|September 25, 2013|
Previously published on September 23, 2013
Private entities contracting with governmental agencies should be aware of the newly enacted Section 119.0701, Florida Statutes, which affects the entities’ contractual obligations concerning the maintenance of, and provision of access to, public records. Florida has very broad public records laws, with a strong presumption that favors disclosure. A private entity’s documents can be subject to disclosure under the Public Records Act where: (1) the document is a “public record;” or (2) the entity acts as an “agency.”
- A document, regardless of physical form, is a “public record” if it is “made or received pursuant to law or ordinance or in connection with the transaction of official business.” The government can “receive” a document by: (a) taking physical delivery of a document; or (b) viewing a document residing on a remote private computer.
- An “agency” is any state, county, district, authority, or municipal officer, or department, division, board, bureau, commission, or other separate unit of government created or established by law, including any “business entity acting on behalf of any public agency.” § 119.011
To determine whether a private entity acts as an “agency,” courts look at the totality of the following factors: (1) the level of public funding; (2) commingling of funds; (3) whether the activity was conducted on publicly owned property; (4) whether services contracted for 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; and (9) for who's benefit the private entity is functioning.
Florida law requires custodians of public records to permit inspection and copying of same by any person desiring to do so at a reasonable time, under reasonable conditions, and under supervision of the custodian. The custodian may charge a reasonable fee for the cost of researching and gathering the materials, as well as for photocopying. Attorneys’ fees and costs and other penalties may be imposed for failure to comply with the Public Records Act.
Effective July 1, 2013, each public agency contract for services must now include a provision that requires the “contractor” to comply with the Public Records Act, including: (a) maintaining public records that ordinarily and necessarily would be required by the public agency in order to perform the service; (b) providing the public with access to public records on the same terms and conditions that the public agency would provide; (c) ensuring that public records that are exempt from disclosure are not disclosed except as authorized by law; (d) meeting all requirements for retaining public records; (e) transferring, at no cost, to the agency all public records in possession of the contractor upon termination of the contract; (f) destroying any duplicate public records that are exempt from disclosure; and (g) providing all electronically stored records to the agency in a format that is compatible with the agency’s information technology systems. See Section 119.0701(2), Fla. Stat.
“Contractor” is defined as an entity that “enters into a contract for services with a public agency and is acting on behalf of the public agency” (i.e., is acting as an “agency” as defined under Section 119.011(2)). See Section 119.0701(1), Fla. Stat. Arguably, private entities not “acting on behalf of the agency” would not be subject to Section 119.0701. See News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029, 1031 (Fla. 1992) (private entity does not act on behalf of an agency merely by entering into a contract to provide professional services to the agency and identifying a non-exhaustive list of factors to consider). Private entities may nonetheless choose to voluntarily submit to Section 119.0701 since any doubt about application of Chapter 119 is resolved in favor of disclosure. See Dade County Aviation v. Knight Ridder, Inc., 800 So.2d 302 (Fla. 3d DCA 2001).
If a contractor is subject to Section 119.0701 and does not comply with a public records request, the agency must enforce the contract provisions against the contractor. See Section 119.0701(3), Fla. Stat. Such provisions can include holding the contractor in default, termination, or imposition of financial penalties.