Florida Statute Chapter 195 (2019)GOVERNMENT -IN -THE -SUNSHINE -MANUAL
Section 119.084(2), F.S., however, specifically authorizes agencies to hold a copyright for
data processing software created by the agency. The agency may sell the copyrighted software
to public or private entities or may establish a license fee for its use. See also s. 24.105(10), F.S.,
authorizing the Department of the Lottery to hold patents, copyrights, trademarks and service
marks; and see ss. 286.021 and 286.031, F.S., prescribing duties of the Department of State with
respect to authorized copyrights obtained by state agencies.
b. Copyrighted material obtained by agencies
The federal copyright law vests in the owner of a copyright, subject to certain limitations,
the exclusive right to do or to authorize, among other things, the reproduction of the copyrighted
work and the distribution of the copyrighted work to the public by sale or other transfer of
ownership. See AGO 97-84, citing to pertinent federal law and interpretive cases. However, the
Attorney General's Office has concluded that the fact that material received by a state agency may
be copyrighted does not preclude the material from constituting a public record. For example,
AGO 90-102 advised that copyrighted data processing software which was not specifically
designed or created for the county but was being used by the county in its official capacity for
official county business fell within the definition of "public record."
Moreover, in State, Department ofHealthand Rehabilitative Services v. Southpointe Pharmacy,
636 So. 2d 1377, 1382-1383 (Fla. 1st DCA 1994), the court rejected a state agency's argument
that a transcript of a hearing that had been copyrighted by the court reporter and filed with the
agency should not be copied without the copyright holder's permission. The court stated that the
agency was under a statutory obligation to preserve all testimony in the proceeding and make a
transcript available in accordance with the fees set forth in Ch. 119, F.S. And see AGO 75-304
(agency may not enter into agreement with court reporter to refer all requests for copies of agency
proceedings to court reporter who originally transcribed proceedings; agency must provide copies
of transcripts in accordance with charges set forth in Public Records Act).
The federal copyright law, when read together with Ch. 119, F.S., authorizes and requires
the custodian of records of the Department of State to make maintenance manuals supplied to
that agency pursuant to law, available for examination and inspection purposes. AGO 03-26.
"With regard to reproducing, copying, and distributing copies of these maintenance manuals
which are protected under the federal copyright law, state law must yield to the federal law on
the subject." Id. The custodian should advise individuals seeking to copy such records of the
limitations of the federal copyright law and the consequences of violating its provisions; such
notice may take the form of a posted notice that the making of a copy may be subject to the
copyright law. AGOs 03-26 and 97-84. However, it is advisable for the custodian to refrain
from copying such records himself or herself. AGO 03-26. But see State v. Allen, 14 F.L.W. Supp.
172a (Fla. 7th Cir. Ct. November 2, 2006) (defendant entitled to inspect and copy copyrighted
operating manual for the radar unit and speedometer used by the police under Art. I, s. 24, Fla.
Const.; if police department declined to make copies, defendant or his representative must be
allowed reasonable access to the documents and a copy machine to make copies).
Moreover, as noted by the court in State, Department of Health and Rehabilitative Services
v. Southpointe Pharmacy, supra, once a transcript of an administrative hearing conducted by or
on behalf of an agency has been filed with the agency, the transcript becomes a public record,
without regard to who ordered the transcription or bore its expense. The agency which is under
a statutory obligation to preserve all testimony can charge neither the parties nor the public more
than the charges authorized by Ch. 119, F.S., regardless of the fact that the court reporter may
have copyrighted the transcript.
G. FEES FOR INSPECTING AND COPYING PUBLIC RECORDS
1. Inspection of public records
Providing access to public records is a statutory duty imposed by the Legislature upon all
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record custodians and should not be considered a profit-making or revenue -generating operation.
AGO 85-03. Thus, public information must be open for inspection without charge unless
otherwise expressly provided by law. See State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905).
See also AGOs 84-03 and 76-34 (only those fees or charges which are authorized by statute may
be imposed upon an individual seeking access to public records). Cf. AGO 75-50 (the fact that
the record sought to be inspected is a tape recording as opposed to a written document is of no
import insofar as the imposition of a fee for inspection is concerned).
Section 119.07(4)(d), F.S., however, authorizes the imposition of a special service charge
when the nature or volume of public records to be inspected is such as to require extensive use
of information technology resources, or extensive clerical or supervisory assistance, or both. The
charge must be reasonable and based on the labor or computer costs actually incurred by the
agency. See Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d
DCA 2008) (special service charge applies to requests for both inspection and copies of public
records when extensive clerical assistance is required).
In addition, an agency may adopt a policy imposing a reasonable special service charge
based on the actual labor cost for clerical personnel who are required, due to the nature or
volume of a public records request, to safeguard such records from loss or destruction during their
inspection. AGO 00-11. For example, in AGO 00-11, the requested records were described
as "original documents that have no recorded or maintained counterparts, such that, by their
nature, they would need a heightened degree of protection from alteration or destruction." A
determination of whether the nature or volume of the public records requires such extensive
assistance must be made on a case-by-case basis; the special service charge may not be routinely
imposed. Id.
Moreover, it would be difficult to justify the imposition of a fee for extensive clerical or
supervisory assistance if the personnel providing such assistance were simultaneously performing
regular duties. Id. And see Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So.
3d 120 (Fla. 2016) (affirming trial court finding that two conditions—an hourly photocopying
fee and an hourly supervisory fee—were imposed in violation of s. 119.07, ES.).
2. Copies of public records
If no fee is prescribed elsewhere in the statutes, s. 119.07(4)(a)l., F.S., authorizes the
custodian to charge a fee of up to 15 cents per one-sided copy for copies that are 14 inches by
81/2 inches or less. An agency may charge no more than an additional 5 cents for each two-
sided duplicated copy. Section 119.07(4)(a)2., F.S. And see s. 119.011 (7), F.S., defining the
term "duplicated copies" to mean "new copies produced by duplicating, as defined in s. 283.30,"
F.S. "Duplicating" means "the process of reproducing an image or images from an original to
a final substrate through the electrophotographic, xerographic, laser, or offset process or any
combination of these processes, by which an operator can make more than one copy without
rehandling the original." Section 283.30(3), F.S.
A charge of up to $1.00 per copy may be assessed for a certified copy of a public record.
Section 119.07(4)(c), F.S.
For other copies, the charge is limited to the actual cost of duplication of the record.
Section 119.07(4)(a)3., F.S. The phrase "actual cost of duplication" is defined to mean "the cost
of the material and supplies used to duplicate the public record, but does not include the labor
cost and overhead cost associated with such duplication." Section 119.011(1),ES. An exception,
however, exists for copies of county maps or aerial photographs supplied by county constitutional
officers which may include a reasonable charge for the labor and overhead associated with their
duplication. Section 119.07(4)(b), F.S. Cf. AGO 13-03 (while agency may charge "actual cost
of duplication" if it sends public records via e-mail, agency did not identify any actual costs of
duplication involved in forwarding copies of electronic mail in lieu of photocopying and "the
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definition [of actual cost of duplication] does not allow for the imposition of labor costs or
associated overhead costs").
3. Special service charge for extensive use of clerical or supervisory labor or extensive
information technology resources
Section 119.07(4)(d), F.S. provides that if the nature or volume of public records to be
inspected or copied requires the extensive use of information technology resources or extensive
clerical or supervisory assistance, or both, the agency may charge, in addition to the actual cost
of duplication, a reasonable service charge based on the cost actually incurred by the agency
for such extensive use of information technology resources or personnel. When warranted, the
special service charge applies to requests for both inspection and copies of public records. Board
of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008).
Thus, while an agency may not refuse to allow inspection or copying of public records based
upon the amount of records requested or the span of time which is covered by the public records
request, if extensive use of information technology resources or clerical or supervisory personnel
is needed in order to produce the requested records, the agency may impose a reasonable special
service charge that reflects the actual costs incurred for the extensive use of such resources or
personnel. See AGOs 92-38 and 90-07. Cf. Trout v. Bucher, 205 So. 3d 876 (Fla. 4th DCA 2016)
(supervisor of elections authorized to charge a reasonable fee based on the labor costs "actually
incurred" to comply with Trout's request to inspect ballots in accordance with s. 119.07 [51, ES.).
a. Meaning of the term "extensive"
Section 119.07(4)(d), F.S., "does not identify the Legislature's intent as to what may
constitute `extensive use' and provides no definition of that term." AGO 13-03. In 1991,
a divided First District Court of Appeal upheld a hearing officer's order rejecting an inmate
challenge to a Department of Corrections rule that defined "extensive" for purposes of the special
service charge to mean that it would take more than 15 minutes to locate, review for confidential
information, copy and refile the requested material. Florida Institutional Legal Services, Inc. v.
Florida Department of Corrections, 579 So. 2d 267 (Fla. 1st DCA 1991), review denied, 592 So. 2d
680 (Fla. 1991). The court agreed with the hearing officer that the burden was on the challenger
to show that the administrative rule was invalid under Ch. 120, ES, and the record did not
indicate that the officer's ruling was "clearly erroneous" in this case.
In light of the lack of clear direction in the statute as to the meaning of the term "extensive,"
the Attorney General's Office has suggested that agencies implement the service charge
authorization "in a manner that reflects the purpose and intent of the Public Records Act and that
does not constitute an unreasonable infringement upon the public's statutory and constitutional
right of access to public records." AGO 13-03. In addition, the Attorney General's Office also
strongly encourages agencies to adopt a public records procedure that addresses imposition of
special service charge. Id.
Moreover, the statute mandates that the special service charge be "reasonable." See Carden v.
Chief ofPolice, 696 So. 2d 772, 773 (Fla. 2d DCA 1996), in which the court reviewed a challenge
to a service charge that exceeded $4,000 for staff time involved in responding to a public records
request, and said that an "excessive charge could well serve to inhibit the pursuit of rights conferred
by the Public Records Act." Accordingly, the court remanded the case and required the agency
to "explain in more detail the reason for the magnitude of the assessment." Id. And see Board of
Trustees, Jacksonville Police ea' Fire Pension Fund v. Lee, 189 So. 3d 120, 129 (Fla. 2016), noting
that "excessive, unwarranted special service charges deter individuals seeking public records from
gaining access to the records to which they are entitled."
b. Meaning of the term "information technology resources"
"Information technology resources" is defined as data processing hardware and software
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and services, communications, supplies, personnel, facility resources, maintenance and training.
Section 119.011 (9), F.S. The term does not include a videotape or a machine to view a videotape.
AGO 88-23. The fact that the request involves the use of information technology resources is
not sufficient to incur the imposition of the special service charge; rather, extensive use of such
resources is required. AGOs 13-03 and 99-41.
C. Cost to review records for exempt information
An agency is not ordinarily authorized to charge for the cost to review records for statutorily
exempt material. AGO 84-81. However, the special service charge may be imposed for this work
if the volume of records and the number of potential exemptions make review and redaction of
the records a time-consuming task. See Florida Institutional Legal Services v. Florida Department
of Corrections, 579 So. 2d at 269. And see Agency for Health Care Administration v. Zuckerman
Spaeder, LLP, 221 So. 3d 1260 (Fla. 1 st DCA 2017) (prior court decisions as well as the language
in s. 119.07[4], F.S., dictate that the requester, who had submitted several voluminous public
records requests for records which included confidential information "should be required to pay
for the cost of searching, review, and redaction of exempted information prior to production").
d. Calculation of labor cost
In Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d
DCA 2008), the court approved a county's special service charge pursuant to s. 119.07(4), F.S.,
which included both an employee's salary and benefits in calculating the labor cost for the special
service charge, recognizing, however, that the charge must be reasonable and based upon the
actual labor costs incurred by or attributable to the county. See Trout v. Bucher, 205 So. 3d 876
(Fla. 4th DCA 2016) (supervisor of elections not required to charge the lowest hourly rate of
the employee capable of doing the work needed to comply with Trout's request to inspect ballots
in accordance with s. 119.07[5], F.S., because s. 119-07[4][d] allows the agency to charge the
labor cost of the personnel that is "actually incurred" by the agency where extensive assistance is
required).
The term "supervisory assistance" has not been widely interpreted. See Herskovitz V. Leon
County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), concluding that an appropriate charge for
supervisory review is "reasonable" in cases involving a large number of documents that contain
some exempt information. In State v. Gudinas, No. CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999),
the circuit judge approved a rate based on an agency attorney's salary when the attorney was
required to review exempt material in a voluminous criminal case file. The court noted that "only
an attorney or paralegal" could responsibly perform this type of review because of the "complexity
of the records reviewed, the various public record exemptions and possible prohibitions, and the
necessary discretionary decisions to be made with respect to potential exemptions."
e. Reasonable deposit or advance payment
Section 119.07(4) (a)1., F.S., states that the custodian of public records shall furnish a copy
or a certified copy of the record "upon payment of the fee prescribed by law ...." See Wootton
v. Cook, 590 So. 2d 1039, 1040 (Fla. 1st DCA 1991) (if a requestor "identifies a record with
sufficient specificity to permit [the agency] to identify it and forwards the appropriate fee, [the
agency] must furnish by mail a copy of the record.") (e.s.); and Promenade D'Iberville, LLC v.
Sundy 145 So. 3d 980, 983 (Fla. 1st DCA 2014) (a records custodian may delay production "if
the requesting party fails to remit the appropriate fees").
Accordingly, an agency's policy of requiring the payment of a deposit prior to redaction
and delivery of hundreds of telephone recordings related to a criminal trial was determined to
be "facially reasonable." Morris Publishing Group, LLC v. State, 154 So. 3d 528, 534 (Fla. 1st
DCA 2015), review denied, 163 So. 3d 512 (Fla. 2015). Accord Board of County Commissioners
of Highlands County v. Colby, 976 So. 2d 31, 37 (Fla. 2d DCA 2008), noting that a "policy of
requiring an advance deposit seems prudent given the legislature's determination that taxpayers
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should not shoulder the entire expense of responding to an extensive request for public records."
"[T]he reasonableness of a policy and its application — based on the facts in a particular case —
guides whether an abuse of discretion is shown." Morris Publishing Group, LLC at 534. And see
Agency for Health Care Administration v. Zuckerman Spaeder, LLP, 221 So. 3d 1260 (Fla. 1st DCA
2017) (lower court abused its discretion by ordering the agency to produce a large number of
responsive public records within 48 hours of the issuance of the order without requiring advance
payment of the agency's invoices associated with production of the records).
An agency may refuse to produce additional records if the fees for a previous request
for records have not been paid by the requestor. See Lozman v. City of Riviera Beach, 995 So.
2d 1027 (Fla. 4th DCA 2008) (s. 119.07[4], F.S., "does not require the City to do any more
than what it did in this case," i.e., require Lozman to pay the bill for the first group of records
he requested before the city would make any further documents available). Cf. AGO 05-28
(custodian authorized to bill the requestor for any shortfall between the deposit and the actual
cost of copying the public records when the copies have been made and the requesting party
subsequently advises the city that the records are not needed).
4. Requests for information regarding costs to obtain public records
In order to comply with the statutory directive that an agency provide copies of public
records upon payment of the statutory fee, an agency must respond to requests for information as
to copying costs. Wootton v. Cook, supra. See also Woodard n State, 885 So. 2d 444 (Fla. 4th DCA
2004), remanding a case for further proceedings where the custodian forwarded only information
relating to the statutory fee schedule rather than the total cost to copy the requested records. And
see, Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), in which the court said
that if an agency is asked for a large number of records, the fee should be communicated to the
requestor before the work is undertaken. "If the agency gives the requesting party an estimate of
the total charge, or the hourly rate to be applied, the party can then determine whether it appears
reasonable under the circumstances." Id.
5. Requests for free copies of public records
An agency is not precluded from choosing to provide informational copies of public
records without charge. AGO 90-81.
However, chapter 119, F.S., does not contain a provision that prohibits agencies from
charging indigent persons or inmates the applicable statutory fee to obtain copies of public
records. See Roesch v. State, 633 So. 2d 1, 3 (Fla. 1993) (indigent inmate not entitled to receive
copies of public records free of charge nor to have original state attorney files mailed to him in
prison; prisoners are "in the same position as anyone else seeking public records who cannot pay"
the required costs); Potts v. State, 869 So. 2d 1223 (Fla. 2d DCA 2004) (no merit to inmate's
contention that Ch. 119, F.S., entitles him to free copies of all records generated in his case);
Bennett v. Clerk of Circuit Court Citrus County, 150 So. 3d 277 (Fla. 5th DCA 2014) (authority
providing indigent criminal defendants with free copies does not extend beyond the direct appeal
of judgment and sentence and transcripts of evidentiary hearings held on postconviction claims);
Milner v. State, 196 So. 3d 569 (Fla. 4th DCA 2016) (indigent prisoners are not entitled to free
copies of records under the Public Records Act); and Yanke v. State, 588 So. 2d 4 (Fla. 2d DCA
1991), review denied, 595 So. 2d 559 (Fla. 1992), cert. denied, 112 S.Ct. 1592 (1992) (prisoner
must pay copying and postage charges to have copies of public records mailed to him). And see
State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d 1377,
1382n.7 (Fla. 1st DCA 1994) (indigent person "is not relieved by his indigency" from paying
statutory costs to obtain public records). Cf. Siegmeister v. Johnson, 240 So. 3d 70 (Fla. 1st DCA
2018) (Public Records Act does not require government officials to move records from where they
are being maintained to a different place convenient to the requester, citing to Roesch v. State).
Similarly, a labor union must pay the costs stipulated in Ch. 119, F.S., for copies of
documents it has requested from a public employer for collective bargaining purposes because
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"[a] labor union seeking information from the employer with whom it is locked in collective
bargaining negotiations is not exempt from the Florida Public Records Act." City of Miami
Beach v. Public Employees Relations Commission, 937 So. 2d 226 (Fla. 3d DCA 2006). And see
Inf. Op. to Garganese, April 14, 1998 (authority to charge city council member for copies of
public records).
A school district is under no statutory obligation to provide copies of public records free of
charge to individual members of a school advisory council, but a school district may formulate a
policy for the distribution of such records. AGO 99-46. If it is found that the advisory council
needs certain school records in order to carry out its statutory functions, such records should be
provided to the council in the same manner that records related to agenda items are provided to
school board members. Id. Cf. Inf. Op. to Martin, November 21, 2006 (school board policy
requiring that a request for information by an individual board member requiring more than
sixty minutes of staff time to prepare must be presented to the school board for approval would be
invalid if the school board member is asking under public records law; however, the school board
member would be subject to any charges allowed by Chapter 119, ES.).
6. Authority to charge for development, travel or overhead costs
An agency should not consider the furnishing of public records to be a "revenue -generating
operation." AGO 85-03. See also AGO 89-93 (city not authorized to sell copies of its growth
management book for $35.00 each when the actual cost to reproduce the book is $15.10 per
copy; city is limited to charging only the costs authorized by Ch. 119, F.S.).
The Public Records Act does not authorize the addition of overhead costs such as utilities
or other office expenses to the charge for public records. AGO 99-41. Similarly, an agency
may not charge for travel time to obtain public records stored off -premises. AGO 90-07. For
example, if municipal pension records are stored in a records storage facility outside city limits,
the city may not pass along to the public records requester the costs to retrieve the records. Inf.
Op. to Sugarman, September 5, 1997. Cf. Cone & Graham, Inc. v. State, No. 97-4047 (Fla. 2d
Cir. Ct. October 7, 1997) (an agency's decision to "archive" older e-mail messages on tapes so
that they could not be retrieved or printed without a systems programmer was analogous to an
agency's decision to store records off -premises in that the agency rather than the requester must
bear the costs for retrieving the records).
An agency may not assess fees designed to recoup the original cost of developing
or producing the records. AGO 88-23 (state attorney not authorized to impose a charge to
recover part of costs incurred in production of a training program; the fee to obtain a copy of
the videotape of such program is limited to the actual cost of duplication of the tape). And
see State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So. 2d
1377, 1382 (Fla. 1st DCA 1994) (once a transcript of an administrative hearing is filed with the
agency, the transcript becomes a public record regardless of who ordered the transcript or paid
for the transcription; the agency can charge neither the parties nor the public a fee that exceeds
the charges authorized in the Public Records Act). Cf. S. 119.07(4)(b), F.S., providing that the
charge for copies of county maps or aerial photographs supplied by county constitutional officers
may also include a reasonable charge for the labor and overhead associated with their duplication.
Therefore, unless a specific request for copies requires extensive clerical or supervisory
assistance or extensive use of information technology resources so as to trigger the special
service charge authorized by s. 119.07(4)(d), F.S., an agency may charge only the actual cost
of duplication for copies of computerized public records. AGO 99-41. The imposition of the
service charge, however, is dependent upon the nature or volume of records requested, not on the
cost to either develop or maintain the records or the database system. Id.
7. Fees to obtain agency records held by private companies
Although an agency may contract with private companies to provide information also
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obtainable through the agency, it may not abdicate its duty to produce such records for inspection
and copying by requiring those seeking public records to do so only through its designee and then
paying whatever fee that company may establish for its services. AGO 02-37. The agency is the
custodian of its public records and, upon request, must produce such records for inspection and
copy such records at the statutorily prescribed fee. Id. Accord AGO 13-03. And see AGO 05-
34 (while the property appraiser may provide public records, excluding exempt or confidential
information, to a private company, the property appraiser may receive only those fees that are
authorized by statute and may not, in the absence of statutory authority, enter into an agreement
with the private company where the property appraiser provides such records in exchange for
either in-kind services or a share of the profits or proceeds from the sale of the information by
the private company). Cf. s. 119.0701(2)(b)2., F.S., requiring that certain contracts contain a
provision stipulating that upon request from the public agency's custodian of public records,
the contractor must provide the public agency with a copy of the requested records or allow the
records to be inspected or copied within a reasonable time at a cost that does not exceed the cost
provided in ch. 119 or as otherwise provided by law.
8. Sales tax
In AGO 86-83, the Attorney General's Office advised that the sales tax imposed pursuant
to s. 212.05, F.S., is not applicable to the fee charged for providing copies of records under s.
119.07, F.S. See s. 5(a) of Department of Revenue Rule 12A-1.041, F.A.C., stating that "[t]he
fee prescribed by law, or the actual cost of duplication, for providing copies of public records ...
under Chapter 119, F.S., is exempt from sales tax."
9. Confidential records
Unless another fee to obtain a particular record is prescribed by law, an agency may not
charge fees that exceed those in Ch. 119, ES, when providing copies of confidential records to
persons who are authorized to obtain them. For example, in AGO 03-57, the Attorney General's
Office advised that persons who are authorized by statute to obtain otherwise confidential
autopsy photographs should be provided copies in accordance with the provisions of the Public
Records Act, i.e., s. 119.07(4), F.S. The medical examiner is not authorized to charge a fee that
exceeds those charges. Id.
10. Requester makes his/her own copies
Section 119.07(3)(a), F.S., provides a "right of access to public records for the purpose of
making photographs of the record while such record is in the possession, custody, and control of
the custodian of public records." This subsection "applies to the making of photographs in the
conventional sense by use of a camera device to capture images of public records but excludes the
duplication of microfilm in the possession of the clerk of the circuit court" if the clerk can provide
a copy of the microfilm. Section 119.07(3)(b), F.S.
The photographing is to be done in the room where the public records are kept. Section
119.07(3)(d), F.S. However, if in the custodian's judgment, this is impossible or impracticable,
the copying shall be done in another room or place, as close as possible to the room where the
public records are kept. Id. Where provision of another room or place is necessary, the expense of
providing the same shall be paid by the person who wants to copy the records. Id. The custodian
may charge the person making the copies for supervision services. Section 119.07(4)(e)2., F.S.
In such cases the custodian may not charge the copy charges authorized in s. 119.07(4)(a), F.S.,
but may charge only the supervision service charge authorized in s. 119.07(4)(e)2., F.S. See AGO
82-23. Cf. Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 122
(Fla. 2016) (affirming trial court finding that two conditions—"an hourly photocopying fee and
an hourly supervisory fee"—were imposed in violation of s. 119.07, ES.).
11. Fee issues relating to specific records
a. Clerk of court records
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(1) County records
Pursuant to s. 125.17, F.S., the clerk of the circuit court serves as the ex officio clerk
to the board of county commissioners. Records maintained by the clerk which relate to this
function (e.g., county resolutions, budgets, minutes, etc.) are public records which are subject to
the copying fees set forth in Ch. 119, F.S., and not the service charges set forth in Ch. 28, F.S.
AGO 85-80. Accord AGO 94-60 (documents such as minutes of public meetings, which are in
the custody of the clerk as ex officio clerk of the board of county commissioners, are not subject
to the $1.00 per page charge prescribed in Ch. 28). See also AGO 82-23 (when members of the
public use their own photographic equipment to make their own copies, the clerk is not entitled
to the fees prescribed in s. 28.24, F.S., but is entitled only to the supervisory service charge now
found in s. 119.07[4] [e]2., ES.).
(2) Judicial records
When the clerk is exercising his or her duties derived from Article V of the Constitution,
the clerk is not subject to legislative control. Times Publishing Company v. Ake, 660 So. 2d 255
(Fla. 1995). Thus, when the clerk is acting in his or her capacity as part of the judicial branch of
government, access to the judicial records under the clerk's control is governed exclusively by Fla.
R. Jud. Admin. 2.420, Public Access to and Protection of Judicial Records. Id. See Fla. R. Jud.
Admin. 2.420(b) (2), defining the term "judicial branch" for purposes of the rule, to include "the
clerk of court when acting as an arm of the court."
Florida Rule of Judicial Administration 2.420(m) (3) states that "[f] ees for copies of records
in all entities in the judicial branch of government, except for copies of court records, shall be the
same as those provided in section 119.07, Florida Statutes." (e.s.). The fees to obtain copies of
court records are set forth in s. 28.24, F.S. This statute establishes fees that are generally higher
than those in Ch. 119, F.S. For example, the charge to obtain copies of court records is $1.00 per
page, rather than 15 cents per page as established in s. 119.07(4)(a) I., F.S. See also WFTV, Inc.
v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996) (the $1.00 per page copying charge in s. 28.24,
F.S., applies to all court documents, whether unrecorded or recorded).
b. Department of Highway Safety and Motor Vehicles crash reports
In the absence of statutory provision, the charges authorized in s. 119.07(4), F.S., govern
the fees to obtain copies of crash reports from law enforcement agencies. However, there are
specific statutes which apply to fees to obtain copies of reports from the Department of Highway
Safety and Motor Vehicles. Section 321.23(2)(a), F.S., provides that the fee to obtain a copy
of a crash report from the department is $10.00 per copy. A copy of a homicide report is $25
per copy. Section 321.23(2)(b), F.S. Separate charges are provided for photographs. Section
321.23(2)(d), F.S.
H. REMEDIES AND PENALTIES
1. Voluntary mediation program
Section 16.60, F.S., establishes an informal mediation program within the Office of
the Attorney General as an alternative for resolution of open government disputes. For more
information about the voluntary mediation program, please contact the Office of the Attorney
General at the following address: The Office of the Attorney General, PL -01, The Capitol,
Tallahassee, Florida 32399-1050; telephone (850)245-0140; or you may visit the Office of the
Attorney General website: www.myfloridalegal.com.
2. Civil action
a. Remedies
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A person denied the right to inspect and/or copy public records under the Public Records
Act may bring a civil action against the agency to enforce the terms of Ch. 119, F.S. Cf. s.
119.07(8), F.S. (s. 119.07, F.S., may not be used by an inmate as the basis for failing to timely
litigate any postconviction action).
Before filing a lawsuit, the petitioner must have furnished a public records request to the
agency. Villarreal v. State, 687 So. 2d 256 (Fla. 1st DCA 1996), review denied, 694 So. 2d 741
(Fla. 1997), cert. denied, 118 S.Ct. 316 (1997) (improper to order agency to produce records
before it has had an opportunity to comply); and Maraia v. State, 685 So. 2d 851 (Fla. 2d DCA
1995) (public records action dismissed where petitioner failed to file a request for public records
with the records custodian before filing suit). Cf. Coconut Grove Playhouse, Inc. v. Knight-Ridder,
Inc., 935 So. 2d 597 (Fla. 3d DCA 2006) (trial court order departed from essential requirements
of law by requiring defendant in a public records action to produce its records as a sanction for
failure to respond to a discovery subpoena).
Where a multi -agency law enforcement task force had been created by a mutual aid
agreement and the agreement did not indicate an intent to create a separate legal entity capable
of being sued in its own name, a requestor could not sue the task force for production of records;
however, as the agreement did not specify which agency would be responsible for responding
to public records requests, an action could be brought against any of the member agencies to
produce records in the possession of the task force. Ramese's, Inc. v. Metropolitan Bureau of
Investigation, 954 So. 2d 703 (Fla. 5th DCA 2007).
(1) Mandamus
Mandamus is an appropriate remedy to enforce compliance with the Public Records Act.
See Chandler v. City of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA 2014); Weeks v. Golden,
764 So. 2d 633 (Fla. 1st DCA 2000); Smith v. State, 696 So. 2d 814 (Fla. 2d DCA 1997);
Donner v. Edelstein, 415 So. 2d 830 (Fla. 3d DCA 1982). See also Farmer v. State, 927 So.
2d 1075 (Fla. 2d DCA 2006) (trial court should treat motion to compel production of public
records as petition for writ of mandamus); Major v. Hallandale Beach Police Department, 219
So. 3d 856 (Fla. 4th DCA 2017) (petition for writ of mandamus filed against a governmental
agency must attach a copy of any record that supports the petition). Cf. Agency for Health Care
Administration v. Zuckerman Spaeder, LLP, 221 So. 3d 1260 (Fla. 1st DCA 2017) (mandamus
relief ordering agency to produce records within 48 hours and prior to requester's payment of
invoices or agency's opportunity to review and redact exempt material was improper because
agency's duty was not "ministerial" and requester's right to the records was not "indisputable").
If the requester's petition presents a prima facie claim for relief, an order to show cause
should be issued so that the claim may receive further consideration on the merits. Staton V.
McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992). Accord Gay v. State, 697 So. 2d 179 (Fla. 1st
DCA 1997). See Radford v. Brock, 914 So. 2d 1066 (Fla. 2d DCA 2005) (trial judge dismissal of
a writ of mandamus directed to clerk of court and court reporter who were alleged to be records
custodians was erroneous because trial judge did not issue an alternative writ of mandamus
requiring the clerk and court reporter to show cause why the writ should not be issued, and
because there was no sworn evidence refuting the petitioner's allegations).
Thus, a petition for writ of mandamus should not have been dismissed based on the
agency's response that the requested records "would have been destroyed" in accordance with
agency policy. Brown v. State, 152 So. 3d 739, 741 (Fla. 4th DCA 2014). Similarly, the trial
judge erred in dismissing a petition seeking records relating to the chain of custody for a weapon
without issuing an alternative writ of mandamus. Tracy v. State, 219 So. 3d 958 (Fla. Ist DCA
2017). The agency had produced an evidence card showing that the weapon in question had
been destroyed; accordingly, the trial court concluded that dismissal was appropriate as there were
no records to produce. However, because the petitioner contended that additional records were
available, the appellate court found that "factual disputes remain." On remand, "if the [agency]
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fails to provide sworn evidence that all available information has been provided, the trial court
must conduct an evidentiary hearing on the issue prior to denying the claim."
Mandamus is a "one time order by the court to force public officials to perform their
legally designated employment duties." Town ofManalapan v. Rechler, 674 So. 2d 789, 790 (Fla.
4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996). Thus, a trial court erred when
it retained continuing jurisdiction to oversee enforcement of a writ of mandamus granted in a
public records case. Id. See also Stone v. Ward, 752 So. 2d 100, 101 (Fla. 2d DCA 2000) ("It is
well-settled that mandamus is not appropriate to control or regulate a general course of conduct
for an unspecified period of time"). Cf. Areizaga v. Board of County Commissioners of Hillsborough
County, 935 So. 2d 640 (Fla. 2d DCA 2006), review denied, 958 So. 2d 918 (Fla. 2007) (circuit
courts may not refer extraordinary writs to mediation; thus, trial judge should not have ordered
mediation of petition for writ of mandamus seeking production of public records).
(2) Injunction
Injunctive relief may be available upon an appropriate showing for a violation of Ch. 119, F.S.
See Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989) (injunctive relief appropriate where there
is a demonstrated pattern of noncompliance with the Public Records Act, together with a showing
of likelihood of future violations; mandamus would not be an adequate remedy since mandamus
would not prevent future harm). However, an injunction is not appropriate if the acts complained of
have already been committed and there is not a well-grounded probability of similar future conduct.
Id. See Promenade D'Iberville, LLC v. Sundy, 145 So. 3d 980, 984 (Fla. 1st DCA 2014).
(3) Declaratory relief sought by agencies
Occasionally an agency, faced with a demand for public records, seeks guidance from the
court in the form of a complaint for declaratory judgment instead of complying with the request
for public records or asserting an exemption. See Butler v. City of Hallandale Beach, 68 So. 3d
278, 279 (Fla. 4th DCA 2011) ("Michael Butler appeals from a final judgment in a declaratory
action filed by The City of Hallandale Beach [the City] ... which sought a declaration that a
list of recipients of a personal email ... was not sent in connection with the discharge of any
municipal duty and therefore, is not a public record under Florida's Public Records Law"). Cf.
Sarasota Herald -Tribune Company, Inc. v. Schaub, No. CA87-2949 (Fla. 12th Cir. Ct. July 20,
1988), per curiam affirmed, 539 So. 2d 478 (Fla. 2d DCA 1989) (state attorney cannot litigate a
declaratory judgment action to obtain judicial advice on how to perform his public duties under
the Public Records Act); Wille v. McDaniel, 18 Med. L. Rptr. 2144, No. CL -91 -154 -AE (Fla.
15th Cir. Ct. February 18, 1991) (sheriffs stated purpose in litigating declaratory judgment
action [to avoid being assessed attorney fees under the Public Records Act] is insufficient to
support a declaratory action). See also Askew v. City of Ocala, 348 So. 2d 308 (Fla. 1977) (trial
court properly dismissed complaint for declaratory relief for failure to state a cause of action
where public officials disagreed with Attorney General's advisory opinion and sought different
judicial opinion).
In WFTV, Inc. v. Robbins, 625 So.2d 941 (Fla. 4th DCA 1993), the court held that a
supervisor of elections who denied a public records request to inspect certain election results on
the grounds that a court order entered in another case involving the election prohibited disclosure,
"unlawfully refused" access to public records. The court determined that the supervisor herself
had sought the confidentiality order by means of a motion seeking "directions" from the court
in the election lawsuit. The supervisor was thus liable for payment of attorney fees incurred by
the requestor in the subsequent public records action pursuant to s. 119.12, F.S., providing for
an assessment of attorney fees and costs if an agency unlawfully refuses to permit examination
and inspection of documents under the Public Records Act. See also City of St. Petersburg v. St.
Petersburg junior College, No. 93 -0004210 -CI -13, Order Awarding Attorney's Fees (Fla. 6th Cir.
Ct. March 25, 1994), in which a city that had initially filed an action for declaratory relief as
to whether records requested under Ch. 119 were confidential under federal law was ultimately
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determined to be liable for attorney fees under s. 119.12, F.S., after the party seeking the records
filed a counterclaim and the judge determined that the records were not exempt.
(4) Damages
Section 119.12, F.S. does not create a private right of action authorizing the award of
monetary damages for a person who brings an action to enforce the provisions of Ch. 119, F.S.
Section 119.12(4), F.S. Payments by the responsible agency may include only the reasonable
costs of enforcement, including reasonable attorney fees, directly attributable to a civil action
brought to enforce the provisions of Ch. 119, F.S. Id.
b. Procedural issues
(1) Discovery
In the absence of an evident abuse of power, the trial court's exercise of discretion in
matters associated with pretrial discovery in a public records action will not be disturbed.
Lorei v. Smith, 464 So. 2d 1330, 1333 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695
(Fla. 1985). In Lorei, the appellate court upheld the trial judge's denial of a request to permit
discovery pertaining to the agency's procedures for maintaining public records. Id. The court
noted that the interrogatories related to "the mechanics associated with the department's record
maintenance, the internal policies or actions which lead to the development of files," and other
matters which were not relevant to the question of whether the requested records were exempt
from disclosure. Id.
The court cautioned, however, that "discovery in a context such as the one at hand may
well be appropriate in the circumstance where a good faith belief exists that the public agency
may be playing `fast and loose' with the requesting party or the court, once its statutorily
delegated authority is activated." Id. Cf. Lopez v. State, 696 So. 2d 725, 727 (Fla. 1997) (trial
court's denial of motion to depose custodian affirmed because there were "no allegations that any
documents had been removed"); and Johnson v. State, 769 So. 2d 990, 995 (Fla. 2000) (discovery
not warranted based on "bare allegations" that additional records "should" exist).
(2) Hearing
Section 119.11(1), F.S., mandates that actions brought under Ch. 119 are entitled to an
immediate hearing and take priority over other pending cases. See Board of Trustees, Jacksonville
Police 6 -Fire Pension Fund v. Lee, 189 So. 3d 120, 124 (Fla. 2016), in which the Court observed
that "an accelerated civil action plays a critical role in the enforcement of the Public Records Act
as is reflected in the title of section 119.11— `Accelerated hearing; immediate compliance."' See
also Matos v. Office of the State Attorney for the 17th Judicial Circuit, 80 So. 3d 1149 (Fla. 4th
DCA 2012) (an "immediate hearing does not mean one scheduled within a reasonable time, but
means what the statute says: immediate"); and Woodfaulk v. State, 935 So. 2d 1225 (Fla. 5th DCA
2006) (s. 119.11, F.S., does not place specific requirements on a party requesting public records
to obtain an accelerated hearing except the filing of an action to enforce the public records law).
The purpose of the hearing "is to allow the court to hear argument from the parties and
resolve any dispute as to whether there are public records responsive to the request and whether
an exemption from disclosure applies in whole or in part to the requested records." Kline V.
University of Florida, 200 So. 3d 271 (Fla. 1st DCA 2016). For example, an order dismissing a
public records complaint filed against a sheriff was overturned on appeal because the judge failed
to hold a hearing before entering the order. "Although the sheriff may ultimately not be able
to retrieve these records, because of their age or another reason, the order in this case, entered
without an evidentiary hearing, was premature." Grace v. Jenne, 855 So. 2d 262, 263 (Fla. 4th
DCA 2003). The failure to hold a hearing may be remedied by a petition for writ of certiorari.
See Martinez v. State, 969 So. 2d 1174, 1174-75 (Fla. 5th DCA 2007).
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"A motion to dismiss tests the legal sufficiency of a complaint and does not resolve factual
issues." Clay County Education Association v. Clay County School Board, 144 So. 3d 708, 709 (Fla.
1st DCA 2014). Therefore, the trial judge erred when he granted the agency's motion to dismiss
based on the agency's "unsworn response ... that it either had already provided the documents,
did not have the information in the format requested, or could not produce the documents
because they did not exist." Id. The appellate court remanded the case "for an immediate hearing
under section 119.11 [1] and, if necessary, further proceedings to resolve any factual disputes
that remain between the parties' complaint and answer." Id. See also Ferrier v. Public Defender's
Office, Second judicial Circuit of Florida, 171 So. 3d 744 (Fla. 1st DCA 2015) (circuit court erred
in not conducting an evidentiary hearing "on the contested issue of whether [the agency] had
the requested materials in its possession"); Holley v. Bradford County Sheriffs Department, 171
So. 3d 805 (Fla. 1st DCA 2015) (because petitioner disputed the agency's "unsworn claim that
it did not possess the requested records, the trial court could not deny [the] petition without
conducting an evidentiary hearing on this issue"); and Williams v. State, 163 So. 3d 618 (Fla. 4th
DCA 2015) (where petitioner asserted that the record produced by the agency was not the record
he requested, trial judge erred by denying prison inmate's petition for writ of mandamus without
issuing an alternative writ to show cause and failing to hold an evidentiary hearing to resolve
disputed issues of fact). Cf. Morgan v. Wagner, 73 So. 3d 815 (Fla. 4th DCA 2011), in which the
Fourth District said it was "compelled to affirm" the lower court order dismissing the petitioner's
public records action because there was no transcript or documentation in the appendix to show
that petitioner had preserved "what may have been a valid procedural argument."
(3) In camera inspection
Section 119.070)(g), F.S., provides that in any case in which an exemption is alleged to
exist pursuant to s. 119.071(1) (d) or (f), (2) (d), (e), or (f), or (4) (c), F.S., the public record or
part of the record in question shall be submitted to the trial court for an in camera examination.
See City of St. Petersburg v. Romine ex. rel. Dillinger, 719 So. 2d 19 (Fla. 2d DCA 1998) (in camera
review mandated when confidential informant exemption now found at s. 119.071 [2] [f], F.S.,
is asserted); Walton v. Dugger, 634 So. 2d 1059 (Fla. 1993); Lopez v. Singletary, 634 So. 2d 1054
(Fla. 1993) (records claimed by state attorney to constitute exempted work product must be
produced for an in camera inspection); and Environmental Turf, Inc. v. University of Florida Board
of Trustees, 83 So. 3d 1012 (Fla. 1st DCA 2012) (in camera inspection required where university
claimed that records were exempt pursuant to s. 119.071 [1] [d], F.S. [attorney work product] and
s. 1004.22, F.S. [proprietary research records]). And see Weeks v. Golden, 764 So. 2d 633 (Fla. 1st
DCA 2009) ("We fail to see how the trial court can [determine whether an agency is entitled to
a claimed exemption] without examining the records"). Cf. Agrosource, Inc. v. Florida Department
of Citrus, 148 So. 3d 138 (Fla. 2d DCA 2014) (trial court finding after in camera review that
certain prelitigation emails were exempt attorney work product was supported by competent
substantial evidence).
An in camera inspection is also required so that the trial judge can determine whether the
records can be redacted to remove exempt information. See Holley v. Bradford County Sheriffs
Department, 171 So. 3d 805 (Fla. 1st DCA 2015) (trial court must conduct an in camera
inspection of the records to determine whether they could be redacted to remove information
identifying confidential informants); and Gonzalez v. State, 240 So. 3d 99 (Fla. 2d DCA 2018)
(in the absence of an in camera inspection of the requested CDs, the circuit court could not
conclude that their contents are exempt from disclosure under s. 119.071 [3] [a] [2] or section
281.301; nor could it determine whether redaction was possible).
While s. 119.07(1)(g), F.S., states that an in camera inspection is "discretionary" in cases
where an exemption is alleged under s. 119.071(2) (c), F.S. (the exemption for active criminal
investigative or intelligence information), it has been held that an in camera inspection is
necessary in order for the court to determine whether the exemption applies to the records at
issue. For example, in Woolling v. Lamar, 764 So. 2d 765, 768-769 (Fla. 5th DCA 2000), review
denied, 786 So. 2d 1186 (Fla. 2001), the Fifth District noted that the state attorney had not
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