Cases and opinions
Fees
E-mail
Software
Cost recovery
Resources

Long held in awe by reporters using databases as one of the most open states, Florida has seen erosion in recent years in access to public records. Although reporters there are frustrated with additional limitations on records access, Florida remains one of the better states for electronic access. After September 11, many exemptions were proposed to the already length list of records that may be withheld in Florida. Fortunately, most of them did not make it into law.

On the plus side, the standard for creation of new exemptions to the Sunshine Act was amended in November 2002 to require a two-thirds vote of the legislature for passage of any exemption to the public records law or sunshine law.

A legislative study group recently made 13 recommendations regarding access to electronic court records. "No new exemptions were proposed, but there was a recommendation that the court may want to take a careful look at the information it collects to determine whether new, additional exemptions are needed," First Amendment Foundation Executive Director Barbara Petersen said in a Feb. 14, 2003 statement.

The law. The standard for creation of new exemptions was amended in November 2002 to require a two-thirds vote of the legislature for passage of any exemption to the public records law or sunshine law. Provisions relating to electronic access were reenacted as Fla Stat. § 119.084 in 2002.
Under 1993 amendments to the Sunshine Law, public records and meetings of the legislative, executive, and judicial branches and each agency or department are open unless exempted by statute. Fla. Const. of 1885, art. I, § 24. Exemptions must be narrowly drafted and justified by public necessity. § 24(c). Under the Sunshine Law (Fla Stat. Chapter 119), every person who has custody of a public record must allow the record to be inspected and examined by any person desiring to, under reasonable conditions. The custodian must furnish a copy of the record upon payment of the cost of duplication or of the fee prescribed by law.

The state Sunshine Law defines public records as "all documents, . . . tapes, data processing software. . . or other material, regardless of physical form or characteristics." Fla. Stat. § 119.011(1).

Each agency that maintains a public record in an electronic record-keeping system shall provide to any person a copy of any public record in that system which is not exempted by law from public disclosure. § 119.084(5). An agency that maintains a public record in an electronic record-keeping system must provide a copy of the record in the medium requested by the person making a Ch. 119 demand, if the agency maintains the record in that medium, and the agency may charge a fee which shall be in accordance with Ch. 119. Id.

Thus, a custodian of public records must, if asked for a copy of a computer software disk used by an agency, provide a copy of the disk in its original format; a typed transcript would not satisfy the requirements of § 119.07(1). See Fla. Op. Att’y Gen. 91-61.

The definition of "public records" specifically includes "data processing software" and establishes that a record made or received in connection with official business is a public record, regardless of physical form, characteristics, "or means of transmission." See § 119.011(1).

As a matter of public policy, "providing access to public records is a duty of each agency and . . . automation of public records must not erode the right of access to those records." § 119.01(3). "As each agency increases its use of and dependence on electronic record keeping, each agency must ensure reasonable access to records electronically maintained."

Section 119.085 authorizes but does not require agencies to provide remote electronic access to public records. And see § 119.01(2), stating: "The Legislature finds that, given advancements in technology, providing access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible"; and, that agencies providing remote access should do so "in the most cost-effective and efficient manner available to the agency . . . ." Cf., Rea v. Sansbury, 504 So. 2d 1315, 1317-1318 (Fla. 4th DCA 1987), review denied, 513 So. 2d 1063 (Fla. 1987) (while § 119.085 authorizes the county to facilitate inspection of public records by electronic means, the statute "does not mean that every means adopted by the county to facilitate the work of county employees ipso facto requires that the public be allowed to participate therein").

Unless otherwise required by law, the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which may include the direct and indirect costs of providing such access. However, fees for remote electronic access provided to the general public must be in accordance with the provisions of § 119.07(1).

Cases & opinions. Public officials do not have to provide copies in the format requested when the government’s software will not provide such a format. But officials may allow a requester to pay for or supply a program in order to obtain information in the desired format. A court may order an agency to cooperate when new programs must be written to excise confidential information or to access information that existing government programs do not reach, when "the form in which the information is proffered does not fairly and meaningfully represent the records," or when "other exceptional circumstances exist." Seigle v. Barry, 422 So. 2d 63 (Fla. Dist. Ct. App. 1982), pet. for rev. denied, 431 So. 2d 988 (Fla. 1983).
Intermediate files that enable the computer to assemble data for final output, but are not otherwise intelligible, are not public records because they are not intended to "perpetuate or formalize knowledge" and are not in themselves final evidence of the knowledge to be recorded. Fla. Op. Att’y Gen. 85-87 (Oct. 25, 1985).

A citizen who wanted to look at the legal fees records of a public hospital board was entitled to examine the actual records rather than extracts from the hospital’s computer. Davis v. Sarasota County Public Hospital Board, 480 So. 2d 203 (Fla. Dist. Ct. App. 1985), rev. denied, 488 So. 2d 829 (1986).

The Department of Revenue’s tangible personal property assessment rolls, recorded on computer tapes, are subject to inspection and copying under the Public Records Act. Fla. Op. Att’y Gen. 87-11 (Jan. 26, 1987).

If county commissioners use a computer network to conduct official business, all computer-stored information is subject to the Public Records Act. Any meetings conducted by computer network are subject to the open meetings law. Fla. Op. Att’y Gen. 89-39 (June 26, 1989).

A custodian of public records stored on a computer data software disk must provide a "like copy" in its original format. A typed transcript of the computerized public record does not satisfy the requirements of the public records act. Fla. Op. Att’y Gen. 91-61 (Aug. 23, 1991).

A statewide computerized violent crime database contains information that is exempt from the public records law. The system contains crime information and material derived from both active and inactive criminal case reports. The system is exempt to the extent that it involves active criminal intelligence information, which if disclosed, could impede criminal investigations and the apprehension of criminals. Fla. Op. Att’y Gen. 94-48 (May 24, 1994).

However, Florida criminal history records are available for a fee and the state maintains a sexual predator database that is accessible thorough the Internet. E-mail messages made or received by a state agency in connection with the transaction of official business are public records. Fla. Op. Att’y. Gen. 96-34 (May 15, 1996).

As public records, these e-mail messages are subject to state statutory restrictions on destruction, which require agencies to adopt schedules for the destruction of records that are no longer needed. Fla. Op. Att’y Gen. 96-34 (May 15, 1996).
A database that lists holders of permits from the Florida Game and Fresh Water Fish Commission and subscribers to the commission’s magazine are public record. "It has long been the opinion of this office that, in the absence of a statute to the contrary, public information must be open to the public without charge." Fla. Op. Att’y Gen. 85-03.

A Florida court rejected the argument that information requested would have to be "created" because the information is not indexed in the form requested. "The task is more onerous because it must be done manually, but it can be done," the court said. Newman v. Amente, 634 So. 2d 305 (Fla. 5th DCA 1994).

"The e-mail communication of factual background information from one city council member to other council members is a public record and should be maintained by the records custodian for public inspection and copying. However, such communication of information, when it does not result in the exchange of council members’ comments or responses on subjects requiring council action, does not constitute a meeting subject to the Government in the Sunshine Law." Fla. Op. Att’y Gen. 2001-20.

"The use of an electronic bulletin board by water management district basic board members to discuss matters that may foreseeably come before the basin board over an extended period of days or weeks, which does not permit the public to participate online, is a violation of section 286.011 Fla Statutes, and should be discontinued." Fla. Op. Att’y Gen. 2002-32.

"A school board may use electronic media technology in order for a physically absent member to attend a public meeting of the board if a quorum of the members is physically present." Fla. Op. Att’y Gen. 98-28.

The U.S. Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), foreclosed the possibility that a federal constitutional privacy interest exists in relation to state dissemination of nonconviction arrest data.

Florida’s public records law applies to criminal history information compiled and maintained by the Florida Dept. Of Criminal Law Enforcement. Fla. Op. Att’y Gen. 77-125.

Physically disabled members of the City of Miami Beach Barrier-free Environment Committee may participate and vote on board matters by electronic means if they are unable to attend a public meeting so long as a quorum of the members of the board is physically present at the meeting site. Fla. Op. Att’y Gen. 2002-82, Dec. 11, 2002.

Fees. "In the absence of a statute prescribing a fee which may be charged for furnishing copies of the growth management books, the City of Fort Myers is limited to charging only the actual cost of duplication when selling copies." Fla. Op. Att’y Gen. 89-93.

Unless the specific request for copies requires extensive clerical or supervisory assistance or extensive use of information technology resources, or both, the Division of Elections may charge only the actual cost of duplication for copies of voter registration records as provided in Fla. Stat. § 119.07(1)(a). Fla. Op. Att’y Gen. 99-41.

Sales tax does not apply to fees charged for providing copies of public records. Fla. Op. Att’y Gen. 86-83.

Fees are limited to the actual cost of copying, including "materials and supplies" but excluding "labor cost or overhead cost," unless other statutes specifically allow recovery of such costs. Fla. Stat.§ 119.07(l)(a). Generally, a fee may not be imposed for inspecting records. Florida ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905); Fla. Op. Att’y Gen. 85-3 (Jan. 8, 1985).

Fees for remote electronic access may include the direct and indirect costs of providing such access. § 119.085. A public body does not have to provide electronic records in a format other than that routinely used, but if it elects to provide the records in a different, requested format, it may charge the requester the costs of conversion. Fla. Op. Att’y Gen. 97-39 (June 30, 1997). If a custodian provides a copy of government software to a requester, the fee may not include costs of developing the software. Fla. Op. Att’y Gen. 87-1 (Jan. 2, 1987). Where a request involves "extensive use of information technology resources or extensive clerical or supervisory assistance . . . the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred." Fla. Stat. § 119.07(b).

"Information technology resources" include data processing hardware, software and services. § 282.303(13). An agency may impose such fees only when they are reasonable and only for extensive use of information technology or supervisory assistance. Fla. Op. Att’y Gen. 84-3 (Jan. 19, 1984); Fla. Op. Att’y Gen. 85-3 (Jan. 8, 1985). "Extensive" can mean "more than 15 minutes." Florida Institutional Legal Services v. Department of Corrections, 579 So. 2d 267 (Fla. Dist. Ct. App. 1991). A fee of $1 per page is permissible for copies of judicial records. WFTV v. Wilken, 675 So.2d 674 (Fla. Dst. Ct. App. 1996).

Access to computerized records is generally provided through the use of programs used by the agency. Access by the use of a specially designed program prepared by or at the expense of the applicant may be permitted in the discretion of the agency. See Seigle, 422 So. 2d at 66. If the agency refuses to permit access in this manner, the circuit court may permit such access where available programs do not access all of the public records stored in the computer’s data banks, or the information in the computer accessible by the use of available programs would include exempt information necessitating a special program to delete such exempt items, or for any reason the format in which the information is proffered does not fairly and meaningfully represent the records, or the court determines other exceptional circumstances exist warranting this special remedy. Id. at 66-67.

E-mail. Theoretically, e-mail is treated no differently than other public records. See Op. Att’y Gen. Fla. 96-34 (1996) (official business related sent or received by agency employees are public records).

A Florida appeals court in May 2002 allowed the city of Clearwater to withhold e-mail messages sent between two employees, determining that the messages were personal and exempt from the state’s open records law. The court held that the e-mail messages were not public records because they were not made pursuant to a statute or to further government business. Times Publishing Co. v. City of Clearwater, 2002 WL 944630, 27 Fla. L. Weekly D1073 (Fla.App. 2 Dist. May 10, 2002).

Software. The definition of "public records" specifically includes "data processing software." There are a couple of exemptions to the law: The statute prohibits disclosure of "data processing software obtained by an agency under a licensing agreement which prohibits its disclosure and which software is a trade secret." "Sensitive software" developed by an agency is also exempt. Fla. Stat. § 119.07(l)(q).

"Agency-produced data processing software which collects, stores, retrieves, and processes voter registration information pursuant to section 98.211, Florida Statutes, is a public record. However, such software is "sensitive" within the terms of § 1119.07(3)(r), and not subject to inspection and copying." Fla. Op. Att’y Gen. 90-04

State agencies may now hold copyrights for data processing software they create, and charge license fees for its use. However, copyright concerns cannot be used to limit access to public records. Fla. Stat. § 119.083.

Data processing software obtained by an agency under a licensing agreement that prohibits its disclosure and which is a trade secret, as defined in s. 812.081, and agency-produced data processing software that is sensitive are exempt from the provisions of subsection (1).[4].

There is no specified fee prescribed for access to computerized public records. However, Fla. Stat. § 119.083(4) provides that fees for access to electronic records may be assessed as prescribed by Fla. Stat.§ 119.07(1)(b). Under this provision, an agency may charge a reasonable special service charge based on the costs incurred for extensive use of information technology resources or extensive use of clerical and supervisory assistance. See Fla. Stat. § 119.07(b)(1); see also Op. Att’y Gen. 97-39 (1997).

An agency may sell or license copyrighted data processing software to any other public or private entity. Fla. Stat. § 119.083(2)(a). Prices or fees for the sale or licensing of copyrighted data processing software may be based on market considerations.

Cost recovery. When the Lee County property appraiser’s office requested an opinion about whether they could charge a fee for access to a specialized computer system, the attorney general said no. "If the furnishing of copies were involved, the custodian would be allowed to charge for the actual cost of duplication of those copies. However, duplication of records is not involved in this instance. In the view of principles of law discussed above and in the absence of statutory authority for the above-described fee or charge, I must conclude that the levying of the above-described fee or charge is not permissible." Fla. Op. Att’y Gen. 84-03.

The clerk of the court in Indian River County may not recoup some of the in-house costs involved in writing computer programs. "Unless and until legislatively amended otherwise, the clerk of the circuit court does not have the authority to charge a fee, other than the actual cost of making the copy, for providing copies of computer software programs in order to recoup the costs associated with writing such programs." Fla. Op. Att’y Gen. 87-01.

Resources. First Amendment Foundation; Marion Brechner Center