What to Know About Public Records
All state, county, and city records are supposed to be accessible to the general public. In fact, providing access to public records is a duty of each local government under Florida law.
But, which records are actually public records? Likewise, which of those public records are local governments required to disclose?
What is a public record?
Public records include “all documents . . . regardless of the physical form . . . made or received . . . in connection with the transaction of official business by any agency.”
To figure out if something is actually a public record, the main question isn’t whether it’s a document in the government’s possession, or whether the document is formatted in a particular way, but whether or not it was “made or received . . . in connection with the transaction of official business.”
So, if a city employee uses his or her government email account to plan a friend’s birthday party, that’s not a government record.
But, if a city employee uses his or her gmail account to handle city business - let’s say scheduling meetings for the mayor - then those emails are public records.
How do you request public records?
Florida law imposes a “duty of disclosure” upon “[e]veryperson who has custody of a public record.”
Technically, every local government employee is responsible for responding to public records requests. Likewise, Florida law doesn’t require that the request be made in any particular way. A verbal request is just as binding as a written one.
From a practical stand point, it still makes sense to provide the request in writing. That way, it is easier for the government, and for you, to track.
It’s also worth mentioning that - according to an unpublished study by the University of Florida - using formal, legalistic language or plain english in your public records request doesn’t change the government’s response time. For best results, be as precise as possible in describing the documents you’re looking for and always be polite when making your request.
In most instances, the city clerk is the best point of contact to retrieve public records (whether you’re looking to copy records or just to inspect them in person).
However, some governments have created special departments to manage public records requests. Others even make it possible to track and monitor your public records requests online.
What to know when making a request
Remember, there’s no legal requirement around how you make a public records request or which government employee you request records from. Still, for practical reasons, it makes sense to write down your request and provide it to the government office that has the most experience with public records.
Likewise, you can make a request for copies (digital or physical) of a public record or simply to inspect the record on premises.
However, once you make the request, the government must acknowledge your request promptly and respond in good faith. An acknowledgement is just a simple confirmation that they received the request. A good faith response “includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed.“
The reason for the request is irrelevant, responding to records requests is a governmental duty
Drafts of certain public records may be requested
Requestors are allowed to remain anonymous
Requestors may not ask for new documents to be created or reformatted
Not all public records are publicly accessible?
Just because a document is a public record made or received in the course of official business does not mean that a local government can make it publicly available. For example, a government attorney’s notes about a case he or she is litigating may technically be a public record but those notes are exempt from disclosure while the case is pending.
That said, government officials cannot just make up reasons not to disclose a public record.
Each and every possible exemption is listed in Florida’s Statutes. ( You can find a list of them in the Government-In-The-Sunshine Manual below.)
Likewise, if a local government is claiming that particular records are exempt, they have to cite the specific section of the statute and state the reason for the exemption.
Governments may charge you for public records
Local governments are not required to charge fees for responding to public records requests. But they are allowed to charge certain reasonable fees and costs. Moreover, unlike the federal government, local governments are also not required to waive their fees for academics or nonprofits.
However, if a government is going to charge a fee for responding to a public records request, it must:
Let you know how much it will charge before it gives out the public records, and
It can only charge fees to cover the actual costs of providing the records (like the cost of printing physical copies) or the cost of an employee’s time (to search for documents, review documents for exemptions, or supervise during an inspection of records).
In the case of charging fees to cover an employee’s time, the government must use the lowest-salaried employee that can do the work.
Penalties for violations
Public records are serious business. Penalties for violation can be assessed against governments themselves and government officials as individuals. These penalties range from fines of up to $500 to first-degree misdemeanors and even third-degree felonies.
Members of the public can also sue to enforce the law if a government violates provisions of the Public Records Act after submitting a 5-business day notice letter to local government’s the records custodian. If that law suit was not filed for an “improper purpose,” the government may have to pay attorneys’ fees and costs.
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