***Click here for frequently asked questions on Florida’s Public Records Act.***
On paper, Florida has one of the most robust and user-friendly public records laws in the country. In principle, these records belong to the public by law and should be readily available to anyone who requests to see or obtain a copy of them. The purpose of Florida’s public records law is to ensure that state government is transparent and accountable. In fact, access to public records is guaranteed unless the record has been exempted or specifically made confidential by statute or the state constitution.
Everyone benefits from knowing what state officials are doing, why they are doing it, and how tax dollars are being spent. This free sharing of public records allows individuals to both understand how the government is implementing policies that affect them and vindicate their own rights. It also equips Floridians — and other community members and advocates — with the facts needed to help develop solutions that mitigate disparities and expand equity.
Even so, in recent years, state agencies have begun to skirt Florida’s public records laws through unreasonable delays or outright refusals to provide public records. Unless lawmakers put an immediate stop to these unconstitutional efforts that subvert the rights of Floridians, the free flow of information and the state’s underlying system of democracy is at risk.
Access to Public Records in Florida is Both a Statutory and Constitutional Right
First enacted over a century ago, the state’s Public Records Act requires state agencies to make public records in their possession available to anyone who requests them. Although Florida law carves out exemptions to protect sensitive personal information, such as medical records, trade secrets, Social Security numbers, and the names of victims of certain crimes, there is a presumption that governmental records are open to all.
In 1992, Floridians demonstrated how strongly they feel about maintaining an open government by ratifying a constitutional amendment that guarantees the right to access public records in Article I, Section 24(a), of the state constitution. This section gives every Floridian the right to see or obtain a copy of any public record in the possession of the executive, judicial, or legislative branch of Florida’s government. The amendment was approved by 83 percent of Floridians in the 1992 general election, making Florida the first state in the country to establish access to public records as a fundamental constitutional right.
Despite a Legal Duty to Provide Public Records When Requested, Some State Agencies Block Access to Documents
Reports of state agencies curbing access to public documents have begun to emerge in recent years. Although the law purports to give Floridians easy access to information that makes the government accountable and its actions transparent, many governmental entities in Florida are not playing by the rules. The examples below include instances of agencies denying requests for public documents on dubious grounds, creating seemingly unreasonable delays, and billing taxpayers thousands of dollars for responding to Public Records Act requests. Although some of these disputed documents may be politically sensitive, these requests appear to be for public records that are of legitimate interest to many Floridians, such as:
- contact tracing during the COVID -19 pandemic
- public health data stating COVID infection rates, hospitalization, death, and vaccination rates[1]
- COVID data related to deaths at eldercare facilities
- the state Department of Education’s implementation of the 2022 Stop W.O.K.E. Act
- the use of Florida funds to transport immigrants to other states
- data requested by FPI related to immigrants detained under section 287(g) to the Immigration and Nationality Act[2]
- data requested by FPI on Florida’s official state plan for reimbursing Supplemental Nutrition Assistance Program participants for benefits that have been electronically stolen
Prompt access to public records that are neither confidential nor exempt is guaranteed by law, and infringing on this constitutional and statutory right sets a dangerous precedent. Pushback from state agencies in responding to Public Records Act requests should not deter Floridians from standing up for their right to see the documents that belong to them. However, the remedies that Floridians have to enforce this right are inadequate.
Florida Lawmakers Should Strengthen Remedies for Violations of Public Records Law to Ensure Accountability
Despite the breadth of Florida’s public records law, little exists in either the state statute or the Florida Constitution to ensure that people can enforce their rights quickly and inexpensively — especially when comparing the Public Records Act with the federal Freedom of Information Act (FOIA). For FOIA requests, people are entitled to free help in understanding and making requests for public documents through FOIA Requester Service Centers and FOIA Public Liaisons, which offer an easy and cost-free way to informally resolve disputes. In addition, federal law allows people to file formal administrative appeals free of charge if they are unhappy with the government’s response to their FOIA request.[3] If people are not satisfied with the outcome of the administrative appeal, they have the right to file for judicial review.
In contrast, Florida law does little to guarantee that the public has an economical way to resolve public records disputes. Although lawmakers have created an Open Government Mediation Program within the state attorney general’s office to help parties resolve public records disagreements without going to court, there is no assurance that the mediation program will help in every case. This is because, to take advantage of the program, both parties to the dispute (including the state agency) must agree to the mediation, unlike mediation programs run by attorneys general in other states. For example, Georgia’s mediation program assists members of the public in resolving disputes regardless of the agency’s willingness to go along.
Other than Florida’s Open Government Mediation Program, the only other recourse for Floridians to enforce their rights under the Public Records Act is to go to court, which may not be possible for people who cannot afford a lawyer.
Therefore, it is incumbent to the future of Florida's democracy that state government comply with requests for public records — and be held responsible when they fail to do so. Lawmakers should enact remedies that make it harder for agencies to ignore requests for public documents while making it easier for Floridians to enforce their rights without having to hire attorneys to file lawsuits.
Notes
[1] Sun Sentinel Editorial Board, “Two years and too many COVID deaths later, a victory for transparency in Florida,” Sun Sentinel, October 11, 2023, https://www.sun-sentinel.com/2023/10/11/two-years-and-too-many-covid-deaths-later-a-victory-for-transparency-in-florida-editorial/. According to media accounts about the lawsuit filed to access this COVID data, Florida’s Department of Health settled the case by agreeing to make COVID data available for three years and paying more than $152,00 in legal fees to the Floridian who brought the lawsuit. WUSF, Health News Florida, “Florida settles lawsuit over COVID data, agrees to provide weekly stats to the public,” October 10, 2023, https://health.wusf.usf.edu/health-news-florida/2023-10-10/florida-settles-lawsuit-over-covid-data-agrees-to-provide-weekly-stats-to-the-public.
[2] Section 287(g) of the INA gives state and local law enforcement the authority to remove incarcerated immigrants and placed them in local detention centers pursuant to a written agreement between state or local law enforcement and the United States Department of Homeland Security. United States Immigration and Customs Enforcement, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,” https://www.ice.gov/identify-and-arrest/287g.
[3] United States Department of Justice, FOIA.gov, “Learn about FOIA: How do I file an administrative appeal?,” https://www.foia.gov/faq.html; United States Department of Justice, Office of Information Policy, “OIP Guidance: Adjudicating Administrative Appeals Under the FOIA,” August 12, 2012, https://www.justice.gov/oip/oip-guidance/Adjudicating%20Administrative%20Appeals%20Under%20the%20FOIA.
