Overview

• Strong enforcement creates strong incentive
• Presumptive public disclosure mentality, especially in urban areas
• Lack of deadlines or appeals processes necessitates lawsuits

Florida’s Sunshine Law is the oldest state-level open government laws in the country, and also one of the strongest in terms of enforcement - visit any agency or municipality’s webpage, and you’ll see a disclaimer at the bottom warning that any communication you send is considered a public record. Transparency is a priority here, and with delinquent agencies facing up thousands in fines, it’s not hard to understand why.

However, the strength of the law is directly tied into that threat of enforcement – while agencies, especially those that receive more requests, are much less likely to risk a lawsuit, that does not guarantee a prompt, comprehensive response. With no concrete deadlines, pushback might be necessary, and with no formal appeals process (though there is a mediation process offered by the AG), that leaves a lawsuit, or the threat of lawsuit.

Conversely, the very strength of the law makes it a target – officials have made attempts to defang the law or expand exemptions, and efforts to “improve transparency” are focused on open data portals, with the goal of reducing the number of requests.

Be careful what you ask for

Florida’s embracing of transparency is not without its pitfalls. On several occasions – most notably with the release of Jeb Bush’s emails prior to his presidential bid – agencies have accidentally released information they shouldn’t have, such as social security numbers and medical information. Review the release thoroughly.

It pays to be formal

Though the law is firmly on the side of disclosure, the strength of that law comes from the consequences of its enforcement – and the officer’s knowledge of those consequences. When dealing with smaller agencies that are less likely to have much experience with the law, it’s helpful to cite the law thoroughly, especially since the lack of an appeals process would mean a lawsuit.

You are what you request

As the agencies themselves warn, any communication with them become part of the public - so more than any other state, it’s hard to keep the lid on a public records scoop. Don’t be surprised if somebody requests your requests.

The Law

• No statutorily-dictated period in which agency must respond.
• Applies to the legislative, executive, and judicial branches.
• Residents and non-residents may submit requests.
• No appeal mechanism.

Supplemental

Definition of public records - Fla. Stat. § 119.011(12)

Constitution of the State of Florida

The Details

Can you submit a request if you’re not a resident?

Yes. Florida law currently has no provision dictating a residency requirement.

To whom does this apply?

Executive?

Yes.

Judicial?

Yes.

Legislative?

Yes.

Is there a designated records custodian?

Kind of.

“Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.” Fla. Stat. § 119.07(1)(a)

Who is exempted?

No one in particular. Florida’s Constitution introduces the presumption that all records are public.

“Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the 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 Consitution, Article 1, Section 24

How can requests be submitted?

In-person?

Yes.

Verbally?

Yes.

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

There is no dictated period of time in which an agency must respond. However, an “unreasonable delay” may be considered a denial.

“A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed.” Fla. Stat. § 119.07(1)(c)

Are there provisions regarding the extension of response times?

No.

Does the agency have to give you a tracking number or estimated date of completion?

There are no provisions regarding the provision of a tracking number or estimated completion date.

Can they ask why you ask?

There are no provisions requiring requesters to demonstrate the legitimacy of their interest.

Relevant case law:

• State ex rel. Davidson v. Couch, 156 So. 297 (Fla. 1934) One neither needs to be a taxpayer or have a “special interest.”
• Bevan v. Wanicka, 505 So. 2d 116 (Fla. 2d DCA 1987) There is no condition in the law requiring the requester provide background information.
• Lorei v. Smith, 464 So. 2d 1330 (Fla. 2d DCA), review denied, 475 So. 2d 695 (Fla. 1985) The purpose of the request is irrelevant.
• News-Press Publg. Co. Inc. v. Gadd, 388 So. 2d 276 (Fla. 2d DCA 1980), appeal after remand, 412 So. 2d 894, review denied, 419 So. 2d 1197
• Warden v. Bennett, 340 So. 2d 977, 979 (Fla. 2d DCA 1976)
• State ex rel. Cummer v. Pace, 159 So. 679 (Fla. 1935)

What enforcement?

Though lauded as a strong public records law, Florida actually has no mechanisms by which to appeal or effectively enforce denials or failures to comply with the law.

The Attorney General’s Office offers a voluntary mediation option for the resolution of disputes, as required by statute:

“(2) The public records mediation program is created within the Office of the Attorney General. (3) The Office of the Attorney General shall: (a) Employ one or more mediators to mediate disputes involving access to public records. A person may not be employed by the department as a mediator unless that person is a member in good standing of The Florida Bar. (b) Recommend to the Legislature needed legislation governing access to public records. (c) Assist the Department of State in preparing training seminars regarding access to public records.” [Fla. Stat. § 16.60]

Florida Governor Executive Order 11-03 also reestablished the Office of Open Government.

“The Office will (I) facilitate Floridians • right to know and have access to information with which they can hold government accountable, (2) establish and maintain a website providing ready access to accountability information, (3) continue to assure full and expeditious compliance with Florida’s open government and public records laws, and ( 4) provide training to all executive agencies under my purview on transparency and accountability. The Office will also have primary responsibility for ensuring that the Office of the Governor complies with public records requests in an expeditious manner.”

Fees?

The standard fees for duplicates are 15 cents per one-sided page, no more than 20 cents per two-sided page, and $1 per certified copy. The law also provides for allowable additional fees based on the need for extensive information technology support:

“If the nature or volume of public records requested to be inspected or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both.” Fla. Stat. § 119.07(4)(d)

Are there fee waivers for media requests or those made in the public interest?*

There are no provisions regarding fee waivers.

Attorney’s fees - Can you win them?

Yes.

“If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys’ fees.” [Fla. Stat. § 119.12

Exemptions and Appeals

What exemptions exist?

There is a presumption that all records are public. However, the legislature may specifically exempt records. However, there are hundreds of statutory exemptions.

Are they mandatory or discretionary?

Exemptions must be specifically identified.

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

“(d) A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying. (e) If the person who has custody of a public record contends that all or part of the record is exempt from inspection and copying, he or she shall state the basis of the exemption that he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute.” Fla. Stat. § 119.07(d)

How much time do you have to appeal?

There is no appeal option.

To whom does the appeal go?

There is no appeal option.

Can you appeal a delay?

There is no appeal option, though a delay would be a reasonable basis for judicial action.

Do agencies have to tell you where to send your appeal?

There is no appeal option.

What if your appeal is denied?

There is no appeal option.

Where else can you turn?

The Attorney General’s office, the Office of Open Government, or the court.

Are all appeals kept officially?

There is no appeal option.

Resources

Organizations

The following organizations offer resources for those seeking public records in Florida.

• Brechner Center for Freedom of Information at the University of Florida
• Florida First Amendment Foundation

Attorneys and Law Firms

We are looking for attorneys and law firms with experience in public records law, and firms that are willing to provide pro bono services. If you know of a firm, email us at info@muckrock.com.

Successful appeals

The State of Florida does not have an appeals process. The Attorney General’s Office does have a list of Sunshine Law Court Cases.

News Stories on Public Records Laws in the State

• Lawmakers advance bill that opponents say will ‘gut’ public records law
• A Storm is Brewing Over Florida’s “Sunshine Law

Submit a new link

Public Records Guide and Advice

• Attorney General’s Sunshine Manual
• RCFP’s Open Government Guide for Florida
• Government in the Sunshine: A Citizen’s Guide (PDF)
• Florida Society of News Editors Sunshine Law Guide

Newsletters

• Brechner Report

Big FOIA wins

Have a public records success story? Let us know!