Does your private company contract with government agencies? If so, your company may have records that must be disclosed to the public under Florida’s Public Records Law.
Florida’s Public Records Law can be found in Chapter 119 of the Florida Statutes. It requires public agencies to make records available for inspection and copying. The law also applies to the records of private companies under certain circumstances. The law is very broad and applies to many forms of records. For instance, emails, text messages and social media posts are all records that may be subject to disclosure. Determining whether your company’s records are subject to disclosure, however, is complicated because it depends on many different factors.
The complexities of the law are troublesome since a company’s failure to comply with the law can be used as the basis for a lawsuit. In the last couple of years, there has been a rise in these types of lawsuits against private companies. Some of these suits appear to be a scam operation where the plaintiff has attempted to take advantage of private companies that are unfamiliar with the Public Records Law in order to recover an award of attorney’s fees. There is pending legislation that seeks to amend Chapter 119 to better protect private companies from frivolous lawsuits (HB 163 / SB 224). In the meantime, however, your company should take steps to avoid becoming the target of a lawsuit. These steps will also help your company properly respond to legitimate requests for records.
Here are some suggested steps to follow:
- Instruct your staff to be on the lookout for records requests in any form by any person.Any person can request records. There is no requirement that the person making the request have a special or well-founded interest in the records. The request can be oral orwritten. Oral requests are just as effective under the law as written ones. You cannot require a person requesting records to provide background information, a mailing address or fill out a request form
- Note the date of any request. If the request is in writing, date stamp the date it was received. If the request is oral or a voice message, make a written record of the date it was received.
- Acknowledge the request in writing. Tell the requesting party that you willquickly make agood faith effort to determine whether the records are subject to disclosure under Florida’s Public Records Law, where they are located and that they will be produced for inspection and copying in a short amount of time.
- Talk to an attorney. If you haven’t already done so, talk to an attorney to determine whether your company is required to permit inspection and copying of the requested records and whether any exemptions to disclosure exist.
- Notify the requesting party of when and where the records may be If the records must be disclosed, prepare a written response to the requesting person indicating the date and time that the records will be made available for inspection. The law requires that the records be made available at “any reasonable time, under reasonable conditions and under supervision by the custodian of the public records.”
- Determine the appropriate copying charges. See Section 119.07(4), Florida Statutes for permissible charges. Generally, you may not charge more than 15 cents per one-sided page measuring 14 x 8 ½ inches (20 cents may be charged for a two-sided copy). For all other copies, the actual cost of duplication may be charged. However, this means the cost of the materials and supplies used to duplicate the record; it does not include labor or overhead costs.
- Keep a detailed record. Record the date that the records were inspected by the requesting party and/or the date copies were provided. Also, keep a copy of all documents you provided or made available for inspection. Finally, be sure to keep copies of all written communications with the requesting party.
These tips may help your company avoid becoming the target of a lawsuit. These tips will also help your company respond to legitimate requests for records.