreement compromising a lawsuit against the county). Cf. Herbits v. City of Miami, 207 So. 3d 274, 275 (Fla. 3d DCA 2016) (claim based on alleged concealment of information in violation of transparency mandates established in local enactments is preempted by the Florida Public Records Act, because the “Florida Legislature has so pervasively legislated regarding this subject area that a local government is precluded from legislating in the same area.”).
(Florida Office of the Attorney General // © )

§2-D-2 | INDIVIDUALS 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 state citizenship requirement was deleted from the law in 1975. 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. AGO 75-175. Likewise, a county is “any person” who is allowed to seek public records under Ch. 119, F.S. Hillsborough County, Florida v. Buccaneers Stadium Limited Partnership, No. 99-0321 (Fla. 13th Cir. Ct. February 5, 1999), affirmed per curiam, 758 So. 2d 676 (Fla. 2d DCA 2000), available online in the Cases database at the open government site at MyFloridaLegal.com.

Thus, “the law provides any member of the public access to public records, whether he or she be the most outstanding civic citizen or the most heinous criminal.” Church of Scientology Flag Service Org., Inc. v. Wood, No. 97-688CI-07 (Fla. 6th Cir. Ct. February 27, 1997), available online in the Cases database at the open government site at MyFloridaLegal.com. “[A]s long as the citizens of this state desire and insist upon ‘open government’ and liberal public records disclosure, as a cost of that freedom public officials have to put up with demanding citizens even when they are obnoxious as long as they violate no laws.” State v. Colby, No. MM96-317AXX (Fla. Highlands Co. Ct. May 23, 1996), available online in the Cases database at the open government site at MyFloridaLegal.com.

“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.” Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991), available online in the Cases database at the open government site at MyFloridaLegal.com. And see Curry v. State, 811 So. 2d 736, 741 (Fla. 4th DCA 2002) (defendant’s conduct in making over 40 public records requests concerning victim constituted a “legitimate purpose,” and thus cannot violate the stalking law “because the right to obtain the records is established by statute and acknowledged in the state constitution”). Cf. James v. Loxahatchee Groves Water Control District, 820 So. 2d 988 (Fla. 4th DCA 2002), concluding that a trial court erred when it failed to hold a hearing before denying a request to require a district to permit inspection at the district offices, rather than at an off-premises location. The agency argued that it would be “disruptive” to require that the records inspection be conducted at its offices. Id. However, the appeals court ruled that a hearing should have been held to determine whether the requester, who was in litigation with the district, should be allowed to view the records at the district offices, and if so, under what conditions. Id.
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§2-D-3 | PURPOSE OF REQUEST

The requester 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.” Curry v. State, 811 So. 2d 736, 742 (Fla. 4th DCA 2002). See also Barfield v. School Board of Manatee County, 135 So. 3d 560, 562 (Fla. 2d DCA 2014) (“An individual’s reason for requesting a public record is irrelevant”); Timoney v. City of Miami Civilian Investigative Panel, 917 So. 2d 885, 886n.3 (Fla. 3d DCA 2005) (“generally, a person’s motive in seeking access to public records is irrelevant”); Staton v. McMillan, 597 So. 2d 940, 941 (Fla. 1st DCA 1992), review dismissed sub nom., Staton v. Austin, 605 So. 2d 1266 (Fla. 1992) (petitioner’s reasons for seeking access to public records “are immaterial”); Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985) (legislative objective underlying the creation of Ch. 119 was to insure to the people of Florida the right freely to gain access to governmental records; the purpose of such inquiry is immaterial); and News-Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) (“the newspaper’s motives [for seeking the documents], as well as the hospital’s financial harm and public harm defenses, are irrelevant in an action to compel compliance with the Public Records Act”). Cf. Town of Gulf Stream v. O’Boyle, 654 F. App’x 439 (11th Cir. 2016) (alleged filing of large numbers of frivolous public records requests which are then followed by lawsuits when the requests are not addressed does not constitute a predicate act under the Racketeer Influenced Corrupt Organizations Act), and DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1289 (11th Cir. 2019) ( “In short, a citizen’s public records requests and lawsuits against the government can clearly constitute protected First Amendment activity”).

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. Inf. Op. to Cook, May 27, 2011. However, as noted in that opinion, Florida Statutes impose criminal penalties for the unauthorized use of personal identification information for fraudulent or harassment purposes and for the criminal use of a public record or public records information. See ss. 817.568 and 817.569, F.S.

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.” Microdecisions, Inc. v. Skinner, 889 So. 2d 871, 875 (Fla. 2d DCA 2004), review denied, 902 So. 2d 791 (Fla. 2005), cert. denied, 126 S.Ct. 746 (2005). See also State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905) (abstract companies may copy documents from the clerk’s office for their own use and sell copies to the public for a profit); Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 228n.2 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) (“Booksmart’s reason for wanting to view and copy the documents is irrelevant to the issue of whether the documents are public records”).
(Florida Office of the Attorney General // © )

§2-D-4 | ROLE OF THE RECORDS CUSTODIAN

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.”

The custodian of public records, or a person having custody of public records, may designate another officer or employee of the agency to permit the inspection and copying of public records, but must disclose the identity of the designee to the person requesting to inspect or copy public records. Section 119.07(1)(b), F.S. And see s. 119.0701(2), F.S. (discussed more fully on page 65) requiring that certain agency contracts for public services must contain contact information pertaining to the agency’s custodian of public records.

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.” Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996). [Emphasis supplied by the court]. 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. Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998) (citing Williams v. City of Minneola, 575 So. 2d 683, 687 [Fla. 5th DCA 1991]). 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.” Id. at 1361. In order to have custody, one must have supervision and control over the document or have legal responsibility for its care, keeping or guardianship. Id.

In Siegmeister v. Johnson, 240 So. 3d 70 (Fla. 1st DCA 2018), the court rejected the requester’s claim that he was entitled to view the records at the office of an assistant state attorney in Lake City when office policy required that the records be sent to the state attorney’s main office in Live Oak to be reviewed for exemptions. The court reasoned that the assistant state attorney “couldn’t have, for instance simply handed over the records on the spot” when the requester asked for them in Lake City because both the “[Public Records] Act and office policy” required that the records “be reviewed for exempt information by the public records custodian (who was also responsible for supervising the record inspection and copying process)” as provided in s. 119.07(1)(a), F.S. Id. at 74

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. Section 119.07(1) (c), F.S. See Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 128 (Fla. 2016), noting that the “good faith language” was intended “to strengthen the responsibilities of records custodians by imposing an explicit requirement on public agencies that they act in good faith in responding to public records requests.”

A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed. Id. Cf. SDE Media LLC v. City of Doral, 25 F.L.W. Supp 243a (Fla. 11th Cir. Ct. May 5, 2017) in which the circuit judge found that the city had violated the Public Records Law by “misrepresenting to SDE Media LLC that all responsive records had been located and produced when, in fact, [the city] knew that a good faith search had not been made and that additional responsive records may not have been produced”. And see Raydient LLC v. Nassau County, Florida, No. 2019-CA-000054 (Fla. 4th Cir. Ct. August 24, 2021), available online in the Cases database at the open government site at MyFloridaLegal.com (“If public agency employees and officials transact public business on their privately-owned accounts or devices, then the agency has an affirmative duty in response to public records requests to do what is reasonably necessary to promptly retrieve any public documents from those employees or officials”).

The duty of “good faith” imposed on public officers who are charged with the responsibility of complying with the law is “subjective.” Consumer Rights, LLC v. Union County, 159 So. 3d 882, 885 (Fla. 1st DCA 2015), review denied, 177 So. 3d 1264 (Fla. 2015). “Whether a governmental entity acted in ‘good faith’ in the manner in which it responded to a request for disclosure of public records is necessarily a question for the court to decide based on the circumstances of a case.” Id.

Sections 119.12(1)(b) and (2), F.S mandate that the complainant in a public records lawsuit must provide written notice identifying the public records request to the custodian of public records at least 5 business days prior to filing a civil action. However, the notice is not required if the agency fails to prominently post the contact information for the custodian in the manner prescribed in the statute. Cf. City of St. Petersburg v. Dorchester Holdings, LLC, 331 So. 3d 799, n.2 (Fla. 2d DCA 2021), in which the court noted that “[a]lthough there appears to be no prohibition against using the [Public Records]Act as a discovery device, thereby circumventing the rules of procedure regarding discovery, this does not provide an attorney who represents a party in pending litigation with carte blanche to directly contact a represented opposing party. See R. Regulating Fla. Bar 4-42; Fla. Bar Ethics Opinion 09-1 (concluding that a lawyer may not communicate with government officers, directors, or employees who are directly involved or whose acts can be imputed to the government entity in a represented matter).” Questions relating to the application of the Rules of Professional Conduct should be addressed to The Florida Bar.
(Florida Office of the Attorney General // © )

§2-D-5 | REQUESTS FOR COPIES VERSUS REQUESTS TO INSPECT PUBLIC RECORDS

“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.) Section 119.01(1), F.S. 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....” And see Fuller v. State ex rel. O’Donnell, 17 So. 2d 607 (Fla. 1944) (“The best-reasoned authority in this country holds that the right to inspect public records carries with it the right to make copies”); and Schwartzman v. Merritt Island Volunteer Fire Department, 352 So. 2d 1230, 1232n.2 (Fla. 4th DCA 1977) (Public Records Act requires custodian to furnish copies). Cf. Wootton v. Cook, 590 So. 2d 1039, 1040 (Fla. 1st DCA 1991) (if the requestor identifies a record with sufficient specificity to permit the agency to identify it and forwards the appropriate fee, the agency must furnish by mail a copy of the record).
(Florida Office of the Attorney General // © )

§2-D-6 | RECORDS MAINTAINED BY MORE THAN ONE AGENCY

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. AGO 86-69. 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. Warden v. Bennett, 340 So. 2d 977, 979 (Fla. 2d DCA 1976).
(Florida Office of the Attorney General // © )

§2-D-7 | RECORDS NOT IN PHYSICAL POSSESSION OF AGENCY

An agency is not authorized to refuse to allow inspection of public records it made or received in the course of official business on the grounds that the documents are in the actual possession of another agency or official other than the records custodian. See Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) (public records cannot be hidden from the public by transferring physical custody of the records to the agency’s attorneys); Tober v. Sanchez, 417 So. 2d 1053 (Fla. 3d DCA 1982), review denied sub nom., Metropolitan Dade County Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (official charged with maintenance of records may not transfer actual physical custody of records to county attorney and thereby avoid compliance with request for inspection under Ch. 119, F.S.); and AGO 92-78 (public housing authority not authorized to withhold its records from disclosure on the grounds that the records have been subpoenaed by the state attorney and transferred to that office). “Given the aggressive nature of the public’s right to inspect and duplicate public records, a governmental agency may not avoid a public records request by transferring custody of its records to another agency.” Chandler v. City of Sanford, 121 So. 3d 657, 660 (Fla. 5th DCA 2013).

Thus, in Barfield v. Florida Department of Law Enforcement, No. 93-1701 (Fla. 2d Cir. Ct. May 19, 1994), available online in the Cases database at the open government site at MyFloridaLegal.com, 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 to demand the return of the records from the private entity so they could be copied for the requestor.

Similarly, in Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 492-493 (Fla. 2d DCA 1990), the court found that both the city and a private entity violated the Public Records Act when, pursuant to a plan to circumvent Ch. 119, F.S., the city avoided taking possession of negotiation documents reviewed and discussed by both parties and instead left them with the private entity’s attorney. The court determined that although city officials may have intended merely to “avoid” the law, the effect of their actions was to “evade the broad policy of open government.” And see 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 public records [polygraph chart used in internal investigation] “to circumvent the public records chapter”); and National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010) (records on private entity’s secure website that were viewed and used by a state university in carrying out its official duties were public records even though the university did not take physical possession); and 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).
(Florida Office of the Attorney General // © )

§2-D-8 | OVERBROAD PUBLIC RECORDS REQUESTS

In Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985), 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. See AGO 92-38.

Thus, a person seeking to inspect “all” financial records of a municipality may not be required to specify a particular book or record he or she wishes to inspect. State ex rel. Davidson v. Couch, 156 So. 297, 300 (Fla. 1934). In Davidson, the Florida Supreme Court explained that if this were the case, “one person may be required to specify the book, while another and more favored one, because of his pretended ignorance of the name of the record might be permitted examination of all of them.” Id. Such a result would be inconsistent with the mandate in the Public Records Act that public records are open to all who wish to inspect them. Id. Cf. Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991), available online in the Cases database at the open government site at MyFloridaLegal.com, stating that if a public records request is insufficient to identify the records sought, the city has an affirmative duty to promptly notify the requester that more information is needed in order to produce the records; it is the responsibility of the city and not the requestor to follow up on any requests for public records. Compare Woodard v. State, 885 So. 2d 444, 446 (Fla. 4th DCA 2004) (records custodian must furnish copies of records when the person requesting them identifies the portions of the record with sufficient specificity to permit the custodian to identify the record and forwards the statutory fee).
(Florida Office of the Attorney General // © )

§2-D-9 | WRITTEN REQUEST OR FORM REQUIREMENTS

Chapter 119, F.S., does not authorize an agency to require that requests for records be in writing. See Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 305n.1 (Fla. 3d DCA 2001) (“There is no requirement in the Public Records Act that requests for records must be in writing”). 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. “In sum, the city could not properly condition disclosure of the public records, to the then-anonymous requester on filling out the city’s form....” Chandler v. City of Greenacres, 140 So. 3d 1080, 1085 (Fla. 4th DCA 2014).

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. See Sullivan v. City of New Port Richey, No. 86-1129CA (Fla. 6th Cir. Ct. May 22, 1987), per curiam affirmed, 529 So. 2d 1124 (Fla. 2d DCA 1988), noting that a requester’s failure to complete a city form required for access to documents did not authorize the custodian to refuse to honor the request to inspect or copy public records.

However, a request for records of the judicial branch (which is not subject to Ch. 119, F.S., see Times Publishing Company v. Ake, 660 So. 2d 255 [Fla. 1995]), must be in writing. Rule 2.420(m)(1), Fla. R. Gen. Prac. & Jud. Admin. In its commentary accompanying the rule change that incorporated this requirement, the Court said 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.” In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
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§2-D-10 | IDENTIFICATION OF REQUESTER

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. AGOs 92-38 and 91-76. Accord Inf. Op. to Cook, May 27, 2011. See also Bevan v. Wanicka, 505 So. 2d 1116 (Fla. 2d DCA 1987) (production of public records may not be conditioned upon a requirement that the person seeking inspection disclose background information about himself or herself). Cf. s. 1012.31(2)(f), F.S., providing that the custodian of public school employee personnel files shall maintain a record in the file of those persons reviewing an employee personnel file each time it is reviewed.

Thus, a city may not require an anonymous requester who made a public records request via e-mail to provide an “address or other identifiable source for payment of the associated costs.” Chandler v. City of Greenacres, 140 So. 3d 1080, 1085 (Fla. 4th DCA 2014). Instead, “the city could have sent an estimate of costs through e-mail to the requester just as it could through regular mail, had the request been made via paper by an anonymous requester.” Id. Cf. Consumer Rights, LLC v. Union County, Florida, 159 So. 3d 882, 886 (Fla. 1st DCA 2015), review denied, 177 So. 3d 1264 (Fla. 2015) (“We know of no law that requires a governmental entity to provide public records to a generic email address, at least not until such time as it is made clear that the address belongs to a person”); and Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., 195 So. 3d 396, 402 (Fla. 4th DCA 2016) (“There is a difference between allowing anonymous public records requests and evaluating an agency’s response when such requests are justifiably handled with caution”).
(Florida Office of the Attorney General // © )

§2-D-11 | 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.” And see s. 119.01(2)(e), F.S. Thus, an agency is authorized but not required to permit remote electronic access to public records.

Similarly, access to public records by remote electronic means is merely an additional means of inspecting or copying public records; this “additional means of access, however, is insufficient where the person requesting the records specifies the traditional method of access via paper copies.” Lake Shore Hospital Authority v. Lilker, 168 So. 3d 332, 333 (Fla. 1st DCA 2015).

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. Section 119.07(2) (c), F.S.
(Florida Office of the Attorney General // © )

§2-D-12 | REQUESTS TO CREATE NEW RECORDS, ANSWER QUESTIONS ABOUT THE RECORDS, OR REFORMAT EXISTING RECORDS

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. Section 119.07(1) (a) and (4), F.S. However, a custodian is not required to give out information from the records of his or her office. AGO 80-57. 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. AGO 92-38. Cf. In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002) (the custodian of judicial records “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”).

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. Wootton v. Cook, 590 So. 2d 1039 (Fla. 1st DCA 1991). See also AGO 08-29. Cf. s. 120.53, F.S., relating to maintenance of final orders by agencies subject to Ch. 120, F.S.

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. Wootton v. Cook, supra. See also Woodard v. State, 885 So. 2d 444, 445n.1 (Fla. 4th DCA 2004), remanding a case for further proceedings where the custodian forwarded only information relating to the statutory fee schedule rather than the total copying cost of the requested records. Cf. Gilliam v. State, 996 So. 2d 956 (Fla. 2d DCA 2008) (clerk, as custodian of judicial records, had a legal duty to respond to Gilliam’s request for information regarding costs) and Blackshear v. State, 115 So. 3d 1093 (Fla. 1st DCA 2013) (clerk is “dutybound to respond to a request about copying costs for the records sought”).

Similarly, as stated in Seigle v. Barry, 422 So. 2d 63, 66 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983), 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. AGO 08-29. As explained in Seigle:
If the health department maintains a chronological list of dog-bite incidents with rabies implications [a] plaintiff, bitten by a suspect dog, may not require the health department to reorder that list and furnish a record of incidents segregated by geographical areas. Nothing in the statute, case law or public policy imposes such a burden upon our public officials. 422 So. 2d at 65.
Thus, in AGO 97-39, 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.

Despite the general rule, however, the Seigle court recognized that an agency may be required to provide access 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. 422 So. 2d at 66-67.
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). Section 119.01(2)(f), F.S.
(Florida Office of the Attorney General // © )

§2-D-13 | 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. Section 119.01(2)(f), F.S. See AGO 13-07. Accordingly, an agency violated the Public Records Act when it referred the requester to a website instead of providing paper copies as the requester asked. Lake Shore Hospital Authority v. Lilker, 168 So. 3d 332 (Fla. 1st DCA 2015). See also AGO 91-61 (custodian must provide a copy of computer disk in its original format; a typed transcript does not satisfy the requirements of this statute).

Similarly, an agency violated s. 119.01(2)(f), F.S., when it refused to provide electronic records (emails and calendar entries) in a pst. or similar electronic medium, and instead provided all the requested records in PDF format. The court ordered the agency to provide the records in pst. or other electronic medium that allowed the requester to view them in Outlook in the same manner that the agency could view such records in its own system, except for specific emails or calendar entries that required redactions, which could be provided in PDf format. Bracci v. School Board of Lee County, No. 20-CA-5205 (Fla. 20th Cir. Ct. January 12, 2021), available online in the Cases database at the open government site at MyFloridaLegal.com. See also Miami-Dade County v. Professional Law Enforcement Association, 997 So. 2d 1289 (Fla. 3d DCA 2009) (fact that pertinent information may exist in more than one format is not a basis for exemption or denial of the request). Cf. AGO 06-30, stating that an agency may respond to a public records request requiring the production of thousands of documents by composing a static web page where the responsive public documents are posted for viewing if the requesting party agrees to the procedure and agrees to pay the administrative costs, in lieu of copying the documents at a much greater cost.
(Florida Office of the Attorney General // © )

§2-D-14 | AMOUNT OF TIME ALLOWED FOR RESPONSE TO PUBLIC RECORDS REQUESTS

a. Duty to Acknowledge Requests Promptly

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. Section 119.07(1)(c), F.S. Cf. Hewlings v. Orange County, 87 So. 3d 839 (Fla. 5th DCA 2012) (mere fact that county quickly responded to public records request by voicemail and fax is not dispositive of whether county’s 45-day delay in complying with the request was unjustified for purposes of s. 119.12, F.S., authorizing an award of attorney’s fees to a party who succeeds in a civil action resulting from an unlawful refusal to provide public records).

b. Automatic Delay Impermissible

A policy which provides for an automatic delay in the production of public records is impermissible. Tribune Company v. Cannella, 458 So. 2d 1075, 1078-1079 (Fla. 1984), appeal dismissed sub nom., Deperte v. Tribune Company, 105 S.Ct. 2315 (1985). And see Lake Shore Hospital Authority v. Lilker, 168 So. 3d 332, 333-334 (Fla. 1st DCA 2015) (agency not authorized to automatically delay production by imposing a 24-hour notice requirement).

Thus, 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. Tribune Company v. Cannella, 458 So. 2d at 1078. Compare s. 1012.31(3)(a)3., F.S., in which the Legislature has expressly provided that no material derogatory to a public school employee may be inspected until 10 days after the employee has been notified as prescribed by statute.

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. AGO 96-55. And see Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (city may not delay public access to board meeting minutes until after the city commission has approved the minutes).  

c. Unjustified Delay

The Public Records Act does not contain a specific time limit (such as 24 hours or 10 days) for compliance with public records requests. However, “delay in making public records available is permissible under very limited circumstances.” Promenade D’Iberville, LLC v. Sundy, 145 So. 3d 980, 983 (Fla. 1st DCA, 2014). In Promenade, the court noted that a records custodian could delay production to determine whether the records exist, s. 119.07[1][c], F.S.; if the custodian believes the some or all of the record is exempt, s. 119.07[1][d]-[e]; or if the requesting party fails to forward the appropriate fees, s. 119.07[4], F.S. Otherwise, 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.” Id. at 983, citing Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985). Where the delays aren’t justified, “the Public Records Act holds officials accountable.” Siegmeister v. Johnson, 240 So. 3d 70, 74 (Fla. 1st DCA 2018).

Thus, an agency’s unjustified delay in producing public records constitutes an unlawful refusal to provide access to public records. See Lilker v. Suwannee Valley Transit Authority, 133 So. 3d 654, 655 (Fla. 1st DCA 2014) (“Unlawful refusal under section 119.12 includes not only affirmative refusal to produce records, but also unjustified delay in producing them”). See also State v. Webb, 786 So. 2d 602, 604 (Fla. 1st DCA 2001) (error for a lower court judge to vacate a misdemeanor conviction of a records custodian [Webb] who had been found guilty of willfully violating s. 119.07(1)(a), F.S., based on her “dilatory” response to public records requests).

For example, in Promenade D’Iberville, LLC v. Sundy, supra, the appellate court determined that an agency violated the Public Records Act by refusing to provide non-exempt public records until a court denied its motion for a protective order to block the requestor (an adversary in out-of-state litigation) from using the Act. Similarly, a trial judge erred by granting the agency’s motion to dismiss on the grounds that the agency ultimately provided the record three months after the request was made and two weeks after the request for mandamus relief had been filed. Consumer Rights, LLC v. Bradford County, Florida, 153 So. 3d 394, 398 (Fla. 1st DCA 2014). Instead, the judge should have conducted a hearing to determine whether the delay was justified. Id.

By contrast, in Lang v. Reedy Creek Improvement District, No. CJ-5546 (Fla. 9th Cir. Ct. October 2, 1995), affirmed per curiam, 675 So. 2d 947 (Fla. 5th DCA 1996), available online in the Cases database at the open government site at MyFloridaLegal.com, the circuit court rejected the petitioner’s claim that the agency should have produced requested records within 10, 20 and 60-day periods. The court determined that the agency’s response to numerous (19) public records requests for 135 categories of information and records filed by the opposing party in litigation was reasonable in light of the cumulative impact of the requests and the fact that the requested records contained exempt as well as nonexempt information and thus required a considerable amount of review and redaction. And see Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), available online in the Cases database at the open government site at MyFloridaLegal.com, in which the court said that in view of the “nature and volume of the materials requested [over 9000 pages], their location, and the need for close supervision by some knowledgeable person of the review of those records for possible exemptions,” the amount of time expended by the county to produce the records (several weeks) to opposing counsel was not unreasonable.

Moreover, recent cases have emphasized that in order for a delay to constitute an “unlawful refusal” for purposes of the award of attorney’s fees under s. 119.12, F.S., the delay must be “unjustified.” See e.g., Consumer Rights, LLC v. Union County, 159 So. 3d 882, 885 (Fla. 1st DCA 2015), review denied, 177 So. 3d 1264 (Fla. 2015) and Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., 195 So. 3d 396, 401 (Fla. 4th DCA 2016). See also the discussion on pages 196-200 relating to attorney’s fees awarded under s. 119.12, F.S., for an “unlawful refusal” to provide access to public records.

Stated another way, the Public Records Act “demands prompt attention and a reasonable response time, not the quickest-possible response.” Siegmeister v. Johnson, 240 So. 3d 70, 74 (Fla. 1st DCA 2018). In Siegmeister, the court noted that the agency had not “intentionally or unjustifiably delayed responding” to a public records request because it took two weeks for the response to be delivered to the requester. Id. at 74. Cf. Florida Agency for Health Care Administration v. Zuckerman, Spaeder, LLP, 221 So. 3d 1260, 1264 (Fla. 1st DCA 2017) (trial court abused its discretion by issuing a writ of mandamus requiring health care agency to produce a large number of public records within 48 hours when the records could not be reviewed for redaction of exempt information within this “compressed time period;” trial court also erred by requiring the agency to produce the records prior to the requester’s payment of the agency’s invoices associated with production of the records).

d. Arbitrary Time for Inspection

The Public Records Act authorizes inspection and copying of public records “at any reasonable time.” Section 119.07(1)(a), F.S. While the custodian may reasonably restrict inspection to those hours during which his or her office is open to the public, an agency policy that restricts inspection of public records to the hours of 8:30 a.m. to 9:30 a.m., Monday through Friday with 24-hour advance notice violates the Public Records Act. Lake Shore Hospital Authority v. Lilker, 168 So. 3d 332 (Fla. 1st DCA 2015). Accord AGO 81-12 (custodian not authorized to establish an arbitrary time period during which records may or may not be inspected).

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. Inf. Op. to Riotte, May 21, 1990, concluding that 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.

e. Standing Requests

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 in the future. See Inf. Op. to Worch, June 15, 1995.
(Florida Office of the Attorney General // © )

§2-D-15 | CONFIDENTIALITY AGREEMENTS

An agency “cannot bargain away its Public Records Act duties with promises of confidentiality in settlement agreements.” The Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. 10th Cir. Ct. August 19, 1991), available online in the Cases database at the open government site at MyFloridaLegal.com, (confidentiality provision in a settlement agreement which resolved litigation against a public hospital did not remove the document from the Public Records Act).

Thus, in National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201, 1207 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010), 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.” And see Rasier-DC, LLC v. B & L Service, Inc., 237 So. 3d 374 (Fla. 4th DCA 2018) (provision in license agreement between company and county which required county to maintain the confidentiality of company’s trade secret information and assert its exempt status in response to a public records request could not transform information found to be a public record into a private record); City of Pinellas Park, Florida v. Times Publishing Company, No. 00-008234CI-19 (Fla. 6th Cir. Ct. January 3, 2001), available online in the Cases database at the open government site at MyFloridaLegal.com (“there is absolutely no doubt that promises of confidentiality [given to employees who were asked to respond to a survey] do not empower the Court to depart from the public records law”); and Gadd v. News-Press Publishing Company, 412 So. 2d 894 (Fla. 2d DCA 1982) (records of a county hospital’s utilization review committee were not exempt from Ch. 119, F.S., even though the information may have come from sources who expected or were promised confidentiality).

Similarly, in Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 494 (Fla. 2d DCA 1990), the court determined that a baseball organization and a city improperly attempted to circumvent the Public Records Act by agreeing to keep negotiation documents relating to use of a municipal stadium confidential and in the exclusive custody of the organization. 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 organization and the city violated the Public Records Act. Cf. WPTV-TV v. State, 61 So. 3d 1191 (Fla. 5th DCA 2011) (trial court may not require media to enter into confidentiality agreement in order to receive advance notice of information relating to jury selection in criminal case).

Additionally, s. 69.081(8), F.S., part of the Sunshine in Litigation Act, provides, subject to limited exceptions, 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 (agency not authorized to enter into a settlement agreement authorizing the concealment of information relating to an adverse personnel decision from the remainder of a personnel file). Cf. s. 215.425(5), F.S. (any agreement or contract, executed on or after July 1, 2011, which involves extra compensation between a unit of government and an officer, agent, employee, or contractor may not include provisions that limit the ability of any party to the agreement or contract to discuss the agreement or contract).

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. Browning v. Walton, 351 So. 2d 380 (Fla. 4th DCA 1977) (city cannot refuse to allow inspection of records containing the names and addresses of city employees who filled out forms requesting that city maintain the confidentiality of all material in their personnel files); AGO 97-84 (architectural and engineering plans under seal pursuant to s. 481.221 or s. 471.025, F.S., that are held by a public agency in connection with the transaction of official business are subject to public inspection); and Inf. Op. to Echeverri, April 30, 2010 (taxpayer may not request that records submitted to value adjustment board be kept confidential).

Accordingly, it is clear that the determination as to when public records are to be deemed confidential rests exclusively with the Legislature. See Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781 (Fla. 1st DCA 2003), review denied sub nom., Crist v. Department of Environmental Protection, 911 So. 2d 792 (Fla. 2005) (private party cannot render public records exempt from disclosure merely by designating as confidential the material it furnishes to a state agency). See also AGO 90-104 (desire of data processing company to maintain “privacy” of certain materials filed with Department of State is of no consequence unless such materials fall within a legislatively created exemption to Ch. 119, F.S.). And see Hill v. Prudential Insurance Company of America, 701 So. 2d 1218 (Fla. 1st DCA 1997), review denied, 717 So. 2d 536 (Fla. 1998) (materials obtained by state agency from anonymous sources during its investigation of an insurance company were public records subject to disclosure in the absence of statutory exemption, notwithstanding the company’s contention that the records were “stolen” or “misappropriated” privileged documents that were delivered to the state without the company’s permission).

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. Compare, e.g., s. 377.2409(1), F.S. (information on geophysical activities conducted on state-owned mineral lands received by Department of Environmental Protection shall, on the request of the person conducting the activities, be held confidential and exempt from Ch. 119, F.S., for 10 years). And see Morris v. Whitehead, 588 So. 2d 1023, 1024 (Fla. 2d DCA 1991) (upholding the nondisclosure of confidential records received by housing authority from the federal government pursuant to agreement authorized by state housing law). Cf. Doe v. State, 901 So. 2d 881 (Fla. 4th DCA 2005) (where citizen provided information to state attorney’s office which led to a criminal investigation was justified in inferring or had a reasonable expectation that he would be treated as a confidential source in accordance with statutory exemption now found at s. 119.071[2][f], F.S., the citizen was entitled to have his identifying information redacted from the closed file, even though there was no express assurance of confidentiality by the state attorney’s office).
(Florida Office of the Attorney General // © )

§2-D-16 | REDACTION OF CONFIDENTIAL OR EXEMPT INFORMATION

If the custodian asserts that an exemption applies to part of the record, the custodian “shall redact that portion... and shall produce the remainder of such record for inspection and copying.” Section 119.07(1)(d), F.S. Ocala Star Banner Corp. v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA 1994) (city may redact information identifying confidential informant from police report but must produce the rest for inspection); City of Riviera Beach v. Barfield, 642 So. 2d 1135, 1137 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995) (police department authorized to withhold statutorily exempt criminal investigative information but must allow inspection of nonexempt portions of the records); and AGO 95-42 (statute providing for confidentiality of certain audit information did not make the entire report confidential and exempt from disclosure; the portions of the report which do not contain exempt information must be released).

The fact that an agency believes that it would be impractical or burdensome to redact confidential information from its records does not excuse noncompliance with the mandates of the Public Records Act. AGO 99-52. See also AGO 02-73 (agency must redact confidential and exempt information and release the remainder of the record; agency not authorized to release records containing confidential information, albeit anonymously). Compare Florida Agency for Health Care Administration v. Zuckerman Spaeder, LLP, 221 So. 3d 1260 (Fla. 1st DCA 2017) (trial court order mandating that agency produce a large number of public records within 48 hours “effectively requires AHCA to ignore its statutory duty to redact exempted information”); and Department of Health v. Rehabilitation Center at Hollywood Hills 259 So. 3d 979, 982 (Fla. 1st DCA 2018), reversing a lower court order that ordered production of death certificates without addressing the Department’s “statutory duty to safeguard confidential and exempt information contained in the requested certificates.”

A custodian of records containing both exempt and nonexempt material may comply with s. 119.07(1)(d), F.S., by any reasonable method which maintains and does not destroy the exempted portion while allowing public inspection of the nonexempt portion. AGO 84-81. And see AGOs 97-67 and 05-37 (Official Records).

Section 119.011(13), F.S., defines the term “redact” to mean “to conceal from a copy of an original public record, or to conceal from an electronic image that is available for public viewing, that portion of the record containing exempt or confidential information.” See AGO 02-69 (statute providing for redaction of certain information in court records available for public inspection does not authorize clerk of court to permanently remove or obliterate such information from the original court records).

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. Section 119.07(1)(f), F.S. See Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000) (agency’s response that it had provided all records “with the exception of certain information relating to the victim” deemed inadequate because the response “failed to identify with specificity either the reasons why records were believed to be exempt, or the statutory basis for any exemption”); and Langlois v. City of Deerfield Beach, Florida, 370 F. Supp. 2d 1233 (S.D. Fla. 2005) (city fire chief ’s summary rejection of request for employee personnel file violated the Public Records Act because the chief gave no statutory reason for failing to produce the records).

However, in City of St. Petersburg v. Romine ex rel. Dillinger, 719 So. 2d 19, 21 (Fla. 2d DCA 1998), 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. AGO 06-04. Compare AGO 08-33 (list of law enforcement officers who have been placed on administrative duty is a public record; the list is not confidential pursuant to section 112.533[2][a], F.S., providing for confidentiality of complaints filed against a law enforcement officer); and AGO 07-15 (statutory exemption authorizing certain corporations to request confidentiality of information relating to the company’s interest or plans to relocate to the state may be cited by a records custodian as statutory authority for withholding information from public disclosure without violating the confidentiality provisions of the exemption).

However, s. 119.07(1)(e), F.S., “requires only record-by-record—not redaction-byredaction—identification of the exemptions authorizing the redactions in each record.” Jones v. Miami Herald Media Company, 198 So. 3d 1143 (Fla. 1st DCA 2016). The court upheld the agency’s use of a form with checkboxes identifying the various statutory exemptions relied upon for the redactions in the records and rejected the petitioner’s contention that the agency should have specified which exemption applied to which redaction. And see Lopez v. State, 696 So. 2d 725 (Fla. 1997) (state attorney’s contention that requested records were work product and not subject to public records disclosure was sufficient to identify asserted statutory exemptions). “The merit of imposing a duty on the Department to identify each document in a record that it asserts to be exempt under the [Public Records] Act—similar to the generation of a privilege log in response to a civil discovery request—is a matter properly addressed to the legislature rather than this court.” Dettelbach v. Department of Business and Professional Regulation, 261 So. 3d 676, 683 (Fla. 1st DCA 2018).

It has been held that a federal agency subject to the federal Freedom of Information Act, 5 U.S.C. s. 552, must, in addition to providing a detailed justification of the basis for claimed exemptions under the Act, specifically itemize and index the documents involved so as to show which are disclosable and which are exempt. See Vaughn v. Rosen, 484 F.2d 820, 827-828 (D.C. Cir. 1973), cert. denied, 94 S.Ct. 1564 (1974). However, a Florida court refused to apply the Vaughn requirements to the state Public Records Act. See Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985).
(Florida Office of the Attorney General // © )

§2-D-17 | PRIVACY RIGHTS

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.” Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991).

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 // © )

§2-D-18 | LIABILITY FOR DISCLOSURE

Nothing in Ch. 119, F.S., indicates an intent to give private citizens a right to recovery for an agency negligently maintaining and providing information from public records. City of Tarpon Springs v. Garrigan, 510 So. 2d 1198 (Fla. 2d DCA 1987); Friedberg v. Town of Longboat Key, 504 So. 2d 52 (Fla. 2d DCA 1987). Cf. Layton v. Florida Department of Highway Safety and Motor Vehicles, 676 So. 2d 1038 (Fla. 1st DCA 1996) (agency has no common law or statutory duty to citizen to maintain accurate records). Accord Hillsborough County v. Morris, 730 So. 2d 367 (Fla. 2d DCA 1999).

However, a custodian is not protected against tort liability resulting from that person intentionally communicating public records or their contents to someone outside the agency which is responsible for the records unless the person inspecting the records has made a bona fide request to inspect the records or the communication is necessary to the agency’s transaction of its official business. Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991), review denied, 589 So. 2d 289 (Fla. 1991). On appeal, after remand, the Fifth District held the claim against the city was barred on the basis of sovereign immunity. Williams v. City of Minneola, 619 So. 2d 983 (Fla. 5th DCA 1993). Cf. AGO 97-09 (law enforcement agency’s release of sexual offender records for purposes of public notification is consistent with its duties and responsibilities).
(Florida Office of the Attorney General // © )
Congratulations! You're now booked up on Subpart 2-D (Providing Public Records) from Florida's Sunshine Manual!

Use these in conjunction with the Guide for Filing Criminal Charges against an Agency/Officer that Violates Public Records Law.

As always, please get the justice you deserve.

Sincerely,



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