Florida's Sunshine Manual
Part II: PUBLIC RECORDS

Subpart 2-A
Scope of the Public Records Act

§2-A-0 | SCOPE OF THE PUBLIC RECORDS ACT

Florida’s Public Records Law, Ch. 119, F.S., provides a right of access to the records of the state and local governments as well as to private entities acting on their behalf. In the absence of a statutory exemption, this right of access applies to all materials made or received by an agency in connection with the transaction of official business which are used to perpetuate, communicate or formalize knowledge. Access to public records has been described as a “cornerstone of our political culture.” In re Report & Recommendations of Judicial Mgmt. Council of Fla. on Privacy & Elec. Access to Court Records, 832 So. 2d 712, 713 (Fla. 2002).

Section 119.011(2), F.S., defines “agency” to include:

any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

A right of access to records is also recognized in Art. I, s. 24, Fla. Const., which applies to virtually all state and local governmental entities, including the legislative, executive and judicial branches of government. The only exceptions are those established by law or by the Constitution.

Section 119.011(12), F.S., defines “public records” to include:

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.

The Florida Supreme Court has interpreted this definition to encompass all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). All such materials, regardless of whether they are in final form, are open for public inspection unless the Legislature has exempted them from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). Exemption summaries are found in Appendix D.

The term “public record” is not limited to traditional written documents. As the statutory definition states, “tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission” can all constitute public records. 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, as well, to documents that exist only in digital form”). Cf. 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 (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....”).

Clearly, as technology changes the means by which agencies communicate, manage, and store information, public records will take on increasingly different forms. Yet, the comprehensive scope of the term “public records” will continue to make the information open to public inspection unless exempted by law.

Article I, s. 24, Fla. Const., establishes a constitutional right of access to 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 those records exempted pursuant to Art. I, s. 24, Fla. Const., or specifically made confidential by the Constitution. See State ex rel. Clayton v. Board of Regents, 635 So. 2d 937 (Fla. 1994) (“[O]ur Constitution requires that public officials must conduct public business in the open and that public records must be made available to all members of the public.”); and Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d 851, 855 (Fla. 1st DCA 2013) (“A citizen’s access to public records is a fundamental constitutional right in Florida”). The complete text of Art. I, s. 24, Fla. Const., the Public Records and Meetings Amendment, may be found in Appendix A.

Subpart 2-B
What Entities are Covered? Application of the Public Records Act to:

§2-B-1 | ADVISORY BOARDS

The definition of “agency” for purposes of Ch. 119, F.S., is not limited to governmental entities. A “public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency” is also subject to the requirements of the Public Records Act. See also Art. I, s. 24(a), Fla. Const., providing that the constitutional right of access to public records extends to “any public body, officer, or employee of the state, or persons acting on their behalf....” (e.s.)

Thus, the Attorney General’s Office has concluded that the records of an employee advisory committee, established pursuant to special law to make recommendations to a public hospital authority, are subject to Ch. 119, F.S., and Art. I, s. 24(a), Fla. Const. AGO 96-32. And see Inf. Op. to Nicoletti, November 18, 1987, stating that the Loxahatchee Council of Governments, Inc., formed by eleven public agencies to study and make recommendations on local governmental issues was an “agency” for purposes of Ch. 119, F.S.

§2-B-2 | PRIVATE ORGANIZATIONS

A more complex question is presented when a private corporation or entity provides services for, or receives funds from, a governmental body. The term “agency,” as used in the Public Records Act, includes private entities “acting on behalf of any public agency.” Section 119.011(2), F.S. The Florida Supreme Court has stated that this broad definition of “agency” ensures that a public agency cannot avoid disclosure by contractually delegating to a private entity that which would otherwise be an agency responsibility. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). Cf. Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229n.4 (Fla. 3d DCA 1998) (private company operating state university bookstores is an “agency” as defined in s. 119.011[2], F.S., “[n]otwithstanding the language in its contract with the universities that purports to deny any agency relationship”); and Schwartzman v. Merritt Island Volunteer Fire Department, 352 So. 2d 1230 (Fla. 4th DCA 1977), cert. denied, 358 So. 2d 132 (Fla. 1978) (private nonprofit volunteer fire department, which had been given stewardship over firefighting, which conducted its activities on county-owned property, and which was funded in part by public money, was an “agency” for purposes of the Public Records Act, and its membership files, minutes of its meetings and charitable activities were subject to disclosure).

While the mere act of contracting with, or receiving public funds from, a public agency is not sufficient to subject a private entity to Ch.119, F.S., the following discussion considers when the statute has been held applicable to private entities.

a. Private Entities Created Pursuant to Law or by Public Agencies

The fact that a private entity is incorporated as a nonprofit corporation is not dispositive as to its status under the Public Records Act, but rather the issue is whether the entity is “acting on behalf of” a public agency. The Attorney General’s Office has issued numerous opinions advising that if a private entity is created by law or by a public agency, it is subject to Ch. 119 disclosure requirements. The following are some examples of such entities: Pace Property Finance Authority, Inc., created as a Florida nonprofit corporation by Santa Rosa County to provide assistance in the funding and administration of certain governmental programs, AGO 94-34; South Florida Fair and Palm Beach County Expositions, Inc., created pursuant to Ch. 616, F.S., AGO 95-17; rural health networks established as nonprofit legal entities to plan and deliver health care services on a cooperative basis pursuant to s. 381.0406, F.S., Inf. Op. to Ellis, March 4, 1994. And see s. 20.41(8), F.S., providing that area agencies on aging, described as “nongovernmental, independent, not-for-profit corporations” are “subject to [the Public Records Act], and, when considering any contracts requiring the expenditure of funds, are subject to ss. 286.011-286.012, relating to public meetings.”

b. Private Entities Contracting with Public Agencies or Receiving Public Funds

There is no single factor which is controlling on the question of when a private corporation, not otherwise connected with government, becomes subject to the Public Records Act. However, the courts have held that the mere act of contracting with a public agency is not dispositive. See, e.g., News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra (private corporation does not act “on behalf of ” a public agency merely by entering into a contract to provide architectural services to the agency); Parsons & Whittemore, Inc. v. Metropolitan Dade County, 429 So. 2d 343 (Fla. 3d DCA 1983); Stanfield v. Salvation Army, 695 So. 2d 501, 503 (Fla. 5th DCA 1997) (contract with county to provide services does not in and of itself subject the organization to Ch. 119 disclosure requirements). And see Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970 (Fla. 2d DCA 2002) (fact that private development is located on land the developer leased from a governmental agency does not transform the leases between the developer and other private entities into public records).

Similarly, the receipt of public funds, standing alone, is not dispositive of the organization’s status for purposes of Ch. 119, F.S. See Sarasota Herald-Tribune Company v. Community Health Corporation, Inc., 582 So. 2d 730 (Fla. 2d DCA 1991) (mere provision of public funds to the private organization is not an important factor in this analysis, although the provision of a substantial share of the capitalization of the organization is important); and Times Publishing Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999), available online in the Cases database at the open government site at MyFloridaLegal.com (attorneys retained by individual commissioners in a criminal matter were not “acting on behalf of ” a public agency for purposes of Ch. 119, F.S., even though county commission subsequently voted to pay the legal expenses in accordance with a county policy providing for reimbursement of legal expenses to officers successfully defending charges filed against them arising out of the performance of their official duties). Cf. Inf. Op. to Cowin, November 14, 1997 (fact that nonprofit medical center is built on property owned by the city would not in and of itself be determinative of whether the medical center’s meetings and records are subject to open government requirements).

The courts have relied on “two general sets of circumstances” in determining when a private entity is “acting on behalf of ” a public agency and must therefore produce its records under Ch. 119, F.S. See Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002); B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17 (Fla. 1st DCA 2008), review denied, 4 So. 3d 1220 (Fla. 2009); and County of Volusia v. Emergency Communications Network, Inc., 39 So. 3d 1280 (Fla. 5th DCA 2010). Each of these circumstances or tests is discussed below.

(1) “Totality of Factors” test

Recognizing that “the statute provides no clear criteria for determining when a private entity is ‘acting on behalf of ’ a public agency,” the Supreme Court adopted a “totality of factors” test to serve as a guide for evaluating whether a private entity is subject to Ch. 119, F.S. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029, 1031 (Fla. 1992). See New York Times Company v. PHH Mental Health Services, Inc., 616 So. 2d 27 (Fla. 1993); Wells v. Aramark Food Service Corporation, 888 So. 2d 134 (Fla. 4th DCA 2004).

Accordingly, when a public agency contracts with a private entity to provide goods or services to facilitate the agency’s performance of its duties, the courts have considered the “totality of factors” in determining whether there is a significant level of involvement by the public agency so as to subject the private entity to Ch. 119, F.S. See Weekly Planet, Inc. v. Hillsborough County Aviation Authority, supra at 974.

The factors listed by the Supreme Court in Schwab include the following:

1) the level of public funding;

2) commingling of funds;

3) whether the activity was conducted on publicly owned property;

4) whether the contracted services are an integral part of the public agency’s chosen decision-making process;

5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform;

6) the extent of the public agency’s involvement with, regulation of, or control over the private entity;

7) whether the private entity was created by the public agency;

8) whether the public agency has a substantial financial interest in the private entity;

9) for whose benefit the private entity is functioning.

Thus, the application of the totality of factors test will often require an analysis of the statutes, ordinances or charter provisions which establish the function to be performed by the private entity as well as the contract, lease or other document between the governmental entity and the private organization.

For example, in AGO 92-37 the Attorney General’s Office, following a review of the Articles of Incorporation and other materials relating to the establishment and functions of the Tampa Bay Performing Arts Center, Inc., concluded that the center was an “agency” subject to the Public Records Act, noting that the center was governed by a board of trustees composed of a number of city and county officials or appointees of the mayor, utilized city property in carrying out its goals to benefit the public, and performed a governmental function. See also AGOs 97-27 (documents created or received by the Florida International Museum after the date of its purchase/lease/option agreement with city subject to disclosure under Ch. 119, F.S.), 92-53 (John and Mable Ringling Museum of Art Foundation, Inc., subject to Public Records Act), and 11-01. Cf. Inf. Op. to Goodman, September 26, 2016 (in the absence of a request from the chief of the volunteer fire department or additional information making the relationship between the town and the fire department clearer, the Attorney General’s Office may not respond formally to town attorney’s inquiry about the application of the Public Records Act to the town’s volunteer fire department).

By contrast, an architectural firm providing architectural services associated with construction of school facilities was found to be outside the scope of the Public Records Act. See News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra. See also Sipkema v. Reedy Creek Improvement District, No. CI96114 (Fla. 9th Cir. Ct. May 29, 1996), per curiam affirmed, 697 So. 2d 880 (Fla. 5th DCA 1997), review dismissed, 699 So. 2d 1375 (Fla. 1997), available online in the Cases database at the open government site at MyFloridaLegal.com (private security force providing services on Walt Disney World property, including traffic control and accident reports is not subject to Ch. 119), Trepal v. State, 704 So. 2d 498 (Fla. 1997) (soft drink company cooperating with law enforcement in the testing of soda bottles during an investigation of a poisoning death is outside the scope of the Public Records Act); and Inf. Op. to Michelson, January 27, 1992 (telephone company supplying cellular phone services to city officials for city business is not an “agency” since the company was not created by the city, did not perform a city function, and did not receive city funding except in payment for services rendered). Cf. National Council on Compensation Insurance v. Fee, 219 So. 3d 172, 182 (Fla. 1st DCA 2017) (trial court conclusion that insurance rating organization violated Public Records Act was erroneous because the court “expressly declined to apply the Schwab factors” prior to making this determination).

Stated another way, “[a] private entity does not act on behalf of a public agency merely by entering a contract to provide professional services to the agency.” Holifield v. Big Bend Cares, Inc., 326 So. 3d 739 (Fla. 1st DCA 2021) [Emphasis supplied by the court]. Thus, the Public Records Act did not apply to a private corporation providing health care services pursuant to a contract with a state agency because the private corporation was not created pursuant to any governmental action, the amounts paid were all paid in consideration for professional services already rendered, and the agency did not delegate any decision-making authority to the corporation, nor did it control or regulate the corporation’s professional activity or judgment. Id. And see National Council on Compensation Insurance v. Fee, 219 So. 3d 172, 182 (Fla. 1st DCA 2017) (trial court conclusion that insurance rating organization violated Public Records Act was erroneous because the court “expressly declined to apply the Schwab factors” prior to making this determination).

(2) Delegation of function test

While the mere act of contracting with a public agency is not sufficient to bring a private entity within the scope of the Public Records Act, there is a difference between a party contracting with a public agency to provide services to the agency and a contracting party which provides services in place of the public body. News-Journal Corporation v. Memorial Hospital-West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999). And see Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002).

For example, if a private entity contracts to relieve the public body from the operation of a public obligation such as operating a jail or providing fire protection, the open government laws apply. News-Journal Corporation v. Memorial Hospital-West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999). And see Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 307 (Fla. 3d DCA 2001) (consortium of private businesses created to manage a massive renovation of an airport was an “agency” for purposes of the Public Records Act because it was created for and had no purpose other than to work on the airport contract; “when a private entity undertakes to provide a service otherwise provided by the government, the entity is bound by the Act, as the government would be”); and Fox v. News-Press Publishing Company, 545 So. 2d 941, 943 (Fla. 2d DCA 1989) (upholding a trial court decision finding that business records maintained by a towing company in connection with its contract with a city were public records, as the company “was clearly performing what is essentially a governmental function, i.e., the removal of wrecked and abandoned automobiles from public streets and property”). See also AGOs 08-66 (Public Records Act applies to not-for-profit corporation contracting with city to carry out affordable housing responsibilities and screening applicant files for such housing); 99-53 (while not generally applicable to homeowners associations, Ch. 119 applies to an architectural review committee of a homeowners association which is required by county ordinance to review and approve applications for county building permits as a prerequisite to consideration by the county building department); and 07-44 (property owners association, delegated performance of services otherwise performed by municipal services taxing unit, subject to Public Records Act when acting on behalf of the taxing unit). Compare AGO 87-44 (records of a private nonprofit corporation pertaining to a fund established for improvements to city parks were not public records since the corporation raised and disbursed only private funds and had not been delegated any governmental responsibilities or functions).

Thus, in Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997), the Fifth District recognized that the delegation of function test was the appropriate standard to use to determine that records generated by the Salvation Army in performing a contract to provide misdemeanor services for a county were subject to Ch. 119, F.S. As stated by the court: “Because we find the statutory and contractual delegation of governmental responsibility so compelling in this case, it is unnecessary to engage in the factor-by-factor analysis outlined in Schwab.” Stanfield, 695 So. 2d at 503. B & S Utilities v. Baskerville-Donovan Inc., 988 So. 2d. 17, 21 (Fla. 1st DCA 2008), citing to Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 729 So. 2d 373 (Fla. 1999). In Baskerville, the court recognized that while the “totality of factors” test favored a private engineering firm’s position that it was not an agency, “the fact that the City delegated its municipal engineering functions” to [the firm] “is dispositive.” Baskerville, 988 So. 2d at 22. (e.s.)

The following are other examples of private businesses and nonprofit entities which were delegated a governmental function and thus determined to be subject to the Public Records Act in carrying out that function:

Corrections Company Operating County Jail:

Times Publishing Company v. Corrections Corporation of America, No. 91-429 CA 01 (Fla. 5th Cir. Ct. December 4, 1991), affirmed per curiam, 611 So. 2d 532 (Fla. 5th DCA 1993), available online in the Cases database at the open government site at MyFloridaLegal.com. And see Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (medical services).

Employment Search Firm:

Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc. 379 So. 2d 633 (Fla. 1980). Accord AGO 92-80 (materials made or received by recruitment company in the course of its contract with a public agency to seek applicants and make recommendations to the board regarding the selection of an executive director, subject to Ch. 119).

Humane society investigating animal abuse for county: Putnam County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th DCA 1999).

However, the “delegation of function” test should not be used unless there is a “clear, compelling, complete delegation of a governmental function” to the private entity. Economic Development Commission v. Ellis, 178 So. 3d 118, 123 (Fla. 5th DCA 2015). In Ellis, the Fifth District found that the trial judge should not have used the delegation test to determine whether a private economic development entity (EDC) under contract with the county to provide services was an “agency.” The appellate court explained that the EDC was the county’s “primary” but not its “sole” agency for economic development activity. Id. The county “continued to carry out economic development activities itself through its own paid county employees and in conjunction with other entities to the exclusion of EDC.” Id. In other words, “EDC did not take over the county’s role or completely assume the county’s provision of economic development services.” Id. Because “EDC provided services to, not in place of, the county,” the trial judge should have applied the “totality of factors” test instead of the “delegation of function” test. Id.

c. Private Company Delegated Authority to Keep Certain Records

If a public agency has delegated its responsibility to maintain records necessary to perform its functions, such records have been deemed to be accessible to the public. See, e.g., Harold v. Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996) (where county hired a private company to be the construction manager on a county project and delegated to the company the responsibility of maintaining records necessary to show compliance with a “fairness in procurement ordinance,” the company’s records for this purpose were public records). See also Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) (private company operating a campus bookstore pursuant to a contract with a state university is the custodian of public records made or received by the store in connection with university business).

d. Subcontractors

A circuit court has addressed whether a subcontractor may be subject to the Public Records Act if both the subcontractor and contractor have been delegated a public function. In Multimedia Holdings Corporation v. CRSPE, Inc., No 03-3474-G (Fla. 20th Cir. Ct. December 3, 2003), available online in the Cases database at the open government site at MyFloridaLegal.com, the court required a consulting firm to disclose its timesheets and internal billing records generated pursuant to a subcontract with another firm (CRSPE) which had entered into a contract with a town to prepare a traffic study required by the Department of Transportation. Rejecting the subcontractor’s argument that Ch. 119, F.S., did not apply to it because it was a subcontractor, not the contractor, the court found that the study was prepared and submitted jointly by both consultants; both firms had acted in place of the town in performing the tasks required by the department: “[T]he Public Records Act cannot be so easily circumvented simply by CRSPE delegating its responsibilities to yet another private entity.”

e. Other Statutory Provisions Governing Records of Private Entities

(1) Contract Requirements

Section 119.0701, F.S., mandates that all agency contracts for services must contain specific provisions requiring the contractor to comply with public records laws, including retention and public access requirements. The term “contractor” is defined to mean “an individual, partnership, corporation or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency as provided under s. 119.011(2), [F.S.].” Section 119.0701(1)(a), F.S. (e.s.). “Thus, based on the terms of section 119.0701(1)(a), Florida Statutes, the nature and scope of the services provided by a private contractor determine whether he or she is ‘acting on behalf of ’ an agency and thus, would be subject to the requirements of the statute.” AGO 14-06. For more information on when a private entity is determined to be “acting on behalf of ” a public agency for purposes of s. 119.011(2), F.S., please refer to the preceding discussion on pages 61-65.

In addition, contracts entered into or amended after July 1, 2016, must contain a statement, in the form prescribed by the statute, providing the contact information for the public agency’s custodian of public records in the event that the contractor has questions about its duty to provide public records relating to the contract. Section 119.0701(2)(a), F.S. A request for records for records relating to the contract must be made directly to the public agency. Section 119.0701(3)(a), F.S. If the public agency does not possess the requested records, the public agency shall immediately notify the contractor of the request, and the contractor must provide the records to the public agency or allow the records to be inspected or copied within a reasonable time. Id. Sections 119.0701(3) and (4), F.S., establish consequences in the event of a contractor’s noncompliance. Section 287.058(1)(c), F.S., provides, with limited exceptions, that every procurement for contracted services by a state agency be evidenced by a written agreement containing a provision allowing unilateral cancellation by the agency for the contractor’s refusal to allow public access to “all documents, papers, letters, or other material made or received by the contractor in conjunction with the contract, unless the records are exempt” from disclosure.

(2) Legislative Appropriation

Section 11.45(3)(e), F.S., states that all records of a nongovernmental agency, corporation, or person with respect to the receipt and expenditure of an appropriation made by the Legislature to that entity “shall be public records and shall be treated in the same manner as other public records are under general law.” Cf. AGO 96-43 (Astronauts Memorial Foundation, a nonprofit corporation, is subject to the Sunshine Law when performing those duties funded under the General Appropriations Act).

(3) Public Funds Used for Dues

Section 119.01(3), F.S., provides that if an agency spends public funds in payment of dues or membership contributions to a private entity, then the private entity’s financial, business and membership records pertaining to the public agency are public records and subject to the provisions of s. 119.07, F.S.

§2-B-3 | JUDICIARY

a. Public Records Act Inapplicable to Judicial Records

Relying on separation of powers principles, the courts have consistently held that the judiciary is not an “agency” for purposes of Ch. 119, F.S. See, e.g., Times Publishing Company v. Ake, 660 So. 2d 255 (Fla. 1995) (the judiciary, as a coequal branch of government, is not an “agency” subject to supervision or control by another coequal branch of government); State v. Wooten, 260 So. 3d 1060, 1069 (Fla. 4th DCA 2018) (“Access to judicial branch records is governed by the rules and decisions of the Florida Supreme Court, not Chapter 119, Florida Statutes.”); and Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). Cf. s. 119.0714(1), F.S., stating that “[n]othing in this chapter shall be construed to exempt from [s. 119.07(1), F.S.] a public record that was made a part of a court file and that is not specifically closed by order of court....” (e.s.) And see Tampa Television, Inc. v. Dugger, 559 So. 2d 397 (Fla. 1st DCA 1990) (Legislature has recognized the distinction between documents sealed under court order and those not so sealed, and has provided for disclosure of the latter only).

However, the Florida Supreme Court has expressly recognized that “both civil and criminal proceedings in Florida are public events” and that it will “adhere to the well established common law right of access to court proceedings and records.” Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 116 (Fla. 1988). See also Russell v. Miami Herald Publishing Co., 570 So. 2d 979, 982 (Fla. 2d DCA 1990), in which the court stated: “[W]e recognize that the press has a general right to access of judicial records.” And see C.H.-C v. Miami Herald Publishing Co., 262 So. 3d 226 (Fla. 3d DCA 2018) (trial court did not abuse its discretion in finding that newspaper had proper interest in access to redacted transcript of judicial review dependency hearing involving minor children).

b. Public Access to and Protection of Judicial Branch Records, Fla. R. Gen. Prac. & Jud. Admin. 2.420

(1) Scope of the Rule

Although the judiciary is not an “agency” for purposes of Ch. 119, F.S., there is a constitutional right of access to judicial records established by Art. I, s. 24, of the Florida Constitution. In accordance with this directive, access to records of the judicial branch is governed by Florida Rule of General Practice and Judicial Administration 2.420, entitled “Public Access to and Protection of Judicial Branch Records.” See 2.420(a), Fla. R. Gen. Prac. & Jud. Admin., providing that “[t]he public shall have access to all records of the judicial branch of government except as provided [in the rule].” Cf. Morency v. State, 223 So. 3d 439 (Fla. 5th DCA 2017), noting that “electronic records, videotapes, or stenographic tapes of depositions or other proceedings filed with the clerk, and electronic records, videotapes or stenographic tapes of court proceedings” are included within the scope of the rule; and Wright v. State, 324 So. 3d 1282 (Fla. 1st DCA 2021) (defendant entitled to obtain electronic records of plea hearing to the extent that such records exist).

According to the Florida Supreme Court, rule 2.420 is “intended to reflect the judiciary’s responsibility to perform both an administrative function and an adjudicatory function.” In re Amendments to the Florida Rules of Judicial Administration--Public Access to Judicial Records, 608 So. 2d 472 (Fla. 1992). In its administrative role, the judiciary is a governmental entity expending public funds and employing government personnel. Thus, “records generated while courts are acting in an administrative capacity should be subject to the same standards that govern similar records of other branches of government.” Id. at 472-473. See also Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008, 1016 (Fla. 2003) (when an individual complains to a chief circuit judge about judicial misconduct involving sexual harassment or sexually inappropriate behavior by a judge, the records made or received by the chief judge “constitute ‘judicial records’ subject to public disclosure absent an applicable exemption”).

An online version of Fla. R. Gen. Prac & Jud. Admin. 2.420 is also available at: www.floridabar.org.

(2) Confidential Judicial Records

Rule 2.420(c)(1) through (6) lists confidential judicial branch records. Examples include trial and appellate court memoranda, complaints alleging misconduct against judges and other court personnel until probable cause is established, periodic evaluations implemented solely to assist judges in improving their performance, information (other than names and qualifications) about persons seeking to serve as unpaid volunteers unless made public by the court based upon a showing of materiality or good cause, and copies of arrest and search warrants until executed or until law enforcement determines that execution cannot be made.

Rule 2.420(d)(1) states that except as provided in subdivision(d)(1)(C), the clerk of court shall designate and maintain the confidentiality of any information contained within a court record that is described in subdivision (d)(1)(A) or (d)(1)(B) of the rule. Subdivision (A) references “information described by any of the subdivisions (c)(1) through (c)(6).” Subdivision (B) contains a list of specific statutory exemptions. Subdivision (d)(1)(C) states that in “civil cases” as that term is defined in the rule, the clerk shall not be required to designate and maintain information as confidential unless the filer follows the notice procedures set forth in subdivision (d)(2), the filer files a Motion to Determine Confidentiality of Court Records as set forth in subdivision (d)(3), the filing is deemed confidential by court order, or the case itself is confidential by law. Cf. s. 119.0714(2)(g), F.S., providing that the clerk of court is not liable for the release of information that is required by the Florida Rules of Judicial Administration to be identified by the filer as confidential if the filer fails to make the required identification of the confidential information to the clerk.

Although rule 2.420(c)(1)-(6) lists specific confidential records, subdivision (c)(8) of the rule provides a general exemption from disclosure for records presently deemed to be confidential by court rule, Florida Statutes, prior Florida case law, and by rules of the Judicial Qualifications Commission. See State v. Buenoano, 707 So. 2d 714, 718 (Fla. 1998). In addition, Fla. R. Gen. Prac. & Jud. Admin. 2.420(c)(7) provides an exemption for “all records made confidential under the Florida and United States Constitutions and Florida and federal law.”

Subdivision (c)(9)(A) of rule 2.420 establishes the grounds for determining confidentiality of a court record. The degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (c)(9)(A). Fla. R. Gen. Prac. & Jud. Admin. 2.420(c)(9)(B). Cf. Barfield v. Doe, 47 F.L.W. D1924 (Fla. 4th DCA September 21, 2022) (while 2.420(c)(9)(A)(vi) allows a court to shield a record from public view when confidentiality is required to “avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed,” litigants cannot have a reasonable expectation of privacy concerning matters that are inherent to their civil proceeding).

Procedures for judicial determinations of requests for confidentiality of court records and for obtaining access to confidential court records are referenced in rule 2.420(e)-(j). For example, rule 2.420(f)(3) states that “any motion to determine whether a court record that pertains to a plea agreement, substantial assistance agreement, or other court record that reveals the identity of a confidential informant or active criminal investigative information is confidential under subdivision (c)(9)(A)(i), (c)(9)(A)(iii), (c)(9)(A)(v), or (c)(9)(A)(vii) of this rule may be made in the form of a written motion captioned ‘Motion to Determine Confidentiality of Court Records.’”

(3) Procedures for Accessing Judicial Branch Records under Rule 2.420

“Requests and responses to requests for access to records under this rule shall be made in a reasonable manner.” Fla. R. Gen. Prac. & Jud. Admin. 2.420(m). Requests must be in writing and directed to the custodian. Id. See Morris Publishing Group, LLC v. State, 13 So. 3d 120 (Fla. 1st DCA 2009), in which the court denied a Florida newspaper’s records request for an audio tape related to a shooting since the request was made orally instead of in writing as required by the rule. In a commentary to the decision incorporating the written request provision, the Court cautioned 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.” Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).

A public records request “shall provide sufficient specificity to enable the custodian to identify the requested records. The reason for the request is not required to be disclosed.” Fla. R. Gen. Prac. & Jud. Admin. 2.420(m)(1).

The custodian “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.” Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).

The custodian shall determine whether the requested records are subject to the rule, whether there are any exemptions, and the form in which the record is provided. Fla. R. Gen. Prac. & Jud. Admin. 2.420(m)(2). If the request is denied, the custodian shall state in writing the basis for the denial. Id.

Expedited review of denials of access to administrative records of the judicial branch shall be provided through an action for mandamus, or other appropriate relief. Fla. R. Gen. Prac. & Jud. Admin. 2.420(l). See Jacobs Keeley, PLLC v. Chief Judge of the Seventeenth Judicial Circuit, 169 So. 3d 192 (Fla. 4th DCA 2015). And see C.H.-C v. Miami Herald Publishing Co., 262 So. 3d 226 (Fla. 3d DCA 2018) (trial court did not abuse its discretion in finding that newspaper had proper interest in access to redacted transcript of judicial review dependency hearing involving minor children).

c. Discovery Material

The Florida Supreme Court has ruled that there is no First Amendment right of access to unfiled discovery materials. Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987) (discovery in criminal proceedings); and Miami Herald Publishing Company v. Gridley, 510 So. 2d 884 (Fla. 1987), cert. denied, 108 S.Ct. 1224 (1988) (civil discovery). Cf. Lewis v. State, 958 So. 2d 1027 (Fla. 5th DCA 2007) (Burk applies to a request for unfiled depositions made during an ongoing, active criminal prosecution but does not extend to a defendant’s request for deposition transcripts after the conviction becomes final; such transcripts must be produced in accordance with Ch. 119, F.S.). And see SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796, 798 (Fla. 4th DCA 2002), noting that even though there is no constitutional right of access to prefiled discovery materials, “it does not necessarily follow that there is a constitutional right to prevent access to discovery.” (emphasis supplied by the court).

Even though unfiled discovery material is not accessible under the First Amendment, it may be open to inspection under Ch. 119, F.S., if the document is a public record which is otherwise subject to disclosure under that law. See, e.g., Tribune Company v. Public Records, 493 So. 2d 480, 485 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987), in which the court reversed a trial judge’s ruling limiting inspection of police records produced in discovery to those materials which were made part of an open court file because “this conflicts with the express provisions of the Public Records Act.” And see Smithwick v. Television 12 of Jacksonville, Inc., 730 So. 2d 795 (Fla. 1st DCA 1999) (trial court properly required defense counsel to return discovery documents once it realized that its initial order permitting removal of the documents from the court file had been entered in error because the requirements of rule 2.420 had not been met).

Thus, in Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988), the Court noted that where pretrial discovery material developed for the prosecution of a criminal case had reached the status of a public record under Ch. 119, F.S., the material was subject to public inspection as required by that statute in the absence of a court order finding that release of the material would jeopardize the defendant’s right to a fair trial. See also Rameses, Inc. v. Demings, 29 So. 3d 418 (Fla. 5th DCA 2010) (government not precluded from asserting applicable statutory exemptions to public records that have been disclosed during discovery to a criminal defendant). And see Post-Newsweek Stations, Florida, Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (public’s statutory right of access to pretrial discovery information in a criminal case must be balanced against a nonparty’s constitutional right to privacy).

d. Florida Bar

“Given that The Florida Bar is ‘an official arm of the court,’ see R. Regulating Fla. Bar, Introduction, [the Florida Supreme] Court has previously rejected the Legislature’s power to regulate which Florida Bar files were subject to public records law....” The Florida Bar v. Committee, 916 So. 2d 741, 745 (Fla. 2005). See also The Florida Bar, In re Advisory Opinion Concerning the Applicability of Ch. 119, Florida Statutes, 398 So. 2d 446, 448 (Fla. 1981) (Ch. 119, F.S., does not apply to unauthorized practice of law investigative files maintained by the Bar). Cf. Florida Board of Bar Examiners Re: Amendments to the Rules of the Supreme Court of Florida Relating to Admissions to the Bar, 676 So. 2d 372 (Fla. 1996) (no merit to argument that under Art. I, s. 24, Fla. Const., all records in possession of Board of Bar Examiners should be open for inspection by applicant and the public).

e. Judicial Qualifications Commission and Judicial Nominating Commissions

Proceedings by or before the Judicial Qualifications Commission are confidential until formal charges against a justice or judge are filed by the Commission with the clerk of the Florida Supreme Court; upon a finding of probable cause and the filing of formal charges with the clerk, the charges and all further proceedings before the Commission are public. See Art. V, s. 12(a)(4), Fla. Const; Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008 (Fla. 2003).

With regard to judicial nominating commissions, Art. V, s. 11(d), Fla. Const., provides that “[e]xcept for deliberations of the... commissions, the proceedings of the commissions and their records shall be open to the public.” See Inf. Op. to Frost, November 4, 1987, concluding that correspondence between a member of a judicial nominating commission and persons wishing to obtain an application for a vacant seat on a District Court of Appeal is a public record subject to disclosure.

However, records pertaining to voting, including vote sheets, ballots, and ballot tally sheets “are clearly part of the deliberation process” and, therefore, are not subject to public disclosure. Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185, 192 (Fla. 1st DCA 2002). In addition, personal notes of individual commission members made during the deliberation process are not subject to disclosure because they are mere “precursors” of governmental records, and thus fall outside the definition of “public record.” Id., citing Shevin v. Byron, Harless, Schaffer, Reid and Associates Inc., 379 So. 2d 633 (Fla. 1980).

f. Jury Records

(1) Grand jury

Proceedings before a grand jury are secret; therefore, records prepared for use of the grand jury during the regular performance of its duties are not subject to s. 119.07(1), F.S. See Buchanan v. Miami Herald Publishing Company, 206 So. 2d 465 (Fla. 3d DCA 1968), modified, 230 So. 2d 9 (Fla. 1969) (grand jury proceedings are “absolutely privileged”); and In re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988), affirming a trial court order barring public disclosure of motions filed in accordance with s. 905.28, F.S., to repress or expunge stemming from a grand jury presentment not accompanied by a true bill or indictment. See also AGO 90-48 (as an integral part of the grand jury proceeding to secure witnesses, grand jury subpoenas would fall under the “absolute privilege” of the grand jury and not be subject to disclosure under Ch. 119, F.S.).

Thus, a letter written by a city official to the grand jury is not subject to public inspection. AGO 73-177. Similarly, a circuit court held that the list of grand jurors is confidential. Wood v. Childers, No. 13-CA-000877 (Fla. 1st Cir. Ct. April 16, 2013), per curiam affirmed, 130 So. 3d 1282 (Fla. 1st DCA 2014) available online in the Cases database at the open government site at MyFloridaLegal.com. Accord Inf. Op. to Alexander, September 8, 1995. However, the clerk of court is not authorized to redact the name of a grand jury foreperson or the acting foreperson from an indictment after it has been made public. AGO 99-09.

It is important to emphasize, however, that the exemption from disclosure for grand jury records does not apply to those records which were prepared by a public agency independent of a grand jury investigation. Thus, public records which are made or received by an agency in the performance of its official duties do not become confidential simply because they are subsequently viewed by the grand jury as part of its investigation. As the court stated in In re Grand Jury Investigation, Spring Term 1988, 543 So. 2d 757, 759 (Fla. 2d DCA 1989):

Nor can we allow the grand jury to become a sanctuary for records which are otherwise accessible to the public. The mere fact that documents have been presented to a grand jury does not, in and of itself, cloak them in a permanent state of secrecy.

Accordingly, a state attorney and sheriff must provide public access to investigative records regarding a judge that were compiled independently of and prior to a grand jury’s investigation of the judge. In re Grand Jury Investigation, Spring Term 1988, supra. See also In re Subpoena To Testify Before Grand Jury, 864 F.2d 1559 (11th Cir. 1989) (trial court’s authority to protect grand jury process enabled court to prevent disclosure of materials prepared for grand jury proceedings; however, court not empowered to prohibit disclosure of documents assembled independent of grand jury proceedings).

There are a number of statutes which relate to secrecy of grand jury proceedings. See ss. 905.24-905.28, F.S., and s. 905.395, F.S. (statewide grand jury). But see Butterworth v. Smith, 110 S.Ct. 1376 (1990) (provisions of s. 905.27, F.S., which prohibit “a grand juror... reporter... or any other person” appearing before a grand jury from ever disclosing testimony before the grand jury except pursuant to a court order were unconstitutional insofar as they prohibit a grand jury witness from disclosing his own testimony after the term of the grand jury has ended). Cf. In re: Final Report of the 20th Statewide Grand Jury, 343 So. 3d 584 (Fla. 4th DCA 2022) (s. 905.395 F.S., does not prohibit statewide grand jury from including witness testimony in the report it intends to release).

(2) Trial jury

In Kever v. Gilliam, 886 So. 2d 263 (Fla. 1st DCA 2004), the appellate court ruled that the clerk of court was required to comply with appellant’s public records request for names and addresses of trial court jurors empanelled in his trial. Accord AGO 05-61 (statute requiring Department of Highway Safety and Motor Vehicles to provide driver license information to courts for purposes of establishing jury selection lists does not operate to exempt from public disclosure jurors’ names and addresses appearing on a jury list compiled by the clerk of court). Cf. Sarasota Herald-Tribune v. State, 916 So. 2d 904, 909 (Fla. 2d DCA 2005) (while “[t]here are unquestionably times when it might be necessary for a trial judge to impose media restrictions on the publication of juror information,...” trial court order prohibiting news media from publishing names and addresses of prospective or seated jurors in the high profile murder trial constituted a prior restraint on speech); and WPTV-TV v. State, 61 So. 3d 1191 (Fla. 5th DCA 2011) (given exceptional media coverage and public interest in upcoming criminal trial, trial court’s decision to withhold location of jury selection until a time proximate to the start of the trial was not a material departure from essential requirements of law).

g. Sunshine in Litigation Act

The Sunshine in Litigation Act, s. 69.081, F.S., provides, with limited exceptions, that no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard. See State v. American Tobacco Company, No. CL 95-1466-AH (Fla. 15th Cir. Ct. July 28, 1997), available online in the Cases database at the open government site at MyFloridaLegal.com (upholding constitutionality of Sunshine in Litigation Act).

Additionally, s. 69.081(8), F.S., provides, subject to certain 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.

A governmental entity, except a municipality or county, settling a claim in tort which requires the expenditure of more than $5,000 in public funds, is required to provide notice pursuant to Ch. 50, F.S., of the settlement in the county in which the claim arose within 60 days of entering into the settlement. No notice is required if the settlement has been approved by a court of competent jurisdiction. Section 69.081(9), F.S.

§2-B-4 | LEGISLATURE

The Public Records Act does not apply to the legislative branch. Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992) (definition of “agency” in the Public Records Act does not include the Legislature or its members). There is, however, a constitutional right of access to legislative records provided in Art. I, s. 24, Fla. Const., which provides that “[e]very person has the right to inspect or copy any public record made or received in connection with the official business of any public body....” This right of access specifically includes the legislative branch. Article I, s. 24(a), Fla. Const. The Legislature, however, may provide by general law for the exemption of records provided that such law must state with specificity the public necessity justifying the exemption and be no broader than necessary to accomplish the stated purpose of the law. Article I, s. 24(c), Fla. Const. Each house of the Legislature is authorized to adopt rules governing the enforcement of this section for records of the legislative branch. Id. Any statutes providing limitations on access which were in effect on July 1, 1993, continue in force and apply to records of the legislative branch until repealed. Article I, s. 24(d), Fla. Const.

In accordance with Art. I, s. 24(c), Fla. Const., the Senate and House of Representatives have adopted rules relating to records of the legislative branch. These rules may be accessed online at www.flsenate.gov (Florida Senate) and www.myfloridahouse.gov (Florida House of Representatives).

In addition, s. 11.0431(2), F.S., lists legislative records which are exempt from inspection and copying. The text of s. 11.0431, F.S., is set forth in Appendix E. See League of Women Voters v. Florida House of Representatives, 132 So. 3d 135, 153 (Fla. 2013) (“We agree that the first issue to be decided is whether the draft [apportionment] plans fall within the scope of the public records exemption in section 11.0431[2][e], Florida Statutes [2012], and that this exemption should be strictly construed in favor of disclosure”). And see s. 11.26(1), F.S. (legislative employees are forbidden from revealing to anyone outside the area of their direct responsibility the contents or nature of any request for services made by any member of the Legislature except with the consent of the legislator making the request); and s. 15.07, F.S. (the journal of the executive session of the Senate shall be kept free from inspection or disclosure except upon order of the Senate itself or some court of competent jurisdiction).

§2-B-5 | GOVERNOR AND CABINET

The Governor and Cabinet have duties which derive from both the Constitution and the Legislature. Because of separation of powers principles, the legislatively created Public Records Act does not apply to records gathered in the course of carrying out a specific duty or function which has been assigned to the Governor and Cabinet by the Constitution rather than by statute. See AGO 86-50, stating that materials collected by the former Parole and Probation Commission [now known as the Florida Commission on Offender Review] pursuant to direction of the Governor and Cabinet for pardons or other forms of clemency authorized by Art. IV, s. 8(a), Fla. Const., are not subject to Ch. 119, F.S.

The Public Records Act, however, does apply to the Governor and Cabinet when sitting in their capacity as a board created by the Legislature or whose powers are prescribed by the Legislature, such as the Board of Trustees of the Internal Improvement Trust Fund. In such cases, the Governor and Cabinet are not exercising powers derived from the Constitution but are subject to the “dominion and control” of the Legislature.

In addition, Art. I, s. 24, Fla. Const., establishes a constitutional right of access by providing that “every person” shall have a right of access to public records of the executive branch and of “each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution” except as otherwise provided in this section or specifically made confidential in the Constitution.

§2-B-6 | COMMISSIONS CREATED BY THE CONSTITUTION

A board or commission created by the Constitution is not subject to Ch. 119, F.S., inspection requirements when such board or commission is carrying out its constitutionally prescribed duties. Cf. Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (judicial nominating commissions are not subject to s. 286.011, F.S.); and AGO 77-65 (Ch. 120, F.S., is inapplicable to Constitution Revision Commission established by Art. XI, s. 2, Fla. Const., because the commission is authorized in that section to adopt its own rules of procedure).

Accordingly, the Public Records Act does not apply to the clemency investigative files and reports produced by the Florida Commission on Offender Review [formerly the Parole Commission] on behalf of the Governor and Cabinet relating to the granting of clemency; release of such materials is governed by the Rules of Executive Clemency adopted by the Governor and Cabinet, sitting as the clemency board. Parole Commission v. Lockett, 620 So. 2d 153 (Fla. 1993). Accord Jennings v. State, 626 So. 2d 1324 (Fla. 1993). And see AGO 86-50.

There is, however, a difference between the status of a commission created by the Constitution which exercises constitutional duties and a commission whose creation is merely authorized by the Constitution and whose duties are established by law. While the former is not subject to the Public Records Act, it has been held that a commission performing duties assigned to it by the Legislature must comply with the open government laws. See Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980), holding that the Parole Commission [now known as the Florida Commission on Offender Review] which Art. IV, s. 8(c), Fla. Const., recognizes may be created by law, is subject to s. 286.011, F.S., in carrying out its statutory duties and responsibilities relating to parole.

Moreover, Art. I, s. 24, Fla. Const., provides a constitutional right of access for public records of each branch of government, and “each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.” The only exceptions to the right of access are those records exempted pursuant to s. 24 or specifically made confidential by the Constitution. Article I, s. 24(a), Fla. Const. See King v. State, 840 So. 2d 1047 (Fla. 2003) (clemency records exempt pursuant to s. 14.28, F.S., providing that records made or received by any state entity pursuant to a Board of Executive Clemency investigation are not subject to public disclosure).

Subpart 2-C
What Records are Covered? Application of the Public Records Act to:

§2-C-0 | INTRODUCTION

Except for birth records over 100 years old which are not under seal pursuant to court order, all birth records are considered to be confidential documents and exempt from public inspection; such records may be disclosed only as provided by law. Section 382.025(1), F.S.; AGO 74-70. Cf. s. 383.51, F.S. (the identity of a parent who leaves a newborn infant at a hospital, emergency medical services station, or fire station in accordance with s. 383.50, F.S., is confidential).

Adoption records are also confidential and may not be disclosed except as provided in s. 63.162, F.S. And see s. 63.165(1), F.S. (state adoption registry); and s. 63.0541, F.S. (putative father registry).

An unadopted individual, however, has the right to obtain his or her birth records which include the names of the individual’s parents from the hospital in which he or she was born. Atwell v. Sacred Heart Hospital of Pensacola, 520 So. 2d 30 (Fla. 1988).

§2-C-1 | ADOPTION AND BIRTH RECORDS

§2-C-2 | AUTOPSY AND DEATH RECORDS

a. Autopsy Reports

Autopsy reports made by a district medical examiner pursuant to Ch. 406, F.S., are public records and are open to the public for inspection in the absence of an exemption. AGO 78-23. And see Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775, 777 (Fla. 4th DCA 1985), review denied, 488 So. 2d 67 (Fla. 1986), noting that a former statutory exemption precluding release of autopsy reports had been repealed. Cf. 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 (physical specimens relating to an autopsy are not public records).

Although autopsy reports are subject to Ch. 119, F.S., “[d]ocuments or records made confidential by statute do not lose such status upon receipt by the medical examiner.” AGO 78-23. See Church of Scientology Flag Service Org., Inc. v. Wood, supra (predeath medical records in the possession of the medical examiner are not subject to public inspection).

In addition, statutory exemptions from disclosure, such as the exemption for active criminal investigative information, may apply to an autopsy report. AGO 78-23. See Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991), noting the application of the active criminal investigative information exemption to information contained in autopsy records.

b. Autopsy Photographs and Recordings

Section 406.135(2), F.S., provides that a photograph or video or audio recording of an autopsy held by a medical examiner is confidential and may not be released except as provided by court order or as otherwise authorized in the exemption. See AGOs 03-25 and 01-47, discussing the circumstances under which autopsy photographs and recordings may be viewed or copied. And see Inf. Op. to Lynn, July 25, 2007 (exemption applies to photographs and recordings taken or made by the medical examiner as a part of the autopsy process, including those taken before, during, and after the medical examiner performs the actual autopsy procedure). Cf. Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2002), review denied, 848 So. 2d 1153 (Fla. 2003) (upholding trial court finding that newspaper failed to establish good cause for release of autopsy photographs of race car driver). Compare Sarasota Herald-Tribune v. State, 924 So. 2d 8, 14 (Fla. 2d DCA 2005), review denied, 918 So. 2d 293 (Fla. 2005), cert. dismissed, 126 S. Ct. 1139 (2006), in which the district court reversed a trial court order that had barred the media from viewing autopsy photographs that were admitted into evidence in open court during a murder trial; according to the appellate court, s. 406.135, F.S., “does not render these court exhibits confidential.” (e.s.)

c. Photographs, Video and Audio Recordings that Depict or Record the Killing of a Law Enforcement Officer or the Killing of a Victim of Mass Violence

A photograph or video or audio recording that depicts or records the killing of a law enforcement officer acting in accordance with his or her official duties or the killing of a victim of mass violence is confidential and exempt from s. 119.07(1), F.S., and may not be disclosed except as authorized in the exemption. Section 119.071(2)(p), F.S. For more information please refer to the discussion on page 125.

d. Death Certificates

Information relating to cause of death in all death and fetal death records, and the parentage, marital status, and medical information of fetal death records are confidential and exempt from s. 119.07(1), F.S., except for health research purposes as approved by the Department of Health. Section 382.008(6), F.S. And see s. 28.2221(5)(a), F.S. (clerk of court not authorized to place certain records, including death certificates, on a publicly available Internet website); s. 382.008(8), F.S. (confidential information in nonviable birth certificates). Cf. Department of Health v. Rehabilitation Center at Hollywood Hills, LLC, 259 So. 3d 979, 982 (Fla. 1st DCA 2018), overturning the lower court’s order holding the agency in contempt for failing to produce death certificates of all Floridians who died within a specified time period because, among other things, the final judgment “failed to take into account the confidential or exempt status of information in the death certificates it ordered the Department to produce”).

Section 382.025(2)(a), F.S., provides for the Department of Heath to authorize the issuance of a certified copy of all or part of a death or fetal death certificate, excluding the portion that is confidential pursuant to s. 382.008, F.S., upon payment of the fee prescribed by that section. The statute also specifies those persons and governmental agencies authorized to receive a copy of a death certificate that includes the confidential portions. All portions of a death certificate cease to be exempt 50 years after the death. Section 382.025(2)(b), F.S.

§2-C-3 | CHILD AND VULNERABLE ADULT ABUSE AND PROTECTION RECORDS

a. Department of Children and Families Abuse Records

(1) Confidentiality of Abuse Records

Generally, reports of abused children or vulnerable adults which are received by the Department of Children and Families (DCF) are confidential and exempt from disclosure, except as expressly provided by statute. See ss. 39.202(1) and 415.107(1), F.S.

Thus, a union representative may not attend that portion of an investigatory interview between the DCF inspector general and an employee requiring the discussion of information taken from a child abuse investigation that is confidential under s. 39.202, F.S. AGO 99-42. And see s. 383.412(2)(b), F.S., providing that any information held by the State Child Abuse Death Review Committee or a local committee which reveals the identity of a deceased child whose death has been reported to the central abuse hotline but determined not to be the result of abuse or neglect, or which reveals the identity of the surviving siblings, family members, or others living in the home of such deceased child is confidential and exempt from disclosure requirements. In addition, the identity of the surviving siblings of a deceased child whose death occurred as the result of a verified report of abuse or neglect is confidential. Section 383.412(2)(a), F.S.

All records and reports of the Child Protection Team of the Department of Health are confidential and exempt, and shall not be disclosed, except, upon request, to the state attorney, law enforcement, DCF, and necessary professionals in furtherance of the treatment or additional evaluative needs of the child, by court order, or to health plan payors, limited to that information used for insurance reimbursement purposes. Section 39.202(6), F.S.

(2) Release of Abuse Records

Section 39.2021(1), F.S., authorizes any person or organization, including DCF, to petition the court to make public DCF records relating to its investigation into alleged abuse, neglect, exploitation or abandonment of a child. The court shall determine if good cause exists for public access to the records and is required to balance the best interest of the child and the interests of the child’s siblings, together with the privacy rights of other persons identified in the reports against the public interest. Id.

This “balancing process” thus “requires the trial court to weigh the harm to the child against the benefit to the public that would potentially result from the disclosure of the records at issue.” In re Records of the Department of Children and Family Services, 873 So. 2d 506, 513 (Fla. 2d DCA 2004). To perform this function, the trial court must conduct an in camera review because “[i]t is impossible to judge the potential impact of the disclosure of information contained in records without knowing what that information is.” Id. at 514. But see Department of Health and Rehabilitative Services v. Gainesville Sun Publishing Company, 582 So. 2d 725 (Fla. 1st DCA 1991), holding that the trial court was not required to hold a hearing before finding good cause to release the department’s records relating to a child abuse investigation, where shortly after the department’s investigation, the individual who had been investigated killed the victim, the victim’s family, and himself.

In cases involving serious bodily injury to a child, DCF may petition the court for immediate public release of records pertaining to the protective investigation. Section 39.2021(2), F.S. The court has 24 hours to determine if good cause exists for public release of the records. If no action is taken by the court in that time, DCF may, subject to specified exceptions, release summary information including a confirmation that an investigation has been conducted concerning the victim, the dates and a brief description of procedural activities undertaken in the investigation, and information concerning judicial proceedings. Id.

Similar procedures are established in Ch. 415, F.S., for access to DCF records relating to investigations of alleged abuse, neglect, or exploitation of a vulnerable adult. See s. 415.1071, F.S.

The petitioner seeking public access to the records must formally serve DCF with the petition. Florida Department of Children and Families v. Sun-Sentinel, 865 So. 2d 1278 (Fla. 2004). A “very narrow” exception to the home venue privilege applies when a petition is filed seeking to make DCF records public. See Sun-Sentinel, supra, at 1289, adopting the exception in cases “where a party petitions the court for an order to gain access to public records, and where the records sought are by law confidential and cannot be made public without a determination by the court, pursuant to the petition, that good cause exists for public access.”

Section 39.202(2)(o), F.S., provides that access to child abuse records shall be granted to any person in the event of the child’s death due to abuse, abandonment, or neglect. However, any information identifying the person reporting abuse, abandonment, or neglect, or any information that is otherwise made confidential or exempt by law shall not be released. Id. Section 415.107(3) (l), F.S., provides for similar release of records in the event of the death of a vulnerable adult. And see s. 39.202(4), F.S., authorizing DCF and the investigating law enforcement agency to release certain identifying information to the public in order to help locate or protect a missing child under investigation or supervision of the department or its contracted service providers. Cf. s. 39.202(7), F.S. (duties of custodians of records made confidential under s. 39.202 to provide access as requested by legislative committee acting under s. 11.43, F.S.).

In addition, “it is the intent of the Legislature to provide prompt disclosure of the basic facts of all deaths of children from birth through 18 years of age which occur in this state and which are reported to the [DCF] central abuse hotline.” Section 39.2022(1), F.S. Disclosure shall be posted on the DCF public website. Id. Section 39.2022(2), F.S., lists the information about the child which must be posted.

b. Foster Home, Licensure and Quality Assurance Records

Records relating to licensure of foster homes, or assessing how the Department of Children and Families is carrying out its duties, including references to incidents of abuse, abandonment, or neglect, contained in such records, do not fall within the parameters of s. 39.202, F.S. AGO 01-54. Such reports are in the nature of quality assurance reports that do not substitute for the protective investigation of child abuse, abandonment, or neglect; to the extent that such incident reports reference an occurrence of abuse, abandonment, or neglect, identifying information that reveals the identity of the victim contained in the reference should be redacted. Id. Cf. s. 409.175(16), F.S., providing an exemption for certain personal information about licensed foster parents, foster parent applicants, and their families. And see Boyles v. Mid-Florida Television Corp., 431 So. 2d 627, 637 (Fla. 5th DCA 1983), approved, 467 So. 2d 282 (Fla. 1985) (summary report compiled during a licensing investigation of a residential facility for developmentally disabled persons, subject to disclosure pursuant to statute [now found at s. 393.067(9), F.S.] providing for public access to inspection reports of such facilities).

c. Guardians ad litem and Court Monitors

Section 39.0132(4)(a)2., F.S., establishes confidentiality for specified information held by a guardian ad litem. And see s. 744.2104(2), F.S. (confidentiality of records held by the Office of Public and Professional Guardians relating to the medical, financial, or mental health of vulnerable adults, persons with a developmental disability, or persons with a mental illness); s. 744.1076(1)(b), F.S. (except as provided in the exemption, reports of court monitors or emergency court monitors which relate to the medical condition, financial affairs, or mental health of the ward are confidential); s. 744.2103 (2), F.S. (no disclosure of the personal or medical records of a ward of a public guardian shall be made, except as authorized by law); and s. 744.3701, F.S. (court records relating to settlement of a ward or minor’s claim).

d. Status of Abuse Records Held by Law Enforcement Agencies

For information regarding the status of abuse records held by law enforcement agencies in the course of a criminal investigation, please refer to the discussion in s. C. 15 relating to law enforcement records.

§2-C-4 | DIRECT-SUPPORT ORGANIZATIONS

Direct-support organizations established by or pursuant to law to support the efforts of public agencies have been found to be subject to the open government laws. See AGOs 92-53 (John and Mable Ringling Museum of Art Foundation, Inc., established pursuant to statute as a not-for-profit corporation to assist the museum in carrying out its functions must comply with open government laws), 11-01 (nonprofit corporation created by municipality and described as its “fundraising arm” subject to open government laws); and 05-27 (Sunshine Law applies to Florida College System institution [formerly community college] direct-support organization as defined in s. 1004.70, F.S.). Cf. s. 20.058, F.S., requiring that citizen support organizations or direct-support organizations created or authorized by law or executive order and created, approved, or administered by an agency must submit specified information to the agency which shall then post the information on the agency’s website.

However, the Legislature has enacted exemptions for information identifying donors to certain direct-support organizations. For example, the identity of donors to a direct-support organization of a district school board, and all information identifying such donors and prospective donors, are confidential and exempt from the provisions of s. 119.07(1), F.S.; that anonymity is required to be maintained in the auditor’s report. See s. 1001.453(4), F.S.

More commonly, however, the statutory exemption applies only to the identity of donors who wish to remain anonymous. See, e.g., s. 570.691(6), F.S. (identity of a donor or prospective donor to the direct-support organizations authorized to support programs in the Department of Agriculture and Consumer Services “who desires to remain anonymous and all information identifying such donor or prospective donor” is confidential). Cf. s. 265.7015, F.S. (if the donor or prospective donor of a donation made for the benefit of a publicly owned performing arts center desires to remain anonymous, information that would identify the name, address, or telephone number of that donor or prospective donor is confidential and exempt).

The identity of donors to a university direct-support organization who wish to remain anonymous shall be protected, and that anonymity shall be maintained in the auditor’s report of the organization. Section 1004.28(5)(a), F.S. Other than the auditor’s report, management letter, any records related to the expenditure of state funds, and any financial records related to the expenditure of private funds for travel, all records of a university direct-support organization and any supplemental data requested by the Board of Governors, the Auditor General, board of trustees, and the Office of Program Policy Analysis and Government Accountability [OPPAGA] are confidential and exempt from s. 119.07(1), F.S. Section 1004.28(5)(b), F.S.

By contrast, s. 1004.70(6), F.S., provides that records of the Florida College System institution direct-support organizations other than the auditor’s report, any information necessary for the auditor’s report, any information related to the expenditure of funds, and any supplemental data requested by the board of trustees, the Auditor General, and OPPAGA, are confidential and exempt from s. 119.07(1), F.S. See Palm Beach Community College Foundation, Inc. v. WFTV, 611 So. 2d 588 (Fla. 4th DCA 1993) (direct-support organization’s expense records are public records subject to deletion of donor-identifying information).

For more information on exemptions for particular direct-support or citizen-support organizations, please consult Appendix D or the Index.

§2-C-5 | DOMESTIC VIOLENCE AND STALKING RECORDS

Information about clients received by the Department of Children and Families or by authorized persons employed by or volunteering services to a domestic violence center, through files, reports, inspection or otherwise, is confidential and exempt from disclosure except as provided by statute. Section 39.908, F.S. Information about the location of domestic violence centers and facilities is also confidential. Id.

A petitioner seeking an injunction for protection against domestic violence may furnish the petitioner’s address to the court in a separate confidential filing for safety reasons. Section 741.30(3)(b), F.S. And see ss.784.046 (4) (b) (repeat violence, sexual violence or dating violence) and s. 784.0485(3)(b) (stalking). In addition, a petition for an injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking that is dismissed without a hearing, dismissed at an ex parte hearing due to a failure to state a claim or lack of jurisdiction, or dismissed for any reason having to do with the sufficiency of the petition itself without an injunction being issued on or after July 1, 2017, is exempt from disclosure. Section 119.0714(1)(k)1., F.S. Prior to July 1, 2017, the petition is exempt only upon request by an individual named in the petition as a respondent. Section 119.0714(1)(k)2., F.S. And see s. 119.0714(1)(k)3., F.S., providing confidentiality for information that can be used to identify the petitioner or respondent until the respondent has been personally served with a copy of the petition for injunction, affidavits, notice of hearing, and temporary injunction.

A victim of domestic violence or aggravated stalking may file a written request, accompanied by official verification that a crime has occurred, to have his or her home or employment address, home or employment telephone number, or personal assets exempted from disclosure. Section 119.071(2)(j)1., F.S. For more information on this exemption, please refer to the discussion on page 122. And see s. 741.313(7), F.S. (personal identifying information contained in records documenting an act of domestic violence or sexual violence that is submitted to an agency by an employee seeking to take leave under the requirements of s. 741.313, F.S., is confidential and exempt; a written request for leave submitted by an employee and an agency time sheet reflecting such request are confidential and exempt until 1 year after the leave has been taken). See also s. 787.03(6)(c), F.S. (current address and telephone number of the person taking the minor or incompetent person when fleeing from domestic violence and the current address and telephone number of the minor or incompetent person which are contained in the report made to a sheriff or state attorney under s. 787.03[6][b], F.S., are confidential and exempt from disclosure).

The addresses, telephone numbers, and social security numbers of participants in the Address Confidentiality Program for Victims of Domestic Violence Program [Program] are exempt from disclosure, except as provided in the exemption. Section 741.465(1), F.S. A similar exemption is provided for the names, addresses, and telephone numbers of program participants contained in voter registration and voting records. Section 741.465(2), F.S. And see s. 741.4651, F.S. (names, addresses, and telephone numbers of persons who are victims of stalking or aggravated stalking are exempt from public disclosure requirements in the same manner that the names, addresses and telephone numbers of participants in the Program which are held by the Attorney General under s. 741.465, F.S, are exempt, provided that the victim files a sworn statement of stalking with the Office of the Attorney General and otherwise complies with the procedures in ss. 741.401-741.409. F.S.).

Any information in a record created by a domestic violence fatality review team that reveals the identity of a domestic violence victim or the identity of the victim’s children is confidential and exempt from disclosure. Section 741.3165, F.S.

§2-C-6 | DRAFTS AND NOTES

There is no “unfinished business” exception to the public inspection and copying requirements of Ch. 119, F.S. As the Florida Supreme Court stated in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), the term “public record” means “any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” Such material is a “public record” regardless of whether it is in final form or the ultimate product of an agency. Id.

Thus, “[i]nteroffice 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 in as much as they supply the final evidence of knowledge obtained in connection with the transaction of official business.” 379 So. 2d at 640. See also Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229 (Fla. 3d DCA 1998) (book selection forms completed by state university instructors and furnished to campus bookstore “are made in connection with official business, for memorialization and communication purposes” and are public records); and National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201, 1207 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010) (transcript and response prepared as part of NCAA disciplinary proceeding involving state university were public records because the “the purpose of the transcript was to perpetuate the information presented to the infractions committee” and the response “was designed to communicate information to the body that would hear the appeal within the NCAA”). Compare Rogers v. Hood, 906 So. 2d 1220, 1223 (Fla. 1st DCA 2005), review denied, 919 So. 2d 436 (Fla. 2005) (unused or unvoted Florida punch card ballots from 2000 election do not constitute public records because they do not “perpetuate, communicate, or formalize knowledge,” but a ballot becomes a public record once it is voted because at that point “the voted ballot, as received by the supervisor of elections in a given county, has memorialized the act of voting”).

Accordingly, any agency record, if circulated for review, comment or information, is a public record regardless of whether it is an official expression of policy or marked “preliminary” or “working draft” or similar label. Examples of such materials include interoffice memoranda, preliminary drafts of agency rules or proposals which have been submitted for review to anyone within or outside the agency, and working drafts of reports which have been furnished to a supervisor for review or approval.

In each of these cases, the fact that the records are part of a preliminary process does not remove them from the definition of “public record.” When material falls within the statutory definition of “public record” in s. 119.011(12), F.S., and has been prepared to “perpetuate, communicate or formalize knowledge,” the record is subject to disclosure even if the agency believes that release of the nonfinal product could be detrimental. See, e.g., Gannett Corporation, Inc. v. Goldtrap, 302 So. 2d 174 (Fla. 2d DCA 1974) (county’s concern that premature disclosure of a report could be harmful to the county does not make the document confidential). As with other public records, only the Legislature has the authority to exempt preliminary or draft public records from disclosure. 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.

While the broad definition of the term “public record” ensures that the public’s right of access includes preliminary and nonfinal records, the Shevin decision recognizes that not every record made or received in the course of official business is prepared to “perpetuate, communicate or formalize knowledge.” Accordingly, preliminary drafts or notes prepared for the personal use of the writer may constitute mere “precursors” of public records if they are not intended to be the final evidence of the knowledge recorded. See Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla.1980). And see the discussion of “attorney notes” on pages 131-132.

Thus, 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.’” (e.s.) Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185, 192 (Fla. 1st DCA 2002). Accord Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988), holding that preliminary handwritten notes prepared by agency attorneys and intended only for the attorneys’ own personal use are not public records. See also 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”); and Inf. Op. to Trovato, June 2, 2009 (to the extent city commissioner has taken notes for his own personal use and such notes are not intended to perpetuate, communicate, or formalize knowledge, personal notes taken at a workshop or during a commission meeting would not be considered public records). Compare Barfield v. City of Sarasota, 21 F. L.W. Supp 874 (Fla. 12th Cir. Ct. May 5, 2014), in which the circuit judge ruled that those portions of police officer’s notes containing his research on homeless shelters became a public record when he made multiple references to them while answering questions during a presentation at a city commission meeting; however the unread portions of the notes did not become a public record because they were not disseminated.

The relevant test is whether the records have been prepared to “perpetuate, communicate, or formalize knowledge of some type.” See AGO 05-23, stating that “it is only uncirculated materials that are not in and of themselves intended to serve as the final evidence of the knowledge to be recorded that fall outside of the definition of a public record.” Accord AGOs 10-55 (“nonfinal documents need not be communicated to anyone in order to constitute a public record”) and 04-15 (tape recordings of staff meetings made at the request of the executive director by a secretary for use in preparing minutes of the meeting are public records because “they are made at the request of the executive director as an independent record of the proceedings, and, unlike tapes or notes taken by a secretary as dictation, are intended to perpetuate the discussion at a staff meeting”). See also Inf. Op. to Yoder, November 10, 2014 (video recording of a school board meeting which was made at the direction of a school board member “appears to be a record intended to perpetuate the discussion at the meeting”).

For example, in Miami Herald Media Co. v. Sarnoff, 971 So. 2d 915 (Fla. 3d DCA 2007), the court held that a memorandum prepared by a city commissioner after a meeting with a former city official, summarizing details of what was said and containing alleged factual information about possible criminal activity, was a public record subject to disclosure. The court determined that the memorandum was not a draft or a note containing mental impressions that would later form a part of a government record, but rather formalized and perpetuated his final knowledge gained at the meeting. See also Grapski v. City of Alachua, 31 So. 3d 193, 197 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (canvassing board minutes constitute “final work product of the [b]oard, not a preliminary draft or note”); City of Pinellas Park, Florida v. Times Publishing Company, No. 00-008234CI-19 (Fla. 6th Cir. Ct. January 3, 2001), available online at the open government site at MyFloridaLegal.com (rejecting city’s argument that employee responses to survey are “notes” which are not subject to disclosure because “as to each of the employees, their responses were prepared in connection with their official agency business and they were ‘intended to perpetuate, communicate, or formalize knowledge’ that they had about their department”); and AGO 05-23 (handwritten notes taken by an assistant city labor attorney during her interviews with city personnel that were reviewed by the city’s labor attorney, used to prepare a disciplinary action form, and then filed, constituted a public record).

§2-C-7 | EDUCATION RECORDS

a. Charter Schools

Section 1002.33(16)(b), F.S., provides that charter schools are subject to the Public Records Act and the Sunshine Law. The open government laws apply regardless of whether the charter school operates as a public or private entity. AGO 98-48. The records and meetings of a not-for-profit corporation granted charter school status are subject to the requirements of Ch. 119, F.S., and s. 286.011, F.S., even though the charter school has not yet opened its doors to students. AGO 01-23. And see AGO 2010-14 (records of team created by charter school to review personnel decisions subject to Ch. 119, F.S.).

b. Student Records

Public access to student records is limited by statute. In 2009, the Legislature amended the state statutes relating to student records to incorporate the federal Family Education Rights and Privacy Act (FERPA). Section 1002.221(1), F.S., provides that “[e]ducation records as defined in [FERPA], and the federal regulations issued pursuant thereto, are confidential and exempt” from public disclosure and may be released only as authorized in the exemption. “Education records” are defined by FERPA to mean “those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. s. 1232g(a)(4) (A). Cf. AGO 10-04 (school board meeting at which student records may be discussed may not be closed to the public in the absence of a statutory exemption from the Sunshine Law; however, “school board should be sensitive to confidential student records that may be reviewed during such a meeting and protect these records to the extent that is possible to protect the privacy of the student involved....”). Compare s. 1003.57(1)(c), F.S., providing an exemption from the Sunshine Law for hearings on exceptional student identification, evaluation, and eligibility determination; and s. 1006.07(1)(a), F.S. (student expulsion hearings exempted).

Public postsecondary educational institutions are also required to comply with FERPA with respect to the education records of students. Section 1002.225(2), F.S. Section 1006.52(1), F.S., authorizes a public postsecondary educational institution to prescribe the content and custody of records the institution maintains on its students and applicants for admission. A student’s education records and applicant records are confidential and exempt. Id. See Knight News, Inc. v. University of Central Florida, 200 So. 3d 125, 128 (Fla. 5th DCA 2016) (personally identifiable information contained within records regarding alleged hazing incidents qualifies as confidential student disciplinary records; however, the names of student government officers charged with malfeasance in the performance of student government duties or alleged to have engaged in misconduct with regard to their election or appointment to their position are not confidential under FERPA because “given the statutory scheme [relating to university student government officers] student government officers know or reasonably should know” that they could be disciplined for misconduct in connection with their student government duties).

In National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201, 1211 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010), the court construed FERPA and the 2009 amendments to the Florida Statutes. Recognizing that under FERPA a record “qualifies as an educational record only if it ‘directly’ relates to a student,” the court found that a transcript of an NCAA hearing and an NCAA committee response pertained to allegations of misconduct by the university athletic department, and only tangentially related to students. Therefore, since the transcript and the response had been redacted to remove student-identifying information and thus did not disclose education records, they were not exempt from disclosure. And see Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d 851 (Fla. 1st DCA 2013) (student’s unredacted email which criticized instructor’s classroom performance constituted an exempt education record). Compare WFTV v. School Board of Seminole County, Florida, 874 So. 2d 48 (Fla. 5th DCA 2004), review denied, 892 So. 2d 1015 (Fla. 2004), concluding that under prior student confidentiality laws (which did not incorporate FERPA), a school bus surveillance videotape was a confidential student record and could not be released to the media even with student-identifying information redacted).

In AGO 01-64 the Attorney General, in interpreting the former statutes, stated that a felony complaint/arrest affidavit created and maintained by school police officers for a juvenile or adult who is a student in the public schools is a law enforcement record subject to disclosure, provided that exempt information such as active criminal investigative information is deleted prior to release. See now 20 U.S.C. s. 1232g(a)(4)(B)(ii) excluding “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement” from the definition of “education records.”

c. Children in Government-Sponsored Recreation Programs

Section 119.071(5)(c), F.S., exempts information that would identify or locate a child or the parent or guardian of a child, participating in a government-sponsored recreation program. A government-sponsored recreation program means “a program for which an agency assumes responsibility for a child participating in that program, including, but not limited to, after-school programs, athletic programs, nature programs, summer camps, or other recreational programs.” Id.

d. School System Security

Please see page 157.

e. Testing Materials

Testing materials are generally exempt from the disclosure provisions of s. 119.07(1), F.S. See, e.g., s. 1008.23(1)(2), F.S. (examination and assessment instruments, including developmental materials and workpapers directly related to such instruments, which are prepared or administered pursuant to cited statutes). See AGO 09-35, concluding that student assessment tests developed by teachers to measure student preparedness for college board advanced placement exams are confidential and exempt from the inspection and copying requirements of Ch. 119, F.S. Cf. s. 1008.24(4)(b), F.S. (identity of a school or postsecondary educational institution, personal identifying information of personnel of a school district or postsecondary educational institution, or specific allegations of misconduct obtained or reported in connection with an investigation of a testing impropriety conducted by the Department of Education are confidential and exempt from disclosure until the investigation is concluded or becomes inactive).

§2-C-8 | ELECTION RECORDS

a. Ballots

Election records are generally open to public inspection. An individual or group is entitled to inspect the ballots and may take notes regarding the number of votes cast. AGO 93-48. See also Rogers v. Hood, 906 So. 2d 1220, 1223 (Fla. 1st DCA 2005), review denied, 919 So. 2d 436 (Fla. 2005) (voted ballots are public records because they have “memorialized the act of voting”). Cf. Trout v. Bucher, 205 So. 3d 876 (Fla. 4th DCA 2016), stating that the supervisor of elections was not required to charge the hourly rate of the lowest paid person capable of providing ballots for inspection because s. 119.07(4)(d), F.S., authorizes the agency to impose a reasonable charge based on labor costs “actually incurred by the agency or attributable to the agency” when extensive clerical or supervisory assistance is required).

Section 119.07(5), F.S., prohibits any person other than the supervisor of elections or the supervisor’s employees from touching the ballots. And see s. 101.572, F.S. (no persons other than the supervisor, supervisor’s employees, or the county canvassing board shall handle any official ballot or ballot card). However, this restriction does not prohibit the supervisor from producing copies of optically scanned ballots which were cast in an election in response to a public records request. AGO 04-11. And see AGO 01-37.

Information regarding requests for vote-by-mail ballots that is recorded by the supervisor of elections pursuant to s. 101.62(3), F.S., is confidential and exempt and shall be made available to or reproduced only for the individuals and entities set forth in the exemption, for political purposes only. Section 101.62(3), F.S.

b. Voter Registration and Voter Records

Section 97.0585(1), F.S., states that the following information is confidential and exempt from public disclosure requirements and may be used only for purposes of voter registration:

declinations to register to vote;
information relating to the place where a person registered to vote or updated a voter registration;
the social security number, driver license number, and the Florida identification number of a voter registration applicant or voter; and
all information concerning preregistered voter registration applicants who are 16 or 17 years old.

The signature of a voter registration applicant or a voter is exempt from copying requirements. Section 97.0585(2), F.S.. See also ss. 741.465(2), F.S. (identifying information concerning participants in the Office of the Attorney General Address Confidentiality Program for Victims of Domestic Violence contained in voter registration and voting records is exempt); and 741.4651, F.S. (exemption for identifying information of stalking victims who have filed a sworn statement of stalking with the Office of the Attorney General and otherwise comply with the procedures set forth in ss. 741.401-741.409, F.S.). And see AGO 04-18 (specified officers and employees who are authorized to file a request for exempt status of certain personal information pursuant s. 119.071(4)(d)3., F.S., may request that the supervisor of elections maintain the exempt status of such information contained in petitions or campaign papers).

Section 98.075(2)(b), F.S., allows the Department of State to join a nongovernmental entity composed of state and District of Columbia election officials whose sole purpose is to share and exchange information in order to verify voter registration information. Information received by the department from another state or the District of Columbia which is confidential or exempt pursuant to the laws of that state or the District of Columbia is exempt from disclosure. Section 98.075(2)(c), F.S.

§2-C-9 | ELECTRONIC AND COMPUTER RECORDS

a. Electronic Databases and Files

Information stored in a public agency’s computer “is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet....” 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); AGO 98-54 (application and disciplinary reports maintained in a computer system operated by a national securities dealers association which are received electronically by state agency for use in licensing and regulating securities dealers doing business in Florida are public records); AGO 91-61 (agency must provide copy of computer disk in response to Ch. 119 request); and AGO 85-03 (computer tape subject to disclosure).

Thus, information such as electronic calendars, databases, and word processing files stored in agency computers, can all constitute public records because records made or received in the Course of official business and intended to perpetuate, communicate or formalize knowledge of some type, fall within the scope of Ch. 119, F.S. AGO 89-39. Compare AGO 85-87 (to the extent that “machine-readable intermediate files” may be intended to “communicate” knowledge, any such communication takes place completely within the data processing equipment and in such form as to render any inspection pursuant to Ch. 119, F.S., unintelligible and, except perhaps to the computer itself, meaningless; therefore, these files are analogous to notes used to prepare some other documentary material, and are not public records). And see Grapski v. Machen, No. 01-2005-CA-4005 J (Fla. 8th Cir. Ct. May 9, 2006), affirmed per curiam, 949 So. 2d 202 (Fla. 1st DCA 2007), available online in the Cases database at the open government site at MyFloridaLegal.com (spam or bulk mail received by a public agency does not necessarily constitute a public record).

Moreover, the definition of “public records” specifically includes “data processing software” and establishes that a record made or received in connection with official business is a public record, regardless of physical form, characteristics, “or means of transmission.” See s. 119.011(12), F.S. “Automation of public records must not erode the right of access to [public records].” Section 119.01(2)(a), F.S.

Accordingly, electronic public records are governed by the same rule as written documents and other public records--the records are subject to public disclosure unless a statutory exemption exists which removes the records from disclosure. Cf. AGO 90-04, stating that a county official is not authorized to assign the county’s right to a public record (a computer program developed by a former employee while he was working for the county) as part of a settlement compromising a lawsuit against the county. And see the discussion on pages 132-134 noting that in evaluating whether a public official’s records were made or received in the course of official business for purposes of Ch. 119, the determining factor is the nature of the record, and not whether the record is located in a private or a government computer or communications device.

b. Consideration of Public Access in Design of Electronic Recordkeeping System

When an agency is designing or acquiring an electronic recordkeeping system, the agency must consider whether the proposed system is capable of providing data in some common format such as, but not limited to, the American Standard Code for Information Interchange. Section 119.01(2)(b), F.S. Cf. Inf. Op. to Moore, October 19, 1993, noting that an agency considering the acquisition of computer software should be responsive to the need for preserving public access to the information through use of the computer’s software and that “[t]he design and development of the software, therefore, should ensure that the system has the capability of redacting confidential or exempt information when a public records request is made.”

Similarly, an agency may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of that agency, including public records that are online or stored in an electronic recordkeeping system used by the agency. Section 119.01(2)(c), F.S. And see s. 287.042(3)(h), F.S. (Department of Management Services responsible for development of procedures to be used by state agencies when procuring information technology commodities and contractual services that ensure compliance with public records and records retention requirements). Cf. Rule 1B-26.003, F.A.C., adopted by the Department of State and providing standards for electronic recordkeeping.

Providing access to public records “is a duty of each agency.” Section 119.01(1), F.S. Section 119.01(2)(a), F.S., states that “[a]utomation of public records must not erode the right of access to those records.” A circuit judge found that an agency violated both policies when it established an automated anti-SPAM system that quarantined the requester’s “entirely legitimate public records request” and allowed it to be deleted and purged a week later, because the agency “altogether failed to establish any procedural safeguards to ensure that legitimate public records requests were not inadvertently sent to SPAM.” 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.

c. E-Mail

E-mail messages made or received by agency officers and employees in connection with official business are public records and subject to disclosure in the absence of an exemption. AGOs 96-34 and 01-20. See Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d 851, 855 (Fla. 1st DCA 2013), noting that “electronic communications, such as e-mail, are covered [by the Public Records Act] just like communications on paper.” Cf. 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.”

Similarly, e-mails sent by city commissioners in connection with the transaction of official business are public records subject to disclosure even though the e-mails contain undisclosed or “blind” recipients and their e-mail addresses. AGO 07-14. Cf. Butler v. City of Hallandale Beach, 68 So. 3d 278 (Fla. 4th DCA 2011) (affirming a trial court order finding that a list of recipients of a personal e-mail sent by mayor from her personal computer was not a public record).

Like other public records, e-mail messages are subject to the statutory restrictions on destruction of public records. 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 (division) of the Department of State. Thus, an e-mail communication of “factual background information” from one city council member to another is a public record and should be retained in accordance with the retention schedule for other records relating to performance of the agency’s functions and formulation of policy. AGO 01-20.

d. Social Media Postings

The Attorney General’s Office has stated that the placement of material on a city’s Facebook page presumably would be in connection with the transaction of official business and thus subject to Ch. 119, F.S., although in any given instance, the determination would have to be made based upon the definition of “public record” contained in s. 119.011(12), F.S. AGO 09-19. To the extent that the information on the city’s Facebook page constitutes a public record, the city is under an obligation to follow the public records retention schedules established in accordance with s. 257.36(6), F.S. Id. And see AGO 08-07 (city council members who post comments and emails relating to the transaction of city business on a privately owned and operated website “would be responsible for ensuring that the information is maintained in accordance with the Public Records Law”).

The determination as to whether a list or record of accounts which have been blocked from posting to or accessing an elected official’s personal Twitter feed is a public record involves mixed questions of law and fact which cannot be resolved by the Attorney General’s Office. Inf. Op. to Shalley, June 1, 2016. However, “if the tweets the public official is sending are public records [because they were sent in connection with the transaction of official business] then a list of blocked accounts, prepared in connection with those public records ‘tweets,’ could well be determined by a court to be a public record.” Id. Cf. Knight First Amendment Institute v. Trump, No. 18-1691 (2d Cir. July 9, 2019) (public official engaged in unconstitutional viewpoint discrimination by blocking certain users from access to his Twitter account, which is otherwise open to the public at large and “used for all manner of official duties,” because he disagreed with their speech)

e. Text Messages

A public official or employee’s use of a private cell phone to conduct public business via text messaging “can create an electronic written public record subject to disclosure” if the text message is “prepared, owned, used, or retained... within the scope of his or her employment or agency.” O’Boyle v. Town of Gulf Stream, 257 So. 3d 1036, 1040-1041 (Fla. 4th DCA 2018). Accord City of Sunny Isles Beach v. Gatto, 338 So. 3d 1045 (Fla. 3d DCA 2022), noting that a “city commissioner’s text messages may be a public record,” although a private communication by a municipal official “falls outside the definition of public record.” For more information on personal records created and or received by public officials on government or private devices, please see the discussion of that topic on page 134.

In order to comply with the requirements of the Public Records Act, “the governmental entity must proceed as it relates to text messaging no differently than it would when responding to a request for written documents and other public records in the entity’s possession — such as emails — by reviewing each record, determining if some or all are exempted from production, and disclosing the unprotected records to the requester.” O’Boyle v. Town of Gulf Stream, at 1041. And see the discussion on page 164 regarding the entity’s responsibility to conduct a reasonable search to locate text messages that have been requested from the governmental entity, including those located on private accounts or devices.

The retention periods for text messages and other electronic messages or communications “are determined by the content, nature, and purpose of the records, and are set based on their legal, fiscal, administrative, and historical values, regardless of the format in which they reside or the method by which they are transmitted.” See General Records Schedule GS1-SL for State and Local Government Agencies, Electronic Communications, available online at dos.myflorida.com/library-archives. Stated another way, it is the content, nature and purpose of the electronic communication that determines how long it is retained, not the technology that is used to send the message. See also Inf. Op. to Browning, March 17, 2010, advising that the same[ retention] rules that apply to e-mail should be considered for electronic communications including SMS communications (text messaging), MMS communications (multimedia content), and instant messaging conducted by government agencies.

f. Cybersecurity

Please see the discussion on that topic on pages 156-157.

§2-C-10 | EMERGENCY RECORDS

a. Emergency “911” Records

Section 365.171(12)(a), F.S., provides that any record, recording, or information, or portions thereof, obtained by a public agency for the purpose of providing services in an emergency which reveals the name, address, or telephone number or personal information about, or information which may identify any person requesting emergency service or reporting an emergency by accessing an emergency communications E911 system is confidential and exempt from s. 119.07(1), F.S. However, disclosure of the location of a coronary emergency to a private person or entity that owns an automated external defibrillator is authorized in some circumstances, as set forth in the exemption. Section 365.171(12)(b), F.S.

The exemption applies only to the name, address, telephone number or personal information about or information which may identify any person requesting emergency services or reporting an emergency while such information is in the custody of the public agency or public safety agency providing emergency services. Section 365.171(12)(a), F.S. See AGO 93-60. There is no clear indication that the Legislature intended to include the sound of a person’s voice as information protected from disclosure. AGO 15-01. Moreover, identifying information obtained or created independently of the 911 call, for example from a criminal investigation or offense report created as a result of such investigation, is not exempt under s. 365.171(12)(a), F.S. AGO 11-27.

A tape recording of a “911” call is a public record which is subject to disclosure after the deletion of the exempt information. AGO 93-60. This does not, however, preclude the application of another exemption to such records. Thus, if the “911” calls are received by a law enforcement agency and the county emergency management department, information which is determined by the law enforcement agency to constitute active criminal investigative information may also be deleted from the tape prior to public release. AGO 95-48. See also Inf. Op. to Fernez, September 22, 1997 (while police department is not prohibited from entering into an agreement with the public to authorize access to its radio system, the department must maintain confidentiality of exempt personal information contained in “911” radio transmissions).

Moreover, an audio recording that records the killing of a law enforcement officer acting in accordance with his or her official duties or the killing of a victim of mass violence is confidential and exempt and may not be listened to or copied except as authorized in the exemption. Section 119.071(2)(p), F.S. For more information on this exemption, please refer to the discussion on page 125.

Building plans, blueprints and related records which depict the structural elements of 911, E911 or public safety radio communication system infrastructure owned or operated by an agency, are exempt from disclosure. Section 119.071(3)(e)1.a., F.S. Geographical maps indicating actual or proposed locations, including towers, antennae, equipment, and facilities are also exempt. Section 119.071(3)(e)1.b., F.S.

b. Emergency Evacuation Plans and Special Needs Registry

Section 119.071(3)(a), F.S., provides an exemption from disclosure for a security or fire-safety system plan of a private or public entity that is held by an agency. The term “security or fire-safety system plan” includes emergency evacuation plans and sheltering arrangements. And see s. 119.071(2)(d), F.S., providing an exemption from disclosure for “[a]ny comprehensive inventory of state and local law enforcement resources compiled pursuant to Part I, chapter 23 [Florida Mutual Aid Act], and any comprehensive policies or plans compiled by a criminal justice agency pertaining to the mobilization, deployment, or tactical operations involved in responding to emergencies as defined in s. 252.34, F.S.; and s. 395.1056, F.S., providing an exemption for those portions of a comprehensive emergency management plan that address the response of a public or private hospital to an act of terrorism.

Section 252.355(1), F.S., states that the Division of Emergency Management, in coordination with each local emergency management agency in the state, shall maintain a registry of persons with special needs (i.e., persons who would need assistance during evacuations and sheltering because of physical, mental, cognitive impairment, or sensory disabilities), located within the jurisdiction of the local agency. Records relating to the registration of persons with special needs are confidential and exempt, except such information is available to other emergency response agencies, as determined by the local emergency management director. Section 252.355(4), F.S. Local law enforcement agencies shall be given complete shelter roster information upon request. Id.

c. Emergency Medical Services Records

Please refer to the discussion of this topic found on pages 96.

d. Emergency Notification

Any information furnished by a person to any agency for the purpose of being provided with emergency notification by the agency is exempt from disclosure requirements. Section 119.071(5)(j)1., F.S. The e-mail addresses and corresponding home, school, and other “watched addresses of concern” provided for participation in the Florida Department of Law Enforcement Offender Alert System come within the scope of this exemption. AGO 11-16. And see s. 119.0712(2)(d)1. and 2., F.S. (emergency contact information contained in a motor vehicle record issued by the Department of Highway Safety and Motor Vehicles is confidential and exempt, and, without the express consent of the person to whom such emergency contact information applies, may be released only to law enforcement agencies for purposes of contacting those listed in the event of an emergency or to a receiving facility, hospital, or licensed detoxification or addictions receiving facility pursuant to cited statutes for the sole purpose of informing a patient’s emergency contacts of the patient’s whereabouts).

e. Emergency Planning Information Furnished to Division of Emergency Management

The Division of Emergency Management (Division) manages a statewide public awareness program which encourages individuals, families, and businesses to develop disaster plans in preparation for and in response to natural or manmade disasters. See s. 2, Ch. 14-188, Laws of Florida. Any information furnished by a person or a business to the Division for the purpose of being provided assistance with emergency planning is exempt. Section 252.905, F.S.

f. Emergency Shelter and Disaster Recovery Assistance

The address and telephone number of a person provided public emergency shelter during a storm or catastrophic event and held by the agency, as defined in s. 119.011, F.S., that provided the emergency shelter is exempt. Section 252.385(5), F.S.

Property photographs and personal identifying information of an applicant for or a participant in a federal, state, or local housing assistance program for the purpose of disaster recovery assistance for a presidentially declared disaster are confidential and exempt. Section 119.071(5)(f)1.b., F.S. The exemption authorizes access under specified conditions. Section 119.071(5)(f)2. and 3., F.S.

§2-C-11 | FINANCIAL RECORDS

Many agencies prepare or receive financial records as part of their official duties and responsibilities. As with other public records, these materials are generally open to inspection unless a specific statutory exemption exists. See AGO 96-96 (financial information submitted by harbor pilots in support of a pilotage rate increase application is not exempt from disclosure requirements).

a. Audit Reports

(1) Auditor General audits

The audit report prepared by the Auditor General is a public record once finalized. Section 11.45(4)(c), F.S. The audit workpapers and notes are not a public record; however, those workpapers necessary to support the computations in the final audit report may be made available by a majority vote of the Legislative Auditing Committee after a public hearing showing proper cause. Id. And see AGO 79-75 (“the term ‘audit work papers and notes’ should be construed narrowly and limited to such ‘raw data’ as is commonly considered to constitute the work papers of an accountant”). Cf. s. 11.51(4), F.S. (work papers held by the Office of Program Policy Analysis and Government Accountability which relate to an authorized project or a research product are exempt from disclosure).

At the conclusion of the audit, the Auditor General provides the head of the agency being audited with a list of the findings so that the agency head may explain or rebut them before the report is finalized. Section 11.45(4)(d), F.S. The list of audit findings is a public record. AGO 79-75.

(2) Local Government Audits

The audit report of an internal auditor prepared for or on behalf of a unit of local government becomes a public record when the audit becomes final. Section 119.0713(2)(b), F.S. The audit becomes final when the audit report is presented to the unit of local government; until the audit becomes final, the audit workpapers and notes related to such audit report are confidential. Id.

Thus, a draft audit report of a county legal department prepared by the clerk of court, acting in her capacity as county auditor, did not become subject to disclosure when the clerk submitted copies of her draft report to the county administrator for review and response. Nicolai v. Baldwin, 715 So. 2d 1161, 1163 (Fla. 5th DCA 1998). According to the exemption, the report would become “final,” and hence subject to disclosure, when presented to the county commission. Id.

Similarly, draft audit reports relating to city towing companies did not become subject to disclosure even though the towing companies, who had reviewed the reports pursuant to city policy, shared the reports with a news organization which subsequently published an article about them. The court said its decision was compelled by the plain language of the statute, concluding that because the draft audit reports were not final, they were not subject to disclosure. City of Miami Beach v Miami New Times, LLC, 314 So. 3d 562 (Fla. 3d DCA 2020). And see Rushing v. Barfield, No. 2011-CA-5864-NC (Fla. 12th Cir. Ct. August 4, 2011), per curiam affirmed, 83 So. 3d 718 (Fla. 2d DCA 2012), available online in the Cases database at the open government site at MyFloridaLegal.com (even though an audit has been completed with regard to some matters, clerk authorized to redact those portions of workpapers and notes relating to additional matters under investigation until the audit relating to the additional matters is concluded).

The term “internal auditor” is not defined for purposes of this exemption. However, the term would appear to encompass an official within county government who is responsible under the county code for conducting an audit. AGO 99-07. Compare AGO 04-33 (exemption does not apply to audit of guardianship files prepared by clerk of court because that audit “is not an internal audit performed by or on behalf of any of the specified units of local government”).

(3) State agency inspector general audits

Section 20.055(2), F.S., establishes the Office of Inspector General in each state agency. Pursuant to s. 20.055(6), F.S., the inspector general is required to conduct audits of the agency and prepare audit reports of the findings. Such audit reports and workpapers are public records to the extent that they do not include information which has been made confidential and exempt from disclosure. Section 20.055(6)(b), F.S.

b. Bids, Proposals and Financial Statements

Section 119.071(1)(b)2., F.S., provides an exemption for “sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation” until such time as the agency provides notice of an intended decision or until 30 days after opening “the bids, proposals, or final replies,” whichever is earlier. Cf. s. 255.0518, F.S., providing that notwithstanding s. 119.071(1)(b), F.S., agencies receiving sealed bids pursuant to a competitive solicitation for construction or repairs of a public building or public work, must open the bids at a public meeting conducted in compliance with the Sunshine Law, and must also announce bidder and price information at that meeting.

The term “competitive solicitation” means “the process of requesting and receiving sealed bids, proposals, or replies in accordance with the terms of a competitive process, regardless of the method of procurement.” Section 119.071(1)(b)1., F.S.

If an agency rejects all bids, proposals, or replies submitted in response to a competitive solicitation and the agency concurrently provides notice of its intent to reissue the competitive solicitation, the rejected bids, proposals, or replies remain exempt until such time as the agency provides notice of an intended decision concerning the reissued competitive solicitation or until the agency withdraws the reissued competitive solicitation. A bid, proposal, or reply is not exempt for longer than 12 months after the initial agency notice rejecting all bids, proposals, or replies. Section 119.071(1)(b)3., F.S. And see s. 286.0113(2)(c), F.S., providing an exemption for the recording of, and records presented at, an exempt meeting held pursuant to s. 286.0113(2)(b), F.S. For more information on this exemption, please refer to the discussion on page 35-36.

Any financial statement that an agency requires a prospective bidder to submit in order to prequalify for bidding or for responding to a proposal for a road or any other public works project is exempt from disclosure requirements. Section 119.071(1)(c), F.S. See also s. 119.0713(3), F.S., limiting access to materials used by municipal utilities to prepare bids; s. 339.55(10), F.S., providing an exemption for financial information of a private entity applicant which the Department of Transportation requires as part of the application process for loans or credit enhancements from the state-funded infrastructure bank; and s. 337.168, F.S., providing restrictions on disclosure of Department of Transportation cost estimates, persons requesting bid packages, and the bid analysis and monitoring system.

c. Budgets

Budgets and working papers used to prepare them are normally subject to inspection. Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747 (Fla. 1st DCA 1980); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976); and City of Gainesville v. State ex. rel. International Association of Fire Fighters Local No. 2157, 298 So. 2d 478 (Fla. 1st DCA 1974). Accord Inf. Op. to Pietrodangelo, Nov. 29, 1972 (financial operating budget of athletic department of state university constitutes a public record). Cf. News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982), holding that the preponderant interest in allowing public participation in the budget process justified the inclusion of an agency’s internal budget committee within the provisions of the Government in the Sunshine Law.

The exemption afforded by s. 447.605(3), F.S., for work products developed by the public employer in preparation for collective bargaining negotiations does not remove the working papers used in preparing an agency budget from disclosure. Warden v. Bennett, supra. See also AGO 92-56 (budget of a public hospital would not, in and of itself, appear to constitute either a trade secret or marketing plan for purposes of a statutory exemption for documents revealing a hospital’s marketing plan or trade secrets).

d. Economic Development Records

(1) Business location or expansion plans

If a private entity requests in writing before an economic incentive agreement is signed that an economic development agency maintain the confidentiality of information concerning the entity’s interest in or plans to locate or expand its business activities in Florida, the information is confidential and exempt from disclosure for 12 months after the date an economic development agency receives a request for confidentiality or until the information is otherwise disclosed, whichever occurs first. Section 288.075(2)(a)1., F.S. Confidentiality may be extended for up to an additional 12 months upon the written request of the private entity if the agency finds that the private entity is still actively considering locating or expanding its business activities in Florida. Section 288.075(2)(a)2., F.S. If a final project order for a signed economic development agreement is issued, then the information remains confidential for 180 days after the final project order is issued, until a date specified in the final project order, or until the information is otherwise disclosed, whichever occurs first. However, such period of confidentiality may not extend beyond the period of confidentiality specified in s. 288.075(2)(a)1. or s. 288.075(2)(a)2., F.S. And see s. 288.075(2)(b), F.S., restricting public officials from entering into binding agreements with the private entity requesting confidentiality until 90 days after the information has been made public, unless certain conditions are met.

The term “economic development agency” means the state Department of Economic Opportunity, an industrial development authority, Space Florida, the public economic development agency of a county or municipality, or a research and development authority. Also included are the county or municipal officers or employees assigned the duty to promote the general business interests or industrial interests of that county or municipality or the related responsibilities, if the county or municipality does not have a public economic development agency. The term also includes private persons or agencies authorized by the state, a county or a municipality to promote the general business interests of the state or that municipality or county. Section 288.075(1)(a), F.S.

The Legislature’s designation of those entities which are considered economic development agencies for purposes of s. 288.075, F.S., precludes any other entities from falling under the definition. See AGO 12-36 (St. Augustine-St. Johns County Airport Authority is not an “economic development agency” as defined in s. 288.075, F.S.). Cf. Inf. to Rooney, June 8, 2011 (if by amendment of the county charter, the voters made the county commission a part of the county economic development agency by placing the executive director of the agency under the direct supervision of the county commission, then the provisions of s. 288.075, F.S., would apply to the county commission).

A written request for confidentiality under s. 288.075(2), F.S., may constitute or contain information required to be held confidential under that statute; however, such a determination must be made by the custodian on a case-by-case basis as to whether a particular record or portion of a record falls within the scope of the exemption. AGO 07-15. The section, however, may be cited by the records custodian as statutory authority for withholding information from public disclosure without violating the required confidentiality provisions of the statute. Id. Cf. AGO 80-78 (county industrial development authority permitted to withhold access only to those records “clearly falling” within the exemption provided in s. 288.075; “policy considerations” do not justify nondisclosure of public records).

Development plans, financial records, financial commitment letters and draft memoranda of understanding between the city and a developer considering expansion or relocation within the city appear to come within the scope of the exemption. AGO 04-19. However, the burden is on the economic development agency “to carefully and in good faith distinguish between those documents clearly covered by the exemption and those not covered.” Id.

Trade secrets, as defined in s. 688.002, F.S., contained in the records held by an economic development agency are confidential and exempt from disclosure. Section 288.075(3), F.S. Proprietary confidential business information held by an economic development agency is confidential and exempt until such information is otherwise publicly available or is no longer treated by the proprietor as proprietary confidential business information. Section 288.075(4), F.S. Federal employer identification numbers, reemployment assistance account numbers, or Florida sales tax registration numbers held by an economic development agency are confidential and exempt. Section 288.075(5), F.S. In addition, certain information held pursuant to the administration of an economic incentive program is confidential and exempt for limited periods as specified in the exemption. Section 288.075(6), F.S. And see s. 288.075(7), F.S. (tax returns, financial information, and credit history information held by a state or federally funded small business loan program).

(2) Convention center booking business records

Booking business records of a public convention center, sports facility, or auditorium are exempt from public disclosure. Section 255.047(2), F.S. The statute defines “booking business records” to include “client calendars, client lists, exhibitor lists, and marketing files.” Section 255.047(1)(a), F.S. The term does not include “contract negotiation documents, lease agreements, rental rates, event invoices, event work orders, ticket sales information, box office records, attendance figures, payment schedules, certificates of insurance, accident reports, incident reports, or correspondence specific to a confirmed event.” Id. And see s. 125.0104(9) (d)1., F.S. (providing an exemption for information given to a county tourism promotion agency, which, if released, would reveal the identity of those who provide information in response to a sales promotion, advertisement, or research project or whose names, addresses, meeting or convention plan information or accommodations or other visitation needs become booking or reservation list data).

e. Ownership Records for Registered Public Obligations

Records regarding ownership of, or security interests in, registered public obligations are not open to inspection. Section 279.11, F.S.

f. Personal Financial Records

In the absence of a statutory exemption, financial information prepared or received by an agency is subject to Ch. 119, F.S. See Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) (personal income tax returns and financial statements submitted by housing finance authority members as part of the authority’s application to organize a bank are subject to disclosure). See also Inf. Op. to Lovelace, April 3, 1992 (records identifying mortgage recipients held by a bank acting as agent of a housing finance authority in granting mortgages funded by the authority are public records).

(1) Bank Account, Debit and Credit Card Numbers

Bank account numbers, and debit, charge, and credit card numbers held by an agency are exempt from public disclosure. Section 119.071(5)(b), F.S. See also s. 119.0714(1)(j), (2)(e) and 3(b), F.S., regarding confidentiality of bank account numbers and debit, charge, and credit card numbers contained in court and official records.

(2) Consumer Financial Information

There are statutes which exempt consumer financial information received by certain agencies. For example, s. 624.23, F.S., provides confidentiality for personal financial information held by the Department of Financial Services or the Office of Insurance Regulation relating to a consumer’s complaint or inquiry regarding a matter or activity regulated under the Florida Insurance Code. See State, Department of Financial Services v. Danahy & Murray, 246 So. 3d 466 (Fla. 1st DCA 2018), upholding the constitutionality of the statute. See also s. 717.117(8), F.S. (property identifiers contained in unclaimed property reports held by the Department of Financial Services are confidential); s. 627.351(6)(x)1., F.S. (claims and underwriting files of the Citizens Property Insurance Corporation, except as provided in the exemption); s. 119.071(5)(f), F.S. (health or property insurance information provided by applicants or participants in government housing assistance programs); and s. 655.057(1)(c), F.S. (personal financial information contained in investigation records of the Office of Financial Regulation).

(3) Financial Information Submitted by State Licensure Applicants

In the absence of statutory exemption, financial information in a licensing file is subject to disclosure. See AGO 04-16. However, the Legislature has enacted exemptions for financial information held by certain licensing agencies. For example, credit history information and credit scores held by the Office of Financial Regulation for purposes of licensing loan originators, mortgage brokers and mortgage lenders are confidential. Section 494.00125(3) F.S. Financial information submitted by license applicants to the Department of Business and Professional Regulation is also confidential. Section 455.229(1), F.S. And see s. 456.014(1), F.S. (Department of Health license applicants). Cf. Surterra Florida, LLC v. Florida Department of Health, 223 So. 3d 376 (Fla. 1st DCA 2017) (affirming trial court finding that identities of investors and partners listed in applications to dispense medical cannabis were not confidential trade secrets). For more information on disclosure issues relating to trade secrets, please refer to the discussion of that topic in pages 159-160.

(4) Temporary Cash Assistance Program Participant

Except as provided in the exemption, personal identifying information of a temporary cash assistance program participant is confidential. Section 414.295(1), F.S.

(5) Toll Payment Personal Identifying Information

Section 338.155(6), F.S. provides an exemption for personal identifying information held by the Department of Transportation, a county, a municipality, or an expressway authority for the purpose of paying, prepaying, or collecting tolls and associated charges due for the use of toll facilities.

(6) Utility Payment Records

Agency records of payments for utility services are subject to disclosure. See AGOs 88-57 (county records of payments made by individuals for waste collection services are public records), and 92-09 (customer delinquency information held by a utilities commission is subject to disclosure). Cf. s. 119.0713(5)(a), F.S., providing an exemption for customer meter-derived data and billing information in increments less than one billing cycle.

g. Taxpayer Records

There are a number of statutes providing for confidentiality of taxpayer records held by the Department of Revenue. See, e.g., s. 213.053(2)(a), F.S. (all information contained in returns, reports, accounts, or declarations received by the Department of Revenue, including investigative reports and information and letters of technical advice, is confidential except for official purposes and exempt from s. 119.07[1], F.S.); s. 213.21(3), F.S. (records of compromises of taxpayer liability not subject to disclosure); and s. 213.27(6), F.S. (confidential information shared by the Department of Revenue with debt collection or auditing agencies under contract with the department is exempt from public disclosure and such debt collection or auditing agencies are bound by the same confidentiality requirements as the department). Cf. Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) (personal income tax returns submitted by housing finance authority members to state banking agency as part of the authority’s application to organize a bank are subject to disclosure).

In addition, s. 193.074, F.S., provides for confidentiality of certain taxpayer information. In light of the position taken by the Department of Revenue that its form entitled “Original Application for Ad Valorem Tax Exemption” constitutes a “return,” such form should be treated as a “return” that is confidential pursuant to s. 193.074, F.S. AGO 05-04. Accord AGO 95-07. And see NYT Management Services, Inc. v. Florida Department of Revenue, No. 2006-CA-0896 (Fla. 2d Cir. Ct. April 25, 2006), available online in the Cases database at the open government site at MyFloridaLegal.com (declarations or written statements filed with the Department of Revenue pursuant to the state’s revenue laws would be a return and thus confidential under s. 193.074, F.S.).

A taxpayer’s e-mail address held by a tax collector for purpose of sending certain tax notices or obtaining the consent of a taxpayer for electronic transmission of certain tax notices, as provided in cited statutes, is exempt from public disclosure requirements. Section 197.3225, F.S. Cf. s. 288.075(7), F.S. (tax returns held by an economic development agency pursuant to its administration of a state or federally funded small business loan program is exempt from public disclosure).

However, taxpayer information that is confidential in the hands of certain specified officers under s. 193.074, F.S., is subject to disclosure under the Public Records Act when it has been submitted by a taxpayer to a value adjustment board as evidence in an assessment dispute. AGO 01-74. Cf. Inf. Op. to Echeverri, April 30, 2010 (while property appraiser may use confidential records submitted to the value adjustment board by the taxpayer, it is not clear whether property appraiser may independently submit confidential material to the board in the absence of a taxpayer’s submission although board may order production of confidential records). Similarly, absent a specific statutory exemption for assessment rolls and public information cards, such documents made or received by the property appraiser are public records subject to the Public Records Act, regardless of the confidentiality of a return that may contain information used in their creation. AGO 05-04.

§2-C-12 | FIREARMS RECORDS

Personal identifying information of an individual who has applied for or received a license to carry a concealed weapon or firearm pursuant to s. 790.06, F.S., held by the Department of Agriculture and Consumer Services is confidential and exempt from public disclosure requirements. Section 790.0601(1), F.S. The same information is also confidential when held by a tax collector appointed by the Department. Sections 790.0601(2), and 790.0625(4), F.S.

Information made confidential by s. 790.0601, F.S., shall be disclosed with the express written consent of the applicant or licensee or his or her legally authorized representative, by court order upon a showing of good cause, or upon request by a law enforcement agency in connection with the performance of lawful duties. Section 790.0601(3), F.S. Cf. Times Publishing Company v. City of Pensacola, No. 2002-2053 (Fla. 1st Cir. Ct. November 13, 2002), per curiam affirmed, 869 So. 2d 546 (Fla. 1st DCA 2004), available online in the Cases database at the open government site at MyFloridaLegal.com, concluding that police department records of weapons assigned to law enforcement officers and described as “specialty weapons utilized for surveillance and defensive purposes, by surveillance personnel” were exempt from disclosure under s. 119.071(3)(a), F.S., relating to security system plans and terrorist threat assessments, and the exemption for surveillance personnel, techniques, and procedures, now found at s. 119.071(2)(d), F.S.

§2-C-13 | HOSPITAL AND MEDICAL RECORDS

a. Communicable or Infectious Disease Reports

A number of exemptions exist for communicable or infectious disease reports. See, e.g., s. 381.0031(6), F.S. (information submitted in public health reports to Department of Health is confidential and is to be made public only when necessary to public health); s. 384.29, F.S. (sexually transmissible diseases). See Ocala Star-Banner v. State, 697 So. 2d 1317 (Fla. 5th DCA 1997) (upholding court order sealing portions of a battery prosecution case file pertaining to transmission of sexually transmissible diseases to victims due to s. 384.29, F.S., confidentiality requirements). However, notwithstanding any other provision of law to the contrary, the Department of Health, the Department of Children and Families, and the Agency for Persons with Disabilities may share confidential information on any individual who is or has been the subject of a program within the jurisdiction of each agency. Section 402.115, F.S. The shared information remains confidential or exempt as provided by law. Id. See AGO 98-52.

Results of screenings for sexually transmissible diseases conducted by the Department of Health in accordance with s. 384.287, F.S., may be released only to those persons specified in the exemption. Section 384.287(5), F.S.

Notification to an emergency medical technician, paramedic or other person that a patient they treated or transported has an infectious disease must be done in a manner to protect the confidentiality of patient information and shall not include the patient’s name. Section 395.1025, F.S.

There are strict confidentiality requirements for test results for HIV infection; such information may be released only as expressly prescribed by statute. See ss. 381.004, and 384.287(6), F.S. Any person who violates the confidentiality provisions of s. 381.004, F.S., and s. 951.27, F.S., is guilty of a first degree misdemeanor. Section 381.004(5)(b), F.S. And see s. 381.004(5)(c), F.S., establishing felony penalties for disclosure in certain circumstances. Thus, information received by the clerk of court indicating that an individual has complied with an order to be tested for HIV and the attendant test results “would appear to be confidential and should be maintained in that status.” AGO 00-54. Cf. Florida Department of Corrections v. Abril, 969 So. 2d 201 (Fla. 2007) (an entity that negligently violates a patient’s right of confidentiality in disclosing the results of HIV testing may be held responsible in a negligence action).

Results of HIV and hepatitis tests performed on persons charged with certain offenses may not be disclosed except as authorized in the exemption. Section 960.003, F.S. See also s. 951.27, F.S. (limited disclosure of infectious disease test results, including HIV testing pursuant to s. 775.0877, F.S., of inmates as provided in statute).

b. Hospital Records

(1) Public Hospitals

Like other governmental agency records, public hospital records are subject to disclosure in the absence of a statutory exemption. For example, the court in 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, held that a settlement agreement entered in a lawsuit against the public hospital alleging that the hospital had swapped babies was a public record. The court held that the agreement was subject to disclosure despite a confidentiality provision contained within the agreement and claims by the hospital that it constituted work product. Cf. Bert Fish Foundation, Inc. v. Southeast Volusia Hospital District, No. 10-20801-CINS (Fla. 7th Cir. Ct. December 22, 2010), available online in the Cases database at the open government site at MyFloridaLegal.com (governing boards of hospital district and medical center violated the Sunshine Law when they held numerous closed meetings to discuss an affiliation or merger with a healthcare corporation). For information on exemptions applicable to public hospitals, please refer to Appendix D and the Index. Cf. AGO 14-10, noting that an exemption in s. 395.3035(5), F.S., for certain records and meetings relating to a “strategic plan” for operation of a hospital must be narrowly construed and would not apply to an evaluation conducted pursuant to s. 155.40(5), F.S., for purposes of the sale or lease of a public hospital.

(2) Private Hospitals/Private Organizations Operating Public Hospitals

A private organization leasing the facilities of a public hospital is acting on behalf of a public agency and thus constitutes an agency subject to open records requirements in the absence of statutory exemption. See Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373 (Fla. 1999).

Section 395.3036, F.S., however, provides that records of a private entity that leases a public hospital or other public health care facility are confidential and exempt from disclosure when the public lessor complies with the public finance accountability provisions of s. 155.40(18), F.S., with respect to the transfer of any public funds to the private lessee and when the private lessee meets at least three of five criteria set forth in the exemption. See Indian River County Hospital District v. Indian River Memorial Hospital, Inc., 766 So. 2d 233 (Fla. 4th DCA 2000) (nonprofit corporation leasing hospital from hospital district). And see Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189 (Fla. 1st DCA 2004), upholding the constitutionality of the exemption. Cf. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 927 So. 2d 961 (Fla. 5th DCA 2006) (private corporation that purchased hospital from public hospital authority not subject to Public Records Act); and s. 155.40(21), F.S., describing and construing the term “complete sale” as applied to a purchase of a public hospital by a private entity.

c. Patient and Clinical Records

(1) Patient and Clinical Records Generally

Patient records are generally protected from disclosure. For example, patient records in hospitals and surgical facilities licensed under Ch. 395, F.S., are confidential and may not be disclosed without the consent of the patient, or the patient’s legal representative, except as provided in the statute. Section 395.3025(4), (5), (7) and (8), F.S. And see s. 119.0712(1), F.S. (personal identifying information contained in records relating to an individual’s personal health or eligibility for health-related services held by the Department of Health); and s. 400.022(1) (m), F.S. (nursing home residents’ medical and personal records).

Patient clinical records are also protected. See, e.g., s. 393.13(4)(i)1., F.S. (central client records of persons with developmental disabilities); s. 394.4615(1), F.S. (clinical records of persons subject to “The Baker Act”); and s. 397.501(7), F.S. (individuals receiving services from substance abuse service providers). And see ss. 397.6760(1), F.S. (petitions for involuntary assessment and stabilization and related court records filed with a court under Part V of Ch. 397, F.S.[substance abuse]); and 394.464(1) (petitions for voluntary and involuntary admission for mental health treatment, courts orders and related records filed with or by a court under the Baker Act). Cf. s. 381.987, F.S. (patient or caregiver identifying information in the medical marijuana use registry).

(2) Disclosure of Patient Records

Patient medical records made by health care practitioners may not be furnished to any person other than the patient, his or her legal representative or other health care practitioners and providers involved in the patient’s care and treatment without written authorization, except as provided by ss. 440.13(4)(c) and 456.057, F.S. Section 456.057(7)(a), F.S. See State v. Johnson, 814 So. 2d 390 (Fla. 2002) (state attorney’s subpoena power under s. 27.04, F.S., cannot override notice requirements of s. 395.3025[4][d], F.S., which provides for disclosure of confidential patient records upon issuance of subpoena and upon proper notice to the patient or the patient’s legal representative). Cf. s. 408.051(3), F.S., permitting a health care provider to release or access an identifiable health record of a patient without the patient’s consent for use in the treatment of the patient for an emergency medical condition, as defined in s. 395.002(8), F.S., when the health care provider is unable to obtain the patient’s consent or the consent of the patient representative due to the patient’s condition or the nature of the situation requiring immediate medical attention.

The recipient of patient records, if other than the patient or the patient’s representative, may use such information only for the purpose provided and may not disclose any information to any other person or entity, unless expressly permitted by the written consent of the patient. See ss. 395.3025(7) (hospital patient records) and 456.057(11), F.S. (health care practitioner patient records). Thus, predeath medical records in the possession of the medical examiner are not subject to public inspection. 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.

Similarly, clinical records maintain their confidentiality even when disclosed to another agency such as the clerk of the circuit court. AGO 91-10. And see Sarasota Herald-Tribune v. Department of Children and Families, No. 2001-CA-002445 (Fla. 2d Cir. Ct. April 8, 2002), available online in the Cases database at the open government site at MyFloridaLegal.com (confidentiality of clinical record is maintained even though Department of Children and Families may have filed portions of the records in court proceedings throughout the state; department has no authority to waive confidentiality of clinical records). Cf. AGO 01-69 (documents submitted to the statewide provider and managed care organization claim dispute resolution program pursuant to s. 408.7057, F.S., found to be subject to disclosure after redaction of patient-identifying information).

d. Emergency Medical Services

With limited exceptions, s. 401.30(4), F.S., provides, in relevant part, that “[r]ecords of emergency calls which contain patient examination or treatment information are confidential and exempt from the provisions of s. 119.07(1) and may not be disclosed without the consent of the person to whom they pertain.” Such records may be released only in certain circumstances and only to the persons and entities specified in the statute. AGO 86-97. Thus, a city commissioner is not authorized to review records of an emergency call by the city’s fire-rescue department when those records contain patient examination and treatment information, except with the consent of the patient. AGO 04-09. See Lee County v. State Farm Mutual Automobile Insurance Company, 634 So. 2d 250 (Fla. 2d DCA 1994), upholding the county’s right to require the patient’s notarized signature on all release forms, to ensure that these confidential records are not improperly released. And see AGO 09-30 (entire record of emergency call containing patient examination and treatment information which is maintained as required by s. 401.30[1], F.S., is confidential and exempt; reports containing statistical data, required by the Department of Health, are public records and must be made available for inspection and copying following redaction of any patient-identifying information).

However, s. 401.30(4), is not violated by the city attorney, or an attorney under contract to the city, and other city officials having access to the city fire-rescue department’s records of emergency calls that contain patient information when such access is granted to such individuals in carrying out their official duties to advise and defend, or assess the liability of, the city in a possible or anticipated claim against the city arising out of the provision of such care. AGO 95-75. And see AGO 08-20 (s. 401.30[4], F.S., permits emergency medical services transportation licensee to release records of emergency calls including patient’s name, address, and pertinent medical information to local law enforcement agency that does not provide regulatory or supervisory responsibility over licensee).

e. Hospital Employees

Section 395.3025(10), F.S., establishes that the home addresses, telephone numbers, and photographs of hospital or surgical center employees who provide direct patient care or security services, as well as specified information about the spouses and children of such employees, are confidential and exempt from disclosure requirements. The same information must also be held confidential by the facility upon written request by other employees who have a reasonable belief, based upon specific circumstances that have been reported in accordance with the procedure adopted by the facility, that release of the information may be used to threaten, intimidate, harass, inflict violence upon, or defraud the employee or any member of the employee’s family. Section 395.3025(11), F.S.

§2-C-14 | INVESTIGATIVE RECORDS OF NON-LAW ENFORCEMENT AGENCIES

a. Investigative Records Generally

In the absence of a specific legislative exemption, investigative records made or received by public agencies are open to public inspection pursuant to Ch. 119, F.S. See State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DCA 1977), cert. denied, 360 So. 2d 1247 (Fla. 1978) (report prepared by assistant city attorney for the city council concerning suspected irregularities in the city’s building department is a public record). See also Caswell v. Manhattan Fire and Marine Insurance Company, 399 F.2d 417 (5th Cir. 1968) (ordering that certain investigative records of the state insurance agency be produced for inspection under Ch. 119, F.S.). Accord AGO 91-75 (documents containing information compiled by school board employees during an investigation of school district departments are open to inspection in the absence of statutory exemption); AGO 85-79 (interoffice memoranda, correspondence, inspection reports of restaurants, grocery stores and other such public premises, nuisance complaint records, and notices of violation of public health laws maintained by county public health units are subject to disclosure in the absence of any statutory exemption); and AGO 71-243 (inspection reports made or received by a school board in connection with its official investigation of the collapse of a school roof constitute public records). Cf. Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973) (Sunshine Law applies to boards acting in a “quasi-judicial” capacity).

Disclosure of records of investigative proceedings upon completion of a preliminary investigation is not violative of privacy rights arising under the state or federal Constitutions. See Garner v. Florida Commission on Ethics, 415 So. 2d 67 (Fla. 1st DCA 1982), review denied, 424 So. 2d 761 (Fla. 1983) (public’s right to view commission files prepared in connection with investigation of alleged violations of the Code of Ethics outweighs an individual’s disclosural privacy rights).

The investigative exemptions now found in paragraphs (2)(c) through (f), (h) and (i) of s. 119.071(2), F.S., limit disclosure of specified law enforcement records, and thus do not apply to investigations conducted by agencies outside the criminal justice system. See Douglas v. Michel, 410 So. 2d 936, 939 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985) (exemption for “information revealing surveillance techniques or procedures or personnel” [now found at s. 119.071(2)(d)] does not apply to a hospital’s personnel files). See also AGO 91-75, stating that the active criminal investigation and intelligence exemption does not apply to information compiled in a school board investigation into the conduct of certain school departments; and AGO 87-51, concluding that complaints from state labor department employees relating to departmental integrity and efficiency do not constitute criminal intelligence information or criminal investigative information.

Thus, the contents of an investigative report compiled by the Inspector General for a state agency in carrying out his or her duty to determine program compliance are not converted into criminal intelligence information merely because the Florida Department of Law Enforcement also conducts an investigation or because such report or a copy thereof has been transferred to the department. Inf. Op. to Slye, August 5, 1993.

b. Statutory Exemptions

A number of exemptions exist for investigative records. For a more complete listing, please refer to Appendix D and the Index.

(1) Discrimination Investigations

Complaints and other records in the custody of any agency which relate to a complaint of discrimination based on race, color, religion, sex, national origin, age, handicap, or marital status in connection with hiring practices, position classifications, salary, benefits, discipline, discharge, employee performance evaluation, or related activities are exempt from 119.07(1), F.S., until a probable cause finding is made, the investigation becomes inactive, or the complaint or other record is made part of the record of a hearing or court proceeding. Section 119.071(2)(g)1., F.S. See AGO 96-93 (prior to completion of an investigation and a finding of probable cause, records of a county equal opportunity board are exempt from disclosure). Cf. s. 119.071(2)(k), F.S., providing for confidentiality of complaints and investigative records of employee misconduct until the investigation is no longer active or has been concluded as set forth in the exemption.

Section 119.071(2)(g)1., F.S., was found to be inapplicable to a complaint filed against a county commissioner which listed many examples of alleged abusive behavior that would be inappropriate for one in the commissioner’s position, because the complaint did not assert any form of discrimination based upon race, color, religion, sex, national origin, handicap or marital status. Schweickert v. Citrus County Florida Board, 193 So. 3d 1075, 1080 (Fla. 5th DCA 2016). The appellate court also rejected the county’s argument that it could delay producing the complaint until after the investigation was completed because the investigator might have discovered or generated records during her investigation that could have related to discrimination based on race, color, religion, sex, national origin, handicap or marital status which would have qualified for the exemption.

Section 119.071(2)(g)2., F.S., provides that when the alleged victim chooses not to file a complaint and requests that the records of the complaint remain confidential, all records relating to an allegation of employment discrimination are confidential. But see AGO 09-10, stating that when an agency has reached a settlement with an individual who has filed a discrimination complaint, the claimant is considered to have pursued the claim and may not request confidentiality pursuant to the exemption.

Complaints and other records in the custody of any unit of local government which relate to a complaint of discrimination based on race, color, religion, sex, national origin, age, handicap, marital status, sale or rental of housing, the provision of brokerage services, or the financing of housing, are exempt from s. 119.07(1), F.S., until a probable cause finding is made, the investigation becomes inactive, or the complaint or other record is made part of the record of any hearing or court proceeding. Section 119.0713(1), F.S.

Personal identifying information of the alleged victim in an allegation of sexual harassment or the victim of sexual harassment is confidential and exempt if such information identifies that person as an alleged victim or as a victim of sexual harassment. Confidentiality may be waived in writing by the alleged victim or the victim. The information may be disclosed to another governmental entity in the furtherance of its official duties and responsibilities. Section 119.071(2)(n), F.S. CF. s. 284.45, F.S.

(2) Employee Misconduct Investigations

For information about the exemption for complaints and active investigations of employee misconduct contained in s. 119.071(2)(k), F.S., please refer to the discussion on page 135.

(3) Ethics Investigations

The complaint and records relating to the preliminary investigation conducted by the Commission on Ethics or other specified entities are confidential and exempt until the complaint is dismissed as legally insufficient, the alleged violator requests in writing that the records be made public, or until the Commission or other listed entity determines whether probable cause exists to believe that a violation has occurred. Section 112.324(2)(a) and (e), F.S. See also s. 112.3215(8) (b) and (d), F.S. (providing confidentiality for certain records relating to Ethics Commission investigation of alleged violations of lobbying laws).

However, a police report of an investigation of a public employee that has been concluded and is in the possession of the police department is not made confidential by the fact that the same issue and the same individual are the subject of an ethics complaint pursuant to Part III, Ch. 112, F.S., or because a copy of the police report may be included in information obtained by the Ethics Commission pursuant to its powers to investigate ethics complaints. AGO 96-05. And see Gay v. City of Madeira Beach, No. 16-004836 (Fla. 6th Cir. Ct. May 26, 2017), available online in the Cases database at the open government site at MyFloridaLegal.com (city must permit inspection and copying of complaints filed with the Ethics Commission and received by the City Attorney). Cf. s. 112.324(2)(b), F.S. (written referrals to the Ethics Commission submitted pursuant to s. 112.324[1][b], F.S., records relating to such referrals held by the commission, the Governor, the Department of Law Enforcement, or a state attorney, and records relating to any preliminary investigation of such referrals held by the commission, are confidential and exempt except as provided in s. 112.324[2][e], F.S.)

(4) Local Government Inspector General Investigations

The investigative report of the inspector general prepared for or on behalf of a unit of local government becomes a public record when the investigation becomes final. Section 119.0713(2)(b), F.S. An investigation becomes final when the investigative report is presented to the unit of local government, as defined in the exemption. Id. Cf. Nicolai v. Baldwin, 715 So. 2d 1161, 1163 (Fla. 5th DCA 1998), noting that a draft audit report prepared by the clerk of court did not become “final” when it was reviewed by the county administrator; the report became “final” and subject to disclosure when presented to the county commission. Information received, produced, or derived from an investigation is confidential and exempt until the investigation is complete or when the investigation is no longer active, as defined in the exemption. Id.

(5) State Inspector General Investigations

Audit workpapers and reports of state agency inspectors general appointed in accordance with s. 20.055, F.S., are public records to the extent that they do not include information which has been made confidential and exempt from s. 119.07(1), F.S. Section 20.055(6)(b), F.S. However, when the inspector general or a member of the staff receives from an individual a complaint or information that falls within the definition provided in s. 112.3187(5), F.S. [whistleblower], the name or identity of the individual shall not be disclosed to anyone else without the written consent of the individual, unless the inspector general determines that such disclosure is unavoidable during the course of the audit or investigation. Id. And see page 135, discussing the exemption for complaints alleging employee misconduct found in s. 119.071(2)(k), F.S.

Section 112.31901(2), F.S., authorizes the Governor, in the case of the Chief Inspector General, or agency head, in the case of an employee designated as the agency inspector general under s. 112.3189, F.S., to certify that an investigatory record of the Chief Inspector General or an agency inspector general requires an exemption in order to protect the integrity of the investigation or avoid unwarranted damage to an individual’s good name or reputation. If so certified, the investigatory records are exempt from s. 119.07(1), F.S., until the investigation ceases to be active, or a report detailing the investigation is provided to the Governor or the agency head, or 60 days from the inception of the investigation for which the record was made or received, whichever first occurs. Section 112.31901(1), F.S. The provisions of this section do not apply to whistle-blower investigations conducted pursuant to the whistle-blower act. Section 112.31901(3), F.S.

(6) State Licensing Investigations

Pursuant to s. 455.225(10), F.S., complaints against a licensed professional filed with the state licensing board or the Department of Business and Professional Regulation are confidential and exempt from disclosure until 10 days after probable cause has been found to exist by the probable cause panel of the licensing board or by the Department of Business and Professional Regulation, or the professional waives his or her privilege of confidentiality, whichever occurs first. A similar exemption applies to complaints and investigations conducted by the Department of Health and licensing boards within that department as provided in s. 456.073(10), F.S. See Salameh v. Florida Department of Health, 325 So. 3d 349 (Fla. 1st DCA 2021) (pursuant to s. 456.073[10], records of administrative complaint made public after probable cause panel found probable cause but failed to consider Dr. Salameh’s exculpatory materials as required by statute, could not be maintained as confidential even though panel subsequently reconsidered the case, reviewed Salameh’s submission, found no probable cause and withdrew the complaint). Complaints filed by a municipality against a licensed professional are included within the confidentiality provisions. AGO 02-57. However, while the complaint filed by the municipality with the state licensing agency is exempt, the exemption afforded by the statute does not extend to other records held by the city related to the nature of the alleged offense by the licensed professional. Id.

(7) Whistle-Blower Investigations

(a) Whistle-Blower Identity

The Whistle-blower’s Act, ss. 112.3187-112.31895, F.S., “is intended to prevent agencies, or independent contractors of agencies, from taking retaliatory action against an employee who reports violations of law on the part of a public employer or an independent contractor.” AGO 12-20. It provides, with limited exceptions, for the confidentiality of the identity of a whistle-blower who discloses in good faith to the Chief Inspector General, an agency inspector general, a local chief executive officer, or other appropriate local official information that alleges that an employee or agent of an agency or independent contractor has violated or is suspected of having violated any federal, state, or local law, rule or regulation, thereby creating and presenting a substantial and specific danger to the public’s health, safety, or welfare; or has committed or is suspected of having committed an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty. Section 112.3188(1), F.S. See also s. 20.055(6)(b), F.S.

A complainant may waive the right to confidential treatment of his or her name or identity. AGO 95-20. However, an individual may not be required to sign a waiver of confidentiality as a condition of processing a complaint. AGO 96-40.

In order to qualify as a whistle-blower complaint, particular information must be disclosed to an “appropriate local official” or other statutorily designated officials; a general complaint of wrongdoing or a complaint to officials other than those specifically named in s. 112.3188(1), F.S., does not entitle the complainant to whistle-blower protection. AGO 98-37. And see AGO 99-07 (county inspector general qualifies as an “appropriate local official” for purposes of the whistle-blower law); and AGO 96-40 (town ethics commission may constitute “appropriate local official” for purposes of processing complaints under the whistle-blower law). Cf. AGO 12-20 (while county transportation board may be designated as an “appropriate local official” under s. 112.3188, F.S., such designation “may not be advisable” because board must comply with the Sunshine Law and, “[a]bsent a statutory exemption, the handling of confidential information or records during the course of public meetings does not otherwise allow meetings of the board to be closed”).

(b) Active Investigations

Section 112.3188(2)(a), F.S., states that except as specifically authorized in s. 112.3189, F.S., all information received by the Chief Inspector General or an agency inspector general or information produced or derived from fact-finding or other investigations conducted by the Florida Commission on Human Relations or the Department of Law Enforcement is confidential and exempt if the information is being received or derived from allegations as set forth in s. 112.3188(1)(a) or (b), F.S., and an investigation is “active” as defined s. 112.3188(2)(c), F.S.

“Thus, the act protects the identity of employees and persons who disclose information that can serve as the basis for a whistle-blower complaint, as well as information received in the course of a whistle-blower investigation.”

Information received by an appropriate local official or local chief executive officer or produced or derived from fact-finding or investigations by local government pursuant to s. 112.3187(8)(b), F.S. [authorizing administrative procedures for handling whistle-blower complaints filed by local public employees] is confidential and exempt, provided that the information is being received or derived from allegations set forth in s. 112.3188(1) and an investigation is “active” as defined in the section. Section 112.3188(2)(b), F.S. A complaint initiating an investigation into alleged mismanagement and overpayment of contractors constitutes “information received by” a proper local official and is not subject to disclosure until the investigation is no longer active. McLendon v. Palm Beach County Office of Inspector General, 286 So. 3d 375 (Fla. 4th DCA 2019). See also s. 119.071(2)(k), F.S., providing that complaints alleging “employee misconduct” are confidential until the investigation is no longer active or has concluded as provided in the exemption.

The exemption applies whether the allegations of wrongdoing were received from an anonymous source or a named individual; in either case information received or generated during the course of the investigation is subject to the exemption. AGO 99-07. And see AGO 10-48 (confidential information received by the county’s inspector general pursuant to the county’s whistle-blower act may be shared with the county’s ethics commission only for the purpose of carrying out the commission’s whistle-blower functions).

§2-C-15 | LAW ENFORCEMENT RECORDS

a. Arrest and Crime Reports and the Exemption for Active Criminal Investigative and Active Criminal Intelligence Information

(1) Arrest and Crime Reports

Arrest and crime reports are generally considered to be open to public inspection. AGOs 91-74 and 80-96. And see AGO 08-23 (officer trip sheets revealing identity of officer, location and hours of work and locations to which officers have responded for emergency and non-emergency purposes are public records); and AGO 12-07, discussing requirements for recording telephone conversations set forth in Ch. 934, F.S., Florida’s Security of Communications law, but noting that “any recordings of telephone conversations made by [a police department] in the usual course of business would be public records,” subject to the access and confidentiality provisions of the Public Records Act. Cf. s. 901.43(1), F.S., prohibiting a person or entity engaged in publishing or disseminating arrest booking photographs through a publicly accessible print or electronic medium from soliciting or accepting a fee or other payment to remove the photographs.

However, statutory exemptions for active criminal investigative and intelligence information, confessions, juvenile offender records and certain victim information may apply to crime reports and other law enforcement records. A discussion of these and other exemptions pertaining to law enforcement records follows; for additional information regarding exemptions, please refer to Appendix D and the Index, infra.

(2) Purpose and Scope of Exemption

Section 119.071(2)(c)1., F.S., exempts active criminal intelligence information and active criminal investigative information from public inspection. To be exempt, the information must be both “active” and constitute either “criminal investigative” or “criminal intelligence” information. See Woolling v. Lamar, 764 So. 2d 765, 768 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186 (Fla. 2001).

Thus, if a crime report contains active criminal investigative information, the criminal investigative information may be excised from the report. AGO 91-74. See also Palm Beach Daily News v. Terlizzese, No. CL-91-3954-AF (Fla. 15th Cir. Ct. April 5, 1991), available online in the Cases database at the open government site at MyFloridaLegal.com, holding that a newspaper was not entitled under Ch. 119, F.S., to inspect the complete and unredacted incident report (prepared following a reported sexual battery but prior to the arrest of a suspect), including the investigating officer’s narrative report of the interview with the victim, since such information was exempt from inspection as active criminal investigative information and as information identifying sexual battery victims. See s. 119.071(2)(c) and (h), F.S. See also the discussion on Marsy’s Law on page 121.

The active criminal investigative and intelligence exemption is limited in scope; its purpose is to prevent premature disclosure of information when such disclosure could impede an ongoing investigation or allow a suspect to avoid apprehension or escape detection. See Tribune Company v. Public Records, 493 So. 2d 480, 483 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987). And see Palm Beach County Sheriff’s Office v. Sun-Sentinel Co., LLC, 226 So. 3d 969, 973 (Fla. 4th DCA 2017), noting that the exemption furthers “the critical importance” of preserving the confidentiality of police records compiled during an ongoing investigation being conducted in good faith by criminal justice agencies.

Moreover, the active criminal investigative and intelligence information exemption does not prohibit the disclosure of the information by the criminal justice agency; the information is exempt from and not subject to the mandatory inspection requirements in s. 119.07(1), F.S., which would otherwise apply. As the court stated in Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991), “[t]here are many situations in which investigators have reasons for displaying information which they have the option not to display.” And see AGO 90-50. Cf. s. 838.21, F.S., providing that it is unlawful for a public servant, with intent to obstruct, impede, or prevent a criminal investigation or a criminal prosecution, to disclose active criminal investigative or intelligence information or to disclose or use information regarding either the efforts to secure or the issuance of a warrant, subpoena, or other court process or court order relating to a criminal investigation or criminal prosecution when such information is not available to the general public and is gained by reason of the public servant’s official position.

The law enforcement agency asserting the exemption has the burden of proving that it is entitled to it. Christy v. Palm Beach County Sheriff ‘s Office, 698 So. 2d 1365 (Fla. 4th DCA 1997); and Florida Freedom Newspapers, Inc. v. Dempsey, 478 So. 2d 1128 (Fla. 1st DCA 1985).

(3) Definition of Active Criminal Investigative or Intelligence Information

“Criminal intelligence information” means information concerning “an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.” Section 119.011(3)(a), F.S.

Criminal intelligence information is considered “active” as long “as it is related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities” or “is directly related to pending prosecutions or appeals.” Section 119.011(3)(d), F.S.

“Criminal investigative information” is defined as information relating to “an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance.” Section 119.011(3)(b), F.S. See Rose v. D’Alessandro, 380 So. 2d 419 (Fla. 1980) (complaints and affidavits received by a state attorney in the discharge of his investigatory duties constitute criminal intelligence or criminal investigative information). Similarly, an autopsy report may constitute criminal investigative information. See AGO 78-23.

Such information is considered “active” as long “as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future” or “is directly related to pending prosecutions or appeals.” Section 119.011(3)(d), F.S.

“Criminal justice agency” is defined to mean any law enforcement agency, court, prosecutor or any other agency charged by law with criminal law enforcement duties or any agency having custody of criminal intelligence information or criminal investigative information for the purpose of assisting such law enforcement agencies in the conduct of active criminal investigation or prosecution or for the purpose of litigating civil actions under the Racketeer Influenced and Corrupt Organization Act, during the time that such agencies are in possession of criminal intelligence information or criminal investigative information pursuant to their criminal law enforcement duties. The term also includes the Department of Corrections. Section 119.011(4), F.S.

(4) Information that is not Considered to be Criminal Investigative or Intelligence Information and must be Released unless some other Exemption Applies

Section 119.011(3)(c), F.S., states that the following information is not criminal investigative or criminal intelligence information:

1. The time, date, location and nature of a reported crime;

2. The name, sex, age, and address of a person arrested (but see pages 114-117 regarding confidentiality of certain juvenile crime records) or the name, sex, age and address of the victim of a crime, except as provided in s. 119.071(2)(h) or (o). F.S. Section 119.071(2)(h), F.S., provides confidentiality for information revealing the identity of a victim of a sexual offense, child abuse, or a child victim of human trafficking. Section 119.071(2)(o), F.S., provides that the address of a victim of an incident of mass violence is exempt. For more information, please refer to the discussion of exemptions pertaining to certain crime victims found on pages 122-124 (child abuse and sexual offense victims) and page 125 (homicide victims). For information on the constitutional amendment known as Marsy’s Law, please see the discussion on page 121;

3. The time, date and location of the incident and of the arrest;

4. The crime charged;

5. Documents given or required to be given to the person arrested, except as provided in s. 119.071(2)(h)or (m), F.S., unless the court finds that release of the information prior to trial would be defamatory to the good name of a victim or witness or jeopardize the safety of such victim or witness; and would impair the ability of the state attorney to locate or prosecute a codefendant;

6. Informations and indictments except as provided in s. 905.26, F.S. [prohibiting disclosure of finding of indictment against a person not in custody, under recognizance or under arrest].

Accordingly, since the above information does not fall within the definition of criminal intelligence or criminal investigative information, it is always subject to disclosure unless some other specific exemption applies. For example, the “time, date, and location of the incident and of the arrest” cannot be withheld from disclosure since such information is expressly exempted from the definitions of criminal intelligence and criminal investigative information. See s. 119.011(3)(c)3., F.S. See also Barfield v. City of Tallahassee, 171 So. 3d 239 (Fla. 1st DCA 2015) (while “active criminal investigative information” is exempt from public disclosure requirements, the statute expressly excludes the time, date, location, and nature of a reported crime from the exemption).

(5) Records Released to the Defendant

Except in limited circumstances, records which have been given or are required to be given to the person arrested cannot be withheld from public inspection as criminal investigative or intelligence information. See s. 119.011(3)(c)5., F.S. In other words, once the material has been made available to the defendant as part of the discovery process in a criminal proceeding, the material is ordinarily no longer considered to be exempt criminal investigative or criminal intelligence information. See, e.g., 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) (active criminal investigation exemption does not apply to information for which disclosure was previously required under the rules of discovery). Accord Tribune Company v. Public Records, 493 So. 2d 480, 485 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987) and Times Publishing Company v. State, 903 So. 2d 322, 325 (Fla. 2d DCA 2005). Cf. State v. Buenoano, 707 So. 2d 714 (Fla. 1998) (restricted access documents provided to state attorney by federal government pursuant to a loan agreement retained their confidential status under a Florida law providing an exemption for out-of-state criminal investigative information that is shared with Florida criminal justice agencies on a confidential basis, even though the documents erroneously had been given to the defendant and placed in the court record).

For example, in Satz v. Blankenship, 407 So. 2d 396 (Fla. 4th DCA 1981), review denied, 413 So. 2d 877 (Fla. 1982), the court ruled that a newspaper reporter was entitled to access to tape recordings concerning a defendant in a criminal prosecution where the recordings had been disclosed to the defendant. The court concluded that a reading of the statute reflected the Legislature’s belief that once the information was released to the defendant, there was no longer any need to exclude the information from the public. Thus, the tape recordings were no longer “criminal investigative information” that could be withheld from public inspection. See also News-Press Publishing Co. Inc. v. D’Alessandro, No. 96-2743-CA-RWP (Fla. 20th Cir. Ct. April 24, 1996), available online in the Cases database at the open government site at MyFloridaLegal.com (once state allowed defense counsel to listen to portions of a surveillance audiotape involving a city councilman accused of soliciting undue compensation, those portions of the audiotape became excluded from the definition of “criminal investigative information,” and were subject to public inspection). Cf. City of Miami v. Post-Newsweek Stations Florida, Inc., 837 So. 2d 1002, 1003 (Fla. 3d DCA 2002), review dismissed, 863 So. 2d 1190 (Fla. 2003) (where defendant filed request for discovery, but withdrew request before state attorney provided such materials, requested materials were not “given or required by law... to be given to the person arrested” and thus did not lose their exempt status as active criminal investigative information).

Similarly, in Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775 (Fla. 4th DCA 1985), review denied, 488 So. 2d 67 (Fla. 1986), the court upheld a trial judge’s order requiring the state attorney to release to the news media all information furnished to the defense counsel in a criminal investigation. While the state attorney argued that the documents could be withheld because the criminal investigation was still “active” and thus exempt from disclosure, the court rejected this contention by concluding that once the material was given to the defendant pursuant to the rules of criminal procedure, the material was excluded from the statutory definition of criminal investigative information. Therefore, it was no longer relevant whether the investigation was active or not and the documents could not be withheld as active criminal investigative information. Id. at 779n.1.

Chapter 119’s requirement of public disclosure of records made available to the defendant does not violate the attorney disciplinary rule prohibiting extrajudicial comments about defendants as long as the state attorney does not put an interpretation on the record that prejudices the defendant or exposes witnesses. Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d at 780.

The only circumstances where criminal intelligence or investigative information can retain that status even though it has been made available to the defendant are:

1) If the information would reveal identifying information of a victim of a sexual offense, child abuse, or certain human trafficking crimes pursuant to s. 119.071(2)(h), F.S.; or identifying information of a witness to a homicide for a specified period as provided in s. 119.071(2)(m), F.S.; or the address of a victim of an incident of mass violence as provided in s. 119.071(2)(o), F.S.; or

2) If a court order has been issued finding that release of the information prior to trial would:

a) be defamatory to the good name of a victim or witness or jeopardize the safety of a victim or witness; and

b) impair the ability of a state attorney to locate or prosecute a codefendant.

In all other cases, material which has been made available to the defendant cannot be deemed criminal investigative or intelligence information and must be open to inspection unless some other exemption applies (e.g., s. 119.071[2][e], F.S., exempting all information “revealing the substance of a confession” by a person arrested until there is a final disposition in the case); or the court orders closure of the material in accordance with its constitutional authority to take such measures as are necessary to obtain orderly proceedings and a fair trial or to protect constitutional privacy rights of third parties. See Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982); Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988); Post-Newsweek Stations, Florida Inc. v. Doe, 612 So. 2d 549 (Fla. 1992). And see Morris Communications Company LLC v. State, 844 So. 2d 671, 673n.3 (Fla. 1st DCA 2003) (although documents turned over to the defendant during discovery are generally public records subject to disclosure under Ch. 119, the courts have authority to manage pretrial publicity to protect the defendant’s constitutional rights as described in Miami Herald Publishing Company v. Lewis, supra); Times Publishing Co. v. State, 903 So. 2d 322 (Fla. 2d DCA 2005) (while the criminal discovery rules authorize a nonparty to file a motion to restrict disclosure of discovery materials based on privacy considerations, where no such motion has been filed, the judge is not authorized to prevent public access on his or her own initiative). Cf. Rameses, Inc. v. Demings, 29 So. 3d 418, 423 (Fla. 5th DCA 2010) (“disclosure to criminal defendant during discovery of unredacted versions of undercover police surveillance recordings does not destroy, in a public records context, the exemptions contained in section 119.071 for information relating to the identity of undercover law enforcement personnel”). See also the discussion of Marsy’s Law on page 121.

(6) Active Versus Inactive Criminal Investigative or Intelligence Information

(a) Active Criminal Investigative Information

Criminal investigative information is considered active (and, therefore, exempt from disclosure pursuant to s. 119.071[2][c], F.S.) “as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.” Section 119.011(3)(d)2., F.S. Information in cases barred from prosecution by a statute of limitation is not active. Id.

The definition of “active” requires “a showing in each particular case that an arrest or prosecution is reasonably anticipated in the foreseeable future.” Barfield v. City of Fort Lauderdale Police Department 639 So. 2d 1012, 1016 (Fla. 4th DCA), review denied, 649 So. 2d 869 (Fla. 1994). Thus, “once the investigations are concluded, if no charges are filed, the records would cease to be ‘active’ and thus subject to disclosure.” Id. at 1018.

There is no fixed time limit for naming suspects or making arrests other than the applicable statute of limitations. See Florida Freedom Newspapers, Inc. v. Dempsey, 478 So. 2d 1128 (Fla. 1st DCA 1985). The fact that investigators might not yet have decided upon a suspect does not necessarily imply that the investigation is inactive. Id. at 1131. The Legislature did not intend that confidentiality be limited to investigations where the outcome and an arrest or prosecution was a certainty or even a probability. Barfield v. City of Fort Lauderdale Police Department at 1016-1017.

Thus, an investigation will be deemed to be “active,” even though there is no immediate anticipation of an arrest, so long as the investigation is proceeding in good faith, and the state attorney or grand jury will reach a determination in the foreseeable future. Barfield v. City of Fort Lauderdale Police Department, supra. Accordingly, a police department’s criminal investigation into a shooting incident involving its officers continued to be “active” even though pursuant to department policy, all police shooting cases were sent to the state attorney’s office for review by the grand jury and the department did not know if there would be an arrest in this particular case. Id.

Similarly, in News-Press Publishing Co., Inc. v. Sapp, 464 So. 2d 1335 (Fla. 2d DCA 1985), the court held that in view of an ongoing investigation by the state attorney and the convening of a grand jury in the very near future to consider a shooting incident by deputy sheriffs during an undercover drug transaction, documents consisting of the sheriff’s completed internal investigation of the incident constituted “active criminal investigative information” and were, therefore, exempt from disclosure. See also Wells v. Sarasota Herald Tribune Company, Inc., 546 So. 2d 1105 (Fla. 2d DCA 1989) (investigative files of the sheriff and state attorney were not inactive where an active prosecution began shortly after the trial judge determined that the investigation was inactive and ordered that the file be produced for public inspection).

Additionally, a circuit court held that a criminal investigative file involving an alleged 1988 sexual battery which had been inactive for three years, due in part to the death of the victim from unrelated causes, could be “reactivated” and removed from public view in 1992 when new developments prompted the police to reopen the case. The court found that it was irrelevant that the 1988 file could have been inspected prior to the current investigation; the important considerations were that the file apparently had not been viewed by the public during its “inactive” status and the file was now part of an active criminal investigation and therefore exempt from disclosure as active criminal investigative information. News-Press Publishing Co., Inc. v. McDougall, No. 92-1193CA-WCM (Fla. 20th Cir. Ct. February 26, 1992), available online in the Cases database at the open government site at MyFloridaLegal.com.

In another case, however, the appellate court upheld a court order unsealing an arrest warrant affidavit upon a showing of good cause by the subject of the affidavit. The affidavit had been quashed and no formal charges were filed against the subject. The court held that the affidavit did not constitute active criminal investigative information because there was no reasonable, good faith anticipation that the subject would be arrested or prosecuted in the near future. In addition, most of the information was already available to the subject through grand jury transcripts, the subject’s perjury trial, or by discovery. Metropolitan Dade County v. San Pedro, 632 So. 2d 196 (Fla. 3d DCA 1994). And see Mobile Press Register, Inc. v. Witt, No. 95-06324 CACE (13) (Fla. 17th Cir. Ct. May 21, 1996), available online in the Cases database at the open government site at MyFloridaLegal.com in which the judge ordered that files in a 1981 unsolved murder be opened to the public because, despite recent reactivation of the investigation, the case had been dormant for many years and no arrest or prosecution had been initiated or was imminent.

(b) Active Criminal Intelligence Information

In order to constitute exempt “active” criminal intelligence information, the information must “be of the type that will lead to the ‘detection of ongoing or reasonably anticipated criminal activities.’” Christy v. Palm Beach County Sheriff’s Office, 698 So. 2d 1365, 1367 (Fla. 4th DCA 1997), quoting s. 119.011(3)(d)1., F.S. See Barfield v. Orange County, Florida, No. CI92-5913 (Fla. 9th Cir. Ct. August 4, 1992), available online in the Cases database at the open government site at MyFloridaLegal.com (denying a petition for writ of mandamus seeking access to gang intelligence files compiled by the sheriff’s office). See also AGO 94-48 (information contained in the statewide integrated violent crime information system established by the Florida Department of Law Enforcement constitutes active criminal intelligence information; even though some of the information may have come from closed investigations, the information is collected to “anticipate, prevent, and monitor criminal activity and to assist in the conduct of ongoing criminal investigations”).

By contrast, in Christy v. Palm Beach County Sheriff’s Office, supra, the court ruled that records generated in connection with a criminal investigation conducted 13 years earlier did not constitute “active” criminal intelligence information. The court noted that the exemption “is not intended to prevent disclosure of criminal files forever on the mere possibility that other potential criminal defendants may learn something from the files.” Id.

(c) Pending Prosecutions or Appeals

Criminal intelligence and investigative information is also considered to be “active” while such information is directly related to pending prosecutions or direct appeals. Section 119.011(3)

(d), F.S. See News-Press Publishing Co., Inc. v. Sapp, supra; and Tal-Mason v. Satz, 614 So. 2d 1134

(Fla. 4th DCA), review denied, 624 So. 2d 269 (Fla. 1993) (contents of prosecutorial case file must remain secret until the conclusion of defendant’s direct appeal).

Once the conviction and sentence have become final, criminal investigative information can no longer be considered to be “active.” See State v. Kokal, 562 So. 2d 324, 326 (Fla. 1990) and Osario v. State, 34 So. 3d 98 (Fla. 3rd DCA 2010). Accord Tribune Company v. Public Records, 493 So. 2d 480, 483-484 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987) (actions for postconviction relief following affirmance of the conviction on direct appeal are not pending appeals for purposes of s. 119.011[3][d]2., F.S. See also Christy v. Palm Beach County Sheriff’s Office, 698 So. 2d 1365, 1367 (Fla. 4th DCA 1997) (the term “pending prosecutions or appeals” in s. 119.011[3][d], F.S., applies only to ongoing prosecutions or appeals which have not yet become final).

Moreover, the determination as to whether investigatory records related to pending prosecutions or appeals are “active” is relevant only to those records which constitute criminal intelligence or investigative information. In other words, if records are excluded from the definition of criminal intelligence or investigative information, as in the case of records given or required to be given to the defendant under s. 119.011(3)(c)5., F.S., it is immaterial whether the investigation is active or inactive. See Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775, 779n.1 (Fla. 4th DCA 1985), review denied, 488 So. 2d 67 (Fla. 1986) (“Something that is not criminal intelligence information or criminal investigative information cannot be active criminal intelligence information or active criminal investigative information.”). Accord 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) (active criminal investigation exemption does not apply to information for which disclosure was previously required under discovery rules even though there is a pending direct appeal).

(7) Criminal Defendant’s Public Records Request

Section 119.07(8), F.S., states that the public access rights set forth in s. 119.07, F.S., “are not intended to expand or limit the provisions of Rule 3.220, Florida Rules of Criminal Procedure, regarding the right and extent of discovery by the state or by a defendant in a criminal prosecution or in collateral postconviction proceedings.” Thus, a criminal defendant’s public records request for nonexempt law enforcement records relating to the defendant’s pending prosecution constitutes an election to participate in discovery and triggers a reciprocal discovery obligation. Henderson v. State, 745 So. 2d 319 (Fla. 1999).

(8) Disclosure of Active Criminal Investigative Information to the Public

It has been held that the criminal investigative exemption does not apply if the information has already been made public. 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). See also Downs v. Austin, 522 So. 2d 931, 935 (Fla. 1st DCA 1988) (once state has gone public with information which could have been previously protected from disclosure under Public Records Act exemptions, no further purpose is served by preventing full access to the desired information). Cf. State v. Buenoano, 707 So. 2d 714, 717 (Fla. 1998) (confidential documents furnished to a state attorney by the federal government remained exempt from public inspection even though the documents inadvertently had been given to the defendant and placed in the court record in violation of the conditions of the federal loan agreement).

However, the voluntary disclosure of a non-public record does not automatically waive the exempt status of other documents. Arbelaez v. State, 775 So. 2d 909, 918 (Fla. 2000). Accord 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 (release of the autopsy report and the medical examiner’s public comments about the report did not mean that other records in the possession of the medical examiner relating to an active criminal investigation into the death were public; “[i]t is not unusual for law enforcement and criminal investigatory agencies to selectively release information relating to an ongoing criminal investigation in an effort to enlist public participation in solving a crime”).

(9) Disclosure of Active Criminal Investigative Information to Another Criminal Justice Agency

Exempt active criminal investigative information may be shared with another criminal justice agency and retain its protected status; in “determining whether or not to compel disclosure of active criminal investigative or intelligence information, the primary focus must be on the statutory classification of the information sought rather than upon in whose hands the information rests.” City of Riviera Beach v. Barfield, 642 So. 2d 1135, 1137 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995). The City of Riviera Beach court held that exempt records of the West Palm Beach police department’s active criminal investigation concerning a shooting incident involving a police officer from Riviera Beach could be furnished to the Riviera Beach police department for use in a simultaneous administrative internal affairs investigation of the officer without losing their exempt status. Accord Ragsdale v. State, 720 So. 2d 203, 206 (Fla. 1998) (applicability of a particular exemption is determined by the document being withheld, not by the identity of the agency possessing the record).

Additionally, a police department may enter into a contract with a private company that compiles raw police data and then provides informational reports to law enforcement. The release of the exempt information to the corporation for this purpose would not cause such records to lose their exempt status. AGO 96-36.

However, while the courts have recognized that active criminal investigative information may be forwarded from one criminal justice agency to another without jeopardizing its exempt status, “[t]here is no statutory exemption from disclosure of an ‘ongoing federal prosecution.’” Woolling v. Lamar, 764 So. 2d 765, 768 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186 (Fla. 2001). In Woolling, the court held that a state attorney bore the burden of establishing that state attorney files in a nolle prossed case which were furnished to the federal government for prosecution of a defendant constituted active criminal investigative information; the fact that the federal government was actively prosecuting the case was not sufficient, standing alone, to justify imposition of the exemption.

Moreover, the exemption for active criminal intelligence and investigative information does not exempt other public records from disclosure simply because they are transferred to a law enforcement agency. See, e.g., Tribune Company v. Cannella, 438 So. 2d 516, 523 (Fla. 2d DCA 1983), reversed on other grounds, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., Deperte v. Tribune Company, 105 S.Ct. 2315 (1985) (assistant state attorney could not withdraw public records from public scrutiny by asserting that he “compiled” the records simply because he subpoenaed them; thus, law enforcement personnel records compiled and maintained by the employing agency prior to a criminal investigation did not constitute criminal intelligence or criminal investigative information); and State Attorney’s Office of the Seventeenth Judicial Circuit v. Cable News Network, Inc., 251 So. 3d 205 (Fla. 4th DCA 2018) (surveillance video footage created by a school district before a criminal investigation began did not constitute “criminal investigative information” within the meaning of s. 119.011[3]b] because it was not compiled by a criminal justice agency in the course of conducting a criminal investigation). And see New Times, Inc. v. Ross, No. 92-5795 CIV 25 (Fla. 11th Cir. Ct. March 17, 1992), available online in the Cases database at the open government site at MyFloridaLegal.com (papers in a closed civil forfeiture file which subsequently became part of a criminal investigation were open to inspection as the materials could not be considered criminal investigative information because the file was closed prior to the commencement of the criminal investigation).

Thus, public records maintained and compiled by the Office of the Capital Collateral Representative cannot be transformed into active criminal investigative information by merely transferring the records to the Florida Department of Law Enforcement (FDLE). AGO 88-25. Accord Inf. Op. to Slye, August 5, 1993, concluding that the contents of an investigative report compiled by a state agency inspector general in carrying out his or her duty to determine program compliance are not converted into criminal intelligence information merely because FDLE also conducts an investigation or because such report or a copy thereof has been transferred to that department. And see Sun-Sentinel, Inc. v. Florida Department of Children and Families, 815 So. 2d 793 (Fla. 3d DCA 2002).

Similarly, in AGO 92-78, the Attorney General’s Office concluded that otherwise disclosable public records of a housing authority are not removed from public scrutiny merely because the records have been subpoenaed by and transferred to the state attorney’s office. Inf. Op. to Theobald, November 16, 2006, stating that while an individual would be prohibited from obtaining records from the internal investigation file pursuant to s. 112.533(2), F.S., while the investigation is active, public records such as overtime slips created prior to the investigation and maintained in the law enforcement officer’s personnel file would not become confidential simply because copies of such records are being used in the investigation.

However, the exemption for active criminal investigative information may not be subverted by making a public records request for all public records gathered by a law enforcement agency in the course of an ongoing investigation; to permit such requests would negate the purpose of the exemption. AGO 01-75.

In addition, a request made by a law enforcement agency to inspect or copy a public record that is in the custody of another agency and the custodian’s response to the request, and any information that would identify whether a law enforcement agency has requested or received that public record are exempt from disclosure requirements, during the period in which the information constitutes active criminal investigative or intelligence information. Section 119.071(2)(c)2.a., F.S. The law enforcement agency that made the request must give notice to the custodial agency when the criminal intelligence information or criminal investigative information is no longer active, so that the custodian’s response to the request and information that would identify the public record requested are available to the public. Section 119.071(2)(c)2.b., F.S.

Thus, while agency records are not exempt merely because they have been submitted to FDLE, s. 119.071(2)(c)2.a., F.S., exempts FDLE’s request to inspect or copy records, as well as the agency’s response, or any information that would identify the public record that was requested by FDLE or provided by the agency during the period in which the information constitutes criminal intelligence or criminal investigative information that is active. AGO 06-04. Although a request may be made for the agency’s records, such a request may not be phrased, or responded to, in terms of a request for the specific documents asked for and received by FDLE during the course of any active criminal investigation. Id. Cf. Inf. Op. to Theobald, November 16, 2006, stating that while the records in a personnel department were subject to disclosure, the personnel department was precluded from identifying which of its records had been gathered by a law enforcement agency in the course of its active internal investigation.

(10) Records Containing both Active Criminal Investigative Information and Non-Exempt Information

The fact that a crime or incident report may contain some active criminal investigative or intelligence information does not mean that the entire report is exempt from disclosure. Section 119.07(1)(d), F.S., requires the custodian of the document to redact only that portion of the record for which an exemption is asserted and to provide the remainder of the record for inspection and copying. See, e.g., City of Riviera Beach v. Barfield, 642 So. 2d 1135, 1137 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995), in which the court held that a city was authorized to withhold exempt active criminal investigative records but “must comply with the disclosure requirements of sections 119.07(2) [now s. 119.07(1)(d)] and 119.011(3)(c) by making partial disclosure of certain non-exempt information contained in the records including, inter alia, the date, time and location of the incident.”

(11) Criminal Investigative or Intelligence Information Received from Other States or the Federal Government

Pursuant to s. 119.071(2)(b), F.S., criminal intelligence or investigative information received by a Florida criminal justice agency from a non-Florida criminal justice agency on a confidential or similarly restricted basis is exempt from disclosure. See State v. Wright, 803 So. 2d 793 (Fla. 4th DCA 2001), review denied, 823 So. 2d 125 (Fla. 2002) (state not required to disclose criminal histories of civilian witnesses which it obtained from the Federal Bureau of Investigation). The purpose of this statute is to “encourage cooperation between non-state and state criminal justice agencies.” State v. Buenoano, 707 So. 2d 714, 717 (Fla. 1998). Thus, confidential documents furnished to a state attorney by the federal government remained exempt from public inspection even though the documents inadvertently had been given to the defendant and placed in the court record in violation of the conditions of the federal loan agreement. Id.

(12) Criminal Investigative or Intelligence Information Received Prior to January 25, 1979

Criminal intelligence or investigative information obtained by a criminal justice agency prior to January 25, 1979, is exempt from disclosure. Section 119.071(2)(a), F.S. See Satz v. Gore Newspapers Company, 395 So. 2d 1274, 1275 (Fla. 4th DCA 1981) (“All criminal intelligence and criminal investigative information received by a criminal justice agency prior to January 25, 1979, is specifically exempt from the requirements of public disclosure.”).

b. “Baker Act” Reports Prepared by Law Enforcement Officers

Part I, Ch. 394, F.S., is the “Baker Act,” Florida’s mental health act. The Baker Act provides for the voluntary or involuntary examination and treatment of mentally ill persons. Pursuant to s. 394.463(2)(a)2., F.S., a law enforcement officer must take a person who appears to meet the statutory criteria for involuntary examination into custody and deliver that person, or have that person delivered, to the nearest receiving facility for examination.

Section 394.463(2)(a)2., F.S., requires the officer to “execute a written report detailing the circumstances under which the person was taken into custody, and the report shall be made a part of the patient’s clinical record.” A patient’s clinical record is confidential. Section 394.4615(1), F.S. Thus, the report prepared by the officer pursuant to this statute is part of the patient’s clinical record and is confidential. Cf. Lake v. State, 193 So. 3d 932 (Fla. 4th DCA 2016) (Legislature has not made records of a sexually violent predator confidential in the same way as the clinical records of a Baker Act patient).

However, in AGO 93-51, the Attorney General’s Office advised that a separate written incident or event report prepared after a specific crime has been committed which contains information given during the initial reporting of the crime, is filed with the law enforcement agency as a record of that event, and is not made a part of the patient’s clinical record, is not confidential pursuant to Ch. 394, F.S. The opinion noted that the incident report in question was not the confidential law enforcement report required by s. 394.463(2)(a)2., but was a separate written incident or event report prepared by a deputy sheriff for filing with the sheriff’s office as an independent record of the deputy’s actions. Cf. s. 394.464(1), F.S., providing confidentiality for petitions for voluntary and involuntary admission for mental health treatment, court orders, and related records that are filed with or by a court under the Baker Act and authorizing disclosure to specified persons and entities.

c. Body Camera Recordings

A body camera recording is confidential and exempt from public disclosure when taken inside a private residence, inside a health care, mental health care, or social services facility, or in a place that a reasonable person would expect to be private. Section 119.071(2)(l)2., F.S. The term “body camera” is defined to mean a “portable electronic recording device that is worn on a law enforcement officer’s body and that records audio and video data in the course of the officer performing his or her official duties and responsibilities.” Section 119.071(2)(l)1.a., F.S.

A law enforcement agency may disclose the recording in furtherance of its official duties and responsibilities or to another governmental agency in furtherance of that agency’s duties and responsibilities. Section 119.071(2)(l)3., F.S.

The recording must be disclosed to certain individuals as set forth in the statute, including the person recorded, or pursuant to court order. Section 119.071(2)(l)4., F.S. And see s. 943.1718(2)(d), F.S. However, the exemption does not supersede any other public records exemption that existed before or is created after the effective date of the exemption. Those portions of a recording which are protected from disclosure by another public records exemption shall continue to be exempt or confidential and exempt. Section 119.071(2)(l)7., F.S.

A law enforcement agency must retain a body camera recording for at least 90 days. Section 119.071(2)(l)5., F.S. The exemption applies retroactively. Section 119.071(2)(l)6., F.S.

d. Confessions

Section 119.071(2)(e), F.S., exempts from disclosure any information revealing the substance of a confession by a person arrested until such time as the case is finally determined by adjudication, dismissal, or other final disposition. See Times Publishing Co. v. Patterson, 451 So. 2d 888 (Fla. 2d DCA 1984) (trial court order permitting state attorney or defendant to designate affidavits, depositions or other papers which contained “statements or substance of statements” to be sealed was overbroad because the order was not limited to those statements revealing the substance of a “confession”).

In AGO 84-33, the Attorney General’s Office advised that only such portions of the complaint and arrest report in a criminal case file which reveal the “substance of a confession,” i.e., the material parts of a statement made by a person charged with the commission of a crime in which that person acknowledges guilt of the essential elements of the act or acts constituting the entire criminal offense, are exempt from public disclosure. And see Times Publishing Company v. State, 827 So. 2d 1040, 1042 (Fla. 2d DCA 2002), (portions of police interview transcript and tape which did not “directly relate to [the defendant’s] participation in the crimes” did not contain the substance of a confession pursuant to s. 119.071(2)(e), F.S.).

e. Confidential Informants

Section 119.071(2)(f), F.S., exempts information disclosing the identity of confidential informants or sources. This exemption applies regardless of whether the informants or sources are still active or may have, through other sources, been identified as such. Christy v. Palm Beach County Sheriff’s Office, 698 So. 2d 1365, 1368 (Fla. 4th DCA 1997); Salcines v. Tampa Television, 454 So. 2d 639 (Fla. 2d DCA 1984); and Rameses, Inc. v. Demings, 29 So. 3d 418 (Fla. 5th DCA 2010). And see State v. Natson, 661 So. 2d 926 (Fla. 4th DCA 1995) (private citizen who provided police with tip information which led to defendant’s arrest may be afforded confidential informant status). 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 and was justified in inferring or had a reasonable expectation that he would be treated as a confidential source, the citizen is 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); State v. Bartholomew, No. 08-5656CF10A (Fla. 17th Cir. Ct., August 7, 2009), available online in the Cases database at the open government site at MyFloridaLegal.com (even if Crimestoppers Council of Broward County were an agency for purposes of Ch. 119, F.S., information relating to the identity of informants and persons from whom they received information would be confidential under s. 119.071[2][f ], F.S.).

However, in Ocala Star Banner Corporation v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA 1994), the court held that a police department should not have refused to release an entire police report on the ground that the report contained some information identifying a confidential informant. According to the court, “[w]ithout much difficulty the name of the informant, [and] the sex of the informant (which might assist in determining the identity)... can be taken out of the report and the remainder turned over to [the newspaper].” Id. at 1197. Accord Christy v. Palm Beach County Sheriff’s Office, 698 So. 2d at 1368. And see Holley v. Bradford County Sheriff’s Department, 171 So. 3d 805 (Fla. 1st DCA 2015) (trial court must conduct an in camera inspection of the records to determine whether they could be redacted to remove information identifying confidential informants). Cf. Althouse v. Palm Beach County Sheriff’s Office, 92 So. 3d 899 (Fla. 4th DCA 2012), disapproved on other grounds, Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) (agency conceded that its initial response denying public records request for “rules, regulations, operating procedures and policies regarding the recruitment and use of confidential informants” was “incorrect”; records were subsequently produced after portions were redacted pursuant to s. 119.071[2][d], F.S.).

Moreover, in City of St. Petersburg v. Romine ex rel. Dillinger, 719 So. 2d 19, 21 (Fla. 2d DCA 1998), the court ruled that information regarding payments to a confidential informant (who had been previously identified as a confidential informant during a criminal trial) is subject to disclosure as long as the records are sufficiently redacted to conceal the specific cases on which the informant worked. The court acknowledged that the Public Records Act may not be used in such a way as to obtain information that the Legislature has declared must be exempt from disclosure, but said that “this is not a situation where someone has alleged that they know or suspect the identity of a confidential informant and the production of records involving that informant would confirm the person’s information or suspicion.” Id.

Section 943.082(1), F.S., authorizes the Florida Department of Law Enforcement, in collaboration with the Department of Legal Affairs, to competitively procure a mobile suspicious activity reporting tool that allows students and the community to relay information anonymously concerning unsafe, potentially harmful, dangerous, violent or criminal activities, or the threat of these activities, to appropriate public safety agencies and school officials. The identity of the reporting party received through the reporting tool and held by the department, law enforcement agencies, or school officials is confidential. Section 943.082(6), F.S.

f. Conviction Integrity Unit Reinvestigation Information

Section 119.071(2)(q), F.S., establishes an exemption for conviction integrity unit reinvestigation information, as defined in the exemption, for a reasonable period of time during an active, ongoing, and good faith investigation of a claim of actual innocence in a case that previously resulted in the conviction of the accused person and until the claim is no longer capable of further investigation.

g. Criminal History Information

(1) Criminal History Information Generally

Except where specific exemptions apply, criminal history information is a public record. AGO 77-125; Inf. Op. to Lymn, June 1, 1990. And see AGO 97-09 (a law enforcement agency may, without a request, release nonexempt information contained in its public records relating to sexual offenders; the agency’s authority to release such information is not limited to those offenders who are designated as “sexual predators”).

Section 943.046, F.S., states:

(1) Any state or local law enforcement agency may release to the public any criminal history information and other information regarding a criminal offender, including, but not limited to, public notification by the agency of the information, unless the information is confidential and exempt [from disclosure]. However, this section does not contravene any provision of s. 943.053 which relates to the method by which an agency or individual may obtain a copy of an offender’s criminal history record.

(2) A state or local law enforcement agency and its personnel are immune from civil liability for the release of criminal history information or other information regarding a criminal offender, as provided by this section.

Section 943.053(2), F.S., referenced in the above statute, provides restrictions on the dissemination of criminal justice information obtained from federal criminal justice information systems and other states by stating that such information shall not be disseminated in a manner inconsistent with the laws, regulations, or rules of the originating agency. Thus, criminal history record information shared with a public school district by the Federal Bureau of Investigation retains its character as a federal record to which only limited access is provided by federal law and is not subject to public inspection. AGO 99-01.

Section 943.053(3)(a), F.S., states that criminal history information compiled by the Criminal Justice Information Program of the Florida Department of Law Enforcement from intrastate sources shall be provided to law enforcement agencies free of charge and to persons in the private sector upon payment of fees as provided in the subsection. And see page 116 relating to dissemination of criminal history information relating to juveniles.

(2) Sealed and expunged records

Access to criminal history records sealed or expunged by court order in accordance with s. 943.059 or s. 943.0585, F.S., is strictly limited. See, e.g., Alvarez v. Reno, 587 So. 2d 664 (Fla. 3d DCA 1991) (Goderich, J., specially concurring) (state attorney report and any other information revealing the existence or contents of sealed records is not a public record and cannot, under any circumstances, be disclosed to the public). And see s. 943.0595, F.S., providing for automatic sealing of certain criminal history records.

A law enforcement agency that has been ordered to expunge criminal history information or records should physically destroy or obliterate information consisting of identifiable descriptions and notations of arrest, detentions, indictments, informations, or other formal criminal charges and the disposition of those charges. AGO 02-68. However, criminal intelligence information and criminal investigative information do not fall within the purview of s. 943.0585, F.S. Id. And see AGO 00-16 (only those records maintained to formalize the petitioner’s arrest, detention, indictment, information, or other formal criminal charge and the disposition thereof would be subject to expungement under s. 943.0585). Cf. s. 943.0582(5), F.S. (nonjudicial records held by the Florida Department of Law Enforcement pertaining to the arrest of juveniles for certain crimes who have had the records sealed or expunged pursuant to s. 943.0582, are confidential).

There are exceptions allowing disclosure of information relating to the existence of an expunged criminal history record to specified entities for their respective licensing and employment purposes, and to criminal justice agencies for their respective criminal justice purposes. Section 943.0585(6), F.S. Similar provisions exist relative to disclosure of sealed criminal history records. Section 943.059(6), F.S. And see s. 943.0583(10)(a), F.S. (expunged criminal history record of human trafficking victim). A records custodian who has received information relating to the existence of an expunged or sealed criminal history record is prohibited from disclosing the existence of such record. AGO 94-49.

h. Fingerprint Records

Biometric identification information is exempt from s. 119.07(1), F.S. Section 119.071(5) (g), F.S. The term “biometric identification information” means any record of friction ridge detail, fingerprints, palm prints, and footprints. Id.

i. Forensic Behavioral Health Evaluations

A forensic behavioral health evaluation filed with the court pursuant to Ch. 916, F.S. (mentally deficient and mentally ill defendants) is confidential and exempt. Section 916.1065(1), F.S.

j. Geolocation Information

Law enforcement geolocation information of a law enforcement officer or a law enforcement vehicle that is held by a law enforcement agency is exempt from disclosure requirements. The exemption does not apply to traffic citations, crash reports, homicide reports, arrest reports, incident reports, or any other official reports issued by an agency which contain law enforcement geolocation information. Disclosure is required under specified circumstances. Section 119.071(4)(e), F.S.

k. Juvenile Offender Records

(1) Confidentiality and Authorized Disclosure

Juvenile offender records traditionally have been considered confidential and treated differently from other records in the criminal justice system. With limited exceptions, s. 985.04(1)(a), F.S., provides, in relevant part, that: Except as provided in subsections (2), (3), (6), and (7) and s. 943.053, all information obtained under this chapter in the discharge of official duty by any judge, any employee of the court, any authorized agent of the department [of Juvenile Justice], the Florida Commission on Offender Review, the Department of Corrections, the juvenile justice circuit boards, any law enforcement agent, or any licensed professional or licensed community agency representative participating in the assessment or treatment of a juvenile is confidential and exempt [from public disclosure]. This exemption applies to information obtained before, on, or after the effective date of this exemption. (e.s). Section 985.04(1)(b), F.S., states that the confidential and exempt information may be disclosed only to the authorized personnel of the court, the department and its designees, the Department of Corrections, the Florida Commission on Offender Review, law enforcement agents, school superintendents and their designees, any licensed professional or licensed community agency representative participating in the assessment or treatment of a juvenile, and others entitled under this chapter to receive that information, or upon court order. Cf. AGO 96-65 (subject of juvenile offense records may authorize access to such records to others [such as a potential employer] by means of a release). Similarly, s. 985.04(7)(a), F.S., limits access to records in the custody of the Department of Juvenile Justice. With the exception of specified persons and agencies, juvenile records in the custody of that agency “may be inspected only upon order of the Secretary of Juvenile Justice or his or her authorized agent by persons who have sufficient reason and upon such conditions for their use and disposition as the secretary or his or her authorized agent deems proper.” If a juvenile prosecuted as an adult is transferred to serve his or her sentence in the custody of the Department of Juvenile Justice, the department’s records relating to that juvenile are not open to public inspection. New York Times Company v. Florida Department of Juvenile Justice, No. 03-46-CA (Fla. 2d Cir. Ct. March 20, 2003), available online in the Cases database at the open government site at MyFloridaLegal.com. Thus, as a general rule, access to records of juvenile offenders is limited. See, e.g., Inf. Op. to Galbraith, April 8, 1992 (city’s risk manager and attorney representing city in unrelated civil lawsuit not among those authorized to have access); and Inf. Op. to Wierzbicki, April 7, 1992 (domestic violence center not among those authorized to receive juvenile information). And see AGO 07-19 (confidentiality provisions preclude public release of the names and addresses of the parents of juvenile arrested for a misdemeanor). And see s. 985.045(2), F.S., providing, with limited exceptions, for confidentiality of juvenile court records. Cf. AGO 97-28 (juvenile confidentiality requirements do not apply to court records of a case in which a juvenile is prosecuted as an adult, regardless of the sanctions ultimately imposed in the case). Confidential photographs of juveniles taken in accordance with s. 985.11, F.S, “may be shown by a law enforcement officer to any victim or witness of a crime for the purpose of identifying the person who committed such crime.” Section 985.11(1)(b), F.S. This statute authorizes a law enforcement officer to use photographs of juvenile offenders in a photographic lineup for the purpose of identifying the perpetrator of a crime, regardless of whether those juvenile offenders are suspects in the crime under investigation. AGO 96-80. Cf. Barfield v. Orange County, Florida, No. CI92-5913 (Fla. 9th Cir. Ct. August 4, 1992), available online in the Cases database at the open government site at MyFloridaLegal.com (denying petitioner’s request to inspect gang intelligence files compiled by the sheriff’s office).

(2) Exceptions to Confidentiality

(a) Child Traffic Violators

All records of child traffic violations shall be kept in the full name of the violator and shall be open to inspection and publication in the same manner as adult traffic violations. Section 985.11(3), F.S.

(b) Felony Arrests and Adult System Transfers

Until October 1, 1994, law enforcement agencies generally could release only the name and address of juveniles 16 and older who had been charged with or convicted of certain crimes. In 1994, the juvenile confidentiality laws were modified to eliminate the age restriction and provide enhanced disclosure. Section 985.04(2), F.S., was amended again in 2016 and now provides:

Notwithstanding any other provisions of this chapter, the name, photograph, address, and crime or arrest report of a child: (a) Taken into custody by a law enforcement officer for a violation of law which, if committed by an adult, would be a felony; (b) Charged with a violation of law which, if committed by an adult, would be a felony; (c) Found to have committed an offense which, if committed by an adult, would be a felony; or (d) Transferred to adult court pursuant to part X of Chapter 985, are not considered confidential and exempt from s. 119.07(1) solely because of the child’s age.

The Attorney General’s Office has stated that the expanded disclosure provisions originally enacted in 1994 apply only to juvenile records created after October 1, 1994, the effective date of the 1994 amendments to the juvenile confidentiality laws. AGO 95-19. Confidential information on juveniles arrested prior to October 1, 1994, is available by court order upon a showing of good cause. Id. See G.G. v. Florida Department of Law Enforcement, 97 So. 3d 268, 274 (Fla. 1st DCA 2012) (“it is clear that only the arrest records of those juveniles who the legislature has designated in section 985.04[2] have lost their confidential status and are available to the public....”). See also the discussion below regarding the dissemination of criminal history information relating to juveniles. Cf. s. 943.0582(5), F.S. (nonjudicial records held by the Florida Department of Law Enforcement pertaining to the arrest of juveniles for certain crimes who have had the records sealed or expunged pursuant to s. 943.0582, are confidential). A public records custodian may choose not to electronically publish on the custodian’s website the arrest or booking photographs of a child which are not confidential and exempt under this section or otherwise restricted from publication by law; however, this paragraph does not restrict public access to records as provided by s. 119.07, F.S. Section 985.04(2)(b), F.S.

(c) Mandatory Notification to Schools

Section 985.04(4)(b), F.S., provides that when the state attorney charges a juvenile with a felony or a delinquent act that would be a felony if committed by an adult, the state attorney must notify the superintendent of the juvenile’s school that the juvenile has been charged with such felony or delinquent act. A similar directive applies to a law enforcement agency that takes a juvenile into custody for an offense that would have been a felony if committed by an adult, or a crime of violence. Section 985.04(4)(a), F.S. And see s. 1006.08(2), F.S. (notification by court to school superintendent); and s. 985.04(4)(c), F.S. (notification by school superintendent to certain school personnel). Cf. s. 985.04(4)(d), F.S. (notification by Department of Juvenile Justice of the presence of a juvenile sex offender in the care and custody or under the jurisdiction or supervision of the department).

(d) Criminal History Information Relating to Juveniles

Section 943.053(3)(c)1., F.S., provides that criminal history information relating to juveniles, including information that is confidential pursuant to s. 943.053(3)(b), F.S., shall be available to:

(a) A criminal justice agency for criminal justice purposes on a priority basis and free of charge; (b) The person to whom the record relates, or his or her attorney; (c) The parent, guardian, or legal custodian of the person to whom the record relates, provided such person has not reached the age of majority, been emancipated by a court, or been legally married; or (d) An agency or entity specified in s. 943.0585(6) or s. 943.059(6), F.S., for the purpose specified therein, and any person within such agency or entity who has direct responsibility for employment, access authorization, or licensure decisions.

(e) Victim Access

Section 985.036(1), F.S., allows the victim, the victim’s parent or guardian, their lawful representatives, and, in a homicide case, the next of kin, to have access to information and proceedings in a juvenile case. Those entitled to access “may not reveal to any outside party any confidential information obtained under this subsection regarding a case involving a juvenile offense, except as is reasonably necessary to pursue legal remedies.” Id. And see s. 960.001(8), F.S., authorizing similar disclosures to victims. In addition, s. 985.04(3), F.S., states that a “law enforcement agency may release a copy of the juvenile offense report to the victim of the offense.” Cf. Harvard v. Village of Palm Springs, 98 So. 3d 645 (Fla. 4th DCA 2012), noting that the authorization in s. 985.04(3), F.S., is permissive not mandatory; thus, a local government was not required to produce a juvenile offense report to the victim’s mother.

l. Motor Vehicle Records

(1) Automated License Plate Recognition System Records

Images and data containing or providing personal identifying information obtained through use of an automated license plate recognition system are confidential and exempt. Section 316.0777, F.S.

(2) Crash Reports

Prior to the enactment of Ch. 22-198, Laws of Florida, s. 316.066(2)(a), F.S., established confidentiality for motor vehicle crash reports that reveal the identity, home or employment telephone number or home or employment address of, or other personal information concerning the parties involved in the crash and that were held by an agency that regularly receives or prepares information from or concerning the parties to motor vehicle crashes, for a period of 60 days after the report was filed. Specified agencies and entities, including the parties involved in the crash and certain media, were allowed immediate access. See s. 316.066, F.S. (2021). However, Ch. 22-198, Laws of Florida, effective March 1, 2023, modified this exemption in several ways. First, the 60-day confidentiality period now applies to crash reports held by any agency as defined in s. 119.011, F.S. Agencies allowed immediate access include victim services programs, and any federal, state, or local governmental agency or private person or entity acting on behalf of such agency in carrying out its functions, as well as the parties involved in the crash, their legal representatives, and their insurers. Section 316.066 (2)(a)(b), F.S., as amended by Ch. 22-198, Laws of Florida, effective March 1, 2023. Cf. AGO 01-59 (owner of vehicle involved in a crash authorized to receive access to crash report). Crash reports held by an agency which do not contain the home or employment street addresses, driver license or identification card numbers, dates of birth and home and employment telephone numbers of the parties involved in the crash shall be made immediately available to radio and television stations licensed by the Federal Communications Commission and newspapers qualified to publish legal notices under ss. 50.011 and 50.031, F.S. Section 316.066(2)(b), F.S., as amended by Ch. 22-198, Laws of Florida, effective March 1, 2023. “As a condition precedent to accessing a crash report, a person must present a valid driver’s license or other photographic identification, proof of status or identification that demonstrates his or her qualifications to access that information, and file a written sworn statement with the state or local agency in possession of the information stating that information from a crash report made confidential and exempt by this section will not be used for any commercial solicitation of accident victims, or knowingly disclosed to any third party for the purpose of such solicitation. Section 316.066(2)(d), F.S., as amended by Ch. 22-198, Laws of Florida, effective March 1, 2023. The written statement must be completed and sworn to by the requesting party for each individual crash report. Id. Reports may be released without the sworn statement to third-party vendors under contract with one or more insurers, but only if the conditions set forth in the statute are stated in the contract. Id. Third-degree felony penalties are established for knowing unauthorized disclosure or use of confidential information in violation of this statute. See s. 316.066(3)(b), (c), and (d), F.S., for more information. See also s. 316.066(3)(e), F.S., as amended by Ch. 22-198, Laws of Florida, effective March 1, 2023, providing a civil remedy. Crash reports may be made available 60 days after the report is filed to any person or entity authorized in 316.066(2)(b) or in accordance with any of the permissible uses listed in 18 U.S.C. s. 2721(b) and pursuant to the resale and redisclosure requirements in 18 U.S.C. s. 2721(c). Section 316.066(2)(f), as amended by Ch. 22-198, Laws of Florida, effective March 1, 2023. If crash reports are created by or submitted to an agency electronically as data elements within a computerized database or if personal information from a crash report is entered into a computerized database, such crash data held by an agency is confidential. Sixty days after the crash report is filed, an agency may provide crash data derived from the crash report which includes personal information to entities eligible to access the crash report under s. 316.066(2)(b) and pursuant to the resale and redisclosure requirements in 18 U.S.C. s. 2721(c). Such data shall be provided pursuant to a memorandum of understanding. Section 316.066(2)(g), F.S., as amended by Ch. 22-198, Laws of Florida, effective March 1, 2023.

(3) Traffic Citations

“Driver information” contained in a uniform traffic citation held by an agency is exempt from disclosure requirements. Section 316.650(11)(b)1., F.S., as amended by Ch. 22-198, Laws of Florida, effective March 1, 2023. The term “driver information is defined to mean “a driver’s date of birth, driver license or identification card number, address excluding the five-digit zip code, telephone number, motor vehicle license plate number, and trailer tag number.” Section 316.650(11)(a), F.S., as amended by Ch. 22-198, effective March 1, 2023. The term does not include the driver’s name. Id. Driver information may be released in the same manner applicable to the release of personal information contained in a motor vehicle record pursuant to s. 119.0712(2)(b), F.S., and in accordance with any of the permissible uses listed in 18 U.S.C. s. 2721(b) and pursuant to the resale and disclosure requirements in 18 U.S.C. s. 2721(c). Section 316.650(11)(b)2., F.S., as amended by Ch. 22-198, Laws of Florida, effective March 1, 2023.

(4) Department of Highway Safety and Motor Vehicles Motor Vehicle Records

Section 119.0712(2)(b), F.S., provides that personal information, including highly restricted personal information as defined in 18 U.S.C. s. 2725, contained in a motor vehicle record is confidential pursuant to the federal Driver’s Privacy Protection Act of 1994, 18 U.S.C. ss. 2721 et seq (DPPA). Such information may be released only as authorized by that act. The term “motor vehicle record” is defined to mean any record that pertains to a motor vehicle operator’s permit, motor vehicle title, motor vehicle registration, or identification card issued by the Department of Highway Safety and Motor Vehicles (DHSMV). Section 119.0712(2)(a), F.S. Cf. AGO 10-10 (while DHSMV motor vehicle records are confidential in the hands of a law enforcement agency, to the extent information is taken from DHSMV records and used in preparing other records of a law enforcement agency or its agent, the confidentiality requirements of s. 119.0712(2)(b), F.S., do not reach those records created by subsequent users). E-mail addresses collected by DHSMV pursuant to cited statutes [motor vehicle record and driver license transactions] are exempt from public disclosure requirements. Section 119.0712(2) (c), F.S. And see s. 119.0712(2)(d)1. and 2., F.S., providing that emergency contact information contained in a motor vehicle record is confidential, and may be released only as provided in the exemption. Secure login credentials held by DHSMV are exempt, as are Internet protocol addresses, geolocation data, and other information from which a user accesses a public-facing portal. Section 119.0712(2)(f), F.S.

m. Pawnbroker Records

All records relating to pawnbroker transactions delivered to appropriate law enforcement officials pursuant s. 539.001, F.S., the Florida Pawnbroking Act, are confidential and exempt from disclosure and may be used only for official law enforcement purposes. Section 539.003, F.S. However, law enforcement officials are not prohibited from disclosing the name and address of the pawnbroker, the name and address of the conveying customer, or a description of the pawned property to the alleged owner of pawned property. Id. And see AGO 01-51.

n. Polygraph Records

The Attorney General’s Office is not aware of any statutory provision barring access to otherwise public records, simply because the records are in the form of polygraph charts. See, e.g., Wisner v. City of Tampa Police Department, 601 So. 2d 296 (Fla. 2d DCA 1992) (polygraph materials resulting from polygraph examination that citizen took in connection with a closed internal affairs investigation were public records); and Downs v. Austin, 522 So. 2d 931 (Fla. 1st DCA 1988) (because state had already publicly disclosed the results of polygraph tests administered to defendant’s accomplice, the tests were not exempt criminal investigative or intelligence information and were subject to disclosure to the defendant). However, the s. 119.071(1)(a), F.S., exemption for questions and answers used in employment examinations applies to questions and answers contained in pre-employment polygraph examinations. Rush v. High Springs, 82 So. 3d 1108 (Fla. 1st DCA 2012). This exemption applies to examination questions and answers but does not include the “impressions and grading of the responses” by the examiners. See Dickerson v. Hayes, 543 So. 2d 836, 837 (Fla. 1st DCA 1989).

o. Prison and Inmate Records

In the absence of statutory exemption, prison and inmate records are subject to disclosure under the Public Records Act. Cf. Williams v. State, 741 So. 2d 1248 (Fla. 2d DCA 1999) (order imposing offender’s habitual offender sentence and documents showing his qualifying convictions, subject to disclosure under Ch. 119). And see Cruz v. State, 279 So. 3d 154 (Fla. 4th DCA 2019), finding that county jail visitation logs are public records, and rejecting the defendant’s argument that the names of jail visitors should be protected from disclosure. Cf. s. 951.27, F.S. (limited disclosure of infectious disease test results, including HIV testing pursuant to s. 775.0877, F.S., of inmates in county and municipal detention facilities). Subject to limited exceptions, s. 945.10, F.S., states that the following records and information held by the Department of Corrections are confidential and exempt from public inspection: mental health, medical (including HIV tests) or substance abuse records of inmates or offenders; pre-plea, pretrial intervention, presentence or post-sentence investigative records; information regarding a person in the federal witness protection program; confidential or exempt Florida Commission on Offender Review records; information which if released would jeopardize someone’s safety; information concerning a victim’s statement and identity; information which identifies an executioner or that identifies or could lead to the identification of any person or entity that participates in an execution; and records that are otherwise confidential or exempt by law. See Correll v. State, 184 So. 3d 478 (Fla. 2015), in which the Court summarized prior precedent upholding the constitutionality of s. 945.10, F.S., and again rejected claims that an inmate has the right to know the identity of execution team members. The Public Records Act applies to a private corporation which has contracted to operate and maintain the county jail. Times Publishing Company v. Corrections Corporation of America, No. 91-429 CA 01 (Fla. 5th Cir. Ct. December 4, 1991), per curiam affirmed, 611 So. 2d 532 (Fla. 5th DCA 1993), available in the Cases database at the open government site at MyFloridaLegal.com. See also Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (records of private company under contract with sheriff to provide health care to jail inmates are subject to Ch. 119 just as if they were maintained by a public agency).

p. Resource Inventories and Emergency Response Plans

Section 119.071(2)(d), F.S., exempts “[a]ny comprehensive inventory of state and local law enforcement resources compiled pursuant to part I, chapter 23, and any comprehensive policies or plans compiled by a criminal justice agency pertaining to the mobilization, deployment, or tactical operations involved in responding to emergencies, as defined in s. 252.34....” See Timoney v. City of Miami Civilian Investigative Panel, 917 So. 2d 885 (Fla. 3d DCA 2005), in which the court held that a city police department’s Operational Plan prepared in response to intelligence reports warning of possible violence surrounding an economic summit remained exempt from disclosure after the summit ended. The court found that the city planned to use portions of the Plan for future events and the “language of [the exemption] leads us to believe that the legislature intended to keep such security information exempt after an immediate emergency passes.” Id. at 887. And see s. 119.071(3)(a)1., F.S., which includes “emergency evacuation plans” and “sheltering arrangements” within the definition of a “security or fire-safety system plan” that is confidential and exempt from public disclosure.

q. Surveillance Techniques, Procedures or Personnel

Information revealing surveillance techniques, procedures or personnel is exempt from public inspection pursuant to s. 119.071(2)(d), F.S. See Rameses, Inc. v. Demings, 29 So. 3d 418 (Fla. 5th DCA 2010) (disclosure to criminal defendant of unredacted undercover police surveillance recordings does not destroy exemption in s. 119.071[2][d], F.S.; therefore, sheriff is only required to provide redacted recording in response to a public records request). See also Althouse v. Palm Beach County Sheriff’s Office, 92 So. 3d 899 (Fla. 4th DCA 2012), disapproved on other grounds, Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) noting that the agency had conceded that its initial response denying Althouse’s request for “rules, regulations, operating procedures and policies regarding the recruitment and use of confidential informants” was “incorrect” and that the agency had subsequently produced the records after redacting portions pursuant to s. 119.071(2)(d), F.S. Cf. State v. Wooten, 260 So. 3d 1060, 1070 (Fla. 4th DCA 2018), in which the court noted that surveillance techniques are “exempt, not confidential and exempt.” [Emphasis supplied by the Court] The detailed schedule and travel plans of the Governor, including drive times and the time and location of the Governor’s arrival and departure, were encompassed within the s. 119.071(2) (d), F.S., exemption where the Florida Department of Law Enforcement special agent submitted an undisputed affidavit attesting that premature disclosure of this information would reveal “surveillance techniques, procedures, or personnel,” and would jeopardize the security of the Governor and the officers assigned to protect him. Executive Office of the Governor v. AHF MCO of Florida, Inc., 257 So. 3d 612 (Fla. 1st DCA 2018).

r. Undercover Personnel

Section 119.071(4)(c), F.S., provides that any information revealing undercover personnel of any criminal justice agency is exempt from public disclosure. But see Ocala Star Banner Corporation v. McGhee, 643 So. 2d 1196, 1197 (Fla. 5th DCA 1994) (police department should not have refused to release an entire police report containing some information that could lead to an undercover person’s identity, when, without much difficulty, the name or initials and identification numbers of the undercover officer and that officer’s supervisor could be taken out of the report and the remainder released). Accord Christy v. Palm Beach County Sheriff’s Office, 698 So. 2d 1365 (Fla. 4th DCA 1997). Information regarding law enforcement officers who are assigned to undercover duty and whose names appear on personnel rosters or other lists of all law enforcement officers of the city without regard to whether the record reveals the nature of their duties may constitute “[a]ny information revealing undercover personnel of any criminal justice agency[.]” AGO 15-02. The Legislature’s determination that such information is exempt from public inspection, rather than confidential, conditions the release of exempt information upon a determination by the custodian that there is a statutory or substantial policy need for disclosure. Id. For information on the identity of safe-school officers appointed pursuant to s. 1006.12, F.S., please refer to the discussion on page 157.

s. Victim Information

(1) Marsy’s Law

On November 6, 2018, Florida voters approved a constitutional amendment known as Marsy’s Law. Marsy’s Law amends Art. I, s. 16 of the Constitution to add several provisions relating to victim rights. Subsection (b)(5) provides that “every victim is entitled to the following rights, beginning at the time of his or her victimization” to include: “The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family or which could disclose confidential or privileged information of the victim.” The amendment took effect on January 8, 2019. Law enforcement officers who fatally shot suspects threatening them with deadly force were “victims” under Marsy’s Law and were entitled to seek judicial relief to preclude release of information in public records that identified them. Florida Police Benevolent Association, Inc. v. City of Tallahassee, 314 So. 3d 796 (Fla. 1st DCA 2021), review granted, No. 21-651 (Fla. December 21, 2021).

(2) Statutory Exemptions Relating to Victim Information

Although s. 119.071(2)(c), F.S., exempts active criminal investigative information from disclosure, the “name, sex, age, and address of... the victim of a crime, except as provided in s. 119.071(2)(h) or (o),” are specifically excluded from the definition of criminal investigative or intelligence information. See s. 119.011(3)(c)2., F.S. defining the terms “criminal investigative information” and “criminal intelligence information.” In addition to the victim exemptions identified above, there are other exemptions that may apply as follows:

(a) Amount of Stolen Property

Pursuant to s. 119.071(2)(i), F.S., criminal intelligence or investigative information that reveals the personal assets of a crime victim, which were not involved in the crime, is exempt from disclosure. However, this exemption does not apply to information relating to the amount of property stolen during the commission of a crime. AGO 82-30. Note, however, that s. 119.071(2)(j)1., F.S., provides that victims of certain crimes may file a written request to exempt information revealing their “personal assets.”

(b) Commercial Solicitation of Victims

Section 119.105, F.S., provides that police reports are public records except as otherwise made exempt or confidential and that every person is allowed to examine nonexempt or nonconfidential police reports. However, a person who comes into possession of exempt or confidential information in police reports may not use that information for commercial solicitation of the victims or relatives of the victims and may not knowingly disclose such information to a third party for the purpose of such solicitation during the period of time that information remains exempt or confidential. Id. The statute “does not prohibit the publication of such information to the general public by any news media legally entitled to possess that information or the use of such information for any other data collection or analysis purposes by those entitled to possess that information.” Id. A willful and knowing violation of this statute is a third-degree felony. Section 119.10(2)(b), F.S.

(c) Documents Which are Received by an Agency Regarding Victims

Section 119.071(2)(j)1., F.S., exempts from disclosure any document that reveals the identity, home or employment telephone number or address, or personal assets of the victim of a crime and identifies that person as the victim of a crime, if that document is received by an agency that regularly receives information from or concerning the victims of crime. However, this provision is limited to documents received by agencies which regularly receive information from or concerning victims of crime; it does not apply to records generated or made by these agencies. AGO 90-80. Accordingly, this exemption does not apply to police reports. Id. Section 119.071(2)(j)1., F.S., also provides that “[a]ny state or federal agency that is authorized to have access to such documents by any provision of law shall be granted such access in the furtherance of such agency’s statutory duties, notwithstanding this section.” See Inf. Op. to McCabe, November 27, 1995 (state attorney authorized to release materials received during an investigation of a domestic violence incident to a police department for use in the department’s internal affairs investigation).

(d) Home or Employment Address, Telephone Number, Assets

Victims of specified crimes listed in s. 119.071(2)(j)1., F.S., are authorized to file a written request for exemption of their addresses, telephone numbers and personal assets as follows: Any information not otherwise held confidential or exempt [from disclosure] which reveals the home or employment telephone number, home or employment address, or personal assets of a person who has been the victim of sexual battery, aggravated child abuse, aggravated stalking, harassment, aggravated battery, or domestic violence is exempt [from disclosure], upon written request by the victim which must include official verification that an applicable crime has occurred. Such information shall cease to be exempt 5 years after the receipt of the written request. (e.s.) This exemption is not limited to documents received by an agency, but exempts specified information in records -- whether generated or received by -- an agency. Thus, a victim of the enumerated crimes may file a written request and have his or her home or employment telephone number, home or employment address, or personal assets, exempted from the police report of the crime, provided that the request includes official verification, such as a copy of the incident or offense report for one of the listed crimes, that an applicable crime has occurred. See AGO 96-82. The exemption is limited to the victim’s address, telephone number, or personal assets; it does not apply to the victim’s identity. City of Gainesville v. Gainesville Sun Publishing Company, No. 96-3425-CA (Fla. 8th Cir. Ct. October 28, 1996). But see the discussion of Marsy’s Law on page 121. The exemption applies to records created prior to, as well as after, the agency’s receipt of the victim’s written request for exemption AGO 96-82. It applies to any records held by an agency and is not limited to those records relating to the offense. Id. “[A]n examination of the legislative history surrounding the adoption of this exemption indicates that the Legislature intended that the exemption not be limited to those documents identifying the individual as a victim of crime but rather be applied to any document revealing the personal information held by any agency.” Id. And see AGO 02-50, in which the Attorney General’s Office advised that s. 119.071(2)(j)1., F.S., does not contain an exception for copies of the police report that are sent to domestic violence centers pursuant to s. 741.29, F.S., if the victim has made a written request for exempt status of the personal information specified in s. 119.071(2)(j)1., F.S. In addition, the requirement that the victim make a written request for exemption applies only to information not otherwise held confidential by law; thus, the exemption supplements, but does not replace, other confidentiality provisions, such as s. 119.071(2)(h), F.S., that may be applicable to certain crime victims. AGO 96-82 For more information on exemptions pertaining to domestic violence or stalking victims, please see the discussion on page 78.

(e) Information Identifying or Depicting Victims of Sex Offenses and of Child Abuse

(1) Law Enforcement and Prosecution Records

Section 119.071(2)(h)1.a., F.S., provides confidentiality for criminal investigative and intelligence information that reveals the identity of a victim of the crime of child abuse, as defined by Ch. 827, F.S., or that reveals the identity of a person under the age of 18 who is a victim of the crime of human trafficking proscribed in s. 787.06(3)(a), F.S. Information which may reveal the identity of a victim of a sexual offense, including a sexual offense prohibited in s. 787.06(3)(b), (d), (f), or (g), or Chs. 794, 796, 800, 827, or 847, F.S., is also confidential. Section 119.071(2) (h)1.b., F.S. In addition, the photograph, videotape, or image of any part of the body of a victim of a sexual offense prohibited under ss. 787.06(3)(b), (d), (f), or (g) or 810.145, or Chs. 794, 796, 800, 827, or 847, F.S., is confidential and exempt, regardless of whether the photograph, videotape, or image identifies the victim. Section 119.071(2)(h)1.c., F.S. See Harvard v. Village of Palm Springs, 98 So. 3d 645, 647 (Fla. 4th DCA 2012), rejecting a mother’s assertion that there is “no law prohibiting her” from obtaining a copy of her son’s videotaped interview, because s. 119.071(2)(h)1.a-c, F.S., “provides that a video of a victim is exempt from a public records request if it is taken during the course of one of several enumerated types of criminal investigations.” Thus, the Attorney General’s Office advised that information revealing the identity of victims of child abuse or sexual battery must be deleted from the copy of the report of domestic violence which is sent by a law enforcement agency to the nearest domestic violence center pursuant to s. 741.29(2), F.S. AGO 92-14. And see Palm Beach County Police Benevolent Association v. Neumann, 796 So. 2d 1278 (Fla. 4th DCA 2001), applying exemption to information identifying a child abuse victim which was contained in files prepared as part of an internal investigation conducted in accordance with s. 112.533, F.S. Section 119.071(2)(h)2.a-c, F.S., sets forth circumstances which permit a law enforcement agency to disclose the confidential information. Moreover, the Attorney General’s Office has advised that the confidentiality provisions do not apply to the identity of a child abuse victim who died from suspected abuse. AGO 90-103. But see the discussion on page 121 regarding Marsy’s Law. Section 119.071(2)(j)2a., F.S., provides that identifying information in a videotaped statement of a minor who is alleged to be or who is a victim of a sexual offense prohibited in the cited laws which reveals the minor’s identity, including, but not limited to, the minor’s face; the minor’s home, school, church, or employment telephone number; the minor’s home, school, church, or employment address; the name of the minor’s school, church, or place of employment; or the personal assets of the minor; and which identifies the minor as a victim, held by a law enforcement agency, is confidential. Access shall be provided, however, to authorized governmental agencies when necessary to the furtherance of the agency’s duties. Id. A public employee may not willfully and knowingly disclose videotaped information that reveals the minor’s identity to anyone other than the designated individuals, including the defendant. Section 119.071(2)(j)2b., F.S. Cf. State v. Ingram, 170 So. 3d 727 (Fla. 2015) (J. Pariente concurring) (s. 119.071[2][j]2.b. does not authorize disclosure to a convicted incarcerated inmate of videotaped information that reveals the minor victim’s identity). A public employee or officer having access to the photograph, name, or address of a person alleged to be a victim of an offense described in Ch. 794 (sexual battery); Ch. 800 (lewdness, indecent exposure); s. 827.03 (abuse, aggravated abuse, and neglect of a child); s. 827.04 (contributing to delinquency or dependency of a child); or s. 827.071 (sexual performance by a child) may not willfully and knowingly disclose it to a person not assisting in the investigation or prosecution of the alleged offense or to any person other than the defendant, the defendant’s attorney, a person specified in a court order entered by the court having jurisdiction over the alleged offense, to organizations authorized to receive such information made exempt by s. 119.071(2)(h), F.S., or to a rape crisis center or sexual assault counselor, as defined in s. 90.5035(1)(b), F.S., who will be offering services to the victim. Section 794.024(1), F.S. A violation of this section constitutes a second degree misdemeanor. Section 794.024(2), F.S. Cf. State v. Globe Communications Corporation, 648 So. 2d 110, 111 (Fla. 1994) (statute mandating criminal sanctions for printing, publishing or broadcasting “in any instrument of mass communication” information identifying a victim of a sexual offense, ruled unconstitutional). An entity or individual who communicates to others, prior to open judicial proceedings, the name, address, or other specific identifying information concerning the victim of any sexual offense under Ch. 794 or Ch. 800 shall be liable to the victim for all damages reasonably necessary to compensate the victim for any injuries suffered as a result of such communication. Section 794.026(1), F.S. The victim, however, may not maintain a cause of action unless he or she is able to show that such communication was intentional and was done with reckless disregard for the highly offensive nature of the publication. Section 794.026(2), F.S. Cf. Cox Broadcasting Corp. v. Cohn, 95 S.Ct. 1029 (1975); and Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989), appeal dismissed, 110 S.Ct. 296 (1989). The Crime Victims’ Services Office in the Attorney General’s Office is authorized to receive confidential records from law enforcement and prosecutorial agencies. Section 960.05(2)(k), F.S. And see AGO 92-51 (city victim services division, as a governmental agency which is part of the city’s criminal justice system, may receive identifying information about victims of sex offenses, for the purpose of advising the victim of available services pursuant to s. 960.001, F.S., requiring distribution of victim support information).

(2) Court Records

Section 92.56, F.S., provides that criminal intelligence information or criminal investigative information made confidential pursuant to s. 119.071(2)(h), F.S., must be maintained in court records and in court proceedings, including witnesses’ testimony. If a petition for access to these records is filed with the trial court with jurisdiction over an alleged offense, the status of the information must be maintained by the court if the state or the victim demonstrates certain factors as set forth in the statute. Section 92.56(1), F.S. A person who willfully and knowingly violates section 92.56, F.S., or any court order issued under this section is subject to contempt proceedings. Section 92.56(6), F.S. See also AGO 03-56 and s. 119.0714(1)(h), F.S.

(3) Department of Children and Families Abuse Records

As discussed on pages 74-75, there are statutory exemptions set forth in Ch. 415, F.S., which relate to records of abuse of vulnerable adults. Similar provisions relating to child abuse records are found in Ch. 39, F.S. The Attorney General’s Office has concluded that the confidentiality provisions in these laws, i.e., ss. 415.107 and 39.202, F.S., apply to records of the Department of Children and Families [DCF] and do not encompass a law enforcement agency’s arrest report of persons charged with criminal child abuse, after the agency has deleted all information which would reveal the identity of the victim. See AGO 93-54. Accord Inf. Op. to O’Brien, January 18, 1994. Cf. Times Publishing Company v. A.J., 626 So. 2d 1314 (Fla. 1993), holding that a sheriff’s incident report of alleged child abuse that was forwarded to the state child welfare department for investigation pursuant to Ch. 415, F.S. 1990 [see now Part II, Ch. 39, F.S., entitled “Reporting Child Abuse”], should not be released. The Court noted that the department had found no probable cause and that child protection statutes accommodate privacy rights of those involved in these cases “by providing that the supposed victims, their families, and the accused should not be subjected to public scrutiny at least during the initial stages of an investigation, before probable cause has been found.” Id. at 1315. Section 39.202(1) and (2)(b), F.S., authorizes criminal justice agencies to have access to confidential abuse, abandonment, or neglect records held by DCF and provides that the exemption from disclosure for DCF abuse records also applies to DCF records and information in the possession of the agencies granted access. See Inf. Op. to Russell, October 24, 2001.

(f) Homicide Victims and Witnesses

(1) Photographs and Video or Audio Recordings of Killing of Law Enforcement Officer or Killing of Victim of Mass Violence

Section 119.071(2)(p)1., F.S., provides confidentiality for a photograph, video or audio recording that depicts or records the killing of a law enforcement officer acting in accordance with his or her official duties or the killing of a victim of mass violence. Disclosure may be made to certain persons and entities as authorized in the exemption. Section 119.071(2)(p)2., F.S. And see page 74, discussing the confidentiality of autopsy photographs. The term “killing of a law enforcement officer who was acting in accordance with his or her official duties” is defined to mean “all acts or events that cause or otherwise relate to the death of a law enforcement officer who was acting in accordance with his or her official duties, including any related acts or events immediately preceding or subsequent to the acts or events that were the proximate cause of death.” Section 119.071(2)(p)1.a., F.S. “Killing of a victim of mass violence” means events that depict either a victim being killed or the body of a victim killed in an incident in which 3 or more persons, not including the perpetrator, are killed by the perpetrator of an intentional act of violence. Section 119.071(2) (p)1.b., F.S. Section 119.071(2)(p)7., F.S., provides that the exemption shall be given retroactive application and shall apply to all photographs and recordings of persons covered by the exemption regardless of whether the killing occurred before, on, or after the effective date of the act, May 23, 2019. And see State v. Schenecker, No. 11 CF 001376A (Fla. 13th Cir. Ct. August 3, 2011), cert. denied sub nom., Media General Operations v. State, 71 So. 3d 124 (Fla. 2d DCA 2011), in which the court concluded that a prior version of this statute applied to crime scene photographs of the victims. And see the discussion about Marsy’s Law on page 121.

(2) Address of victim of an incident of mass violence

The address of a victim of an incident of mass violence is exempt from disclosure requirements. Section 119.071(2)(o), F.S. The term “incident of mass violence” means an incident in which 4 or more people, not including the perpetrator, are severely injured or killed by an intentional and indiscriminate act of violence of another. The term “victim” means a person killed or injured during an incident of mass violence, not including the perpetrator. Id. And see the discussion about Marsy’s Law on page 121.

(3) Homicide Witness

Criminal investigative or intelligence information that reveals the personal identifying information of a witness to a murder, as described in s. 782.04, F.S., is confidential for 2 years after the date on which the murder is observed by the witness. Section 119.071(2)(m), F.S. A criminal justice agency may disclose this information in the furtherance of its official duties and responsibilities; to assist in locating or identifying the witness if the agency believes the witness to be missing or endangered; to another governmental agency for use in the performance of its official duties and responsibilities; to the parties in a pending criminal prosecution as required by law. Id. And see Palm Beach County Sheriff’s Office v. Sun-Sentinel Company, LLC, 226 So. 3d 969 (Fla. 4th DCA 2017) (applying exemption to shield the identity of witnesses who observed a homicide on the highway and whose vehicle was hit by bullets fired by the perpetrator as the witnesses attempted to follow the suspect’s car).

(g) Human Trafficking Victims

Criminal intelligence information or criminal investigative information that may reveal the identity of a person who is a victim of human trafficking whose criminal history record has been expunged pursuant to s. 943.0583, F.S., is confidential. Section 943.0583(11)(a), F.S. Disclosure is authorized under certain circumstances. Section 943.0583(11)(b), F.S. And see s. 119.071(2)(h), F.S., relating to victims of the crime of human trafficking proscribed in s. 787.06, F.S., discussed on page 123. Information about the location of a safe house, safe foster home, or other residential facility serving child victims of commercial sexual exploitation, as defined in s. 409.016, F.S., is confidential and exempt from public disclosure requirements. Section 409.1678(6)(a), F.S. Information may be provided to an agency as necessary to maintain health and safety standards and to address emergency situations in the house or facility. Section 409.1678(6)(b), F.S.

(h) Relocated Victim or Witness Information

Information held by a law enforcement agency, prosecutorial agency or the Victim and Witness Protection Review Committee which discloses the identity or location of a victim or witness (or their immediate family) who has been identified or certified for protective or relocation services is confidential and exempt from disclosure. Section 914.27, F.S.

§2-C-16 | LITIGATION RECORDS

a. Attorney-Client Communications

The Public Records Act applies to communications between attorneys and governmental agencies; there is no judicially created privilege which exempts these documents from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979) (only the Legislature and not the judiciary can exempt attorney-client communications from Ch. 119, F.S.). See also City of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218 (Fla. 1985) (although s. 90.502, F.S., of the Evidence Code establishes an attorney-client privilege for public and private entities, this evidentiary statute does not remove communications between an agency and its attorney from the open inspection requirements of Ch. 119, F.S.).

Moreover, public disclosure of these documents does not violate the public agency’s constitutional rights of due process, effective assistance of counsel, freedom of speech, or the Supreme Court’s exclusive jurisdiction over The Florida Bar. City of North Miami v. Miami Herald Publishing Company, supra. And see Seminole County, Florida v. Wood, 512 So. 2d 1000, 1001 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988) (the rules of ethics provide that an attorney may divulge a communication when required by law; the Legislature has plenary authority over political subdivisions and can require disclosure of otherwise confidential materials); and AGO 98-59 (records in the files of the former city attorney, who served as a contract attorney for the city, which were made or received in carrying out her duties as city attorney and which communicate, perpetuate, or formalize knowledge constitute public records and are required to be turned over to her successor). Cf City of St. Petersburg v. Dorchester Holdings, LLC., 331 So. 3d 799 (Fla. 2d DCA 2021), discussing the application of R. Regulating Fla. Bar 4-42 and Fla. Bar Ethics Opinion 09-1.

On the other hand, the Florida Supreme Court has ruled that files in the possession of the Capital Collateral Representative (CCR) in furtherance of its representation of an indigent client are not subject to public disclosure under Ch. 119, F.S. The Court noted that the files are not governmental records for purposes of the public records law but are the “private records” of the CCR client. Kight v. Dugger, 574 So. 2d 1066 (Fla. 1990). And see Times Publishing Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999), available online in the Cases database at the open government site at MyFloridaLegal.com (private attorneys retained by individual county commissioners in a criminal case were not “acting on behalf ” of a public agency so as to become subject to the Public Records Act, even though the board of county commissioners subsequently voted to pay the commissioners’ legal expenses in accordance with a county policy providing for reimbursement of legal expenses to individual county officers who successfully defend criminal charges filed against them arising out of the performance of their official duties).

b. Attorney Work Product

The Supreme Court has ruled that the Legislature and not the judiciary has exclusive authority to exempt litigation records from the scope of Ch. 119, F.S. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). See also Edelstein v. Donner, 450 So. 2d 562 (Fla. 3d DCA 1984), approved, 471 So. 2d 26 (Fla. 1985), noting that in the absence of legislation, a work product exemption is “non-existent;” and Hillsborough County Aviation Authority v. Azzarelli Construction Company, 436 So. 2d 153, 154 (Fla. 2d DCA 1983), stating that the Supreme Court’s decision in Wait “constituted a tacit recognition that work product can be a public record.”

With the enactment of s. 119.071(1)(d), F.S., the Legislature created a narrow statutory exemption for certain litigation work product of agency attorneys. See City of Orlando v. Desjardins, 493 So. 2d 1027, 1029 (Fla. 1986), in which the Court noted that the exemption was enacted because of “developing case law affording public entities no protection under either the work product doctrine or the attorney-client privilege....” See also City of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218, 219 (Fla. 1985) (noting application of exemption to “government agency, attorney-prepared litigation files during the pendency of litigation”); and City of Miami Beach v. DeLapp, 472 So. 2d 543 (Fla. 3d DCA 1985) (opposing counsel not entitled to city’s legal memoranda as such material is exempt work product). Cf. Dettelbach v. Department of Business and Professional Regulation, 261 So. 3d 676, 682 (Fla. 1st DCA 2018), noting that “it was important” that an agency attorney’s memorandum which was prepared exclusively to assess the strength of the agency’s evidence in a licensing case remain exempt from disclosure during the pendency of the adversarial administrative proceedings.

Section 119.071(1)(d)1., F.S., states, in relevant part:

A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney’s express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt [from disclosure] until the conclusion of the litigation or adversarial administrative proceedings.

Note that this statutory exemption applies to attorney work product that has reached the status of becoming a public record; as discussed more extensively on pages 127-128, certain preliminary trial preparation materials, such as handwritten notes for the personal use of the attorney, are not considered to be within the definitional scope of the term “public records” and, therefore, are outside the scope of Ch. 119, F.S. See Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998).

Under the terms of the statute, the work product exemption “is not waived by the release of such public record to another public employee or officer of the same agency or any person consulted by the agency attorney.” Section 119.071(1)(d)2., F.S. See also AGO 94-77 (work product exemption continues to apply to records prepared by the county attorney when these records are transferred to the city attorney pursuant to a transfer agreement whereby the city is substituted for the county as a party to the litigation).

An agency asserting the work product exemption must identify the potential parties to the litigation or proceedings. Section 119.071(1)(d)2., F.S. However, the agency is not required to identify each document in a record that it asserts to be exempt under the work product exemption. Dettelbach v. Department of Business and Professional Regulation, 261 So. 3d 676, 683 (Fla. 1st DCA 2018). Whether to impose such a requirement “is a matter properly addressed to the legislature rather than this court.” Id.

In the event of litigation disputing the claimed work product exemption, the court must conduct an in camera inspection of the records. Environmental Turf, Inc. v. University of Florida Board of Trustees, 83 So. 3d 1012 (Fla. 1st DCA 2012).

If a court finds that the record was improperly withheld, the party seeking the record shall be awarded reasonable attorney’s fees and costs in addition to any other remedy ordered by the court. Section 119.071(1)(d)2., F.S. As one court has noted, the inclusion of an attorney’s fee sanction “was prompted by the legislature’s concern that government entities might claim the work product privilege whenever public access to their records is demanded.” Smith & Williams, P.A. v. West Coast Regional Water Supply Authority, 640 So. 2d 216, 218 (Fla. 2d DCA 1994).

(1) Scope of Exemption

(a) Attorney Bills and Payments

Only those records which reflect a “mental impression, conclusion, litigation strategy, or legal theory” are included within the parameters of the work product exemption. Accordingly, in AGO 85-89, the Attorney General’s Office concluded that a contract between a county and a private law firm for legal counsel and documentation for invoices submitted by such firm to the county do not fall within the work product exemption. Accord AGO 00-07 (records of outside attorney fee bills for the defense of the county, as well as its employees who are sued individually, for alleged civil rights violations are public records subject to disclosure).

If the bills and invoices contain some exempt work product -- i.e., “mental impression[s], conclusion[s], litigation strateg[ies], or legal theor[ies],” -- the exempt material may be deleted and the remainder disclosed. AGO 85-89. However, information such as the hours worked or the hourly wage clearly would not fall within the scope of the exemption. Id. 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 (“Obviously, an entry on a [billing] statement which identifies a specific legal strategy to be considered or puts a specific amount of settlement authority received from the client, would fall within the exemption. On the other hand, a notation that the file was opened, or that a letter was sent to opposing counsel, would not.”).

Thus, an agency which “blocked out” most notations on invoices prepared in connection with services rendered by and fees paid to attorneys representing the agency, “improperly withheld” nonexempt material when it failed to limit its redactions to those items “genuinely reflecting its ‘mental impression, conclusion, litigation strategy, or legal theory.’” Smith & Williams, P.A. v. West Coast Regional Water Supply Authority, 640 So. 2d at 218. And see Davis v. Sarasota County Public Hospital Board, 480 So. 2d 203 (Fla. 2d DCA 1985), review denied, 488 So. 2d 829 (Fla. 1986), holding in part that a citizen seeking to examine records of a public hospital board concerning the payment of legal fees was entitled to examine actual records, not merely excerpts taken from information stored in the hospital’s computer.

(b) Records Prepared Prior to Litigation or for Other Purposes

Unlike the open meetings exemption in s. 286.011(8), F.S., for certain attorney-client discussions between a governmental board and its attorney, s. 119.071(1)(d), F.S., is not limited to records created for pending litigation before a court or administrative agency, but may also apply to records prepared “in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings....” (e.s.) See AGO 98-21, discussing the differences between the public records work product exemption in s. 119.071(1)(d) and the Sunshine Law exemption in s. 286.011(8), F.S.

However, s. 119.071(1)(d), F.S., does not create a blanket exception to the Public Records Act for all attorney work product. AGO 91-75. The exemption is narrower than the work product privilege recognized by the courts for private litigants. AGO 85-89. In order to qualify for the work product exemption, the records must have been prepared exclusively for litigation or adversarial administrative proceedings, or prepared in anticipation of imminent litigation or adversarial administrative proceedings; records prepared for other purposes may not be converted into exempt material simply because they are also used in or related to the litigation. See, e.g., Lightbourne v. McCollum, 969 So. 2d 326, 333 (Fla. 2007), cert. denied, 553 U.S. 1059 (2008) (memoranda prepared by corrections department attorney regarding lethal injection procedures do not constitute exempt attorney work product because memoranda do not relate to any pending litigation nor appear to have been prepared exclusively for litigation); MHM Correctional Services, Inc. v. State, Department of Corrections, No. 2009 CA 2105 (Fla. 2d Cir. Ct. June 10, 2009), available online in the Cases database at the open government site at MyFloridaLegal.com (department wrongfully withheld portions of an e-mail stream regarding the bid process as protected work product or privileged communications as none of the emails were prepared in contemplation of litigation as required by the statute).

Moreover, only those records which are prepared by or at the express direction of the agency attorney and reflect “a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency” are exempt from disclosure until the conclusion of the proceedings. See City of Orlando v. Desjardins, 493 So. 2d 1027, 1028 (Fla. 1986) (trial court must examine city’s litigation file in accident case and prohibit disclosure only of those records reflecting mental impression, conclusion, litigation strategy or legal theory of attorney or city); Jordan v. School Board of Broward County, 531 So. 2d 976, 977 (Fla. 4th DCA 1988) (record did not constitute exempt work product because it “was not prepared at an attorney’s express direction nor did it reflect a conclusion and mental impression of appellee”); and Lightbourne v. McCollum, supra (exemption inapplicable to records that conveyed specific factual information rather than mental impressions or litigation strategies). Cf. Tober v. Sanchez, 417 So. 2d 1053, 1055 (Fla. 3d DCA 1982), review denied sub nom., Metropolitan Dade County Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (documents which are given by a client to an attorney in the course of seeking legal advice are privileged in the attorney’s hands only if the documents were privileged in the client’s hands; thus, otherwise public records made or received by agency personnel do not become privileged merely by transferring them to the agency attorney).

Thus, a circuit judge refused to apply the exemption to tapes, witness statements and interview notes taken by police as part of an investigation of a drowning accident at a city summer camp. See Sun-Sentinel Company v. City of Hallandale, No. 95-13528(05) (Fla. 17th Cir. Ct. October 11, 1995), available online in the Cases database at the open government site at MyFloridaLegal.com. Similarly, in AGO 05-23, the Attorney General’s Office advised that notes taken by the assistant city attorney during interviews with co-workers of certain city employees in order to ascertain if employee discipline was warranted are not exempt from disclosure. See also AGO 91-75 (work product exemption not applicable to documents generated or received by school district investigators, acting at the direction of the school board to conduct an investigation of certain school district departments). Cf. City of Avon Park v. State, 117 So. 3d 470 (Fla. 2d DCA 2013) (recognizing that where no charges were filed against any of the parties mentioned in a state attorney investigator’s report, the report was a public record and the s. 119.071[1][d], F.S., exemption was inapplicable).

(c) Settlement Records

If the state settles a claim against one company accused of conspiracy to fix prices, the state has concluded the litigation against that company. Thus, the records prepared in anticipation of litigation against that company are no longer exempt from disclosure even though the state has commenced litigation against the alleged co-conspirator. State v. Coca-Cola Bottling Company of Miami, Inc., 582 So. 2d 1 (Fla. 4th DCA 1990). And see 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 (settlement agreement not exempt as attorney work product even though another related case was pending, and agency attorneys feared disclosure of their assessment of the merits of the settled case and their litigation strategy would have a detrimental effect upon the agency’s position in the related case). See also Inf. Op. to Gastesi, August, 27, 2015 (settlement demand furnished by plaintiff to agency); and Florida Sugar Cane League, Inc. v. Florida Department of Environmental Regulation, No. 91-4218 (Fla. 2d Cir. Ct. June 5, 1992) (technical documents or data which were not prepared for the purpose of carrying litigation forward but rather were jointly authored among adversaries to promote settlement are not exempted as attorney work product). Cf. Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204, 205 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (private company under contract with sheriff to provide medical services for inmates at county jail must release records relating to a settlement agreement with an inmate because all of its records that would normally be subject to the Public Records Act if in the possession of the public agency, are likewise covered by that law, even though in the possession of the private corporation).

(2) Duration of Exemption

The exemption from disclosure provided by s. 119.071(1)(d), F.S., is temporary and limited in duration. City of North Miami v. Miami Herald Publishing Co., supra. The exemption exists only until the “conclusion of the litigation or adversarial administrative proceedings” even if disclosure of the information in the concluded case could negatively impact the agency’s position in related cases or claims. See State v. Coca-Cola Bottling Company of Miami, Inc., 582 So. 2d 1 (Fla. 4th DCA 1990); Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988); and Lightbourne v. McCollum, supra (rejecting a “continuing exemption” claim by the state). And see AGO 13-13 (Sunshine Law exemption for certain attorney-client meetings found in s. 286.011[8], F.S., “does not recognize a continuation of the exemption for ‘derivative claims’ made in separate, subsequent litigation”). Cf. State v. Coca-Cola Bottling Company of Miami, Inc., supra (although state cannot claim work product exemption for litigation records after conclusion of litigation, Ch. 119 does not cover oral testimony; thus, opposing counsel not entitled to take depositions of state representatives regarding the concluded litigation).

Thus, a school board failed to meet its burden of showing that items contained in a school board litigation report were exempt from disclosure where there was no evidence that the cases in question were pending and open when the board received the public records request. Barfield v. School Board of Manatee County, 135 So. 3d 560 (Fla. 2d DCA 2014).

However, the phrase “conclusion of the litigation or adversarial administrative proceedings” encompasses post-judgment collection efforts such as a legislative claims bill. Wagner v. Orange County, 960 So. 2d 785 (Fla. 5th DCA 2007). And see AGO 94-33, concluding that for purposes of the attorney-client exemption from the Sunshine Law in s. 286.011(8), F.S., a pending lawsuit is concluded when the suit is dismissed with prejudice or the applicable statute of limitations has run; “[t]o allow a plaintiff who has voluntarily dismissed a suit to gain access to transcripts of strategy or settlement meetings in order to obtain an advantage in the refiling of a lawsuit would subvert the purpose of the statute.” Cf. Chmielewski v. City of St. Pete Beach, 161 So. 3d 521 (Fla. 2d DCA 2014) (rejecting city’s argument that because an agreement settling a quiet title action provided for further mediation should a dispute arise regarding the meaning of the agreement, the case was still pending for purposes of the Sunshine Law exemption in s. 286.011[8], F.S).

In addition, the exemption extends “through prosecution of appeals.” Inf. Op. to Boutsis, December 13, 2012. Cf. s. 119.071(1)(d)1., F.S. (“For purposes of capital collateral litigation as set forth in s. 27.7001, the Attorney General’s office is entitled to claim this exemption for those public records prepared for direct appeal as well as for all capital collateral litigation after direct appeal until execution of sentence or imposition of a life sentence.”).

c. Other Statutory Exemptions Relating to Litigation Records

Section 768.28(16)(b), F.S., provides an exemption for claims files maintained by agencies pursuant to a risk management program for tort liability until the termination of all litigation and settlement of all claims arising out of the same incident.

The “plain language of the statute” indicates that the “entire claims file is exempt from disclosure until resolution of the claim or claims.” City of Homestead v. McDonough, 232 So. 3d 1069, 1071 (Fla. 3d DCA 2017). [emphasis supplied by the court]. Accordingly, the trial court erred by ordering production of certain records in the file on the theory that production would not harm the city. Id. See also Wagner v. Orange County, 960 So. 2d 785 (Fla. 5th DCA 2007), stating that the phrase “settlement of all claims arising out of the same incident” included a legislative claims bill.

The exemption afforded by s. 768.28(16), F.S., is limited to tort claims for which the agency may be liable under s. 768.28, F.S., and does not apply to federal civil rights actions under 42 U.S.C. s. 1983. AGOs 00-20 and 00-07. And see Sun-Sentinel Company v. City of Hallandale, No. 95-13528(05) (Fla. 17th Cir. Ct. October 11, 1995), available online in the Cases database at the open government site at MyFloridaLegal.com (exemption now found at s. 768.28[16][b], F.S., for risk management files did not apply to tapes, witness statements and interview notes taken by police as part of an investigation of a drowning accident at a city summer camp). Moreover, the exemption does not include outside attorney invoices indicating hours worked and amount to be paid by the public agency, even though the records may be maintained by the agency’s risk management office pursuant to a risk management program. AGO 00-07. And see AGO 92-82 (open meetings exemption provided by s. 768.28, F.S., applies only to meetings held after a tort claim is filed with the risk management program).

Section 624.311(2), F.S., provides that the “records of insurance claim negotiations of any state agency or political subdivision are confidential and exempt [from disclosure] until termination of all litigation and settlement of all claims arising out of the same incident.” A county’s self-insured workers compensation program is the legal equivalent of “insurance” for purposes of this exemption. 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. And see AGO 85-102 (s. 624.311, F.S., exemption includes correspondence regarding insurance claims negotiations between a county’s retained counsel and its insurance carriers until termination of litigation and settlement of claims arising out of the same incident). Compare s. 284.40(2), F.S. (claim files maintained by the risk management division of the Department of Financial Services are confidential, shall be only for the use of the department, and are exempt from disclosure); and s. 1004.24(4), F.S. (claims files of self-insurance program adopted by Board of Governors, or the board’s designee, are confidential and exempt).

d. Attorney Notes

Relying on its conclusion in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980), the Florida Supreme Court has recognized that “not all trial preparation materials are public records.” State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990). In Kokal, the Court approved the decision of the Fifth District in Orange County v. Florida Land Co., 450 So. 2d 341, 344 (Fla. 5th DCA 1984), review denied, 458 So. 2d 273 (Fla. 1984), which described certain documents as not within the term “public records” because they were not used to perpetuate, formalize, or communicate knowledge:

Document No. 2 is a list in rough outline form of items of evidence which may be needed for trial. Document No. 9 is a list of questions the county attorney planned to ask a witness. Document No. 10 is a proposed trial outline. Document No. 11 contains handwritten notes regarding the county’s sewage system and a meeting with Florida Land’s attorneys. Document No. 15 contains notes (in rough form) regarding the deposition of an anticipated witness. These documents are merely notes from the attorneys to themselves designed for their own personal use in remembering certain things. They seem to be simply preliminary guides intended to aid the attorneys when they later formalized the knowledge. We cannot imagine that the Legislature, in enacting the Public Records Act, intended to include within the term ‘public records’ this type of material. [Emphasis supplied by Court]

Similarly, in Johnson v. Butterworth, 713 So. 2d 985, 987 (Fla. 1998), the Court ruled that “outlines, time lines, page notations regarding information in the record, and other similar items” in the case file, do not fall within the definition of public record, and thus are not subject to disclosure. See also Braddy v. State, 219 So. 3d 803. 821 (Fla. 2017) (“handwritten attorney notes, draft documents, and annotated copies of decisional law... do not constitute public records”); Ragsdale v. State, 720 So. 2d 203, 205 (Fla. 1998) (“attorney’s notes and other such preliminary documents are not public records and are never subject to public records disclosure”); Valle v. State, 705 So. 2d 1331, 1335 (Fla. 1997) (prosecutors’ notes to themselves for their own personal use, including outlines of opening and closing arguments and notes of witness depositions are not public records); Lopez v. State, 696 So. 2d 725, 727 (Fla. 1997) (handwritten notes dealing with trial strategy and cross-examination of witnesses are not public records); and Atkins v. State, 663 So. 2d 624, 626 (Fla. 1995) (notes of state attorney’s investigations and annotated photocopies of decisional case law are not public records).

By contrast, documents prepared to communicate, perpetuate, or formalize knowledge constitute public records and are, therefore, subject to disclosure in the absence of statutory exemption. See Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), stating that “[i]nter-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.”

Thus, in Coleman v. Austin, 521 So. 2d 247, 248 (Fla. 1st DCA 1988), the court observed that “although notes from attorneys to themselves might not be public records when intended for their own personal use, inter-office and intra-office memoranda may constitute public records even though encompassing trial preparation materials.” And see Orange County v. Florida Land Company, supra, in which the court concluded that trial preparation materials consisting of interoffice and intraoffice memoranda communicating information from one public employee to another or merely prepared for filing, even though not part of the agency’s formal work product, were public records although such circulated trial preparation materials might be exempt from disclosure pursuant to s. 119.071(1)(d), F.S., while the litigation is ongoing. See also AGO 05-23 (handwritten notes prepared by city’s assistant labor attorney during her interviews with city employees are public records “when those notes are made to perpetuate and formalize knowledge and to communicate that information to the city’s labor attorney”).

§2-C-17 | PERSONAL RECORDS NOT MADE OR RECEIVED IN THE COURSE OF OFFICIAL BUSINESS

As noted in AGO 04-33, the broad definition of “public record” makes it clear that the “form of the record is irrelevant; the material issue is whether the record is made or received by the public agency in connection with the transaction of official business.” See s. 119.011(12), F.S., defining the term “public records” to mean materials “made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” See also Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), stating that in order to constitute “public records” for purposes of Ch. 119 disclosure requirements, the records must have been prepared “in connection with official agency business” and be intended to “perpetuate, communicate, or formalize knowledge of some type.”

Accordingly, records which are not made or received in connection with the transaction of official business do not constitute public records for purposes of Ch. 119 disclosure requirements. See e.g. Butler v. City of Hallandale Beach, 68 So. 3d 278 (Fla. 4th DCA 2011) (e-mail sent by mayor from her personal account using her personal computer and blind copied to friends and supporters did not constitute a public record because the e-mail was not made pursuant to law or ordinance or in connection with the transaction of official business). Similarly, text messages from a city commissioner to her husband during a city commission meeting which were ‘uniformly personal and private’ and were not made in connection with any business transacted by the city, “did not possess the attributes of official business and, therefore, did not become subject to public records inspection.” City of Sunny Isles Beach v. Gatto, 338 So. 3d 1045 (Fla. 3d DCA 2022). The court noted that the commissioner was not acting in her official capacity when she texted with her husband; “[n]or did her husband step out of his role as husband and adopt the role of a citizen either seeking to enter a City process or to transact City business.” Id.

In evaluating whether a record is made or received in connection with the official business of an agency, “the determining factor is the nature of the record, not its physical location.” State v. City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003). In Clearwater, the Court held that personal e-mails between government employees on government-owned computers which were not made or received in the course of official business did not constitute public records. See also Bent v. State, 46 So. 3d 1047, 1050 (Fla. 4th DCA 2010) (recordings made by sheriff’s office of personal telephone calls between minors in jail awaiting trial and third parties are not public records when contents of the phone calls do not involve criminal activity or a security breach); and Media General Operations, Inc. v. Feeney, 849 So. 2d 3 (Fla. 1st DCA 2003) (records of personal or private calls of legislative employees using cellular phone service provided by a political party do not constitute official business of the Legislature and are not subject to public disclosure).

However, in concluding that the location of e-mails on a government computer does not control the application of Public Records Act, the Clearwater court also cautioned that the case before it did not involve e-mails “that may have been isolated by a government employee whose job required him or her to locate employee misuse of government computers.” State v. City of Clearwater, at 151n.2. And see Miami-Dade County v. Professional Law Enforcement Association, 997 So. 2d 1289 (Fla. 3d DCA 2009) (personal flight log of pilots paid by county which are required as part of pilots’ administrative duties are distinguishable from personal e-mails in City of Clearwater case and are subject to disclosure). See also AGO 09-19 (because the creation of a city Facebook page must be for a municipal, not private purpose, the “placement of material on the city’s page would presumably be in furtherance of such purpose and in connection with the transaction of official business and thus subject to the provisions of Chapter 119, Florida Statutes”),

Thus, in Bill of Rights, Inc. v. City of New Smyrna Beach, No. 2009-20218-CINS (Fla. 7th Cir. Ct. April 8, 2010), available online in the Cases database at the open government site at MyFloridaLegal.com, the court concluded that billing documents regarding personal calls made and received by city employees on city-owned or city-leased cellular telephones are public records, when those documents are received and maintained in connection with the transaction of official business; “and, the ‘official business’ of a city includes paying for telephone service and obtaining reimbursement from employees for personal calls.” See also AGO 77-141 (copies of letters or other documents received by the mayor in his official capacity constitute records received “in connection with the transaction of official business” and therefore are public records). Compare Inf. Op. to Burke, April 14, 2010 (while the licensing board, and not Attorney General’s Office, must determine whether a letter, allegedly sent to the board by mistake, had been received by the board in connection with the transaction of official business, the board “may wish to consider whether circumstances characterize how the document was received, such as does the letter relate to a past, existing, or potential investigation by the board”).

Similarly, the mere fact that an e-mail is sent from a private e-mail account using a personal computer is not the determining factor as to whether it is a public record; it is whether the e-mail was prepared or received in connection with official agency business. See Butler v. City of Hallandale Beach, supra. For example, if a public employee sends a proposed agency budget to his or her supervisor for review, the report is a public record, regardless of whether the report was sent from the employee’s agency e-mail account using a government computer, or from his or her home computer using a personal e-mail account. And see AGO 08-07 (individual council members who post comments and emails relating to transaction of city business on a privately-owned and operated website “would be responsible for ensuring that the information is maintained in accordance with the Public Records Law”).

“An elected official’s use of a private cell phone to conduct public business via text messaging can create an electronic written public record subject to disclosure.” O’Boyle v. Town of Gulf Stream, 257 So. 3d 1036, 1040 (Fla. 4th DCA 2018). However, in order for the communication to constitute a public record, “an official or employee must have prepared, owned, used, or retained it within the scope of his or her employment or agency.” Id. at 1040-1041. According to the O’Boyle court, an official or employee’s communication “falls ‘within the scope of employment or agency’ only when their job requires it, the employer or principal directs it, or it furthers the employer’s or principal’s interests.” Id. at 1041. Cf. AG0 16-16 (hospital district not authorized to reimburse a board member for attorney fees incurred in responding to a public records request for records relating to her board service which were stored in her private computer and telephone when no suit, claim, charge, or action was instituted against the commissioner when the fees were incurred).

§2-C-18 | PERSONNEL RECORDS

The general rule with regard to personnel records is the same as for other public records; unless the Legislature has expressly exempted certain personnel records from disclosure or authorized the agency to adopt rules limiting access to such records, personnel records are subject to public inspection and copying under s. 119.07(1), F.S. See Michel v. Douglas, 464 So. 2d 545 (Fla. 1985).

a. Annuity or Custodial Account Activities

Records identifying individual participants in any annuity contract or custodial account under s. 112.21, F.S. (relating to tax-sheltered annuities or custodial accounts for employees of governmental agencies) and their personal account activities are confidential and exempt from s. 119.07(1), F.S. Section 112.21(1), F.S.

b. Applications for Employment, References, and Resumes

Applications and resumes are subject to disclosure, after redaction of statutorily exempt information such as social security numbers. See Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980); and AGOs 15-10 and 77-48. Similarly, communications from third parties are subject to disclosure. See Douglas v. Michel, 410 So. 2d 936 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985). A written employment contract is a public record. AGO 13-14.

Section 1004.098(1)(a), F.S., establishes confidentiality for personal identifying information of applicants for president of a state university or Florida College System institution. The age, race, and gender of applicants who met the minimum qualifications for the position who were considered and the personal identifying information of applicants included in the final group of applicants are no longer confidential beginning at the earlier of the date the final group of applicants is established or 21 days before the date of a meeting at which an interview of an applicant will be conducted or at which final action or a vote is to be taken on the offer of employment of an applicant. Section 1004.098(1)(b), F.S.

c. Collective Bargaining

(1) Relationship of Collective Bargaining Agreement to Personnel Records

A collective bargaining agreement between a public employer and its employees may not validly make the personnel records of public employees confidential or exempt the same from the Public Records Act. AGO 77-48. Thus, employee grievance records are disclosable even though classified as confidential in a collective bargaining contract because “to allow the elimination of public records from the mandate of Chapter 119 by private contract would sound the death knell of the Act.” Mills v. Doyle, 407 So. 2d 348, 350 (Fla. 4th DCA 1981). Cf. Palm Beach County Classroom Teacher’s Association v. School Board of Palm Beach County, 411 So. 2d 1375, 1376 (Fla. 4th DCA 1982) (collective bargaining agreement cannot be used “to circumvent the requirements of public meetings” in s. 286.011, F.S.).

Similarly, a city 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 retention schedules established by the Division of Library and Information Services of the Department of State. AGO 94-75. Accord AGO 94-54.

(2) Collective Bargaining Work Product Exemption

Section 447.605(3), F.S., provides:

All work products developed by the public employer in preparation for negotiations, and during negotiations, shall be confidential and exempt from the provisions of s. 119.07(1), F.S.

The exemption is limited and does not remove budgetary or fiscal information from the purview of Ch. 119, F.S. See Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747, 749 (Fla. 1st DCA 1980), noting that records which are prepared for other purposes do not, as a result of being used in negotiations, come within the s. 447.605(3) exemption; and Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976), ordering that working papers used in preparing a college budget be produced for inspection by a labor organizer.

Thus, proposals and counter proposals presented during the course of collective bargaining would appear to be subject to public disclosure. However, written notes taken by the representative of a fire control district during collective bargaining sessions for use in preparing for subsequent bargaining sessions which reflect the impressions, strategies and opinions of the district representative are exempt pursuant to s. 447.605(3), F.S. Inf. Op. to Fulwider, June 14, 1993.

d. Complaints Against Employees

Section 119.071(2)(k), F.S., provides that a complaint of misconduct filed with an agency against an agency employee and all information obtained pursuant to an investigation by the agency of the complaint is confidential and exempt until the investigation ceases to be active, or until the agency provides written notice to the employee who is the subject of the complaint, either personally or by mail, that the agency has either:

a. Concluded the investigation with a finding not to proceed with disciplinary action or file charges; or

b. Concluded the investigation with a finding to proceed with disciplinary action or file charges.

Prior to the enactment of this statute in 2013, there was no general exemption from public disclosure for complaints and investigative records based on alleged misconduct by agency employees. See e.g., AGO 04-22 (anonymous letter sent to city officials containing allegations of misconduct by city employees is a public record). Instead, the Legislature enacted exemptions pertaining to specific types of complaints and investigations. See e.g. s. 943.03(2), F.S., providing for confidentiality of Florida Department of Law Enforcement records relating to an active investigation of misconduct, in connection with their official duties, of public officials and employees and of members of public corporations and authorities subject to suspension or removal by the Governor.

For information on the exemptions for whistleblower, discrimination and ethics complaints directed against public officials and employees, please refer to the discussion on pages 98-101. A discussion of exemptions addressing complaints against law enforcement officers and educators follows:

(1) Law Enforcement Officers and Correctional Officers

(a) Scope of Exemption and Duration of Confidentiality

In the absence of an express legislative exemption, law enforcement personnel records are open to inspection just like those of other public employees. See Tribune Company v. Cannella, 438 So. 2d 516, 524 (Fla. 2d DCA 1983), quashed on other grounds, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., Deperte v. Tribune Company, 105 S.Ct. 2315 (1985) (law enforcement personnel records compiled and maintained by the employing agency “can never constitute criminal investigative or intelligence information within the meaning of the Public Records Act even if subpoenaed by another law enforcement agency at some point after their original compilation by the employing agency”).

However, section 112.533(2)(a), F.S., provides that complaints filed against law enforcement officers and correctional officers, and all information obtained pursuant to the agency’s investigation of the complaint, are confidential until the investigation is no longer active or until the agency head or his or her designee provides written notice to the officer who is the subject of the complaint that the agency has concluded the investigation with a finding to either proceed or not to proceed with disciplinary action or the filing of charges.

The term “law enforcement officer” is defined as any person, other than a chief of police, who is employed full time or part time by any municipality or the state or any political subdivision thereof and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of this state; and includes any person who is appointed by the sheriff as a deputy sheriff under s. 30.07, F.S. Section 112.531(2), F.S.

Complaints filed with the employing agency by any person, whether within or outside the agency, are subject to the exemption. AGO 93-61. However, the complaint must be in writing in order for the confidentiality provisions to apply. City of Delray Beach v. Barfield, 579 So. 2d 315 (Fla. 4th DCA 1991). Cf. Fraternal Order of Police v. Rutherford, 51 So. 3d 485, 488 (Fla. 1st DCA 2010) (written complaint not necessary to trigger confidentiality afforded by s. 112.532[4] [b], F.S., as that statute provides a broader confidentiality for ongoing investigations whenever a law enforcement or correctional officer faces possible dismissal, demotion, or suspension without pay until the investigating agency “completes or abandons its investigation”).

While s. 112.533, F.S., applies to complaints and records obtained pursuant to the law enforcement agency’s investigation of the complaint, it does not transform otherwise public records (such as crime or incident reports) into confidential records simply because the actions which are described in the crime report later form the basis of a complaint filed pursuant to s. 112.533, F.S. AGO 96-27. And see AGO 08-33 (list of law enforcement officers who have been placed on administrative duty by their employer is not confidential under s. 112.533[2][a], F.S., but is subject to inspection and copying even if information on the list will identify officers who are the subject of internal investigation). But see Florida Police Benevolent Association, Inc. v. City of Tallahassee, 314 So. 3d 796 (Fla. 1st DCA 2021), review granted, No. 21-651 (Fla. December 21, 2021) (law enforcement officers who fatally shot suspects threatening them with deadly force were “victims” under Marsy’s Law and were entitled to seek judicial relief to preclude release of identifying information in incident reports). For more information about Marsy’s Law, please see the discussion on page 121.

If the officer resigns prior to the agency’s completion of its investigation, the exemption from disclosure provided by s. 112.533(2), F.S., no longer applies, even if the agency is still actively investigating the complaint. AGO 91-73. However, if the complaint has generated information which qualifies as active criminal investigative information, i.e., information compiled by a criminal justice agency while conducting an ongoing criminal investigation of a specific act, such information would be exempt while the investigation is continuing with a good faith anticipation of securing an arrest or prosecution in the foreseeable future. Id. See s. 112.533(2)(b), F.S., providing that the disclosure provisions do not apply to any public record [such as active criminal investigative information exempted in s. 119.071(2)(c), F.S.] which is exempt from disclosure pursuant to Ch. 119, F.S.

The exemption is of limited duration. Section 112.533(2), F.S., establishes that the complaint and all information gathered in the investigation of that complaint generally become public records at the conclusion of the investigation or at such time as the investigation becomes inactive. AGO 95-59. Thus, a court ruled that the exemption ended once the sheriff’s office provided the accused deputy with a letter stating that the investigation had been completed, the allegations had been sustained, and that the deputy would be notified of the disciplinary action to be taken. Neumann v. Palm Beach County Police Benevolent Association, 763 So. 2d 1181 (Fla. 4th DCA 2000).

However, the mere fact that written notice of intervening actions is provided to the officer under investigation does not signal the end of the investigation nor does such notice make this information public prior to the conclusion of the investigation. AGO 95-59. Similarly, the exemption remains in effect if an agency schedules a pre-disciplinary determination meeting with an officer to hear and evaluate the officer’s side of the case because “[d]iscipline is not an accepted fact at this point.” Palm Beach County Police Benevolent Association v. Neumann, 796 So. 2d 1278, 1280 (Fla. 4th DCA 2001).

A complaint is presumed to be inactive, and hence subject to disclosure, if no finding is made within 45 days after the complaint is filed. Section 112.533(2)(b), F.S. See City of Delray Beach v. Barfield, 579 So. 2d at 318 (trial court’s finding that complaint was inactive, despite contrary testimony of law enforcement officers conducting the investigation, comes to appellate court “clothed with its own presumption of correctness -- especially, as here, where there is other record evidence which sustains it”).

(b) Limitations on Disclosure

Section 112.533(2)(b), F.S., states that the inspection provisions in that subsection do not apply to any public record which is exempt from public disclosure under Ch. 119, F.S. For example, active criminal investigative or intelligence information which is exempt pursuant to s. 119.071(2)(c), F.S., remains exempt notwithstanding the disclosure provisions set forth in s. 112.533(2)(a), F.S. Palm Beach County Police Benevolent Association v. Neumann, 796 So. 2d 1278 (Fla. 4th DCA 2001). And see AGO 91-73. Thus, in such cases, the information would be subject to disclosure when the criminal investigative information exemption ends, rather than as provided in s. 112.533(2), F.S. Cf. City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995) (exempt active criminal investigative information may be shared with another criminal justice agency for use in a simultaneous internal affairs investigation and retain its protected status).

Similarly, information that would reveal the identity of the victim of child abuse or the victim of a sexual offense is not subject to disclosure since the information is exempt pursuant to s. 119.071(2)(h), F.S. Palm Beach County Police Benevolent Association v. Neumann, supra.

However, the state attorney’s records of a closed criminal investigation are not made confidential by s. 112.533, F.S., even though an internal investigation conducted by the police department remains pending concerning the same complaint. AGO 00-66. Cf. AGO 96-05, noting that a police report of an agency’s criminal investigation of a police officer is a public record in the hands of the police department after the investigation is over regardless of whether a copy of the report is forwarded to the Criminal Justice Standards and Training Commission or to the Commission on Ethics.

(c) Unauthorized Disclosure Penalties

Section 112.533(4), F.S., makes it a first degree misdemeanor for any person who is a participant in an internal investigation to willfully disclose any information obtained pursuant to the agency’s investigation before such information becomes a public record. However, the subsection “does not limit a law enforcement or correctional officer’s ability to gain access to information under paragraph (2)(a).” Section 112.533(4), F.S. In addition, a sheriff, police chief or other head of a law enforcement agency, or his or her designee, may acknowledge the existence of a complaint, and the fact that an investigation is underway. Id.

The Attorney General’s Office has issued several advisory opinions interpreting this statute. See, e.g., AGO 03-60 (while public disclosure of information obtained pursuant to an internal investigation prior to its becoming a public record is prohibited, s. 112.533[4], F.S., “would not preclude intradepartmental communications among those participating in the investigation). Cf. AGO 97-62 (confidentiality requirements prevent the participation of a citizens’ board in resolving a complaint made against a law enforcement officer until the officer’s employing agency has made its initial findings). But see Cooper v. Dillon, 403 F. 3d 1208, 1218-1219 (11th Cir. 2005), in which the 11th Circuit Court of Appeals ruled that s. 112.533(4), F.S., was unconstitutional “[b]ecause the curtailment of First Amendment freedoms by Fla. Stat. ch. 112.533(4) is not supported by a compelling state interest, the statute fails to satisfy strict scrutiny and unconstitutionally abridges the rights to speak, publish, and petition government.”

(2) Public School System Employees

The complaint and material relating to the investigation of a complaint against a public school system employee are confidential until the preliminary investigation is either concluded or ceases to be active. Section 1012.31(3)(a)1., F.S. See AGO 91-75 (while exemption applies when a complaint against a district employee has been filed and an investigation against that employee ensues, it does not provide a basis for withholding documents compiled in a general investigation of school departments). Cf. Johnson v. Johnson v. Deluz, 875 So. 2d 1,3 (Fla. 4th DCA 2004) (because “legislature had no intention of permitting confidential student information to be made public,” student-identifying information must be redacted from public report of investigation of school principal); and Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d 851 (Fla. 1st DCA 2013) (student’s unredacted e-mail complaining about a college instructor’s classroom behavior qualifies as an exempt “education record”).

While s. 1012.31(1)(b), F.S., prohibits placing anonymous letters and material in a school district employee’s personnel file, the statute does not prevent a school board from investigating the allegations contained in an anonymous letter nor does it permit the school board to destroy the anonymous material absent compliance with statutory restrictions on destruction of public records. AGO 87-48. Moreover, the personnel file is open at all times to school board members, the superintendent, or the principal, or their respective designees in the exercise of their duties, and to law enforcement personnel in the conduct of a lawful criminal investigation. Section 1012.31(3)(b) and (c), F.S.

(3) State University and Florida College System Institution Employees

For information on statutory exemptions for complaints filed against state university or Florida College System institution (formerly community college) employees, please refer to the discussion of employee evaluations on pages 141.

e. Conditions for Inspection of Personnel Records

An agency is not authorized to unilaterally impose special conditions for the inspection of personnel records. An automatic delay in the production of such records is invalid. Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985) (automatic 48 hour delay unauthorized by Ch. 119, F.S.). And see Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla. 2002) (“only the custodian of such records can assert any applicable exemption; not the employee”).

Thus, while an agency is not precluded from notifying an employee that a request has been made to inspect his or her personnel records, in the absence of express legislative authority, the production of personnel records may not be delayed in order to allow the employee to be notified or present during the inspection of the public records relating to that employee. Compare s. 1012.31(3)(a)3., F.S., providing that no material derogatory to a public school employee may be inspected until 10 days after the employee has been notified by certified mail or personal delivery as provided in s. 1012.31(2)(c), F.S.

(1) Privacy Issues

The courts have rejected claims that constitutional privacy interests operate to shield agency personnel records from disclosure. See Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985), holding that the state constitution “does not provide a right of privacy in public records” and that a state or federal right of disclosural privacy does not exist.

“Absent an applicable statutory exception, pursuant to Florida’s Public Records Act (embodied in chapter 119, Florida Statutes), public employees (as a general rule) do not have privacy rights in such records.” Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla. 2002). See also Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980); and Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981). But see Fadjo v. Coon, 633 F.2d 1172, 1175n.3 (5th Cir. 1981), noting that “it is clear that the legislature cannot authorize by statute an unconstitutional invasion of privacy.”

Additionally, the judiciary has refused to deny access to personnel records based on claims that the release of such information could prove embarrassing or unpleasant for the employee. See e.g., News-Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) (absent a statutory exemption, a court is not free to consider public policy questions regarding the relative significance of the public’s interest in disclosure and damage to an individual or institution resulting from such disclosure).

Public employers should note, however, that a court has held that an agency must provide a discharged employee with an opportunity for a post-termination name-clearing hearing when stigmatizing information concerning the employee is made a part of the public records or is otherwise published. Buxton v. City of Plant City, Florida, 871 F.2d 1037 (11th Cir. 1989). See also Garcia v. Walder Electronics, Inc., 563 So. 2d 723 (Fla. 3d DCA 1990), review denied, 576 So. 2d 287 (Fla. 1990) (public employer has an affirmative duty to inform a discharged employee of his right to seek a post-termination name-clearing hearing). Cf. Cannon v. City of West Palm Beach, 250 F.3d 1299, 1303 (11th Cir. 2001) (failure to provide name-clearing hearing to employee who alleged that he was denied a promotion due to stigmatizing information in his personnel file does not violate the employee’s due process rights, because “in this circuit a ‘discharge or more’ is required”).

(2) Sealed Records

An agency is not authorized to “seal” disciplinary notices and thereby remove such notices from disclosure under the Public Records Act. AGO 94-75. Nor may an agency, absent a statutory exemption for such records, agree to remove counseling slips and written reprimands from an employee’s personnel file and maintain such documents in a separate disciplinary file for the purpose of removing such records from public access. AGO 94-54. Accord AGO 11-19 (superintendent’s failure to comply with a statutory requirement to discuss a performance evaluation with the employee before filing it in the employee’s personnel file, does not change the public records status of the evaluation; the evaluation is a public record and may not be removed from public view or destroyed). And see AGO 15-10 (agency may not “seal” job applications or request that they be submitted as “sealed” records to foreclose public access).

f. Criminal History Information

Except where specific exemptions apply, criminal history information is a public record. AGO 77-125; Inf. Op. to Lymn, June 1, 1990.

In some cases, criminal or juvenile records information obtained by specific agencies as part of a background check required for certain positions has been made confidential and exempt from s. 119.07(1), F.S., or use of the information is restricted. See, e.g., s. 110.1127(2)(d) and (e), F.S. (agency positions designated or specified as provided in s. 110.1127, F.S.); s. 1002.36(7) (d) and (e), F.S. (School for the Deaf and the Blind); and s. 39.821(1) F.S. (guardian ad litem).

Federal confidentiality provisions also apply to criminal history information received from the U.S. government. For example, criminal history information shared with a public school district by the Federal Bureau of Investigation retains its character as a federal record to which only limited access is provided by federal law and is not subject to public inspection under Florida’s Public Records Act. AGO 99-01. However, information developed by the school district from further inquiry into references in the federal criminal history record information is a public record which should be included in a school district employee’s personnel file. Id.

Sections 943.0585 and 943.059, F.S., prohibit a records custodian who has received information relating to the existence of an expunged or sealed criminal history record from disclosing the existence of such record. AGO 94-49.

g. Deferred Compensation

All records identifying individual participants in any deferred compensation plan under the Government Employees’ Deferred Compensation Plan Act and their personal account activities shall be confidential and exempt. Section 112.215(7), F.S.

h. Direct Deposit

Direct deposit records made prior to October 1, 1986, are exempt from s. 119.07(1), F.S. With respect to direct deposit records made on or after October 1, 1986, the names of the authorized financial institutions and the account numbers of the beneficiaries are confidential and exempt. Section 17.076(5), F.S.

i. Drug Test Results

Drug test results and other information received or produced by a state agency employer as a result of a drug-testing program in accordance with s. 112.0455, F.S., the Drug-Free Workplace Act, are confidential and exempt, and may not be disclosed except as authorized in the statute. Section 112.0455(11), F.S. See also s. 112.0455(8)(l) and (t), F.S.

While the provisions of s. 112.0455, F.S., are applicable to state agencies and not to municipalities, ss. 440.101-440.102, F.S., may be used by a municipality or other entity that is an “employer” for purposes of these statutes, to establish a drug-free workplace program. See AGO 98-38. Section 440.102(8), F.S., provides for confidentiality of drug test results or other information received as a result of a drug-testing program implemented pursuant to Ch. 440, F.S. AGO 13-19. Cf. AGO 94-51 (city not authorized to delete or remove consent forms or records of disciplinary action relating to city employees’ drug testing from personnel records when drug testing was not conducted pursuant to s. 440.102, F.S.); and Inf. Op. to McCormack, May 13, 1997 (s. 440.102[8], F.S., applies to public employees and not to drug test results of public assistance applicants). And see s. 443.1715(3), F.S., relating to confidentiality of drug test information and limited disclosure in proceedings conducted for purposes of determining compensability under the reemployment assistance law.

In AGO 96-58, the Attorney General’s Office advised that the medical director for a city fire and rescue department may submit drug test results to the state health department pursuant to s. 401.265(2), F.S., requiring a medical director to report to the department any emergency medical technician or paramedic who may have acted in a manner constituting grounds for discipline under the licensing law. The tests were conducted during routine pre-employment and annual fitness for duty examinations and not pursuant to ss. 440.101-440.102, F.S.

j. Employee Assistance Program

An employee’s personal identifying information contained in records held by the employing agency relating to that employee’s participation in an employee assistance program is confidential and exempt from disclosure. See ss. 110.1091 (state employees), 125.585 (county employees), and 166.0444 (municipal employees), F.S.

k. Employment Search or Consultant Records

“[D]ocuments provided to a consultant in relation to his acting on behalf of a public agency are public documents.” Wallace v. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997). Thus, if an agency uses a recruitment company to conduct an employment search for the agency, records made or received by the private company in connection with the search are public records. AGO 92-80. See also Shevin v. Byron, Harless, Schaffer, Reid and Associates, 379 So. 2d 633 (Fla. 1980) (firm of consultants hired to conduct an employment search for position of managing director of a public agency was “acting on behalf of ” a public agency and thus letters, memoranda, resumes, and travel vouchers made or received by consultants as part of search were public records). Cf. s. 1004.098(1), F.S., discussed on s. 119.0714 establishing an exemption for personal identifying information of applicants for president of a state university or Florida College institution.

l. Evaluations of Employee Performance

Evaluations of public employee performance are generally subject to disclosure. As the Florida Supreme Court pointed out in News-Press Publishing Company v. Wisher, 345 So. 2d 646, 648 (Fla. 1977):

No policy of the state protects a public employee from the embarrassment which results from his or her public employer’s discussion or action on the employee’s failure to perform his or her duties properly.

However, there are statutory restrictions on access to evaluations of employee performance for public school system employees. Section 1012.31(3)(a), F.S. Similarly, there are exemptions for evaluations contained in limited-access records prescribed by a hospital or other facility licensed under Ch. 395, F.S., for employees of the facility, s. 395.3025(9), F.S.; prescribed by the State Board of Education for Florida College System institution employees, s. 1012.81, F.S.; or prescribed by a university board of trustees for its employees, s. 1012.91, F.S.

A discussion of each of these exemptions follows:

(1) Hospital Employees

Section 395.3025(9), F.S., authorizes hospitals to prescribe the content of limited-access employee records which are not available for disclosure for 5 years after such designation. Such records are limited to evaluations of employee performance, including records forming the basis for evaluation and subsequent actions. See Times Publishing Company v. Tampa General Hospital, No. 93-03362 (Fla. 13th Cir. Ct. May 27, 1993), available online in the Cases database at the open government site at MyFloridaLegal.com (s. 395.3025[9] exemption does not apply to list of terminated hospital employees; hospital ordered to allow newspaper to inspect list and personnel files of those persons named in list after “limited-access” documents have been removed).

(2) Public School Employees

Employee evaluations of public school system employees prepared pursuant to cited statutes are confidential until the end of the school year immediately following the school year during which the evaluation was made; however, no evaluations made prior to July 1, 1983, shall be made public. Section 1012.31(3)(a)2., F.S. However, the exemption applies only to the “employee evaluation.” See Morris Publishing Group, LLC v. Department of Education, 133 So. 3d 957, 960 (Fla. 1st DCA 2013), review denied, 157 So. 3d 1046 (Fla. 2014) (“While section 1012.31[3] [a]2 provides that the evaluation of a public school teacher is not subject to disclosure under the public records law, it does not follow that any information or data used to prepare the evaluation is likewise exempt from disclosure”).

Moreover, information obtained from evaluation forms circulated by the local teacher’s union to its members that is provided unsolicited to the superintendent is not exempt under this statute. AGO 94-94. In addition, written comments and performance memoranda prepared by individual school board members regarding an appointed superintendent are not exempt from disclosure. AGO 97-23. Cf. AGO 11-19, concluding that a superintendent’s failure to comply with a statute requiring that a performance evaluation be discussed with an employee before it is filed in the employee’s personnel file, does not change the public records status of the evaluation; the evaluation is a public record and may not be removed from public view or destroyed.

(3) State University and Florida College System Institution Employees

Limited-access records maintained by a state university on its employees are confidential and exempt from s. 119.07(1), F.S., and may be released only upon authorization in writing from the employee or upon court order. Without such authorization, access to the records is limited to university personnel as specified in the statute. Section 1012.91, F.S.

“Limited-access records” are limited to: information reflecting academic evaluations of employee performance that are open to inspection only by the employee and university officials responsible for supervision of the employee; records relating to an investigation of employee misconduct which records are confidential until the conclusion of the investigation or the investigation ceases to be active as defined in the exemption; and records maintained for the purpose of any disciplinary proceeding against the employee or records maintained for any grievance proceeding brought by an employee for enforcement of a collective bargaining agreement or contract until a final decision is made. Section 1012.91(1), F.S.

For sexual harassment investigations of university personnel, portions of records that identify or reasonably could lead to the identification of the complainant or a witness also constitute limited-access records. Section 1012.91(2), F.S. Records which comprise the common core items contained in the State University System Student Assessment of Instruction instrument may not be prescribed as limited-access records. Section 1012.91(4), F.S.

Regarding Florida College System institution employees, s. 1012.81, F.S., states that rules of the State Board of Education shall prescribe the content and custody of limited-access records maintained by a Florida College System institution on its employees. Such records are limited to information reflecting academic evaluations of employee performance and certain disciplinary and grievance records as described in the exemption. Limited access records are confidential and exempt and may not be released except as authorized in the exemption. Cf. Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d 851 (Fla. 1st DCA 2013) (student’s unredacted e-mail complaining about an instructor’s classroom behavior qualifies as an exempt “education record”).

m. Examination Questions and Answer Sheets

Examination questions and answer sheets of examinations administered by governmental entities for the purpose of licensure, certification, or employment are exempt from mandatory disclosure requirements. Section 119.071(1)(a), F.S. See Dickerson v. Hayes, 543 So. 2d 836, 837 (Fla. 1st DCA 1989) (applying exemption to portions of rating sheets used by promotion board which contained summaries of applicants’ responses to oral examination questions where the oral questioning “was a formalized procedure with identical questions asked of each applicant [which] ‘tested’ the applicants’ response both as to style and content”). And see Rush v. High Springs, 82 So. 3d 1108 (Fla. 1st DCA 2012) (exemption applies to questions and answers contained in preemployment polygraph examinations).

The exemption from disclosure in s. 119.071(1)(a), F.S., applies to examination questions and answers, and does not include the “impressions and grading of the responses” by the examiners. See Dickerson v. Hayes, supra at 837. Compare s. 455.229(1), F.S., providing confidentiality for “examination questions, answers, papers, grades, and grading keys” used in licensing examinations administered by the Department of Business and Professional Regulation.

A person who has taken an examination has the right to review his or her own completed examination. Section 119.071(1)(a), F.S. See AGO 76-210, stating that an examinee has the right to inspect the results of a completed civil service promotional examination, including question and answer sheets, after the examination has been completed. However, the examinee possesses only the right to review his or her own completed examination and may not make or obtain copies of that examination. AGO 81-12.

n. Home Addresses, Telephone Numbers and Other Personal Information

In the absence of statutory exemption, home addresses, telephone numbers, photographs, and dates of birth of public officers and employees are not exempt from disclosure. See AGO 96-88 (home addresses and telephone numbers and business addresses and telephone numbers of members of state and district human rights advocacy committees are public records); 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 have filled out forms requesting that the city maintain the confidentiality of their personnel files). And see United Teachers of Dade v. School Board of Dade County, No. 92-17803 (01) (Fla. 11th Cir. Ct. Nov. 30, 1992), available online in the Cases database at the open government site at MyFloridaLegal.com (home telephone numbers and addresses of school district employees not protected by constitutional right to privacy; only the Legislature can exempt such information). Cf. AGO 85-03 (list containing names and addresses of subscribers to state magazine is a public record).

(1) Listing of Public Officers and Employees Covered by Exemptions

The home addresses, telephone numbers, and other specified personal information pertaining to certain public officers and employees and their spouses and children have been exempted in ss. 119.071(4)(d) and 119.071(5)(i) F.S. The term “home address” for purposes of s. 119.071(4)(d), F.S., means “the dwelling location at which an individual resides and includes the physical address, mailing address, street address, parcel identification number, plot identification number, legal property description, neighborhood name and lot number, GPS coordinates, and any other descriptive property information that may reveal the home address.” Section 119.071(4)(d)1.a., F.S.

For purposes of s. 119.071(4)(d), F.S., the term “telephone numbers” includes “home telephone numbers, personal cellular telephone numbers, personal pager telephone numbers, and telephone numbers associated with personal communications devices.” Section 119.071(4)(d)1.b., F.S.

(a) Abuse Investigators for Department of Children and Families and Department of Health

a. Scope of Exemption: Active or former personnel of the Department of Children and Families whose duties include the investigation of abuse, neglect, exploitation, fraud, theft or other criminal activities; and active or former personnel of the Department of Health whose duties are to support the investigation of child abuse or neglect

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.a., F.S.

(b) Child Advocacy Personnel and Child Protection Team Members

a. Scope of Exemption: Current or former directors, managers, supervisors, and clinical employees of a child advocacy center that meets the standards of s. 39.3035(2) and fulfills the screening requirements of s. 39.3035(3) and the members of a Child Protection Team as described in s. 39.303 whose duties include supporting the investigation of child abuse or sexual abuse, child abandonment, child neglect, and child exploitation or to provide services as part of a multidisciplinary case review team.

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, photographs, dates of birth and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.t., F.S.

(c) Code Enforcement Officers

a. Scope of Exemption: Current or former code enforcement officers

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.i., F.S.

(d) County Addiction Facility Personnel

a. Scope of Exemption: Current or former directors, managers, supervisors, nurses, and clinical employees of an addiction treatment facility. The term “addiction treatment facility” means a county government, or agency thereof, that is licensed pursuant to s. 397.401, and provides substance abuse prevention, intervention, or clinical treatment, including any licensed service component described in s. 397.311(26)

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel, and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.s., F.S.

(e) County Tax Collectors

a. Scope of Exemption: County tax collectors

b. Information Exempted: Home addresses, telephone numbers, and dates of birth

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.n., F.S.

(f) Domestic Violence Advocates

a. Scope of Exemption: Current or former staff and domestic violence advocates, as defined in s. 90.5036(1)(b), of domestic violence centers certified by the Department of Children and Families under chapter 39

b. Information Exempted: Home addresses, telephone numbers, places of employment, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, places of employment, dates of birth, and photographs of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.u., F.S.

(g) Domestic Violence and Other Specified Crime Victims

Please refer to the discussion on page 78.

(h) Emergency Medical Technicians or Paramedics

a. Scope of Exemption: Current or former emergency medical technicians or paramedics certified under Ch. 401, F.S.

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.q., F.S.

(i) Firefighters

a. Scope of Exemption: Current or former firefighters certified in compliance with s. 633.408, F.S.

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, photographs, and places of employment of spouses and children of such firefighters; and the names and locations of the schools and day care facilities attended by the children of the firefighters

d. Statutory Reference: Section 119.071(4)(d)2.d., F.S.

(j) Guardians ad litem

a. Scope of Exemption: Current or former guardians ad litem, as defined in s. 39.820, F.S.

b. Information Exempted: Home addresses, telephone numbers, dates of birth, places of employment, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of spouses and children of such persons; and the names and locations of schools and day care facilities attended by the children of such persons

d. Statutory Reference: Section 119.071(4)(d)2.j., F.S.

(k) Hospital Employees

Please refer to the discussion on pages 96-97.

(l) Human Resource Managers (Local Governments)

a. Scope of Exemption: Current or former human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district whose duties include hiring and firing employees, labor contract negotiation, administration, or other personnel-related duties

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.h., F.S.

(m) Impaired Practitioner Consultants

a. Scope of Exemption: Current or former impaired practitioner consultants retained by an agency or current or former employees of an impaired practitioner consultant whose duties result in a determination of a person’s skill and safety to practice a licensed profession

b. Information Exempted: Home addresses, telephone numbers dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such consultants or their employees; and the names and locations of schools and day care facilities attended by the children of such consultants or employees

d. Statutory Reference: Section 119.071(4)(d)2.p., F.S.

(n) Inspectors General and Internal Auditors Performing Specified Duties

a. Scope of Exemption: Current or former personnel employed in an agency’s office of inspector general or internal audit department whose duties include auditing or investigating waste, fraud, abuse, theft, exploitation, or other activities that could lead to criminal prosecution or administrative discipline

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.r., F.S.

(o) Investigators and Inspectors of the Department of Business and Professional Regulation

a. Scope of Exemption: Current or former investigators or inspectors of the Department of Business and Professional Regulation

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.m., F.S.

(p) Investigators of the Department of Financial Services and Office of Financial Regulation with Specified Duties

a. Scope of Exemption: Current or former nonsworn investigative personnel of the Department of Financial Services and Office of Financial Regulation whose duties include the investigation of fraud, theft, workers’ compensation coverage requirements and compliance, other related criminal activities, or state regulatory requirement violations

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel.

d. Statutory Reference: Section 119.071(4)(d)2.b., and c., F.S.

(q) Judges, Magistrates, and Hearing Officers (State)

I. Administrative Law Judges, Magistrates, and Child Support Hearing Officers

a. Scope of Exemption: General magistrates, special magistrates, judges of compensation claims, administrative law judges of the Division of Administrative Hearings, and child support enforcement hearing officers

b. Information Exempted: Home addresses, dates of birth, and telephone numbers

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.g., F.S.

II. Court Justices and Judges

a. Scope of Exemption: Current or former Justices of the Supreme Court, district court of appeal judges, circuit court judges, and county court judges

b. Information Exempted: Home addresses, dates of birth, and telephone numbers

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of current or former justices and judges; and the names and locations of schools and day care facilities attended by the children of such justices and judges

d. Statutory Reference: Section 119.071(4)(d)2.e., F.S.

(r) Juvenile Justice Juvenile Probation and Detention Officers and Counselors

a. Scope of Exemption: Current or former juvenile probation officers and supervisors, detention superintendents and assistant superintendents, juvenile justice detention officers and supervisors, juvenile justice residential officers and supervisors, juvenile justice counselors, supervisors, and administrators, human services counselor administrators, rehabilitation therapists and social services counselors of the Department of Juvenile Justice

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.k., F.S.

(s) Law Enforcement and Correctional Personnel

a. Scope of Exemption: Active or former sworn law enforcement personnel or active or former civilian personnel employed by a law enforcement agency, including correctional and correctional probation officers

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.a., F.S.

(t) Personnel of the Department of Health with Specified Duties

a. Scope of Exemption: Current or former personnel of the Department of Health whose duties include, or result in, the determination or adjudication of eligibility for social security disability benefits, the investigation or prosecution of complaints filed against health care practitioners, or the inspection of health care practitioners or health care facilities licensed by the Department of Health

b. Information Exempted: Homes addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.o., F.S. See also s. 119.071(4)(d)2.a., F.S. (child abuse or neglect investigators).

(u) Prosecutors and Judges (Federal)

a. Scope of Exemption: Current or former United States attorneys, assistant United States attorneys, judges of the United States Courts of Appeal, United States district judges or United States magistrates if the individual submits to the agency having custody of such information a written request to exempt such information from public disclosure as well as a written statement that he or she has made reasonable efforts to protect such information from being accessible through other means available to the public

b. Information Exempted: Home address, telephone number and photograph

c. Family Information Exempted: Home address, telephone number, photograph, and place of employment of the spouse or child; and the name and location of the school or day care facility attended by the child of such attorney, judge or magistrate

d. Statutory Reference: Section 119.071(5)(i), F.S.

(v) Prosecutors (State)

a. Scope of Exemption: Current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.f., F.S.

(w) Public Defenders and Other Specified Counsel

a. Scope of Exemption: Current or former public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.l., F.S.

(x) Public Guardians

a. Scope of Exemption: Current or former public guardians and employees with fiduciary responsibility, as that term is defined in the exemption, who submit to the custodial agency a written request for maintenance of the exemption. The term “employee with fiduciary responsibility” means an employee of a public guardian who has the ability to direct any transactions of a ward’s funds, assets, or property; who under the supervision of the guardian, manages the care of the ward; or who makes any health care decision, as defined in s. 765.101, on behalf of the ward

b. Information Exempted: Home addresses, telephone numbers, dates of birth, places of employment, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such persons; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 744.21031, F.S.

(y) Revenue Collection and Enforcement or Child Support Enforcement

a. Scope of Exemption: Active or former personnel of the Department of Revenue or local governments whose duties include revenue collection and enforcement or child support enforcement

b. Information Exempted: Home addresses, telephone numbers, dates of birth, and photographs

c. Family Information Exempted: Names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel

d. Statutory Reference: Section 119.071(4)(d)2.a., F.S.

(2) Authority to Release Protected Information

The purpose of the s. 119.071(4)(d), F.S., exemption is to protect the safety of the enumerated individuals and their families by removing certain information relating to such individuals from the mandatory disclosure requirements of Ch. 119, F.S. AGO 10-37. And see AGOs 90-50 and 96-57. The statute makes these records exempt from mandatory disclosure requirements, not confidential; thus, an agency is not prohibited from disclosing the information in all circumstances. AGO 10-37.

However, in determining whether to disclose the information, the agency should consider the underlying purpose of the statute, i.e., safety of the listed individuals and their families. AGO 90-50. See also AGO 08-24. Cf. AGO 90-50, noting that the exemption does not prohibit an agency from “access to, and maintaining information on, its employees, including their names and addresses.”

In other words, a police department, in deciding whether to publicly release photographs of law enforcement personnel, should determine whether there is a statutory or substantial policy need for disclosure. AGO 07-21. In the absence of a statutory or other legal duty to be accomplished by disclosure, the agency should consider whether the release of such information is consistent with the purpose of the exemption afforded by s. 119.071(4)(d)2. Id. For example, a posting of the names, I.D. numbers and photographs of police officers in the hallway of the police department for public display would appear to be counter to the purpose of the exemption. AGO 90-50.

Similarly, in AGO 08-24, the Attorney General’s Office noted that the home addresses and other protected personal information of the spouses of law enforcement officers who are employed by the school board are exempt from disclosure under s. 119.071(4)(d)2., F.S., and therefore, the school board was not required to report such information to the certified bargaining representative. And see Henderson v. Perez, 835 So. 2d 390, 392 (Fla. 2d DCA 2003) (trial court order compelling sheriff to produce exempt home addresses and photographs of 10 active law enforcement officers in a civil lawsuit filed by Perez predicated on his arrest, quashed because “Perez has not shown that the photographs and home addresses of the law enforcement officers are essential to the prosecution of his suit”).

By contrast, information from the city personnel files which reveals the home addresses of former law enforcement personnel may be disclosed to the State Attorney’s office for the purpose of serving criminal witness subpoenas by mail pursuant to s. 48.031, F.S. Inf. Op. to Reese, April 25, 1989. Similarly, a police and firefighter pension board may release exempt employee information pursuant to a confidentiality agreement for use by a vendor that has contracted with the board to conduct cybersecurity testing of the board’s electronic data storage systems. AGO 19-08.

A 2017 Attorney General Opinion advised that a property appraiser may disclose the address of an alleged violator of the local code when a code inspector or code enforcement board is attempting to provide notice regarding the violation as required by s. 162.06, F.S. AGO 17-05. The code inspector’s statutory duty to notify an alleged code violator of a violation warrants use of an otherwise exempt address for the limited purpose of providing such notice and does not authorize further disclosure of the address. Id. Cf., s. 119.071(4)(d)7., F.S.(2021), brought into the statutes by s. 3, Ch. 21-215, Laws of Florida, providing that exempt information “may be disclosed pursuant to s. 28.2221[relating to exempt information in the Official Records] to a title insurer authorized pursuant to s. 624.401 and its affiliates as defined in s. 624.10; a title insurance agent or title insurance agency as defined in s. 626.841(1) or (2), respectively; or an attorney duly admitted to practice law in this state and in good standing with The Florida Bar.”

The s. 119.071(4)(d)2., F.S., exemption applies to public agencies, not private entities unless the private entity is acting on behalf of a public agency. Inf. Op. to Gomez, Nov. 3, 2008. Cf. s. 843.17, F.S., making it a misdemeanor to maliciously publish or disseminate, with intent to obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties, the residence address or telephone number of any law enforcement officer while designating the officer as such, without authorization of the agency which employs the officer. But see Brayshaw v. City of Tallahassee, Fla., 709 F. Supp. 2d 1244 (N.D. Fla. 2010), holding that s. 843.17, F.S., was unconstitutional on its face.

(3) Records Held by Agencies that are not the Employer of the Designated Officers or Employees

An agency that is the custodian of personal information specified in s. 119.071(4)(d)2., F.S., but is not the employer of the officer or employee, may maintain the exempt status of that information only if the officer or employee or the employing agency of the designated employee submits a written request for maintenance of the exemption to the custodial agency. Section 119.071(4)(d)3., F.S. See AGOs 97-67 (Official Records maintained by clerk of court), 04-18 (applying exemption when requested to petitions and campaign papers filed with supervisor of elections), and 04-20 (property appraiser). And see AGO 05-38 (request made to the property appraiser for an exemption from disclosure of personal information would follow the property appraiser’s records when they are relayed to the clerk of courts carrying out duties for the Value Adjustment Board).

The request must be notarized and state under oath the statutory basis for the individual’s exemption request and confirm the individual’s status as a party eligible for exempt status. Section 119.071(4)(d)3., F.S.

The provisions of s. 119.071(4)(d), F.S., should not be read “to impose a burden on employers to know the past law enforcement employment status of employees who may work for them in other capacities.” AGO 10-37. Thus, a former law enforcement officer from one municipality who is currently employed by another municipality in a non-law enforcement capacity must make a written request pursuant to s. 119.071(4)(d)3., F.S., that his or her personal information be maintained as exempt by the current employer. Id.

A request made pursuant to s. 119.071(4)(d)3., F.S., for maintenance of exempt information in court records or the official records must specify the document type, identification number, and page number of the court record or official record that contains the exempt information. Section 119.0714(2)(f) and (3)(f), F.S.

A covered officer or employee or other specified person may submit a written request for the release of his or her exempt information to the custodial agency. The written request must be notarized and must specify the information to be released and the party that is authorized to receive the information. Upon receipt of the written request, the custodial agency must release the specified information to the party authorized to receive such information. Section 119.071(4)(d)5., F.S. And see s. 119.071(4)(d)4., F.S., specifying duties of property appraisers and county tax collectors with respect to a request for maintenance of exempt status; s. 119.071(4)(d)8., F.S., providing that the exempt status of a home address contained in the Official Records is maintained only during the period when a protected party resides at the dwelling location; and s. 119.071(4)(d)9., F.S., providing procedures for a request for release of protected decedent’s removed information.

(4) Application of Exemption to:

(a) Telephone Numbers of Cellular Telephones Issued by Agencies

Cellular telephone numbers of telephones provided by the agency to law enforcement officers and used in performing law enforcement duties are not exempt from disclosure. Inf. Op. to Laquidara, July 17, 2003. In 2012, the Legislature amended s. 119.071(4)(d), F.S., to define the term “telephone numbers” as used in the exemption to include “home telephone numbers, personal cellular telephone numbers, personal pager telephone numbers, and telephone numbers associated with personal communications devices.” See s. 119.071(4)(d)1.b., F.S. As originally introduced, the 2012 legislation would have also included “telephone numbers associated with agency cellular telephones” within the definition of “telephone numbers.” See HB 629, filed November 10, 2011. However, this proposed language was removed from the original bill during the legislative process.

(b) List of Names of Designated Officers and Employees

While s. 119.071(4)(d)2., F.S., exempts home addresses and other personal information of the designated public officers and employees, it does not exempt the names of these officers and employees from public disclosure (although typically the names of the spouses and children are exempt). See, e.g., s. 119.071(4)(d)2.g., F.S. (names of spouses and children of code enforcement officers are exempt).

Accordingly, the Attorney General’s Office advised that if the property appraiser maintains a list of the names of officers and employees who have requested the exemption of their home addresses as authorized by s. 119.071(4)(d)3., F.S., this list is not exempt. AGO 08-29. Cf. s. 119.071(4)(d)4.a., F.S. (2021), relating to removal of the name of the individual who has requested exempt status and the instrument number or Official Records information identifying the property from publicly available records maintained by the tax collector or property appraiser.

However, as noted elsewhere in this manual, an agency is not required to create or reformat records in order to comply with a request under Ch. 119; the duty of the public records custodian is to provide access to existing records. See the discussion in pages 167-169.

(c) Prior Home Addresses

Section 119.071(4)(d)2., F.S., applies only to the current home address or addresses (including a current vacation home address) of the designated individuals. AGO 10-37.

(d) Maps Showing Physical Location of Homes

A property appraiser is precluded from making technology available to the public that would enable a user to view a map on the Internet showing the physical location of a law enforcement officer’s home, even though the map does not contain the actual home address of the officer, if the property appraiser has received a written exemption request from the officer. AGO 04-20. See also the definition of the term “home address” as defined in s. 119.071(4)(d)1.a., F.S.

(e) Home Addresses of Persons Who are not the Owner of the Property

The exemption applies to the home addresses, telephone numbers, and other personal information relating to the specified individuals “without regard to whether or not they own the real property at which they reside.” AGO 14-07.

(f) Booking Photographs

Section 119.071(4)(d), F.S., exempts the photograph of a current or former law enforcement officer, whether held by the employing agency or by a non-employing agency which has received a written request to maintain the exempt status of the record. Inf. Op. to Amunds, June 8, 2012. Thus, the agency should determine whether there is a statutory or substantial policy need for disclosure before releasing the booking photograph. Id. In the absence of a statutory or other legal duty to be accomplished by disclosure, an agency should consider whether the release of such information is consistent with the purpose of the exemption, i.e., the safety of law enforcement officers and their families. Id. See also AGOs 90-50 and 07-21. Cf. AGO 94-90 (statute did not preclude release of booking photograph of deputy who was not an undercover officer whose identity would otherwise be protected by s. 119.071(4)(c), F.S.).

o. Medical Information and Health Insurance Participant Information

(1) Medical Information and Medical Claims Records

Medical information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, would identify that officer or employee is exempt from s. 119.07(1), F.S. Section 119.071(4)(b)1., F.S. Such information may be disclosed if the person or the person’s legal representative provides written permission or pursuant to court order. Id. See AGO 98-17 (exemption “appears to extend to governmental employees the protection for personal medical records that is generally enjoyed by private sector employees”). Cf. Delaurentos v. Peguero, 47 So. 3d 879, 881 (Fla. 3d DCA 2010) (s. 119.071[4][b]1., “simply provides an exemption in the event that a citizen makes a public records request for medical records;” but does not “create a privilege which would insulate such records from discovery in litigation”).

Public school system employee medical records, including psychiatric and psychological records, are confidential and exempt from s. 119.07(1), F.S. Section 1012.31(3)(a)5., F.S.

Every employer who provides or administers health insurance benefits or life insurance benefits to its employees shall maintain the confidentiality of information relating to the medical condition or status of any person covered by such insurance benefits. Such information is exempt from s. 119.07(1), F.S. Section 760.50(5), F.S.

Patient medical records and medical claims records of current or former employees and eligible dependents enrolled in group insurance plans of specified governmental entities are confidential and exempt from s. 119.07(1), F.S.; such records shall not be furnished to any person other than the employee or the employee’s legal representative, except as authorized in the subsection. Sections 110.123(10) (state employees), 112.08(7) (county or municipal employees), and 112.08(8) (water management district employees), F.S. See AGO 91-88, citing to News-Press Company, Inc. v. Kaune, 511 So. 2d 1023 (Fla. 2d DCA 1987), stating that the exemption applies broadly and is not limited solely to medical records filed in conjunction with an employee’s participation in a group insurance plan; rather, the exemption applies to all medical records relating to employees enrolled in a group insurance plan. And see AGOs 01-33 (confidentiality of patient records at medical clinic owned and operated by city for the use and benefit of its employees); 94-78 (monthly printout of medical claims paid under city group health insurance plan that identifies the public employees who obtained medical services and the amounts of the claims, together with some account information, is exempt from public inspection), and 94-51 (agency “should be vigilant in its protection of the confidentiality provided by statute for medical records of [its] employees”).

(2) Health Insurance Participant Information

While “information relating to an insurance program participant’s medical condition is protected from disclosure... there is no clear statement that such protection extends to the name, address, age, or other non-medical information of such participants.” Inf. Op. to Dockery, November 10, 2008.

Subsequent to the issuance of this opinion, the Legislature enacted an exemption for personal identifying information of a dependent child of a current or former officer or employee of an agency, whose dependent child (as defined in s. 409.2554, F.S.) is insured by the agency’s group insurance plan. Section 119.071(4)(b)2., F.S. However, while personal identifying information relating to the dependent child’s participation in an agency’s group insurance plan is now confidential, personal identifying information relating to the current or former officer’s or employee’s participation in such plan is subject to disclosure. Cf. s. 110.12301(3), F.S., providing confidentiality for records collected for purposes of dependent eligibility verification services conducted for the state group insurance program and held by the Department of Management Services.

p. Payroll Deduction Records

There is no general exemption from disclosure that applies to agency payroll deduction records. However, public school system employee payroll deduction records are confidential. Section 1012.31(3)(a)4., F.S. See AGO 09-11 (tax information [such as Federal Withholding Tax Deduction, FICA Tax Deduction and the Medicare Tax Deduction] of a public school system employee would appear to constitute payroll deduction records and would be confidential and exempt from disclosure pursuant to s. 1012.31[3][a]4., F.S.).

q. Retiree Lists

The names and addresses of retirees are confidential and exempt from s. 119.07(1), F.S., to the extent that no state or local governmental agency may provide the names or addresses of such persons in aggregate, compiled or list form except to public agencies engaged in official business, to collective bargaining agents or to retiree organizations for official business use. Section 121.031(5), F.S. “Any person may view or copy any individual’s retirement records at the Department of Management Services, one record at a time, or may obtain information by a separate written request for a named individual for which information is desired.” Id. Cf. s. 121.4501(19), F.S. (personal identifying information of members in the investment plan contained in Florida Retirement System records held by the State Board of Administration or the Department of Management Services is exempt).

Section 121.021(60), F.S., defines the term “retiree” to mean “a former member of the Florida Retirement System or an existing system who has terminated employment and is receiving benefit payments from the system in which he or she was a member.” Accordingly, the s. 121.031(5) exemption does not apply to employees who are participants in the Deferred Retirement Option Program (DROP); DROP participants “are not retirees since they have not terminated their employment.” Palm Beach Newspapers, Inc. v. School Board of Palm Beach County, No. 502007CA020000XXXXMB (Fla. 15th Cir. Ct. November 28, 2007), available online in the Cases database at the open government site at MyFloridaLegal.com.

r. Salary Records

Salary and other information relating to compensation is subject to disclosure. Lewis v. Schreiber, No. 92-8005(03) (Fla. 17th Cir. Ct. June 12, 1992), per curiam affirmed, 611 So. 2d 531 (Fla. 4th DCA 1992), available online in the Cases database at the open government site at MyFloridaLegal.com. Accord AGOs 80-92 and 73-30.

s. Travel Records

Travel vouchers are open to public inspection, after redaction of exempt material such as credit card account numbers (s. 119.071[5][b], F.S.) or social security numbers (ss. 119.071[4] a] and [5][a]F.S). See Shevin v. Byron, Harless, Schaffer, Reid and Associates, 379 So. 2d 633 (Fla. 1980). See also AGO 72-356 (travel itineraries and plane reservations for use of state aircraft are public records). Cf. Executive Office of the Governor v. AHF MCO of Florida, Inc., 257 So. 3d 612 (Fla. 1st DCA 2019), finding that premature disclosure of prospective information relating to the Governor’s detailed schedule and travel plans would reveal surveillance techniques, procedures, or personnel which are exempt pursuant to s. 119.071(2)(d), F.S.

t. Undercover Personnel of Criminal Justice Agencies

Please refer to the discussion of this topic on page 120.

Footnotes

Note: In AGO 96-57, the Attorney General’s Office concluded that this exemption should be construed as including personnel whose duties include both revenue collection and enforcement, as opposed to those personnel whose duties include only revenue collection or only revenue enforcement.

§2-C-19 | SECURITY SYSTEM INFORMATION AND BLUEPRINTS

a. Blueprints

Section 119.071(3)(b)1., F.S., exempts building plans, blueprints, schematic drawings, and diagrams which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency. Exempt information may be disclosed to another governmental entity, to a licensed professional performing work on the structure, or upon a showing of good cause to a court. Section 119.071(3)(b)3., F.S. Exempt documents may also be released in order to comply with competitive bidding requirements. AGO 02-74. However, the entities or persons receiving such information must maintain its exempt status. Id. And see 119.071(3)(e), F.S. (exemption for records which depict structural elements of 911, E911 or public safety radio communications system infrastructure, structures, or facilities owned and operated by an agency; and geographical maps indicating actual or proposed locations of such infrastructure, structures, or facilities).

Section 119.071(3)(c)1., F.S., exempts building plans, blueprints, schematic drawings and diagrams which depict the internal layout or structural elements of various attractions, retail, resort, office, health care facilities, and industrial complexes and developments when the records are held by an agency. The exemption afforded by this statute, however, does not apply to comprehensive plans or site plans, or amendments thereto, which are submitted for approval or which have been approved under local land development regulations, local zoning regulations, or development of regional impact review. Section 119.071(3)(c)4., F.S. And see s. 119.071(3) (d) (information relating to the National Public Safety Broadband Network deemed confidential if disclosure would reveal information set forth in the exemption)

b. Security System Records

Information relating to the security or fire-safety systems for property owned by or leased to the state or any of its political subdivisions is confidential and exempt from disclosure. Section 281.301, F.S. Exempt information includes all records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to or revealing such security systems or information. Id.

The exemption extends to information relating to or revealing the security or fire-safety systems for property owned or leased by the state or its political subdivisions, and also to such information concerning privately owned or leased property which is in the possession of an agency. AGOs 01-75 and 93-86, and Inf. Op. to Sherman, July 2, 2018. See also ss. 331.22, F.S. (airport security plans); s. 311.13, F.S. (seaport security plans); and 1004.0962(2), F.S. (campus emergency response of postsecondary education institution).

Section 119.071(3)(a), F.S., provides a similar exemption from disclosure for a security or fire-safety system plan of a private or public entity that is held by an agency. The information may be disclosed to the property owner or leaseholder; in furtherance of the official duties and responsibilities of the agency holding the information; to another local, state or federal agency in furtherance of that agency’s official duties and responsibilities; or upon a showing of good cause before a court.

The term “security or fire-safety system plan” includes: records relating directly to the physical security or fire-safety of the facility or revealing security or fire-safety systems; threat assessments conducted by an agency or private entity; threat response plans; emergency evacuation plans; sheltering arrangements; or security or fire-safety manuals. Id. Cf. Marino v. University of Florida, 107 So. 3d 1231 (Fla. 1st DCA 2013), in which the court rejected a university’s contention that it could withhold the location of animal research facilities based on a determination that the nature of the public activities occurring at the facility subjects them to physical threats.

(1) Security System (Alarm) Permits and Applications

Sections 281.301 and 119.071(3)(a), F.S., prohibit public disclosure of the name and address of applicants for security system permits, of persons cited for violations of alarm ordinances, and of individuals who are the subject of law enforcement dispatch reports for verified or false alarms “because disclosure would imperil the safety of persons and property.” Critical Intervention Services, Inc. v. City of Clearwater, 908 So. 2d 1195, 1197 (Fla. 2d DCA 2005). Accord AGO 04-28.

(2) Surveillance Video Recordings

The term “security or fire-safety system plan” as used in s. 119.071(3)(a)1., F.S., includes “audio and visual presentations... relating directly to the physical security or fire-safety of the facility or revealing security or fire-safety systems.” Video footage captured by city bus cameras “directly relates to and reveals information about a security system” and thus was determined to be confidential and exempt from disclosure by ss. 281.301 and 119.071(3)(a), F.S. Central Florida Regional Transportation Authority v. Post-Newsweek Stations, Orlando, Inc., 157 So. 3d 401 (Fla. 5th DCA 2015). The videos “reveal the capabilities—and as a corollary, the vulnerabilities” of the security system. Id. at 405. And see AGO 15-06, relying on Central Florida Regional Transportation Authority, and applying the exemption to surveillance tapes from a security system for a public transit authority building. Cf. Gonzalez v. State, 240 So. 3d 99 (Fla. 2d DCA 2018) (in the absence of an in camera inspection of the requested records [CDs] the circuit court could not conclude that the contents were exempt from disclosure under s. 119.071(3)(a)2., or s. 281.301; nor could it determine whether redaction was possible); and City of Miami v. Blanco, 336 So. 3d 1268 (Fla. 3d DCA 2022) (trial court departed from essential requirements of law by failing to conduct in camera review before granting defendant’s motion to compel and/or for a subpoena for video camera recordings taken at police station following his arrest; without an in camera inspection, the judge could not determine whether the video recordings fell within the security plan exemption).

Video footage from surveillance cameras at a high school “relates directly” to the security system at the school, including both its capabilities and its vulnerabilities, and thus is confidential and exempt from disclosure unless one of the exceptions to the exemption applies. State Attorney’s Office of the Seventeenth Judicial Circuit v. Cable News Network, Inc., 251 So. 3d 205 (Fla. 4th DCA 2018). As previously discussed on pages 153-154, there are several exceptions to this confidentiality provision, including a court order issued upon a showing of good cause. In State Attorney’s Office, the appellate court affirmed the trial judge’s order mandating release of surveillance video from a school shooting where 17 students and staff were killed. The court found that the media had established good cause because the footage revealed the conduct of public servants in the discharge of their duties and also provided “insight” into the high school’s security “net” that failed to protect the students and staff. Id. at 215.

By contrast, the First District overturned the trial court’s determination that a news organization had shown good cause to obtain security footage from two correctional institutions. Florida Department of Corrections v. Miami Herald Media Company, 278 So. 3d 786 (Fla. 1st DCA 2019). At the hearing, the Miami Herald advised that it no longer needed the video recordings as they were no longer newsworthy. Nevertheless the court still found that the Herald had satisfied the statutory exception to confidentiality, noting the awards the journalist received for her reporting on prison issues, and that this fact, combined with the “extremely important right of freedom of the press” constituted good cause. The appellate court reversed, finding that the Herald “extinguished any claim to good cause when it unambiguously renounced its need for the video footage.” 278 So. 3d at 790.

c. Cybersecurity

Section 119.01(2)(a), F.S., states that agencies “must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law.” Cf. AGO 19-08 (pension board authorized to release nonpublic personnel information pursuant to a confidentiality agreement with a vendor conducting cybersecurity testing of the board’s electronic data storage systems).

Accordingly, an agency is not required to provide direct access to the agency’s electronic records through a hard drive provided by a requester, but must otherwise allow inspection and copying of such records in a manner which will accommodate the request, but protect from disclosure exempt or confidential materials. AGO 13-07. And see Rea v. Sansbury, 504 So. 2d 1315, 1317-1318 (Fla. 4th DCA 1987), review denied, 513 So. 2d 1063 (Fla. 1987) (while county possesses statutory authority to facilitate inspection of public records by electronic means, this “does not mean that every means adopted by the county to facilitate the work of county employees ipso facto requires that the public be allowed to participate therein”).

Section 119.0725(2), F.S., provides that the following information held by an agency is confidential:

coverage limits and deductible or self-insurance amounts of insurance or other risk mitigation coverages acquired for the protection of information technology systems, operational technology systems, or data of an agency;
information relating to critical infrastructure;
cybersecurity incident information reported pursuant to s. 282.318 or 282.3185, F.S.;
network schematics, hardware and software configurations, or encryption information or information that identifies detection, investigation, or response practices for suspected or confirmed cybersecurity incidents, including suspected or confirmed breaches, if the disclosure of such information would facilitate unauthorized access to or unauthorized modification, disclosure, or destruction of data or information or information technology resources. Key terms used in this exemption such as “information technology” and “incident” are defined in s. 119.0725(1), F.S. Section 119.0725(5)(a), F.S., specifies agencies authorized to receive confidential information.

There are other exemptions which address cybersecurity issues. For example, s. 282.318(4), F.S., requires state agencies, as defined in the statute, to conduct risk assessments, and internal audits, as well as to develop policies and procedures to address cybersecurity issues. This section also contains exemptions for records relating to these functions. See s. 282.318(4)(d), (e), and (g), and (5), F.S. And see s. 119.0713(5)(a), F.S. (records relating to security of information technology systems of local government owned or operated utilities); s. 627.352 (Citizens Property Insurance Corporation) and s. 1004.055(1), F.S. (state postsecondary education institutions). Secure login credentials held by the Department of Highway Safety and Motor Vehicles are exempt, as are Internet protocol addresses, geolocation data, and other information from which a user accesses a public facing portal. Section 119.0712(2)(f), F.S. And see the discussion of the exemptions from the Sunshine Law for cybersecurity meetings found on pages 36-37.

d. School System Security

Section 943.082(1), F.S., requires the Florida Department of Law Enforcement to acquire a mobile suspicious activity reporting tool that allows students and the community to relay information anonymously concerning unsafe, potentially harmful, dangerous, violent, or criminal activities, or the threat of these activities to appropriate public safety agencies and school officials. The identity of the reporting party received through the reporting tool and held by the department, law enforcement agencies, or school officials is confidential and exempt. Section 943.082(6), F.S. Any other information received through the reporting tool and held by the above agencies is exempt. Id. And see ss. 1004.0962(2), F.S. (campus emergency response held by a public postsecondary institution or specified agencies is exempt from disclosure); and 1004.055(1) (certain security incident information records held by state postsecondary education institution).

Any information that would identify whether an individual has been appointed as a safe school officer pursuant to s. 1006.12, F.S., held by a law enforcement agency, school district, or charter school is exempt. Section 1006.12(8), F.S. See also s. 119.071(3)(a), F.S., providing an exemption for agency security system plans, discussed on pages 155-156.

§2-C-20 | SOCIAL SECURITY NUMBERS

Section 119.071(5)(a)5., F.S., states that social security numbers held by an agency are confidential and exempt from public disclosure requirements. See Department of Health v. Rehabilitation Center at Hollywood Hills, 259 So. 3d 979, 981 (Fla. 1st DCA 2018), noting the confidential status of social security numbers.

The exemption does not supersede any federal law prohibiting the release of social security numbers or any other applicable public records exemptions for such numbers. Section 119.071(5) (a)5., F.S. See, e.g., s. 193.114(5), F.S. (social security number submitted on an application for a tax exemption is confidential); and s. 119.071(4)(a), F.S. (social security numbers of current and former employees held by the employing agency are confidential and exempt from disclosure). And see s. 119.0714, F.S., regarding confidentiality of social security numbers in court records and in the official records.

Section 119.071(5)(a)6., F.S, authorizes disclosure of social security numbers under certain conditions. In addition, s. 119.071(5)(a)7.b., F.S., states that an agency may not deny a commercial entity engaged in “commercial activity,” as defined in the exemption, access to social security numbers, “provided the social security numbers will be used only in the performance of a commercial activity and provided the commercial entity makes a written request for the social security numbers.” “Commercial activity” does not include the display or bulk sale of social security numbers to the public or the distribution of such numbers to any customer not identifiable by the commercial entity. Section 119.071(5)(a)7.a.(I), F.S. See Inf. Op. to Carland, January 12, 2012 (teacher union’s access to social security numbers maintained by school district limited to those social security numbers which will be used to verify the accuracy of numbers which the union has already received in the normal course of business) and AGO 19-08 (pension board authorized to release social security numbers pursuant to a confidentiality agreement to a vendor conducting cybersecurity testing on the board’s electronic data storage systems).

The written request must be verified as provided in Florida law and meet the other requirements specified in the exemption. See Florida Department of Education v. NYT Management Services, Inc., 895 So. 2d 1151 (Fla. 1st DCA 2005). See also AGO 10-06 (agency authorized to request additional information that is reasonably necessary to verify the identity of the commercial entity and the specific purposes for which the social security numbers will be used).

§2-C-21 | TELEPHONE RECORDS

Records of telephone calls made from agency telephones are subject to disclosure in the absence of statutory exemption. See Gillum v. Times Publishing Company, No. 91-2689-CA (Fla. 6th Cir. Ct. July 10, 1991). See also Media General Operation, Inc. v. Feeney, 849 So. 2d 3, 6 (Fla. 1st DCA 2003), rejecting the argument that redaction of telephone numbers for calls made in the course of official business could be justified because disclosure could result in “unreasonable consequences” to the persons called. Cf. s. 119.071(5)(d), F.S. (all records supplied by a telecommunications company, as defined by s. 364.02, F.S., to an agency which contain the name, address, and telephone number of subscribers are confidential and exempt). And see Inf. to Michelson, January 27, 1992 (cellular telephone company which provided city with statements reflecting amount of usage of cell phones by city staff rather than listing individual calls, did not appear to be an “agency” for purposes of Ch. 119, F.S., making company’s records of individual calls subject to disclosure).

In Bill of Rights, Inc. v. City of New Smyrna Beach, No. 2009-20218-CINS (Fla. 7th Cir. Ct. April 8, 2010), available online in the Cases database at the open government site at MyFloridaLegal.com, the court stated that “as a matter of law,... billing documents regarding personal calls made and received by city employees on city-owned or city-leased cellular telephones are public records, when those documents are received and maintained in connection with the transaction of official business; and, the ‘official business’ of a city includes paying for telephone service and obtaining reimbursement from employees for personal calls.” Compare Media General Operation, Inc. v. Feeney, supra, in which the court held that under the circumstances of that case (involving access to records of cellular phone service provided by a political party for legislative employees), records of personal or private calls of the employees fell outside the definition of public records.

Additionally, in responding to a question from a police department regarding the provisions of Ch. 934, F.S., (interception of wire and oral communications), the Attorney General’s Office advised that recordings of telephone conversations made by the police department in the usual course of business would be public records subject to the inspection, copying, and retention requirements of Ch. 119, F.S. AGO 12-07. “Any such public records would likewise be subject to the exemption and confidentiality provisions of the Public Records Law.” Id. And see Morris Publishing Group, LLC v. State, 154 So. 3d 528, 532 (Fla. 1st DCA 2015), review denied, 163 So. 3d 512 (Fla. 2015) (“No one disputes” that phone recordings of telephone calls made by the defendant while incarcerated and provided in criminal discovery were public records). Compare Bent v. State, 46 So. 3d 1047 (Fla. 4th DCA 2010) (recordings of personal telephone calls between minors in jail awaiting trial and third parties made by sheriff’s office are not public records when contents of the phone calls do not involve criminal activity or a security breach).

§2-C-22 | TRADE SECRETS AND PROPRIETARY CONFIDENTIAL BUSINESS INFORMATION

a. Trade Secrets

Prior to the adoption of s. 119.0715, F.S., “documents submitted by a private party which constitute trade secrets as defined in s. 812.081,” F.S., and which were stamped as confidential at the time of submission to an agency by a private party, were found to be not subject to public access. Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781, 784(Fla. 1st DCA 2003), review denied sub nom., Crist v. Florida Department of Environmental Protection, 911 So. 2d 792 (Fla. 2005). And see Seta Corporation of Boca, Inc. v. Office of the Attorney General, 756 So. 2d 1093 (Fla. 4th DCA 2000).

Section 119.0715(2), F.S., now expressly provides that a “trade secret held by an agency” is confidential and exempt from disclosure. An agency may disclose a trade secret to an officer or employee of another agency or government entity whose use of the trade secret is within the scope of his or her lawful duties and responsibilities. Section 119.0715(3), F.S.

The term “trade secret” has the same meaning as in s. 688.002, F.S. Section 119.0715(1), F.S. Section 688.002(4), F.S., defines “trade secret” to mean information, including a formula, pattern, compilation, program, device, method, technique, or process that:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The trial court’s conclusion as to whether specific information constitutes a trade secret “rests on factual determinations that are assailable on appeal only if unsupported by competent, substantial evidence.” Sepro, 839 So. 2d at 785. Cf. Managed Care of North America, Inc. v. Florida Healthy Kids Corporation, at 286 So. 3d at 859 (appellate court’s role is to strictly construe the statutory definition of trade secret, and determine if competent, substantial evidence exists to support the factual findings of the trial court; the trial court’s interpretation of a statute and its application of the law to facts are subject to de novo review); Office of Insurance Regulation v. State Farm Florida Insurance Company, 213 So. 3d 1104 (Fla. 1st DCA 2017) (trial court’s conclusion that insurance policy statistics submitted to the Office of Insurance Regulation had “independent economic value” within the meaning of the statutory definition of trade secret in s. 688.002(4), F.S., was supported by competent, substantial evidence). Cf. Surterra Florida, LLC v. Florida Department of Health, 223 So. 3d 376 (Fla. 1st DCA 2017) (affirming trial court’s finding that identities of investors and partners listed in applications to dispense medical cannabis were not trade secrets because the applicants “did not prove” that this information constituted a trade secret). And see Barfield v. Florida Department of Health, No. 2015 CA 003014 (Fla. 2d Cir. Ct. October 27, 2017), available online in the Cases database at the open government site at MyFloridaLegal.com (identity of consultants and related information contained in application to dispense medical cannabis qualified as a trade secret).

Similarly, the Fourth District upheld the trial court’s determination, after an in camera inspection, that the aggregate number of airport pick-ups by a transportation service company and the sums of money paid to the county pursuant to a license agreement between the company and the county did not constitute trade secret information. Rasier-DC, LLC v. B & L Service, Inc., 237 So. 3d 374 (Fla. 4th DCA 2018). The court also found that a provision in the agreement requiring that the county maintain the confidentiality of the company’s trade secret information and assert the exempt status in response to a public records request could not transform the information into a confidential record, citing to National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201, 1208 (Fla. 1st DCA 2009). And see James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A., v. Rodale, Inc., 41 So. 3d 386, 389 (Fla. 1st DCA 2010), rejecting a company’s claim that information in customer complaints and company responses were trade secrets; noting that such information “is not secret and is not [the company’s] to control;”Allstate Floridian Ins. Co. v. Office of Ins. Regulation, 981 So. 2d 617 (Fla. 1st DCA 2008), review denied, 987 So. 2d 79 (Fla. 2008) (to the extent Allstate believed any documents sought by the Office of Insurance Regulation were privileged as trade secrets, Allstate was required to timely seek a protective order in circuit court). Cf. Inf. Op. to Brown, March 11, 2016 (if an agency has received material that the sender has identified as “trade secret” and the material does not appear to meet the statutory definition of trade secret, the agency should advise the sender “that it has a received a public request and will release the records and allow the sender to seek a protective order for those materials”)

In addition to the general trade secret exemption in s. 119.0715, there are also specific trade secret exemptions. See, e.g., s. 570.544(8), F.S. (records of the Division of Consumer Services of the Department of Agriculture and Consumer Services are public records; however, customer lists, customer names, and trade secrets are confidential and exempt). Cf. AGO 09-02 (s. 581.199, F.S., prohibits authorized representatives of Division of Plant Industry in Department of Agriculture and Consumer Services from disclosing trade secrets obtained in carrying out their duties under Ch. 581 to any unauthorized person, provided such trade secrets fall within the statutory definition in s. 812.081, F.S., and owner of the trade secrets has taken measures to maintain the information’s secrecy). More information about these exemptions may be found in the summaries located in Appendix D.

b. Proprietary Confidential Business Information

While there is no generic exemption for information claimed to be “proprietary confidential business information,” the Legislature has created a number of exemptions from Ch. 119, F.S., for proprietary confidential business information held by certain agencies. The term is generally defined by the statute creating the exemption and frequently includes trade secrets. See, e.g., s. 288.075, F.S. (economic development agency); s. 288.9626, F.S. (Florida Opportunity Fund); and ss. 364.183, 366.093, 367.156, and 368.108, F.S. (Public Service Commission). Cf. Florida Power & Light Company v. Public Service Commission, 31 So. 3d 860 (Fla. 1st DCA 2010) (listed categories of proprietary confidential business information in s. 366.093, F.S., as exempt are not exhaustive; information relating to employees’ compensation warranted confidential classification as it would have impaired utility’s competitive interests). Compare Southern Bell Telephone and Telegraph Company v. Beard, 597 So. 2d 873, 876 (Fla. 1st DCA 1992) (Public Service Commission’s determination that statutory exemption for proprietary confidential business information should be narrowly construed and did not apply to company’s internal self-analysis was “consistent with the liberal construction afforded the Public Records Act in favor of open government”). And see AGO 08-14 (lease payment amount made by a private company to the city does not constitute “proprietary confidential business information”).

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.”).

§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.

§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”).

§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.

§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).

§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).

§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).

§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).

§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).

§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”).

§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.

§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.

§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.

§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.

§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).

§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).

§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.

§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).

Subpart 2-E
Statutory Exemptions

§2-E-1 | CREATION OF EXEMPTIONS

“Courts cannot judicially create any exceptions, or exclusions to Florida’s Public Records Act.” Board of County Commissioners of Palm Beach County v. D.B., 784 So. 2d 585, 591 (Fla. 4th DCA 2001). Wait v. Florida Power and Light Company, 372 So. 2d 420, 425 (Fla. 1979) (Public Records Act “excludes any judicially created privilege of confidentiality;” only the Legislature may exempt records from public disclosure). Accord Wait v. Florida Power and Light Company, 372 So. 2d 420, 425 (Fla. 1979) (Public Records Act “excludes any judicially created privilege of confidentiality;” only the Legislature may exempt records from public disclosure). See s. 119.011(8), F.S., defining the term “exemption” to mean “a provision of general law which provides that a specified record or meeting, or portion thereof, is not subject to the access requirements of s. 119.07(1), s. 286.011, or s. 24, Art. I of the State Constitution.”

Article I, s. 24(c), Fla. Const., authorizes the Legislature to enact general laws creating exemptions provided that such laws “shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law.” “The Constitution allows for the legislature, not the courts to provide for exceptions to the public records act.” Cruz v. State, 297 So. 3d 154 (Fla. 4th DCA 2019). See Halifax Hospital Medical Center v. News-Journal Corporation, 724 So. 2d 567 (Fla. 1999) (statute providing an exemption from the Sunshine Law for portions of hospital board meetings is unconstitutional because it does not meet the constitutional standard of specificity as to stated public necessity and it is broader than necessary to achieve its purpose). Compare Memorial Hospital-West Volusia v. News-Journal Corporation, 729 So. 2d 373, 380 (Fla. 1999), in which the Court refused to “imply” an exemption from open records requirements, stating “we believe that an exemption from public records access is available only after the legislature has followed the express procedure provided in article I, section 24(c) of the Florida Constitution.” And see Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388, 395 (Fla. 5th DCA 2002), review denied, 848 So. 2d 1153 (Fla. 2003) (statutory exemption for autopsy photographs serves identifiable public purpose and is no broader than necessary to meet that public purpose); Bryan v. State, 753 So. 2d 1244 (Fla. 2000) (statute exempting from public disclosure certain prison records satisfies the constitutional standard because the Legislature set forth the requisite public necessity [personal safety of prison officials and inmates] for the exemption); and State, Department of Financial Services v. Danahy & Murray, P.A., 246 So. 3d 466 (Fla. 1st DCA 2018) (distinguishing Halifax and finding that a statute exempting certain information held by the Department of Financial Services under the Florida Insurance Code met the constitutional standard in Article I s. 24[c], Fla. Const.).

Laws enacted pursuant to Art. I, s. 24, Fla. Const., shall relate to one subject and must contain only exemptions or provisions governing enforcement. Cf. State v. Knight, 661 So. 2d 344 (Fla. 4th DCA 1995) (while exemptions when enacted must contain a public necessity statement, exceptions to an exemption are not required to contain such a statement; thus, a trial judge erred in overturning a statute providing a limited exception to the public records exemption for grand jury materials).

Article I, s. 24(c) also requires that laws providing exemptions from public records or public meetings requirements must be passed by a two-thirds vote of each house. The two-thirds vote requirement applies when an exemption is readopted in accordance with the Open Government Sunset Review Act, s. 119.15, F.S., as well as to the initial creation of an exemption. AGO 03-18.

In accordance with s. 24(d), all statutory exemptions in effect on July 1, 1993, are grandfathered into the statutes and remain in effect until they are repealed. Rules of court in effect on November 3, 1992, that limit access to records remain in effect until repealed. See Rule 2.420, Fla. R. Gen. Prac & Jud. Admin. (originally adopted by the Florida Supreme Court on October 29, 1992, as Rule 2.051, and subsequently renumbered in 2006 as Rule 2.420). Rule 2.420 may be accessed online at www.floridabar.org.

The Open Government Sunset Review Act, codified at s. 119.15, F.S., provides for the review and repeal or reenactment of an exemption from s. 24, Art. I, Fla. Const., and s. 119.07(1), or s. 286.011, F.S. The act does not apply to an exemption that is required by federal law or applies solely to the Legislature or the State Court System. Section 119.15(2)(a) and (b), F.S. Pursuant to the Act, in the fifth year after enactment of a new exemption or expansion of an existing exemption, the exemption shall be repealed on October 2 of the fifth year, unless the Legislature acts to reenact the exemption. Section 119.15(3), F.S.

§2-E-2 | STRICT CONSTRUCTION

The general purpose of Ch. 119, F.S., “is to open public records to allow Florida’s citizens to discover the actions of their government.” Christy v. Palm Beach County Sheriff ‘s Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997). “Because Florida’s public policy favors disclosure, “the Public Records Act is construed liberally in favor of openness, and exemptions from disclosure are construed narrowly and limited to their designated purpose.” City of Miami Beach v. Miami New Times, LLC, 314 So. 3d 562, 565 (Fla. 3d DCA 2020), quoting from Rameses, Inc. v. Demings, 29 So. 3d 418, 421 (Fla. 5th DCA 2010). See also National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201, 1206 (Fla.1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010); Krischer v. D’Amato, 674 So. 2d 909, 911 (Fla. 4th DCA 1996); Tribune Company v. Public Records, 493 So. 2d 480, 483 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987).

An agency claiming an exemption from disclosure bears the burden of proving the right to an exemption. See Barfield v. School Board of Manatee County, 135 So. 3d 560, 562 (Fla. 2d DCA 2014); Woolling v. Lamar, 764 So. 2d 765, 768 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186 (Fla. 2001); Barfield v. City of Fort Lauderdale Police Department, 639 So. 2d 1012, 1015 (Fla. 4th DCA), review denied, 649 So. 2d 869 (Fla. 1994); and Florida Freedom Newspapers, Inc. v. Dempsey, 478 So. 2d 1128, 1130 (Fla. 1st DCA 1985). See also Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775, 780n.1 (Fla. 4th DCA 1985), review denied, 488 So. 2d 67 (Fla. 1986); Tribune Company v. Public Records, supra, stating that doubt as to the applicability of an exemption should be resolved in favor of disclosure rather than secrecy. And see Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 492, noting that the judiciary cannot create a privilege of confidentiality to accommodate the desires of government and that “[a]n open government is crucial to the citizens’ ability to adequately evaluate the decisions of elected and appointed officials”; rather the “right to access public documents is virtually unfettered, save only the statutory exemptions designed to achieve a balance between an informed public and the ability of the government to maintain secrecy in the public interest.” Accord AGO 80-78 (“policy considerations” do not, standing alone, justify nondisclosure of public records).

§2-E-3 | RETROACTIVE APPLICATION OF NEW EXEMPTIONS

Access to public records is a substantive right. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 784 So. 2d 438 (Fla. 2001). Thus, a statute affecting that right is presumptively prospective and there must be a clear legislative intent for the statute to apply retroactively. Id. Generally, the critical date in determining whether a document is subject to disclosure is the date the public records request is made; the law in effect on that date applies. Baker County Press, Inc. v. Baker County Medical Services, 870 So. 2d 189, 192-193 (Fla. 1st DCA 2004).

However, if the Legislature is “clear in its intent,” an exemption may be applied retroactively. Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388, 396 (Fla. 5th DCA 2002), review denied, 848 So. 2d 1153 (Fla. 2003) (statute exempting autopsy photographs from disclosure is remedial and may be retroactively applied). See also Palm Beach County Sheriff’s Office v. Sun-Sentinel Company, LLC, 226 So. 3d 969 (Fla. 4th DCA 2017); City of Orlando v. Desjardins, 493 So. 2d 1027, 1028 (Fla. 1986); and Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996). Cf. Cebrian By and Through Cebrian v. Klein, 614 So. 2d 1209 (Fla. 4th DCA 1993) (amendment to child abuse statute limiting access to unfounded reports was remedial in nature and therefore applied retroactively); AGO 11-16 (applying exemption to a public records request received before the statute’s effective date because the legislation creating the exemption states that it “applies to information held by an agency, before, on, or after the effective date of this exemption”); and AGO 94-70 (amendment to expungement statute appears to be remedial and, therefore, should be retroactively applied to those records ordered expunged prior to the effective date of the amendment).

§2-E-4 | RETROACTIVE APPLICATION OF STATUTES ELIMINATING CONFIDENTIALITY

In Baker v. Eckerd Corporation, 697 So. 2d 970 (Fla. 2d DCA 1997), the court held that an amendment eliminating protection against disclosure of certain records applies prospectively from the effective date of the amendment. See also AGO 95-19 (expanded disclosure provisions for juvenile records apply only to records created after the effective date of the amendment); and Coventry First, LLC v. Office of Insurance Regulation, 30 So. 3d 552 (Fla. 1st DCA 2010) (although intended to apply retroactively, statutory amendment imposing a time limitation on the exempt status of certain records submitted to an agency applied prospectively since retroactive application improperly deprived company of its vested property rights in records already submitted to the agency).

Records made before the date of a repeal of an exemption under s. 119.15, F.S., the Open Government Sunset Review Act, “may not be made public unless otherwise provided by law.” Section 119.15(7), F.S.

§2-E-5 | DIFFERENCE BETWEEN EXEMPT AND CONFIDENTIAL RECORDS

a. Confidential Records

There is a difference between records the Legislature has determined to be exempt from the Public Records Act and those which the Legislature has determined to be exempt from the Act and confidential. WFTV, Inc. v. School Board of Seminole County, 874 So. 2d 48, 53 (Fla. 5th DCA 2004), review denied, 892 So. 2d 1015 (Fla. 2004). And see State v. Wooten, 260 So. 3d 1060, 1069-1070 (Fla. 4th DCA 2018) (Ch. 119, F.S., refers to both “exempt” records and records which are “confidential and exempt”).

If information is made confidential in the statutes, the information is not subject to inspection by the public and may be released only to those persons and entities designated in the statute. Id. And see AGOs 08-24, 04-09 and 86-97. Thus, where a statute provided confidentiality for all records in the city’s risk management claims file, the trial judge lacked authority to order the city to produce certain records based on a determination that their production would not harm the city. City of Homestead v. McDonough, 232 So. 3d 1069 (Fla. 4th DCA 2017). And see City of Miami Beach v. Miami New Times, 314 So. 3d 562 (Fla. 3d DCA 2020), concluding that confidential draft audit reports relating to towing companies did not become subject to disclosure when the companies (without the knowledge of the agency) disclosed them to a third party.

However, a statute restricting release of confidential emergency call information does not prevent the city’s attorneys or other city officials who are responsible for advising the city regarding the provision of emergency medical services or for defending the city against a possible claim arising from such services, from reviewing the records related to such emergency calls that contain patient examination or treatment information. AGO 95-75.

An agency is authorized to take reasonable steps to ensure that confidential records are not improperly released. Lee County v. State Farm Mutual Automobile Insurance Company, 634 So. 2d 250, 251 (Fla. 2d DCA 1994) (county policy requiring the patient’s notarized signature on all release forms for emergency services medical records “not unreasonable or onerous;” requirement was a valid means of protecting records made confidential by s. 401.30[4], F.S.). Accord AGO 94-51 (agency “should be vigilant in its protection of the confidentiality provided by statute for medical records of [its] employees”). Cf. Florida Department of Revenue v. WHI Limited Partnership, 754 So. 2d 205 (Fla. 1st DCA 2000) (administrative law judge [ALJ] not authorized to mandate that agency disclose confidential records because ALJ is not a judge of a court of competent jurisdiction for purposes of statute permitting disclosure of confidential records in response “to an order of a judge of a court of competent jurisdiction”); and AGO 94-86 (if custodian of confidential library circulation records believes that such records should not be disclosed in response to a subpoena because the subpoena is not a “proper judicial order” as provided in s. 257.261, F.S., custodian may assert the confidentiality provisions in a motion to quash the subpoena but should not ignore the subpoena for production of such records). And see State Attorney’s Office of the Seventeenth Judicial Circuit v. Cable News Network, Inc., 251 So. 3d 205, 214 (Fla. 4th DCA 2018) (when statute authorizes release of confidential security system records upon a showing of “good cause,” the Legislature “intended the courts to apply a common law approach to ‘good cause,’ where meaning emerges over time, on a case-by-case basis, and courts arrive at a desirable equilibrium between the competing needs of disclosure and secrecy of government records”). Cf. Florida Department of Corrections v. Miami Herald Media Company, (Fla. 1st DCA 2019) (trial court erred when it found “good cause” for release of confidential prison video footage even though newspaper had admitted at the hearing that it no longer needed the recordings).

b. Exempt Records

If records are not made confidential but are simply exempt from the mandatory disclosure requirements in s. 119.07(1), F.S., the agency is not prohibited from disclosing the documents in all circumstances. See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991), in which the court observed that pursuant to s. 119.07(3) (d), F.S. [now s. 119.071(2)(c), F.S.], “active criminal investigative information” was exempt from the requirement that public records be made available for public inspection. However, as stated by the court, “the exemption does not prohibit the showing of such information. There are many situations in which investigators have reasons for displaying information which they have the option not to display.” [Emphasis supplied by the Court] See also AGO 07-21 (while statute makes photographs of law enforcement personnel exempt rather than confidential, custodian, in deciding whether such information should be disclosed, must determine whether there is a statutory or substantial policy need for disclosure and in the absence of a statutory or other legal duty to be accomplished by disclosure, whether release of such information is consistent with the exemption’s purpose). Accord AGO 08-24. And see AGO 17-05 (property appraiser authorized to disclose addresses that are exempt from public inspection, but not confidential, to the code inspector for the limited purpose of providing alleged code violators with the statutory notice required by s. 162.06, F.S.).

Once an agency has gone public with information which could have been previously protected from disclosure under Public Records Act exemptions, no further purpose is served by preventing full access to the desired information. Downs v. Austin, 522 So. 2d 931, 935 (Fla. 1st DCA 1988). Cf. AGO 01-74 (taxpayer information that is confidential in the hands of certain specified officers under s. 193.074, F. S., is subject to disclosure under the Public Records Act when it has been submitted by a taxpayer to a value adjustment board as evidence in an assessment dispute).

However, in City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995), the court held that when a criminal justice agency transfers exempt criminal investigative information to another criminal justice agency, the information retains its exempt status. And see Ragsdale v. State, 720 So. 2d 203, 206 (Fla. 1998) (“the focus in determining whether a document has lost its status as a public record must be on the policy behind the exemption and not on the simple fact that the information has changed agency hands”); Alice P. v. Miami Daily News, Inc., 440 So. 2d 1300 (Fla. 3d DCA 1983), review denied, 467 So. 2d 697 (Fla. 1985) (confidential birth information contained in license application submitted to state health agency not subject to disclosure); AGO 04-44 (if the prison industry agency sends exempt proprietary confidential business information to the Secretary of the Department of Corrections in his capacity as a member of the board of directors of the prison industry agency, that information does not lose its exempt status by virtue of the fact that it was sent to the Secretary’s office in the department); and AGO 94-77 (work product exception authorized in former s. 119.07[3][l], F.S. [now s. 119.071(1)(d), F.S.], will be retained if the work product is transferred from the county attorney to the city attorney pursuant to a substitution of parties to the litigation).

§2-E-6 | DISCOVERY OF EXEMPT OR CONFIDENTIAL RECORDS

An exemption from disclosure under the Public Records Act does not render the document automatically privileged for purposes of discovery under the Florida Rules of Civil Procedure or in administrative proceedings. See Department of Health v. Poss, 45 So. 3d 510 (Fla. 1st DCA 2010); Department of Professional Regulation v. Spiva, 478 So. 2d 382 (Fla. 1st DCA 1985). “Although the Rules of Civil Procedure and the Public Records Act may overlap in certain areas, they are not coextensive in scope.” Department of Highway Safety and Motor Vehicles v. Kropff , 445 So. 2d 1068, 1069n.1 (Fla. 3d DCA 1984). See also Department of Highway Safety and Motor Vehicles v. Krejci Company Inc., 570 So. 2d 1322 (Fla. 2d DCA 1990), review denied, 576 So. 2d 286 (Fla. 1991) (records which are exempt from public inspection may be subject to discovery in a civil action upon a showing of exceptional circumstances and if the trial court takes all precautions to ensure the confidentiality of the records). Cf. League of Women Voters v. Florida House of Representatives, 132 So. 3d 135, 153 (Fla. 2013) (“if the circuit court concludes, after undertaking an in camera review of any disputed documents, that draft [apportionment] plans are exempt from public records disclosure, the circuit court should still require the Legislature to produce the draft apportionment maps and supporting documents under appropriate litigation discovery rules, to the extent these documents do not contain information regarding individual legislators’ or legislative staff members’ thoughts or impressions”).

For example, in B.B. v. Department of Children and Family Services, 731 So. 2d 30 (Fla. 4th DCA 1999), the court ruled that as a party to a dependency proceeding involving her daughters, a mother was entitled to discovery of the criminal investigative records relating to the death of her infant. The court found that the statutory exemption for active criminal investigative information did not “override the discovery authorized by the Rules of Juvenile Procedure.” Id. at 34. Compare Henderson v. Perez, 835 So. 2d 390, 392 (Fla. 2d DCA 2003) (trial court order compelling sheriff to produce exempt home addresses and photographs of 10 active law enforcement officers in a civil lawsuit filed by Perez predicated on his arrest, quashed because “Perez has not shown that the photographs and home addresses of the law enforcement officers are essential to the prosecution of his suit”). And see Delaurentos v. Peguero, 47 So. 3d 879 (Fla. 3d DCA 2010 (while the exemption for employee medical information in s. 119.071[4][b] did not preclude the discovery of a police officer’s pre-employment psychological evaluation, the estate’s request for the evaluation in a wrongful death case filed against the officer and county was, under the circumstances of the case, outside the scope of permissible discovery).

Subpart 2-F
Federal Law and the Florida Public Records Law

§2-F-1 | APPLICATION OF FEDERAL CONFIDENTIALITY REQUIREMENTS TO FLORIDA PUBLIC RECORDS

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

Federal confidentiality requirements may be a concern if the Florida governmental entity or officer is acting as an instrumentality or agent of the federal government. In such a case, a federal agency may assert ownership of records and assert federal jurisdiction and protection of such records. See, e.g., U.S. v. Story County, Iowa, 28 F. Supp. 3d 861, 872 (S.D. Iowa 2014) (emails of sheriff from his county email account were sent in his capacity of an appointed board member of an independent authority within an agency of the United States Department of Commerce, and were federal records subject to federal jurisdiction since “the subject emails were not ‘produced by or originated from’ [the sheriff’s] role as... Sheriff nor were they held by [the sheriff] in his official capacity as... sheriff.”). Compare Housing Authority of the City of Daytona Beach v. Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994) (tenant records of a state public housing authority were not protected under federal law because the federal agency was not involved in the day-to-day operations of the authority).

Records received from a federal agency may have a statutory or regulatory basis for protection. Morris v. Whitehead, 588 So. 2d 1023 (Fla. 2d DCA 1991) (holding confidential records received by a state run housing authority from the federal government may not be disclosed where there was a statutorily-authorized agreement between agencies that the state housing authority will maintain the confidentiality of the materials received); Miami Herald Media Company v. Florida Department of Transportation, 345 F. Supp. 3d 1349, 1356 (N.D. Fla. 2018) (state agency could not disclose records when federal safety board investigating bridge collapse took control over dissemination of records relating to the investigation, designated the Florida Department of Transportation (FDOT) as a party to assist NTSB in the investigation, and directed the state agency to not disclose the information contained in those records by agreement and as authorized by federal regulation); but see Lakeland Ledger Publishing Co. v. Sch. Bd. of Polk Co., GV-G-91-3803 (Fla. 10th Cir. Ct. Nov. 21, 1991), available online in the Cases database at the open government site at MyFloridaLegal.com (relying on Morris v. Whitehead, supra, to determine a map prepared by the U.S. Justice Department concerning desegregation of Lakeland schools and given to school district employees was a public record and open to inspection).

If litigation ensues with respect to whether the disclosure of a record is subject to federal law, under some circumstances the federal agency may be considered a real party in interest, and the matter may be removed to federal court. See e.g., Miami Herald Media Company v. Florida Department of Transportation, supra, 345 F. Supp. 3d at 1356 (denying a motion to remand case to state court after the United States removed matter to federal district court because the federal agency in the suit was a real party in interest); compare Department of Health v. Rehabilitation Center at Hollywood Hills 259 So. 3d 979, 982 (Fla. 1st DCA 2018) (remanding matter to state court despite assertion of federal agency that it was a real party in interest; subpoenaed records were collected pursuant to state law and a state investigation, and thus subject to state law, notwithstanding a joint investigation by the federal agency.).

Records do not become subject to disclosure merely because they are not entitled to federal protection. City of Miami v. Metropolitan Dade County, 745 F. Supp. 683 (S.D. Fla. 1990) (records provided by the United States Attorney’s Office to a criminal defendant were active criminal investigative records in the hands of the Florida governmental entities).

§2-F-2 | COPYRIGHTED RECORDS

a. Copyrights Held by Agencies

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

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

b. Copyrighted Material Obtained by Agencies

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

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

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

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

Subpart 2-G
Fees for Inspecting and Copying Public Records

§2-G-1 | 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. AGO 85-03. Thus, public information must be open for inspection without charge unless otherwise expressly provided by law. See State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905). See also AGOs 84-03 and 76-34 (only those fees or charges which are authorized by statute may be imposed upon an individual seeking access to public records). Cf. AGO 75-50 (the fact that the record sought to be inspected is a tape recording as opposed to a written document is of no import insofar as the imposition of a fee for inspection is concerned).

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. See Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008) (special service charge applies to requests for both inspection and copies of public records when extensive clerical assistance is required).

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. AGO 00-11. For example, in AGO 00-11, the requested records were described as “original documents that have no recorded or maintained counterparts, such that, by their nature, they would need a heightened degree of protection from alteration or destruction.” A determination of whether the nature or volume of the public records requires such extensive assistance must be made on a case-by-case basis; the special service charge may not be routinely imposed. Id.

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. Id. And see Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) (affirming trial court finding that two conditions — an hourly photocopying fee and an hourly supervisory fee — were imposed in violation of s. 119.07, F.S.).

§2-G-2 | 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 8½ inches or less. An agency may charge no more than an additional 5 cents for each two-sided duplicated copy. Section 119.07(4)(a)2., F.S. And see s. 119.011(7), F.S., defining the term “duplicated copies” to mean “new copies produced by duplicating, as defined in s. 283.30,” F.S. “Duplicating” means “the process of reproducing an image or images from an original to a final substrate through the electrophotographic, xerographic, laser, or offset process or any combination of these processes, by which an operator can make more than one copy without rehandling the original.” Section 283.30(3), F.S.

A charge of up to $1.00 per copy may be assessed for a certified copy of a public record. Section 119.07(4)(c), F.S.

For other copies, the charge is limited to the actual cost of duplication of the record. Section 119.07(4)(a)3., F.S. 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.” Section 119.011(1),F.S. 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. Section 119.07(4)(b), F.S. Cf. AGO 13-03 (while agency may charge “actual cost of duplication” if it sends public records via e-mail, agency did not identify any actual costs of duplication involved in forwarding copies of electronic mail in lieu of photocopying and “the definition [of actual cost of duplication] does not allow for the imposition of labor costs or associated overhead costs”).

§2-G-3 | SPECIAL SERVICE CHARGE FOR EXTENSIVE USE OF CLERICAL OR SUPERVISORY LABOR OR EXTENSIVE INFORMATION TECHNOLOGY RESOURCES

Section 119.07(4)(d), F.S. provides 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, in addition to the actual cost of duplication, 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. Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008).

Thus, while an agency may not refuse to allow inspection or copying of public records based upon the amount 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. See AGOs 92-38 and 90-07. Cf. Trout v. Bucher, 205 So. 3d 876 (Fla. 4th DCA 2016) (supervisor of elections authorized to charge a reasonable fee based on the labor costs “actually incurred” to comply with Trout’s request to inspect ballots in accordance with s. 119.07[5], F.S.).

a. Meaning of the Term “Extensive”

Section 119.07(4)(d), F.S., “does not identify the Legislature’s intent as to what may constitute ‘extensive use’ and provides no definition of that term.” AGO 13-03. 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. Florida Institutional Legal Services, Inc. v. Florida Department of Corrections, 579 So. 2d 267 (Fla. 1st DCA 1991), review denied, 592 So. 2d 680 (Fla. 1991). The court agreed with the hearing officer that the burden was on the challenger to show that the administrative rule was invalid under Ch. 120, F.S, and the record did not indicate that the officer’s ruling was “clearly erroneous” in this case.

In light of the lack of clear direction in the statute as to the meaning of the term “extensive,” the Attorney General’s Office has suggested that agencies implement the service charge authorization “in a manner that reflects the purpose and intent of the Public Records Act and that does not constitute an unreasonable infringement upon the public’s statutory and constitutional right of access to public records.” AGO 13-03. In addition, the Attorney General’s Office also strongly encourages agencies to adopt a public records procedure that addresses imposition of special service charge. Id.

Moreover, the statute mandates that the special service charge be “reasonable.” See Carden v. Chief of Police, 696 So. 2d 772, 773 (Fla. 2d DCA 1996), in which the 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.” Accordingly, the court remanded the case and required the agency to “explain in more detail the reason for the magnitude of the assessment.” Id. And see Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 129 (Fla. 2016), noting that “excessive, unwarranted special service charges deter individuals seeking public records from gaining access to the records to which they are entitled.”

b. Meaning of the Term “Information Technology Resources”

“Information technology resources” is defined as data processing hardware and software and services, communications, supplies, personnel, facility resources, maintenance and training. Section 119.011(9), F.S. The term does not include a videotape or a machine to view a videotape. AGO 88-23. 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. AGOs 13-03 and 99-41.

c. 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. AGO 84-81. 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. See Florida Institutional Legal Services v. Florida Department of Corrections, 579 So. 2d at 269. And see Agency for Health Care Administration v. Zuckerman Spaeder, LLP, 221 So. 3d 1260 (Fla. 1st DCA 2017) (prior court decisions as well as the language in s. 119.07[4], F.S., dictate that the requester, who had submitted several voluminous public records requests for records which included confidential information “should be required to pay for the cost of searching, review, and redaction of exempted information prior to production”).

Accordingly, because “the Public Records Act requires a records custodian to determine whether the requested records exist, locate the records, and review each record to determine if any of those records are exempt from production,” the agency may charge the special service charge as authorized under s. 119.071(4)(d), F.S. for the cost to review voluminous requested records for exempt material. City of St. Petersburg v. Dorchester Holdings, LLC, 331 So. 3d 799 (Fla. 2d DCA 2021). [Emphasis supplied by the court].

d. Calculation of Labor Cost

In Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008), the court approved a county’s special service charge pursuant to s. 119.07(4), F.S., which included both an employee’s salary and benefits in calculating the labor cost for the special service charge, recognizing, however, that the charge must be reasonable and based upon the actual labor costs incurred by or attributable to the county. See Trout v. Bucher, 205 So. 3d 876 (Fla. 4th DCA 2016) (supervisor of elections not required to charge the lowest hourly rate of the employee capable of doing the work needed to comply with Trout’s request to inspect ballots in accordance with s. 119.07[5], F.S., because s. 119.07[4][d] allows the agency to charge the labor cost of the personnel that is “actually incurred” by the agency where extensive assistance is required).

The term “supervisory assistance” has not been widely interpreted. 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, concluding that an appropriate charge for supervisory review is “reasonable” in cases involving a large number of documents that contain some exempt information. In State v. Gudinas, No. CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999), available online in the Cases database at the open government site at MyFloridaLegal.com, 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 records reviewed, the various public record exemptions and possible prohibitions, and the necessary discretionary decisions to be made with respect to potential exemptions.”

e. Reasonable Deposit or Advance 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....” See Wootton v. Cook, 590 So. 2d 1039, 1040 (Fla. 1st DCA 1991) (if a 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.”) (e.s.); and Promenade D’Iberville, LLC v. Sundy 145 So. 3d 980, 983 (Fla. 1st DCA 2014) (a records custodian may delay production “if the requesting party fails to remit the appropriate fees”).

Accordingly, an agency’s policy of requiring the payment of a deposit prior to redaction and delivery of hundreds of telephone recordings related to a criminal trial was determined to be “facially reasonable.” Morris Publishing Group, LLC v. State, 154 So. 3d 528, 534 (Fla. 1st DCA 2015), review denied, 163 So. 3d 512 (Fla. 2015). Accord Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31, 37 (Fla. 2d DCA 2008), noting that a “policy of requiring an advance deposit seems prudent given the legislature’s determination that taxpayers should not shoulder the entire expense of responding to an extensive request for public records.” “[T]he reasonableness of a policy and its application — based on the facts in a particular case — guides whether an abuse of discretion is shown.” Morris Publishing Group, LLC at 534. And see Agency for Health Care Administration v. Zuckerman Spaeder, LLP, 221 So. 3d 1260 (Fla. 1st DCA 2017) (lower court abused its discretion by ordering the agency to produce a large number of responsive public records within 48 hours of the issuance of the order without requiring advance payment of the agency’s invoices associated with production of the records); City of St. Petersburg v. Dorchester Holdings, LLC, 331 So. 3d 799 (Fla. 2d DCA 2021) (trial court erred in holding that the City’s prepayment request constituted an unlawful interference with requester’s right of access to public records). Compare Miami Dade College v. Nader + Museu I, LLLP, 47 F.L.W. D1814 (Fla. 3d DCA August 31, 2022) (trial court properly denied agency’s requested fees after production based on the agency’s failure to provide the requester with an estimate of the anticipated costs to fulfill the public records request or an invoice prior to production, as required by agency policy, nor did the parties agree in advance to the charges).

An agency may refuse to produce additional records if the fees for a previous request for records have not been paid by the requestor. See Lozman v. City of Riviera Beach, 995 So. 2d 1027 (Fla. 4th DCA 2008) (s. 119.07[4], 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). And see AGO 05-28 (custodian authorized to bill the requestor for any shortfall between the deposit and the actual cost of copying the public records when the copies have been made and the requesting party subsequently advises the city that the records are not needed). Compare, Smith v. State, 335 So. 3d 795 (Fla. 2d DCA 2022) (Smith’s failure to timely pay fees to obtain requested public records does not permit the agency to ban him from ever obtaining records in the future, provided Smith pays the amount owing for the first request).

§2-G-4 | 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. Wootton v. Cook, supra. See also Woodard v. State, 885 So. 2d 444 (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 cost to copy the requested records. 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 if an agency is asked for a large number of records, the fee should be communicated to the requestor before the work is undertaken. “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.” Id.

In Miami Dade College v. Nader + Museu I, LLLP, 47 F.L.W. D1814 (Fla. 3d DCA August 31, 2022), the court affirmed the trial court’s refusal to grant an agency’s motion to collect fees under s. 119.07(4)(d), F.S., because the agency failed to provide the requester with an estimate or invoice prior to production thereby violating both its own policies and procedures and the language of s. 119.07(4), F.S. And see AGO 13-03, in which the Attorney General’s Office strongly encouraged agencies to adopt a public records procedure that addresses imposition of special service charge.

§2-G-5 | REQUESTS FOR FREE COPIES OF PUBLIC RECORDS

An agency is not precluded from choosing to provide informational copies of public records without charge. AGO 90-81.

However, 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. See Roesch v. State, 633 So. 2d 1, 3 (Fla. 1993) (indigent inmate not entitled to receive copies of public records free of charge nor to have original state attorney files mailed to him in prison; prisoners are “in the same position as anyone else seeking public records who cannot pay” the required costs); Potts v. State, 869 So. 2d 1223 (Fla. 2d DCA 2004) (no merit to inmate’s contention that Ch. 119, F.S., entitles him to free copies of all records generated in his case); Bennett v. Clerk of Circuit Court Citrus County, 150 So. 3d 277 (Fla. 5th DCA 2014) (authority providing indigent criminal defendants with free copies does not extend beyond the direct appeal of judgment and sentence and transcripts of evidentiary hearings held on postconviction claims); Milner v. State, 196 So. 3d 569 (Fla. 4th DCA 2016) (indigent prisoners are not entitled to free copies of records under the Public Records Act); and Yanke v. State, 588 So. 2d 4 (Fla. 2d DCA 1991), review denied, 595 So. 2d 559 (Fla. 1992), cert. denied, 112 S.Ct. 1592 (1992) (prisoner must pay copying and postage charges to have copies of public records mailed to him). And see State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377, 1382n.7 (Fla. 1st DCA 1994) (indigent person “is not relieved by his indigency” from paying statutory costs to obtain public records). Cf. Siegmeister v. Johnson, 240 So. 3d 70 (Fla. 1st DCA 2018) (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, citing to Roesch v. State).

Similarly, a labor union must pay the costs stipulated in Ch. 119, F.S., for copies of documents it has requested from a public employer for collective bargaining purposes because “[a] labor union seeking information from the employer with whom it is locked in collective bargaining negotiations is not exempt from the Florida Public Records Act.” City of Miami Beach v. Public Employees Relations Commission, 937 So. 2d 226 (Fla. 3d DCA 2006). And see Inf. Op. to Garganese, April 14, 1998 (authority to charge city council member for copies of public records).

A school district is under no statutory obligation to provide copies of public records free of charge to individual members of a school advisory council, but a school district may formulate a policy for the distribution of such records. AGO 99-46. If it is found that the advisory council needs certain school records in order to carry out its statutory functions, such records should be provided to the council in the same manner that records related to agenda items are provided to school board members. Id. Cf. Inf. Op. to Martin, November 21, 2006 (school board policy requiring that a request for information by an individual board member requiring more than sixty minutes of staff time to prepare must be presented to the school board for approval would be invalid if the school board member is asking under public records law; however, the school board member would be subject to any charges allowed by Chapter 119, F.S.).

§2-G-6 | AUTHORITY TO CHARGE FOR DEVELOPMENT, OVERHEAD, OR TRAVEL COSTS

An agency should not consider the furnishing of public records to be a “revenue-generating operation.” AGO 85-03. See also AGO 89-93 (city not authorized to sell copies of its growth management book for $35.00 each when the actual cost to reproduce the book is $15.10 per copy; city is limited to charging only the costs authorized by Ch. 119, F.S.).

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. AGO 99-41. Similarly, an agency may not charge for travel time to obtain public records stored off-premises. AGO 90-07. 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 requester the costs to retrieve the records. Inf. Op. to Sugarman, September 5, 1997. Cf. Cone & Graham, Inc. v. State, No. 97-4047 (Fla. 2d Cir. Ct. October 7, 1997), available online in the Cases database at the open government site at MyFloridaLegal.com (an agency’s decision to “archive” older e-mail messages on tapes so that they could not be retrieved or printed without a systems programmer was analogous to an agency’s decision to store records off-premises in that the agency rather than the requester must bear the costs for retrieving the records).

An agency may not assess fees designed to recoup the original cost of developing or producing the records. AGO 88-23 (state attorney not authorized to impose a charge to recover part of costs incurred in production of a training program; the fee to obtain a copy of the videotape of such program is limited to the actual cost of duplication of the tape). And see State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377, 1382 (Fla. 1st DCA 1994) (once a transcript of an administrative hearing is filed with the agency, the transcript becomes a public record regardless of who ordered the transcript or paid for the transcription; the agency can charge neither the parties nor the public a fee that exceeds the charges authorized in the Public Records Act). Cf. s. 119.07(4)(b), F.S., providing that the charge for copies of county maps or aerial photographs supplied by county constitutional officers may also include a reasonable charge for the labor and overhead associated with their duplication.

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. AGO 99-41. 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. Id.

§2-G-7 | FEES TO OBTAIN AGENCY RECORDS HELD BY PRIVATE COMPANIES

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. AGO 02-37. 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. Id. Accord AGO 13-03. And see AGO 05-34 (while the property appraiser may provide public records, excluding exempt or confidential information, to a private company, the property appraiser may receive only those fees that are authorized by statute and may not, in the absence of statutory authority, enter into an agreement with the private company where the property appraiser provides such records in exchange for either in-kind services or a share of the profits or proceeds from the sale of the information by the private company). Cf. s. 119.0701(2)(b)2., F.S., requiring that certain contracts contain a provision stipulating that upon request from the public agency’s custodian of public records, the contractor must provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in ch. 119 or as otherwise provided by law.

§2-G-8 | SALES TAX

In AGO 86-83, the Attorney General’s Office advised that 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. See s. 5(a) of Department of Revenue Rule 12A-1.041, F.A.C., stating that “[t]he fee prescribed by law, or the actual cost of duplication, for providing copies of public records... under Chapter 119, F.S., is exempt from sales tax.”

§2-G-9 | CONFIDENTIAL RECORDS

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. For example, in AGO 03-57, the Attorney General’s Office advised that persons who are authorized by statute to obtain otherwise confidential autopsy photographs should be provided copies in accordance with the provisions of the Public Records Act, i.e., s. 119.07(4), F.S. The medical examiner is not authorized to charge a fee that exceeds those charges. Id.

§2-G-10 | REQUESTER MAKES HIS/HER OWN COPIES

Section 119.07(3)(a), F.S., provides a “right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records.” This subsection “applies to the making of photographs in the conventional sense by use of a camera device to capture images of public records but excludes the duplication of microfilm in the possession of the clerk of the circuit court” if the clerk can provide a copy of the microfilm. Section 119.07(3)(b), F.S.

The photographing is to be done in the room where the public records are kept. Section 119.07(3)(d), F.S. However, if in the custodian’s judgment, this is impossible or impracticable, the copying shall be done in another room or place, as close as possible to the room where the public records are kept. Id. Where provision of another room or place is necessary, the expense of providing the same shall be paid by the person who wants to copy the records. Id. The custodian may charge the person making the copies for supervision services. Section 119.07(4)(e)2., F.S. In such cases the custodian may not charge the copy charges authorized in s. 119.07(4)(a), F.S., but may charge only the supervision service charge authorized in s. 119.07(4)(e)2., F.S. See AGO 82-23. Cf. Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 122 (Fla. 2016) (affirming trial court finding that two conditions — “an hourly photocopying fee and an hourly supervisory fee” — were imposed in violation of s. 119.07, F.S.).

§2-G-11 | FEE ISSUES RELATING TO SPECIFIC RECORDS

a. Clerk of Court Records

(1) County Records

Pursuant to s. 125.17, F.S., the clerk of the circuit court serves as the ex officio clerk to the board of county commissioners. Records maintained by the clerk which relate to this function (e.g., county resolutions, budgets, minutes, etc.) are public records which are subject to the copying fees set forth in Ch. 119, F.S., and not the service charges set forth in Ch. 28, F.S. AGO 85-80. Accord AGO 94-60 (documents such as minutes of public meetings, which are in the custody of the clerk as ex officio clerk of the board of county commissioners, are not subject to the $1.00 per page charge prescribed in Ch. 28). See also AGO 82-23 (when members of the public use their own photographic equipment to make their own copies, the clerk is not entitled to the fees prescribed in s. 28.24, F.S., but is entitled only to the supervisory service charge now found in s. 119.07[4][e]2., F.S.).

(2) Judicial Records

When the clerk is exercising his or her duties derived from Article V of the Constitution, the clerk is not subject to legislative control. Times Publishing Company v. Ake, 660 So. 2d 255 (Fla. 1995). Thus, when the clerk is acting in his or her capacity as part of the judicial branch of government, access to the judicial records under the clerk’s control is governed exclusively by Fla. R. Gen. Prac. & Jud. Admin. 2.420, Public Access to and Protection of Judicial Records. Id. See Fla. R. Gen Prac. & Jud. Admin. 2.420(b)(2), defining the term “judicial branch” for purposes of the rule, to include “the clerk of court when acting as an arm of the court.”

Florida Rule of General Practice and Judicial Administration 2.420(m)(3) states that “[f] ees for copies of records in all entities in the judicial branch of government, except for copies of court records, shall be the same as those provided in section 119.07, Florida Statutes.” (e.s.). The fees to obtain copies of court records are set forth in s. 28.24, F.S. This statute establishes fees that are generally higher than those in Ch. 119, F.S. For example, the charge to obtain copies of court records is $1.00 per page, rather than 15 cents per page as established in s. 119.07(4)(a)1., F.S. And see s. 28.222(7), F.S., providing that the Official Records are open to the public, but the clerk is not required to perform any service in connection with the making of copies without payment of service charges as provided in s. 28.24, F.S. Cf. WFTV, Inc. v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996).

b. 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. Section 321.23(2)(a), F.S., provides that the fee to obtain a copy of a crash report from the department is $10.00 per copy. A copy of a homicide report is $25 per copy. Section 321.23(2)(b), F.S. Separate charges are provided for photographs. Section 321.23(2)(d), F.S.

Subpart 2-H
Remedies and Penalties

§2-H-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-H-2 | CIVIL ACTION

a. Remedies

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. Cf. s. 119.07(8), F.S. (s. 119.07, F.S., may not be used by an inmate as the basis for failing to timely litigate any postconviction action).

Before filing a lawsuit, the petitioner must have furnished a public records request to the agency. Villarreal v. State, 687 So. 2d 256 (Fla. 1st DCA 1996), review denied, 694 So. 2d 741 (Fla. 1997), cert. denied, 118 S.Ct. 316 (1997) (improper to order agency to produce records before it has had an opportunity to comply); and Maraia v. State, 685 So. 2d 851 (Fla. 2d DCA 1995) (public records action dismissed where petitioner failed to file a request for public records with the records custodian before filing suit). Cf. Coconut Grove Playhouse, Inc. v. Knight-Ridder, Inc., 935 So. 2d 597 (Fla. 3d DCA 2006) (trial court order departed from essential requirements of law by requiring defendant in a public records action to produce its records as a sanction for failure to respond to a discovery subpoena).

Where a multi-agency law enforcement task force had been created by a mutual aid agreement and the agreement did not indicate an intent to create a separate legal entity capable of being sued in its own name, a requestor could not sue the task force for production of records; however, as the agreement did not specify which agency would be responsible for responding to public records requests, an action could be brought against any of the member agencies to produce records in the possession of the task force. Ramese’s, Inc. v. Metropolitan Bureau of Investigation, 954 So. 2d 703 (Fla. 5th DCA 2007).

The service of process requirements in s. 48.111, F.S., apply to civil actions to enforce the public records law. See Department of Children and Families v. Panno, 312 So. 3d 1275 (Fla. 2d DCA 2021), interpreting the service of process requirements found in a prior version of s. 48.111.

(1) Mandamus

Mandamus is an appropriate remedy to enforce compliance with the Public Records Act. See Chandler v. City of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA 2014); Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000); Smith v. State, 696 So. 2d 814 (Fla. 2d DCA 1997); Donner v. Edelstein, 415 So. 2d 830 (Fla. 3d DCA 1982). See also Farmer v. State, 927 So. 2d 1075 (Fla. 2d DCA 2006) (trial court should treat motion to compel production of public records as petition for writ of mandamus); Major v. Hallandale Beach Police Department, 219 So. 3d 856 (Fla. 4th DCA 2017) (petition for writ of mandamus filed against a governmental agency must attach a copy of any record that supports the petition). Cf. Wilkinson v. State Attorney’s Office, 345 So. 3d 925 (Fla. 3d DCA 2022) (mandamus is an extraordinary remedy that appellate court will not entertain since petitioner has an adequate alternative remedy to enforce Ch. 119).

A petition for writ of mandamus is an appropriate vehicle to challenge the denial of a public records request, even where an exemption has been asserted. Deeson Media, LLC v. City of Tampa, 291 So. 3d 974 (Fla. 2d DCA 2019). Cf. Agency for Health Care Administration v. Zuckerman Spaeder, LLP, 221 So. 3d 1260 (Fla. 1st DCA 2017) (mandamus relief ordering agency to produce records within 48 hours and prior to requester’s payment of invoices or agency’s opportunity to review and redact exempt material was improper because agency’s duty was not “ministerial” and requester’s right to the records was not “indisputable”).

If the requester’s petition presents a prima facie claim for relief, an order to show cause should be issued so that the claim may receive further consideration on the merits. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992). Accord Gay v. State, 697 So. 2d 179 (Fla. 1st DCA 1997). See Radford v. Brock, 914 So. 2d 1066 (Fla. 2d DCA 2005) (trial judge dismissal of a writ of mandamus directed to clerk of court and court reporter who were alleged to be records custodians was erroneous because trial judge did not issue an alternative writ of mandamus requiring the clerk and court reporter to show cause why the writ should not be issued, and because there was no sworn evidence refuting the petitioner’s allegations). Compare Scott v. Lee County School Board, 310 So. 3d 163 (Fla. 2d DCA 2021) (trial court properly dismissed facially insufficient petition that did not attach the requester’s public records request).

Thus, a petition for writ of mandamus should not have been dismissed based on the agency’s response that the requested records “would have been destroyed” in accordance with agency policy. Brown v. State, 152 So. 3d 739, 741 (Fla. 4th DCA 2014). Similarly, the trial judge erred in dismissing a petition seeking records relating to the chain of custody for a weapon without issuing an alternative writ of mandamus. Tracy v. State, 219 So. 3d 958 (Fla. 1st DCA 2017). The agency had produced an evidence card showing that the weapon in question had been destroyed; accordingly, the trial court concluded that dismissal was appropriate as there were no records to produce. However, because the petitioner contended that additional records were available, the appellate court found that “factual disputes remain.” On remand, “if the [agency] fails to provide sworn evidence that all available information has been provided, the trial court must conduct an evidentiary hearing on the issue prior to denying the claim.”

Mandamus is a “one time order by the court to force public officials to perform their legally designated employment duties.” Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996). Thus, a trial court erred when it retained continuing jurisdiction to oversee enforcement of a writ of mandamus granted in a public records case. Id. See also Stone v. Ward, 752 So. 2d 100, 101 (Fla. 2d DCA 2000) (“It is well-settled that mandamus is not appropriate to control or regulate a general course of conduct for an unspecified period of time”). Cf. Areizaga v. Board of County Commissioners of Hillsborough County, 935 So. 2d 640 (Fla. 2d DCA 2006), review denied, 958 So. 2d 918 (Fla. 2007) (circuit courts may not refer extraordinary writs to mediation; thus, trial judge should not have ordered mediation of petition for writ of mandamus seeking production of public records).

(2) Injunction

Injunctive relief may be available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated pattern of noncompliance with the Public Records Act, together with a showing of likelihood of future violations; mandamus would not be an adequate remedy since mandamus would not prevent future harm). However, an injunction is not appropriate if the acts complained of have already been committed and there is not a well-grounded probability of similar future conduct. Id. See Promenade D’Iberville, LLC v. Sundy, 145 So. 3d 980, 984 (Fla. 1st DCA 2014).

(3) Declaratory Relief Sought by Agencies

Historically, some agencies would seek guidance from the court by filing an action for declaratory relief rather than comply with a pending public records request or asserting an exemption. See, e.g., Butler v. City of Hallandale Beach, 68 So. 3d 278, 279 (Fla. 4th DCA 2011) (“Michael Butler appeals from a final judgment in a declaratory action filed by The City of Hallandale Beach [the City]... which sought a declaration that a list of recipients of a personal email... was not sent in connection with the discharge of any municipal duty and therefore, is not a public record under Florida’s Public Records Law”). Cf. Askew v. City of Ocala, 348 So. 2d 308 (Fla. 1977) (trial court properly dismissed complaint for declaratory relief for failure to state a cause of action where public officials disagreed with Attorney General’s advisory opinion and sought different judicial opinion).

However, s. 119.07(9), F.S., now reads:

“After receiving a request to inspect or copy a record, an agency may not respond to that request by filing an action for declaratory relief against the requester to determine whether the record is a public record as defined by s. 119.011, or the status of the record as confidential or exempt from the provisions of s. 119.07(1),” F.S.

(4) Damages

Section 119.12, F.S. does not create a private right of action authorizing the award of monetary damages for a person who brings an action to enforce the provisions of Ch. 119, F.S. Section 119.12(4), F.S. Payments by the responsible agency may include only the reasonable costs of enforcement, including reasonable attorney fees, directly attributable to a civil action brought to enforce the provisions of Ch. 119, F.S. Id.

b. Procedural Issues

(1) Discovery

In the absence of an evident abuse of power, the trial court’s exercise of discretion in matters associated with pretrial discovery in a public records action will not be disturbed. Lorei v. Smith, 464 So. 2d 1330, 1333 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985). In Lorei, the appellate court upheld the trial judge’s denial of a request to permit discovery pertaining to the agency’s procedures for maintaining public records. Id. The court noted that the interrogatories related to “the mechanics associated with the department’s record maintenance, the internal policies or actions which lead to the development of files,” and other matters which were not relevant to the question of whether the requested records were exempt from disclosure. Id.

The court cautioned, however, that “discovery in a context such as the one at hand may well be appropriate in the circumstance where a good faith belief exists that the public agency may be playing ‘fast and loose’ with the requesting party or the court, once its statutorily delegated authority is activated.” Id. Cf. Lopez v. State, 696 So. 2d 725, 727 (Fla. 1997) (trial court’s denial of motion to depose custodian affirmed because there were “no allegations that any documents had been removed”); and Johnson v. State, 769 So. 2d 990, 995 (Fla. 2000) (discovery not warranted based on “bare allegations” that additional records “should” exist).

(2) Hearing

Section 119.11(1), F.S., mandates that actions brought under Ch. 119 are entitled to an immediate hearing and take priority over other pending cases. See Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 124 (Fla. 2016), in which the Court observed that “an accelerated civil action plays a critical role in the enforcement of the Public Records Act as is reflected in the title of section 119.11 — ‘Accelerated hearing; immediate compliance.’” See also Matos v. Office of the State Attorney for the 17th Judicial Circuit, 80 So. 3d 1149 (Fla. 4th DCA 2012) (an “immediate hearing does not mean one scheduled within a reasonable time, but means what the statute says: immediate”); and Woodfaulk v. State, 935 So. 2d 1225 (Fla. 5th DCA 2006) (s. 119.11, F.S., does not place specific requirements on a party requesting public records to obtain an accelerated hearing except the filing of an action to enforce the public records law).

The purpose of the hearing “is to allow the court to hear argument from the parties and resolve any dispute as to whether there are public records responsive to the request and whether an exemption from disclosure applies in whole or in part to the requested records.” Kline v. University of Florida, 200 So. 3d 271 (Fla. 1st DCA 2016). For example, an order dismissing a public records complaint filed against a sheriff was overturned on appeal because the judge failed to hold a hearing before entering the order. “Although the sheriff may ultimately not be able to retrieve these records, because of their age or another reason, the order in this case, entered without an evidentiary hearing, was premature.” Grace v. Jenne, 855 So. 2d 262, 263 (Fla. 4th DCA 2003). And see Rogers v. State, 271 So. 3d 79, 80 (Fla. 3d DCA 2019) (hearing required where “there remains a disputed factual issue as to whether the State possesses the requested records”); Ferrier v. Public Defender’s Office, Second Judicial Circuit of Florida, 171 So. 3d 744 (Fla. 1st DCA 2015) (circuit court erred in not conducting an evidentiary hearing “on the contested issue of whether [the agency] had the requested materials in its possession”); and Holley v. Bradford County Sheriff’s Department, 171 So. 3d 805 (Fla. 1st DCA 2015) (because petitioner disputed the agency’s “unsworn claim that it did not possess the requested records, the trial court could not deny [the] petition without conducting an evidentiary hearing on this issue”). The failure to hold a hearing may be remedied by a petition for writ of certiorari. See Martinez v. State, 969 So. 2d 1174, 1174-75 (Fla. 5th DCA 2007). Cf. Paylan v. Office of the State Attorney, 310 So. 3d 459 (Fla. 2d DCA 2020) (petitioner was denied due process when the judge issued an order scheduling a case management conference and then conducted an evidentiary hearing on the petition; the order did not give the petitioner notice that the judge would actually conduct a final evidentiary hearing and decide the petition on the merits.)

“A motion to dismiss tests the legal sufficiency of a complaint and does not resolve factual issues.” Clay County Education Association v. Clay County School Board, 144 So. 3d 708, 709 (Fla. 1st DCA 2014). Therefore, the trial judge erred when he granted the agency’s motion to dismiss based on the agency’s “unsworn response... that it either had already provided the documents, did not have the information in the format requested, or could not produce the documents because they did not exist.” Id. The appellate court remanded the case “for an immediate hearing under section 119.11[1] and, if necessary, further proceedings to resolve any factual disputes that remain between the parties’ complaint and answer.” Id.

Thus, “resolution of such disputed issues as notice and compliance must be litigated in an evidentiary setting.” Human Rights Defense Center v. Armor Correctional Health Services, Inc., 336 So. 3d 769 (Fla. 3d DCA 2021). See also McDonough v. City of Homestead, 305 So. 3d 316 (Fla. 3d DCA 2020) (absent waiver, an order denying mandamus relief without a hearing is premature); Williams v. State, 163 So. 3d 618 (Fla. 4th DCA 2015) (where petitioner asserted that the record produced by the agency was not the record he requested, trial judge erred by denying prison inmate’s petition for writ of mandamus without issuing an alternative writ to show cause and failing to hold an evidentiary hearing to resolve disputed issues of fact). Cf. Morgan v. Wagner, 73 So. 3d 815 (Fla. 4th DCA 2011), in which the Fourth District said it was “compelled to affirm” the lower court order dismissing the petitioner’s public records action because there was no transcript or documentation in the appendix to show that petitioner had preserved “what may have been a valid procedural argument.”

(3) In Camera Inspection

Section 119.07(1)(g), F.S., provides that in any case in which an exemption is alleged to exist pursuant to s. 119.071(1)(d) or (f), (2)(d), (e), or (f), or (4)(c), F.S., the public record or part of the record in question shall be submitted to the trial court for an in camera examination. See City of St. Petersburg v. Romine ex rel Dillinger, 719 So. 2d 19 (Fla. 2d DCA 1998) (in camera review mandated when confidential informant exemption now found at s. 119.071[2] [f], F.S., is asserted); Walton v. Dugger, 634 So. 2d 1059 (Fla. 1993); Lopez v. Singletary, 634 So. 2d 1054 (Fla. 1993) (records claimed by state attorney to constitute exempted work product must be produced for an in camera inspection); and Environmental Turf, Inc. v. University of Florida Board of Trustees, 83 So. 3d 1012 (Fla. 1st DCA 2012) (in camera inspection required where university claimed that records were exempt pursuant to s. 119.071[1][d], F.S. [attorney work product] and s. 1004.22, F.S. [proprietary research records]). And see Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2009) (“We fail to see how the trial court can [determine whether an agency is entitled to a claimed exemption] without examining the records”). Cf. Agrosource, Inc. v. Florida Department of Citrus, 148 So. 3d 138 (Fla. 2d DCA 2014) (trial court finding after in camera review that certain prelitigation emails were exempt attorney work product was supported by competent substantial evidence).

An in camera inspection is also required so that the trial judge can determine whether the records can be redacted to remove exempt information. See Holley v. Bradford County Sheriff’sDepartment, 171 So. 3d 805 (Fla. 1st DCA 2015) (trial court must conduct an in camera inspection of the records to determine whether they could be redacted to remove information identifying confidential informants); and Gonzalez v. State, 240 So. 3d 99 (Fla. 2d DCA 2018) (in the absence of an in camera inspection of the requested CDs, the circuit court could not conclude that their contents are exempt from disclosure under s. 119.071[3][a][2] or section 281.301; nor could it determine whether redaction was possible). Cf. Executive Office of the Governor v. AHF MCO of Florida, Inc., 257 So. 3d 612 (Fla. 1st DCA 2018) (reversing trial judge order which found prospective information relating to Governor’s detailed schedule and travel plans to be public even though the judge did not inspect the records and despite special agent’s undisputed affidavit that premature disclosure of such information would reveal state law enforcement agency’s “surveillance techniques, procedures, and personnel” made exempt under s. 119.071(2)(d), F.S., and jeopardize the security of the Governor and the agents who protect him). And see City of Miami v. Blanco, 336 So. 3d 1268 (Fla. 3d DCA 2022) (trial court departed from essential requirements of law by failing to conduct in camera review before granting defendant’s motion to compel and/or for a subpoena for video camera recordings taken at police station following his arrest; without an in camera inspection, the judge could not determine whether the video recordings fell within the security plan exemptions in ss. 119.071(3)(a) and 281.301, F.S.)

Similarly, the Fourth District held that “it is fundamental error” for a trial court to decide whether a statutory exemption from disclosure for mediation communications required that such communications be redacted from the otherwise public transcript of a closed attorney client session without conducting an in camera hearing to assess whether the redactions were appropriately applied. Everglades Law Center v. South Florida Water Management District, 290 So. 3d 123 (Fla. 4th DCA 2019). The appellate court also observed that the trial court was “led astray by the parties’ agreement that an in camera review of the transcript was not needed.” Id.

While s. 119.07(1)(g), F.S., states that an in camera inspection is “discretionary” in cases where an exemption is alleged under s. 119.071(2)(c), F.S. (the exemption for active criminal investigative or intelligence information), it has been held that an in camera inspection is necessary in order for the court to determine whether the exemption applies to the records at issue. For example, in Woolling v. Lamar, 764 So. 2d 765, 768-769 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186 (Fla. 2001), the Fifth District noted that the state attorney had not presented “evidence to meet its burden that the records are exempt” under s. 119.071(2)(c), F.S.; therefore, an “in camera inspection by the lower court is... required so that the trial judge will have a factual basis to decide if the records are exempt....” See also Garrison v. Bailey, 4 So. 3d 683 (Fla. 1st DCA 2009). Compare Althouse v. Palm Beach County Sheriff’s Office, 89 So. 3d 288, 289 (Fla. 4th DCA 2012) (while trial court’s failure to conduct an in camera inspection usually constitutes reversible error, in this case petitioner objected to an inspection and thereby precluded judge from conducting “an intelligent review of the documents;” accordingly, appellate court was “compelled to affirm” trial court’s denial of a petition seeking documents relating to a pending criminal investigation).

Similarly, if a public records request involves electronic information stored on privately owned devices, an agency’s reasons for its lack of disclosure, “whether for reasons related to relevancy, the application of possible privileges, or otherwise, necessitates a judicial review of the available communications to identify those which are subject to disclosure and any defenses to allegations of noncompliance.” O’Boyle v. Town of Gulf Stream, 257 So. 3d 1036, 1042 (Fla. 4th DCA 2018).

(4) Mootness

In Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), the court, noting that “[p]roduction of the records after the [public records] lawsuit was filed did not moot the issues raised in the complaint,” remanded the case for an evidentiary hearing on whether there was an unlawful refusal of access to public records. See also Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 491 (Fla. 2d DCA 1990) (while courts do not ordinarily resolve disputes unless a case or controversy exists, “since the instant situation is capable of repetition while evading review, we find it appropriate to address the issues before us concerning applicability of the Public Records Act for future reference”); Mazer v. Orange County, 811 So. 2d 857, 860 (Fla. 5th DCA 2002) (“the fact that the requested documents were produced in the instant case after the action was commenced, but prior to final adjudication of the issue by the trial court, does not render the case moot or preclude consideration of [the petitioner’s] entitlement to fees under the statute”); Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (because damage occurred when city refused to produce canvassing board minutes until approved by city commission, production after the fact did nothing to mollify appellants’ injury and therefore issue was not moot as city’s refusal “denied any realistic access for the only purpose appellants sought to achieve -- review of the Minutes before the Commission meeting.”); and Schweickert v. Citrus County, Florida Board, 193 So. 3d 1075, 1079 (Fla. 5th DCA 2016) (“We agree that Appellant’s case was not rendered moot simply because the Board produced the requested documents after the filing of the initial complaint but prior to filing the amended complaint”). Accord O’Boyle v. Town of Gulf Stream, 257 So. 3d 1036, 1043 (Fla. 4th DCA 2018) (public records case did not become moot after the town provided unredacted records prior to the hearing, because there were collateral issues “yet to be decided by the trial court—specifically a determination whether the Town’s initial redactions... were proper and whether any reasonable attorney’s fees, costs, and expenses, should be awarded”). Compare, State v. Ingram, 170 So. 3d 727 (Fla. 2015) (opinion of district court of appeal holding that prison inmate was entitled to unredacted version of videotaped statement of minor victim vacated following State’s uncontested representation at oral argument before the Supreme Court that the videotape does not exist).

Similarly, in Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. 2d DCA 2004), review denied, 902 So. 2d 791 (Fla. 2005), cert. denied, 126 S.Ct. 746 (2005), the court found that a public records lawsuit over a custodian’s requirement that a commercial company obtain a licensing agreement before using the records did not become moot when the custodian provided the company with the requested data after the lawsuit was filed. Because the data was delivered subject to a condition that it was for personal use only, a controversy remained concerning the validity of the custodian restriction on the use of the data. And see Southern Coatings, Inc. v. City of Tamarac, 916 So. 2d 19 (Fla. 4th DCA 2005) (federal court’s dismissal of pendent claims based on state public records law is not a judgment on the merits and, therefore, not res judicata in a subsequent lawsuit in state court).

(5) Stay

If the person seeking public records prevails in the trial court, the public agency must comply with the court’s judgment within 48 hours unless otherwise provided by the trial court or such determination is stayed within that period by the appellate court. Section 119.11(2), F.S. An automatic stay shall exist for 48 hours after the filing of a notice of appeal for public records and public meeting cases, which stay may be extended by the lower tribunal or the court on motion. Fla. R. App. P. 9.310(b)(2). Cf. City of Sunny Isles Beach v. Gatto, 338 So. 3d 1045 (Fla. 3d DCA 2022) (party seeking disclosure in public records litigation in which a stay has been granted ordinarily does not have possession of the challenged documents unless and until it has been determined, with finality, that the documents are subject to disclosure).

(6) Venue

The general rule is that a lawsuit against the state or an agency of the state is proper only in the county in which the defendant maintains its principal headquarters. Florida Department of Children and Families v. Sun-Sentinel, Inc., 865 So. 2d 1278, 1286 (Fla. 2004). However, there is an exemption to the “home venue privilege” for Ch. 119 actions that involve access to confidential records and a good cause petition is filed to access those records. Id. Cf. Scott v. Thompson, 326 So. 3d 123 (Fla. 1st DCA, 2021), finding that elections supervisors in eight Florida counties were entitled to exercise the home venue privilege in litigation filed against them seeking to order the supervisors to retain digital copies of paper ballots, and distinguishing Florida Department of Children and Families v. Sun-Sentinel Inc., because the lawsuit against the Department of Children and Families involved access to confidential records that could not be made public without a determination of good cause, whereas the suit against the supervisors did not.

c. Attorney Fees and Costs

Section 119.12, F.S., provides authority for an award of reasonable costs of enforcement, including reasonable attorney fees, in civil actions filed to enforce the provisions of the Public Records Act, provided that certain conditions are met. Cf. Managed Care of North America, Inc. v. Florida Healthy Kids Corporation, 268 So. 3d 856, 862 (Fla. 1st DCA 2019) (s. 119.12 does not provide authority to award attorney’s fees to a third party intervenor in a case where the litigation involved a request for a declaratory judgment to determine whether portions of bid documents constituted trade secrets); Department of Health and Rehabilitative Services v. Martin, 574 So. 2d 1223 (Fla. 3d DCA 1991) (error to award attorney’s fees where order requiring production of records was entered pursuant to Adult Protective Services Act, rather than the Public Records Act). See also O’Boyle v. Town of Gulf Stream, 341 So. 3d 335 (Fla. 4th DCA 2022) and Downs v. Austin, 559 So. 2d 246 (Fla. 1st DCA 1990), review denied, 574 So. 2d 140 (Fla. 1990) (s. 119.12, F.S. does not constitute authority for attorney’s fees for litigating the amount of fee provided by that statute). Cf. AGO 16-16 (hospital district not authorized to reimburse an individual board member’s attorney fees incurred by her in responding to a public records request pertaining to her board service when no suit, claim, charge, or action has been instituted against the commissioner during the time the attorney fees were incurred).

A successful pro se litigant may recover reasonable costs under this section. Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000); Wisner v. City of Tampa Police Department, 601 So. 2d 296 (Fla. 2d DCA 1992). And see Weeks v. Golden, 846 So. 2d 1247 (Fla. 1st DCA 2003) (awarding costs associated with postage, envelopes and copying, as well as filing and service of process fees, incurred by inmate who prevailed in public records lawsuit). Accord Yasir v. Forman, 149 So. 3d 107 (Fla. 4th DCA 2014).

Section 119.12(1), F.S., provides that, if a civil action is filed against an agency to enforce the provisions of this chapter the court shall assess and award the reasonable costs of enforcement including reasonable attorney fees against the responsible agency if the court determines that the agency unlawfully refused to permit a public record to be inspected or copied and the complainant provided written notice of the public records request to the agency’s custodian of public records at least 5 business days before filing the civil action. See 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 (complainant who provided written notice of the public records request to the records custodian 5 days before the lawsuit was filed was not required to also telephone the custodian prior to filing suit, citing to Office of the State Attorney for the Thirteenth Judicial Circuit v. Gonzalez, 953 So. 2d 759 [Fla. 2d DCA 2007]).

However, notice is not required if the agency fails to prominently post the contact information for the agency’s custodian of public records in the agency’s primary administrative building in which public records are routinely created, sent, received, maintained, and requested and on the agency’s website, if the agency has a website. Section 119.12(2), F.S.

The court must also determine whether the complainant made the public records request or participated in the civil action for an improper purpose. Section 119.12(3), F.S. If the court determines that there was an improper purpose, the court may not award attorney fees or the costs of enforcement, to the complainant, and shall assess and award against the complainant and to the agency the reasonable costs, including reasonable attorney fees, incurred by the agency in responding to the civil action. Id. The term “improper purpose” means “a request to inspect or copy a public record or to participate in the civil action primarily to cause a violation of this chapter or for a frivolous purpose.” Id.

Section 119.12, F.S., is designed to encourage voluntarily compliance with the requirements of Ch. 119, F.S. “If public agencies are required to pay attorney’s fees and costs to parties who are wrongfully denied access to the records of such agencies, then the agencies are less likely to deny proper requests for documents.” New York Times Company v. PHH Mental Health Services, Inc., 616 So. 2d 27, 29 (Fla. 1993). Stated another way, the statute “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.” Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 125 (Fla. 2016). There is no additional requirement that the court find that the “public agency did not act in good faith, acted in bad faith or acted unreasonably.” , 189 So. 3d at 122.

However, as noted previously, s. 119.12, F.S., specifies other conditions which must be met prior to an award of fees and costs under this statute. And see State, Department of Economic Opportunity v. Consumer Rights, LLC, 181 So. 3d 1239 (Fla. 1st DCA 2015), rejecting appellee’s argument that the requirements in s. 284.30, F.S. (establishing procedures to be followed by those seeking to have attorney’s fees paid by the state or any of its agencies) are inapplicable to public records cases. Cf. Woliner v. State, 320 So. 3d 774 (Fla. 4th DCA 2021) (notice requirement in s. 284.30, F.S., does not preclude the prevailing party in a public records action from obtaining costs).

An “unlawful refusal” for purposes of s. 119.12 may include unlawful conditions or requirements imposed by an agency for obtaining public records. As the Supreme Court explained in Lee:

“Unlawful conditions or excessive, unwarranted special service charges deter individuals seeking public records from gaining access to the records to which they are entitled.... Even if not malicious or done in bad faith, the Pension Fund’s actions — which were found be unlawful - had the effect of frustrating Lee’s constitutional right to access public records and required him to turn to the courts to vindicate that right.”

Cf. B & L Service, Inc. v. Broward County, 300 So. 3d 1205 (Fla. 4th DCA 2020) (trial court did not err in refusing to award attorney’s fees, because petitioner waived issue of whether county unlawfully refused its public records request by failing to cross-appeal the trial court’s initial ruling that the county had not violated the public records law, even though the trial court subsequently modified its prior order by granting the petitioner’s motion for rehearing in part).

An “unjustified failure to respond to a public records request until after an action has been commenced to compel compliance amounts to an unlawful refusal” for purposes of s. 119.12, F.S. Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000). See also Mazer v. Orange County, 811 So. 2d 857, 860 (Fla. 5th DCA 2002) (“[T]he fact that the requested documents were produced in the instant case after the action was commenced, but prior to final adjudication of the issue by the trial court, does not render the case moot or preclude consideration of [the petitioner’s] entitlement to fees under the statute.); Barfield v. Town of Eatonville, 675 So. 2d 223, 224 (appellant entitled to attorney’s fees because “[t]he evidence clearly establishes that it was only after the appellant filed a lawsuit that the documents he had previously sought by written request to the Town were finally turned over to him); Promenade D’Iberville, LLC v. Sundy, 145 So. 3d 980, 984 (Fla. 1st DCA 2014) “) (an agency’s “production of the records on the eve of the enforcement hearing did not cure its unjustified delay”); and Schweickert v. Citrus County, Florida Board, 193 So. 3d 1075, 1080 (Fla. 5th DCA 2016) (county’s failure to produce a complaint alleging inappropriate conduct by a county commissioner until litigation was filed was an unlawful refusal because the exemption for records relating to an investigation of alleged discrimination did not apply to the complaint; court rejected the county’s argument that the delay was justified because the investigation into the complaint might have ultimately produced records which related to discriminatory behavior).

Stated another way, a delay in disclosing records can rise to the level of a refusal if “there was no good reason for the delay.” Consumer Rights, LLC v. Union County, 159 So. 3d 882, 885 (Fla. 1st DCA 2015), review denied, 177 So. 3d 1264 (Fla. 2015). For example, in Barfield v. Town of Eatonville, 675 So. 2d 223 (Fla. 5th DCA 1996), the court held that a town was liable for attorney’s fees even if the delay in providing records was due to either the intentional wrongdoing or ineptitude of its clerk. And see Office of the State Attorney for the Thirteenth Judicial Circuit of Florida v. Gonzalez, 953 So. 2d 759 (Fla. 2d DCA 2007) (attorney’s fees authorized even if failure to turn over the records was due to a mistake or ineptitude). Cf. Hewlings v. Orange County, Florida, 87 So. 3d 839 (Fla. 5th DCA 2012) (the mere fact that a county quickly responded to public records request via voicemail and fax is not dispositive of whether the county’s 45-day delay in complying with the request was justified).

“However, it is equally clear that a delay does not in and of itself create liability under s. 119.12, F.S.” Consumer Rights, LLC v. Union County, 159 So. 3d at 885. See also Lilker v. Suwannee Valley Transit Authority, 133 So. 3d 654, 655 (Fla. 1st DCA 2014) (where delay is the issue, the court must determine whether the delay was justified under the facts of the particular case). and McLendon v. Palm Beach County Office of Inspector General, 286 So. 3d 375 (Fla. 4th DCA 2019) (trial court correctly denied attorney’s fees because the requested record was exempt at the time that the request was made and did not become public until the investigation conducted pursuant to s. 112.3188 (2)(b), F.S., was concluded). Cf. Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., 195 So. 3d 396, 401 (Fla. 4th DCA 2016) (“The public records law should not be applied in a way that encourages the manufacture of public records requests designed to obtain no response, for the purpose of generating attorney’s fees.”).

A lawyer may recover fees for his or her assistance of a pro se litigant before entering a notice of appearance provided that the complaint requested attorney’s fees and disclosed that it was prepared with the assistance of counsel. O’Boyle v. Town of Gulf Stream, 341 So. 3d 343 (Fla. 4th DCA 2022). However, s. 119.12, F.S., “does not provide for (1) an award of attorney’s fees for litigating the amount of the fees or (2) an award of fees attributable to the non-testifying associates of an attorney fee expert.” O’Boyle v. Town of Gulf Stream, 341 So. 3d 335 (Fla. 4th DCA 2022). [Emphasis supplied by the court].

As to calculation of the reasonable costs of enforcement including reasonable attorney fees to which the prevailing party is entitled, “the trial judge is in a better position than the appellate court to make “a factual determination regarding the objectives sought by the [prevailing party], the extent of statutory enforcement obtained, and the time expended in achieving those results.” Daniels v. Bryson, 548 So. 2d 679, 682 (Fla. 3d DCA 1989). And see Grapski v. City of Alachua, 134 So. 3d 987 (Fla. 1st DCA 2012), review denied, 118 So. 3d 220 (Fla. 2012) (the trial court’s findings of fact on the issue of attorney’s fees are presumed correct; the standard of review is abuse of discretion). However, where the contract between the client and attorney provided that the attorney would be compensated on a flat hourly basis regardless of the outcome at trial, the trial court erred in awarding an enhanced fee based upon a contingency risk multiplier. Id.

A different rule has been applied when it is unclear whether a private corporation is an “agency” for purposes of the Public Records Act. Section 119.12, F.S., “was not intended to force private entities to comply with the inspection requirements of chapter 119 by threatening to award attorney’s fees against them.” New York Times Company v. PHH Mental Health Services, Inc., 616 So. 2d 27, 29 (Fla. 1993). Accord Fox v. News-Press Publishing Company, Inc., 545 So. 2d 941 (Fla. 2d DCA 1989).

Thus, attorney fees “are not warranted when the [private] entity in charge of the public records at issue was reasonably and understandably unsure of its status as an agency.” Lee v. Board of Trustees, Jacksonville Police & Fire Pension Fund, 113 So. 3d 1010 (Fla. 1st DCA 2013), approved, 189 So. 3d 120 (Fla. 2016). And see Economic Development Commission v. Ellis, 178 So. 3d 118, 123 (Fla. 5th DCA 2016) (“attorney’s fees should not be awarded in those cases where the party refusing to provide documents acted on the good-faith belief that it was not an agent, subject to compliance with the [Public Records] Act”). Cf. s. 119.0701(4), F.S., providing for an award of attorney fees against a “contractor” as defined in s. 119.0701(a), F.S., found to have unlawfully refused to comply with a public records request within a reasonable time, provided that the plaintiff has complied with the conditions set forth in the statute.

Attorney fees may also be awarded for a successful appeal of a denial of access, provided that at the time of appeal a motion is filed in accordance with the appellate rules. , supra. And see Office of the State Attorney v. Gonzalez, supra (where motion seeking appellate attorney fees is granted by appellate court and remanded only for calculation of such fees, lower court required to follow court’s mandate without further consideration); and Cf. Johnson v. Jarvis, 107 So. 3d 428 (Fla. 1st DCA 2012) (trial court erred in denying motion for costs based on appellant’s failure to comply with the notice requirement in s. 284.30, F.S; “[f]or purposes of appellate costs, the appellant was the prevailing party... and is entitled to an award of his costs incurred therein”).

Appellate attorney fees were also considered in State Attorney’s Office of the Seventeenth Judicial Circuit v. Cable News Network, Inc., 254 So.3d 461 (Fla. 4th DCA 2018). In that case, the court denied the media’s request for appellate attorney’s fees from the state attorney’s office and school board. The agencies had appealed the lower court’s order allowing the media to access certain video footage taken by security cameras at a high school where a gunman killed students and staff. Although the media prevailed in the appeal, the court observed that the video footage was confidential security information under s. 119.071(3)(a), F.S. The media obtained access because a judge found “good cause” to release the video footage as authorized by a statutory exception to the confidentiality provision. Thus, the school board’s conduct was not ‘unlawful’ for purposes of s.119.12(1)(a), F.S. Additionally, the court refused to award fees against the state attorney because the state attorney was not the custodian of the records at issue; the state attorney was only an intervenor in the lawsuit below.

§2-H-3 | CRIMINAL AND NONCRIMINAL INFRACTION 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. See State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001) (s. 119.10[1][b] authorizes a conviction for violating s. 119.07 only if a defendant is found to have committed such violation “knowingly”; statute cannot be interpreted as allowing a conviction based on mere negligence).

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. Cf. s. 838.022(1)(b), F.S. (unlawful for a public servant or public contractor, to knowingly and intentionally obtain a benefit for any person or to cause unlawful harm to another, by concealing, covering up, destroying, mutilating, or altering any official record or official document, except as authorized by law or contract, or causing another person to perform such an act).

A state attorney may prosecute suits charging public officials with violations of the Public Records Act, including those violations which may result in a finding of guilt for a noncriminal infraction. AGO 91-38.

Subpart 2-I
Maintenance, Storage, and Retention Requirements

§2-I-1 | MAINTENANCE AND STORAGE OF RECORDS

All public records should be kept in the buildings in which they are ordinarily used. Section 119.021(1)(a), F.S. 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. Section 119.021(1)(b), F.S. 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. Section 119.021(1)(c), F.S.

Thus, public records may not routinely be removed from the building or office in which such records are ordinarily kept except for official purposes. AGO 93-16. The retention of such records in the home of a public official 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. Id. And see AGO 04-43 (mail addressed to city officials at City Hall and received at City Hall should not be forwarded unopened to the private residences of the officials, but rather the original or a copy of the mail that constitutes a public record should be maintained at city offices); and AGO 07-14 (“Although the Public Records Law does not prescribe a location at which public records must be maintained, it does suggest that such records be kept where they are ordinarily used”). Cf. Inf. Op. to Sola, March 9, 2010 (municipal election records are municipal records which should be maintained by city even though election conducted by county supervisor of elections) and AGO 88-26 (while Ch. 119, F.S., does not require a county to transport microfilmed copies of public records maintained in a storage facility outside the county to the county courthouse when the originals are available at the courthouse, the microfilmed copies must be available for copying at their location outside the county).

§2-I-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. See Maxwell v. Pine Gas Corporation, 195 So. 2d 602 (Fla. 4th DCA 1967) (state, county, and municipal records are not the personal property of a public officer); AGO 98-59 (records in the files of the former city attorney which were made or received in carrying out her duties as city attorney and which communicate, perpetuate, or formalize knowledge constitute public records and are required to be turned over to her successor); and AGO 75-282 (public records regardless of usefulness or relevancy must be turned over to the custodian’s successor in office or to the Department of State). And see s. 119.021(4)(b), F.S., providing that “[w]hoever is entitled to custody of public records shall demand them from any person having illegal possession of them, who must forthwith deliver the same to him or her.”

In the absence of contrary direction in the legislation dissolving a special taxing district, the district’s records should be delivered to the Department of State. AGO 95-03. Compare AGO 09-39, stating that in light of a court order holding that an independent special district is the successor-in-interest to the powers and duties of a municipal services benefit unit [MSBU], the records of the MSBU should be delivered to the special district. Cf. s. 257.36(2)(b), F.S., specifying procedures for disposition of agency records stored in the state records center in the event that the agency is dissolved or its functions are transferred to another agency.

§2-I-3 | TRANSITION RECORDS OF CERTAIN OFFICERS-ELECT

Section 119.035(4), F.S., states that “upon taking the oath of office, the officer-elect shall, as soon as practicable deliver to the person or persons responsible for records and information management in such office all public records kept or received in the transaction of official business during the period following election to public office.” The term “officer-elect” for purposes of this section means the Governor, the Lieutenant Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. Section 119.035(5), F.S.

§2-I-4 | RETENTION AND DISPOSAL OF RECORDS

a. Retention Schedules

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. Section 119.021(2)(b), F.S. See generally Chs. 1B-24 and 1B-26, Florida Administrative Code. The approved records retention schedule for state and local governmental entities is located online at dlis.dos.state.fl.us/barm/genschedules/GS1-SL.pdf. Cf. L.R. v. Department of State, Division of Archives, History and Records Management, 488 So. 2d 122 (Fla. 3d DCA 1986) (an affected party seeking to challenge an agency’s approved records retention schedule may be entitled to a hearing pursuant to Ch. 120, F.S).

Retention schedules for judicial branch records are established by court rule. See Fla. R. Gen. Prac. & Jud. Admin. 2.430 (court records) and Fla. R. Gen. Prac. & Jud. Admin. 2.440 (judicial branch administrative records). Similarly, procedures for maintenance and destruction of legislative records are established in legislative rules. Legislative rules may be accessed online at www.flsenate.gov (Florida Senate) and www.myfloridahouse.gov (Florida House of Representatives).

b. Disposal of Records

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.” Section 119.021(2) (c), F.S., provides that public officials must “systematically dispose” of records no longer needed, subject to the consent of the division in accordance with s. 257.36, F.S. Compare s. 119.021(3), F.S., stating that notwithstanding the provisions of Chs. 119 or 257, F.S., certain orders that comprise final agency action must be permanently maintained.

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. AGO 94-75. See also AGOs 09-19 (city must follow public records retention schedules established by law for information on its Facebook page which constitutes a public record); 96-34 (e-mail messages are subject to statutory limitations on destruction of public records); and 75-45 (tape recordings of proceedings before a public body must be preserved in compliance with statutory record retention and disposal restrictions). And see Raydient LLC v. Nassau County, Florida, No. 2019-CA-000054 (Fla. 4th Cir. Ct. August 24, 2021), available in the Cases database at the open government site at MyFloridaLegal.com, finding that the “routine and indiscriminate destruction of text messages by [county commission] members and certain county employees, regardless of the content of each message, violated s. 119.021, F.S.,” requiring that public records be kept in accordance with a retention schedule adopted by the Florida Department of State.

Similarly, registration and disciplinary records stored in a national association securities dealers database and used by state banking department for regulatory purposes are public records and may not be destroyed merely because an arbitration panel of the national association has ordered that they be expunged; such records are subject to statutory mandates governing destruction of records. AGO 98-54. Accord Inf. Op. to Hernandez, July 1, 2003 (agency not authorized to purge or expunge documents it created while carrying out what it perceived to be its official duty based upon an accusation that the agency may have been mistaken in such an assessment). Cf. AGO 91-23 (clerk of court not authorized to expunge a court order from the Official Records, in the absence of a court order directing such action).

c. 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, or employment examination question and answer sheets except as authorized by statute. And see AGO 87-48 (statutory prohibition against placing anonymous materials in the personnel file of a school district employee did not permit the destruction of such materials received in the course of official school business, absent compliance with statutory restrictions on destruction of records). 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. AGO 93-86. See s. 119.021, F.S.

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. Section 119.07(1)(h), F.S

d. 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. AGO 04-51. Accord Inf. Op. to Blair, August 24, 2011 (evidence that constitutes a public record may be destroyed only in accordance with retention schedules established by the division and noting that the division has adopted a General Records Schedule GS2 for law enforcement agencies).

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.” Inf. Op. to Blair, August 24, 2011. (e.s.) Cf. 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 (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”).

e. Duplicate Records

Section 257.36(6), F.S., requires the division to adopt rules which, among other things, establish “[s]tandards for the reproduction of records for security or with a view to the disposal of the original record.” See AGO 18-04 (according to a division rule, “an agency that designates an electronic or microfilmed copy as the record (master) copy may then designate the paper original as a duplicate and dispose of it in accordance with the retention requirement for duplicates in the applicable retention schedule unless another law, rule, or ordinance specifically requires its retention”).

Accordingly, the division is responsible for determining whether an agency may dispose of an audiotape of a witness statement without regard to the retention schedule, if there is also a transcript of the statement. Inf. Op. to Mathews, July 12, 2004. Cf. AGO 91-09 (if a facsimile document is subsequently copied by the receiving agency, the facsimile document is considered an intermediate document which may be destroyed; the copy of the facsimile then is retained as a public record). See also AGO 92-85, stating that individual school board members are not required to retain copies of public records which are regularly maintained in the course of business by the clerk of the school board in the school board administrative offices.

Congratulations! You're now booked up on Part II (PUBLIC RECORDS) from Florida's Sunshine Manual!

You might need to reference it during your pursuit of justice.

For instance, you might need to examine this part in order to protect yourself from judges/lawyers/organizations who break the law (see this example of a Florida judge who outright committed perjury).

Nevertheless – and as always – please get the justice you deserve.

Sincerely,

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Florida's Sunshine ManualPart II: PUBLIC RECORDS

Subpart 2-AScope of the Public Records Act

§2-A-0 | SCOPE OF THE PUBLIC RECORDS ACT

Subpart 2-BWhat Entities are Covered? Application of the Public Records Act to:

§2-B-1 | ADVISORY BOARDS

§2-B-2 | PRIVATE ORGANIZATIONS

a. Private Entities Created Pursuant to Law or by Public Agencies

b. Private Entities Contracting with Public Agencies or Receiving Public Funds

(1) “Totality of Factors” test

(2) Delegation of function test

Corrections Company Operating County Jail:

Employment Search Firm:

c. Private Company Delegated Authority to Keep Certain Records

d. Subcontractors

e. Other Statutory Provisions Governing Records of Private Entities

(1) Contract Requirements

(2) Legislative Appropriation

(3) Public Funds Used for Dues

§2-B-3 | JUDICIARY

a. Public Records Act Inapplicable to Judicial Records

b. Public Access to and Protection of Judicial Branch Records, Fla. R. Gen. Prac. & Jud. Admin. 2.420

(1) Scope of the Rule

(2) Confidential Judicial Records

(3) Procedures for Accessing Judicial Branch Records under Rule 2.420

c. Discovery Material

d. Florida Bar

e. Judicial Qualifications Commission and Judicial Nominating Commissions

f. Jury Records

(1) Grand jury

(2) Trial jury

g. Sunshine in Litigation Act

§2-B-4 | LEGISLATURE

§2-B-5 | GOVERNOR AND CABINET

§2-B-6 | COMMISSIONS CREATED BY THE CONSTITUTION

Subpart 2-CWhat Records are Covered? Application of the Public Records Act to:

§2-C-0 | INTRODUCTION

§2-C-1 | ADOPTION AND BIRTH RECORDS

§2-C-2 | AUTOPSY AND DEATH RECORDS

a. Autopsy Reports

b. Autopsy Photographs and Recordings

c. Photographs, Video and Audio Recordings that Depict or Record the Killing of a Law Enforcement Officer or the Killing of a Victim of Mass Violence

d. Death Certificates

§2-C-3 | CHILD AND VULNERABLE ADULT ABUSE AND PROTECTION RECORDS

a. Department of Children and Families Abuse Records

(1) Confidentiality of Abuse Records

(2) Release of Abuse Records

b. Foster Home, Licensure and Quality Assurance Records

c. Guardians ad litem and Court Monitors

d. Status of Abuse Records Held by Law Enforcement Agencies

§2-C-4 | DIRECT-SUPPORT ORGANIZATIONS

§2-C-5 | DOMESTIC VIOLENCE AND STALKING RECORDS

§2-C-6 | DRAFTS AND NOTES

§2-C-7 | EDUCATION RECORDS

a. Charter Schools

b. Student Records

c. Children in Government-Sponsored Recreation Programs

d. School System Security

e. Testing Materials

§2-C-8 | ELECTION RECORDS

a. Ballots

b. Voter Registration and Voter Records

§2-C-9 | ELECTRONIC AND COMPUTER RECORDS

a. Electronic Databases and Files

b. Consideration of Public Access in Design of Electronic Recordkeeping System

c. E-Mail

d. Social Media Postings

e. Text Messages

f. Cybersecurity

§2-C-10 | EMERGENCY RECORDS

a. Emergency “911” Records

b. Emergency Evacuation Plans and Special Needs Registry

c. Emergency Medical Services Records

d. Emergency Notification

e. Emergency Planning Information Furnished to Division of Emergency Management

f. Emergency Shelter and Disaster Recovery Assistance

§2-C-11 | FINANCIAL RECORDS

a. Audit Reports

(1) Auditor General audits

(2) Local Government Audits

(3) State agency inspector general audits

Florida's Sunshine Manual
Part II: PUBLIC RECORDS

Subpart 2-A
Scope of the Public Records Act

Subpart 2-B
What Entities are Covered? Application of the Public Records Act to:

Subpart 2-C
What Records are Covered? Application of the Public Records Act to: