Florida Statute Chapter 119 (2019)GOVERNMENT -IN -THE -SUNSHINE -MANUAL
meetings.
b. Private entities contracting with public agencies or receiving public funds
There is no single factor which is controlling on the question of when a private corporation,
not otherwise connected with government, becomes subject to the Public Records Act. However,
the courts have held that the mere act of contracting with a public agency is not dispositive. See,
e.g., News and Sun -Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra
(private corporation does not act "on behalf of" a public agency merely by entering into a contract
to provide architectural services to the agency); Parsons & Whittemore, Inc. v. Metropolitan Dade
County, 429 So. 2d 343 (Fla. 3d DCA 1983); Stanfield v. Salvation Army, 695 So. 2d 501, 503
(Fla. 5th DCA 1997) (contract with county to provide services does not in and of itself subject
the organization to Ch. 119 disclosure requirements). And see Weekly Planet, Inc. v. Hillsborough
County Aviation Authority, 829 So. 2d 970 (Fla. 2d DCA 2002) (fact that private development is
located on land the developer leased from a governmental agency does not transform the leases
between the developer and other private entities into public records).
Similarly, the receipt of public funds, standing alone, is not dispositive of the organization's
status for purposes of Ch. 119, F.S. See Sarasota Herald -Tribune Company v. Community Health
Corporation, Inc., 582 So. 2d 730 (Fla. 2d DCA 1991) (mere provision of public funds to the
private organization is not an important factor in this analysis, although the provision of a
substantial share of the capitalization of the organization is important); and Times Publishing
Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999) (attorneys retained by
individual commissioners in a criminal matter were not "acting on behalf of" a public agency for
purposes of Ch. 119, F.S., even though county commission subsequently voted to pay the legal
expenses in accordance with a county policy providing for reimbursement of legal expenses to
officers successfully defending charges filed against them arising out of the performance of their
official duties). Cf. Inf. Op. to Cowin, November 14, 1997 (fact that nonprofit medical center
is built on property owned by the city would not in and of itself be determinative of whether the
medical center's meetings and records are subject to open government requirements).
The courts have relied on "two general sets of circumstances" in determining when a
private entity is "acting on behalf of" a public agency and must therefore produce its records
under Ch. 119, F.S. See Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So.
2d 970, 974 (Fla. 2d DCA 2002); B & S Utilities, Inc. v. Baskerville -Donovan, Inc., 988 So.
2d 17 (Fla. 1st DCA 2008), review denied, 4 So. 3d 1220 (Fla. 2009); and County of Volusia v.
Emergency Communications Network, Inc., 39 So. 3d 1280 (Fla. 5th DCA 2010). Each of these
circumstances or tests is discussed below.
(1) "Totality of factors" test
Recognizing that "the statute provides no clear criteria for determining when a private
entity is `acting on behalf of a public agency," the Supreme Court adopted a "totality of factors"
test to serve as a guide for evaluating whether a private entity is subject to Ch. 119, F.S. News
and Sun -Sentinel Company v. Schwab, Twitty &BanserArchitectural Group, Inc., 596 So. 2d 1029,
1031 (Fla. 1992). See New York Times Company v. PHHMental Health Services, Inc., 616 So. 2d
27 (Fla. 1993); Wells v. Aramark Food Service Corporation, 888 So. 2d 134 (Fla. 4th DCA 2004).
Accordingly, when a public agency contracts with a private entity to provide goods or
services to facilitate the agency's performance of its duties, the courts have considered the "totality
of factors" in determining whether there is a significant level of involvement by the public agency
so as to subject the private entity to Ch. 119, F.S. See Weekly Planet, Inc. v. Hillsborough County
Aviation Authority, supra at 974.
The factors listed by the Supreme Court in Schwab include the following:
1) the level of public funding;
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
2) commingling of funds;
3) whether the activity was conducted on publicly owned property;
4) whether the contracted services are an integral part of the public agency's chosen decision-
making process;
5) whether the private entity is performing a governmental function or a function which the
public agency otherwise would perform;
6) the extent of the public agency's involvement with, regulation of, or control over the
private entity;
7) whether the private entity was created by the public agency;
8) whether the public agency has a substantial financial interest in the private entity;
9) for whose benefit the private entity is functioning.
Thus, the application of the totality of factors test will often require an analysis of the
statutes, ordinances or charter provisions which establish the function to be performed by the
private entity as well as the contract, lease or other document between the governmental entity
and the private organization.
For example, in AGO 92-37 the Attorney General's Office, following a review of the
Articles of Incorporation and other materials relating to the establishment and functions of the
Tampa Bay Performing Arts Center, Inc., concluded that the center was an "agency" subject to
the Public Records Act, noting that the center was governed by a board of trustees composed
of a number of city and county officials or appointees of the mayor, utilized city property in
carrying out its goals to benefit the public, and performed a governmental function. See also
AGOs 97-27 (documents created or received by the Florida International Museum after the date
of its purchase/lease/option agreement with city subject to disclosure under Ch. 119, ES.), 92-53
(John and Mable Ringling Museum of Art Foundation, Inc., subject to Public Records Act), and
11-01. Cf. Inf. Op. to Goodman, September 26, 2016 (in the absence of a request from the chief
of the volunteer fire department or additional information making the relationship between the
town and the fire department clearer, the Attorney General's Office may not respond formally to
town attorney's inquiry about the application of the Public Records Act to the town's volunteer
fire department).
By contrast, an architectural firm providing architectural services associated with
construction of school facilities was found to be outside the scope of the Public Records Act. See
News and Sun -Sentinel Company v. Schwab, Twitty ea' Hanser Architectural Group, Inc., supra. See
also Sipkema v. Reedy Creek Improvement District, No. CI96114 (Fla. 9th Cir. Ct. May 29, 1996),
per curiam affirmed, 697 So. 2d 880 (Fla. 5th DCA 1997), review dismissed, 699 So. 2d 1375
(Fla. 1997) (private security force providing services on Walt Disney World property, including
traffic control and accident reports is not subject to Ch. 119); Trepal v. State, 704 So. 2d 498
(Fla. 1997) (soft drink company cooperating with law enforcement in the testing of soda bottles
during an investigation of a poisoning death is outside the scope of the Public Records Act); and
Inf. Op. to Michelson, January 27, 1992 (telephone company supplying cellular phone services
to city officials for city business is not an "agency" since the company was not created by the city,
did not perform a city function, and did not receive city funding except in payment for services
rendered). Cf. National Council on Compensation Insurance v. Fee, 219 So. 3d 172, 182 (Fla. 1st
DCA 2017) (trial court conclusion that insurance rating organization violated Public Records
Act was erroneous because the court "expressly declined to apply the Schwab factors" prior to
making this determination).
(2) Delegation of function test
While the mere act of contracting with a public agency is not sufficient to bring a private
entity within the scope of the Public Records Act, there is a difference between a party contracting
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with a public agency to provide services to the agency and a contracting party which provides
services in place of the public body. News journal Corporation v. Memorial Hospital -West Uolusia,
Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999). And see Weekly
Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002).
For example, if a private entity contracts to relieve the public body from the operation of a
public obligation such as operating a jail or providing fire protection, the open government laws
apply. News journal Corporation v. Memorial Hospital -West Volusia, Inc., 695 So. 2d 418 (Fla. 5th
DCA 1997), approved, 729 So. 2d 373 (Fla. 1999). And see Dade Aviation Consultants v. Knight
Ridder, Inc., 800 So. 2d 302, 307 (Fla. 3d DCA 200 1) (consortium of private businesses created to
manage a massive renovation of an airport was an "agency" for purposes of the Public Records Act
because it was created for and had no purpose other than to work on the airport contract; "when
a private entity undertakes to provide a service otherwise provided by the government, the entity
is bound by the Act, as the government would be"); and Fox v. News -Press Publishing Company,
545 So. 2d 941, 943 (Fla. 2d DCA 1989) (upholding a trial court decision finding that business
records maintained by a towing company in connection with its contract with a city were public
records, as the company "was clearly performing what is essentially a governmental function, i.e.,
the removal of wrecked and abandoned automobiles from public streets and property'). See also
AGOs 08-66 (Public Records Act applies to not-for-profit corporation contracting with city to
carry out affordable housing responsibilities and screening applicant files for such housing); 99-53
(while not generally applicable to homeowners associations, Ch. 119 applies to an architectural
review committee of a homeowners association which is required by county ordinance to review
and approve applications for county building permits as a prerequisite to consideration by the
county building department); and 07-44 (property owners association, delegated performance
of services otherwise performed by municipal services taxing unit, subject to Public Records Act
when acting on behalf of the taxing unit). Compare AGO 87-44 (records of a private nonprofit
corporation pertaining to a fund established for improvements to city parks were not public
records since the corporation raised and disbursed only private funds and had not been delegated
any governmental responsibilities or functions).
Thus, in Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997), the Fifth
District recognized that the delegation of function test was the appropriate standard to use to
determine that records generated by the Salvation Army in performing a contract to provide
misdemeanor services for a county were subject to Ch. 119, F.S. As stated by the court: "Because
we find the statutory and contractual delegation of governmental responsibility so compelling
in this case, it is unnecessary to engage in the factor -by -factor analysis outlined in Schwab."
Stanfield, 695 So. 2d at 503. B & S Utilities v. Baskerville -Donovan Inc., 988 So. 2d. 17, 21
(Fla. 1st DCA 2008), citing to Memorial Hospital -West Volusia, Inc. v. News journal Corp., 729
So. 2d 373 (Fla. 1999). In Baskerville, the court recognized that while the "totality of factors"
test favored a private engineering firm's position that it was not an agency, "the fact that the City
delegated its municipal engineering functions" to [the firm] "is dispositive." Baskerville, 988 So.
2d at 22. (e.s.)
The following are other examples of private businesses and nonprofit entities which were
delegated a governmental function and thus determined to be subject to the Public Records Act
in carrying out that function:
Corrections company operating county jail: Times Publishing
Company v. Corrections Corporation ofAmerica, No. 91-429 CA 01
(Fla. 5th Cir. Ct. December 4, 1991), affirmedper curiam, 611 So.
2d 532 (Fla. 5th DCA 1993). And see Prison Health Services, Inc. v.
Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA
1998), review denied, 727 So. 2d 909 (Fla. 1999) (medical services).
Employment search firm: Shevin v. Byron, Harless, Schaffer, Reid
and Associates, Inc. 379 So. 2d 633 (Fla. 1980). Accord AGO 92-
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80 (materials made or received by recruitment company in the
course of its contract with a public agency to seek applicants and
make recommendations to the board regarding the selection of an
executive director, subject to Ch. 119).
Humane society investigating animal abuse for county: Putnam
County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla.
5th DCA 1999).
However, the "delegation of function" test should not be used unless there is a "clear,
compelling, complete delegation of a governmental function" to the private entity. Economic
Development Commission v. Ellis, 178 So. 3d 118, 123 (Fla. 5th DCA 2015). In Ellis, the Fifth
District found that the trial judge should not have used the delegation test to determine whether
a private economic development entity (EDC) under contract with the county to provide
services was an "agency." The appellate court explained that the EDC was the county's "primary"
but not its "sole" agency for economic development activity. Id. The county "continued to
carry out economic development activities itself through its own paid county employees and in
conjunction with other entities to the exclusion of EDC." Id. In other words, "EDC did not
take over the county's role or completely assume the county's provision of economic development
services." Id. Because "EDC provided services to, not in place of, the county," the trial judge
should have applied the "totality of factors" test instead of the "delegation of function" test. Id.
C. Private company delegated authority to keep certain records
If a public agency has delegated its responsibility to maintain records necessary to perform
its functions, such records have been deemed to be accessible to the public. See, e.g., Harold v.
Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996) (where county hired a private company to
be the construction manager on a county project and delegated to the company the responsibility
of maintaining records necessary to show compliance with a "fairness in procurement ordinance,"
the company's records for this purpose were public records). See also Booksmart Enterprises, Inc.
v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA 1998), review denied,
729 So. 2d 389 (Fla. 1999) (private company operating a campus bookstore pursuant to a
contract with a state university is the custodian of public records made or received by the store in
connection with university business).
d. Subcontractors
A circuit court has addressed whether a subcontractor may be subject to the Public
Records Act if both the subcontractor and contractor have been delegated a public function. In
Multimedia Holdings Corporation v. CRSPE, Inc., No 03-3474-G (Fla. 20th Cir. Ct. December
3, 2003), the court required a consulting firm to disclose its timesheets and internal billing
records generated pursuant to a subcontract with another firm (CRSPE) which had entered into
a contract with a town to prepare a traffic study required by the Department of Transportation.
Rejecting the subcontractor's argument that Ch. 119, F.S., did not apply to it because it was a
subcontractor, not the contractor, the court found that the study was prepared and submitted
jointly by both consultants; both firms had acted in place of the town in performing the tasks
required by the department: "[T]he Public Records Act cannot be so easily circumvented simply
by CRSPE delegating its responsibilities to yet another private entity."
e. Other statutory provisions governing records of private entities
(1) Contract requirements
Section 119.070 1, F.S., mandates that all agency contracts for services must contain specific
provisions requiring the contractor to comply with public records laws, including retention
and public access requirements. The term "contractor" is defined to mean "an individual,
partnership, corporation or business entity that enters into a contract for services with a public
agency and is acting on behalf of the public agency as provided under s. 119.011(2), [F.S.]."
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Section 119.0701(1)(a), F.S. (e.s.). "Thus, based on the terms of section 119.0701(1)(a), Florida
Statutes, the nature and scope of the services provided by a private contractor determine whether
he or she is `acting on behalf of an agency and thus, would be subject to the requirements of the
statute." AGO 14-06. For more information on when a private entity is determined to be "acting
on behalf of a public agency for purposes of s. 119.011(2), F.S., please refer to the preceding
discussion on pages 58-61.
In addition, contracts entered into or amended after July 1, 2016, must contain a
statement, in the form prescribed by the statute, providing the contact information for the public
agency's custodian of public records in the event that the contractor has questions about its
duty to provide public records relating to the contract. Section 119.0701(2) (a), F.S. A request
for records for records relating to the contract must be made directly to the public agency.
Section 119.0701(3)(a), F.S. If the public agency does not possess the requested records, the
public agency shall immediately notify the contractor of the request, and the contractor must
provide the records to the public agency or allow the records to be inspected or copied within a
reasonable time. Id. Sections 119.0701(3) and (4), F.S., establish consequences in the event of a
contractor's noncompliance.
Section 287.058(1)(c), F.S., provides, with limited exceptions, that every procurement for
contracted services by a state agency be evidenced by a written agreement containing a provision
allowing unilateral cancellation by the agency for the contractor's refusal to allow public access
to "all documents, papers, letters, or other material made or received by the contractor in
conjunction with the contract, unless the records are exempt" from disclosure.
(2) Legislative appropriation
Section 11.45 (3) (e), F.S., states that all records of a nongovernmental agency, corporation,
or person with respect to the receipt and expenditure of an appropriation made by the Legislature
to that entity "shall be public records and shall be treated in the same manner as other public
records are under general law" Cf. AGO 96-43 (Astronauts Memorial Foundation, a nonprofit
corporation, is subject to the Sunshine Law when performing those duties funded under the
General Appropriations Act).
(3) Public funds used for dues
Section 119.01(3), F.S., provides that if an agency spends public funds in payment of
dues or membership contributions to a private entity, then the private entity's financial, business
and membership records pertaining to the public agency are public records and subject to the
provisions of s. 119.07, F.S.
3. Judiciary
a. Public Records Act inapplicable to judicial records
Relying on separation of powers principles, the courts have consistently held that the
judiciary is not an "agency" for purposes of Ch. 119, F.S. See, e.g., Times Publishing Company
v. Ake, 660 So. 2d 255 (Fla. 1995) (the judiciary, as a coequal branch of government, is not
an "agency" subject to supervision or control by another coequal branch of government); and
Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). Cf. s. 119.0714(1), F.S., stating that "[n]othing
in this chapter shall be construed to exempt from [s. 119.07(1), F.S.] a public record that was
made a part of a court file and that is not specifically closed by order of court ...." (e. s.) And see
Tampa Television, Inc. v. Dugger, 559 So. 2d 397 (Fla. 1st DCA 1990) (Legislature has recognized
the distinction between documents sealed under court order and those not so sealed, and has
provided for disclosure of the latter only).
However, the Florida Supreme Court has expressly recognized that "both civil and criminal
proceedings in Florida are public events" and that it will "adhere to the well established common
law right of access to court proceedings and records." Barron v. Florida Freedom Newspapers, 531
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So. 2d 113, 116 (Fla. 1988). See also Russell v. Miami Herald Publishing Co., 570 So. 2d 979, 982
(Fla. 2d DCA 1990), in which the court stated: "[W]e recognize that the press has a general right
to access of judicial records."
b. Public access to and protection of judicial branch records, Fla. R. Jud. Admin. 2.420
(1) Scope of the rule
Although the judiciary is not an "agency" for purposes of Ch. 119, F.S., there is
a constitutional right of access to judicial records established by Art. I, s. 24, of the Florida
Constitution. In accordance with this directive, access to records of the judicial branch is governed
by Florida Rule of Judicial Administration 2.420 (formerly 2.051), entitled "Public Access to
and Protection of Judicial Branch Records." See 2.420(a), Fla. R. Jud. Admin., providing that
"[t]he public shall have access to all records of the judicial branch of government except as
provided [in the rule]." Cf. Morency v. State, 223 So. 3d 439 (Fla. 5th DCA 2017), noting that
"electronic records, videotapes, or stenographic tapes of depositions or other proceedings filed
with the clerk, and electronic records, videotapes or stenographic tapes of court proceedings" are
included within the scope of the rule.
According to the Florida Supreme Court, rule 2.420 is "intended to reflect the judiciary's
responsibility to perform both an administrative function and an adjudicatory function." In
re Amendments to the Florida Rules of judicial Administration --Public Access to judicial Records,
608 So. 2d 472 (Fla. 1992). In its administrative role, the judiciary is a governmental entity
expending public funds and employing government personnel. Thus, "records generated while
courts are acting in an administrative capacity should be subject to the same standards that
govern similar records of other branches of government." Id. at 472-473. See also Media General
Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008, 1016 (Fla.
2003) (when an individual complains to a chief circuit judge about judicial misconduct involving
sexual harassment or sexually inappropriate behavior by a judge, the records made or received
by the chief judge "constitute `judicial records' subject to public disclosure absent an applicable
exemption").
An online version of Fla. R. Jud. Admin. 2.420 is also available at: http://www.floridabar.org.
(2) Confidential judicial records
Rule 2.420(c)(1) through (6) contains a list of confidential and exempt judicial branch
records. Examples include trial and appellate court memoranda, complaints alleging misconduct
against judges and other court personnel until probable cause is established, periodic evaluations
implemented solely to assist judges in improving their performance, information (other than
names and qualifications) about persons seeking to serve as unpaid volunteers unless made public
by the court based upon a showing of materiality or good cause, and copies of arrest and search
warrants until executed or until law enforcement determines that execution cannot be made.
Rule 2.420(d)(1) provides that the clerk of court shall designate and maintain the
confidentiality of any information contained within a court record that is described in
subdivision (d) (1) (A) or (d) (1) (B) of the rule. Subdivision (A) references "information described
by any of the subdivisions (c)(1) through (c)(6)." Subdivision (B) contains a list of specific
statutory exemptions. And see Fla. R. Jud. Admin. 2.420(d)(2)-(5) establishing procedures for
filing material designated as confidential. Cf. s. 119.0714(2)(8), F.S., providing that the clerk of
court is not liable for the release of information that is required by the Florida Rules of Judicial
Administration to be identified by the filer as confidential if the filer fails to make the required
identification of the confidential information to the clerk.
Although Rule 2.420(c) (1)-(6) lists specific confidential and exempt records, subdivision (c)
(8) of the rule provides a general exemption from disclosure for records deemed to be confidential
by court rule, Florida Statutes, prior Florida case law, and by rules of the Judicial Qualifications
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Commission. See Florida Publishing Company v. State, 706 So. 2d 54 (Fla. 1st DCA 1998),
review dismissed, 717 So. 2d 531 (Fla. 1998) and State v. Buenoano, 707 So. 2d 714, 718 (Fla.
1998). In addition, Fla. R. Jud. Admin. 2.420(c)(7) provides an exemption for "all records made
confidential under the Florida and United States Constitutions and Florida and federal law"
Subdivision (c) (9) of rule 2.420 incorporates the holdings in Barron v. Florida Freedom
Newspapers, 531 So. 2d 113 (Fla. 1988), and Miami Herald Publishing Company v. Lewis, 426
So. 2d 1 (Fla. 1982) by "establishing that confidentiality [of court records] may be required to
protect the rights of defendants, litigants, or third parties; to further the administration of justice;
or to otherwise promote a compelling governmental interest." Commentary, In re Amendments
to Rule ofjudicialAdministration 2.051. --Public Access to Judicial Records, 651 So. 2d 1185, 1191
(Fla. 1995). The degree, duration, and manner of confidentiality ordered by the court shall be
no broader than necessary to protect these interests. Fla. R. Jud. Admin. 2.420(c)(9)(B). "The
burden of proof... shall always be on the party seeking closure." Barron, supra at 118.
Procedures for judicial determinations of requests for confidentiality of court records and
for obtaining access to confidential court records are referenced in rule 2.420(e) -(j). For example,
rule 2.420(f)(3) states that "any motion to determine whether a court record that pertains to a
plea agreement, substantial assistance agreement, or other court record that reveals the identity
of a confidential informant or active criminal investigative information is confidential under
subdivision (c) (9) (A) (i), (c) (9) (A)iii, (c) (9) (A) (v), or (c) (9) (A) (vii) of this rule may be made in the
form of a written motion captioned `Motion to Determine Confidentiality of Court Records."'
See also Fla. R. Jud. Admin. 2.425, governing the filing of sensitive personal information, and
establishing categories of personal information that must not be filed or must be truncated or
redacted before filing.
(3) Procedures for accessing judicial branch records under rule 2.420
"Requests and responses to requests for access to records under this rule shall be made in
a reasonable manner." Fla. R. Jud. Admin. 2.420(m). Requests must be in writing and directed
to the custodian. Id. See Morris Publishing Group, LLC v. State, 13 So. 3d 120 (Fla. 1st DCA
2009), in which the court denied a Florida newspaper's records request for an audio tape related
to a shooting since the request was made orally instead of in writing as required by the rule. In
a commentary to the decision incorporating the written request provision, the Court cautioned
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." Commentary, In re Report of the Supreme Court Workgroup on Public Records,
825 So. 2d 889, 898 (Fla. 2002).
A public records request "shall provide sufficient specificity to enable the custodian to
identify the requested records. The reason for the request is not required to be disclosed." Fla.
R. Jud. Admin. 2.420 (m) (1) .
The custodian "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."
Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898
(Fla. 2002).
The custodian shall determine whether the requested records are subject to the rule,
whether there are any exemptions, and the form in which the record is provided. Fla. R. Jud.
Admin. 2.420(m)(2). If the request is denied, the custodian shall state in writing the basis for
the denial. Id.
Expedited review of denials of access to administrative records of the judicial branch shall
be provided through an action for mandamus, or other appropriate relief. Fla. R. Jud. Admin.
2.420(1). See Jacobs Keeley, PLLC v. Chiefjudge of the Seventeenth judicial Circuit, 169 So. 3d 192
64
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(Fla. 4th DCA 2015).
C. Discovery material
The Florida Supreme Court has ruled that there is no First Amendment right of access
to unfiled discovery materials. Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987)
(discovery in criminal proceedings); and Miami Herald Publishing Company v. Gridley, 510 So. 2d
884 (Fla. 1987), cert. denied, 108 S.Ct. 1224 (1988) (civil discovery). Cf. Lewis v. State, 958 So.
2d 1027 (Fla. 5th DCA 2007) (Burk applies to a request for unfiled depositions made during an
ongoing, active criminal prosecution but does not extend to a defendant's request for deposition
transcripts after the conviction becomes final; such transcripts must be produced in accordance
with Ch. 119, ES.). And see SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796, 798
(Fla. 4th DCA 2002), noting that even though there is no constitutional right of access to prefiled
discovery materials, "it does not necessarily follow that there is a constitutional right to prevent
access to discovery." (emphasis supplied by the court).
Even though unfiled discovery material is not accessible under the First Amendment, it
may be open to inspection under Ch. 119, F.S., if the document is a public record which is
otherwise subject to disclosure under that law. See, e.g., Tribune Company v. Public Records, 493
So. 2d 480, 485 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503
So. 2d 327 (Fla. 1987), in which the court reversed a trial judge's ruling limiting inspection
of police records produced in discovery to those materials which were made part of an open
court file because "this conflicts with the express provisions of the Public Records Act." And see
Smithwick v. Television 12 ofjacksonville, Inc., 730 So. 2d 795 (Fla. 1st DCA 1999) (trial court
properly required defense counsel to return discovery documents once it realized that its initial
order permitting removal of the documents from the court file had been entered in error because
the requirements of rule 2.420 had not been met).
Thus, in Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988), the Court
noted that where pretrial discovery material developed for the prosecution of a criminal case
had reached the status of a public record under Ch. 119, F.S., the material was subject to public
inspection as required by that statute in the absence of a court order finding that release of the
material would jeopardize the defendant's right to a fair trial. See also Rameses, Inc. v. Demings, 29
So. 3d 418 (Fla. 5th DCA 2010) (government not precluded from asserting applicable statutory
exemptions to public records that have been disclosed during discovery to a criminal defendant).
And see Post -Newsweek Stations, Florida, Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (public's statutory
right of access to pretrial discovery information in a criminal case must be balanced against a
nonparty's constitutional right to privacy).
d. Florida Bar
"Given that The Florida Bar is `an official arm of the court,' see R. Regulating Fla. Bar,
Introduction, [the Florida Supreme] Court has previously rejected the Legislature's power to
regulate which Florida Bar files were subject to public records law ...:' The Florida Bar v.
Committee, 916 So. 2d 741, 745 (Fla. 2005). See also The Florida Bar, In re Advisory Opinion
Concerning the Applicability of Ch. 119, Florida Statutes, 398 So. 2d 446, 448 (Fla. 198 1) (Ch.
119, F.S., does not apply to unauthorized practice of law investigative files maintained by the
Bar). Cf. Florida Board of Bar Examiners Re: Amendments to the Rules of the Supreme Court of
Florida Relating to Admissions to the Bar, 676 So. 2d 372 (Fla. 1996) (no merit to argument that
under Art. I, s. 24, Fla. Const., all records in possession of Board of Bar Examiners should be
open for inspection by applicant and the public).
e. Judicial Qualifications Commission and judicial nominating commissions
Proceedings by or before the Judicial Qualifications Commission are confidential until
formal charges against a justice or judge are filed by the Commission with the clerk of the Florida
Supreme Court; upon a finding of probable cause and the filing of formal charges with the clerk,
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the charges and all further proceedings before the Commission are public. See Art. V, s. 12 (a) (4),
Fla. Const; Media General Convergence, Inc. v. Chief judge of the Thirteenth judicial Circuit, 840
So. 2d 1008 (Fla. 2003).
With regard to judicial nominating commissions, Art. V, s. I I A, Fla. Const., provides
that "[e]xcept for deliberations of the ... commissions, the proceedings of the commissions and
their records shall be open to the public." See Inf. Op. to Frost, November 4, 1987, concluding
that correspondence between a member of a judicial nominating commission and persons
wishing to obtain an application for a vacant seat on a District Court of Appeal is a public record
subject to disclosure.
However, records pertaining to voting, including vote sheets, ballots, and ballot tally sheets
are clearly part of the deliberation process" and, therefore, are not subject to public disclosure.
Justice Coalition v. The First District Court of Appeal judicial Nominating Commission, 823 So.
2d 185, 192 (Fla. 1st DCA 2002). In addition, personal notes of individual commission
members made during the deliberation process are not subject to disclosure because they are
mere "precursors" of governmental records, and thus fall outside the definition of "public record."
Id., citing Shevin v. Byron, Harless, Schaffer, Reid and Associates Inc., 379 So. 2d 633 (Fla. 1980).
f. Jury records
(1) Grand jury
Proceedings before a grand jury are secret; therefore, records prepared for use of the grand
jury during the regular performance of its duties are not subject to s. 119.07 (1), F.S. See Buchanan
v. Miami Herald Publishing Company, 206 So. 2d 465 (Fla. 3d DCA 1968), modified, 230 So. 2d
9 (Fla. 1969) (grand jury proceedings are "absolutely privileged"); and In re Grand jury, Fall Term
1986, 528 So. 2d 51 (Fla. 2d DCA 1988), affirming a trial court order barring public disclosure
of motions filed in accordance with s. 905.28, F.S., to repress or expunge stemming from a grand
jury presentment not accompanied by a true bill or indictment. See also AGO 90-48 (as an
integral part of the grand jury proceeding to secure witnesses, grand jury subpoenas would fall
under the "absolute privilege" of the grand jury and not be subject to disclosure under Ch. 119,
ES.).
Thus, a letter written by a city official to the grand jury is not subject to public inspection.
AGO 73-177. Similarly, a circuit court held that the list of grand jurors is confidential. Wood v.
Childers, No. 13 -CA -000877 (Fla. 1st Cir. Ct. April 16, 2013), per curiam affirmed, 130 So. 3d
1282 (Fla. Ist DCA 2014). Accord Inf. Op. to Alexander, September 8, 1995. However, the clerk
of court is not authorized to redact the name of a grand jury foreperson or the acting foreperson
from an indictment after it has been made public. AGO 99-09.
It is important to emphasize, however, that the exemption from disclosure for grand jury
records does not apply to those records which were prepared by a public agency independent
of a grand jury investigation. Thus, public records which are made or received by an agency
in the performance of its official duties do not become confidential simply because they are
subsequently viewed by the grand jury as part of its investigation. As the court stated in In re
Grand jury Investigation, Spring Term 1988, 543 So. 2d 757, 759 (Fla. 2d DCA 1989):
Nor can we allow the grand jury to become a sanctuary for records
which are otherwise accessible to the public. The mere fact that
documents have been presented to a grand jury does not, in and
of itself, cloak them in a permanent state of secrecy.
Accordingly, a state attorney and sheriff must provide public access to investigative records
regarding a judge that were compiled independently of and prior to a grand jury's investigation
of the judge. In re Grand Jury Investigation, Spring Term 1988, supra. See also In re Subpoena To
Testify Before Grand jury, 864 F.2d 1559 (11th Cir. 1989) (trial court's authority to protect grand
jury process enabled court to prevent disclosure of materials prepared for grand jury proceedings;
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however, court not empowered to prohibit disclosure of documents assembled independent of
grand jury proceedings).
There are a number of statutes which relate to secrecy of grand jury proceedings. See ss.
905.24-905.28, F.S., and s. 905.395, F.S. (statewide grand jury). But see Butterworth v. Smith,
110 S.Ct. 1376 (1990) (provisions of s. 905.27, F.S., which prohibit "a grand juror ... reporter
... or any other person" appearing before a grand jury from ever disclosing testimony before
the grand jury except pursuant to a court order were unconstitutional insofar as they prohibit a
grand jury witness from disclosing his own testimony after the term of the grand jury has ended).
(2) Trial jury
In Kever v. Gilliam, 886 So. 2d 263 (Fla. 1st DCA 2004), the appellate court ruled that
the clerk of court was required to comply with appellant's public records request for names and
addresses of trial court jurors empanelled in his trial. Accord AGO 05-61 (statute requiring
Department of Highway Safety and Motor Vehicles to provide driver license information to
courts for purposes of establishing jury selection lists does not operate to exempt from public
disclosure jurors' names and addresses appearing on a jury list compiled by the clerk of court).
Cf. Sarasota Herald -Tribune v. State, 916 So. 2d 904, 909 (Fla. 2d DCA 2005) (while "[t]here are
unquestionably times when it might be necessary for a trial judge to impose media restrictions
on the publication of juror information, ..." trial court order prohibiting news media from
publishing names and addresses of prospective or seated jurors in the high profile murder trial
constituted a prior restraint on speech); and WPTV-TV v. State, 61 So. 3d 1191 (Fla. 5th DCA
2011) (given exceptional media coverage and public interest in upcoming criminal trial, trial
court's decision to withhold location of jury selection until a time proximate to the start of the
trial was not a material departure from essential requirements of law).
g. Sunshine in Litigation Act
The Sunshine in Litigation Act, s. 69.081, F.S., provides, with limited exceptions, that no
court shall enter an order or judgment which has the purpose or effect of concealing a public
hazard or which has the purpose or effect of concealing any information which may be useful
to members of the public in protecting themselves from injury which may result from a public
hazard. See State v. American Tobacco Company, No. CL 95 -1466 -AH (Fla. 15th Cir. Ct. July 28,
1997) (upholding constitutionality of Sunshine in Litigation Act).
Additionally, s. 69.081(8), F.S., provides, subject to certain exceptions, that any portion of
an agreement which has the purpose or effect of concealing information relating to the settlement
or resolution of any claim or action against an agency is void, contrary to public policy, and may
not be enforced. Settlement records must be maintained in compliance with Ch. 119, F.S. See
Inf. Op. to Barry, June 24, 1998 (agency not authorized to enter into a settlement agreement
authorizing the concealment of information relating to an adverse personnel decision from the
remainder of a personnel file.
A governmental entity, except a municipality or county, settling a claim in tort which
requires the expenditure of more than $5,000 in public funds, is required to provide notice
pursuant to Ch. 50, F.S., of the settlement in the county in which the claim arose within 60 days
of entering into the settlement. No notice is required if the settlement has been approved by a
court of competent jurisdiction. Section 69.081(9), F.S.
4. Legislature
The Public Records Act does not apply to the legislative branch. Locke v. Hawkes, 595
So. 2d 32 (Fla. 1992) (definition of "agency" in the Public Records Act does not include the
Legislature or its members). There is, however, a constitutional right of access to legislative
records provided in Art. I, s. 24, Fla. Const., which provides that "[e]very person has the right
to inspect or copy any public record made or received in connection with the official business
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of any public body ...." This right of access specifically includes the legislative branch. Article
I, s. 24(a), Fla. Const. The Legislature, however, may provide by general law for the exemption
of records provided that such law must state with specificity the public necessity justifying the
exemption and be no broader than necessary to accomplish the stated purpose of the law. Article
I, s. 24(c), Fla. Const. Each house of the Legislature is authorized to adopt rules governing the
enforcement of this section for records of the legislative branch. Id. Any statutes providing
limitations on access which were in effect on July 1, 1993, continue in force and apply to records
of the legislative branch until repealed. Article I, s. 24(d), Fla. Const.
In accordance with Art. 1, s. 24(c), Fla. Const., the Senate and House of Representatives
have adopted rules relating to records of the legislative branch. These rules may be accessed
online at www.flsenate.gov (Florida Senate) and www.myfloridahouse.gov (Florida House of
Representatives).
In addition, s. 11.0431(2), F.S., lists legislative records which are exempt from inspection
and copying. The text of s. 11.043 1, F.S., is set forth in Appendix E. See League of Women Voters v.
Florida House of Representatives, 132 So. 3d 135, 153 (Fla. 2013) ("We agree that the first issue to
be decided is whether the draft [apportionment] plans fall within the scope of the public records
exemption in section 11.0431 [2] [e], Florida Statutes [2012], and that this exemption should
be strictly construed in favor of disclosure"). And see s. 11.26(1), F.S. (legislative employees are
forbidden from revealing to anyone outside the area of their direct responsibility the contents or
nature of any request for services made by any member of the Legislature except with the consent
of the legislator making the request); and s. 15.07, F.S. (the journal of the executive session of the
Senate shall be kept free from inspection or disclosure except upon order of the Senate itself or
some court of competent jurisdiction).
5. Governor and Cabinet
The Governor and Cabinet have duties which derive from both the Constitution and the
Legislature. Because of separation of powers principles, the legislatively created Public Records
Act does not apply to records gathered in the course of carrying out a specific duty or function
which has been assigned to the Governor and Cabinet by the Constitution rather than by statute.
See AGO 86-50, stating that materials collected by the former Parole and Probation Commission
[now known as the Florida Commission on Offender Review] pursuant to direction of the
Governor and Cabinet for pardons or other forms of clemency authorized by Art. IV, s. 8(a), Fla.
Const., are not subject to Ch. 119, F.S.
The Public Records Act, however, does apply to the Governor and Cabinet when sitting
in their capacity as a board created by the Legislature or whose powers are prescribed by the
Legislature, such as the Board of Trustees of the Internal Improvement Trust Fund. In such
cases, the Governor and Cabinet are not exercising powers derived from the Constitution but are
subject to the "dominion and control' of the Legislature.
In addition, Art. I, s. 24, Fla. Const., establishes a constitutional right of access by
providing that "every person' shall have a right of access to public records of the executive branch
and of "each constitutional officer, board, and commission, or entity created pursuant to law or
this Constitution' except as otherwise provided in this section or specifically made confidential
in the Constitution.
6. Commissions created by the Constitution
A board or commission created by the Constitution is not subject to Ch. 119, F.S.,
inspection requirements when such board or commission is carrying out its constitutionally
prescribed duties. Cf. Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (judicial
nominating commissions are not subject to s. 286.011, ES.); and AGO 77-65 (Ch. 120, F.S.,
is inapplicable to Constitution Revision Commission established by Art. XI, s. 2, Fla. Const.,
because the commission is authorized in that section to adopt its own rules of procedure).
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
Accordingly, the Public Records Act does not apply to the clemency investigative files
and reports produced by the Florida Commission on Offender Review [formerly the Parole
Commission] on behalf of the Governor and Cabinet relating to the granting of clemency; release
of such materials is governed by the Rules of Executive Clemency adopted by the Governor and
Cabinet, sitting as the clemency board. Parole Commission v. Lockett, 620 So. 2d 153 (Fla. 1993).
Accord Jennings v. State, 626 So. 2d 1324 (Fla. 1993). And see AGO 86-50.
There is, however, a difference between the status of a commission created by the
Constitution which exercises constitutional duties and a commission whose creation is merely
authorized by the Constitution and whose duties are established by law. While the former is
not subject to the Public Records Act, it has been held that a commission performing duties
assigned to it by the Legislature must comply with the open government laws. See Turner v.
Wainwright, 379 So. 2d 148 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla.
1980), holding that the Parole Commission [now known as the Florida Commission on Offender
Review] which Art. IV, s. 8(c), Fla. Const., recognizes may be created by law, is subject to s.
286.011, F.S., in carrying out its statutory duties and responsibilities relating to parole.
Moreover, Art. I, s. 24, Fla. Const., provides a constitutional right of access for public
records of each branch of government, and "each constitutional officer, board, and commission,
or entity created pursuant to law or this Constitution." The only exceptions to the right of
access are those records exempted pursuant to s. 24 or specifically made confidential by the
Constitution. Article I, s. 24(a), Fla. Const. See King v. State, 840 So. 2d 1047 (Fla. 2003)
(clemency records exempt pursuant to s. 14.28, F.S., providing that records made or received
by any state entity pursuant to a Board of Executive Clemency investigation are not subject to
public disclosure).
C. WHAT RECORDS ARE COVERED? APPLICATION OF THE PUBLIC RECORDS
ACT TO:
This section discusses the application of the Public Records Act to various records made
or received by agencies in the course of official business. Many, but not all of the statutory
exemptions to disclosure for particular records or information are also referenced. For a more
complete listing of statutory exemptions, please refer to Appendices C and D and the Index.
1. Adoption and birth records
Except for birth records over 100 years old which are not under seal pursuant to court order,
all birth records are considered to be confidential documents and exempt from public inspection;
such records may be disclosed only as provided by law. Section 382.025(1), F.S.; AGO 74-70.
Cf. s. 383.51, F.S. (the identity of a parent who leaves a newborn infant at a hospital, emergency
medical services station, or fire station in accordance with s. 383.50, F.S., is confidential).
Adoption records are also confidential and may not be disclosed except as provided in s.
63.162, F.S. An unadopted individual, however, has the right to obtain his or her birth records
which include the names of the individual's parents from the hospital in which he or she was
born. Atwell v. Sacred Heart Hospital of Pensacola, 520 So. 2d 30 (Fla. 1988).
In the absence of court order issued for good cause shown, the name and identity of a birth
parent, an adoptive parent, or an adoptee may not be disclosed unless the birth parent authorizes
in writing the release of his or her name; the adoptee, if 18 or older, authorizes in writing the
release of his or her name; or, if the adoptee is less than 18, written consent is obtained from an
adoptive parent to disclose the adoptee's name; or the adoptive parent authorizes in writing the
release of his or her name. Section 63.162(4), F.S. And see s. 63.165(1), F.S. (state adoption
registry); and s. 63.0541, F.S. (putative father registry).
2. Autopsy and death records
a. Autopsy reports
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Autopsy reports made by a district medical examiner pursuant to Ch. 406, F.S., are public
records and are open to the public for inspection in the absence of an exemption. AGO 78-23.
And see Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775, 777 (Fla. 4th DCA 1985),
review denied, 488 So. 2d 67 (Fla. 1986), noting that a former statutory exemption precluding
release of autopsy reports had been repealed. Cf. Church of Scientology Flag Service Org., Inc. v.
Wood, No. 97-688CI-07 (Fla. 6th Cir. Ct. February 27, 1997) (physical specimens relating to an
autopsy are not public records).
Although autopsy reports are subject to Ch. 119, F.S., "[d]ocuments or records made
confidential by statute do not lose such status upon receipt by the medical examiner." AGO 78-
23. See Church of Scientology Flag Service Org., Inc. v. Wood, supra (predeath medical records in
the possession of the medical examiner are not subject to public inspection).
In addition, statutory exemptions from disclosure, such as the exemption for active
criminal investigative information, may apply to an autopsy report. AGO 78-23. See Williams
v. City ofMinneola, 575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991),
noting the application of the active criminal investigative information exemption to information
contained in autopsy records.
b. Autopsy photographs and recordings
Section 406.135(2), F.S., provides that a photograph or video or audio recording of an
autopsy held by a medical examiner is confidential and may not be released except as provided by
court order or as otherwise authorized in the exemption. SeeAGOs 03-25 and 01-47, discussing
the circumstances under which autopsy photographs and recordings may be viewed or copied.
And see Inf. Op. to Lynn, July 25, 2007 (exemption applies to photographs and recordings taken
or made by the medical examiner as a part of the autopsy process, including those taken before,
during, and after the medical examiner performs the actual autopsy procedure). Cf. Campus
Communications, Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2002), review denied, 848 So.
2d 1153 (Fla. 2003) (upholding trial court finding that newspaper failed to establish good cause
for release of autopsy photographs of race car driver). Compare Sarasota Herald -Tribune v. State,
924 So. 2d 8, 14 (Fla. 2d DCA 2005), review denied, 918 So. 2d 293 (Fla. 2005), cert. dismissed,
126 S. Ct. 1139 (2006), in which the district court reversed a trial court order that had barred
the media from viewing autopsy photographs that were admitted into evidence in open court
during a murder trial; according to the appellate court, s. 406.135, F.S., "does not render these
court exhibits confidential." (e.s.)
C. Photographs, video and audio recordings that depict or record the killing of a law
enforcement officer
A photograph or video or audio recording that depicts or records the killing of a law
enforcement officer acting in accordance with his or her official duties is confidential and exempt
from s. 119.07(1), F.S., and may not be disclosed except as authorized in the exemption. Section
406.136, F.S. For more information on this exemption, please refer to the discussion on page
118.
d. Death certificates
Information relating to cause of death in all death and fetal death records, and the parentage,
marital status, and medical information of fetal death records are confidential and exempt
from s. 119.07(1), F.S., except for health research purposes as approved by the Department of
Health. Section 382.008(6), F.S. And see s. 28.2221(5)(a), F.S. (clerk of court not authorized
to place certain records, including death certificates, on a publicly available Internet website); s.
382.008(8), F.S. (confidential information in nonviable birth certificates).
Section 382.025(2) (a), F.S., provides for the Department of Heath to authorize the issuance
of a certified copy of all or part of a death or fetal death certificate, excluding the portion that
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is confidential pursuant to s. 382.008, F.S., upon payment of the fee prescribed by that section.
The statute also specifies those persons and governmental agencies authorized to receive a copy of
a death certificate that includes the confidential portions. All portions of a death certificate cease
to be exempt 50 years after the death. Section 382.025(2)(b), F.S.
3. Child and vulnerable adult abuse and protection records
a. Department of Children and Families abuse records
(1) Confidentiality of abuse records
Generally, reports of abused children or vulnerable adults which are received by the
Department of Children and Families (DCF) are confidential and exempt from disclosure, except
as expressly provided by statute. See ss. 39.202(1) and 415.107(1), F.S.
Thus, a union representative may not attend that portion of an investigatory interview
between the DCF inspector general and an employee requiring the discussion of information
taken from a child abuse investigation that is confidential under s. 39.202, F.S. AGO 99-42. And
see s. 383.412(2)(b), F.S., providing that any information held by the State Child Abuse Death
Review Committee or a local committee which reveals the identity of a deceased child whose
death has been reported to the central abuse hotline but determined not to be the result of abuse
or neglect, or which reveals the identity of the surviving siblings, family members, or others living
in the home of such deceased child is confidential and exempt from disclosure requirements. In
addition, the identity of the surviving siblings of a deceased child whose death occurred as the
result of a verified report of abuse or neglect is confidential. Section 383.412(2)(a), F.S.
All records and reports of the child protection team of the Department of Health are
confidential and exempt, and shall not be disclosed, except, upon request, to the state attorney,
law enforcement, DCF, and necessary professionals in furtherance of the treatment or additional
evaluative needs of the child, by court order, or to health plan payors, limited to that information
used for insurance reimbursement purposes. Section 39.202(6), F.S.
(2) Release of abuse records
Section 39.2021 (1), F.S., authorizes any person or organization, including DCF, to
petition the court to make public DCF records relating to its investigation into alleged abuse,
neglect, exploitation or abandonment of a child. The court shall determine if good cause exists
for public access to the records and is required to balance the best interest of the child and the
interests of the child's siblings, together with the privacy rights of other persons identified in the
reports against the public interest. Id.
This "balancing process" thus "requires the trial court to weigh the harm to the child
against the benefit to the public that would potentially result from the disclosure of the records
at issue." In re Records of the Department of Children and Family Services, 873 So. 2d 506, 513
(Fla. 2d DCA 2004). To perform this function, the trial court must conduct an in camera
review because "[i]t is impossible to judge the potential impact of the disclosure of information
contained in records without knowing what that information is." Id. at 514. But see Department
of Health and Rehabilitative Services v. Gainesville Sun Publishing Company, 582 So. 2d 725 (Fla.
1st DCA 1991), holding that the trial court was not required to hold a hearing before finding
good cause to release the department's records relating to a child abuse investigation, where
shortly after the department's investigation, the individual who had been investigated killed the
victim, the victim's family, and himself. Cf. Records of the Children's Advocacy Center of Southwest
Florida Relating to Michele Fontanez, No. 06 -DR -001850 (Fla. 20th Cir. Ct. June 16, 2006)
(newspaper granted access to records of child protection team relating to child in care of DCF
who died from injuries sustained from a sexual battery allegedly committed by her stepfather).
In cases involving serious bodily injury to a child, DCF may petition the court for immediate
public release of records pertaining to the protective investigation. Section 39.2021(2), F.S. The
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court has 24 hours to determine if good cause exists for public release of the records. If no action
is taken by the court in that time, DCF may, subject to specified exceptions, release summary
information including a confirmation that an investigation has been conducted concerning the
victim, the dates and a brief description of procedural activities undertaken in the investigation,
and information concerning judicial proceedings. Id.
Similar procedures are established in Ch. 415, F.S., for access to DCF records relating to
investigations of alleged abuse, neglect, or exploitation of a vulnerable adult. See s. 415.1071, F.S.
The petitioner seeking public access to the records must formally serve DCF with the
petition. Florida Department of Children and Families v. Sun -Sentinel, 865 So. 2d 1278 (Fla.
2004). A "very narrow" exception to the home venue privilege applies when a petition is filed
seeking to make DCF records public. See Sun -Sentinel, supra, at 1289, adopting the exception in
cases "where a party petitions the court for an order to gain access to public records, and where
the records sought are by law confidential and cannot be made public without a determination
by the court, pursuant to the petition, that good cause exists for public access."
Section 39.202(2)(0), F.S., provides that access to child abuse records shall be granted to
any person in the event of the child's death due to abuse, abandonment, or neglect. However, any
information identifying the person reporting abuse, abandonment, or neglect, or any information
that is otherwise made confidential or exempt by law shall not be released. Id. Section 415.107(3)
(1), F.S., provides for similar release of records in the event of the death of a vulnerable adult. And
see s. 39.202(4), F.S., authorizing DCF and the investigating law enforcement agency to release
certain identifying information to the public in order to help locate or protect a missing child
under investigation or supervision of the department or its contracted service providers.
In addition, "it is the intent of the Legislature to provide prompt disclosure of the basic
facts of all deaths of children from birth through 18 years of age which occur in this state and
which are reported to the [DCF] central abuse hotline." Section 39.2022(1), F.S. Disclosure
shall be posted on the DCF public website. Id. Section 39.2022(2), F.S., lists the information
about the child which must be posted.
b. Foster home, licensure and quality assurance records
Records relating to licensure of foster homes, or assessing how the Department of Children
and Families is carrying out its duties, including references to incidents of abuse, abandonment,
or neglect, contained in such records, do not fall within the parameters of s. 39.202, F.S. AGO
01-54. Such reports are in the nature of quality assurance reports that do not substitute for the
protective investigation of child abuse, abandonment, or neglect; to the extent that such incident
reports reference an occurrence of abuse, abandonment, or neglect, identifying information
that reveals the identity of the victim contained in the reference should be redacted. Id. Cf. s.
409.175(16), F.S., providing an exemption for certain personal information about licensed foster
parents, foster parent applicants, and their families. And see Boyles v. Mid -Florida Television Corp.,
431 So. 2d 627, 637 (Fla. 5th DCA 1983), approved, 467 So. 2d 282 (Fla. 1985) (summary
report compiled during a licensing investigation of a residential facility for developmentally
disabled persons, subject to disclosure pursuant to statute [now found at s. 393.067(9), F.S.]
providing for public access to inspection reports of such facilities).
C. Guardians ad litem and court monitors
Section 39.0132(4)(a)2., F.S., establishes confidentiality for specified information held by
a guardian ad litem. And see s. 744.2104(2), F.S. (confidentiality of records held by the Office of
Public and Professional Guardians relating to the medical, financial, or mental health of vulnerable
adults, persons with a developmental disability, or persons with a mental illness); s. 744.1076(1)
(b), F.S. (except as provided in the exemption, reports of court monitors or emergency court
monitors which relate to the medical condition, financial affairs, or mental health of the ward are
confidential); s. 744.2103 (2), F.S. (no disclosure of the personal or medical records of a ward of
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a public guardian shall be made, except as authorized by law); and s. 744.370 1, F.S. (court records
relating to settlement of a ward or minor's claim).
d. Status of abuse records held by law enforcement agencies
For information regarding the status of abuse records held by law enforcement agencies
in the course of a criminal investigation, please refer to the discussion in s. C. 15 relating to law
enforcement records.
4. Direct -support organizations
Direct -support organizations established by or pursuant to law to support the efforts of
public agencies have been found to be subject to the open government laws. See AGOs 92-53
(John and Mable Ringling Museum of Art Foundation, Inc., established pursuant to statute as a
not-for-profit corporation to assist the museum in carrying out its functions must comply with
open government laws), 11-01 (nonprofit corporation created by municipality and described
as its "fundraising arm" subject to open government laws); and 05-27 (Sunshine Law applies to
Florida College System institution [formerly community college] direct -support organization
as defined in s. 1004.70, ES.). Cf. s. 20.058, F.S., requiring that citizen support organizations
or direct -support organizations created or authorized by law or executive order and created,
approved, or administered by an agency must submit specified information to the agency which
shall then post the information on the agency's website.
However, the Legislature has enacted exemptions for information identifying donors to
certain direct -support organizations. For example, the identity of donors to a direct -support
organization of a district school board, and all information identifying such donors and
prospective donors, are confidential and exempt from the provisions of s. 119.07(1), F.S.; that
anonymity is required to be maintained in the auditor's report. See s. 1001.453(4), F.S.
More commonly, however, the statutory exemption applies only to the identity of donors
who wish to remain anonymous. See, e.g., s. 570.691(6), F.S. (identity of a donor or prospective
donor to the direct -support organizations authorized to support programs in the Department
of Agriculture and Consumer Services "who desires to remain anonymous and all information
identifying such donor or prospective donor" is confidential). Cf. s. 265.7015, F.S. (if the donor
or prospective donor of a donation made for the benefit of a publicly owned performing arts
center desires to remain anonymous, information that would identify the name, address, or
telephone number of that donor or prospective donor is confidential and exempt).
The identity of donors to a university direct -support organization who wish to remain
anonymous shall be protected, and that anonymity shall be maintained in the auditor's report
of the organization. Section 1004.28(5)(a), F.S. Other than the auditor's report, management
letter, any records related to the expenditure of state funds, and any financial records related to
the expenditure of private funds for travel, all records of a university direct -support organization
and any supplemental data requested by the Board of Governors, the Auditor General, board of
trustees, and the Office of Program Policy Analysis and Government Accountability [OPPAGA]
are confidential and exempt from s. 119.07(1), F.S. Section 1004.28(5)(b), F.S.
By contrast, s. 1004.70(6), F.S., provides that records of the Florida College System
institution direct -support organizations other than the auditor's report, any information
necessary for the auditor's report, any information related to the expenditure of funds, and any
supplemental data requested by the board of trustees, the Auditor General, and OPPAGA, are
confidential and exempt from s. 119.070), F.S. See Palm Beach Community College Foundation,
Inc. v. WF7'V, 611 So. 2d 588 (Fla. 4th DCA 1993) (direct -support organization's expense records
are public records subject to deletion of donor -identifying information).
For more information on exemptions for particular direct -support or citizen -support
organizations, please consult Appendix D or the Index.
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5. Domestic violence and stalking records
Information about clients received by the Department of Children and Families or by
authorized persons employed by or volunteering services to a domestic violence center, through
files, reports, inspection or otherwise, is confidential and exempt from disclosure except as
provided by statute. Section 39.908, F.S. Information about the location of domestic violence
centers and facilities is also confidential. Id.
A petitioner seeking an injunction for protection against domestic violence may furnish
the petitioner's address to the court in a separate confidential filing for safety reasons. Section
741.30(3)(b), F.S. Andseess. 741.30(8)(c)5. 784.0485(3)(b), 784.046(8)(c)5., F.S. In addition,
a petition for an injunction for protection against domestic violence, repeat violence, dating
violence, sexual violence, stalking, or cyberstalking that is dismissed without a hearing, dismissed
at an ex parte hearing due to a failure to state a claim or lack of jurisdiction, or dismissed for any
reason having to do with the sufficiency of the petition itself without an injunction being issued
on or after July 1, 2017, is exempt from disclosure. Section 119.0714(1)(k) L, F.S. Prior to July
1, 2017, the petition is exempt only upon request by an individual named in the petition as a
respondent. Section 119.0714(1)(k)2., F.S.
A victim of domestic violence or aggravated stalking may file a written request, accompanied
by official verification that a crime has occurred, to have his or her home or employment address,
home or employment telephone number, or personal assets exempted from disclosure. Section
119.071(2) (j)1., F.S. For more information on this exemption, please refer to the discussion on
pages 115-116. Andsee s. 741.313(7), F.S. (personal identifying information contained in records
documenting an act of domestic violence or sexual violence that is submitted to an agency by
an employee seeking to take leave under the requirements of s. 741.313, F.S., is confidential and
exempt; a written request for leave submitted by an employee and an agency time sheet reflecting
such request are confidential and exempt until 1 year after the leave has been taken). See also s.
787.03(6)(c), F.S. (current address and telephone number of the person taking the minor or
incompetent person when fleeing from domestic violence and the current address and telephone
number of the minor or incompetent person which are contained in the report made to a sheriff
or state attorney under s. 787.03[6] [b], F.S., are confidential and exempt from disclosure).
The addresses, telephone numbers, and social security numbers of participants in the
Address Confidentiality Program for Victims of Domestic Violence Program [Program] are
exempt from disclosure, except as provided in the exemption. Section 741.465(1), F.S. A similar
exemption is provided for the names, addresses, and telephone numbers of program participants
contained in voter registration and voting records. Section 741.465(2), F.S. And see s. 741.4651,
F.S. (names, addresses, and telephone numbers of persons who are victims of stalking or
aggravated stalking are exempt from public disclosure requirements in the same manner that
the names, addresses and telephone numbers of participants in the Program which are held by
the Attorney General under s. 741.465, ES, are exempt, provided that the victim files a sworn
statement of stalking with the Office of the Attorney General and otherwise complies with the
procedures in ss. 741.401-741.409. ES.).
Any information in a record created by a domestic violence fatality review team that reveals
the identity of a domestic violence victim or the identity of the victim's children is confidential
and exempt from disclosure. Section 741.3165, F.S.
6. Drafts and notes
There is no "unfinished business" exception to the public inspection and copying
requirements of Ch. 119, F.S. As the Florida Supreme Court stated in Shevin v. Byron, Harless,
Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980), the term "public record"
means "any material prepared in connection with official agency business which is intended to
perpetuate, communicate, or formalize knowledge of some type." Such material is a "public
record" regardless of whether it is in final form or the ultimate product of an agency. Id.
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Thus, " [i] nteroffice 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." 379 So. 2d at 640. See also Booksmart Enterprises, Inc. v. Barnes &Noble College
Bookstores, Inc., 718 So. 2d 227, 229 (Fla. 3d DCA 1998) (book selection forms completed by
state university instructors and furnished to campus bookstore "are made in connection with
official business, for memorialization and communication purposes" and are public records);
and National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201, 1207 (Fla. 1st
DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010) (transcript and response prepared as part
of NCAA disciplinary proceeding involving state university were public records because the
"the purpose of the transcript was to perpetuate the information presented to the infractions
committee" and the response "was designed to communicate information to the body that would
hear the appeal within the NCAA"). Compare Rogers v. Hood, 906 So. 2d 1220, 1223 (Fla. 1st
DCA 2005), review denied, 919 So. 2d 436 (Fla. 2005) (unused or unvoted Florida punch card
ballots from 2000 election do not constitute public records because they do not "perpetuate,
communicate, or formalize knowledge," but a ballot becomes a public record once it is voted
because at that point "the voted ballot, as received by the supervisor of elections in a given county,
has memorialized the act of voting").
Accordingly, any agency record, if circulated for review, comment or information, is a
public record regardless of whether it is an official expression of policy or marked "preliminary"
or "working draft" or similar label. Examples of such materials include interoffice memoranda,
preliminary drafts of agency rules or proposals which have been submitted for review to anyone
within or outside the agency, and working drafts of reports which have been furnished to a
supervisor for review or approval.
In each of these cases, the fact that the records are part of a preliminary process does not
remove them from the definition of "public record." When material falls within the statutory
definition of "public record" in s. 119.011(12), F.S., and has been prepared to "perpetuate,
communicate or formalize knowledge," the record is subject to disclosure even if the agency
believes that release of the nonfinal product could be detrimental. See, e.g., Gannett Corporation,
Inc. v. Goldtrap, 302 So. 2d 174 (Fla. 2d DCA 1974) (county's concern that premature disclosure
of a report could be harmful to the county does not make the document confidential). As with
other public records, only the Legislature has the authority to exempt preliminary or draft public
records from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979).
See, e.g., s. 119.071(1) (d), F.S., providing a limited work product exemption for agency attorneys.
While the broad definition of the term "public record" ensures that the public's right of
access includes preliminary and nonfinal records, the Shevin decision recognizes that not every
record made or received in the course of official business is prepared to "perpetuate, communicate
or formalize knowledge." Accordingly, preliminary drafts or notes prepared for the personal use
of the writer may constitute mere "precursors" of public records if they are not intended to be
the final evidence of the knowledge recorded. See Shevin v. Byron, Harless, Schaffer, Reid and
Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). And see the discussion of "attorney notes" on
pages 124-125.
Thus, public employees' notes to themselves "which are designed for their own personal use
in remembering certain things do not fall within the definition of `public record."' (e.s.) justice
Coalition v. The First District Court of Appeal judicial Nominating Commission, 823 So. 2d 185,
192 (Fla. 1st DCA 2002). Accord Coleman v. Austin, 521 So. 2d 247 (Fla. Ist DCA 1988),
holding that preliminary handwritten notes prepared by agency attorneys and intended only
for the attorneys' own personal use are not public records. See also AGO 10-55 (handwritten
personal notes taken by city manager to assist in remembering matters discussed during manager's
interviews of city employees are not public records "if the notes have not been transcribed or
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shown to others and were not intended to perpetuate, communicate, or formalize knowledge");
and Inf. Op. to Trovato, June 2, 2009 (to the extent city commissioner has taken notes for his
own personal use and such notes are not intended to perpetuate, communicate, or formalize
knowledge, personal notes taken at a workshop or during a commission meeting would not be
considered public records). Compare Barfield v. City of Sarasota, 21 E L.W. Supp 874 (Fla. 12th
Cir. Ct. May 5, 2014) (those portions of police officer's notes containing his research on homeless
shelters became a public record when he made multiple references to them while answering
questions during a presentation at a city commission meeting; however the unread portions of
the notes did not become a public record because they were not disseminated).
The relevant test is whether the records have been prepared to "perpetuate, communicate,
or formalize knowledge of some type." See AGO 05-23, stating that "it is only uncirculated
materials that are not in and of themselves intended to serve as the final evidence of the
knowledge to be recorded that fall outside of the definition of a public record." Accord AGOs
10-55 ("nonfinal documents need not be communicated to anyone in order to constitute a public
record") and 04-15 (tape recordings of staff meetings made at the request of the executive director
by a secretary for use in preparing minutes of the meeting are public records because "they are
made at the request of the executive director as an independent record of the proceedings, and,
unlike tapes or notes taken by a secretary as dictation, are intended to perpetuate the discussion
at a staff meeting"). See also Inf. Op. to Yoder, November 10, 2014 (video recording of a school
board meeting which was made at the direction of a school board member "appears to be a record
intended to perpetuate the discussion at the meeting").
For example, in Miami Herald Media Co. v. Sarnof, , 971 So. 2d 915 (Fla. 3d DCA 2007),
the court held that a memorandum prepared by a city commissioner after a meeting with a former
city official, summarizing details of what was said and containing alleged factual information
about possible criminal activity, was a public record subject to disclosure. The court determined
that the memorandum was not a draft or a note containing mental impressions that would later
form a part of a government record, but rather formalized and perpetuated his final knowledge
gained at the meeting. See also Grapski v. City of Alachua, 31 So. 3d 193, 197 (Fla. 1st DCA
2010), review denied, 47 So. 3d 1288 (Fla. 2010) (canvassing board minutes constitute "final
work product of the [b]oard, not a preliminary draft or note"); City of Pinellas Park, Florida v.
Times Publishing Company, No. 00-008234CI-19 (Fla. 6th Cir. Ct. January 3, 2001) (rejecting
city's argument that employee responses to survey are "notes" which are not subject to disclosure
because "as to each of the employees, their responses were prepared in connection with their
official agency business and they were `intended to perpetuate, communicate, or formalize
knowledge' that they had about their department"); and AGO 05-23 (handwritten notes taken
by an assistant city labor attorney during her interviews with city personnel that were reviewed
by the city's labor attorney, used to prepare a disciplinary action form, and then filed, constituted
a public record).
7. Education records
a. Charter schools
Section 1002.33(16)(b), F.S., provides that charter schools are subject to the Public
Records Act and the Sunshine Law. The open government laws apply regardless of whether the
charter school operates as a public or private entity. AGO 98-48. The records and meetings of
a not-for-profit corporation granted charter school status are subject to the requirements of Ch.
119, F.S., and s. 286.011, F.S., even though the charter school has not yet opened its doors to
students. AGO 01-23. And see AGO 2010-14 (records of team created by charter school to
review personnel decisions subject to Ch. 119, F.S.).
b. Student records
Public access to student records is limited by statute. In 2009, the Legislature amended the
state statutes relating to student records to incorporate the federal Family Education Rights and
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Privacy Act (FERPA). Section 1002.221 (1), F.S., provides that "[e]ducation records as defined in
[FERPA], and the federal regulations issued pursuant thereto, are confidential and exempt" from
public disclosure and may be released only as authorized in the exemption. "Education records"
are defined by FERPA to mean "those records, files, documents, and other materials which
contain information directly related to a student; and are maintained by an educational agency
or institution or by a person acting for such agency or institution." 20 U.S.C. s. 1232g(a)(4)
(A). Cf. AGO 10-04 (school board meeting at which student records may be discussed may not
be closed to the public in the absence of a statutory exemption from the Sunshine Law; however,
"school board should be sensitive to confidential student records that may be reviewed during
such a meeting and protect these records to the extent that is possible to protect the privacy
of the student involved ...."). Compares. 1003.57(1)(c), F.S., providing an exemption from
the Sunshine Law for hearings on exceptional student identification, evaluation, and eligibility
determination; and s. 1006.07(1)(a), F.S. (student expulsion hearings exempted).
Public postsecondary educational institutions are also required to comply with FERPA
with respect to the education records of students. Section 1002.225(2), F.S. Section 1006.52(1),
F.S., authorizes a public postsecondary educational institution to prescribe the content and
custody of records the institution maintains on its students and applicants for admission. A
student's education records and applicant records are confidential and exempt. Id. See Knight
News, Inc. v. University of Central Florida, 200 So. 3d 125, 128 (Fla. 5th DCA 2016) (personally
identifiable information contained within records regarding alleged hazing incidents qualifies
as confidential student disciplinary records; however, the names of student government officers
charged with malfeasance in the performance of student government duties or alleged to have
engaged in misconduct with regard to their election or appointment to their position are not
confidential under FERPA because "given the statutory scheme [relating to university student
government officers] student government officers know or reasonably should know" that they
could be disciplined for misconduct in connection with their student government duties).
In National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201, 1211 (Fla.
1st DCA 2009), review denied, 37 So. 3d 848 (Fla. 2010), the court construed FERPA and the
2009 amendments to the Florida Statutes. Recognizing that under FERPA a record "qualifies as
an educational record only if it `directly' relates to a student," the court found that a transcript
of an NCAA hearing and an NCAA committee response pertained to allegations of misconduct
by the university athletic department, and only tangentially related to students. Therefore, since
the transcript and the response had been redacted to remove student -identifying information
and thus did not disclose education records, they were not exempt from disclosure. And see Rhea
v. District Board of Trustees of Santa Fe College, 109 So. 3d 851 (Fla. 1st DCA 2013) (student's
unredacted email which criticized instructor's classroom performance constituted an exempt
education record). Compare WFTV v. School Board of Seminole County, Florida, 874 So. 2d
48 (Fla. 5th DCA 2004), review denied, 892 So. 2d 1015 (Fla. 2004), concluding that under
prior student confidentiality laws (which did not incorporate FERPA), a school bus surveillance
videotape was a confidential student record and could not be released to the media even with
student -identifying information redacted).
In AGO 01-64 the Attorney General, in interpreting the former statutes, stated that a
felony complaint/arrest affidavit created and maintained by school police officers for a juvenile
or adult who is a student in the public schools is a law enforcement record subject to disclosure,
provided that exempt information such as active criminal investigative information is deleted
prior to release. See now 20 U.S.C. s. 1232g(a)(4)(B)(ii) excluding "records maintained by a
law enforcement unit of the educational agency or institution that were created by that law
enforcement unit for the purpose of law enforcement" from the definition of "education records."
C. Children in government-sponsored recreation programs
Section 119.071(5)(c), F.S., exempts information that would identify or locate a child or
the parent or guardian of a child, participating in a government-sponsored recreation program.
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A government-sponsored recreation program means "a program for which an agency assumes
responsibility for a child participating in that program, including, but not limited to, after-school
programs, athletic programs, nature programs, summer camps, or other recreational programs."
Id.
d. School system security—Please see page 148.
e. Testing materials
Testing materials are generally exempt from the disclosure provisions of s. 119.07(1), F.S.
See, e.g., s. 1008.23, F.S. (examination and assessment instruments, including developmental
materials and workpapers directly related to such instruments, which are prepared or administered
pursuant to cited statutes), and s. 1012.56(9)(8), F.S. (state -developed educator certification
examination, developmental materials and workpapers). See AGO 09-35, concluding that
student assessment tests developed by teachers to measure student preparedness for college
board advanced placement exams are confidential and exempt from the inspection and copying
requirements of Ch. 119, F.S. Cf. s. 1008.24(4)(b), F.S. (identity of a school or postsecondary
educational institution, personal identifying information of personnel of a school district or
postsecondary educational institution, or specific allegations of misconduct obtained or reported
in connection with an investigation of a testing impropriety conducted by the Department of
Education are confidential and exempt from disclosure until the investigation is concluded or
becomes inactive).
8. Election records
a. Ballots
Election records are generally open to public inspection. An individual or group is entitled
to inspect the ballots and may take notes regarding the number of votes cast. AGO 93-48. See
also Rogers v. Hood, 906 So. 2d 1220, 1223 (Fla. 1st DCA 2005), review denied, 919 So. 2d
436 (Fla. 2005) (voted ballots are public records because they have "memorialized the act of
voting"). Cf. Trout v. Bucher, 205 So. 3d 876 (Fla. 4th DCA 2016), stating that the supervisor of
elections was not required to charge the hourly rate of the lowest paid person capable of providing
ballots for inspection because s. 119.07[4] [d], F.S., authorizes the agency to impose a reasonable
charge based on labor costs "actually incurred by the agency or attributable to the agency" when
extensive clerical or supervisory assistance is required).
Section 119.07(5), F.S., prohibits any person other than the supervisor of elections or the
supervisor's employees from touching the ballots. And see s. 101.572, F.S. (no persons other than
the supervisor, supervisor's employees, or the county canvassing board shall handle any official
ballot or ballot card). However, this restriction does not prohibit the supervisor from producing
copies of optically scanned ballots which were cast in an election in response to a public records
request. AGO 04-11. And see AGO 01-37.
Information regarding requests for vote -by -mail ballots that is recorded by the supervisor
of elections pursuant to s. 101.62(3), F.S., is confidential and exempt and shall be made available
to or reproduced only for the individuals and entities set forth in the exemption, for political
purposes only. Section 101.62(3), F.S.
b. Voter registration and voter records
Section 97.0585, F.S., states that the following information is confidential and exempt
from public disclosure requirements and may be used only for purposes of voter registration:
declinations to register to vote; information relating to the place where a person registered to vote
or updated a voter registration; the social security number, driver license number, and the Florida
identification number of a voter registration applicant or voter. The signature of a voter registration
applicant or a voter is exempt from copying requirements. Id. See also ss. 741.465(2), F.S.
(identifying information concerning participants in the Office of the Attorney General Address
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
Confidentiality Program for Victims of Domestic Violence contained in voter registration and
voting records is exempt); and 741.465 1, F.S. (exemption for identifying information of stalking
victims who have filed a sworn statement of stalking with the Office of the Attorney General and
otherwise comply with the procedures set forth in ss. 741.401-741.409, F.S.). And see AGO
04-18, concluding that the supervisor of elections must maintain the exempt status of specified
personal information for certain officers and employees which appears in petitions or campaign
papers if the affected employee or officer or his or her employing agency has filed a written request
for exemption with the supervisor as authorized by s. 119.071(4)(d)3., F.S.
Section 98.075(2)(b), F.S., allows the Department of State to join a nongovernmental
entity composed of state and District of Columbia election officials whose sole purpose is to
share and exchange information in order to verify voter registration information. Information
received by the department from another state or the District of Columbia which is confidential
or exempt pursuant to the laws of that state or the District of Columbia is exempt from disclosure.
Section 98.075(2)(c), F.S.
9. Electronic and computer records
a. Electronic databases and files
Information stored in a public agency's computer "is as much a public record as a written
page in a book or a tabulation in a file stored in a filing cabinet ...." Seigle v. Barry, 422 So. 2d 63,
65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983). And see National Collegiate
Athletic Association v. Associated Press, 18 So. 3d 1201 (Fla. 1st DCA 2009), review denied, 37
So. 3d 848 (Fla. 2010) (public records law is not limited to paper documents but applies to
documents that exist only in digital form); AGO 98-54 (application and disciplinary reports
maintained in a computer system operated by a national securities dealers association which are
received electronically by state agency for use in licensing and regulating securities dealers doing
business in Florida are public records); AGO 91-61 (agency must provide copy of computer disk
in response to Ch. 119 request); and AGO 85-03 (computer tape subject to disclosure).
Thus, information such as electronic calendars, databases, and word processing files stored
in agency computers, can all constitute public records because records made or received in the
course of official business and intended to perpetuate, communicate or formalize knowledge of
some type, fall within the scope of Ch. 119, F.S. AGO 89-39. Compare AGO 85-87 (to the
extent that "machine-readable intermediate files" may be intended to "communicate" knowledge,
any such communication takes place completely within the data processing equipment and
in such form as to render any inspection pursuant to Ch. 119, F.S., unintelligible and, except
perhaps to the computer itself, meaningless; therefore, these files are analogous to notes used
to prepare some other documentary material, and are not public records). And see Grapski v.
Machen, No. 01 -2005 -CA -4005 J (Fla. 8th Cir. Ct. May 9, 2006), affirmed per curiam, 949 So.
2d 202 (Fla. 1st DCA 2007) (spam or bulk mail received by a public agency does not necessarily
constitute a public record).
Moreover, the definition of "public records" specifically includes "data processing
software" and establishes that a record made or received in connection with official business is
a public record, regardless of physical form, characteristics, "or means of transmission." See s.
119.011(12), F.S. "Automation of public records must not erode the right of access to [public
records]." Section 119.01(2)(a), F.S.
Accordingly, electronic public records are governed by the same rule as written documents
and other public records --the records are subject to public inspection unless a statutory exemption
exists which removes the records from disclosure. Cf. AGO 90-04, stating that a county official
is not authorized to assign the county's right to a public record (a computer program developed
by a former employee while he was working for the county) as part of a settlement compromising
a lawsuit against the county. And see the discussion on pages 125-126 noting that in evaluating
whether a public official's records were made or received in the course of official business for
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purposes of Ch. 119, the determining factor is the nature of the record, and not whether the
record is located in a private or a government computer or communications device.
b. Consideration of public access in design of electronic recordkeeping system
When an agency is designing or acquiring an electronic recordkeeping system, the agency
must consider whether the proposed system is capable of providing data in some common
format such as, but not limited to, the American Standard Code for Information Interchange.
Section 119.01(2)(b), F.S. Cf. Inf. Op. to Moore, October 19, 1993, noting that an agency
considering the acquisition of computer software should be responsive to the need for preserving
public access to the information through use of the computer's software and that "[t]he design
and development of the software, therefore, should ensure that the system has the capability
of redacting confidential or exempt information when a public records request is made." And
see s. 287.042(3)(h), F.S. (Department of Management Services responsible for development of
procedures to be used by state agencies when procuring information technology commodities
and contractual services that ensure compliance with public records and records retention
requirements).
Similarly, an agency may not enter into a contract for the creation or maintenance of a
public records database if that contract impairs the ability of the public to inspect or copy the
public records of that agency, including public records that are online or stored in an electronic
recordkeeping system used by the agency. Section 119.01(2)(c), F.S.
The importance of ensuring public access to computer records is recognized by statute and
in the electronic recordkeeping rules of the Division of Library and Information Services of the
Department of State. Rule 1B -26.003(6)(g), F.A.C., provides that each agency shall "[e]nsure
that agency electronic recordkeeping systems meet state requirements for public access to records
in accordance with Chapter 119, ES."
C. E -Mail
E-mail messages made or received by agency officers and employees in connection with
official business are public records and subject to disclosure in the absence of an exemption.
AGOs 96-34 and 01-20. See Rhea v. District Board of Trustees of Santa Fe College, 109 So. 3d
851, 855 (Fla. 1st DCA 2013), noting that "electronic communications, such as e-mail, are
covered [by the Public Records Act] just like communications on paper." Cf. s. 668.6076, F.S.,
requiring agencies that operate a website and use electronic mail to post the following statement
in a conspicuous location on the agency website: "Under Florida law, e-mail addresses are public
records. If you do not want your e-mail address released in response to a public records request,
do not send electronic mail to this entity. Instead, contact this office by phone or in writing."
Similarly, e-mails sent by city commissioners in connection with the transaction of official
business are public records subject to disclosure even though the e-mails contain undisclosed or
"blind" recipients and their e-mail addresses. AGO 07-14. Cf. Butler v. City of Hallandale Beach,
68 So. 3d 278 (Fla. 4th DCA 2011) (affirming a trial court order finding that a list of recipients
of a personal e-mail sent by mayor from her personal computer was not a public record).
Like other public records, e-mail messages are subject to the statutory restrictions on
destruction of public records. See s. 257.36(6), F.S., stating that a public record may be destroyed
or otherwise disposed of only in accordance with retention schedules established by the Division
of Library and Information Services (division) of the Department of State. Thus, an e-mail
communication of "factual background information" from one city council member to another
is a public record and should be retained in accordance with the retention schedule for other
records relating to performance of the agency's functions and formulation of policy. AGO 01-20.
d. Facebook
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The Attorney General's Office has stated that the placement of material on a city's Facebook
page presumably would be in connection with the transaction of official business and thus subject
to Ch. 119, F.S., although in any given instance, the determination would have to be made based
upon the definition of "public record" contained in s. 119.011(12), F.S. AGO 09-19. To the
extent that the information on the city's Facebook page constitutes a public record, the city is
under an obligation to follow the public records retention schedules established in accordance
with s. 257.36(6), F.S. Id. And see AGO 08-07 (city council members who post comments and
emails relating to the 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").
e. Text messages
In 2010, the Attorney General's Office advised the Department of State (which is statutorily
charged with development of public records retention schedules) that the "same rules that apply
to e-mail should be considered for electronic communications including Blackberry PINS, SMS
communications (text messaging), MMS communications (multimedia content), and instant
messaging conducted by government agencies." Inf. Op. to Browning, March 17, 2010.
In response, the Department revised the records retention schedule to recognize that
retention periods for text messages and other electronic messages or communications "are
determined by the content, nature, and purpose of the records, and are set based on their legal,
fiscal, administrative, and historical values, regardless of the format in which they reside or the
method by which they are transmitted." Stated another way, it is the content, nature and purpose
of the electronic communication that determines how long it is retained, not the technology
that is used to send the message. See General Records Schedule GSI -SL for State and Local
Government Agencies, Electronic Communications, available online at http://dos.m, orida.
com/librarv-archives.
f. Twitter
The determination as to whether a list or record of accounts which have been blocked
from posting to or accessing an elected official's personal Twitter feed is a public record involves
mixed questions of law and fact which cannot be resolved by the Attorney General's Office. Inf.
Op. to Shalley, June 1, 2016. However, "if the tweets the public official is sending are public
records [because they were sent in connection with the transaction of official business] then a
list of blocked accounts, prepared in connection with those public records `tweets,' could well be
determined by a court to be a public record." Id.
10. Emergency records
a. Emergency "911" records
Section 365.171(12) (a), F.S., provides that any record, recording, or information,
or portions thereof, obtained by a public agency for the purpose of providing services in an
emergency which reveals the name, address, or telephone number or personal information
about, or information which may identify any person requesting emergency service or reporting
an emergency by accessing an emergency communications E911 system is confidential and
exempt from s. 119.07(1), F.S. However, disclosure of the location of a coronary emergency
to a private person or entity that owns an automated external defibrillator is authorized in some
circumstances, as set forth in the exemption. Section 365.171(12)(b), F.S.
The exemption applies only to the name, address, telephone number or personal
information about or information which may identify any person requesting emergency services
or reporting an emergency while such information is in the custody of the public agency or
public safety agency providing emergency services. Section 365.171(12)(x), F.S. See AGO 93-
60. There is no clear indication that the Legislature intended to include the sound of a person's
voice as information protected from disclosure. AGO 15-01. Moreover, identifying information
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
obtained or created independently of the 911 call, for example from a criminal investigation or
offense report created as a result of such investigation, is not exempt under s. 365.171(12) (a),
F.S. AGO 11-27.
A tape recording of a "911" call is a public record which is subject to disclosure after
the deletion of the exempt information. AGO 93-60. This does not, however, preclude the
application of another exemption to such records. Thus, if the "911" calls are received by a law
enforcement agency and the county emergency management department, information which is
determined by the law enforcement agency to constitute active criminal investigative information
may also be deleted from the tape prior to public release. AGO 95-48. See also Inf. Op. to
Fernez, September 22, 1997 (while police department is not prohibited from entering into an
agreement with the public to authorize access to its radio system, the department must maintain
confidentiality of exempt personal information contained in "911" radio transmissions).
Moreover, an audio recording that records the killing of a law enforcement officer acting in
accordance with his or her official duties is confidential and exempt and may not be listened to or
copied except as authorized in the exemption. Section 406.136, F.S. For more information on
this exemption, please refer to the discussion on pages 118-119.
b. Emergency evacuation plans
Section 119.071(3)(a), F.S., provides an exemption from disclosure for a security or
firesafety system plan of a private or public entity that is held by an agency. The term "security
or firesafety system plan' includes emergency evacuation plans and sheltering arrangements. And
see s. 119.071(2)(d), F.S., providing an exemption from disclosure for "[a]ny comprehensive
inventory of state and local law enforcement resources compiled pursuant to Part I, chapter 23
[Florida Mutual Aid Act], and any comprehensive policies or plans compiled by a criminal justice
agency pertaining to the mobilization, deployment, or tactical operations involved in responding
to emergencies as defined in s. 252.34, F.S.; and s. 395.1056, F.S., providing an exemption for
those portions of a comprehensive emergency management plan that address the response of a
public or private hospital to an act of terrorism.
C. Emergency medical services records
Please refer to the discussion of this topic found on page 91.
d. Emergency notification
Any information furnished by a person to any agency for the purpose of being provided
with emergency notification by the agency is exempt from disclosure requirements. Section
119.071(5) (j)1., F.S. The e-mail addresses and corresponding home, school, and other
"watched addresses of concern' provided for participation in the Florida Department of Law
Enforcement Offender Alert System come within the scope of this exemption. AGO 11-16.
And see s. 119.0712(2)(d)1. and 2., F.S. (emergency contact information contained in a motor
vehicle record issued by the Department of Highway Safety and Motor Vehicles is confidential
and exempt, and, without the express consent of the person to whom such emergency contact
information applies, may be released only to law enforcement agencies for purposes of contacting
those listed in the event of an emergency).
e. Emergency planning information furnished to Division of Emergency Management
The Division of Emergency Management (Division) manages a statewide public awareness
program which encourages individuals, families, and businesses to develop disaster plans in
preparation for and in response to natural or manmade disasters. See s. 2, Ch. 14-188, Laws of
Florida. Any information furnished by a person or a business to the Division for the purpose of
being provided assistance with emergency planning is exempt. Section 252.905(1), F.S.
f. Special needs registry
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Section 252.355(1), F.S., states that the Division of Emergency Management, in
coordination with each local emergency management agency in the state, shall maintain a registry
of persons with special needs (i.e., persons who would need assistance during evacuations and
sheltering because of physical, mental, cognitive impairment, or sensory disabilities), located
within the jurisdiction of the local agency. The registration shall identify those persons in need of
assistance and plan for resource allocation to meet those identified needs. Records relating to the
registration of persons with special needs are confidential and exempt, except such information
is available to other emergency response agencies, as determined by the local emergency
management director. Section 252.355(4), F.S. Local law enforcement agencies shall be given
complete shelter roster information upon request. Id.
11. Financial records
Many agencies prepare or receive financial records as part of their official duties and
responsibilities. As with other public records, these materials are generally open to inspection
unless a specific statutory exemption exists. See AGO 96-96 (financial information submitted
by harbor pilots in support of a pilotage rate increase application is not exempt from disclosure
requirements).
a. Audit reports
(1) Auditor General audits
The audit report prepared by the Auditor General is a public record once finalized.
Section 11.45(4)(c), F.S. The audit workpapers and notes are not a public record; however, those
workpapers necessary to support the computations in the final audit report may be made available
by a majority vote of the Legislative Auditing Committee after a public hearing showing proper
cause. Id. And see AGO 79-75 ("the term `audit work papers and notes' should be construed
narrowly and limited to such `raw data as is commonly considered to constitute the work papers
of an accountant"). Cf. s. 11.51(4), F.S. (work papers held by the Office of Program Policy
Analysis and Government Accountability which relate to an authorized project or a research
product are exempt from disclosure).
At the conclusion of the audit, the Auditor General provides the head of the agency being
audited with a list of the findings so that the agency head may explain or rebut them before the
report is finalized. Section 11.45(4)(d), F.S. The list of audit findings is a public record. AGO
79-75.
(2) Local government audits
The audit report of an internal auditor prepared for or on behalf of a unit of local
government becomes a public record when the audit becomes final. Section 119.0713(2)(b),
F.S. The audit becomes final when the audit report is presented to the unit of local government;
until the audit becomes final, the audit workpapers and notes related to such audit report are
confidential. Id.
Thus, a draft audit report of a county legal department prepared by the clerk of court,
acting in her capacity as county auditor, did not become subject to disclosure when the clerk
submitted copies of her draft report to the county administrator for review and response. Nicolai
v. Baldwin, 715 So. 2d 1161, 1163 (Fla. 5th DCA 1998). According to the exemption, the report
would become "final," and hence subject to disclosure, when presented to the county commission.
Id. And see Rushing v. Barfield, No. 2011 -CA -5864 -NC (Fla. 12th Cir. Ct. August 4, 2011), per
curiam affirmed, 83 So. 3d 718 (Fla. 2d DCA 2012) (even though an audit has been completed
with regard to some matters, clerk authorized to redact those portions of workpapers and notes
relating to additional matters under investigation until the audit relating to the additional matters
is concluded).
The term "internal auditor" is not defined for purposes of this exemption. However, the
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
term would appear to encompass an official within county government who is responsible under
the county code for conducting an audit. AGO 99-07. Compare AGO 04-33 (exemption does
not apply to audit of guardianship files prepared by clerk of court because that audit "is not an
internal audit performed by or on behalf of any of the specified units of local government").
(3) State agency inspector general audits
Section 20.055(2), F.S., establishes the Office of Inspector General in each state agency.
Pursuant to s. 20.055(6), F.S., the inspector general is required to conduct audits of the agency
and prepare audit reports of the findings. Such audit reports and workpapers are public records
to the extent that they do not include information which has been made confidential and exempt
from disclosure. Section 20.055(6)(b), F.S.
b. Bids, proposals and financial statements
Section 119.071(1)(b)2., F.S., provides an exemption for "sealed bids, proposals, or replies
received by an agency pursuant to a competitive solicitation" until such time as the agency
provides notice of an intended decision or until 30 days after opening "the bids, proposals, or final
replies," whichever is earlier. Cf. s. 25 5.0518, F.S., providing that notwithstanding s. 119.071(1)
(b), F.S., agencies receiving sealed bids pursuant to a competitive solicitation for construction or
repairs of a public building or public work, must open the bids at a public meeting conducted
in compliance with the Sunshine Law, and must also announce bidder and price information at
that meeting; and s. 255.065(15), F.S., providing an exemption from public records requirements
for a specified period for unsolicited proposals received by a public entity pursuant to the public-
private partnership process established in s. 255.065, F.S.
The term "competitive solicitation" means "the process of requesting and receiving sealed
bids, proposals, or replies in accordance with the terms of a competitive process, regardless of the
method of procurement." Section 119.071(1)(b)l., F.S.
If an agency rejects all bids, proposals, or replies submitted in response to a competitive
solicitation and the agency concurrently provides notice of its intent to reissue the competitive
solicitation, the rejected bids, proposals, or replies remain exempt until such time as the agency
provides notice of an intended decision concerning the reissued competitive solicitation or until
the agency withdraws the reissued competitive solicitation. A bid, proposal, or reply is not
exempt for longer than 12 months after the initial agency notice rejecting all bids, proposals, or
replies. Section 119.0710)(b)3., F.S.
Any financial statement that an agency requires a prospective bidder to submit in order to
prequalify for bidding or for responding to a proposal for a road or any other public works project
is exempt from disclosure requirements. Section 119.071(1)(c), F.S. See also s. 119.0713(3),
F.S., limiting access to materials used by municipal utilities to prepare bids; s. 339.55(10)(a),
F.S., providing an exemption for financial information of a private entity applicant which the
Department of Transportation requires as part of the application process for loans or credit
enhancements from the state -funded infrastructure bank; and s. 337.168, F.S., providing
restrictions on disclosure of Department of Transportation cost estimates, persons requesting bid
packages, and the bid analysis and monitoring system.
C. Budgets
Budgets and working papers used to prepare them are normally subject to inspection. Bay
County School Board v. Public Employees Relations Commission, 382 So. 2d 747 (Fla. 1st DCA
1980); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976); and City of Gainesville v. State
ex. rel. International Association of Fire Fighters Local No. 2157, 298 So. 2d 478 (Fla. 1st DCA
1974). Accord Inf. Op. to Pietrodangelo, Nov. 29, 1972 (financial operating budget of athletic
department of state university constitutes a public record). Cf. News -Press Publishing Company,
Inc. v. Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982), holding that the preponderant interest
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
in allowing public participation in the budget process justified the inclusion of an agency's
internal budget committee within the provisions of the Government in the Sunshine Law.
The exemption afforded by s. 447.605(3), F.S., for work products developed by the public
employer in preparation for collective bargaining negotiations does not remove the working
papers used in preparing an agency budget from disclosure. Warden v. Bennett, supra. See also
AGO 92-56 (budget of a public hospital would not, in and of itself, appear to constitute either
a trade secret or marketing plan for purposes of a statutory exemption for documents revealing a
hospital's marketing plan or trade secrets).
d. Economic development records
(1) Business location or expansion plans
If a private entity requests in writing before an economic incentive agreement is signed that
an economic development agency maintain the confidentiality of information concerning the
entity's interest in or plans to locate or expand its business activities in Florida, the information is
confidential and exempt from disclosure for 12 months after the date an economic development
agency receives a request for confidentiality or until the information is otherwise disclosed,
whichever occurs first. Section 288.075 (2) (a)1., F.S. Confidentiality may be extended for up
to an additional 12 months upon the written request of the private entity if the agency finds
that the private entity is still actively considering locating or expanding its business activities in
Florida. Section 288.075(2)(a)2., F.S. If a final project order for a signed economic development
agreement is issued, then the information remains confidential for 180 days after the final project
order is issued, until a date specified in the final project order, or until the information is otherwise
disclosed, whichever occurs first. However, such period of confidentiality may not extend beyond
the period of confidentiality specified in s. 288.075(2)(a)1. or s. 288.075(2)(a)2., F.S. And see s.
288.075(2)(b), F.S., restricting public officials from entering into binding agreements with the
private entity requesting confidentiality until 90 days after the information has been made public,
unless certain conditions are met.
The term "economic development agency" means the state Department of Economic
Opportunity, an industrial development authority, Space Florida, the public economic
development agency of a county or municipality, or a research and development authority. Also
included are the county or municipal officers or employees assigned the duty to promote the
general business interests or industrial interests of that county or municipality or the related
responsibilities, if the county or municipality does not have a public economic development
agency. The term also includes private persons or agencies authorized by the state, a county or a
municipality to promote the general business interests of the state or that municipality or county.
Section 288.075(1)(a), F.S.
The Legislature's designation of those entities which are considered economic development
agencies for purposes of s. 288.075, F.S., precludes any other entities from falling under the definition.
SeeAGO12-36 (St. Augustine -St. Johns County Airport Authority is not an "economic development
agency" as defined in s. 288.075, ES.). Cf. Inf. to Rooney, June 8, 2011 (if by amendment of the
county charter, the voters made the county commission a part of the county economic development
agency by placing the executive director of the agency under the direct supervision of the county
commission, then the provisions of s. 288.075, F.S., would apply to the county commission).
A written request for confidentiality under s. 288.075(2), F.S., may constitute or contain
information required to be held confidential under that statute; however, such a determination
must be made by the custodian on a case-by-case basis as to whether a particular record or
portion of a record falls within the scope of the exemption. AGO 07-15. The section, however,
may be cited by the records custodian as statutory authority for withholding information from
public disclosure without violating the required confidentiality provisions of the statute. Id. Cf.
AGO 80-78 (county industrial development authority permitted to withhold access only to those
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
records "clearly falling" within the exemption provided in s. 288.075; "policy considerations" do
not justify nondisclosure of public records).
Development plans, financial records, financial commitment letters and draft memoranda
of understanding between the city and a developer considering expansion or relocation within
the city appear to come within the scope of the exemption. AGO 04-19. However, the burden
is on the economic development agency "to carefully and in good faith distinguish between those
documents clearly covered by the exemption and those not covered." Id.
Trade secrets, as defined in s. 688.002, F.S., contained in the records held by an economic
development agency are confidential and exempt from disclosure. Section 288.075(3), F.S.
Proprietary confidential business information held by an economic development agency is
confidential and exempt until such information is otherwise publicly available or is no longer
treated by the proprietor as proprietary confidential business information. Section 288.075(4),
F.S. Federal employer identification numbers, reemployment assistance account numbers, or
Florida sales tax registration numbers held by an economic development agency are confidential
and exempt. Section 288.075(5), F.S. In addition, certain information held pursuant to the
administration of an economic incentive program is confidential and exempt for limited periods
as specified in the exemption. Section 288.075(6), F.S.
(2) Convention center booking business records
Booking business records of a public convention center, sports facility, or auditorium
are exempt from public disclosure. Section 255.047(2), F.S. The statute defines "booking
business records" to include "client calendars, client lists, exhibitor lists, and marketing files."
Section 255.047(1)(a), F.S. The term does not include "contract negotiation documents, lease
agreements, rental rates, event invoices, event work orders, ticket sales information, box office
records, attendance figures, payment schedules, certificates of insurance, accident reports,
incident reports, or correspondence specific to a confirmed event." Id. And see s. 125.0104(9)
(d)1., F.S. (providing an exemption for information given to a county tourism promotion agency,
which, if released, would reveal the identity of those who provide information in response to
a sales promotion, advertisement, or research project or whose names, addresses, meeting or
convention plan information or accommodations or other visitation needs become booking or
reservation list data).
e. Ownership records for registered public obligations
Records regarding ownership of, or security interests in, registered public obligations are
not open to inspection. Section 279.11, F.S.
f. Personal financial records
In the absence of a statutory exemption, financial information prepared or received by an
agency is subject to Ch. 119, F.S. See Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997)
(personal income tax returns and financial statements submitted by housing finance authority
members as part of the authority's application to organize a bank are subject to disclosure). See
also Inf. Op. to Lovelace, April 3, 1992 (records identifying mortgage recipients held by a bank
acting as agent of a housing finance authority in granting mortgages funded by the authority are
public records).
(1) Bank account, debit and credit card numbers
Bank account numbers, and debit, charge, and credit card numbers held by an agency are
exempt from public disclosure. Section 119.071(5)(b), F.S. See also s. 119.0714(1)(j), (2)(e) and
3(b), F.S., regarding confidentiality of bank account numbers and debit, charge, and credit card
numbers contained in court and official records.
(2) Consumer financial information
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GOVERNMENT -IN -THE -SUNSHINE -MANUAL
There are statutes which exempt consumer financial information received by certain
agencies. For example, s. 624.23, F.S., provides confidentiality for personal financial information
held by the Department of Financial Services or the Office of Financial Regulation relating to
a consumer's complaint or inquiry regarding a matter or activity regulated under the Florida
Insurance Code. See State, Department of Financial Services v. Danahy ea' Murray, 246 So. 3d
466 (Fla. 1st DCA 2018), upholding the constitutionality of the statute. See also s. 717.117(8),
F.S. (property identifiers contained in unclaimed property reports held by the Department of
Financial Services are confidential); s. 627.351(6) (x)1., F.S. (claims and underwriting files of the
Citizens Property Insurance Corporation, except as provided in the exemption); s. 119.071(5)
(f), F.S. (health or property insurance information provided by applicants or participants
in government housing assistance programs); and s. 655.057(1)(c), F.S. (personal financial
information contained in investigation records of the Office of Financial Regulation).
(3) Financial information submitted by state licensure applicants
In the absence of statutory exemption, financial information in a licensing file is subject
to disclosure. See AGO 04-16. However, the Legislature has enacted exemptions for financial
information held by certain licensing agencies. For example, credit history information and
credit scores held by the Office of Financial Regulation for purposes of licensing loan originators,
mortgage brokers and mortgage lenders are confidential. Section 494.00125(3) F.S. Financial
information submitted by license applicants to the Department of Business and Professional
Regulation is also confidential. Section 455.229(1), F.S. And see s. Section 456.014(1), F.S.
456.014(1), F.S. (Department of Health license applicants). Cf. Surterra Florida, LLC v. Florida
Department of Health, 223 So. 3d 376 (Fla. 1st DCA 2017) (affirming trial court finding that
identities of investors and partners listed in applications to dispense medical cannabis were not
confidential trade secrets). For more information on disclosure issues relating to trade secrets,
please refer to the discussion of that topic in pages 150-151.
(4) Temporary cash assistance program participant
Except as provided in the exemption, personal identifying information of a temporary cash
assistance program participant is confidential. Section 414.295(1), F.S.
(5) Toll payment personal identifying information
Section 338.155(6), F.S. provides an exemption for personal identifying information held
by the Department of Transportation, a county, a municipality, or an expressway authority for
the purpose of paying, prepaying, or collecting tolls and associated charges due for the use of toll
facilities.
(6) Utility payment records
Agency records of payments for utility services are subject to disclosure. See AGOs 88-
57 (county records of payments made by individuals for waste collection services are public
records), and 92-09 (customer delinquency information held by a utilities commission is subject
to disclosure).
g. Taxpayer records
There are a number of statutes providing for confidentiality of taxpayer records held by the
Department of Revenue. See, e.g., s. 213.053(2)(a), F.S. (all information contained in returns,
reports, accounts, or declarations received by the Department of Revenue, including investigative
reports and information and letters of technical advice, is confidential except for official purposes
and exempt from s. 119.07[1], ES.); s. 213.21(3), F.S. (records of compromises of taxpayer
liability not subject to disclosure); and s. 213.27(6), F.S. (confidential information shared by
the Department of Revenue with debt collection or auditing agencies under contract with the
department is exempt from public disclosure and such debt collection or auditing agencies are
bound by the same confidentiality requirements as the department). Cf. Wallace v. Guzman, 687
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
So. 2d 1351 (Fla. 3d DCA 1997) (personal income tax returns submitted by housing finance
authority members to state banking agency as part of the authority's application to organize a
bank are subject to disclosure).
In addition, s. 193.074, F.S., provides for confidentiality of certain taxpayer information.
In light of the position taken by the Department of Revenue that its form entitled "Original
Application for Ad Valorem Tax Exemption" constitutes a "return," such form should be treated
as a "return" that is confidential pursuant to s. 193.074, F.S. AGO 05-04. Accord AGO 95-07.
And see NYT Management Services, Inc. v. Florida Department of Revenue, No. 2006 -CA -0896
(Fla. 2d Cir. Ct. April 25, 2006) (declarations or written statements filed with the Department
of Revenue pursuant to the state's revenue laws would be a return and thus confidential under s.
193.074, ES.).
A taxpayer's e-mail address held by a tax collector for purpose of sending certain tax
notices or obtaining the consent of a taxpayer for electronic transmission of certain tax notices, as
provided in cited statutes, is exempt from public disclosure requirements. Section 197.3225(1),
F.S.
However, taxpayer information that is confidential in the hands of certain specified officers
under s. 193.074, F.S., is subject to disclosure under the Public Records Act when it has been
submitted by a taxpayer to a value adjustment board as evidence in an assessment dispute. AGO
01-74. Cf. Inf. Op. to Echeverri, April 30, 2010 (while property appraiser may use confidential
records submitted to the value adjustment board by the taxpayer, it is not clear whether property
appraiser may independently submit confidential material to the board in the absence of a
taxpayer's submission although board may order production of confidential records). Similarly,
absent a specific statutory exemption for assessment rolls and public information cards, such
documents made or received by the property appraiser are public records subject to the Public
Records Act, regardless of the confidentiality of a return that may contain information used in
their creation. AGO 05-04.
12. Firearms records
Personal identifying information of an individual who has applied for or received a license
to carry a concealed weapon or firearm pursuant to s. 790.06, F.S., held by the Department
of Agriculture and Consumer Services is confidential and exempt from public disclosure
requirements. Section 790.0601 (1), F.S. The same information is also confidential when held
by a tax collector appointed by the Department. Sections 790.0601(2), and 790.0625(4), F.S.
Information made confidential by s. 790.0601, F.S., shall be disclosed with the express
written consent of the applicant or licensee or his or her legally authorized representative, by court
order upon a showing of good cause, or upon request by a law enforcement agency in connection
with the performance of lawful duties. Section 790.0601(3), F.S. Cf. Times Publishing Company V.
City of Pensacola, No. 2002-2053 (Fla. 1st Cir. Ct. November 13, 2002), per curiam affirmed, 869
So. 2d 546 (Fla. 1 st DCA 2004), concluding that police department records of weapons assigned
to law enforcement officers and described as "specialty weapons utilized for surveillance and
defensive purposes, by surveillance personnel" were exempt from disclosure under s. 119.071(3)
(a), F.S., relating to security system plans and terrorist threat assessments, and the exemption for
surveillance personnel, techniques, and procedures, now found at s. 119.071(2)(d), F.S.
13. Hospital and medical records
a. Communicable or infectious disease reports
A number of exemptions exist for communicable or infectious disease reports. See, e.g.,
s. 381.0031(6), F.S. (information submitted in public health reports to Department of Health
is confidential and is to be made public only when necessary to public health); s. 384.29, F.S.
(sexually transmissible diseases). See Ocala Star -Banner v. State, 697 So. 2d 1317 (Fla. 5th DCA
1997) (upholding court order sealing portions of a battery prosecution case file pertaining to
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
transmission of sexually transmissible diseases to victims due to s. 384.29, F.S., confidentiality
requirements). However, notwithstanding any other provision of law to the contrary, the
Department of Health, the Department of Children and Families, and the Agency for Persons
with Disabilities may share confidential information on any individual who is or has been the
subject of a program within the jurisdiction of each agency. Section 402.115, F.S. The shared
information remains confidential or exempt as provided by law. Id. See AGO 98-52.
Results of screenings for sexually transmissible diseases conducted by the Department of
Health in accordance with s. 384.287, F.S., may be released only to those persons specified in the
exemption. Section 384.287(5), F.S.
Notification to an emergency medical technician, paramedic or other person that a
patient they treated or transported has an infectious disease must be done in a manner to protect
the confidentiality of patient information and shall not include the patient's name. Section
395.1025, F.S.
There are strict confidentiality requirements for test results for HIV infection; such
information may be released only as expressly prescribed by statute. See ss. 381.004, and
384.287(6), F.S. Any person who violates the confidentiality provisions of s. 381.004, F.S., and
s. 951.27, F.S., is guilty of a first degree misdemeanor. Section 381.004(5)(b), F.S. And see s.
381.004(5)(c), F.S., establishing felony penalties for disclosure in certain circumstances. Thus,
information received by the clerk of court indicating that an individual has complied with an
order to be tested for HIV and the attendant test results "would appear to be confidential and
should be maintained in that status." AGO 00-54. Cf. Florida Department of Corrections v. Abril,
969 So. 2d 201 (Fla. 2007) (an entity that negligently violates a patient's right of confidentiality
in disclosing the results of HIV testing may be held responsible in a negligence action).
Results of HIV and hepatitis tests performed on persons charged with certain offenses may
not be disclosed except as authorized in the exemption. Section 960.003, F.S. See also s. 951.27,
F.S. (limited disclosure of infectious disease test results, including HIV testing pursuant to s.
775.0877, F.S., of inmates as provided in statute).
b. Hospital records
(1) Public hospitals
Like other governmental agency records, public hospital records are subject to disclosure
in the absence of a statutory exemption. For example, the court in Tribune Company v. Hardee
Memorial Hospital, No. CA 91-370 (Fla. 10th Cir. Ct. August 19, 1991), held that a settlement
agreement entered in a lawsuit against the public hospital alleging that the hospital had swapped
babies was a public record. The court held that the agreement was subject to disclosure despite
a confidentiality provision contained within the agreement and claims by the hospital that it
constituted work product. Cf. Bert Fish Foundation, Inc. v. Southeast Volusia Hospital District, No.
10-20801-CINS (Fla. 7th Cir. Ct. December 22, 2010) (governing boards of hospital district and
medical center violated the Sunshine Law when they held numerous closed meetings to discuss an
affiliation or merger with a healthcare corporation). For information on exemptions applicable
to public hospitals, please refer to Appendix D and the Index. Cf. AGO 14-10, noting that an
exemption in s. 395.3035(5), F.S., for certain records and meetings relating to a "strategic plan"
for operation of a hospital must be narrowly construed and would not apply to an evaluation
conducted pursuant to s. 155.40(5), F.S., for purposes of the sale or lease of a public hospital.
(2) Private hospitals/private organizations operating public hospitals
A private organization leasing the facilities of a public hospital is acting on behalf of a
public agency and thus constitutes an agency subject to open records requirements in the absence
of statutory exemption. See Memorial Hospital -West Volusia, Inc. v. News journal Corporation,
729 So. 2d 373 (Fla. 1999).
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GOVERNMENT -IN -THE -SUNSHINE -MANUAL
Section 395.3036, F.S., however, provides that records of a private entity that leases a public
hospital or other public health care facility are confidential and exempt from disclosure when the
public lessor complies with the public finance accountability provisions of s. 155.40(18), F.S.,
with respect to the transfer of any public funds to the private lessee and when the private lessee
meets at least three of five criteria set forth in the exemption. See Indian River County Hospital
District v. Indian River Memorial Hospital, Inc., 766 So. 2d 233 (Fla. 4th DCA 2000) (nonprofit
corporation leasing hospital from hospital district). And see Baker County Press, Inc. v. Baker County
Medical Services, Inc., 870 So. 2d 189 (Fla. 1st DCA 2004), upholding the constitutionality of
the exemption. Cf. Memorial Hospital -West Volusia, Inc. v. News journal Corporation, 927 So.
2d 961 (Fla. 5th DCA 2006) (private corporation that purchased hospital from public hospital
authority not subject to Public Records Act); and s. 155.40(21), F.S., describing and construing
the term "complete sale" as applied to a purchase of a public hospital by a private entity.
C. Patient and clinical records
(1) Patient and clinical records generally
Patient records are generally protected from disclosure. For example, patient records
in hospitals and surgical facilities licensed under Ch. 395, F.S., are confidential and may not
be disclosed without the consent of the patient, or the patient's legal representative, except as
provided in the statute. Section 395-3025 (4), (5), (7) and (8), F.S. And see s. 119.0712(1), F.S.
(personal identifying information contained in records relating to an individual's personal health
or eligibility for health-related services held by the Department of Health); and s. 400.022(1)(m),
F.S. (nursing home residents' medical and personal records).
Patient clinical records are also protected. See, e.g., s. 393.13(4)(i)1., F.S. (central client
records of persons with developmental disabilities); s. 394.4615(1), F.S. (clinical records of
persons subject to "The Baker Act"); and s. 397.501(7), F.S. (individuals receiving services
from substance abuse service providers). And see s. 397.6760(1), F.S. (petitions for involuntary
assessment and stabilization and related court records filed with a court under Part V of Ch.
397, F.S. [substance abuse]). Cf. s. 381.987, F.S. (patient caregiver identifying information in the
medical marijuana use registry).
(2) Disclosure of patient records
Patient medical records made by health care practitioners may not be furnished to any
person other than the patient, his or her legal representative or other health care practitioners and
providers involved in the patient's care and treatment without written authorization, except as
provided by ss. 440.13(4)(c) and 456.057, F.S. Section 456.057(7)(a), F.S. See State v. Johnson,
814 So. 2d 390 (Fla. 2002) (state attorney's subpoena power under s. 27.04, F.S., cannot override
notice requirements of s. 395.3025 [4] [d], F.S., which provides for disclosure of confidential
patient records upon issuance of subpoena and upon proper notice to the patient or the patient's
legal representative). Cf. s. 408.051(3), F.S., permitting a health care provider to release or access
an identifiable health record of a patient without the patient's consent for use in the treatment
of the patient for an emergency medical condition, as defined in s. 395.002(8), F.S., when
the health care provider is unable to obtain the patient's consent or the consent of the patient
representative due to the patient's condition or the nature of the situation requiring immediate
medical attention.
The recipient of patient records, if other than the patient or the patient's representative,
may use such information only for the purpose provided and may not disclose any information
to any other person or entity, unless expressly permitted by the written consent of the patient.
See ss. 395.3025(7) (hospital patient records) and 456.057(11), F.S. (health care practitioner
patient records). Thus, predeath medical records in the possession of the medical examiner are
not subject to public inspection. Church of Scientology Flag Service Org., Inc. v. Wood, No. 97-
688CI-07 (Fla. 6th Cir. Ct. February 27, 1997).
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