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those entitled to possess that information." Id. A willful and knowing violation of this statute is
a third-degree felony. Section I19.10(2)(b), F.S.
(3) Documents regarding victims which are received by an agency
Section 119.071(2) (j)1., F.S., exempts from disclosure any document that reveals the
identity, home or employment telephone number or address, or personal assets of the victim of a
crime and identifies that person as the victim of a crime, if that document is received by an agency
that regularly receives information from or concerning the victims of crime. However, this
provision is limited to documents received by agencies which regularly receive information from
or concerning victims of crime; it does not apply to records generated or made by these agencies.
AGO 90-80. Accordingly, this exemption does not apply to police reports. Id. Additionally,
the exemption does not apply to documents revealing the identity of a victim of crime which are
contained in a court file not closed by court order. AGO 90-87.
Section 119.071(2) (j)1., F.S., also provides that "[a] ny state or federal agency that is
authorized to have access to such documents by any provision of law shall be granted such access
in the furtherance of such agency's statutory duties, notwithstanding this section." See Inf. Op.
to McCabe, November 27, 1995 (state attorney authorized to release materials received during an
investigation of a domestic violence incident to a police department for use in the department's
internal affairs investigation).
(4) Home or employment address, telephone number, assets
Victims of specified crimes listed in s. 119.071(2) (j)1., F.S., are authorized to file a written
request for exemption of their addresses, telephone numbers and personal assets as follows:
Any information not otherwise held confidential or exempt [from
disclosure] which reveals the home or employment telephone
number, home or employment address, or personal assets of a
person who has been the victim of sexual battery, aggravated
child abuse, aggravated stalking, harassment, aggravated battery,
or domestic violence is exempt [from disclosure], upon written
request by the victim which must include official verification that
an applicable crime has occurred. Such information shall cease
to be exempt 5 years after the receipt of the written request. (e.s.)
This exemption is not limited to documents received by an agency, but exempts specified
information in records --whether generated or received by --an agency. Thus, a victim of the
enumerated crimes may file a written request and have his or her home or employment telephone
number, home or employment address, or personal assets, exempted from the police report of
the crime, provided that the request includes official verification, such as a copy of the incident
or offense report for one of the listed crimes, that an applicable crime has occurred. See AGO
96-82. The exemption is limited to the victim's address, telephone number, or personal assets; it
does not apply to the victim's identity. City of Gainesville v. Gainesville Sun Publishing Company,
No. 96 -3425 -CA (Fla. 8th Cir. Ct. October 28, 1996).
The exemption applies to records created prior to, as well as after, the agency's receipt of the
victim's written request for exemption AGO 96-82. It applies to any records held by an agency
and is not limited to those records relating to the offense. Id. "[A]n examination of the legislative
history surrounding the adoption of this exemption indicates that the Legislature intended that
the exemption not be limited to those documents identifying the individual as a victim of crime
but rather be applied to any document revealing the personal information held by any agency."
Id. And see AGO 02-50, in which the Attorney General's Office advised that s. 119.071(2)
(j)1., F.S., does not contain an exception for copies of the police report that are sent to domestic
violence centers pursuant to s. 741.29, F.S., if the victim has made a written request for exempt
status of the personal information specified in s. 119.071(2) (j)1., F.S.
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In addition, the requirement that the victim make a written request for exemption applies
only to information not otherwise held confidential by law; thus, the exemption supplements,
but does not replace, other confidentiality provisions, such as s. 119.071(2)(h), F.S., that may be
applicable to certain crime victims. AGO 96-82
For more information on exemptions pertaining to domestic violence or stalking victims,
please see the discussion on page 74.
(5) Information identifying or depicting victims of sex offenses and of child abuse
(a) Law enforcement and prosecution records
Section 119.071(2) (h) l .a., F.S., provides confidentiality for criminal investigative and
intelligence information that reveals the identity of a victim of the crime of child abuse, as defined
by Ch. 827, F.S., or that reveals the identity of a person under the age of 18 who is a victim of the
crime of human trafficking proscribed in s. 787.06(3)(a), F.S. Information which may reveal the
identity of a victim of a sexual offense, including a sexual offense prohibited in s. 787.06(3)(b),
(d), (f), or (g), or Chs. 794, 796, 800, 827, or 847, F.S., is also confidential. Section 119.071(2)
(h) l .b., F.S.
In addition, the photograph, videotape, or image of any part of the body of a victim of
a sexual offense prohibited under ss. 787.06(3)(b), (d), (f), or (g) or 810.145, or Chs. 794,
796, 800, 827, or 847, F.S., is confidential and exempt, regardless of whether the photograph,
videotape, or image identifies the victim. Section 119.071(2) (h) l .c., F.S. See Harvard v. Village
of Palm Springs, 98 So. 3d 645, 647 (Fla. 4th DCA 2012), rejecting a mother's assertion that there
is "no law prohibiting her" from obtaining a copy of her son's videotaped interview, because s.
119.071(2) (h) 1. a -c, F.S., "provides that a video of a victim is exempt from a public records request
if it is taken during the course of one of several enumerated types of criminal investigations."
Thus, the Attorney General's Office advised that information revealing the identity of
victims of child abuse or sexual battery must be deleted from the copy of the report of domestic
violence which is sent by a law enforcement agency to the nearest domestic violence center
pursuant to s. 741.29(2), F.S. AGO 92-14. And see Palm Beach County Police Benevolent
Association v. Neumann, 796 So. 2d 1278 (Fla. 4th DCA 2001), applying exemption to
information identifying a child abuse victim which was contained in files prepared as part of an
internal investigation conducted in accordance with s. 112.533, F.S.
Section 119.071(2)(h)2.a-c, F.S., sets forth circumstances which permit a law enforcement
agency to disclose the confidential information. Moreover, the Attorney General's Office has
advised that the confidentiality provisions do not apply to the identity of a child abuse victim
who died from suspected abuse. AGO 90-103.
Section 119.071(2)(j)2a., F.S., provides that identifying information in a videotaped
statement of a minor who is alleged to be or who is a victim of a sexual offense prohibited
in the cited laws which reveals the minor's identity, including, but not limited to, the minor's
face; the minor's home, school, church, or employment telephone number; the minor's home,
school, church, or employment address; the name of the minor's school, church, or place of
employment; or the personal assets of the minor; and which identifies the minor as a victim, held
by a law enforcement agency, is confidential. Access shall be provided, however, to authorized
governmental agencies when necessary to the furtherance of the agency's duties. Id. A public
employee may not willfully and knowingly disclose videotaped information that reveals the
minor's identity to anyone other than the designated individuals, including the defendant. Section
119.071(2)(j)2b., F.S. Cf. State v. Ingram, 170 So. 3d 727 (Fla. 2015) (J. Pariente concurring) (s.
119-071[21 [j]2.b. does not authorize disclosure to a convicted incarcerated inmate of videotaped
information that reveals the minor victim's identity).
A public employee or officer having access to the photograph, name, or address of a person
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alleged to be a victim of an offense described in Ch. 794 (sexual battery); Ch. 800 (lewdness,
indecent exposure); s. 827.03 (abuse, aggravated abuse, and neglect of a child); s. 827.04
(contributing to delinquency or dependency of a child); or s. 827.071 (sexual performance by a
child) may not willfully and knowingly disclose it to a person not assisting in the investigation
or prosecution of the alleged offense or to any person other than the defendant, the defendant's
attorney, a person specified in a court order entered by the court having jurisdiction over the alleged
offense, to organizations authorized to receive such information made exempt by s. 119.071(2)
(h), F.S., or to a rape crisis center or sexual assault counselor, as defined in s. 90.50350)(b),
F.S., who will be offering services to the victim. Section 794.024(1), F.S. A violation of this
section constitutes a second degree misdemeanor. Section 794.024(2), F.S. Cf. State V. Globe
Communications Corporation, 648 So. 2d 110, 111 (Fla. 1994) (statute mandating criminal
sanctions for printing, publishing or broadcasting "in any instrument of mass communication"
information identifying a victim of a sexual offense, ruled unconstitutional).
An entity or individual who communicates to others, prior to open judicial proceedings,
the name, address, or other specific identifying information concerning the victim of any sexual
offense under Ch. 794 or Ch. 800 shall be liable to the victim for all damages reasonably necessary
to compensate the victim for any injuries suffered as a result of such communication. Section
794.026(1), F.S. The victim, however, may not maintain a cause of action unless he or she is able
to show that such communication was intentional and was done with reckless disregard for the
highly offensive nature of the publication. Section 794.026(2), F.S. Cf. Cox Broadcasting Corp. V.
Cohn, 95 S.Ct. 1029 (1975); and Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989),
appeal dismissed, 110 S.Ct. 296 (1989).
The Crime Victims' Services Office in the Attorney General's Office is authorized to receive
confidential records from law enforcement and prosecutorial agencies. Section 960.05(2)(k), F.S.
And see AGO 92-51 (city victim services division, as a governmental agency which is part of the
city's criminal justice system, may receive identifying information about victims of sex offenses,
for the purpose of advising the victim of available services pursuant to s. 960.001, F.S., requiring
distribution of victim support information).
(b) Court records
Section 92.56, F.S., provides that criminal intelligence information or criminal investigative
information made confidential pursuant to s. 119.071(2)(h), F.S., must be maintained in court
records and in court proceedings, including witnesses' testimony. If a petition for access to
these records is filed with the trial court with jurisdiction over alleged offense, the status of the
information must be maintained by the court if the state or the victim demonstrates certain
factors as set forth in the statute. Section 92.56(1), F.S. A person who willfully and knowingly
violates section 92.56, F.S., or any court order issued under this section is subject to contempt
proceedings. Section 92.56(6), F.S. See also AGO 03-56 and s. 119.0714(1)(h), F.S.
(c) Department of Children and Families abuse records
As discussed on pages 71-73, there are statutory exemptions set forth in Ch. 415, F.S., which
relate to records of abuse of vulnerable adults. Similar provisions relating to child abuse records
are found in Ch. 39, F.S. The Attorney General's Office has concluded that the confidentiality
provisions in these laws, i.e., ss. 415.107 and 39.202, F.S., apply to records of the Department
of Children and Families [DCF] and do not encompass a law enforcement agency's arrest report
of persons charged with criminal child abuse, after the agency has deleted all information which
would reveal the identity of the victim. See AGO 93-54. Accord Inf. Op. to O'Brien, January 18,
1994. Cf. Times Publishing Company v. A.J., 626 So. 2d 1314 (Fla. 1993), holding that a sheriffs
incident report of alleged child abuse that was forwarded to the state child welfare department for
investigation pursuant to Ch. 415, F.S. 1990 [see now Part II, Ch. 39, F.S., entitled "Reporting
Child Abuse"], should not be released. The Court noted that the department had found no
probable cause and that child protection statutes accommodate privacy rights of those involved in
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these cases "by providing that the supposed victims, their families, and the accused should not be
subjected to public scrutiny at least during the initial stages of an investigation, before probable
cause has been found." Id. at 1315.
Section 39.202(1) and (2)(b), F.S., authorizes criminal justice agencies to have access
to confidential abuse, abandonment, or neglect records held by DCF and provides that the
exemption from disclosure for DCF abuse records also applies to DCF records and information
in the possession of the agencies granted access. See Inf. Op. to Russell, October 24, 2001.
(6) Homicide victims and witnesses
(a) Photographs, video or audio recordings of killing of law enforcement officer
Section 406.136(2), F.S., provides confidentiality for a photograph, video or audio
recording that depicts or records the killing of a law enforcement officer acting in accordance
with his or her official duties. The term "killing of a law enforcement officer who was acting
in accordance with his or her official duties" is defined to mean "all acts or events that cause or
otherwise relate to the death of a law enforcement officer who was acting in accordance with his
or her official duties, including any related acts or events immediately preceding or subsequent
to the acts or events immediately preceding or subsequent to the acts or events that were the
proximate cause of death." Section 406.136(1), F.S.
The law creating the current version of the exemption took effect on October 1, 2016.
See Ch. 16-214, Laws of Florida. The prior version of s. 406.136, F.S., enacted in 2011, applied
more broadly to a photograph, video, or audio recording that depicts or records the "killing
of a person" and was held to apply to crime scene photographs of the victims. See State v.
Schenecker, No. 11 -CF -001376A (Fla. 13th Cir. Ct. August 3, 2011), cert. deniedsub nom., Media
General Operations v. State, 71 So. 3d 124 (Fla. 2d DCA 2011). And see page 70 discussing the
confidentiality of autopsy photographs.
(b) Address of victim of an incident of mass violence
The address of a victim of an incident of mass violence is exempt from disclosure
requirements. Section 119.071(2)(0), F.S. The term "incident of mass violence" means an
incident in which 4 or more people, not including the perpetrator, are severely injured or killed
by an intentional and indiscriminate act of violence of another. The term "victim" means a
person killed or injured during an incident of mass violence, not including the perpetrator. Id.
(c) Homicide witness
Criminal investigative or intelligence information that reveals the personal identifying
information of a witness to a murder, as described in s. 782.04, F.S., is confidential for 2 years
after the date on which the murder is observed by the witness. Section 119.071(2)(m) I., F.S. A
criminal justice agency may disclose this information in the furtherance of its official duties and
responsibilities; to assist in locating or identifying the witness if the agency believes the witness
to be missing or endangered; to another governmental agency for use in the performance of its
official duties and responsibilities; to the parties in a pending criminal prosecution as required
by law. Id. And see Palm Beach County Sheriffs Office v. Sun -Sentinel Company, LLC, 226 So. 3d
969 (Fla. 4th DCA 2017) (applying exemption to shield the identity of witnesses who observed
a homicide on the highway and whose vehicle was hit by bullets fired by the perpetrator as the
witnesses attempted to follow the suspect's car).
(7) Human trafficking victims
Criminal intelligence information or criminal investigative information that may reveal
the identity of a person who is a victim of human trafficking whose criminal history record has
been expunged pursuant to s. 943.0583, F.S., is confidential. Section 943.0583(11)(a), F.S.
Disclosure is authorized under certain circumstances. Section 943.0583(11)(b), F.S. And see s.
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119.071(2) (h), F.S., relating to victims of the crime of human trafficking proscribed ins. 787.06,
F.S., discussed on page 116.
Information about the location of a safe house, safe foster home, or other residential
facility serving child victims of commercial sexual exploitation, as defined in s. 409.016, F.S.,
is confidential and exempt from public disclosure requirements. Section 409.1678(6)(a), F.S.
Information may be provided to an agency as necessary to maintain health and safety standards
and to address emergency situations in the house or facility. Section 409.1678(6)(b), F.S.
(8) Relocated victim or witness information
Information held by a law enforcement agency, prosecutorial agency or the Victim and
Witness Protection Review Committee which discloses the identity or location of a victim
or witness (or their immediate family) who has been identified or certified for protective or
relocation services is confidential and exempt from disclosure. Section 914.27, F.S.
16. Litigation records
a. Attorney-client communications
The Public Records Act applies to communications between attorneys and governmental
agencies; there is no judicially created privilege which exempts these documents from disclosure.
Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979) (only the Legislature and
not the judiciary can exempt attorney-client communications from Ch. 119, ES.). See also City
of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218 (Fla. 1985) (although s.
90.502, F.S., of the Evidence Code establishes an attorney-client privilege for public and private
entities, this evidentiary statute does not remove communications between an agency and its
attorney from the open inspection requirements of Ch. 119, F.S.).
Moreover, public disclosure of these documents does not violate the public agency's
constitutional rights of due process, effective assistance of counsel, freedom of speech, or the
Supreme Court's exclusive jurisdiction over The Florida Bar. City of North Miami v. Miami
Herald Publishing Company, supra. And see Seminole County, Florida v. Wood, 512 So. 2d 1000,
1001 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988) (the rules of ethics
provide that an attorney may divulge a communication when required by law; the Legislature has
plenary authority over political subdivisions and can require disclosure of otherwise confidential
materials); and AGO 98-59 (records in the files of the former city attorney, who served as a
contract attorney for the city, which were made or received in carrying out her duties as city
attorney and which communicate, perpetuate, or formalize knowledge constitute public records
and are required to be turned over to her successor).
On the other hand, the Florida Supreme Court has ruled that files in the possession of the
Capital Collateral Representative (CCR) in furtherance of its representation of an indigent client
are not subject to public disclosure under Ch. 119, F.S. The Court noted that the files are not
governmental records for purposes of the public records law but are the "private records" of the
CCR client. Kight v. Dugger, 574 So. 2d 1066 (Fla. 1990). And see Times Publishing Company
v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999) (private attorneys retained by
individual county commissioners in a criminal case were not "acting on behalf" of a public
agency so as to become subject to the Public Records Act, even though the board of county
commissioners subsequently voted to pay the commissioners' legal expenses in accordance with
a county policy providing for reimbursement of legal expenses to individual county officers who
successfully defend criminal charges filed against them arising out of the performance of their
official duties).
b. Attorney work product
The Supreme Court has ruled that the Legislature and not the judiciary has exclusive
authority to exempt litigation records from the scope of Ch. 119, F.S. Wait v. Florida Power &
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Light Company, 372 So. 2d 420 (Fla. 1979). See also Edelstein v. Donner, 450 So. 2d 562 (Fla.
3d DCA 1984), approved, 471 So. 2d 26 (Fla. 1985), noting that in the absence of legislation,
a work product exemption is "non-existent;" and Hillsborough County Aviation Authority v.
Azzarelli Construction Company, 436 So. 2d 153, 154 (Fla. 2d DCA 1983), stating that the
Supreme Court's decision in Wait "constituted a tacit recognition that work product can be a
public record."
With the enactment of s. 119.071(1)(d), F.S., the Legislature created a narrow statutory
exemption for certain litigation work product of agency attorneys. See City of Orlando v.
Desjardins, 493 So. 2d 1027, 1029 (Fla. 1986), in which the Court noted that the exemption
was enacted because of "developing case law affording public entities no protection under either
the work product doctrine or the attorney-client privilege ...." See also City of North Miami
v. Miami Herald Publishing Company, 468 So. 2d 218, 219 (Fla. 1985) (noting application of
exemption to "government agency, attorney -prepared litigation files during the pendency of
litigation"); and City of Miami Beach v. DeLapp, 472 So. 2d 543 (Fla. 3d DCA 1985) (opposing
counsel not entitled to city's legal memoranda as such material is exempt work product).
Section 119.071(1)(d)I., F.S., states, in relevant part:
A public record that was prepared by an agency attorney (including
an attorney employed or retained by the agency or employed
or retained by another public officer or agency to protect or
represent the interests of the agency having custody of the record)
or prepared at the attorney's express direction, that reflects a
mental impression, conclusion, litigation strategy, or legal theory
of the attorney or the agency, and that was prepared exclusively
for civil or criminal litigation or for adversarial administrative
proceedings, or that was prepared in anticipation of imminent
civil or criminal litigation or imminent adversarial administrative
proceedings, is exempt [from disclosure] until the conclusion of
the litigation or adversarial administrative proceedings....
Note that this statutory exemption applies to attorney work product that has reached
the status of becoming a public record; as discussed more extensively on pages 124-125, certain
preliminary trial preparation materials, such as handwritten notes for the personal use of the
attorney, are not considered to be within the definitional scope of the term "public records" and,
therefore, are outside the scope of Ch. 119, F.S. See Johnson v. Butterworth, 713 So. 2d 985 (Fla.
1998).
Under the terms of the statute, the work product exemption "is not waived by the release
of such public record to another public employee or officer of the same agency or any person
consulted by the agency attorney." Section 119.071(1)(d)2., F.S. See also AGO 94-77 (work
product exemption continues to apply to records prepared by the county attorney when these
records are transferred to the city attorney pursuant to a transfer agreement whereby the city is
substituted for the county as a party to the litigation).
An agency asserting the work product exemption must identify the potential parties to
the litigation or proceedings. Section 119.071(1)(d)2., F.S. In the event of litigation disputing
the claimed work product exemption, the court must conduct an in camera inspection of the
records. Environmental Turf, Inc. v. University of Florida Board of Trustees, 83 So. 3d 1012 (Fla.
1st DCA 2012).
If a court finds that the record was improperly withheld, the party seeking the record shall
be awarded reasonable attorney's fees and costs in addition to any other remedy ordered by the
court. Section 119.071(1)(d)2., F.S. As one court has noted, the inclusion of an attorney's fee
sanction "was prompted by the legislature's concern that government entities might claim the
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work product privilege whenever public access to their records is demanded." Smith & Williams,
P.A. v. West Coast Regional Water Supply Authority, 640 So. 2d 216, 218 (Fla. 2d DCA 1994).
(1) Scope of exemption
(a) Attorney bills and payments
Only those records which reflect a "mental impression, conclusion, litigation strategy, or
legal theory" are included within the parameters of the work product exemption. Accordingly,
in AGO 85-89, the Attorney General's Office concluded that a contract between a county and a
private law firm for legal counsel and documentation for invoices submitted by such firm to the
county do not fall within the work product exemption. Accord AGO 00-07 (records of outside
attorney fee bills for the defense of the county, as well as its employees who are sued individually,
for alleged civil rights violations are public records subject to disclosure).
If the bills and invoices contain some exempt work product--i.e., "mental impression[s],
conclusion [s], litigation strateg[ies], or legal theor[ies],"--the exempt material may be deleted and
the remainder disclosed. AGO 85-89. However, information such as the hours worked or the
hourly wage clearly would not fall within the scope of the exemption. Id. And see Herskovitz
v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998) ("Obviously, an entry on a [billing]
statement which identifies a specific legal strategy to be considered or puts a specific amount of
settlement authority received from the client, would fall within the exemption. On the other
hand, a notation that the file was opened, or that a letter was sent to opposing counsel, would
not.") .
Thus, an agency which "blocked out" most notations on invoices prepared in connection
with services rendered by and fees paid to attorneys representing the agency, "improperly
withheld" nonexempt material when it failed to limit its redactions to those items "genuinely
reflecting its `mental impression, conclusion, litigation strategy, or legal theory."' Smith &
Williams, P.A. v. West Coast Regional Water Supply Authority, 640 So. 2d at 218. And see Davis
v. Sarasota County Public Hospital Board, 480 So. 2d 203 (Fla. 2d DCA 1985), review denied,
488 So. 2d 829 (Fla. 1986), holding in part that a citizen seeking to examine records of a public
hospital board concerning the payment of legal fees was entitled to examine actual records, not
merely excerpts taken from information stored in the hospital's computer.
(b) Records prepared prior to litigation or for other purposes
Unlike the open meetings exemption in s. 286.011(8), F.S., for certain attorney-client
discussions between a governmental board and its attorney, s. 119.071(1)(d), F.S., is not limited
to records created for pending litigation before a court or administrative agency, but may also
apply to records prepared "in anticipation of imminent civil or criminal litigation or imminent
adversarial administrative proceedings ...." (e.s.) See AGO 98-21, discussing the differences
between the public records work product exemption in s. 119.071(1)(d) and the Sunshine Law
exemption in s. 286.011(8), F.S.
However, s. 119.071(1)(d), F.S., does not create a blanket exception to the Public Records
Act for all attorney work product. AGO 91-75. The exemption is narrower than the work
product privilege recognized by the courts for private litigants. AGO 85-89. In order to qualify
for the work product exemption, the records must have been prepared exclusively for litigation
or adversarial administrative proceedings, or prepared in anticipation of imminent litigation or
adversarial administrative proceedings; records prepared for other purposes may not be converted
into exempt material simply because they are also used in or related to the litigation. See, e.g.,
Lightbourne v. McCollum, 969 So. 2d 326, 333 (Fla. 2007), cert. denied, 553 U.S. 1059 (2008)
(memoranda prepared by corrections department attorney regarding lethal injection procedures
do not constitute exempt attorney work product because memoranda do not relate to any
pending litigation nor appear to have been prepared exclusively for litigation); MHM Correctional
Services, Inc. v. State, Department of Corrections, No. 2009 CA 2105 (Fla. 2d Cir. Ct. June 10,
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2009) (department wrongfully withheld portions of an e-mail stream regarding the bid process
as protected work product or privileged communications as none of the emails were prepared in
contemplation of litigation as required by the statute).
Moreover, only those records which are prepared by or at the express direction of the
agency attorney and reflect "a mental impression, conclusion, litigation strategy, or legal theory
of the attorney or the agency" are exempt from disclosure until the conclusion of the proceedings.
See City of Orlando v. Desjardins, 493 So. 2d 1027, 1028 (Fla. 1986) (trial court must examine
city's litigation file in accident case and prohibit disclosure only of those records reflecting mental
impression, conclusion, litigation strategy or legal theory of attorney or city); Jordan v. School
Board of Broward County, 531 So. 2d 976, 977 (Fla. 4th DCA 1988) (record did not constitute
exempt work product because it "was not prepared at an attorney's express direction nor did it
reflect a conclusion and mental impression of appellee"); and Lightbourne v. McCollum, supra
(exemption inapplicable to records that conveyed specific factual information rather than mental
impressions or litigation strategies). Cf. Tober v. Sanchez, 417 So. 2d 1053, 1055 (Fla. 3d DCA
1982), review denied sub nom., Metropolitan Dade County TransitAgency v. Sanchez, 426 So. 2d 27
(Fla. 1983) (documents which are given by a client to an attorney in the course of seeking legal
advice are privileged in the attorney's hands only if the documents were privileged in the client's
hands; thus, otherwise public records made or received by agency personnel do not become
privileged merely by transferring them to the agency attorney).
Thus, a circuit judge refused to apply the exemption to tapes, witness statements and
interview notes taken by police as part of an investigation of a drowning accident at a city
summer camp. See Sun -Sentinel Company v. City of Hallandale, No. 95-13528(05) (Fla. 17th
Cir. Ct. October 11, 1995). Similarly, in AGO 05-23, the Attorney General's Office advised
that notes taken by the assistant city attorney during interviews with co-workers of certain
city employees in order to ascertain if employee discipline was warranted are not exempt from
disclosure. See also AGO 91-75 (work product exemption not applicable to documents generated
or received by school district investigators, acting at the direction of the school board to conduct
an investigation of certain school district departments). Cf. City of Avon Park v. State, 117 So.
3d 470 (Fla. 2d DCA 2013) (recognizing that where no charges were filed against any of the
parties mentioned in a state attorney investigator's report, the report was a public record and the
s. 119.071 [1] [d], F.S., exemption was inapplicable).
(c) Settlement records
A circuit court held that draft settlement agreements furnished to a state agency by a federal
agency were public records despite the department's agreement with the federal agency to keep
such documents confidential. Florida Sugar Cane League, Inc. v. Department of Environmental
Regulation, No. 91-2108 (Fla. 2d Cir. Ct. September 20, 1991), per curiam affirmed, 606 So.
2d 1267 (Fla. 1st DCA 1992). And see Florida Sugar Cane League, Inc. v. Florida Department of
Environmental Regulation, No. 91-4218 (Fla. 2d Cir. Ct. June 5, 1992) (technical documents
or data which were not prepared for the purpose of carrying litigation forward but rather were
jointly authored among adversaries to promote settlement are not exempted as attorney work
product); and Inf. Op. to Gastesi, August, 27, 2015 (settlement demand furnished by plaintiff to
agency). Cf. Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204,
205 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (private company under
contract with sheriff to provide medical services for inmates at county jail must release records
relating to a settlement agreement with an inmate because all of its records that would normally
be subject to the Public Records Act if in the possession of the public agency, are likewise covered
by that law, even though in the possession of the private corporation).
In addition, if the state settles a claim against one company accused of conspiracy to fix
prices, the state has concluded the litigation against that company. Thus, the records prepared in
anticipation of litigation against that company are no longer exempt from disclosure even though
the state has commenced litigation against the alleged co-conspirator. State v. Coca-Cola Bottling
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Company of Miami, Inc., 582 So. 2d 1 (Fla. 4th DCA 1990). And see Tribune Company v. Hardee
Memorial Hospital, No. CA -91-370 (Fla. 10th Cir. Ct. August 19, 199 1) (settlement agreement
not exempt as attorney work product even though another related case was pending, and agency
attorneys feared disclosure of their assessment of the merits of the settled case and their litigation
strategy would have a detrimental effect upon the agency's position in the related case).
(2) Duration of exemption
The exemption from disclosure provided by s. 119.071(1)(d), F.S., is temporary and
limited in duration. City of North Miami v. Miami Herald Publishing Co., supra. The exemption
exists only until the "conclusion of the litigation or adversarial administrative proceedings" even if
disclosure of the information in the concluded case could negatively impact the agency's position
in related cases or claims. See State v. Coca-Cola Bottling Company of Miami, Inc., 582 So. 2d 1
(Fla. 4th DCA 1990); Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review
denied, 520 So. 2d 586 (Fla. 1988); and Lightbourne v. McCollum, supra (rejecting a "continuing
exemption" claim by the state). And see AGO 13-13 (Sunshine Law exemption for certain
attorney-client meetings found in s. 286.011 [8], F.S., "does not recognize a continuation of the
exemption for `derivative claims' made in separate, subsequent litigation"). Cf. State v. Coca-Cola
Bottling Company of Miami, Inc., supra (although state cannot claim work product exemption
for litigation records after conclusion of litigation, Ch. 119 does not cover oral testimony; thus,
opposing counsel not entitled to take depositions of state representatives regarding the concluded
litigation).
Thus, a school board failed to meet its burden of showing that items contained in a school
board litigation report were exempt from disclosure where there was no evidence that the cases in
question were pending and open when the board received the public records request. Barfield v.
School Board of Manatee County, 135 So. 3d 560 (Fla. 2d DCA 2014).
However, the phrase "conclusion of the litigation or adversarial administrative proceedings"
encompasses post -judgment collection efforts such as a legislative claims bill. Wagner v. Orange
County, 960 So. 2d 785 (Fla. 5th DCA 2007). AndseeAGO 94-33, concluding that for purposes
of the attorney-client exemption from the Sunshine Law in s. 286.011(8), F.S., a pending lawsuit
is concluded when the suit is dismissed with prejudice or the applicable statute of limitations has
run; "[t]o allow a plaintiff who has voluntarily dismissed a suit to gain access to transcripts of
strategy or settlement meetings in order to obtain an advantage in the refiling of a lawsuit would
subvert the purpose of the statute." Cf. Chmielewski v. City of St. Pete Beach, 161 So. 3d 521 (Fla.
2d DCA 2014) (rejecting city's argument that because an agreement settling a quiet title action
provided for further mediation should a dispute arise regarding the meaning of the agreement,
the case was still pending for purposes of the Sunshine Law exemption in s. 286.011 [8], ES).
In addition, the exemption extends "through prosecution of appeals." Inf. Op. to Boutsis,
December 13, 2012. Cf. s. 119.071(1) (d)1., F.S. ("For purposes of capital collateral litigation as
set forth in s. 27.700 1, the Attorney General's office is entitled to claim this exemption for those
public records prepared for direct appeal as well as for all capital collateral litigation after direct
appeal until execution of sentence or imposition of a life sentence.").
C. Other statutory exemptions relating to litigation records
Section 768.28(16)(b), F.S., provides an exemption for claims files maintained by agencies
pursuant to a risk management program for tort liability until the termination of all litigation and
settlement of all claims arising out of the same incident.
The "plain language of the statute" indicates that the "entire claims file is exempt from
disclosure until resolution of the claim or claims." City of Homestead v. McDonough, 232 So. 3d
1069, 1071 (Fla. 3d DCA 2017). [emphasis supplied by the court]. Accordingly, the trial court
erred by creating ordering production of certain records in the file on the theory that production
would not harm the city. Id. See also Wagner v. Orange County, 960 So. 2d 785 (Fla. 5th DCA
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2007), stating that the phrase "settlement of all claims arising out of the same incident" included
a legislative claims bill.
The exemption afforded by s. 768.28(16), F.S., is limited to tort claims for which the
agency may be liable under s. 768.28, F.S., and does not apply to federal civil rights actions under
42 U.S.C. s. 1983. AGOs 00-20 and 00-07. Andsee Sun -Sentinel Company v. City of Hallandale,
No. 95-13528(05) (Fla. 17th Cir. Ct. October 11, 1995) (exemption now found at s. 768.28[16]
[b], F.S., for risk management files did not apply to tapes, witness statements and interview
notes taken by police as part of an investigation of a drowning accident at a city summer camp).
Moreover, the exemption does not include outside attorney invoices indicating hours worked
and amount to be paid by the public agency, even though the records may be maintained by the
agency's risk management office pursuant to a risk management program. AGO 00-07. And see
AGO 92-82 (open meetings exemption provided by s. 768.28, F.S., applies only to meetings held
after a tort claim is filed with the risk management program).
Section 624.311(2), F.S., provides that the "records of insurance claim negotiations of
any state agency or political subdivision are confidential and exempt [from disclosure] until
termination of all litigation and settlement of all claims arising out of the same incident." A
county's self-insured workers compensation program is the legal equivalent of "insurance" for
purposes of this exemption. Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9,
1998). And see AGO 85-102 (s. 624.311, F.S., exemption includes correspondence regarding
insurance claims negotiations between a county's retained counsel and its insurance carriers until
termination of litigation and settlement of claims arising out of the same incident). Compares.
284.40(2), F.S. (claim files maintained by the risk management division of the Department of
Financial Services are confidential, shall be only for the use of the department, and are exempt
from disclosure); and s. 1004.24(4), F.S. (claims files of self-insurance program adopted by Board
of Governors, or the board's designee, are confidential and exempt).
d. Attorney notes
Relying on its conclusion in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379
So. 2d 633 (Fla. 1980), the Florida Supreme Court has recognized that "not all trial preparation
materials are public records." State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990). In Kokal, the Court
approved the decision of the Fifth District in Orange County v. Florida Land Co., 450 So. 2d 341,
344 (Fla. 5th DCA 1984), review denied, 458 So. 2d 273 (Fla. 1984), which described certain
documents as not within the term "public records" because they were not used to perpetuate,
formalize, or communicate knowledge:
Document No. 2 is a list in rough outline form of items of
evidence which may be needed for trial. Document No. 9 is a
list of questions the county attorney planned to ask a witness.
Document No. 10 is a proposed trial outline. Document No. 11
contains handwritten notes regarding the county's sewage system
and a meeting with Florida Land's attorneys. Document No. 15
contains notes (in rough form) regarding the deposition of an
anticipated witness. These documents are merely notes from the
attorneys to themselves designed for their own personal use in
remembering certain things. They seem to be simply preliminary
guides intended to aid the attorneys when they later formalized
the knowledge. We cannot imagine that the Legislature, in
enacting the Public Records Act, intended to include within the
term `public records' this type of material. [Emphasis supplied
by Court]
Similarly, in Johnson v. Butterworth, 713 So. 2d 985, 987 (Fla. 1998), the Court ruled
that "outlines, time lines, page notations regarding information in the record, and other similar
items" in the case file, do not fall within the definition of public record, and thus are not subject
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to disclosure. See also Braddy v. State, 219 So. 3d 803. 821 (Fla. 2017) ("handwritten attorney
notes, draft documents, and annotated copies of decisional law ... do not constitute public
records"); Patton v. State, 784 So. 2d 380, 389 (Fla. 2000) (prosecutor's personal notes, i.e.,
handwritten details of specific questions to ask jurors during voir-dire, notes on potential jurors,
a time -line of events, or specific detailed questions for witnesses, are not public records); Ragsdale
v. State, 720 So. 2d 203, 205 (Fla. 1998) ("attorney's notes and other such preliminary documents
are not public records and are never subject to public records disclosure"); Valle v. State, 705
So. 2d 1331, 1335 (Fla. 1997) (prosecutors' notes to themselves for their own personal use,
including outlines of opening and closing arguments and notes of witness depositions are not
public records); Lopez v. State, 696 So. 2d 725, 727 (Fla. 1997) (handwritten notes dealing with
trial strategy and cross-examination of witnesses are not public records); and Atkins v. State, 663
So. 2d 624, 626 (Fla. 1995) (notes of state attorney's investigations and annotated photocopies
of decisional case law are not public records).
By contrast, documents prepared to communicate, perpetuate, or formalize knowledge
constitute public records and are, therefore, subject to disclosure in the absence of statutory
exemption. See Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640
(Fla. 1980), stating that "[i]nter-office memoranda and intra -office memoranda communicating
information from one public employee to another or merely prepared for filing, even though not
a part of an agency's later, formal public product, would nonetheless constitute public records
inasmuch as they supply the final evidence of knowledge obtained in connection with the
transaction of official business."
Thus, in Coleman v. Austin, 521 So. 2d 247, 248 (Fla. 1st DCA 1988), the court observed
that "although notes from attorneys to themselves might not be public records when intended
for their own personal use, inter -office and intra -office memoranda may constitute public records
even though encompassing trial preparation materials." And see Orange County v. Florida Land
Company, supra, in which the court concluded that trial preparation materials consisting of
interoffice and intraoffice memoranda communicating information from one public employee to
another or merely prepared for filing, even though not part of the agency's formal work product,
were public records although such circulated trial preparation materials might be exempt from
disclosure pursuant to s. 119.071(1)(d), F.S., while the litigation is ongoing. See also AGO 05-
23 (handwritten notes prepared by city's assistant labor attorney during her interviews with city
employees are public records "when those notes are made to perpetuate and formalize knowledge
and to communicate that information to the city's labor attorney").
17. Personal records not made or received in the course of official business
As noted in AGO 04-33, the broad definition of "public record" makes it clear that the
"form of the record is irrelevant; the material issue is whether the record is made or received by
the public agency in connection with the transaction of official business." See s. 119.011(12),
F.S., defining the term "public records" to mean materials "made or received pursuant to law or
ordinance or in connection with the transaction of official business by any agency." See also Shevin
v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), stating that
in order to constitute "public records" for purposes of Ch. 119 disclosure requirements, the
records must have been prepared "in connection with official agency business" and be intended
to "perpetuate, communicate, or formalize knowledge of some type."
Accordingly, records which are not made or received in connection with the transaction of
official business do not constitute public records for purposes of Ch. 119 disclosure requirements.
See e.g. Butler v. City of Hallandale Beach, 68 So. 3d 278 (Fla. 4th DCA 2011) (e-mail sent by
mayor from her personal account using her personal computer and blind copied to friends and
supporters did not constitute a public record because the e-mail was not made pursuant to law or
ordinance or in connection with the transaction of official business).
In evaluating whether a record is made or received in connection with the official business
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of an agency, "the determining factor is the nature of the record, not its physical location." State v.
City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003). In Clearwater, the Court held that personal
e-mails between government employees on government-owned computers which were not made
or received in the course of official business did not constitute public records. See also Bent v.
State, 46 So. 3d 1047, 1050 (Fla. 4th DCA 2010) (recordings made by sheriff's office of personal
telephone calls between minors in jail awaiting trial and third parties are not public records when
contents of the phone calls do not involve criminal activity or a security breach); and Media
General Operations, Inc. v. Feeney, 849 So. 2d 3 (Fla. 1st DCA 2003) (records of personal or
private calls of legislative employees using cellular phone service provided by a political party do
not constitute official business of the Legislature and are not subject to public disclosure).
However, in concluding that the location of e-mails on a government computer does not
control the application of Public Records Act, the Clearwater court also cautioned that the case
before it did not involve e-mails "that may have been isolated by a government employee whose
job required him or her to locate employee misuse of government computers." State v. City of
Clearwater, at 151 n.2. And see Miami -Dade County v. Professional Law Enforcement Association,
997 So. 2d 1289 (Fla. 3d DCA 2009) (personal flight log of pilots paid by county which are
required as part of pilots' administrative duties are distinguishable from personal e-mails in City
of Clearwater case and are subject to disclosure). See also AGO 09-19 (because the creation of
a city Facebook page must be for a municipal, not private purpose, the "placement of material
on the city's page would presumably be in furtherance of such purpose and in connection with
the transaction of official business and thus subject to the provisions of Chapter 119, Florida
Statutes"),
Similarly, the mere fact that an e-mail is sent from a private e-mail account using a personal
computer is not the determining factor as to whether it is a public record; it is whether the
e-mail was prepared or received in connection with official agency business. See Butler v. City
of Hallandale Beach, supra. For example, if a public employee sends a proposed agency budget
to his or her supervisor for review, the report is a public record, regardless of whether the report
was sent from the employee's agency e-mail account using a government computer, or from
his or her home computer using a personal e-mail account. And see AGO 08-07 (individual
council members who post comments and emails relating to transaction of city business on a
privately -owned and operated website "would be responsible for ensuring that the information
is maintained in accordance with the Public Records Law"). Cf. AGO 16-16 (hospital district
not authorized to reimburse a board member for attorney fees incurred in responding to a public
records request for records relating to her board service which were stored in her private computer
and telephone when no suit, claim, charge or action was instituted against the commissioner
when the fees were incurred).
Thus, in Bill of Rights, Inc. v. City of New Smyrna Beach, No. 2009-20218-CINS (Fla. 7th
Cir. Ct. April 8, 2010), the court concluded that billing documents regarding personal calls made
and received by city employees on city -owned or city -leased cellular telephones are public records,
when those documents are received and maintained in connection with the transaction of official
business; "and, the `official business' of a city includes paying for telephone service and obtaining
reimbursement from employees for personal calls." See also AGO 77-141 (copies of letters or
other documents received by the mayor in his official capacity constitute records received "in
connection with the transaction of official business" and therefore are public records). Compare
Inf. Op. to Burke, April 14, 2010 (while the licensing board, and not Attorney General's Office,
must determine whether a letter, allegedly sent to the board by mistake, had been received by the
board in connection with the transaction of official business, the board "may wish to consider
whether circumstances characterize how the document was received, such as does the letter relate
to a past, existing, or potential investigation by the board").
18. Personnel records
The general rule with regard to personnel records is the same as for other public records;
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unless the Legislature has expressly exempted certain personnel records from disclosure or
authorized the agency to adopt rules limiting access to such records, personnel records are subject
to public inspection and copying under s. 119.070), F.S. See Michel v. Douglas, 464 So. 2d 545
(Fla. 1985).
a. Annuity or custodial account activities
Records identifying individual participants in any annuity contract or custodial account
under s. 112.21, F.S. (relating to tax-sheltered annuities or custodial accounts for employees of
governmental agencies) and their personal account activities are confidential and exempt from s.
119.07(1), F.S. Section 112.21(1), F.S.
b. Applications for employment, references, and resumes
Applications and resumes are subject to disclosure, after redaction of statutorily exempt
information such as social security numbers. See Shevin v. Byron, Harless, Schaffer, Reid
and Associates, Inc., 379 So. 2d 633 (Fla. 1980); and AGOs 15-10 and 77-48. Similarly,
communications from third parties are subject to disclosure. See Douglas v. Michel, 410 So.
2d 936 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985). A
written employment contract is a public record. AGO 13-14.
C. Collective bargaining
(1) Relationship of collective bargaining agreement to personnel records
A collective bargaining agreement between a public employer and its employees may not
validly make the personnel records of public employees confidential or exempt the same from the
Public Records Act. AGO 77-48. Thus, employee grievance records are disclosable even though
classified as confidential in a collective bargaining contract because "to allow the elimination of
public records from the mandate of Chapter 119 by private contract would sound the death
knell of the Act." Mills v. Doyle, 407 So. 2d 348, 350 (Fla. 4th DCA 1981). Cf. Palm Beach
County Classroom Teacher's Association v. School Board of Palm Beach County, 411 So. 2d 1375,
1376 (Fla. 4th DCA 1982) (collective bargaining agreement cannot be used "to circumvent the
requirements of public meetings" in s. 286.011, F.S.).
Similarly, a city may not remove and destroy disciplinary notices, with or without the
employee's consent, during the course of resolving collective bargaining grievances, except in
accordance with retention schedules established by the Division of Library and Information
Services of the Department of State. AGO 94-75. Accord AGO 94-54.
(2) Collective bargaining work product exemption
Section 447.605(3), F.S., provides:
All work products developed by the public employer in
preparation for negotiations, and during negotiations, shall be
confidential and exempt from the provisions of s. 119.07 (1), F.S.
The exemption is limited and does not remove budgetary or fiscal information from the
purview of Ch. 119, F.S. See Bay County School Board v. Public Employees Relations Commission,
382 So. 2d 747, 749 (Fla. 1st DCA 1980), noting that records which are prepared for other
purposes do not, as a result of being used in negotiations, come within the s. 447.605(3)
exemption; and Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976), ordering that working
papers used in preparing a college budget be produced for inspection by a labor organizer.
Thus, proposals and counter proposals presented during the course of collective bargaining
would appear to be subject to public disclosure. However, written notes taken by the representative
of a fire control district during collective bargaining sessions for use in preparing for subsequent
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bargaining sessions which reflect the impressions, strategies and opinions of the district representative
are exempt pursuant to s. 447.605(3), F.S. Inf. Op. to Fulwider, June 14, 1993.
d. Complaints against employees
Section 119.071(2) (k), F.S., provides that a complaint of misconduct filed with an agency
against an agency employee and all information obtained pursuant to an investigation by the
agency of the complaint is confidential and exempt until the investigation ceases to be active,
or until the agency provides written notice to the employee who is the subject of the complaint,
either personally or by mail, that the agency has either:
a. Concluded the investigation with a finding not to proceed with disciplinary action or
file charges; or
b. Concluded the investigation with a finding to proceed with disciplinary action or file
charges.
Prior to the enactment of this statute in 2013, there was no general exemption from
public disclosure for complaints and investigative records based on alleged misconduct by
agency employees. See e.g., AGO 04-22 (anonymous letter sent to city officials containing
allegations of misconduct by city employees is a public record). Instead, the Legislature enacted
exemptions pertaining to specific types of complaints and investigations. See e.g. s. 943.03(2),
F.S., providing for confidentiality of Florida Department of Law Enforcement records relating to
an active investigation of misconduct, in connection with their official duties, of public officials
and employees and of members of public corporations and authorities subject to suspension or
removal by the Governor.
For information on the exemptions for whistleblower, discrimination and ethics complaints
directed against public officials and employees, please refer to the discussion on pages 92-96. A
discussion of exemptions addressing complaints against law enforcement officers and educators
follows:
(1) Law enforcement officers and correctional officers
(a) Scope of exemption and duration of confidentiality
In the absence of an express legislative exemption, law enforcement personnel records are
open to inspection just like those of other public employees. See Tribune Company v. Cannella,
438 So. 2d 516, 524 (Fla. 2d DCA 1983), quashed on other grounds, 458 So. 2d 1075 (Fla.
1984), appeal dismissed sub nom., Deperte v. Tribune Company, 105 S.Ct. 2315 (1985) (law
enforcement personnel records compiled and maintained by the employing agency "can never
constitute criminal investigative or intelligence information within the meaning of the Public
Records Act even if subpoenaed by another law enforcement agency at some point after their
original compilation by the employing agency").
However, section 112.533(2)(a), F.S., provides that complaints filed against law
enforcement officers and correctional officers, and all information obtained pursuant to the
agency's investigation of the complaint, are confidential until the investigation is no longer active
or until the agency head or his or her designee provides written notice to the officer who is the
subject of the complaint that the agency has concluded the investigation with a finding to either
proceed or not to proceed with disciplinary action or the filing of charges.
The term "law enforcement officer" is defined as any person, other than a chief of police,
who is employed full time by any municipality or the state or any political subdivision thereof
and whose primary responsibility is the prevention and detection of crime or the enforcement of
the penal, traffic, or highway laws of this state; and includes any person who is appointed by the
sheriff as a deputy sheriff pursuant to s. 30.07, F.S. Section 112-531 (1), F.S.
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Complaints filed with the employing agency by any person, whether within or outside the
agency, are subject to the exemption. AGO 93-61. However, the complaint must be in writing
in order for the confidentiality provisions to apply. City of Delray Beach v. Barfield, 579 So. 2d
315 (Fla. 4th DCA 1991). Cf. Fraternal Order of Police v. Rutherford, 51 So. 3d 485, 488 (Fla. 1st
DCA 2010) (written complaint not necessary to trigger confidentiality afforded by s. 112.532[4]
[b], F.S., as that statute provides a broader confidentiality for ongoing investigations whenever a
law enforcement or correctional officer faces possible dismissal, demotion, or suspension without
pay until the investigating agency "completes or abandons its investigation").
While s. 112.533, F.S., applies to complaints and records obtained pursuant to the law
enforcement agency's investigation of the complaint, it does not transform otherwise public
records (such as crime or incident reports) into confidential records simply because the actions
which are described in the crime report later form the basis of a complaint filed pursuant to s.
112.533, F.S. AGO 96-27. Thus, a circuit judge ordered a police department to provide the
media with a copy of an unredacted incident report that identified a police officer involved in the
shooting of an armed suspect. Morris Publishing Group, LLC v. Thomason, No. 16-2005-CA-7052-
XXXX-MA (Fla. 4th Cir. Ct. October 14, 2004). And see AGO 08-33 (list of law enforcement
officers who have been placed on administrative duty by their employer is not confidential under
S. 112.533 [2] [a], F.S., but is subject to inspection and copying even if information on the list will
identify officers who are the subject of internal investigation).
If the officer resigns prior to the agency's completion of its investigation, the exemption
from disclosure provided by s. 112.533(2), F.S., no longer applies, even if the agency is still
actively investigating the complaint. AGO 91-73. However, if the complaint has generated
information which qualifies as active criminal investigative information, i.e., information
compiled by a criminal justice agency while conducting an ongoing criminal investigation of
a specific act, such information would be exempt while the investigation is continuing with a
good faith anticipation of securing an arrest or prosecution in the foreseeable future. Id. See s.
112.533(2)(b), F.S., providing that the disclosure provisions do not apply to any public record
[such as active criminal investigative information exempted in s. 119.071(2)(c), F.S.] which is
exempt from disclosure pursuant to Ch. 119, F.S.
The exemption is of limited duration. Section 112.533(2), F.S., establishes that the
complaint and all information gathered in the investigation of that complaint generally become
public records at the conclusion of the investigation or at such time as the investigation becomes
inactive. AGO 95-59. Thus, a court ruled that the exemption ended once the sheriffs office
provided the accused deputy with a letter stating that the investigation had been completed, the
allegations had been sustained, and that the deputy would be notified of the disciplinary action
to be taken. Neumann v. Palm Beach County Police Benevolent Association, 763 So. 2d 1181 (Fla.
4th DCA 2000).
However, the mere fact that written notice of intervening actions is provided to the officer
under investigation does not signal the end of the investigation nor does such notice make this
information public prior to the conclusion of the investigation. AGO 95-59. Similarly, the
exemption remains in effect if an agency schedules a pre -disciplinary determination meeting with
an officer to hear and evaluate the officer's side of the case because " [d] iscipline is not an accepted
fact at this point." Palm Beach County Police BenevolentAssociation v. Neumann, 796 So. 2d 1278,
1280 (Fla. 4th DCA 2001).
A complaint is presumed to be inactive, and hence subject to disclosure, if no finding is
made within 45 days after the complaint is filed. Section 112.533(2)(b), F.S. See City of Delray
Beach v. Barfield, 579 So. 2d at 318 (trial court's finding that complaint was inactive, despite
contrary testimony of law enforcement officers conducting the investigation, comes to appellate
court "clothed with its own presumption of correctness --especially, as here, where there is other
record evidence which sustains it").
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(b) Limitations on disclosure
Section 112.533(2)(b), F.S., states that the inspection provisions in that subsection do
not apply to any public record which is exempt from public disclosure under Ch. 119, F.S. For
example, active criminal investigative or intelligence information which is exempt pursuant to
s. 119.071(2) (c), F.S., remains exempt notwithstanding the disclosure provisions set forth in s.
112.533(2)(a), F.S. Palm Beach County Police Benevolent Association v. Neumann, 796 So. 2d
1278 (Fla. 4th DCA 2001). And see AGO 91-73. Thus, in such cases, the information would
be subject to disclosure when the criminal investigative information exemption ends, rather than
as provided in s. 112.533(2), F.S. Cf. City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th
DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995) (exempt active criminal investigative
information may be shared with another criminal justice agency for use in a simultaneous internal
affairs investigation and retain its protected status).
Similarly, information that would reveal the identity of the victim of child abuse or the
victim of a sexual offense is not subject to disclosure since the information is exempt pursuant to
s. 119.071(2)(h), F.S. Palm Beach County Police Benevolent Association v. Neumann, supra.
However, the state attorney's records of a closed criminal investigation are not made
confidential by s. 112.533, F.S., even though an internal investigation conducted by the police
department remains pending concerning the same complaint. AGO 00-66. Cf. AGO 96-05,
noting that a police report of an agency's criminal investigation of a police officer is a public
record in the hands of the police department after the investigation is over regardless of whether
a copy of the report is forwarded to the Criminal Justice Standards and Training Commission or
to the Commission on Ethics.
(c) Unauthorized disclosure penalties
Section 112.533(4), F.S., makes it a first degree misdemeanor for any person who is a
participant in an internal investigation to willfully disclose any information obtained pursuant
to the agency's investigation before such information becomes a public record. However, the
subsection "does not limit a law enforcement or correctional officer's ability to gain access to
information under paragraph (2)(a)." Section 112.533(4), F.S. In addition, a sheriff, police chief
or other head of a law enforcement agency, or his or her designee, may acknowledge the existence
of a complaint, and the fact that an investigation is underway. Id.
The Attorney General's Office has issued several advisory opinions interpreting this statute.
See, e.g., AGO 03-60 (while public disclosure of information obtained pursuant to an internal
investigation prior to its becoming a public record is prohibited, s. 112.533[4], F.S., "would
not preclude intradepartmental communications among those participating in the investigation).
Cf. AGO 97-62 (confidentiality requirements prevent the participation of a citizens' board
in resolving a complaint made against a law enforcement officer until the officer's employing
agency has made its initial findings). But see Cooper v. Dillon, 403 E 3d 1208, 1218-1219
(11th Cir. 2005), in which the 11th Circuit Court of Appeals ruled that s. 112.533(4), F.S.,
was unconstitutional "[b]ecause the curtailment of First Amendment freedoms by Fla. Stat.
ch. 112.533(4) is not supported by a compelling state interest, the statute fails to satisfy strict
scrutiny and unconstitutionally abridges the rights to speak, publish, and petition government."
(2) Public school system employees
The complaint and material relating to the investigation of a complaint against a public
school system employee are confidential until the preliminary investigation is either concluded
or ceases to be active. Section 1012.31(3)(a)1., F.S. See AGO 91-75 (while exemption applies
when a complaint against a district employee has been filed and an investigation against that
employee ensues, it does not provide a basis for withholding documents compiled in a general
investigation of school departments). Cf. Johnson v. Deluz, 875 So. 2d 1,3 (Fla. 4th DCA 2004)
(because "legislature had no intention of permitting confidential student information to be made
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public," student -identifying information must be redacted from public report of investigation of
school principal); and Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d 851 (Fla.
1st DCA 2013) (student's unredacted e-mail complaining about an college instructor's classroom
behavior qualifies as an exempt "education record").
While s. 1012.31(1)(b), F.S., prohibits placing anonymous letters and material in a school
district employee's personnel file, the statute does not prevent a school board from investigating
the allegations contained in an anonymous letter nor does it permit the school board to destroy
the anonymous material absent compliance with statutory restrictions on destruction of public
records. AGO 87-48. Moreover, the personnel file is open at all times to school board members,
the superintendent, or the principal, or their respective designees in the exercise of their duties,
and to law enforcement personnel in the conduct of a lawful criminal investigation. Section
1012.31(3)(b) and (c), F.S.
(3) State university and Florida College System institution employees
For information on statutory exemptions for complaints filed against state university or
Florida College System institution (formerly community college) employees, please refer to the
discussion of employee evaluations on pages 133-134.
e. Conditions for inspection of personnel records
An agency is not authorized to unilaterally impose special conditions for the inspection
of personnel records. An automatic delay in the production of such records is invalid. Tribune
Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune
Company, 105 S.Ct. 2315 (1985) (automatic 48 hour delay unauthorized by Ch. 119, F.S.). And
see Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla. 2002) ("only
the custodian of such records can assert any applicable exemption; not the employee").
Thus, while an agency is not precluded from notifying an employee that a request has been
made to inspect his or her personnel records, in the absence of express legislative authority, the
production of personnel records may not be delayed in order to allow the employee to be notified
or present during the inspection of the public records relating to that employee. Compares.
1012.31(3)(a)3., F.S., providing that no material derogatory to a public school employee may be
inspected until 10 days after the employee has been notified by certified mail or personal delivery
as provided in s. 1012.31(2) (c), F.S.
(1) Privacy issues
The courts have rejected claims that constitutional privacy interests operate to shield
agency personnel records from disclosure. See Michel v. Douglas, 464 So. 2d 545, 546 (Fla.
1985), holding that the state constitution "does not provide a right of privacy in public records"
and that a state or federal right of disclosural privacy does not exist.
"Absent an applicable statutory exception, pursuant to Florida's Public Records Act
(embodied in chapter 119, Florida Statutes), public employees (as a general rule) do not have
privacy rights in such records." Alterra Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936,
940n.4 (Fla. 2002). See also Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.
2d 633 (Fla. 1980); and Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981). But see Fadjo V.
Coon, 633 F.2d 1172, 1175n.3 (5th Cir. 1981), noting that "it is clear that the legislature cannot
authorize by statute an unconstitutional invasion of privacy."
Additionally, the judiciary has refused to deny access to personnel records based on claims
that the release of such information could prove embarrassing or unpleasant for the employee.
See e.g., News -Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980)
(absent a statutory exemption, a court is not free to consider public policy questions regarding
the relative significance of the public's interest in disclosure and damage to an individual or
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institution resulting from such disclosure).
Public employers should note, however, that a court has held that an agency must provide
a discharged employee with an opportunity for a post -termination name -clearing hearing when
stigmatizing information concerning the employee is made a part of the public records or is
otherwise published. Buxton v. City of Plant City, Florida, 871 E2d 1037 (11th Cir. 1989).
See also Garcia v. Walder Electronics, Inc., 563 So. 2d 723 (Fla. 3d DCA 1990), review denied,
576 So. 2d 287 (Fla. 1990) (public employer has an affirmative duty to inform a discharged
employee of his right to seek a post -termination name -clearing hearing). Cf. Cannon v. City of
West Palm Beach, 250 EM 1299, 1303 (11th Cir. 2001) (failure to provide name -clearing hearing
to employee who alleged that he was denied a promotion due to stigmatizing information in
his personnel file does not violate the employee's due process rights, because "in this circuit a
`discharge or more' is required").
(2) Sealed records
An agency is not authorized to "seal" disciplinary notices and thereby remove such notices
from disclosure under the Public Records Act. AGO 94-75. Nor may an agency, absent a
statutory exemption for such records, agree to remove counseling slips and written reprimands
from an employee's personnel file and maintain such documents in a separate disciplinary file
for the purpose of removing such records from public access. AGO 94-54. Accord AGO 11-
19 (superintendent's failure to comply with a statutory requirement to discuss a performance
evaluation with the employee before filing it in the employee's personnel file, does not change the
public records status of the evaluation; the evaluation is a public record and may not be removed
from public view or destroyed). And see AGO 15-10 (agency may not "seal" job applications or
request that they be submitted as "sealed" records to foreclose public access).
f. Criminal history information
Except where specific exemptions apply, criminal history information is a public record.
AGO 77-125; Inf. Op. to Lymn, June 1, 1990.
In some cases, criminal or juvenile records information obtained by specific agencies as
part of a background check required for certain positions has been made confidential and exempt
from s. 119.07(1), F.S., or use of the information is restricted. See, e.g., s. 110.1127(2)(d) and
(e), F.S. (agency positions designated or specified as provided in s. 110. 1127, ES.); s. 1002.36(7)
(d) and (e), F.S. (School for the Deaf and the Blind); and s. 39.821(1) F.S. (guardian ad litem).
Federal confidentiality provisions also apply to criminal history information received from
the U.S. government. For example, criminal history information shared with a public school
district by the Federal Bureau of Investigation retains its character as a federal record to which
only limited access is provided by federal law and is not subject to public inspection under
Florida's Public Records Act. AGO 99-01. However, information developed by the school
district from further inquiry into references in the federal criminal history record information is a
public record which should be included in a school district employee's personnel file. Id.
Sections 943.0585 and 943.059, F.S., prohibit a records custodian who has received
information relating to the existence of an expunged or sealed criminal history record from
disclosing the existence of such record. AGO 94-49.
g. Deferred compensation
All records identifying individual participants in any deferred compensation plan under the
Government Employees' Deferred Compensation Plan Act and their personal account activities
shall be confidential and exempt. Section 112.215(7), F.S.
h. Direct deposit
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Direct deposit records made prior to October 1, 1986, are exempt from s. 119.07(1),
F.S. With respect to direct deposit records made on or after October 1, 1986, the names of the
authorized financial institutions and the account numbers of the beneficiaries are confidential
and exempt. Section 17.076(5), F.S.
i. Drug test results
Drug test results and other information received or produced by a state agency employer as
a result of a drug -testing program in accordance with s. 112.045 5, F.S., the Drug -Free Workplace
Act, are confidential and exempt, and may not be disclosed except as authorized in the statute.
Section 112.0455(l 1), F.S. See also s. 112.0455(8)(1) and (t), F.S.
While the provisions of s. 112.0455, F.S., are applicable to state agencies and not to
municipalities, ss. 440.101-440.102, F.S., may be used by a municipality or other entity that
is an "employer" for purposes of these statutes, to establish a drug-free workplace program. See
AGO 98-38. Section 440.102(8), F.S., provides for confidentiality of drug test results or other
information received as a result of a drug -testing program implemented pursuant to Ch. 440,
F.S. AGO 13-19. Cf. AGO 94-51 (city not authorized to delete or remove consent forms or
records of disciplinary action relating to city employees' drug testing from personnel records
when drug testing was not conducted pursuant to s. 440.102, ES.); and Inf. Op. to McCormack,
May 13, 1997 (s. 440.102[8], F.S., applies to public employees and not to drug test results of
public assistance applicants). And see s. 443.1715(3), F.S., relating to confidentiality of drug
test information and limited disclosure in proceedings conducted for purposes of determining
compensability under the reemployment assistance law.
In AGO 96-58, the Attorney General's Office advised that the medical director for a city
fire and rescue department may submit drug test results to the state health department pursuant
to s. 401.265(2), F.S., requiring a medical director to report to the department any emergency
medical technician or paramedic who may have acted in a manner constituting grounds for
discipline under the licensing law. The tests were conducted during routine pre-employment and
annual fitness for duty examinations and not pursuant to ss. 440.101-440.102, F.S.
j. Employee assistance program
An employee's personal identifying information contained in records held by the employing
agency relating to that employee's participation in an employee assistance program is confidential
and exempt from disclosure. See ss. 110.1091 (state employees), 125.585 (county employees),
and 166.0444 (municipal employees), F.S.
k. Employment search or consultant records
"[D]ocuments provided to a consultant in relation to his acting on behalf of a public
agency are public documents." Wallace v. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997).
Thus, if an agency uses a recruitment company to conduct an employment search for the agency,
records made or received by the private company in connection with the search are public
records. AGO 92-80. See also Shevin v. Byron, Harless, Schaffer, Reid and Associates, 379 So.
2d 633 (Fla. 1980) (firm of consultants hired to conduct an employment search for position of
managing director of a public agency was "acting on behalf of" a public agency and thus letters,
memoranda, resumes, and travel vouchers made or received by consultants as part of search were
public records).
1. Evaluations of employee performance
Evaluations of public employee performance are generally subject to disclosure. As the
Florida Supreme Court pointed out in News -Press Publishing Company v. Wisher, 345 So. 2d 646,
648 (Fla. 1977):
No policy of the state protects a public employee from the
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embarrassment which results from his or her public employer's
discussion or action on the employee's failure to perform his or
her duties properly.
However, there are statutory restrictions on access to evaluations of employee performance
for public school system employees. Section 1012.31(3)(a), F.S. Similarly, there are exemptions
for evaluations contained in limited -access records prescribed by a hospital or other facility
licensed under Ch. 395, F.S., for employees of the facility, s. 395.3025(9), F.S.; prescribed by the
State Board of Education for Florida College System institution employees, s. 1012.81, F.S.; or
prescribed by a university board of trustees for its employees, s. 1012.91, F.S.
A discussion of each of these exemptions follows:
(1) Hospital employees
Section 395.3025(9), F.S., authorizes hospitals to prescribe the content of limited -access
employee records which are not available for disclosure for 5 years after such designation. Such
records are limited to evaluations of employee performance, including records forming the basis
for evaluation and subsequent actions. See Times Publishing Company v. Tampa General Hospital,
No. 93-03362 (Fla. 13th Cir. Ct. May 27, 1993) (s. 395-3025[9] exemption does not apply
to list of terminated hospital employees; hospital ordered to allow newspaper to inspect list
and personnel files of those persons named in list after "limited -access" documents have been
removed).
(2) Public school employees
Employee evaluations of public school system employees prepared pursuant to cited
statutes are confidential until the end of the school year immediately following the school year
during which the evaluation was made; however, no evaluations made prior to July 1, 1983,
shall be made public. Section 1012.31(3)(a)2., F.S. However, the exemption applies only to the
"employee evaluation." See Morris Publishing Group, LLC v. Department of Education, 133 So.
3d 957, 960 (Fla. 1st DCA 2013), review denied, 157 So. 3d 1046 (Fla. 2014) ("While section
1012.31[3] [a]2 provides that the evaluation of a public school teacher is not subject to disclosure
under the public records law, it does not follow that any information or data used to prepare the
evaluation is likewise exempt from disclosure").
Moreover, information obtained from evaluation forms circulated by the local teacher's
union to its members that is provided unsolicited to the superintendent is not exempt under this
statute. AGO 94-94. In addition, written comments and performance memoranda prepared by
individual school board members regarding an appointed superintendent are not exempt from
disclosure. AGO 97-23. Cf. AGO 11-19, concluding that a superintendent's failure to comply
with a statute requiring that a performance evaluation be discussed with an employee before it is
filed in the employee's personnel file, does not change the public records status of the evaluation;
the evaluation is a public record and may not be removed from public view or destroyed.
(3) State university and Florida College System institution employees
Limited -access records maintained by a state university on its employees are confidential
and exempt from s. 119-07 (1), F.S., and may be released only upon authorization in writing from
the employee or upon court order. Without such authorization, access to the records is limited
to university personnel as specified in the statute. Section 1012.91, F.S.
"Limited -access records" are limited to: information reflecting academic evaluations
of employee performance that are open to inspection only by the employee and university
officials responsible for supervision of the employee; records relating to an investigation of
employee misconduct which records are confidential until the conclusion of the investigation
or the investigation ceases to be active as defined in the exemption; and records maintained
for the purpose of any disciplinary proceeding against the employee or records maintained for
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any grievance proceeding brought by an employee for enforcement of a collective bargaining
agreement or contract until a final decision is made. Section 1012.91(1), F.S.
For sexual harassment investigations of university personnel, portions of records that
identify or reasonably could lead to the identification of the complainant or a witness also
constitute limited -access records. Section 1012.91(2), F.S. Records which comprise the
common core items contained in the State University System Student Assessment of Instruction
instrument may not be prescribed as limited -access records. Section 1012.91(4), F.S.
Regarding Florida College System institution employees, s. 1012.81, F.S., states that rules
of the State Board of Education shall prescribe the content and custody of limited -access records
maintained by a Florida College System institution on its employees. Such records are limited
to information reflecting academic evaluations of employee performance and certain disciplinary
and grievance records as described in the exemption. Limited access records are confidential and
exempt and may not be released except as authorized in the exemption. Cf. Rhea v. District Board
of Trustees of Santa Fe College, 109 So. 3d 851 (Fla. 1st DCA 2013) (student's unredacted e-mail
complaining about an instructor's classroom behavior qualifies as an exempt "education record").
M. Examination questions and answer sheets
Examination questions and answer sheets of examinations administered by governmental
entities for the purpose of licensure, certification, or employment are exempt from mandatory
disclosure requirements. Section 119.071(1)(a), F.S. See -Dickerson v. Hayes, 543 So. 2d 836, 837
(Fla. 1st DCA 1989) (applying exemption to portions of rating sheets used by promotion board
which contained summaries of applicants' responses to oral examination questions where the oral
questioning "was a formalized procedure with identical questions asked of each applicant [which]
`tested' the applicants' response both as to style and content"). And see Rush v. High Springs, 82
So. 3d 1108 (Fla. 1st DCA 2012) (exemption applies to questions and answers contained in pre-
employment polygraph examinations).
The exemption from disclosure in s. 119.071(1)(a), F.S., applies to examination
questions and answers, and does not include the "impressions and grading of the responses"
by the examiners. See Dickerson v. Hayes, supra at 837. Compare s. 455.229(1), F.S., providing
confidentiality for "examination questions, answers, papers, grades, and grading keys" used in
licensing examinations administered by the Department of Business and Professional Regulation.
A person who has taken an examination has the right to review his or her own completed
examination. Section 119.071(1)(a), F.S. See AGO 76-210, stating that an examinee has the
right to inspect the results of a completed civil service promotional examination, including
question and answer sheets, after the examination has been completed. However, the examinee
possesses only the right to review his or her own completed examination and may not make or
obtain copies of that examination. AGO 81-12.
n. Home addresses, telephone numbers and other personal information
In the absence of statutory exemption, home addresses, telephone numbers, photographs,
and dates of birth of public officers and employees are not exempt from disclosure. See AGO
96-88 (home addresses and telephone numbers and business addresses and telephone numbers of
members of state and district human rights advocacy committees are public records); Browning v.
Walton, 351 So. 2d 380 (Fla. 4th DCA 1977) (city cannot refuse to allow inspection of records
containing the names and addresses of city employees who have filled out forms requesting that
the city maintain the confidentiality of their personnel files). And see United Teachers of Dade
v. School Board of Dade County, No. 92-17803 (0 1) (Fla. 11th Cir. Ct. Nov. 30, 1992) (home
telephone numbers and addresses of school district employees not protected by constitutional
right to privacy; only the Legislature can exempt such information). Cf. AGO 85-03 (list
containing names and addresses of subscribers to state magazine is a public record).
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(1) Listing of public officers and employees covered by exemptions
The home addresses, telephone numbers, and other specified personal information
pertaining to certain public officers and employees and their spouses and children have been
exempted in ss. 119.071(4) (d) and 119.071(5) (i) and (k), F.S.
For purposes of s. 119.071(4) (d), F.S., the term "telephone numbers" includes "home
telephone numbers, personal cellular telephone numbers, personal pager telephone numbers,
and telephone numbers associated with personal communications devices." Section 119.071(4)
(d)1., F.S.
(a) Abuse investigators for Department of Children and Families and Department of
Health
a. Scope of exemption: Active or former personnel of the Department of Children and
Families whose duties include the investigation of abuse, neglect, exploitation, fraud,
theft or other criminal activities; and active or former personnel of the Department of
Health whose duties are to support the investigation of child abuse or neglect
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers,
photographs, dates of birth, and places of employment of the spouses and children of
such personnel; and the names and locations of schools and day care facilities attended
by the children of such personnel
d. Statutory reference: Section 119.071(4)(d)2.a., F.S.
(b) Child advocacy personnel and child protection team members
a. Scope of exemption: Current or former directors, managers, supervisors, and clinical
employees of a child advocacy center that meets the standards of s. 39.3035(1) and
fulfills the screening requirements of s. 39.3035 (2) and the members of a child advocacy
center as described in s. 39.303 whose duties include supporting the investigation of
child abuse or sexual abuse, child abandonment, child neglect, and child exploitation
or to provide services as part of a multidisciplinary case review team.
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers,
photographs, dates of birth and places of employment of the spouses and children of
such personnel; and the names and locations of schools and day care facilities attended
by the children of such personnel
d. Statutory reference: Section 119.071(4)(d)2.t., F.S.
(c) Code enforcement officers
a. Scope of exemption: Current or former code enforcement officers
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071 (4) (d)2.i., F.S.
(d) County addiction facility personnel
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a. Scope of exemption: Current or former directors, managers, supervisors, nurses, and
clinical employees of an addiction treatment facility. The term "addiction treatment
facility' means a county government, or agency thereof, that is licensed pursuant to s.
397.401, and provides substance abuse prevention, intervention, or clinical treatment,
including any licensed service component described in s. 397.311(26)
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Home addresses, telephone numbers, dates of birth,
and places of employment of the spouses and children of such personnel, and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071(4)(d)2.s., F.S.
(e) County tax collectors
a. Scope of exemption: County tax collectors
b. Information exempted: Home addresses, telephone numbers, and dates of birth
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section I19.071(4)(d)2.n., F.S.
(f) Domestic violence and other specified crime victims
Please refer to the discussion on page 74.
(g) Emergency medical technicians or paramedics
a. Scope of exemption: Current or former emergency medical technicians or paramedics
certified under Ch. 401, F.S.
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071(4)(d)2.q., F.S.
(h) Firefighters
a. Scope of exemption: Current or former firefighters certified in compliance with s.
633.408, F.S.
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates
of birth, photographs, and places of employment of spouses and children of such
firefighters; and the names and locations of the schools and day care facilities attended
by the children of the firefighters
d. Statutory reference: Section 119.071(4)(d)2.d., F.S.
(i) Guardians ad litem
a. Scope of exemption: Current or former guardians ad litem, as defined in s. 39.820,
F.S.
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b. Information exempted: Home addresses, telephone numbers, dates of birth, places of
employment, and photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates
of birth, and places of employment of spouses and children of such persons; and the
names and locations of schools and day care facilities attended by the children of such
persons
d. Statutory reference: Section 119.071(4)(d)2.j., F.S.
(j) Hospital employees
Please refer to the discussion on page 91.
(k) Human resource managers (local governments)
a. Scope of exemption: Current or former human resource, labor relations, or employee
relations directors, assistant directors, managers, or assistant managers of any local
government agency or water management district whose duties include hiring and firing
employees, labor contract negotiation, administration, or other personnel -related duties
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071(4)(d)2.h., F.S.
(1) Impaired practitioner consultants
a. Scope of exemption: Current or former impaired practitioner consultants retained
by an agency or current or former employees of an impaired practitioner consultant
whose duties result in a determination of a person's skill and safety to practice a licensed
profession
b. Information exempted: Home addresses, telephone numbers dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such consultants or
their employees; and the names and locations of schools and day care facilities attended
by the children of such consultants or employees
d. Statutory reference: Section 119.071(4)(d)2.p., F.S.
(m) Inspectors general and internal auditors performing specified duties
a. Scope of exemption: Current or former personnel employed in an agency's office
of inspector general or internal audit department whose duties include auditing or
investigating waste, fraud, abuse, theft, exploitation, or other activities that could lead
to criminal prosecution or administrative discipline
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071(4)(d)2.r., F.S.
(n) Investigators and inspectors of the Department of Business and Professional Regulation
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a. Scope of exemption: Current or former investigators or inspectors of the Department
of Business and Professional Regulation
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, and places
of employment of the spouses and children of such personnel; and the names and
locations of schools and day care facilities attended by the children of such personnel
d. Statutory reference: Section 119.071(4)(d)2.m., F.S.
(o) Investigators of the Department of Financial Services and Office of Financial
Regulation with specified duties
a. Scope of exemption: Current or former nonsworn investigative personnel of the
Department of Financial Services and Office of Financial Regulation whose duties
include the investigation of fraud, theft, workers' compensation coverage requirements
and compliance, other related criminal activities, or state regulatory requirement
violations
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel.
d. Statutory reference: Section 119.071(4)(d)2.b., and c., F.S.
(p) Judges, magistrates, and hearing officers (state)
I. Administrative law judges, magistrates, and child support hearing officers
a. Scope of exemption: General magistrates, special magistrates, judges of compensation
claims, administrative law judges of the Division of Administrative Hearings, and child
support enforcement hearing officers
b. Information exempted: Names, home addresses, dates of birth, and telephone numbers
c. Family information exempted: Home addresses, telephone numbers, dates of birth,
and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071(4)(d)2.g., F.S.
II. Court justices and judges
a. Scope of exemption: Current or former Justices of the Supreme Court, district court
of appeal judges, circuit court judges, and county court judges
b. Information exempted: Home addresses, dates of birth, and telephone numbers
c. Family information exempted: Names, home addresses, telephone numbers, dates
of birth, and places of employment of the spouses and children of current or former
justices and judges; and the names and locations of schools and day care facilities
attended by the children of such justices and judges
d. Statutory reference: Section I19.071(4)(d)2.e., F.S.
(q) Juvenile Justice juvenile probation and detention officers and counselors
a. Scope of exemption: Current or former juvenile probation officers and supervisors,
detention superintendents and assistant superintendents, juvenile justice detention
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officers and supervisors, juvenile justice residential officers and supervisors, juvenile
justice counselors, supervisors, and administrators, human services counselor
administrators, rehabilitation therapists and social services counselors of the
Department of Juvenile Justice
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071(4)(d)2.k., F.S.
(r) Law enforcement and correctional personnel
a. Scope of exemption: Active or former sworn or civilian law enforcement personnel,
including correctional and correctional probation officers
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers,
photographs, dates of birth, and places of employment of the spouses and children of
such personnel; and the names and locations of schools and day care facilities attended
by the children of such personnel
d. Statutory reference: Section I19.071(4)(d)2.a., F.S.
(s) Personnel of the Department of Health with specified duties
a. Scope of exemption: Current or former personnel of the Department of Health whose
duties include, or result in, the determination or adjudication of eligibility for social
security disability benefits, the investigation or prosecution of complaints filed against
health care practitioners, or the inspection of health care practitioners or health care
facilities licensed by the Department of Health
b. Information exempted: Homes addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071(4)(d)2.o., F.S. See also s. 119.071(4)(d)2.a., F.S.
(child abuse or neglect investigators).
(t) Prosecutors and judges (federal)
a. Scope of exemption: Current or former United States attorneys, assistant United States
attorneys, judges of the United States Courts of Appeal, United States district judges
or United States magistrates if the individual submits to the agency having custody of
such information a written request to exempt such information from public disclosure
as well as a written statement that he or she has made reasonable efforts to protect such
information from being accessible through other means available to the public
b. Information exempted: Home address, telephone number and photograph
c. Family information exempted: Home address, telephone number, photograph, and
place of employment of the spouse or child; and the name and location of the school
or day care facility attended by the child of such attorney, judge or magistrate
d. Statutory reference: Section 119.071(5)(i), F.S.
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(u) Prosecutors (state)
a. Scope of exemption: Current or former state attorneys, assistant state attorneys,
statewide prosecutors, or assistant statewide prosecutors
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers,
photographs, dates of birth, and places of employment of the spouses and children of
such personnel; and the names and locations of schools and day care facilities attended
by the children of such personnel
d. Statutory reference: Section I19.071(4)(d)2.f., F.S.
(v) Public defenders and other specified counsel
a. Scope of exemption: Current or former public defenders, assistant public defenders,
criminal conflict and civil regional counsel, and assistant criminal conflict and civil
regional counsel
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such personnel; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 119.071(4)(d)2.1., F.S.
(w) Public guardians
a. Scope of exemption: Current or former public guardians and employees with fiduciary
responsibility, as that term is defined in the exemption, who submit to the custodial
agency a written request for maintenance of the exemption. The term "employee with
fiduciary responsibility" means an employee of a public guardian who has the ability to
direct any transactions of a ward's funds, assets, or property; who under the supervision
of the guardian, manages the care of the ward; or who makes any health care decision,
as defined in s. 765.101, on behalf of the ward
b. Information exempted: Home addresses, telephone numbers, dates of birth, places of
employment, and photographs
c. Family information exempted: Names, home addresses, telephone numbers, dates of
birth, and places of employment of the spouses and children of such persons; and the
names and locations of schools and day care facilities attended by the children of such
personnel
d. Statutory reference: Section 744.21031, F.S.
(x) Revenue collection and enforcement or child support enforcement
a. Scope of exemption: Active or former personnel of the Department of Revenue or
local governments whose duties include revenue collection and enforcement or child
support enforcement
b. Information exempted: Home addresses, telephone numbers, dates of birth, and
photographs
c. Family information exempted: Names, home addresses, telephone numbers,
photographs, dates of birth, and places of employment of the spouses and children of
such personnel; and the names and locations of schools and day care facilities attended
by the children of such personnel
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d. Statutory reference: Section 119.071(4)(d)2.a., F.S.
Note: In AGO 96-57, the Attorney General's Office concluded that this exemption should
be construed as including personnel whose duties include both revenue collection
and enforcement, as opposed to those personnel whose duties include only revenue
collection or only revenue enforcement.
(y) U.S. military servicemembers
a. Scope of exemption: Current or former members of the Armed Forces of the United
States, a reserve component of the Armed Forces of the United States, or the National
Guard who served after September 11, 2001, if the servicemember has submitted
to the custodial agency a written request to exempt the information; and a written
statement that he or she has made reasonable efforts to protect the information from
being accessible through other means available to the public
b. Information exempted: Home address, telephone number, and date of birth of a
servicemember, and the telephone number associated with a servicemember's personal
communication device
c. Family information exempted: Home address, telephone number, date of birth, and
place of employment of a spouse or dependent of a servicemember, and the telephone
number associated with such spouse's or dependent's personal communication device;
and the names and location of schools attended by the spouse of a servicemember, or
a school or day care facility attended by a dependent of a servicemember
d. Statutory reference: Section 119.071(5) (k), F.S.
(2) Authority to release protected information
The purpose of the s. 119.071(4)(d), F.S., exemption is to protect the safety of the
enumerated individuals and their families by removing certain information relating to such
individuals from the mandatory disclosure requirements of Ch. 119, F.S. AGO 10-37. And see
AGOs 90-50 and 96-57. The statute makes these records exempt from mandatory disclosure
requirements, not confidential; thus, an agency is not prohibited from disclosing the information
in all circumstances. AGO 10-37. For example, the property appraiser may disclose the address
of an alleged violator of the local code when a code inspector or code enforcement board is
attempting to provide notice regarding the violation as required by s. 162.06, F.S. AGO 17-05.
However, in determining whether to disclose the information, the agency should consider
the underlying purpose of the statute, i.e., safety of the listed individuals and their families. AGO
90-50. See also AGO 08-24. Cf. AGO 90-50, noting that the exemption does not prohibit an
agency from "access to, and maintaining information on, its employees, including their names
and addresses."
In other words, a police department, in deciding whether to publicly release photographs
of law enforcement personnel, should determine whether there is a statutory or substantial
policy need for disclosure. AGO 07-21. In the absence of a statutory or other legal duty to be
accomplished by disclosure, the agency should consider whether the release of such information
is consistent with the purpose of the exemption afforded by s. 119.071(4)(d)2. Id. For example,
a posting of the names, I.D. numbers and photographs of police officers in the hallway of the
police department for public display would appear to be counter to the purpose of the exemption.
AGO 90-50. By contrast, information from the city personnel files which reveals the home
addresses of former law enforcement personnel may be disclosed to the State Attorney's office for
the purpose of serving criminal witness subpoenas by mail pursuant to s. 48.031, F.S. Inf. Op.
to Reese, April 25, 1989.
Thus, in AGO 08-24, the Attorney General's Office noted that the home addresses
and other protected personal information of the spouses of law enforcement officers who are
employed by the school board are exempt from disclosure under s. 119.071(4)(d)2., F.S., and
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therefore, the school board was not required to report such information to the certified bargaining
representative. And see Henderson v. Perez, 835 So. 2d 390, 392 (Fla. 2d DCA 2003) (trial court
order compelling sheriff to produce exempt home addresses and photographs of 10 active law
enforcement officers in a civil lawsuit filed by Perez predicated on his arrest, quashed because
"Perez has not shown that the photographs and home addresses of the law enforcement officers
are essential to the prosecution of his suit").
The s. 119.071(4) (d)2. exemption applies to public agencies, not private entities unless
the private entity is acting on behalf of a public agency. Inf. Op. to Gomez, Nov. 3, 2008. Cf.
s. 843.17, F.S., making it a misdemeanor to maliciously publish or disseminate, with intent to
obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any
law enforcement officer in the legal performance of his or her duties, the residence address or
telephone number of any law enforcement officer while designating the officer as such, without
authorization of the agency which employs the officer. But see Brayshaw v. City of Tallahassee,
Fla., 709 E Supp. 2d 1244 (N.D. Fla. 2010), holding that s. 843.17, F.S., was unconstitutional
on its face.
(3) Records held by agencies that are not the employer of the designated officers or
employees
An agency that is the custodian of personal information specified in s. 119.071(4)(d)2.,
F.S., but is not the employer of the officer or employee, may maintain the exempt status of that
information only if the officer or employee or the employing agency of the designated employee
submits a written request for maintenance of the exemption to the custodial agency. Section
119.071(4)(4)3., F.S. See AGOs 97-67 (Official Records maintained by clerk of court), 04-18
(applying exemption when requested to petitions and campaign papers filed with supervisor of
elections), and 04-20 (property appraiser). And see AGO 05-38 (request made to the property
appraiser for an exemption from disclosure of personal information would follow the property
appraiser's records when they are relayed to the clerk of courts carrying out duties for the Value
Adjustment Board).
The provisions of s. 119.071(4) (d), F.S., should not be read "to impose a burden on
employers to know the past law enforcement employment status of employees who may work
for them in other capacities." AGO 10-37. Thus, a former law enforcement officer from one
municipality who is currently employed by another municipality in a non -law enforcement
capacity must make a written request pursuant to s. 119.071(4) (d)3., F.S., that his or her personal
information be maintained as exempt by the current employer. Id.
A request made pursuant to s. 119.071(4) (d)3., F.S., for maintenance of exempt information
in court records or the official records must specify the document type, identification number,
and page number of the court record or official record that contains the exempt information.
Section 119.0714(2)(f) and (3)(f), F.S.
(4) Application of exemption to:
(a) Telephone numbers of cellular telephones issued by agencies
Cellular telephone numbers of telephones provided by the agency to law enforcement
officers and used in performing law enforcement duties are not exempt from disclosure. Inf. Op.
to Laquidara, July 17, 2003. In 2012, the Legislature amended s. 119.071(4)(d), F.S., to define
the term "telephone numbers" as used in the exemption to include "home telephone numbers,
personal cellular telephone numbers, personal pager telephone numbers, and telephone numbers
associated with personal communications devices." See s. 119.071(4) (d)1., F.S., as amended by
Ch. 2012-149, Laws of Florida. As originally introduced, the 2012 legislation would have also
included "telephone numbers associated with agency cellular telephones" within the definition of
"telephone numbers." See HB 629, filed November 10, 2011. However, this proposed language
was removed from the original bill during the legislative process.
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(b) List of names of designated officers and employees
While s. 119.071(4)(d)2., F.S., exempts home addresses and other personal information of
the designated public officers and employees, it does not exempt the names of these officers and
employees from public disclosure (although typically the names of the spouses and children are
exempt). See, e.g., s. 119.071(4)(d)2.g., F.S. (names of spouses and children of code enforcement
officers are exempt).
Accordingly, if the property appraiser maintains a list of the names of officers and employees
who have requested the exemption of their home addresses as authorized by s. 119.071(4) (d)3.,
F.S., this list is not exempt. AGO 08-29. However, as noted elsewhere in this manual, the
property appraiser is not required to create or reformat records in order to comply with a request
under Ch. 119; the duty of the public records custodian is to provide access to existing records.
See the discussion on pages 158-159.
(c) Prior home addresses
Section 119.071(4)(d)2., F.S., applies only to the current home address or addresses
(including a current vacation home address) of the designated individuals. AGO 10-37.
(d) Maps showing physical location of homes
A property appraiser is precluded from making technology available to the public that
would enable a user to view a map on the Internet showing the physical location of a law
enforcement officer's home, even though the map does not contain the actual home address of
the officer, if the property appraiser has received a written exemption request from the officer.
AGO 04-20.
(e) Home addresses of persons who are not the owner of the property
The exemption applies to the home addresses, telephone numbers, and other personal
information relating to the specified individuals "without regard to whether or not they own the
real property at which they reside." AGO 14-07.
(f) Booking photographs
Section 119.071(4)(d), F.S., exempts the photograph of a current or former law
enforcement officer, whether held by the employing agency or by a nonemploying agency which
has received a written request to maintain the exempt status of the record. Inf. Op. to Amunds,
June 8, 2012. Thus, the agency should determine whether there is a statutory or substantial
policy need for disclosure before releasing the booking photograph. Id. In the absence of a
statutory or other legal duty to be accomplished by disclosure, an agency should consider whether
the release of such information is consistent with the purpose of the exemption, i.e., the safety of
law enforcement officers and their families. Id. See also AGOs 90-50 and 07-21. Cf. AGO 94-90
(statute did not preclude release of booking photograph of deputy who was not an undercover
officer whose identity would otherwise be protected by s. 119.071 [2] [c], ES.).
o. Medical information and health insurance participant information
(1) Medical information and medical claims records
Medical information pertaining to a prospective, current, or former officer or employee
of an agency which, if disclosed, would identify that officer or employee is exempt from s.
119.07(1), F.S. Section 119.071(4)(b)1., F.S. Such information may be disclosed if the person
or the person's legal representative provides written permission or pursuant to court order. Id.
See AGO 98-17 (exemption "appears to extend to governmental employees the protection for
personal medical records that is generally enjoyed by private sector employees"). Cf. Delaurentos
v. Peguero, 47 So. 3d 879, 881 (Fla. 3d DCA 20 10) (s. 119.071 [4] [b] 1., "simply provides an
exemption in the event that a citizen makes a public records request for medical records;" but
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does not "create a privilege which would insulate such records from discovery in litigation").
Public school system employee medical records, including psychiatric and psychological
records, are confidential and exempt from s. 119.07(1), F.S. Section 1012.31(3)(a)5., F.S.
Every employer who provides or administers health insurance benefits or life insurance
benefits to its employees shall maintain the confidentiality of information relating to the medical
condition or status of any person covered by such insurance benefits. Such information is exempt
from s. 119.07(1), F.S. Section 760.50(5), F.S.
Patient medical records and medical claims records of current or former employees and eligible
dependents enrolled in group insurance plans of specified governmental entities are confidential and
exempt from s. 119.07(1), F.S.; such records shall not be furnished to any person other than the
employee or the employee's legal representative, except as authorized in the subsection. Sections
110.123(9) (state employees), 112.08(7) (county or municipal employees), and 112.08(8) (water
management district employees), F.S. See AGO 91-88, citing to News -Press Company, Inc. v. Kaune,
511 So. 2d 1023 (Fla. 2d DCA 1987), stating that the exemption applies broadly and is not
limited solely to medical records filed in conjunction with an employee's participation in a group
insurance plan; rather, the exemption applies to all medical records relating to employees enrolled
in a group insurance plan. And see AGOs 01-33 (confidentiality of patient records at medical clinic
owned and operated by city for the use and benefit of its employees); 94-78 (monthly printout of
medical claims paid under city group health insurance plan that identifies the public employees who
obtained medical services and the amounts of the claims, together with some account information,
is exempt from public inspection), and 94-51 (agency "should be vigilant in its protection of the
confidentiality provided by statute for medical records of [its] employees").
(2) Health insurance participant information
While "information relating to an insurance program participant's medical condition is
protected from disclosure ... there is no clear statement that such protection extends to the
name, address, age, or other non-medical information of such participants." Inf. Op. to Dockery,
November 10, 2008.
Subsequent to the issuance of this opinion, the Legislature enacted an exemption for
personal identifying information of a dependent child of a current or former officer or employee
of an agency, whose dependent child (as defined in s. 409.2554, F.S.) is insured by the agency's
group insurance plan. Section 119.071(4)(b)2., F.S. However, while personal identifying
information relating to the dependent child's participation in an agency's group insurance plan is
now confidential, personal identifying information relating to the current or former officer's or
employee's participation in such plan is subject to disclosure. Cf. s. 110. 12301(3), F.S., providing
confidentiality for records collected for purposes of dependent eligibility verification services
conducted for the state group insurance program and held by the Department of Management
Services.
p. Payroll deduction records
There is no general exemption from disclosure that applies to agency payroll deduction
records. However, public school system employee payroll deduction records are confidential.
Section 1012.31(3)(x)4., F.S. SeeAGO 09-11 (tax information [such as Federal Withholding Tax
Deduction, FICA Tax Deduction and the Medicare Tax Deduction] of a public school system
employee would appear to constitute payroll deduction records and would be confidential and
exempt from disclosure pursuant to s. 1012.31 [3] [a]4., F.S.).
+ Retiree lists
The names and addresses of retirees are confidential and exempt from s. 119.07(1), F.S.,
to the extent that no state or local governmental agency may provide the names or addresses of
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such persons in aggregate, compiled or list form except to public agencies engaged in official
business, to collective bargaining agents or to retiree organizations for official business use.
Section 121.031(5), F.S. "Any person may view or copy any individual's retirement records
at the Department of Management Services, one record at a time, or may obtain information
by a separate written request for a named individual for which information is desired." Id.
Cf. s. 121.4501(19), F.S. (personal identifying information of members in the investment plan
contained in Florida Retirement System records held by the State Board of Administration or the
Department of Management Services is exempt).
Section 121.021(60), F.S., defines the term "retiree" to mean "a former member of
the Florida Retirement System or an existing system who has terminated employment and is
receiving benefit payments from the system in which he or she was a member." Accordingly,
the s. 121.031(5) exemption does not apply to employees who are participants in the Deferred
Retirement Option Program (DROP); DROP participants "are not retirees since they have
not terminated their employment." Palm Beach Newspapers, Inc. v. School Board of Palm Beach
County, No. 502007CA020000XNXXMB (Fla. 15th Cir. Ct. November 28, 2007).
r. Salary records
Salary and other information relating to compensation is subject to disclosure. Lewis v.
Schreiber, No. 92-8005(03) (Fla. 17th Cir. Ct. June 12, 1992), per curiam affirmed, 611 So. 2d
531 (Fla. 4th DCA 1992). AccordAGOs 80-92 and 73-30.
S. Travel records
Travel vouchers are open to public inspection, after redaction of exempt material such as
credit card account numbers (s. 119.071 [5] [b], F.S.) or social security numbers (ss. 119.071 [4]
a] and [5] [a]ES). See Shevin v. Byron, Harless, Schaffer, Reid and Associates, 379 So. 2d 633 (Fla.
1980). See also AGO 72-356 (travel itineraries and plane reservations for use of state aircraft are
public records).
t. Undercover personnel of criminal justice agencies
Please refer to the discussion of this topic on page 114.
19. Security system information and blueprints
a. Blueprints
Section 119.071(3) (b)1., F.S., exempts building plans, blueprints, schematic drawings,
and diagrams of government buildings. Exempt information may be disclosed to another
governmental entity, to a licensed professional performing work on the building, or upon a
showing of good cause to a court. Section 119.071(3)(b)3., F.S.
Exempt documents may also be released in order to comply with competitive bidding
requirements. AGO 02-74. However, the entities or persons receiving such information must
maintain its exempt status. Id. And see s. 119.071(3) (c)1., F.S. (exemption for building plans,
blueprints, schematic drawings and diagrams which depict the internal layout or structural
elements of various attractions, retail, resort, office, health care facilities, and industrial complexes
and developments when the records are held by an agency). The exemption afforded by this
statute, however, does not apply to comprehensive plans or site plans, or amendments thereto,
which are submitted for approval or which have been approved under local land development
regulations, local zoning regulations, or development of regional impact review. Section
119.071(3)(c)4., F.S.
b. Security system records
Information relating to the security or firesafety systems for property owned by or leased to
the state or any of its political subdivisions is confidential and exempt from disclosure. Section
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281.301, F.S. Exempt information includes all records, information, photographs, audio and
visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions
thereof relating directly to or revealing such security systems or information. Id.
The exemption extends to information relating to or revealing the security or firesafety
systems for property owned or leased by the state or its political subdivisions, and also to such
information concerning privately owned or leased property which is in the possession of an
agency. AGOs 01-75 and 93-86, and Inf. Op. to Sherman, July 2, 2018. See also ss. 331.22, F.S.
(airport security plans); s. 311.13, F.S. (seaport security plans); and 1004.0962(2), F.S. (campus
emergency response of postsecondary education institution).
Section 119.071(3)(a), F.S., provides a similar exemption from disclosure for a security
or firesafety system plan of a private or public entity that is held by an agency. The information
may be disclosed to the property owner or leaseholder; in furtherance of the official duties and
responsibilities of the agency holding the information; to another local, state or federal agency in
furtherance of that agency's official duties and responsibilities; or upon a showing of good cause
before a court.
The term "security or firesafety system plan" includes: records relating directly to the physical
security or firesafety of the facility or revealing security or firesafety systems; threat assessments
conducted by an agency or private entity; threat response plans; emergency evacuation plans;
sheltering arrangements; or security or firesafety manuals. Id. Cf. Marino v. University of Florida,
107 So. 3d 1231 (Fla. 1st DCA 2013), in which the court rejected a university's contention that it
could withhold the location of animal research facilities based on a determination that the nature
of the public activities occurring at the facility subjects them to physical threats.
(1) Security system (alarm) permits and applications
Sections 281.301 and 119.071(3)(a), F.S., prohibit public disclosure of the name
and address of applicants for security system permits, of persons cited for violations of alarm
ordinances, and of individuals who are the subject of law enforcement dispatch reports for
verified or false alarms "because disclosure would imperil the safety of persons and property."
Critical Intervention Services, Inc. v. City of Clearwater, 908 So. 2d 1195, 1197 (Fla. 2d DCA
2005). Accord AGO 04-28.
(2) Surveillance video recordings
The term "security or firesafety system plan" as used in s. 119.071(3)(a) L, F.S., includes
"audio and visual presentations ... relating directly to the physical security or firesafety of the
facility or revealing security or firesafety systems." Video footage captured by city bus cameras
"directly relates to and reveals information about a security system" and thus was determined
to be confidential and exempt from disclosure by ss. 281.301 and 119.071(3)(a), F.S. Central
Florida Regional Transportation Authority v. Post -Newsweek Stations, Orlando, Inc., 157 So. 3d 401
(Fla. 5th DCA 2015). The videos "reveal the capabilities and as a corollary, the vulnerabilities"
of the security system. Id. at 405. And see AGO 15-06, relying on Central Florida Regional
Transportation Authority, and applying the exemption to surveillance tapes from a security system
for a public transit authority building. Cf. Gonzalez v. State, 240 So. 3d 99 (Fla. 2d DCA 2018)
(in the absence of an in camera inspection of the requested records [CDs] the circuit court could
not conclude that the contents were exempt from disclosure under s. 119.071(3) (a)2., or s.
281.301; nor could it determine whether redaction was possible).
Video footage from surveillance cameras at a high school "relates directly" to the security
system at the school, including both its capabilities and its vulnerabilities, and thus is confidential
and exempt from disclosure unless one of the exceptions to the exemption applies. State Attorney's
Office of the Seventeenth Judicial Circuit v. Cable News Network, Inc., 251 So. 3d 205 (Fla. 4th DCA
2018). As previously discussed on this page, there are several exceptions to this confidentiality
provision, including a court order issued upon a showing of good cause. In State Attorney's
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Office, the appellate court affirmed the trial judge's order mandating release of surveillance video
from a school shooting where 17 students and staff were killed. The court found that the media
had established good cause because the footage revealed the conduct of public servants in the
discharge of their duties and also provided "insight" into the high school's security "net" that
failed to protect the students and staff. Id. at 215.
C. Security issues relating to electronic records
Section 119.01(2) (a), F.S., states that agencies "must provide reasonable public access to
records electronically maintained and must ensure that exempt or confidential records are not
disclosed except as otherwise permitted by law." Andsee Rule 1B -26.003(6)(g)3., EA.C, adopted
by the Division of Library and Information Services of Department of State pursuant to its
records management rulemaking authority in s. 257.14, F.S. The rule states that "[i]n providing
access to electronic records, agencies shall ensure that procedures and controls are in place to
maintain confidentiality for information which is exempt from public disclosure."
Accordingly, an agency is not required to provide direct access to the agency's electronic
records through a hard drive provided by a requestor, but must otherwise allow inspection and
copying of such records in a manner which will accommodate the request, but protect from
disclosure exempt or confidential materials. AGO 13-07. And see Red v. Sansbury, 504 So. 2d
1315, 1317-1318 (Fla. 4th DCA 1987), review denied, 513 So. 2d 1063 (Fla. 1987) (while
county possesses statutory authority to facilitate inspection of public records by electronic
means, this "does not mean that every means adopted by the county to facilitate the work of
county employees ipso facto requires that the public be allowed to participate therein"). Compare
AGO 05-12 (city may not require use of a code to review e-mail correspondence of city police
department and human services department).
Section 282.318(4), F.S., requires state agencies, as defined in the statute, to conduct risk
assessments, conduct internal audits, and develop procedures to address information technology
security issues. This section also contains exemptions for records relating to these functions.
For example, written internal policies and procedures that, if disclosed, could facilitate the
unauthorized modification, disclosure, or destruction of data or information technology resources
are confidential. Section 282.318(4)(e), F.S. Cf. s. 119.0713(5)(a), F.S., (records relating to
security of information technology systems of local government owned or operated utilities); s.
627.352 (Citizens Property Insurance Corporation) and s. 1004.055(1), F.S. (state postsecondary
education institutions).
d. School system security
Section 943.082(1), F.S., requires the Florida Department of Law Enforcement to
acquire a mobile suspicious activity reporting tool that allows students and the community to
relay information anonymously concerning unsafe, potentially harmful, dangerous, violent,
or criminal activities, or the threat of these activities to appropriate public safety agencies and
school officials. The identity of the reporting party received through the reporting tool and
held by the department, law enforcement agencies, or school officials is confidential and exempt.
Section 943.082(6), F.S. Any other information received through the reporting tool and held by
the above agencies is exempt. Id. And see ss. 1004.0962(2), F.S. (campus emergency response
held by a public postsecondary institution or specified agencies is exempt from disclosure);
and 1004.055(1) (certain security incident information records held by state postsecondary
education institution).
Any information that would identify whether an individual has been appointed as a
safe -school officer pursuant to s. 1006.12, F.S., held by a law enforcement agency, school district,
or charter school is exempt. Section 1006.12(4), F.S. See also s. 119.071(3)(a), F.S., providing an
exemption for agency security system plans, discussed on pages 147-148.
20. Social security numbers
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Section 119.071(5)(a)5., F.S., states that social security numbers held by an agency are
confidential and exempt from public disclosure requirements; however, the exemption does not
supersede any federal law prohibiting the release of social security numbers or any other applicable
public records exemptions for such numbers. See, e.g., s. 193.114(5), F.S. (social security number
submitted on an application for a tax exemption is confidential); and s. 119.071(4) (a), F.S. (social
security numbers of current and former employees held by the employing agency are confidential
and exempt from disclosure). And see s. 119.0714, F.S., regarding confidentiality of social security
numbers in court records and in the official records.
Section 119.071(5)(a)6., ES, authorizes disclosure of social security numbers under certain
conditions. Cf. Florida Department of Education v. NYT Management Services, Inc., 895 So. 2d
1151 (Fla. 1st DCA 2005) (federal law does not authorize newspaper to obtain social security
numbers in state teacher certification database).
In addition, s. 119.071(5)(a)7.b., F.S., states that an agency may not deny a commercial
entity engaged in "commercial activity," as defined in the exemption, access to social security
numbers, "provided the social security numbers will be used only in the performance of a
commercial activity and provided the commercial entity makes a written request for the social
security numbers:' "Commercial activity' does not include the display or bulk sale of social security
numbers to the public or the distribution of such numbers to any customer not identifiable by the
commercial entity. Section 119.071(5)(a)7.a.(I), F.S. See Inf. Op. to Carland, January 12, 2012
(teacher union's access to social security numbers maintained by school district limited to those
social security numbers which will be used to verify the accuracy of numbers which the union has
already received in the normal course of business). See also AGO 10-06 (agency authorized to
request additional information that is reasonably necessary to verify the identity of the commercial
entity and the specific purposes for which the social security numbers will be used).
21. Telephone records
Records of telephone calls made from agency telephones are subject to disclosure in
the absence of statutory exemption. See Gillum v. Times Publishing Company, No. 91 -2689 -
CA (Fla. 6th Cir. Ct. July 10, 1991). See also Media General Operation, Inc. v. Feeney, 849 So.
2d 3, 6 (Fla. 1st DCA 2003), rejecting the argument that redaction of telephone numbers for
calls made in the course of official business could be justified because disclosure could result in
"unreasonable consequences" to the persons called. Cf. s. 119.071(5)(d), F.S. (all records supplied
by a telecommunications company, as defined by s. 364.02, F.S., to an agency which contain the
name, address, and telephone number of subscribers are confidential and exempt). And see Inf. to
Michelson, January 27, 1992 (cellular telephone company which provided city with statements
reflecting amount of usage of cell phones by city staff rather than listing individual calls, did not
appear to be an "agency" for purposes of Ch. 119, F.S., making company's records of individual
calls subject to disclosure).
In Bill of Rights, Inc. v. City of New Smyrna Beach, No. 2009-20218-CINS (Fla. 7th Cir. Ct.
April 8, 2010), the court stated that "as a matter of law... billing documents regarding personal
calls made and received by city employees on city -owned or city -leased cellular telephones are
public records, when those documents are received and maintained in connection with the
transaction of official business; and, the `official business' of a city includes paying for telephone
service and obtaining reimbursement from employees for personal calls." Compare Media General
Operation, Inc. v. Feeney, supra, in which the court held that under the circumstances of that case
(involving access to records of cellular phone service provided by a political party for legislative
employees), records of personal or private calls of the employees fell outside the definition of
public records.
Additionally, in responding to a question from a police department regarding the provisions
of Ch. 934, F.S., (interception of wire and oral communications), the Attorney General's Office
advised that recordings of telephone conversations made by the police department in the usual
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course of business would be public records subject to the inspection, copying, and retention
requirements of Ch. 119, F.S. AGO 12-07. "Any such public records would likewise be subject
to the exemption and confidentiality provisions of the Public Records Law" Id. And see Morris
Publishing Group, LLC v. State, 154 So. 3d 528, 532 (Fla. 1st DCA 2015), review denied, 163
So. 3d 512 (Fla. 2015) ("No one disputes" that phone recordings of telephone calls made by the
defendant while incarcerated and provided in criminal discovery were public records). Compare
Bent v. State, 46 So. 3d 1047 (Fla. 4th DCA 2010) (recordings of personal telephone calls between
minors in jail awaiting trial and third parties made by sheriffs office are not public records when
contents of the phone calls do not involve criminal activity or a security breach).
22. Trade secrets and proprietary confidential business information
a. Trade secrets
(1) Statutory exemptions for specific trade secrets
(a) Trade secrets held by specified agencies
The Legislature has created a number of specific exemptions from Ch. 119, F.S., for trade
secrets. See, e.g., s. 1004.22(2), F.S. (trade secrets produced in research within state universities);
and s. 570.544(8), F.S. (trade secrets contained in records of the Division of Consumer Services of
the Department of Agriculture and Consumer Services). Please refer to the listing of exemptions
in Appendix D for more information on statutes providing confidentiality for trade secrets held
by specific agencies.
(b) Computer systems and software trade secrets
Data processing software which has been obtained by an agency under a licensing
agreement prohibiting its disclosure and which is a trade secret as defined in s. 812.081, F.S., is
exempt. Section 119.0710)(f), F.S. In order for the exemption to apply, two conditions must
be present: The licensing agreement must prohibit disclosure of the software and the software
must meet the statutory definition of "trade secret" found in s. 812.081, F.S. See AGOs 90-104
and 90-102.
Section 815.04(3), F.S., provides that data, programs, or supporting documentation that
is a trade secret as defined in s. 812.081, F.S., that is held by an agency, and that resides or exists
internal or external to a computer, computer system, computer network or electronic device is
confidential and exempt from s. 119.07(1), F.S.
(2) Trade secrets identified as confidential and submitted to an agency
As noted in the preceding discussion, the Legislature has enacted statutes that expressly
require certain agencies to maintain the confidentiality of trade secrets submitted to or held by
that agency, and has also enacted exemptions for computer trade secrets. However, even in the
absence of a statutory exemption for particular trade secrets, s. 815.045, F.S., "should be read to
exempt from disclosure as public records all trade secrets as defined in [s. 812.081(1) (c), F.S.] .
... " Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781, 785-
787 (Fla. 1 st DCA 2003), review denied sub nom., Crist v. Florida Department of Environmental
Protection, 911 So. 2d 792 (Fla. 2005). (e.s.) According to the court, while "a conversation with
a [public] employee is not enough to prevent [alleged trade secrets] from being made available
to anyone who makes a public records request," documents submitted by a private party which
constitute trade secrets as defined in s. 812.081, and which are stamped as confidential at the time
of submission to an agency, are not subject to public access. Id. at 784. And see Seta Corporation of
Boca, Inc. v. Office of theAttorney General, 756 So. 2d 1093 (Fla. 4th DCA 2000). But see Cubic
Transportation Systems, Inc. v. Miami -Dade County, 899 So. 2d 453, 454 (Fla. 3d DCA 2005)
(company, which supplied documents to an agency and failed to mark them as "confidential" and
which continued to supply them without asserting even a legally ineffectual post -delivery claim
to confidentiality for some thirty days, failed adequately to protect an alleged trade secret claim).
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In addition, the claimed trade secrets must actually constitute trade secrets as defined by
law. See s. 812.081, F.S. For example, in James, Hoyer, Newcomer, Smil anich, 6- Yanchunis, P.A.,
v. Rodale, Inc., 41 So. 3d 386, 389 (Fla. 1st DCA 2010), the court rejected a company's claim that
information in customer complaints and company responses were trade secrets; noting that such
information "is not secret and is not [the company's] to control."
Similarly, the Fourth District upheld the trial court's determination, after an in camera
inspection, that the aggregate number of airport pick-ups by a transportation service company
and the sums of money paid to the county pursuant to a license agreement between the company
and the county did not constitute trade secret information. Rasier-DC, LLC v. B ea' L Service,
Inc., 237 So. 3d 374 (Fla. 4th DCA 2018), pet. for rev. filed (Fla. March 21, 2018). The court also
found that a provision in the agreement requiring that the county maintain the confidentiality
of the company's trade secret information and assert the exempt status in response to a public
records request could not transform the information into a confidential record, citing to National
Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201, 1208 (Fla. 1st DCA 2009).
Cf. AGO 09-02 (authorized representatives of Division of Plant Industry in Department of
Agriculture and Consumer Services prohibited from disclosing trade secrets obtained in carrying
out their duties under Ch. 581 to any unauthorized person, provided such trade secrets fall within
the statutory definition in s. 812.081, F.S., and owner of trade secrets has taken measures to
maintain the information's secrecy). And see Allstate Floridian Ins. Co. v. Office of Ins. Regulation,
981 So. 2d 617 (Fla. 1st DCA 2008), review denied, 987 So. 2d 79 (Fla. 2008) (to the extent
Allstate believed any documents sought by the Office of Insurance Regulation were privileged
as trade secrets, Allstate was required to timely seek a protective order in circuit court); and Inf.
Op. to Brown, March 11, 2016 (if an agency has received material that the sender has identified
as "trade secret" and the material does not appear to meet the statutory definition of trade secret
or has not been protected as in Sepro, the agency should advise the sender "that it has a received
a public request and will release the records and allow the sender to seek a protective order for
those materials").
The trial court's conclusion as to whether specific information constitutes a trade secret
"rests on factual determinations that are assailable on appeal only if unsupported by competent,
substantial evidence." Sepro, 839 So. 2d at 785. See Office of Insurance Regulation v. State Farm
Florida Insurance Company, 213 So. 3d 1104 (Fla. 1st DCA 2017) (trial court's conclusion that
insurance policy statistics submitted to the Office of Insurance Regulation had "independent
economic value" within the meaning of the statutory definition of trade secret was supported
by competent, substantial evidence). Cf. Surterra Florida, LLC v. Florida Department of Health,
223 So. 3d 376 (Fla. 1st DCA 2017) (affirming trial court's finding that identities of investors
and partners listed in applications to dispense medical cannabis were not trade secrets because
the applicants "did not prove" that this information constituted a trade secret). And see Barfield v.
Florida Department of Health, No. 2015 CA 003014 (Fla. 2d Cir. Ct. October 27, 2017) (identity
of consultants and related information contained in application to dispense medical cannabis
qualified as a trade secret).
b. Proprietary confidential business information
While there is no generic exemption for information claimed to be "proprietary
confidential business information," the Legislature has created a number of exemptions from Ch.
119, F.S., for proprietary confidential business information held by certain agencies. The term
is generally defined by the statute creating the exemption and frequently includes trade secrets.
See, e.g., s. 288.075, F.S. (economic development agency); s. 288.9626, F.S. (Florida Opportunity
Fund); and ss. 364.183, 366.093, 367.156, and 368.108, F.S. (Public Service Commission). Cf.
Florida Power &Light Company v. Public Service Commission, 31 So. 3d 860 (Fla. 1st DCA 2010)
(listed categories of proprietary confidential business information in s. 366.093, F.S., as exempt
are not exhaustive; information relating to employees' compensation warranted confidential
classification as it would have impaired utility's competitive interests). Compare Southern Bell
Telephone and Telegraph Company v. Beard, 597 So. 2d 873, 876 (Fla. 1st DCA 1992) (Public
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Service Commission's determination that statutory exemption for proprietary confidential
business information should be narrowly construed and did not apply to company's internal self-
analysis was "consistent with the liberal construction afforded the Public Records Act in favor of
open government"). And see AGO 08-14 (lease payment amount made by a private company to
the city does not constitute "proprietary confidential business information").
D. PROVIDING PUBLIC RECORDS
1. Validity of agency conditions on access
Section 119.07(1)(a), F.S., establishes a right of access to public records in plain and
unequivocal terms:
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.
The term "reasonable conditions" as used in s. 119.07(1)(a), F.S., "refers not to conditions
which must be fulfilled before review is permitted but to reasonable regulations that would
permit the custodian of records to protect them from alteration, damage, or destruction and also
to ensure that the person reviewing the records is not subjected to physical constraints designed
to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla. 1979).
See also Chandler v. City of Greenacres, 140 So. 3d 1080, 1084 (Fla. 4th DCA 2014) (noting the
narrow interpretation of the phrase "reasonable conditions"); and Tribune Company v. Cannella,
458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company,
105 S.Ct. 2315 (1985) (the sole purpose of custodial supervision is to protect the records from
alteration, damage, or destruction).
Accordingly, the "reasonable conditions" do not include a rule or condition of inspection
which operates to restrict or circumvent a person's right of access. AGO 75-50. "The courts of
this state have invalidated measures which seek to impose any additional burden on those seeking
to exercise their rights to obtain records" under Ch. 119, F.S. Inf. Op. to Cook, May 27, 2011.
And see State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 200 1) (requirement that persons with
custody of public records allow records to be examined "at any reasonable time, under reasonable
conditions" is not unconstitutional as applied to public records custodian who was dilatory in
responding to public records requests).
The Public Records Act "embodies important public policy" and "is designed to provide
citizens with a simple and expeditious method of accessing public records." Orange County v.
Hewlings, 152 So. 3d 812, 817 (Fla. 5th DCA 2014). Thus, an agency violated the Act when
instead of complying with Hewlings' "simple request" for records, it "chose to interpose the
additional bureaucratic hurdles of forcing her to come to its offices, comb through the records,
mark the records in a certain manner, wait for a written estimate of costs, then, after paying the
costs, wait again for the records to be mailed to her." Id.
The custodian "is at all times responsible for the custody of the [public] records but when a
citizen applies to inspect or make copies of them it is his duty to make provision for this to be done
in such a manner as will accommodate the applicant and at the same time safeguard the records."
Fuller v. State ex rel. O'Donnell, 17 So. 2d 607 (Fla. 1944). Thus, the right of inspection may
not be frustrated or circumvented through indirect means such as the use of a code book. State
ex rel. Davidson v. Couch, 158 So. 103, 105 (Fla. 1934) (right of inspection was "hindered and
obstructed" by city "imposing conditions to the right of examination which were not reasonable
nor permissible under the law"). Accord AGO 05-12 (city may not require the use of a code
to review e-mail correspondence of city's police department and human resources department).
And see Inf. Op. to Cook, May 27, 2011, noting that "[a] policy requiring a physical address for
mailing copies of requested public records or the personal appearance of the requestor would not
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appear to relate to the custodian's duty to protect public records from alteration or destruction,
but to impose additional constraints on the requestor." Compare Siegmeister v. Johnson, 240 So.
3d 70 (Fla. 1st DCA 2018) (state attorney did not violate the Public Records Act by making
requested records available for inspection and copying at the main office of the state attorney,
rather than at a branch office closer to the requester's home, because the Public Records Act "does
not require government officials to move records from where they are being maintained to a
different place convenient to the requester").
Moreover, any local enactment or policy which purports to dictate additional conditions
or restrictions on access to public records is of dubious validity since the legislative scheme of
the Public Records Act has preempted any local regulation of this subject. Tribune Company
v. Cannella, supra at 1077. A policy of a governmental agency cannot exempt it from the
application of Ch. 119, F.S., a general law. Douglas v. Michel, 410 So. 2d 936, 938 (Fla. 5th
DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985). And see AGO 90-04
(county official not authorized to assign county's rights to a public record as part of a settlement
agreement compromising a lawsuit against the county). Cf. Herbits v. City of Miami, 207 So. 3d
274, 275 (Fla. 3d DCA 2016) (claim based on alleged concealment of information in violation
of transparency mandates established in local enactments is preempted by the Florida Public
Records Act, because the "Florida Legislature has so pervasively legislated regarding this subject
area that a local government is precluded from legislating in the same area.").
2. Individuals authorized to inspect and receive copies of public records
Section 119.01, F.S., provides that "[i]t is the policy of this state that all state, county, and
municipal records are open for personal inspection and copying by any person." (e. s.) A state
citizenship requirement was deleted from the law in 1975. A public employee is a person within
the meaning of Ch. 119, F.S. and, as such, possesses the same right of inspection as any other
person. AGO 75-175. Likewise, a county is "any person" who is allowed to seek public records
under Ch. 119, F.S. Hillsborough County, Florida v. Buccaneers Stadium Limited Partnership, No.
99-0321 (Fla. 13th Cir. Ct. February 5, 1999), affirmed per curiam, 758 So. 2d 676 (Fla. 2d
DCA 2000).
Thus, "the law provides any member of the public access to public records, whether he or
she be the most outstanding civic citizen or the most heinous criminal." Church of Scientology Flag
Service Org., Inc. v. Wood, No. 97-688CI-07 (Fla. 6th Cir. Ct. February 27, 1997). "[A]s long
as the citizens of this state desire and insist upon `open government' and liberal public records
disclosure, as a cost of that freedom public officials have to put up with demanding citizens even
when they are obnoxious as long as they violate no laws." State v. Colby, No. MM96-317A-XX
(Fla. Highlands Co. Ct. May 23, 1996). "Even though a public agency may believe that a person
or group are fanatics, harassers or are extremely annoying, the public records are available to all
of the citizens of the State of Florida." Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th
Cir. Ct. December 17, 1991). And see Curry v. State, 811 So. 2d 736, 741 (Fla. 4th DCA 2002)
(defendant's conduct in making over 40 public records requests concerning victim constituted
a "legitimate purpose," and thus cannot violate the stalking law "because the right to obtain
the records is established by statute and acknowledged in the state constitution"). Cf. James v.
Loxahatchee Groves Water Control District, 820 So. 2d 988 (Fla. 4th DCA 2002), concluding that
a trial court erred when it failed to hold a hearing before denying a request to require a district
to permit inspection at the district offices, rather than at an off -premises location. The agency
argued that it would be "disruptive" to require that the records inspection be conducted at its
offices. Id. However, the appeals court ruled that a hearing should have been held to determine
whether the requestor, who was in litigation with the district, should be allowed to view the
records at the district offices, and if so, under what conditions. Id.
3. Purpose of request
The requester is not required to explain the purpose or reason for a public records request.
"The motivation of the person seeking the records does not impact the person's right to see
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them under the Public Records Act." Curry v. State, 811 So. 2d 736, 742 (Fla. 4th DCA 2002).
See also Barfield v. School Board of Manatee County, 135 So. 3d 560, 562 (Fla. 2d DCA 2014)
("An individual's reason for requesting a public record is irrelevant"); Timoney v. City of Miami
Civilian Investigative Panel, 917 So. 2d 885, 886n.3 (Fla. 3d DCA 2005) ("generally, a person's
motive in seeking access to public records is irrelevant"); Staton v. McMillan, 597 So. 2d 940, 941
(Fla. 1st DCA 1992), review dismissed sub nom., Staton v. Austin, 605 So. 2d 1266 (Fla. 1992)
(petitioner's reasons for seeking access to public records "are immaterial"); Lorei v. Smith, 464
So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985) (legislative
objective underlying the creation of Ch. 119 was to insure to the people of Florida the right
freely to gain access to governmental records; the purpose of such inquiry is immaterial); and
News -Press Publishing Company, Inc. v. Gadd, 388 So. 2d 276, 278 (Fla. 2d DCA 1980) ("the
newspaper's motives [for seeking the documents], as well as the hospital's financial harm and
public harm defenses, are irrelevant in an action to compel compliance with the Public Records
Act"). Cf. Town of Gu�Wtream v. O'Boyle, 654 E App'x 439 (11th Cir. 2016) (alleged filing of
large numbers of frivolous public records requests which are then followed by lawsuits when the
requests are not addressed does not constitute a predicate act under the Racketeer Influenced
Corrupt Organizations Act).
Thus, an agency is not authorized to impose conditions or limit access to public records
based on a suspicion that the request may be for an improper purpose. Inf. Op. to Cook, May
27, 2011. However, as noted in that opinion, Florida Statutes impose criminal penalties for the
unauthorized use of personal identification information for fraudulent or harassment purposes
and for the criminal use of a public record or public records information. See ss. 817.568 and
817.569, F.S.
Similarly, "the fact that a person seeking access to public records wishes to use them in
a commercial enterprise does not alter his or her rights under Florida's public records law"
Microdecisions, Inc. v. Skinner, 889 So. 2d 871, 875 (Fla. 2d DCA 2004), review denied, 902 So.
2d 791 (Fla. 2005), cert. denied, 126 S.Ct. 746 (2005). See also State ex rel. Davis v. McMillan,
38 So. 666 (Fla. 1905) (abstract companies may copy documents from the clerk's office for their
own use and sell copies to the public for a profit); Booksmart Enterprises, Inc. v. Barnes & Noble
College Bookstores, Inc., 718 So. 2d 227, 228n.2 (Fla. 3d DCA 1998), review denied, 729 So. 2d
389 (Fla. 1999) ("Booksmart's reason for wanting to view and copy the documents is irrelevant
to the issue of whether the documents are public records").
4. Role of the records custodian
Section 119.011(5), F.S., defines the term "custodian of public records" to mean "the
elected or appointed state, county, or municipal officer charged with the responsibility of
maintaining the office having public records, or his or her designee."
The custodian of public records, or a person having custody of public records, may
designate another officer or employee of the agency to permit the inspection and copying of
public records, but must disclose the identity of the designee to the person requesting to inspect
or copy public records. Section 119.07(1)(b), F.S. and see s. 119.0701(2), F.S. (discussed more
fully on pages 61-62) requiring that certain agency contracts for public services must contain
contact information pertaining to the agency's custodian of public records; and s. 119.12(1)(b)
and (2), F.S., mandating that the complainant in a public records lawsuit must provide written
notice identifying the public records request to the custodian at least 5 business days prior to
filing a civil action, but stipulating that the notice is not required if the agency fails to prominently
post the contact information for the agency's custodian in the manner prescribed in the statute.
Cf. Remia v. City of St. Petersburg Police Pension Board of Trustees, 14 F.L.W. Supp. 854a (Fla.
6th Cir. Ct. July 17, 2007), cert. denied, 996 So. 2d 860 (Fla. 2d DCA 2008) (since city clerk's
responsibility to provide public records was ministerial, city was not entitled to protective order
prohibiting attorney in litigation with the city from directly contacting the clerk with a public
records request without first contacting the city attorney). Questions relating to the application
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of the Rules of Professional Conduct should be addressed to The Florida Bar. See Florida Bar
Ethics Opinion 09-01, issued December 10, 2010.
However, the courts have concluded that the statutory reference to the records custodian
does not alter the "duty of disclosure" imposed by s. 11 9.07(l), F.S., upon "[elvery person who has
custody of a public record." Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996).
[Emphasis supplied by the court]. Thus, the term "custodian" for purposes of the Public Records
Act refers to all agency personnel who have it within their power to release or communicate
public records. Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998) (citing
Williams v. City ofMinneola, 575 So. 2d 683, 687 [Fla. 5th DCA 1991]). But, "the mere fact
that an employee of a public agency temporarily possesses a document does not necessarily mean
that the person has custody as defined by section 119.07." Id. at 1361. In order to have custody,
one must have supervision and control over the document or have legal responsibility for its care,
keeping or guardianship. Id.
In Siegmeister v. Johnson, 240 So. 3d 70 (Fla. 1st DCA 2018), the court rejected the
requester's claim that he was entitled to view the records at the office of an assistant state attorney
in Lake City when office policy required that the records be sent to the state attorney's main office
in Live Oak to be reviewed for exemptions. The court reasoned that the assistant state attorney
"couldn't have, for instance simply handed over the records on the spot" when the requester
asked for them in Lake City because both the "[Public Records] Act and office policy" required
that the records "be reviewed for exempt information by the public records custodian (who was
also responsible for supervising the record inspection and copying process)" as provided in s.
119.07(1)(a), F.S. Id. at 74
The 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. Section 119.07(1)
(c), F.S. See Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 128
(Fla. 2016), noting that the "good faith language" was intended "to strengthen the responsibilities
of records custodians by imposing an explicit requirement on public agencies that they act in
good faith in responding to public records requests."
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. Id. Cf. SDE Media LLC v. City of Doral, 25 F.L.W. Supp 243a (Fla. 11th
Cir. Ct. May 5, 2017) (city violated the Public Records Law by "misrepresenting to SDE Media
LLC that all responsive records had been located and produced when, in fact, [the city] knew
that a good faith search had not been made and that additional responsive records may not have
been produced").
The duty of "good faith" imposed on public officers who are charged with the responsibility
of complying with the law is "subjective." Consumer Rights, LLC v. Union County, 159 So. 3d 882,
885 (Fla. 1 st DCA 2015), review denied, 177 So. 3d 1264 (Fla. 2015). "Whether a governmental
entity acted in `good faith' in the manner in which it responded to a request for disclosure of public
records is necessarily a question for the court to decide based on the circumstances of a case." Id.
5. Requests for copies versus requests to inspect public records
"It is the policy of this state that all state, county, and municipal records are open for
personal inspection and copying by any person." (e.s.) Section 119.01 (1), F.S. In addition, s.
119.070)(a), F.S., provides that "[e]very person who has custody of a public record shall permit
the record to be inspected and copied by any person desiring to do so ...:. Finally, s. 119.07(4),
F.S., requires the custodian to "furnish a copy or a certified copy of the record upon payment
of the fee prescribed by law ...:' And see Fuller v. State ex rel. O'Donnell, 17 So. 2d 607
(Fla. 1944) ("The best -reasoned authority in this country holds that the right to inspect public
records carries with it the right to make copies"); and Schwartzman v. Merritt Island Volunteer
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Fire Department, 352 So. 2d 1230, 1232n.2 (Fla. 4th DCA 1977) (Public Records Act requires
custodian to furnish copies). Cf. Wootton v. Cook, 590 So. 2d 1039, 1040 (Fla. 1st DCA 199 1) (if
the requestor identifies a record with sufficient specificity to permit the agency to identify it and
forwards the appropriate fee, the agency must furnish by mail a copy of the record).
6. Records maintained by more than one agency
The fact that a particular record is also maintained by another agency does not relieve the
custodian of the obligation to permit inspection and copying in the absence of an applicable
statutory exemption. AGO 86-69. If information contained in the public record is available
from other sources, a person seeking access to the record is not required to make an unsuccessful
attempt to obtain the information from those sources as a condition precedent to gaining access
to the public records. Warden v. Bennett, 340 So. 2d 977, 979 (Fla. 2d DCA 1976).
7. Records not in physical possession of agency
An agency is not authorized to refuse to allow inspection of public records it made or
received in the course of official business on the grounds that the documents are in the actual
possession of another agency or official other than the records custodian. See Wallace v. Guzman,
687 So. 2d 1351 (Fla. 3d DCA 1997) (public records cannot be hidden from the public by
transferring physical custody of the records to the agency's attorneys); Tober v. Sanchez, 417 So.
2d 1053 (Fla. 3d DCA 1982), review denied sub nom., Metropolitan Dade County TransitAgency v.
Sanchez, 426 So. 2d 27 (Fla. 1983) (official charged with maintenance of records may not transfer
actual physical custody of records to county attorney and thereby avoid compliance with request
for inspection under Ch. 119, ES.); and AGO 92-78 (public housing authority not authorized
to withhold its records from disclosure on the grounds that the records have been subpoenaed by
the state attorney and transferred to that office). "Given the aggressive nature of the public's right
to inspect and duplicate public records, a governmental agency may not avoid a public records
request by transferring custody of its records to another agency." Chandler v. City of Sanford, 121
So. 3d 657, 660 (Fla. 5th DCA 2013).
Thus, in Barfield v. Florida Department of Law Enforcement, No. 93-1701 (Fla. 2d Cir. Ct.
May 19, 1994), the court held that an agency that received records from a private entity in the
course of official business and did not make copies of the documents could not "return" them to
the entity following receipt of a public records request. The court ordered the agency to demand
the return of the records from the private entity so they could be copied for the requestor.
Similarly, in Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 492-493
(Fla. 2d DCA 1990), the court found that both the city and a private entity violated the Public
Records Act when, pursuant to a plan to circumvent Ch. 119, F.S., the city avoided taking
possession of negotiation documents reviewed and discussed by both parties and instead left
them with the private entity's attorney. The court determined that although city officials may
have intended merely to "avoid" the law, the effect of their actions was to "evade the broad
policy of open government." And see Wisner v. City of Tampa Police Department, 601 So. 2d 296,
298 (Fla. 2d DCA 1992) (city may not allow a private entity to maintain physical custody of
public records [polygraph chart used in internal investigation] "to circumvent the public records
chapter"); and National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201 (Fla.
1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010) (records on private entity's secure
website that were viewed and used by a state university in carrying out its official duties were
public records even though the university did not take physical possession); and AGO 98-54
(registration and disciplinary records stored in a computer database maintained by a national
securities association which are used by a state agency in licensing and regulating securities dealers
doing business in Florida are public records).
8. "Overbroad" public records requests
In Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d
695 (Fla. 1985), the court recognized that the "breadth of such right [to gain access to public
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records] is virtually unfettered, save for the statutory exemptions ...." Accordingly, in the
absence of a statutory exemption, a custodian must produce the records requested regardless
of the number of records involved or possible inconvenience. Note, however, s. 119.07(4)(d),
F.S., authorizes a custodian to charge, in addition to the cost of duplication, a reasonable service
charge for the cost of the extensive use of information technology resources or of personnel, if
such extensive use is required because of the nature or volume of public records to be inspected
or copied. See AGO 92-38.
Thus, a person seeking to inspect "all" financial records of a municipality may not be required
to specify a particular book or record he or she wishes to inspect. State ex rel. Davidson v. Couch,
156 So. 297, 300 (Fla. 1934). In Davidson, the Florida Supreme Court explained that if this were
the case, "one person may be required to specify the book, while another and more favored one,
because of his pretended ignorance of the name of the record might be permitted examination of
all of them." Id. Such a result would be inconsistent with the mandate in the Public Records Act
that public records are open to all who wish to inspect them. Id. Cf. Salvadore v. City of Stuart,
No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991), stating that if a public records request is
insufficient to identify the records sought, the city has an affirmative duty to promptly notify the
requestor that more information is needed in order to produce the records; it is the responsibility of
the city and not the requestor to follow up on any requests for public records. Compare Woodard v.
State, 885 So. 2d 444, 446 (Fla. 4th DCA 2004) (records custodian must furnish copies of records
when the person requesting them identifies the portions of the record with sufficient specificity to
permit the custodian to identify the record and forwards the statutory fee).
9. Written request or form requirements
Chapter 119, F.S., does not authorize an agency to require that requests for records be in
writing. See Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 305n.1 (Fla. 3d
DCA 2001) ("There is no requirement in the Public Records Act that requests for records must
be in writing"). As noted in AGO 80-57, a custodian must honor a request for copies of records
which is sufficient to identify the records desired, whether the request is in writing, over the
telephone, or in person, provided that the required fees are paid. "In sum, the city could not
properly condition disclosure of the public records, to the then -anonymous requester on filling
out the city's form ...." Chandler v. City of Greenacres, 140 So. 3d 1080, 1085 (Fla. 4th DCA
2014).
If a public agency believes that it is necessary to provide written documentation of a
request for public records, the agency may require that the custodian complete an appropriate
form or document; however, the person requesting the records cannot be required to provide
such documentation as a precondition to the granting of the request to inspect or copy public
records. See Sullivan v. City of New Port Richey, No. 86-1129CA (Fla. 6th Cir. Ct. May 22, 1987),
per curiam affirmed, 529 So. 2d 1124 (Fla. 2d DCA 1988), noting that a requestor's failure to
complete a city form required for access to documents did not authorize the custodian to refuse
to honor the request to inspect or copy public records.
However, a request for records of the judicial branch (which is not subject to Ch. 119,
F.S., see Times Publishing Company v. Ake, 660 So. 2d 255 [Fla. 1995]), must be in writing.
Rule 2.420(m)(1), Fla. R. Jud. Admin. In its commentary accompanying the rule change that
incorporated this requirement, the Court said that the "writing requirement is not intended to
disadvantage any person who may have difficulty writing a request; if any difficulty exists, the
custodian should aid the requestor in reducing the request to writing." In re Report of the Supreme
Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
10. Identification of requester
A person requesting access to or copies of public records may not be required to disclose
his or her name, address, telephone number or the like to the custodian, unless the custodian is
required by law to obtain this information prior to releasing the records. AGOs 92-38 and 91-
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76. Accord Inf. Op. to Cook, May 27, 2011. See also Bevan v. Wanicka, 505 So. 2d 1116 (Fla.
2d DCA 1987) (production of public records may not be conditioned upon a requirement that
the person seeking inspection disclose background information about himself or herself). Cf. s.
1012.31(2)(f), F.S., providing that the custodian of public school employee personnel files shall
maintain a record in the file of those persons reviewing an employee personnel file each time it
is reviewed.
Thus, a city may not require an anonymous requester who made a public records request
via e-mail to provide an "address or other identifiable source for payment of the associated costs."
Chandler v. City of Greenacres, 140 So. 3d 1080, 1085 (Fla. 4th DCA 2014). Instead, "the city
could have sent an estimate of costs through e-mail to the requester just as it could through
regular mail, had the request been made via paper by an anonymous requester." Id. Cf. Consumer
Rights, LLC v. Union County, Florida, 159 So. 3d 882, 886 (Fla. 1st DCA 2015), review denied,
177 So. 3d 1264 (Fla. 2015) ("We know of 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"); and Citizens Awareness Foundation, Inc. v. Wantman Group, Inc.,
195 So. 3d 396, 402 (Fla. 4th DCA 2016) ("There is a difference between allowing anonymous
public records requests and evaluating an agency's response when such requests are justifiably
handled with caution").
11. Remote access
Section 119.07(2)(a), F.S., states that "[a]s an additional means of inspecting or copying
public records, a custodian may provide access to public records by remote electronic means,
provided exempt or confidential information is not disclosed." And see s. 119.01(2) (e), F.S. Thus,
an agency is authorized but not required to permit remote electronic access to public records.
Similarly, access to public records by remote electronic means is merely an additional
means of inspecting or copying public records; this "additional means of access, however, is
insufficient where the person requesting the records specifies the traditional method of access via
paper copies." Lake Shore HospitalAuthority v. Lilker, 168 So. 3d 332, 333 (Fla. Ist DCA 2015).
Section 119.07(2)(b), F.S., requires the custodian to provide safeguards to protect the
contents of the public records from unauthorized electronic access or alteration and to prevent
the disclosure or modification of those portions of the records which are exempt from disclosure.
Unless otherwise required by law, the custodian may charge a fee for remote electronic
access, granted under a contractual arrangement with a user, which fee may include the direct and
indirect costs of providing such access. However, fees for remote electronic access provided to
the general public must be in accordance with the provisions of s. 119.07, F.S. Section 119.07(2)
(c), F.S.
12. Requests to create new records, answer questions about the records, or reformat
existing records
The statutory obligation of the custodian of public records is to provide access to, or copies
of, public records "at any reasonable time, under reasonable conditions, and under supervision by
the custodian of the public records" provided that the required fees are paid. Section 119.07(1)
(a) and (4), F.S. However, a custodian is not required to give out information from the records
of his or her office. AGO 80-57. The Public Records Act does not require a town to produce
an employee, such as the financial officer, to answer questions regarding the financial records of
the town. AGO 92-38. Cf. In re Report of the Supreme Court Workgroup on Public Records, 825
So. 2d 889, 898 (Fla. 2002) (the custodian of judicial records "is required to provide access to or
copies of records but is not required either to provide information from records or to create new
records in response to a request").
In other words, Ch. 119, F.S., provides a right of access to inspect and copy an agency's
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