Florida Public Official Ethics - PUBLIC RECORDS and MEETINGS
Amendment to Public Records Act applies retroactively and prevents disclosure of identity of witnesses to a murder who could also be considered victims of a crime. [Added 10/5/17]
Someone shot and killed the murder victim as he was driving on I-95. A vehicle with 2 occupants followed the suspect’s vehicle and tried to get its license number. The suspect shot at their car. The shots struck their car but did not hit the occupants.
Newspaper made a public records to the Sheriff’s Office (PBSO) for the names of the persons who chased the suspect. PBSO refused to provide the requested information “because, in its view: (a) the identity of witnesses to a crime was covered by the so-called ‘active criminal investigative information’ exception to the [Public Records] Act; and (b) as these ‘witnesses’ were not ‘victims’ of the primary crime being investigated (the homicide), the statutory ‘exception’ to this ‘exemption’ – which compels disclosure of the identity of ‘the victim of a crime’ – was not implicated.” See F.S. 119.001(3)(c)(2).
Newspaper filed suit under the Public Records Act. The trial court orally granted Newspaper’s request for the information and ordered disclosure, “that these individuals – while primarily witnesses – also were victims and, as a result, their identifying information was specifically excluded from the definition of ‘active criminal investigative information’ and hence outside the reach of this exemption.” See F.S. 119.001(3)(c)(2). The trial court also stayed its order so that PBSO could appeal.
The Fourth DCA reversed. The appeals court observed that the relevant statute “as plainly written, excepts victim information from what would otherwise be this applicable exemption from disclosure.” PBSO maintained that the persons who saw the shooting were not “victims” of the crime being investigated – the murder. They were, in the view of PBSO, “primarily witnesses.” Applying the statute, the appeals court concluded that the trial court correctly decided that “the names of these individuals were not exempt from disclosure as criminal intelligence or investigative information.”
The court’s analysis, however, did not end there due to a recent legislative amendment to the Public Records Act. The amendment exempted information that identified the witnesses to a murder for 2 years after the date of the murder. Under the amendment, in the court’s view, “just as a victim’s information is subject to disclosure even if that victim also happens to be a witness, information regarding a witness to a murder is protected even if that witness also happens to be a victim.” The court concluded that the amendment applied retroactively and reversed the trial court’s disclosure order. Palm Beach County Sheriff’s Office v. Sun-Sentinel Co., LLC, __ So.3d __ (Fla. 4th DCA, No. 4D17-1060, 9/6/2017), 2017 WL 3888807.
Court erred by ordering production of public records in time frame that did not allow redaction of exempt information and without requiring payment from requesting law firm. [Added 7/11/17]
Law Firm, which represented a defendant in a criminal case, submitted public records requests to the Florida Agency for Health Care Administration (“AHCA”). AHCA searched for the records and identified a huge number of results. The parties worked together to refine the search terms, but the searches still produced “a massive” number of results. AHCA billed Law Firm for charges, but Law Firm claimed the charges were unreasonable and did not pay. AHCA declined to produce the records.
The searches were further refined and produced fewer results, but Law Firm did not pay the reduced cost reimbursement invoices. Seeking to compel AHCA to produce the records, Law Firm petitioned for a writ of mandamus. The trial court ordered AHCA “to produce a modified list of documents within forty-eight hours, without requiring any payment prior to production.” AHCA appealed.
The First DCA reversed. An agency that receives a public records request is obligated to redact information that is exempt from disclosure under the public records law, such as social security numbers or bank account information. Further, the law requires that an agency provide public records upon the requestor’s payment of the legally prescribed fee. The appeals court concluded: “The trial court erred by requiring production of documents within forty-eight hours of the date of the order because the documents could not be reviewed for redaction within this compressed time period. The trial court further erred by requiring production of the documents prior to payment of AHCA’s invoices.”
The appeals court also ruled that the requirements for mandamus were not met. Florida Agency for Health Care Administration v. Zuckerman Spaeder, LLP, __ So.3d __ (Fla. 1st DCA, No. 1D16-4801, 7/6/2017), 2017 WL 2870998.
Court erred in invalidating approval of workers’ compensation insurance rate increase for alleged violations of open meetings and public records laws. [Added 6/13/17]
The National Council on Compensation Insurance (“NCCI”) is a licensed insurance rating organization operating nationwide. After Florida Supreme Court decision affecting workers’ compensation insurance (Castellanos v. New Door Co., 192 So.3d 431 (Fla. 2016)), NCCI filed a request with the Florida Office of Insurance Regulation (“OIR”) for a rate increase. A single NCCI employee, Rosen, was responsible for the rate determination proposal. While that matter was pending, the Supreme Court decided another case that could affect workers’ comp insurers (Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla. 2016)). NCCI filed an amended rate request.
After each filing, Fee made a public records request of NCCI for documents relating to these and prior rate filings. NCCI provided Fee with documents. Prior to the public hearing on NCCI’s rate filing, Fee filed suit alleging: “(1) NCCI violated the Sunshine Law [F.S. 286.011], byfailing to provide notice of or a meaningful opportunity to participate in committee meetings where its rate proposals were discussed; (2) the amended rate filing was void ab initio due to violations of the Sunshine Law; (3) NCCI violated [F.S. 627.291(1)], by denying Fee access to records regarding the rate proposal; and (4) NCCI violated the Public Records Act by failing to respond to Fee’s records requests.”
While the suit was pending, the OIR approved a rate increase at a lower amount than sought by NCCI. The trial court in Fee’s suit then held an evidentiary hearing. The court “determined that the order approving the rate increase was void because NCCI and OIR violated the Sunshine Law under three separate statutory provisions” (F.S. 627.091(6), 286.011, and 627.093). The court also ruled that NCCI violated F.S. 627.291(1) and 119.07 when it denied Fee access to its records. OIR and NCCI appealed.
The First DCA reversed, deciding that no violations occurred and ordered reinstatement of OIR’s order approving the rate increase.
Open meetings violations did not occur because there was only a single NCCI employee responsible for determining rate increase proposals. The Sunshine Law would apply only “when the rate-determination committee of a rating organization meets to determine workers’ compensation insurance rates.” No NCCI committee had been responsible for workers’ compensation rate determinations for the past 25 years. Further, the Sunshine Law did not apply to NCCI’s internal meetings, because only Rosen had authority to determine the rate to be proposed to OIR.
The court also explained why NCCI was not required to provide Fee with access to its records under sections 627.291 or 119.07. National Council on Compensation Ins. v. Fee, __ So.3d __ (Fla. 1st DCA, Nos. 1D16-5408, 1D16-5416, 5/9/2017), 2017 WL 1908370.
Fourth DCA affirms trial court’s determination that hourly fee of $189.21 to respond to public records request involving ballot inspection was reasonable under circumstances. [Added 12/29/16]
Trout, a write-in candidate for a congressional election, made a public records request to inspect the official ballots. The Election Supervisor Bucher responded stating that a deposit of $189.21 was required and that there would be an hourly charge at the same amount for time spent. The charge was based on the hourly rate for the Supervisor and the 3 additional office employees that the Supervisor believed were needed to handle the request. Importantly, the public records law (F.S. 119.075(5) provides that, when there is a ballot production or inspection, “no persons other than the supervisor of elections or the supervisor’s employees shall touch the ballots.” Trout considered the charge unreasonable, refused to pay, and filed suit. The trial court granted summary judgment for the Supervisor.
The Fourth DCA affirmed. The court rejected Trout’s argument that the charge should be based on the cost of the lowest paid employee capable of doing the work. The relevant statute required that the Election Supervisor be personally involved. Accordingly, the charge “was ‘reasonable’ within the meaning of section 119.07(4)(d).” Trout v. Bucher, __ So.3d __ (Fla. 4th DCA, No. 4D16-369, 12/7/2016), 2016 WL 7118836.
Court’s order denying petition to compel disclosure of public records reversed because court failed to hold hearing before ruling. [Added 10/15/16]
Appellant requested public records from University (i.e., images of animals, veterinary records, and protocols relating to 2 research studies). University responded by claiming an exemption as to some of the requested records and denying or not addressing the existence of the others. Appellant filed a petition to compel disclosure, and after an in camera review of documents the court denied the petition.
The First DCA reversed. F.S. 119.11(1) requires the court to “set an immediate hearing” when an action is filed to enforce provisions of the Public Records Act. “The plain language of section 119.11(1) requires the trial court to conduct a hearing on actions seeking to enforce the right to access public records under chapter 119. Absent waiver, an order issued without the statutorily-required hearing is premature.” Kline v. University of Florida, __ So. 3d __ (Fla. 1st DCA, No. 1D15-4216, 10/4/2016), 2016 WL 5804982.
When responding to public records request, public agency not required to identify the statutory exemption for each individual redaction in record. [Added 9/6/16]
The Department of Corrections (DOC) received a public records request. It responded by providing heavily redacted records. DOC provided a form identifying the various statutory exemptions it relied upon in making the redactions. Appellees asked DOC to specify the particular exemption for each individual redaction. When DOC refused, Appellees filed suit. The trial court ordered DOC to identify the exemption on a redaction-by-redaction basis.
The First DCA reversed. Redaction-by-redaction identification is not required by the Public Records Act. The plain language of F.S. 119.07(1)(e) “does not require the agency to state the basis of the exemption applicable to ‘each redaction.’ Instead, the statute simply requires the agency to ‘state the basis of the exemption that [the agency] contends is applicable to the record’ and to provide a statutory citation for the exemption. [F..S. 119.07(1)(e)] (emphasis added [by court]). Thus, section 119.07(1)(e) plainly requires only record-by-record – not redaction-by-redaction – identification of the exemptions authorizing the redactions in each record.”
The appeals court closed by noting that, while “there may be sound policy reasons” for imposing a redaction-by-redaction requirement, such a decision is for the Legislature rather than the courts. Jones v. Miami Herald Media Co., __ So.3d __ (Fla. 1st DCA, No. 1D16-1906, 8/29/2016), 2016 WL 4506121
Inmate who filed mandamus petition suit to compel production of public records may be entitled to costs, despite fact that documents were provided shortly after he filed. [Added 7/26/16]
Inmate Cookston filed a petition for writ of mandamus seeking to compel the Office of the Public Defender and one of its attorneys to provide him with copies of email and other correspondence. The petition included a request to be reimbursed for costs incurred. The trial court denied the petition as moot because the documents were provided to Inmate shortly after he filed the petition. Cookston appealed.
The Fifth DCA reversed, holding that Cookston’s petition “was not moot because the court did not determine whether he was entitled to reasonable costs of enforcement pursuant to [Fla. Stat.] section 119.12.” The appeals court remanded “for further proceedings to determine whether Appellees’ delay in producing the requested records amounts to an unlawful refusal under section 119.12. If the trial court concludes that Appellees’ delay violated a provision of the Public Records Act, it shall award Cookston the reasonable costs incurred in enforcing accessto public records. . . . The trial court shall allow Cookston to present evidence, either by affidavit or at a hearing, regarding such costs.” (Citations omitted.) Cookston v. Office of the Public Defender, Fifth Judicial Circuit, __ So.3d __ (Fla. 5th DCA, No. 5D15-4074, 7/15/2016), 2016 WL 3769055.
County’s “wait and see” attitude toward public records request results in imposition of attorney’s fees. [Added 7/7/16]
In July 2014 Schweickert filed a public records request with the Board of County Commissioners seeking records relating to an investigation of a commissioner’s conduct. Attorney Green was hired by the Board to conduct the investigation. After a second request in September 2014, Green responded that she could not provide the documents, claiming that the records were exempt under F.S. 119.071(2)(g)1. (relating to certain discrimination claims). Green indicated that she would provide records when her investigation was completed.
Schweickert filed suit to enforce the public records law on October 2, 2014. On October 27, Green provided him with a copy of her report. Schweickert amended his complaint on October 28 to seek attorney’s fees. The trial court dismissed the complaint as moot.
The Fifth DCA reversed. The case was not rendered moot simply because the Board produced the records after the initial complaint was filed but before the amended complaint was filed. In arguing for affirmance, the Board contended that the investigation might have turned up records relating to discrimination of the type protected from disclosure under F.S. 119.071(2)(g)1. “[T]he Board asserts that Green’s delay in providing the records until the investigation was completed was not an unlawful refusal to permit inspection of public records which would subject the Board to payment of Appellant’s attorney’s fees and costs under section 119.12. In essence, the Board urges that we adopt a ‘wait and see’ policy which would exempt immediate inspection of public records if the scope of the investigation might lead to the discovery or creation of exempt documents.” The court rejected this argument, noting that the complaint against the commissioner did not allege discrimination. Schweickert v. Citrus County Florida Board, __ So.3d __ (Fla. 5th DCA, No. 5D15-3007, 6/17/2016), 2016 WL 3353692.
Failure to immediately produce public records in response to request from email that appeared to be spam was not “unlawful refusal” and thus could not support fee award to requestor. [Added 6/6/16]
Wantman Group and the South Florida Water Management District had a contract through which Wantman provided consulting services. Wantman received a public records request via an email that “appeared to be spam” and did not provide records in response that that email. A few weeks later an entity filed a complaint against Wantman seeking attorney’s fees for Wantman’s alleged “unlawful refusal” to provide public records. Shortly after the suit was filed, Wantman provided the records.
The trial court denied the requestor’s motion for attorney’s fees, relying on Consumer Rights, LLC v. Union County, 159 So.3d 882 (Fla. 1st DCA 2015), which also involved “a curious e-mail request for records that did not trigger an immediate response.”
The 4th DCA affirmed. Fees may be awarded if the agency’s response to a public records request amounts to an “unlawful refusal” to provide the records. This, however, was not an unlawful refusal. “As in Consumer Rights, the delay in providing the records in this case was not so ‘unjustifiable’ that it amounted to an ‘unlawful refusal’ to provide the record. Id. at 885. The request was made in a ‘suspicious email that could not be easily verified,’ from an undisclosed sender. There was no indication that the e-mail request was made on behalf of a person or company. The e-mail did not contain any information about how to contact the person or corporation making the request. There was an incorrectly spelled word in the e-mail, which is one of the markers of spam. This is the type of e-mail that is filtered out as spam by many businesses, along with requests for assistance in moving money out of Nigerian banks. The e-mail was directed to an independent contractor and not a governmental agency familiar with fielding public records requests. Appellant waited merely 18 days, without any further inquiry, and then filed suit, claiming a right to attorney’s fees.” Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D15-1760, 5/25/2016), 2016 WL _______.
University student disciplinary records protected by federal privacy law (FERPA) and generally not subject to disclosure under Public Records Act, with limited exception for information about student government officers. [Added 4/19/16]
A news media entity (“KNI”) sought injunctive relief to force University to comply with its public records requests and to open certain student conduct board hearings to the public. University refused to produce information “that would identify students who were the subject of allegations of misconduct related to student government and/or hazing.” The court ruled for University.
The Fifth DCA affirmed. F.S. 1006.52(1) creates an exemption from disclosure under the public records law (F.S. Ch. 119) for student “education records” as defined by the federal Family Educational Rights and Privacy Act (“FERPA”). FERPA protects “education records” as well as any “personally identifiable information contained in an ‘education record.’” Student disciplinary records are protected under FERPA. United States v. Miami University, 294 F.3d 797 (6th Cir. 2002). Accordingly, “the personally identifiable information contained within documents regarding alleged hazing incidents qualified as student disciplinary records.” Because no statutory exception to FERPA applied (such as the exception for release of student records when the alleged misconduct constituted a crime of violence or a sex offense), the trial court properly denied access to that information.
The appeals court, however, did determine that certain limited information was not protected from disclosure. “[T]he 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, do not qualify as protected ‘personally identifiable information’ under FERPA because student government officers have implicitly consented to the dissemination of that information given Florida’s statutory scheme concerning university student governments.” In view of the applicable statutes, “student government officers know or reasonably should know (given their voluntary decision to seek election or appointment as a student government officer) that they may be disciplined for misconduct in the performance of their student government duties or alleged misconduct related to their election or appointment, either by referendum vote of the university’s students or by vote of other student government officers in a public meeting.” Knight News, Inc. v. University of Central Florida, __ So.3d __ (Fla. 5th DCA, No. 5D14-2951, 4/8/2016) (on rehearing), 2016 WL 1385921.
Supreme Court holds that prevailing party is entitled to fees under Public Records Act when public agency violated Act, regardless of whether agency acted in bad faith. [Added 4/15/16]
Lee requested public records from the Board of Trustees, Jacksonville Police & Fire Pension Fund (the “Fund”). The Fund imposed conditions on access to the records, and Lee refused to comply. Lee filed suit. The trial court found that 2 conditions imposed by the Fund violated F.S. 119.07, which governs inspection and copying of public records. Lee moved for attorney’s fees under F.S. 119.12, “which provides for an award of attorney’s fees ‘[i]f a civil action is filed against an agency to enforce the provisions of [the Public Records Act] and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied.’” The court denied fees to Lee, concluding that the Fund’s violations of the Act were not an “unlawful refusal” because they were not done knowingly, willfully, or with a malicious intent.
Lee appealed. The First DCA reversed, concluding that Lee was entitled to fees because the Fund had refused to disclose the records as required by the Act. Lee v. Board of Trustees, Jacksonville Police & Fire Pension Fund, 113 So.3d 1010 (Fla. 1st DCA 2013). Both the First and Second DCAs have ruled that there is no “good faith” exception to a statutory fee award when a public agency violates the Act. See Lee; Office of State Att’y for Thirteenth Jud. Cir. of Fla. v. Gonzalez, 953 So.2d 759 (Fla. 2d DCA 2007). In contrast, the Third, Fourth, and Fifth DCAs have ruled that a party seeking fees for a Public Records Act violation must show that the public agency acted unreasonably or in bad faith. See Knight Ridder, Inc. v. Dade Aviation Consultants, 808 So.2d 1268 (Fla. 3d DCA 2002); Althouse v. Palm Beach Cty. Sheriff’s Office, 92 So.3d 899 (Fla. 4th DCA 2012); Greater Orlando Aviation Auth. v. Nejame, Lafay, Jancha, Vara, Barker, 4 So.3d 41 (Fla. 5th DCA 2009).
Exercising its conflict jurisdiction, the Supreme Court held that “a prevailing party is entitled to statutory attorney’s fees under the Public Records Act when the trial court finds that the public agency violated a provision of the Public Records Act in failing to permit a public record to be inspected or copied. There is no additional requirement, before awarding attorney’s fees under the Public Records Act, that the trial court find that the public agency did not act in good faith, acted in bad faith, or acted unreasonably.”
It reaching its decision, the Court pointed out that the Act is to be construed liberally to effectuate its purpose of making public records accessible. Before 1984, in order to obtain attorney’s fees as a result of a violation the requestor had to show that the public agency had “unreasonably refused.” That requirement was changed to the current “unlawfully refused” language. “[T]he previous use of ‘unreasonably refused’ indicates that the Legislature intended for the agency’s good or bad faith in complying with a public records request to be relevant in determining whether to award attorney’s fees. No attorney’s fees would be awarded even where the public agency unlawfully failed to comply with the records request, so long as the agency’s actions in doing so were reasonable. The change to ‘unlawfully,’ on the other hand, eliminated the potential that an award of attorney’s fees would be denied just because the public agency acted reasonably in violating the Public Records Act.”
Applying its reasoning to the instant case, the Court concluded: “Even if not malicious or done in bad faith, the Pension Fund’s actions – which were found to 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. Reasonable attorney’s fees should have been awarded pursuant to section 119.12 for the Pension Fund’s violation of the Public Records Act.” Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, __ So.3d __ (Fla., No. SC13-1315, 4/14/2016), 2016 WL _______.
Fee award against Department of Economic Opportunity for failing to timely respond to public records request is reversed because requestor did not give timely notice to Department of Financial Services as required by F.S. 284.30. [Added 12/30/15]
Consumer Rights, LLC (“CR”), sent a public records request to the Department of Economic Opportunity. When the Department did not respond, CR filed a complaint seeking enforcement of the Public Records Act. The Department then produced the records. Ten months later CR served a copy of the complaint on the Department of Financial Services. CR moved for attorney’s fees. The trial court “determined that the [Department] had unjustifiably delayed in producing the records, which violated the Act, and as such, CR was entitled to reasonable attorney’s fees.”
The Department appealed, contending that CR failed to comply with the condition precedent required by F.S. 284.30, which states that a requestor seeking fees for a state agency’s failure to comply with a public records request “serve a copy of the pleading claiming the fees on the Department of Financial Services; and thereafter the department shall be entitled to participate with the agency in defense of the suit . . .”
The First DCA agreed and reversed. “CR’s argument that [F.S. 284.30] is inapplicable to suits brought under the [Public Records] Act is belied by the plain language of the statute. The statute explicitly excludes eminent domain, inverse condemnation, or Public Employees Relations Commission suits from this statute’s requirements. If the Legislature sought to exclude public records cases from these requirements, it would have listed it with the other exclusions. . . . The trial court’s decision to carve out a public policy exception for public records cases was in error.” Dept. of Economic Opportunity v. Consumer Rights, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D15-0383, 12/18/2015), 2015 WL 9258293.
At least some information in Facebook post that sparked criminal investigation is public record and should be disclosed, notwithstanding ongoing investigation. [Added 8/21/15]
University’s general counsel sent an email with an attached screenshot of a Facebook post to the City’s police chief, asking that the police investigate a possible domestic violence incident. The Facebook post included the date and time of the alleged incident and photos of bruised body parts. The police began a criminal investigation into the matter, which involved a University football player. The police department issued a press release acknowledging that an investigation was opened but declining to release details other than the name of the football player and the date of the incident.
Barfield filed a public records request for any records involving the matter. Barfield filed suit 4 days later seeking the records. The trial court denied Barfield’s petition for writ of mandamus, ruling that the information sought was “was “the subject of an active and ongoing criminal investigation and therefore exempt from production pursuant to [F.S.] 119.071(2)(c)1.” Barfield appealed.
The First DCA reversed. The information sought clearly was part of a public record. Although the public records law contains an exemption for “active criminal investigation information,” the statute expressly excludes ‘[t]he time, date, location, and nature of a reported crime’ from the exemption.” Accordingly, the police department was required to disclose this information. Barfield v. City of Tallahassee, __ So.3d __ (Fla. 1st DCA, No. 1D14-5530, 8/14/2015), 2015 WL 4774021.
Public hospital violated Public Records Act by placing unreasonable restrictions on requester’s access to records. [Added 7/16/15]
A public hospital appealed the grant of summary judgment in favor of the appellee, who had made a request for public records in the hospital’s custody. The First DCA affirmed, agreeing that the hospital violated the Public Records Act by placing “unreasonable restrictions” on the appellee’s access to the records.
The hospital argued on appeal that it complied with the law by referring appellee to a website in response to his records request. Appellee had asked for paper copies. The court pointed out that, under the statute, electronic records are only “an additional means of inspecting or copying public records” (emphasis by court). “This additional means of access, however, is insufficient where the person requesting the records specifies the traditional method of access via paper copies.”
The hospital also violated the statute by restricting appellee’s right to inspect and copy the records to one hour each morning, upon 24-hour notice. The one-hour restriction was not reasonable. Additionally, “there is no authority allowing appellants to automatically delay production of records for inspection by imposing a twenty-four-hour notice requirement.”A public hospital violated the Public Records Act by placing unreasonable restrictions on a requester’s access to records. Lake Shore Hospital Authority v. Lilker, __ So.3d __ (Fla. 1st DCA, No. 1D14-4579, 7/8/2015), 2015 WL 4111669.
County’s delay in providing public records in response to anonymous request from generic email address was not unlawful refusal and thus would not support fee award to requestor. [Added 3/23/15]
County received an email request seeking public records on behalf of an unidentified Florida company. The email address from which the request was sent was “email@example.com.” The requestor did not disclose his or her identity or provide any contact information. County did not respond. Four months later the requestor filed suit seeking the records as well as an award of fees under F.S. 119.12. County provided the records. Litigation continued regarding fees.
The trial court found that “the county had not acted in bad faith by failing to provide the records sooner. On this point, the court reasoned that plaintiff’s request was ‘intentionally designed to appear to be deceptive.’ This finding was based on the testimony of a county official who explained that he did not respond to the records request immediately because it appeared to constitute ‘phishing,’ a term that refers to a scam to dupe an email recipient into revealing personal or confidential information that can later be used illicitly.” The trial court ruled that the delay in providing the records did not amount to an unlawful refusal and thus did not support a fee award.
The First DCA affirmed. While a delay in providing public records can sometimes equate to an unlawful refusal, “a delay does not in and of itself create liability under section 119.12.” The constitutional and statutory right to public records can only be exercised by a “person,” and the court indicated that there is “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.”
The court noted the problems that could occur if a public entity was required to respond to a generic, essentially anonymous email request. “The email from the sender could have contained a virus. It might have been a computer-generated message sent out from a computer-created email account. The sender might have intended to initiate a series of electronic communications that would have caused the disclosure of exempt materials or created difficulties for the county’s information technology officers.” The court concluded: “The county provided the records to the plaintiff soon after it learned that the request had been made by person on behalf of a Florida corporation that did, in fact, exist. . . . [W]e conclude that the delay in responding to the email was not tantamount to a refusal and that the trial court correctly denied the plaintiff’s request for attorney fees.” Consumer Rights, LLC v. Union County, __ So.3d __ (Fla. 1st DCA, No. 1D14-263, 2/26/2015).
The First DCA addresses a question with “no clear answer” – whether a state attorney’s office is legally required to coordinate its ongoing discovery review for trial with a public records request review regarding the same records.[Added 2/10/15]
Media outlets (“the Media”) sought access to recorded phone conversations of a high-profile criminal defendant while he was in custody awaiting trial. After much litigation over the trial judge’s orders concerning discovery in the criminal case, the court ultimately denied the defendant’s request to keep the discovery confidential. At that point the state attorney’s office (“the SAO”) required advance payment for its expected costs in reviewing and redacting the recorded calls for confidential and exempt information. Public records litigation followed when the Media balked at paying the deposit. A magistrate was appointed to determine whether the SAO’s response to the Media’s requests was unreasonable or amounted to an unlawful refusal of access to public records.
The magistrate recommended that the financial deposit requirement was not an unlawful refusal of access, but recommended that the SAO begin releasing a certain amount of the calls each business day. The trial judge entered an order to this effect.
The Media then petitioned the First DCA for a writ of certiorari. The appellate court denied the petition due to “the unusual facts of this case and the novel legal issue presented,” but certified a question of great public importance to the Supreme Court.
The First DCA summarized: “[T]he ultimate question here is whether the application of the SAO’s public records policy is unreasonable because it failed to take steps to avoid repetition and duplication with its review of the recordings for use at trial. Coordinating trial review efforts with pending public records requests (and perhaps even anticipated requests in the highest profile cases) makes sense, but in the absence of clear legislative intent requiring it, we are unable to conclude that the SAO is legally required to do so.” (Footnote omitted.)
The court then certified this question to the Supreme Court as one of great public importance: “Does a custodian of criminal discovery have a legal obligation to, where possible, combine its review of discovery for trial with a public records request if doing so will be economically efficient and result in less delay?” Morris Publishing Group, LLC v. State, __ So.3d __ (Fla. 1st DCA, No. 1D13-5721, 1/20/2015), 201 WL 233285.
In “textbook case of why the legislature authorized an aaward of fees against obstinate public entities such as Appellant,” Fifth DCA sanctions a county for filing frivolous appeal. [Added 12/30/14]
Hewlings filed a public records request with Orange County. County tried to require Hewlings to follow a procedure under which she would inspect the records and identify which ones she wanted copied. Hewlings filed suit, asserting that she wanted all of the records. Ultimately County was ordered to produce the records. Although it did not appeal the production order, County objected to an award of fees despite its violation of the public records law. The trial court denied fees, but the Fifth DCA reversed that denial on appeal.
The appeals court remanded for a determination of whether County had unreasonably delayed in complying with Hewlings’ request. The trial court found an unreasonable delay and awarded fees.
On appeal to the Fifth DCA for the second time, County argued that despite the delay the trial court was not authorized to award fees. Stating that it was “admittedly perplexed,” the appellate court stated: “It is as if counsel for [County], who was the same counsel in [the first appeal], slept through the entire prior appellate proceeding and then failed to read either the opinion or order.”
The court further criticized counsel for making a “particularly disingenuous” argument, as well as for apparently failing to conduct “even superficial research” on a jurisdictional point. The court admonished: “We expect lawyers to thoroughly research and address all of the issues that are presented, especially one as important as our jurisdiction.” The appellate court observed that County “turned a molehill into a mountain” and that the case provides a textbook example of why the legislature authorized an award of fees against obstinate public entities such as” County.
The court closed by awarding fees “for this unnecessary appeal” as a sanction under Fla.R.App.P. 9.410. Orange County v. Hewlings, __ So.3d __ (Fla. 5th DCA, No. 5D13-3775, 12/12/2014), 2014 WL 6990570.
Closed-door mediation sessions between City and police and firefighters unions resulting in changes to unions’ pension plan were collective bargaining sessions that should have been held in public. [Added 11/9/14]
City was sued in federal court by plaintiffs that included the chief negotiator of the firefighter’s union. The parties engaged in closed-door mediation sessions that resulted in changes to the police and firefighter’s unions pension plan that were memorialized in a Mediation Settlement Agreement (“MSA”). “No party informed the federal court that the negotiations would entail collective bargaining or that the provisions of the Florida Statutes and Constitution may require such collective bargaining to be conducted in public. There was no public notice of the mediation sessions nor was any transcript made of the proceedings.”
A newspaper editor filed a state court complaint against City, its mayor, and City’s pension board, alleging that the mediation sessions were collective bargaining negotiations (under F.S. 447.605(2)) and were conducted in violation of the Sunshine Law (F.S. 286.011). The complaint sought a declaration that the MSA was void ab initio and to enjoin the parties from implementing the MSA or engaging in future mediation. The circuit court granted summary judgment for the editor.
The First DCA affirmed. F.S. 4467.605(2) “requires collective bargaining to be conducted in the sunshine when negotiations involve a ‘bargaining agent.’ . . . [T]he fact that the [pension] Board had not been formally designated as the Unions’ bargaining agent did not necessarily mean that it did not function as a representative of the Unions so as to qualify as a ‘bargaining agent’ for purposes of Sunshine Law application.”
The court concluded: “We affirm the order on appeal under the broad public policy of Florida’s Sunshine Law. We cannot condone hiding behind federal mediation, whether intentionally or unintentionally, in an effort to thwart the requirements of the Sunshine Law. Caution should be taken to comply with the Sunshine Law, and compliance should be the default rather than the exception. See [Town of Palm Beach v.] Gradison, 296 So. 2d  at 477 [(Fla. 1974)] ('The principle to be followed is very simple: When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.'). By holding closed-door negotiations that resulted in changes to public employee’s pension benefits, the appellants ignored an important party who also had the right to be in the room – the public.” Brown v. Denton, __ So.3d __ (Fla. 1st DCA, Nos. 1D14-0443, 1D14-0444, 10/21/2014), 2014 WL 5333480.
Agency violated Public Records Act by delaying disclosure of non-exempt records to litigation opponent. [Added 9/2/14]
Jacksonville Electric Authority (“JEA”) was in contentious litigation in Mississippi with “Promenade.” After fulfilling a number of public records requests from Promenade, JEA informed Promenade that it would respond to future requests with legal action. When Promenade made additional public records requests, JEA followed through by filing a motion for protective order in the Mississippi case. Promenade filed a public records enforcement action and sought attorney’s fees. The parties agreed to postpone the enforcement action hearing until the Mississippi court ruled on the protective order motion.
The day after the Mississippi court denied the motion for protective order, JEA provided the requested records. The trial court in the enforcement action ruled that JEA had not willfully violated the Public Records Act. Promenade appealed.
The First DCA reversed. There was no statutory exemption available to JEA; rather, “JEA violated the Act by delaying Promenade’s access to non-exempt public records for legally insufficient reasons. JEA imposed what amounted to a requester-specific barrier to records requests made by Promenade, because it was an adversary in out-of-state litigation. . . . Florida law doesn’t allow public records custodians to play favorites on the basis of who is requesting records.” Promenade D’Iberville, LLC, v. Sundy, __ So.3d __ (Fla. 1st DCA, No. 1D13-5583, 8/28/2014).
“Shade meeting” transcript becomes public record on conclusion of underlying lawsuit, notwithstanding later filing of related suit. [Added 9/1/14]
Landowners sued City to quiet title to a parcel of land. That suit was settled and dismissed with prejudice. The parties agreed that any dispute over the meaning of the settlement agreement would be submitted to mediation. The trial court entered a stipulated final judgment.
While the quiet title action was pending, City engaged in discussions with its counsel. These discussions were transcribed pursuant to F.S. sec. 286.011. Under that statute, the transcript of this “shade meeting” is to be made a matter of public record “upon the conclusion of the litigation.”
A year after the quiet title action was settled, Landowners sued City for inverse condemnation. Landowners filed a public records request for a copy of the transcript of the “shade meeting” from the quiet title action. City refused to provide it, “arguing that the quiet title action lived on.” Landowners then sued for release of the transcript. The trial court granted City’s request to dismiss the public records suit, ruling that the quiet title action was “still pending” and that, accordingly, the transcript was not subject to disclosure.
Landowners appealed. The Second DCA reversed and ordered the transcript disclosed, noting that “City’s posture calls for an unwarranted expansion of a limited legislative exemption to the release of public records.” The court concluded: “The shade meeting transcript became a matter of public record upon the conclusion of the quiet title action through entry of a final judgment. The transcript does not regain ‘secret’ status just because a new tangentially related lawsuit is filed.” Chmielewski v. City of St. Pete Beach, Florida, __ So.3d __ (Fla. 2d DCA, No. 2D13-4923, 8/27/2014).
Court erred in dismissing complaint for writ of mandamus to compel production of public records based solely on pleadings and without holding evidentiary hearing. [Added 8/27/14]
Clay County Education Association (“CCEA”) requested certain records from School Board. When School Board did not provide all of the requested records, CCEA filed a complaint and requested an immediate hearing under F.S. 119.11(1). The trial court issued an alternative writ of mandamus to School Board directing it to provide written defenses to CCEA’s complaint. School Board responded 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. Based solely on the pleadings before it, the trial court determined that CCEA failed to establish a clear legal right to the requested relief and dismissed CCEA’s complaint.” CCEA appealed.
The First DCA reversed and remanded for an immediate hearing. CCEA had requested what could be considered public records, and so its complaint made a prima facie case for relief. “Because the complaint was not properly subject to dismissal, the court erred in failing to hold an evidentiary hearing to resolve disputed issues of fact. . . . Further, CCEA correctly observes that a hearing should have taken place immediately under section 119.11(1), which provides, ‘Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases.’” (Citations omitted.) Clay County Education Ass’n v. Clay County School Board, __ So.3d __ (Fla. 1st DCA, No. 1D13-4858, 8/22/2104).
Email request for public records is sufficient to give standing to bring mandamus action to compel production of records sought. [Added 6/18/14]
Chandler filed a petition to compel production of public records from the City. He alleged that he had sent a public records request by email to the City. The email request did not include Chandler’s name. The City clerk responded by stating that he must fill out a form on the City’s website. Five months later Chandler sent another email request for the records. The clerk responded in the same fashion. Chandler then filed a petition for writ of mandamus to compel production of the records and seeking fees and costs under the Public Records Act. The City moved to dismiss the petition on the ground that Chandler “lacked standing to bring the petition because it did not allege that [Chandler] was a ‘stakeholder in interest’ in the controversy nor demonstrate that [Chandler] had a connection with the e-mail address from which the requests were sent.” The trial court dismissed the petition. Chandler appealed.
The Fourth DCA reversed. Chandler had standing to bring the petition. “[T]he petition alleged that [Chandler] had made a public records request via e-mail, and attached the e-mails sent from the e-mail address at issue. The clear implication is that this e-mail address belongs to [Chandler], or at least that [Chandler] utilized the address to make the public records request. . . . This is all that is required to establish standing to file a petition for mandamus seeking the production of public records. While [Chandler] will still be required to prove the allegations of the complaint, i.e., that he sent the e-mail requests for public records, his petition sufficiently alleged standing to preclude dismissal.” Chandler v. City of Greenacres, __ So.3d __ (Fla. 4th DCA, No. 4D13-377, 6/11/2014).
Court erred in denying fees to public records requestor on ground that governmental entity's failure to promptly provide records was not "willful." [Added 3/14/14]
Lilker made a public records request of a governmental transit authority (the "Authority"). A few months later, Lilker filed suit to compel the Authority to provide the records. The Authority admitted that the records were subject to disclosure, and the trial court ordered them produced within 48 hours. The court denied Lilker's motion for fees and costs, however, "because it determined that the Authority’s failure to furnish the records before Mr. Lilker filed suit was not an unlawful and willful refusal to comply with chapter 119." Lilker appealed.
The First DCA reversed and remanded. The trial court erred when it "imposed a 'willfulness' requirement not found in the statute, see Lee v. Bd. of Trustees, 113 So.3d 1010, 1010 (Fla. 1st DCA 2013), and did not definitively state whether it otherwise found a violation of the law. The proper question before the court on Mr. Lilker’s request for attorney’s fees and costs under section 119.12 was whether the Authority unlawfully refused to produce records, not whether any such refusal was willful."
Unlawful refusal to produce public records also includes unjustified delay in producing them. The trial court did not make a finding on this issue, so the appellate court remanded for a finding whether the Authority's delay in producing the records "constituted an unlawful refusal." Lilker v. Suwannee Valley Transit Authority, 133 So.3d 654 (Fla. 1st DCA 3/14/2014).
Videotaped interview of minor victim of sexual battery may have to be produced to convicted defendant under public records laws. [Added 2/27/14]
A convicted, incarcerated defendant sent a written public records request to the State Attorney’s Office under the Public Records Act, Fla.Stat. Ch. 119. Among other things, he sought a copy of recorded interviews of the minor victim and her mother. The State declined to produce the requested records, citing an allegedly applicable exception to the public records laws. Defendant filed a motion to compel production and requested a hearing on his motion. The trial court summarily denied the motion without holding a hearing.
Defendant sought certiorari review of the trial court’s order. The Fifth DCA quashed the order and remanded for hearing.
In its opinion the appeals court offered “some guidance to the trial court when it conducts a hearing.” Regarding Defendant’s request for copies of videotaped interviews, the court commented: “As to Petitioner’s second category of public records requested, if there is a videotaped interview of the minor victim, an unredacted copy must be provided to defendant or his attorney. All of the other records should be redacted in accordance with section 119.071(2)(h).”
The court closed by certifying the following question to the Florida Supreme Court as one of great public importance: “Does Florida’s Public Records Act, specifically section 119.071(2)(j)2.b., Florida Statutes (2013), require a state agency to provide a convicted, incarcerated inmate with an unredacted copy of the videotaped statement of the minor victim of his or her crime?” Ingram v. State, __ So.3d __ (Fla. 5th DCA, No. 5D13-1519, 2/21/2014), 2014 WL 656734.
Records regarding the “value added” by individual public school teachers to a student’s FCAT score are not exempt from disclosure under the public records law. [Added 11/19/13] -- Morris Publishing Group, LLC v. Fla. Dept. of Education, __ So.3d __, 38 Fla.L.Weekly D2345 (Fla. 1st DCA, No. 1D13-1376, 11/12/2013), 2013 WL 5988693.
One governmental entity may not assert public records exemption at direction of another governmental entity. [Added 9/16/13] -- Chandler v. City of Sanford, 121 So.3d 657 (Fla. 5th DCA 9/13/2013).
Court erred in excluding from evidence portion of public record containing investigator’s “mental impressions.” [Added 7/19/13] -- City of Avon Park v. State, 117 So.3d 470 (Fla. 2d DCA 7/17/2013).
Fees are to be awarded whenever public agency refuses to permit access to public records, regardless of agency’s intent. [Added 4/28/13] -- Lee v. Board of Trustees, Jacksonville Police and Fire Pension Fund, 113 So.3d 1010 (Fla. 1st DCA 4/22/2013).
Public records laws do not require disclosure of name of student who sent email complaining about state college teacher. [Added 3/22/13] -- Rhea v. Board of Trustees of Santa Fe College, 109 So.3d 851 (Fla. 1st DCA 3/13/2013) (on rehearing).
Court erred in ruling that location of university primate research facility was exempt from public records request. [Added 2/27/13] -- Marino v. University of Florida, 107 So.3d 1231 (Fla. 1st DCA 2/26/2013).
Court applied wrong test in denying City’s motion to inspect court records in dependency case. [Added 12/5/12] -- City of Plant City v. Dept. of Children and Family Services, 101 So.3d 407 (Fla. 2d DCA 2012).
Municipality permitted, but not required, to release records of juvenile offense investigation to victim. [Added 9/18/12] -- Harvard v. The Village of Palm Springs, 98 So.3d 645 (Fla. 4th DCA 2012).
First DCA discusses exceptions to statutory confidentiality of juvenile criminal records. [Added 9/14/12] -- G.G. v. Fla. Dept. of Law Enforcement, 97 So.3d 268 (Fla. 1st DCA 2012).
Court “shall” award reasonable fees and costs to party forced to litigate to obtain compliance with public records laws. [Added 8/6/12] -- Althouse v. Palm Beach County Sheriff’s Office, 92 So.3d 899 (Fla. 4th DCA 2012).
Public records requestor’s objection to court’s proposed in camera review of relevant records results in denial of request. [Added 6/1/12] -- Althouse v. Palm Beach County Sheriff’s Office, 89 So.3d 288 (Fla. 4th DCA 2012).
Court erred in denying fees to public records requestor after government entity “responded” but did not comply for 45 days. [Added 5/22/12] -- Hewlings v. Orange County, 87 So.3d 839 (Fla. 5th DCA 2012).
Public Records Act permits city to redact questions and answers from pre-employment polygraph report before releasing it to applicant/requestor. [Added 2/28/12] -- Rush v. High Springs, Florida, 82 So.3d 1108 (Fla. 1st DCA 2012).
Complaint that facially states cause of action for violation of public records law requires evidentiary hearing. [Added 11/23/11] -- Johnson v. Jarvis, 74 So.3d 168 (Fla. 1st DCA 2011).
Fourth DCA concludes that an email sent by a city official is not a public record, focusing on whether it was prepared in connection with official business. [Added 7/22/11] -- Butler v. City of Hallandale Beach, 68 So.3d 278 (Fla. 4th DCA 2011).
Supreme Court rules that Fla.R.Crim.P. 3.852 and F.S. 27.7081 did not unconstitutionally restrict death-penalty defendant's access to public records. [Added 7/19/11] -- Wyatt v. State, 71 So.3d 86 (Fla. 2011).
Supreme Court rules that Sarasota County did not violate Sunshine Law during negotiations to relocate Baltimore Orioles spring training. [Added 10/29/10] -- Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So.3d 755 (Fla. 2010).
Audio recordings of high-profile defendants' phone calls made by sheriff's office are not public records subject to disclosure. [Added 9/30/10] -- Bent v. State, 46 So.3d 1047 (Fla. 4th DCA 2010).
First DCA rules that Department of Health's confidential investigative records are not subject to discovery administrative or court proceedings. [Added 9/27/10] -- Florida Dept. of Health v. Kenneth D. Poss, D.P.M., 45 So.3d 510 (Fla. 1st DCA 2010).
State Attorney's trial notes not subject to disclosure as public records, rules Florida Supreme Court. [Added 9/20/10] -- Geralds v. State, __ So.3d ___, 35 Fla.L.Weekly S503 (Fla., Nos. SC06-761, SC07-716, 9/16/2010), 2010 WL 3582955.
Company's customer lists produced to state agency are trade secrets exempt from disclosure under public records law. [Added 8/4/10] -- James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A. v. Rodale, Inc., 41 So.3d 386 (Fla. 1st DCA 2010).
Supreme Court amends rules governing public access to judicial branch records. [Added 3/22/10] -- In re: Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, 31 So.3d 756 (Fla. 2010).
Public Records Act exemptions for undercover police identities not lost merely because they were disclosed to criminal defendant during discovery. [Added 3/11/10] -- Rameses, Inc. v. Demings, 29 So.3d 418 (Fla. 5th DCA 2010).
City's eventual production of meeting minutes months after their request did not moot issue of City's violation of public records law. [Added 1/25/10] -- Grapski v. City of Alachua, 31 So.3d 193 (Fla. 1st DCA 2010).
Criminal defendant's filing of pleading in his closed case not appropriate method of filing public records request. [Added 10/23/09] -- Harris v. State, 21 So.3d 864 (Fla. 3d DCA 2009).
Audio recording of criminal defendant's sentencing hearing is not a "court record" and therefore is not a public record. [Added 5/10/09] -- Media General Operations, Inc. v. State, 12 So.3d 239 (Fla. 2d DCA 2009).
Government lawyer's memo concerning Disadvantaged Business Enterprise application must be produced in response to public records request. [Added 2/17/09] -- Greater Orlando Aviation Authority v. Nejame, Lafay, Jancha, Vara, Barker & Joshi, P.A., 4 So.3d 41 (Fla. 5th DCA 2009).
Internal investigation procedures used by County Sheriff's Office did not violate Sunshine Law. [Added 1/19/09] -- McDougall v. Culver, 3 So.2d 391 (Fla. 2d DCA 2009).
Portions of personal flight logs of pilots for police department's aviation unit are public records. [Added 1/19/09] -- Miami-Dade County v. Professional Law Enforcement Ass'n, 997 So.2d 1289 (Fla. 3d DCA 2009).
Someone requesting public records from city must pay past-due fees owed before city must comply with new request. [Added 10/31/08] -- Lozman v. City of Riviera Beach, 995 So.2d 1027 (Fla. 4th DCA 2008).
Private engineering firm that contracted to perform public functions on behalf of city is considered "agency" subject to public records laws. [Added 7/10/08] -- B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So.2d 17 (Fla. 1st DCA 2008).
Government's charge for labor costs in responding to extensive public records requests may include both salary and employee benefit costs. [Added 1/29/08] -- Board of County Commissioners of Highlands County v. Colby, 976 So.2d 31 (Fla. 2d DCA 2008).
Memo "to the file" written by county commissioner is public record subject to disclosure under Chapter 119, Florida Statutes. [Added 12/27/2007] -- Miami Herald Media Co. v. Sarnoff, 971 So.2d 915 (Fla. 3d DCA 2007).
Public records law does not require copies be furnished free of charge to convicted defendant pursuing postconviction relief. [Added 7/10/07] -- Clowers v. State, 960 So.2d 840 (Fla. 3d DCA 2007).
Litigation files of county and its law firm continue to be exempt from public records laws while claimant pursues claims bill in Legislature. [Added 6/22/07] -- Wagner v. Orange County, Florida, 960 So.2d 785 (Fla. 5th DCA 2007).
Attorney's fees awarded against state attorney's office that did not respond to public records request until after requestor filed suit to require production. [Added 4/27/07] -- Office of the State Attorney for the Thirteenth Judicial Circuit v. Gonzalez, 953 So.2d 759 (Fla. 2d DCA 2007).
Public records laws precluded judge from ordering production of notices of hearing from unemployment appeals. [Added 3/23/07] -- Fla. Agency for Workforce Innovation v. Mitchell S. Ritchie, P.A., 951 So.2d 111 (Fla. 1st DCA 2007).
Labor unions must pay statutory copying charge for public records sought from public employer with which union is engaged in collective bargaining. City of Miami Beach v. Public Employees Relations Comm'n, 937 So.2d 226 (Fla. 3d DCA 2006).
City's data identifying persons and businesses cited for security alarm ordinance violations not available as matter of public record. Critical Intervention Services, Inc. v. City of Clearwater, 908 So.2d 1195 (Fla. 2d DCA 2005).
Police event security plan not "public record" under Fla.Stat. sec. 119 even after event is over. Timoney v. City of Miami Civilian Investigative Panel, 917 So.2d 885 (Fla. 3d DCA 2005).
Statements made in city commission meeting that arguably were relevant to former employee's suit against city were not improper ex parte communications under Fla.Stat. sec. 286.0115 The City of Hollywood v. Hakanson, 866 So.2d 106 (Fla. 4th DCA 2004).
ersonal email messages not considered public records by virtue of placement on government-owned computer system. State v. City of Clearwater, 863 So.2d 149 (Fla. 2003).