Public agencies commonly slip up when navigating Florida’s public records law, which can result in costly litigation and judgments for fees. An understanding of the basics of Florida’s laws is critical to preventing errors before they occur.

Many are familiar with former U.S. Supreme Court Justice Louis Brandeis’ famous axiom about sunlight being the best disinfectant. Perhaps no state has taken this to heart more than Florida, which boasts some of the broadest public records laws in the nation, as enshrined in Florida’s government-in-the-sunshine law and public records law. Succinctly put, it is the policy of the state that the business of the public should be conducted transparently so that the public can see what is being done and how. While this may seem easy on paper, public agencies commonly slip up when navigating Florida’s public records law, which can result in costly litigation and judgments for fees. An understanding of the basics of Florida’s laws is critical to preventing errors before they occur.

Who Is Covered by Florida’s Public Records Law?

A common mistake is thinking only public employees are covered under Florida’s public records law. However, Florida’s law extends beyond just state employees and can include contractors and other third parties providing services to the state. For example, third party vendors who provide software services or online counseling to public agencies, like school boards or police departments, may find themselves subject to Florida’s public records law depending on the type of services being provided. For this reason, contracts between a public agency and contractors acting on behalf of the agency must include certain provisions—as specified by Florida law—notifying the contractor of their obligations under Florida’s public records law. This puts both the vendor and the agency’s records custodian on notice and can prevent misunderstandings down the road.

What Is a Public Record?

Florida courts define public records as all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge. The format of the record is irrelevant, so hard copies are treated the same as electronic or digital records. The best way to think of public records is any record or document related to the official business of any public agency. Anything created as part of this official business is considered open to the public for access and inspection, unless the Florida Legislature has exempted them from disclosure. And while many exemptions exist under the law, they are narrowly construed and may be agency-specific, meaning each agency will have to investigate what, if any, exemptions apply to it. One broad example is a new law that allows agencies to keep certain cybersecurity and other critical infrastructure information confidential and exempt from public disclosure. A more specific example pertaining to law enforcement is the exemption that protects active criminal intelligence and investigative information from disclosure.

Where Do Public Records Live?

In short, public records can live anywhere. This is unsurprising, given Florida’s strong public policy favoring open inspection. Thus, public records are not restricted to only those records that “live” or are physically located within the state. Whether the records are in California or beyond, if they are related to the official business of a public agency, they fall within the umbrella of Florida’s laws. Similarly, public records are not limited to just those created on or sent over state-owned/controlled devices or mediums. This means emails and text messages are fair game, even if sent over an employee’s personal device or network. This is a common area of confusion, as employees may believe records on their personal devices are untouchable. Not so: It is the content of the message that is key.

Why Is Florida’s Public Records Law So Broad?

The purpose of Florida’s public records law is to fulfill Florida constitutional requirement of making public records openly accessible to the public. To accomplish this constitutional mandate, and the Florida Legislature’s objectives in enacting the broad government-in-the-sunshine and public records laws, Florida courts construe these laws liberally in favor of openness and the public’s right of access. Likewise, courts closely scrutinize public agencies that seek to hide public records from disclosure or refuse records requests on the grounds they are exempt from compliance, as any exemptions are construed narrowly and limited to their designated purpose.

How Can a Public Agency Avoid Pitfalls and Mistakes?

Violating Florida’s public records law can carry a steep price tag, as it not only allows civil actions to be filed against an agency to enforce compliance, but also entitles a successful complaining party to their costs and attorney’s fees. These costs and fees can quickly become substantial depending on the volume of records in question. In addition, the Florida Supreme Court has held that a party is entitled to their attorney’s fees when a public agency unlawfully refuses access to public records, regardless of if the agency’s mistake was made because the agency believed it was acting reasonably or in good faith. Thus, the agency’s intent is irrelevant: If the records were unlawfully withheld, costs and fees will follow.

With these baseline understandings in mind, the million-dollar question becomes how can public agencies avoid million-dollar errors for violating Florida’s public records law? The answer in two words is training and policies. Comprehensive training on the above tenets, as well as any relevant exemptions, can serve as a powerful safeguard against future mistakes. As a corollary, it is always a best practice to have strong policies in place that are consistently enforced, to make sure all employees are aware of their responsibilities under these laws and held to the same standards when measuring compliance. Having a good policy as the backbone and training as reinforcement will help prevent stumbling over the hurdles that often trip up agencies.

In the end, Florida’s public records law should be interpreted liberally, and its exemptions construed narrowly. We recommend all practitioners and public agencies hold these principles in mind when crafting policies and training on this issue.

Reprinted with permission from the January 10, 2023 edition of Daily Business Review © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Want to learn more about this topic? Check out our Legally Qualified podcast episode where Leonard and Jeffrey discuss this topic in detail and share examples of common mistakes along with suggested remedies.