By: Charles B. Jimerson, Esq. and Evan Reid, J.D. Candidate
Despite the fact that the Florida Constitution mandates a right to public records, the process of obtaining public records can be, to say the least, frustrating. Citizens are often forced to wade through an array of statutes, rules, and court interpretations to exercise their constitutional right. As a result, the public faces a time-consuming, expensive, and unnecessarily complicated process. When agencies do not follow the public records laws, they may be required to pay the attorney’s fees and costs for the person making the request.
Requesting Public Records: Who, What, and How
Anyone can request a public record. The person making the request does not have to provide any form of identification or state a reason as to why he or she wants to see the record. Agencies are prohibited from imposing requirements that the person making the request is a citizen of or resident in Florida.
The definition of public record includes anything “made or received in connection with the official business” of a public agency. Fla. Const. art. I, §24(a). Examples of things that would meet this definition are:
- Documents including letters, papers, and reports
- Video recordings
- Sound recordings
Also, when public employees use personal devices to communicate matters related to public business, those records are subject to a public records request. The content of the communication, not the method of communication, is what determines whether something is a public record. This requirement makes sure that when agency employees use personal devices for official business, they are not getting around the laws governing records requests. The Florida Supreme Court interpreted the definition of public records as encompassing all records used to perpetuate, communicate, or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). Regardless of how the agency keeps the record, if the record pertains to official business of the governmental agency or its officials, it is a public record subject to disclosure, with limited exceptions.
The essence of the public records law is relatively simple: Every person has the right to inspect or copy any public record of any public agency. As a general proposition, Florida’s public records laws are liberally construed in favor of the state’s policy of open government. If there is any doubt whether the law applies, the doubt is resolved in favor of providing the records.
Public records requests are supposed to be simple. Some agencies have public records request contact information on their websites and some post signs in their administrative buildings. If this information is not prominently displayed, then the request does not have to be in writing. This sample letter from the First Amendment Foundation is a good starting point for drafting a request.
Under Chapter 119.12 of the Florida Statutes, a court will award attorney’s fees and costs to a person making a public records request if:
- The agency unlawfully refused to permit a public record to be inspected or copied; and
- The person initiating the lawsuit provided written notice to the agency’s custodian of public records at least five business days before filing suit.
However, the five business day waiting period only applies if the agency posts the contact information of its custodian of records in a prominent position within its primary administrative building and on the agency’s website, if it has one.
So, five business days after making the request, the person seeking the records should contact an attorney who can help file a lawsuit. A judge can order the agency to comply with the public records request and will also make the agency pay for the attorney’s fees and costs incurred in the lawsuit.
Because agencies have been plagued in the past with people flooding agencies with public records requests just to file suit and recover attorney’s fees, there are some limitations. Most importantly, the request cannot be for an improper purpose. The statute defines the term “improper purpose” as “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.” If the person making the request has a good faith basis for doing so, then the proper purpose requirement should be satisfied.
Floridians have a clear right to public records. When agencies prevent someone from accessing public records, the person making the request is allowed to hire an attorney without worrying about the costs involved. The agency will have to reimburse parties for their attorney’s fees and costs incurred in exercising their constitutional right.