***Click here for the blog post, "Government Transparency and People’s Right to Know: Efforts to Restrict Access to Public Records in Florida is a Slippery Slope."***
Note: The purpose of this document is to provide general information only; nothing in this document is intended to give legal advice. People with low income who have legal questions related to public records should contact their local legal services organization for possible advice. Further, since not every situation involving a request for public records could be addressed in this document, Florida Policy Institute recommends that people interested in knowing more about their rights review the law. [1] Other important resources include the First Amendment Foundation[2] and the Florida Attorney General’s Government in-the-Sunshine Manual.
Floridians have a powerful statutory and constitutional right to access most of the records held by state and local governmental agencies. Unless the record has been exempted or specifically made confidential by law or the Florida Constitution, agencies must — in good faith — provide access to public records. Still, reports have surfaced about unjustified denials or delays by the government in responding to public records requests. Below are answers to frequently asked questions about common issues that arise under the state’s public records law.
What constitutes a public record under Florida’s Public Records Act?
Florida’s Public Records Act at Chapter 119 of the Florida Statutes defines a “public record” broadly. The definition includes documents such as emails, data stored in a state agency’s computer, most documents in final or draft form, and video and audio recordings:
“. . . 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.”[3]
This definition has evolved over time to include data and information stored on an agency’s computer to the same extent as if the data and information were in a written document. In fact, the law states that the automation of public records must not limit people’s right to access them. In addition, the definition is broad enough to cover most documents in both their draft and final form, as well as documents that are tapes, recordings, films, or photographs.
What governmental entities are subject to the Public Records Act?
Virtually all state and local governmental units in Florida that have been created by state statute or the Florida Constitution — as well as some private entities — are subject to the Public Records Act.
Chapter 119 refers to the entities subject to the Public Records Act as “agencies.”
They include entities such as the state Department of Children and Families, as well as many people, organizations, and businesses in the private sector acting on behalf of a state or local government, such as corrections companies operating county jails. In fact, the Public Records Act states that agency contracts for services must require that the contractor follow the public records law.
The Florida Constitution extends Florida’s Public Records Act to any state governmental body created by the Constitution, including officers, employees, and persons acting on their behalf. This includes:
“. . . legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.”
Florida’s Public Records Act applies solely to state and local governments, not to federal entities. To obtain public records documents from the federal government, Floridians must file a Freedom of Information Act (FOIA) request with the federal entity that holds the records being sought. The federal FOIA requires compliance with a completely different set of procedures and laws than Florida’s public records laws.
Is it hard to make a request for public records?
Requesting public records is simple. State law allows Floridians to submit Public Records Act requests by fax, email, letter, in person at an agency’s office, or over the phone. Requests do not have to be in writing or submitted on any particular form,[4] although people who make public records requests orally may find it difficult to prove they made such a request if it has not been committed to writing.
The person requesting the document is not required to show U.S. citizenship; live in Florida; identify themselves; give the agency a copy of their driver’s license or other ID; provide their phone number, email or street address; or explain why they want the document or how they are going to use it. (Of course, people who prefer not to reveal their email, mailing address, or identity in a public records request must ensure that the agency has a way to transmit the documents to them.)
To request public records, Floridians need only make their oral or written request to the “custodian of the public record.” Since determining who is a records custodian is made on a case by case basis, people who want copies of public records should make that request to the officially designated public records staff person for the agency that possesses the documents.
Many state agencies have individual webpages dedicated to public records. Some agencies, such as the Department of Children and Families, the Department of Commerce (formerly Department of Economic Opportunity), and the Department of Heath even have electronic forms for submitting a public record act request.
Can someone ask for more than one document in a Public Records Act request?
A person can ask for as many records in a request as needed. However, the agency may impose a service charge for either copying voluminous documents or compiling documents that require extensive use of information technology resources.
In addition, as a practical matter, the more documents that a person requests, the longer it may take the agency to gather them and respond. Sometimes, it is wise to start with a small request and follow up with an ask for more documents if records that the agency produces do not contain the information needed.
Can a state agency ignore a Public Records Act request?
By law, agencies have a duty to promptly acknowledge requests for public records and respond to the request in good faith. This means that, not only do state agencies have a duty to produce public records when requested, but they must also do so without unjustified delay.[5]
When asked for public records, state agencies must make those records available for inspection and or copying “at any reasonable time, under reasonable condition.”
However, the Public Records Act does not contain a specific time limit by which agencies must act. Instead, a determination as to whether an agency has acted timely must be based on the facts of each individual case.[6]
Can someone be charged a fee for a public records request?
The Public Records Act authorizes the imposition of fees for public records. However, those fees are not intended as ways for the agency to make money.
Normally, agencies can charge up to 15 cents for one-sided documents that are 14 inches by 8.5 inches or less in size and 20 cents for two-sided documents. If the agency is asked to provide a certified copy of a document, the agency can charge $1. In addition, if the agency has to use extensive[7] technology or staff time in responding to a public records request, the agency can impose a service charge, as long as that charge is reasonable[8] and reflects its actual costs. For copies of all other records, the agency may only charge the actual cost for duplication.
Florida’s Public Records Act requires that fees for public records be paid in advance before the records are released. There are no exceptions to the required fees. People still have to pay even if they are unable to afford the fee, have an urgent need for the documents, or plan to use the information in the documents for the public good.
However, there are ways to try to minimize costs associated with a public records request. To avoid charges for copying, people can attempt to convince the agency to waive fees, even though no right to fee waiver exists in law. In addition, to avoid copying charges, people may scour records themselves under the supervision of the agency and take photos of any documents they want. Normally, this must be done in the room where the records are kept, unless the custodian of the records authorizes a different location. However, the agency can assess a service charge for supervising the photographing.
What can people do if an agency says that requested documents are exempt or confidential?
If a state agency says that requested documents are exempt or confidential, the person making the request can ask the agency to redact the portion of the document containing that information if it has not done so already. Under the Public Records Act, redaction means “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.” To redact exempt or confidential information, agencies often black-out or blur the text that they are trying to hide. Even if an agency exempts part of a record, it must produce the remainder of the document for inspection or copying.
Further, an agency that claims a document, or part of a document, is exempt from disclosure must state the basis for the exemption as well as the statutory citation to the law creating the exemption. If an agency claims that a document is exempt from public records yet fails to provide the required information, the requester can ask the agency to do so.
How does someone enforce their right to public records?
Florida law creates a public records mediation program within the state attorney general’s office. The program is supposed to help parties resolve public records disputes without having to go to court. However, both parties to the dispute (including the state agency) must agree to the mediation.
Other than Florida’s Open Government Mediation Program, the only other recourse that Floridians have 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. However, if a lawsuit is filed, the case must have priority over other pending cases and be set for an immediate hearing. In addition, the First Amendment Foundation may be able to assist people in enforcing their public records rights — the organization has a hotline to respond to concerns about Florida’s public records law.[9]
Notes
[1] Ch. 119, Fla. Stat. (2023); Art. 1 § 24(a), Fla. Const. (2023).
[2] The First Amendment Foundation has a hotline available to respond to concerns about Florida’s public records law and may even be able to assist people in enforcing their public records rights. However, Florida Policy Institute neither endorses nor is responsible for any content from a third party that may be accessed from this document and does not endorse the use of services by any third party.
[3] In contrast, the Florida Constitution does not set out a definition of “public records,” although it guarantees the right to inspect or copy “any public record” unless exempted by the Florida Constitution.
[4] Note, however, that Rule 2.420(m)(1) of Florida Rules of General Practice and Judicial Administration requires that requests for public records of the judicial branch be submitted in writing.
[5] Jackson v. City of South Bay, 4D21-3503, —So. 3d — (Fla. 4th DCA Feb. 15, 2023).
[6] Roldan v. City of Hallandale Beach, No. 4D22-103, —So. 3d — (Fla. 4th DCA April 5, 2023).
[7] The Public Records Act does not define “extensive.”
[8] The Public Records Act does not define “reasonable.”
[9] See note at 2. Florida Policy Institute neither endorses nor is responsible for any content from a third party that may be accessed from this document and does not endorse the use of services by any third party.
