It’s Friday, nearly 5 o’clock and you’re getting ready to go home. A stranger appears at your office waiving a copy of the Florida Public Records Act, demanding to see your company’s records. You explain that “this is a private company and not subject to the Public Records Act”. You send him away.
The following week, you are served with a lawsuit alleging that you violated the Public Records Act and seeking fees and costs. After your attorney explains how and why you are subject to the Act, you produce the requested records – no harm, no foul, right? WRONG!
The court will still hold a hearing to determine whether you unlawfully refused to produce the records (even though the records have now been produced). If your initial refusal is found unlawful, you will have to pay the requestor’s attorney’s fees and costs for the suit. Under current law, the award of fees and costs – which can be thousands of dollars (not including your own defense costs) – is mandatory. For example, a public records custodian was ordered to pay a requestor’s fees and costs, even though the custodian produced the requested records prior to the Public Records Act hearing and even though the custodian delayed the production because it thought it had a good faith basis to withhold the documents.
Public Records Act trolls are making a business out of catching private companies who deal with any state or local governmental agency in Florida unaware and collecting fees as a result. The Florida Legislature is contemplating a change to make the fee and cost award discretionary – but its fate remains to be seen (and discussed in a future post).
A broad range of interaction with a state or local government agency can make your company subject to the Public Records Act; for example:
- contracting with or providing services to government
- responding to requests for proposals or invitations to negotiate (sealed bids are only temporarily exempt)
- seeking tax exemptions
- corresponding with a government worker
- responding to audits, subpoenas or investigative demands
- leasing property to or from a government body
- applying for professional licenses
Proprietary or trade secret information could be subject to disclosure under the Act if proper care is not taken.
Here are some real world examples of unwitting violations of the Florida Public Records Act:
- The Chicago White Sox’s owner was assessed fees and costs for failing to provide a newspaper publisher draft leases for city property, despite the city not having custody of the drafts.
- A private engineering company that contracted with a city to design and implement water and wastewater system improvements was found to be an “agency” subject to the Public Records Act and required to produce documents related to the water distribution system’s design, evaluations, budget priority recommendations, and financing recommendations.
- The Attorney General was required to disclose confidential business records provided by a washing machine manufacturer in response to a subpoena.
- The NCAA was ordered to hand over documents related to a secret disciplinary proceeding against Florida State University (a public entity). The documents were stored on the NCAA’s secure Internet website, and FSU’s outside counsel was provided password-protected access to review the documents online on the condition they signed a confidentiality agreement. Regardless, by virtue of private counsel’s review in preparation of the appeal, the documents became public records subject to disclosure. The NCAA was also ordered to pay the requesting media outlets’ legal fees.
Private companies become subject to the Public Record Act when: (1) they act as an “agency;” and/or (2) they possess “public records.”
- An “agency” includes any person or entity acting on behalf of any public agency. A private entity may become an “agency” if it assumes the role of government, such as performing a public function in the course of a contract with government.
- “Public records” broadly encompasses anything made or received by a government entity pursuant to law or in connection with the transaction of official business. Thus, a document prepared by a private entity may meet the definition of a “public record” if the private entity is acting as an “agency” and/or when the document is received by a government agent for use in the transaction of official business. This applies regardless of whether the government employee receives the material via physical custody or remotely examines material (for example, at your office).
- The Act can be enforced against any person that has custody of a public record – the determining factor is the nature of the record, not its physical location. Thus, text messages and voice-mail on a phone could constitute public records.
- Failure to comply with the Act subjects a contractor to enforcement provisions, which may include termination of the contract or imposition of financial penalties.
Any doubt about the application of the Public Records Act is generally resolved in favor of disclosing the material. Neither uncertainty nor ignorance are recognized defenses to Public Records Act violations. So failure to produce public records will result in a judgment against a company for the requestor’s court costs and attorney’s fees. To avoid this liability, those companies doing business with any Florida state or local government agency should consult with legal counsel to assist in adopting policies and procedures for addressing public records requests before the first request is received.