According to Fla. Stat. § 119.011(12) (2008), “public records” include “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”
In a 2008 Florida Attorney General Advisory Legal Opinion, it was reaffirmed that “e-mail messages made or received by agency employees or officials in connection with official business are public records and are subject to disclosure in the absence of an exemption.” Op. Att’y Gen. 08-07 (2008). However, personal e-mail messages are not public records, even if placed on a government-owned computer system. State v. City of Clearwater, 863 So. 2d 149, 150 (Fla. 2003).
A January 2009 report by the Commission on Open Government Reform found that “the increased use of communications technology including personal computers and handheld devices has changed the nature of communication but it has not diminished the value of Florida’s open government laws or the need for public officials to consistently follow the law.” Commission on Open Government Reform, Final Report (Jan. 2009).
“E-mail communications between members of a commission are public record and must be retained by law. Such discussions may violate the open meetings law, which applies to any discussion of public business between two or more members of the same board or commission.” Also, “the use of private computers and personal e-mail accounts to conduct public business does not alter the public’s right of access to the public records maintained on those computers or transmitted by such accounts.”
The commission noted, however, that retention issues were “less clear” when public officials or employees used portable handheld devices to send text or instant messages to each other. It said the public records law most likely did not apply to such messages because they are “transitory in nature” and “analogous to the spoken word.” However, a “discussion of public business between two members of the same collegial body using text or instant messaging technology is a clear violation of the open meetings law.”