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119.01. General state policy on public records

119.01. General state policy on public records. BASIC PURPOSE AND POLICY: (1) It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person . Providing access to public records is a duty of each agency.

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119.01. General state policy on public records

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  1. 119.01. General state policy on public records BASIC PURPOSE AND POLICY: (1) It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency. “In Florida, disclosure is the standard, unless the Legislature concludes that the public necessity compels an exemption from our strong open government laws.” Florida Attorney General Government in the Sunshine Manual, 2008 ed., Vol. 30.

  2. 119.011. Definitions • (12) “Public records” means 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. •   This definition includes all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge. SeeShevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). • Regardless of whether such records are in final form, they are open for public inspection unless an exemption applies. SeeWait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). • But See Times Publishing v. St. Petersburg, 558 So.2d 487 (Fla. 2d DCA 1990): “handwritten notes not intended to perpetuate, communicate, or formalize knowledge, but instead are a precursor to government records are not public records.” • "the form of the record is irrelevant; the material issue is whether the record is made or received by the public agency in connection with the transaction of official business." AGO 04-33.

  3. 119.011. Definitions (1) “Actual cost of duplication” means the cost of the material and supplies used to duplicate the public record, but does not include labor cost or overhead cost associated with such duplication. (Law does allow reasonable reimbursement for the actual pro- rata cost of employee salary/wage and benefits for time spent in complying with extensive requests) (2) “Agency” means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

  4. 119.011. Definitions (CONT.) (8) “Exemption” means a provision of general law which provides that a specified record or meeting, or portion thereof, is not subject to the access requirements of s. 119.07(1), s. 286.011, or s. 24, Art. I of the State Constitution. (13) “Redact” means to conceal from a copy of an original public record, or to conceal from an electronic image that is available for public viewing, that portion of the record containing exempt or confidential information.

  5. 119.021. Custodial requirements; maintenance, preservation, and retention of public records Public Records are to be: Kept in the buildings in which ordinarily used. If practicable, records of vital, permanent, archival records are to be stored in a waterproof and fireproof vault. Damaged or worn records are to be refurbished Certain specific procedures to be carried out when records are being copied or repaired for refurbishment. Records to be kept for the length of period set forth by retention schedules created by of The Division of Library and Information Services of the Department of State. See Section 119.021(1-4), Florida Statutes

  6. 119.07. Inspection and copying of records; photographing public records; fees; exemptions (1)(a) Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. Custodian must “acknowledge” request “promptly” and “respond to such requests in good faith.” See 119.07(1)(b) Reasonable Time: No delay in the production of records is allowed, and the response time permitted "is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt." Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984). Medium of Storage: If records are maintained in more than one medium (ex. hard copies and electronic), then agency must provide copies in the medium requested. See 119.(2)(f)

  7. 119.07. Inspection and copying of records; photographing public records; fees; exemptions (Cont.) REDACTION/EXEMPTION: If an exemption applies to part of a record, then the confidential information is to be redacted and the remainder of the document is to be produced. See 119.07(1)(d) If an entire document is exempt, then custodian must set forth the exemption, citing the applicable statute. See 119.07(1)(e) If requested by the person seeking records, then the custodian must put “in writing and with particularity the reason for the conclusion that the record is exempt or confidential.” See 119.07(1)(f)

  8. 119.07. Inspection and copying of records; photographing public records; fees; exemptions (Cont.) MISCELLANEOUS PROVISION: Record must be maintained for at least an additional 30 days after request, even if record is claimed confidential. If civil action is ensued concerning the record, then record cannot dispose of records absent a Court Order. See 119.07(1)(h) Request need not be in writing: “There is no requirement in the Public Records Act that requests for records must be in writing” Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 305n.1 (Fla. 3d DCA 2001). Ambiguous and broad requests must be acknowledged and fulfilled: A request "all" financial records of agency must be acknowledged, and fulfilled to the extent possible. SeeState ex rel. Davidson v. Couch, 156 So. 297, 300 (Fla. 1934). If a request is ambiguous or insufficient to identify particular records, the custodian has a duty to notify the requestor that additional information is needed. SeeSalvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991) Difficulty of the request is not an excuse for non-compliance: Regardless of the difficulty in providing records to a request, it must be done: "breadth of such right [to gain access to public records] is virtually unfettered, save for the statutory exemptions . . . ." See Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985).

  9. 119.07. Inspection and copying of records; photographing public records; fees; exemptions (Cont.) NO NEED TO CREATE RECORDS OR PROVIDE INFORMATION: A custodian is not required to give out information from the records of his or her office. See AGO 80-57. A custodian or agency need not produce an employee, such as the financial officer, to answer questions regarding the agency’s business. See AGO 92-38. A custodian"is required to provide access to or copies of records but is not required either to provide information from records or to create new records in response to a request.” In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).

  10. 119.07. Inspection and copying of records; photographing public records; fees; exemptions (Cont.) (2)(a) As an additional means of inspecting or copying public records, a custodian of public records may provide access to public records by remote electronic means, provided exempt or confidential information is not disclosed. Custodian must provide safeguards to ensure that exempt and confidential records are not viewed, and that records are not modified. See 119.07(2)(b) Reasonable fees may be charged for remote access. See 119.07(2)(c)

  11. 119.07. Inspection and copying of records; photographing public records; fees; exemptions (Cont.) (3)(a) Any person shall have the right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records. Photographing is to be supervised by custodian Custodian can adopt and enforce reasonable rules governing photographing of records (ex. times of day, handling of records, etc.) See 119.07(3)(c) The reasonable rules language "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review.“ See Wait v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla. 1979). Photographing is to be performed in room where records are generally kept. If not possible, then requester is to pay for any reasonable expense incurred in obtaining the closest nearby room where photographing may occur. See 119.07(3)(d)

  12. 119.07. Inspection and copying of records; photographing public records; fees; exemptions (Cont.) (4) The custodian of public records shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law. If a fee is not prescribed by law, the following fees are authorized: 8 ½ x 14 copies: 15 cents for one sided copies; 20 cents for two sided copies. See 119.07(4)(a) Other copy sizes: actual cost of duplication. See 119.07(4)(a) Charges for maps and photographs “may include a reasonable charge for the labor and overhead associated with their duplication.” See 119.07(4)(b) If the records request is extensive, by volume or by effort, then custodian may charge actual cost of duplication plus “a special service charge”, which can include the pro rata share of an employees salary/wage and benefits while performing work in response to the request. See 119.07(4)(d) See also Bd. of County Commissions of Highlands County v. Colby, (Fla. 2d DCA 2008). For extensive requests, most give a good faith estimate and require prepayment before fulfilling request. (7) An exemption from this section does not imply an exemption from s. 286.011 (Sunshine/Open Meetings). The exemption from s. 286.011 must be expressly provided.

  13. Exemptions: Purchasing Related Exemptions • Bids, Proposals, or Replies: • “Sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation are exempt from s. 119.07(1) . . . until such time as the agency provides notice of an intended decisionor until30 days after opening the bids, proposals, or final replies, whichever is earlier.” Section 119.071(1)(b)(2), Florida Statutes. • Rejected bids, Proposals, or Replies: • 3. If an agency rejects all bids, proposals, or replies submitted in response to a competitive solicitation and the agency concurrently provides notice of its intent to reissue the competitive solicitation, the rejected bids, proposals, or replies remain exempt from s. 119.07(1) . . .until such time as the agency provides notice of an intended decision concerning the reissued competitive solicitation or until the agency withdraws the reissued competitive solicitation. A bid, proposal, or reply is not exempt for longer than 12 months after the initial agency notice rejecting all bids, proposals, or replies.Section 119.071(1)(b)(3), Florida Statutes.

  14. Exemptions: Purchasing Related Exemptions (cont.) • Prospective Bidder Financial Info-Any financial statement which an agency requires a prospective bidder to submit in order to pre-qualify for bidding is exempt. • “Any financial statement that an agency requires a prospective bidder to submit in order to prequalify for bidding or for responding to a proposal for a road or any other public works project is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.” Section 119.071(1)(c), Florida Statutes.

  15. Exemptions: Purchasing Related Exemptions (cont.) • 3. Real Property Purchase-Appraisals, offers, or counteroffers relating to a county's purchase of real property for educational purposes until executed or 30 days before the Board considers a contract/agreement for approval (FS § 1013.14(1)(a)). • (1)(a) In any case in which a board, pursuant to the provisions of this chapter, seeks to acquire by purchase any real property for educational purposes, every appraisal, offer, or counteroffer must be in writing and is exempt from the provisions of s. 119.07(1)until an option contract is executed or, if no option contract is executed, until 30 days before a contract or agreement for purchase is considered for approval by the board. If a contract or agreement for purchase is not submitted to the board for approval, the exemption from s. 119.07(1) shall expire 30 days after the termination of negotiations. The board shall maintain complete and accurate records of every such appraisal, offer, and counteroffer. For the purposes of this section, the term “option contract” means an agreement by the board to purchase a piece of property, subject to the approval of the board at a public meeting after 30 days' public notice.

  16. Exemptions: Purchasing Related Exemptions (cont.) • 4. Trade Secret/Licensing-Data processing software obtained by the District under a licensing agreement prohibiting its disclosure and which software is a trade secret and District produced data processing software that is sensitive (FS § 119.071(1)(f)). • “Data processing software obtained by an agency under a licensing agreement that prohibits its disclosureand which software is a trade secret, as defined in s. 812.081, and agency-produced data processing software that is sensitive are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. The designation of agency-produced software as sensitive shall not prohibit an agency head from sharing or exchanging such software with another public agency.” Section 119.071(1)(f), Florida Statutes.

  17. Other Exemptions: Public Records Law Exemptions (Confidential Records/Information) Below are common exemptions listed in the Attorney General’s Online Sunshine Manual that may refer to School Board Activities. A more complete list can be obtained from the Attorney General’s Online Sunshine Manual: EXEMPTIONS (STUDENTS): 1.      Birth Records- all birth records of Florida except most of those over 100 years old. SeeSection 382.025. 2.      Social Security Numbers-All social security numbers held by an agency. See Section 119.071(5). 3.      Student Records-Personally identifiable educational records or reports of the student and any personal information contained therein See Section 1002.22(3). (This would include student discipline records, student suspension and expulsion hearing records, records of challenging a student record, etc.)

  18. Student Exemptions (CONT.): 4.      Student Records (Cumulative File)-Cumulative records of public school pupils. See Section 1003.25(1)). 5.      Student Records (Correspondence Concerning Students)-Generally, any letters discussing pupils, received by Board members, the Superintendent, or other District personnel, which constitutes pupil records under (FS § 1002.22) as determined in DOE General Counsel's Opinion 02-01. 6.      Student Records (ESE)-Records of hearings on exceptional student placement or denial of placement in special education programs. See 1003.57(1)(e). 7.      Student Records (Standardized Tests)-Department of Education tests, approved by the State Board of Education, and related documents developed to measure and diagnose student achievement of college-level communication and mathematics skills See 1008.345(8). 8.      Student Records (Standardized Tests #2)-Examination and assessment instruments, including developmental materials and work papers that are prepared, prescribed or administered relating to high school graduation requirements, student assessment programs for public schools, and public school student progression. See 1008.23.

  19. Student Exemptions (CONT.): 9.      Student Records (Educational Services)-Information used by interdisciplinary teams involved in decisions regarding the design and delivery of specified educational services to students residing in residential care facilities operated by the DCF. See 402.22(3). 10.      Student Records (Early Learning)-Individual records of children enrolled in school readiness programs, held by an early learning coalition or the Agency for Workforce Innovation See 411.011. 11.      Florida Ed. And Training Program Info-Information that could identify an individual or the individual's employer which is contained in The Florida Education and Training Placement Information Program. See 1008.39(3). 12.      Health Service Provisions- Provisions in the school health services plan developed for maintenance of health records of individual students. See 381.0056(5). 13.      Drop Out Prevention-For dropout prevention and academic intervention programs that are coordinated with social service, law enforcement, prosecutorial, and juvenile justice agencies and juvenile assessment centers, information exchanged in student records and juvenile justice records. See 1003.53(6).

  20. Student Exemptions (CONT.): 14.      Kidcare Applicant Info.-Information identifying a Florida Kidcare program applicant or enrollee. See 409.821. 15.      FL Healthy Kids Info.-Identifying information, including medical records and family financial information, obtained by the Florida Healthy Kids Corporation See 624.91(8). 16.      Law Enforcement Records-Various specified law enforcement records, including active criminal intelligence information and active criminal investigation information. See 119.071(2). 17.      Law Enforcement Records (Juvenile Offender Records)-Confidential juvenile justice offender records, although the Statute sets forth exceptions. See 985.04. 18.      DCF reports- of child abandonment, abuse, or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, the name of any person reporting child abuse, abandonment, or neglect, and all records and reports of the child protection team of the Department of Health. See 39.202(1), (5), & (6); 39.201 (1).

  21. Student Exemptions (CONT.): 19.      DCF Custody Records-Documents showing the presence of any child in the care and custody or under the jurisdiction or supervision of DCF who has a known history of criminal sexual behavior with other juveniles; is an alleged juvenile sex offender, as defined in s. 39.01; or has pled guilty or nolo contendere to, or has been found to have committed, a violation of chapter 794, chapter 796, chapter 800, s. 827.071 , or s. 847.0133 , regardless of adjudication. See 39.0132(4). 20.      Child Abuse/Neglect Records-Information received during the interview or from any other source regarding the alleged abuse or neglect of the child in a child protective investigation or a criminal investigation. See 39.301 (18). 21.      Child Abuse/Neglect (#2)-Regarding child abuse, abandonment, or neglect, all information obtained in the discharge of official duty by any judge, employee of the court, authorized agent of DCF, correctional probation officer, or law enforcement agent. See 39.0132(4). 22. Admission applications and educational records of applicants for admission to post secondary educational facility. See. 1002.221.

  22. Personnel Exemptions: 1. Social Security Numbers- Social security numbers of all current and former District employees. See 119.071(4)(a) and 119.071(5)(a). 2. Employee evaluations- until the end of the school year immediately following the school year during which the evaluation was made. See 1012.31(3). 3. Employee evaluations- made prior to July 1, 1983. See 1012.31(3). 4. Employee payroll deduction records. See 1012.31(3). 5. Direct deposit records- made on or after October 1, 1986, the names of the authorized financial institutions and the account numbers of the beneficiaries See 17.076(5). 6. Personal Account Activities-Records identifying individual participants in any contract or account relating to tax-sheltered annuities or custodial accounts and their personal account activities. See 112.21(1). 7. Deferred Compensation Plan-Records identifying individual participants in any deferred compensation plan and their personal account activities. See 112.215(7).

  23. Personnel Exemptions (CONT.): 8. Retirees- Names and addresses of retirees. See 121.031(5). 9. Medical Records- Employee medical records. See 1012.31(3). 10. Medical Information-Medical information pertaining to a prospective, current, or former Board member or District employee which, if disclosed, would identify that person. See 119.071(4). 11. Medical Information (#2)-Information relating to the medical condition or status of any person covered by health or life insurance benefits provided or administered by the employer. See 760.50(5). 12. Medical Information (#3)-Medical records and reports of an injured employee and any information identifying an injured employee in medical bills which are provided to the Department of Financial Services. See 440.125. 13. Worker’s Compensation-Documents and inspection results produced pursuant to (FS § 440.39(7)) relating to investigation and prosecution of claims against third-party tortfeasors under worker's compensation laws. See 440.39(7).

  24. Personnel Exemptions (CONT.): 14. Drug Testing Info-Except as provided in (FS § 440.102(8)), all information, interviews, reports, statements, memoranda, and drug test results received or produced as a result of a drug-testing program. See 440.102(8). 15. Drug Testing Info (#2)Documentation of unsatisfactory explanation of positive drug test results of employees or job applicants. See 112.0455(8). 16. Law Enforcement Records-Various specified law enforcement records, including active criminal intelligence information and active criminal investigation information. See 119.071(2). 17. Law Enforcement Directory Info.- Home addresses, telephone numbers, social security numbers, and photographs of active or former law enforcement personnel, Florida judges and current and former state and assistant state attorneys as well as the home addresses, telephone numbers, social security numbers, photographs and places of employment of their spouses and children in addition to the names and locations of schools and day care facilities attended by the children of those personnel. See 119.071(4).

  25. Personnel Exemptions (CONT.): 18. Specified Employee Directory Info.-Home addresses, telephone numbers, social security numbers, and photographs of current or former human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers whose duties include hiring and firing employees, labor contract negotiations, administration, or other personnel-related duties as well as the home addresses, telephone numbers, social security numbers, photographs and places of employment of their spouses and children in addition to the names and locations of schools and day care facilities attended by the children of those personnel. See119.07(4). 19. Pending Investigations-Any complaint and any material relating to the investigation of a complaint against an employee, until the conclusion of the preliminary investigation or until such time as the preliminary investigation ceases to be active. See 1012.31(3). 20. Banking Info.-Bank account, debit, charge and credit card account numbers. See119.071(5). 21. Work Product- Claims files maintained by a risk-management program administered by the District, until termination of all litigation and settlement of all claims arising from the same incident, although some portions of the files may remain exempt. See 768.28(16).

  26. Personnel Exemptions (CONT.): 22. Exam Questions and Answers-Examination questions, and their answers sheets, administered by a governmental agency for the purpose of licensure, certification or employment (although the person taking the exam may review his/her own completed exam). (FS § 119.071(1)(a)). 23. Criminal Background Checks-Criminal or juvenile personnel background check information obtained under FS Ch. 435 for employment screening (FS § 435.09). 24. Fingerprints- Biometric identification information, including fingerprints. ( FS § 119.071(5)(g)1). 25. Whistle Blower- The identity of a whistle-blower (and, if there is an investigation, other information received during the investigation) (FS § 112.3188). 26. Ridesharing Info.- Information provided to an agency for purpose of forming ridesharing arrangements that reveals the identity of the individual (FS § 119.071(5)(e)). 27. Pending Investigation (#2)- The complaint against a teacher or administrator and all information obtained during the preliminary investigation by the Department of Education, until the conclusion of the investigation or when the investigation ceases to be active (FS § 1012.796(4)).

  27. Personnel Exemptions (CONT.): 28. Pending Investigation- Discrimination- Complaints and other records which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap or marital status until a finding is made of probable cause, the investigation becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding (FS § 119.0713(1)). 29. DCF Reports- DCF reports of child abandonment, abuse, or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, the name of any person reporting child abuse, abandonment, or neglect, and all records and reports of the child protection team of the Department of Health. (FS §§ 39.202(1), (5), & (6); 39.201 (1)(b)). 30. School Testing Investigations-Information relating to an improperly administered test (identity of school, personal identifying inforamtion of personnel, specific allegations) are confidential while such allegations are being investigated by DOE. No longer confidential when investigation concluded or no longer active. Section 1008.24.

  28. Personnel Exemptions (CONT.): 31. Child Abuse/Neglect Reports- Information received during the interview or from any other source regarding the alleged abuse or neglect of the child in a child protective investigation or a criminal investigation. (FS §§ 39.301 (18)(b)). 32. Child Abuse/Neglect Reports (#2)-Regarding child abuse, abandonment, or neglect, all information obtained in the discharge of official duty by any judge, employee of the court, authorized agent of DCF, correctional probation officer, or law enforcement agent. (FS §§ 39.0132(4)(A)1) 33. Insured Dependents- personal identifying information of dependent children of current or former agency officers/employees if dependents are insured by agency group insurance plan. See 119.071

  29. Work Product & Audit Exemptions 1. Audit Info- Audit work papers and notes until audit is completed and the audit report becomes final. See 119.0713(3). 2. Donors-Identity of donors and all information identifying donors and prospective donors of direct-support organizations. See 1001.453(4). 3. Work Product (litigation)- A public record which was prepared by an agency attorney or prepared at the attorney's express direction which reflects a mental impression, conclusion, litigation strategy, or legal theory in anticipation of imminent litigation or imminent adversarial administrative proceedings. See 119.071(1). 4. Work Product (bargaining)-Work product developed in preparation for collective bargaining. See 447.605(3).

  30. Security Exemptions 1. Security Systems Info-Information relating to the security systems for any property owned or leased and information relating to the security systems for any privately owned or leased property. See 119.071(3) and See 281.301. 2. Blueprints-Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats which depict the internal layout and structural elements of buildings or other structures owned or operated. See 119.071(3).

  31. Thank You For Your Time NOTICE: These materials are for general presentation purposes only, and are not meant to be or take the place of legal advice. Statutory Law and Case Law are constantly changing and evolving, so any and all specific questions concerning the application of the public records laws and its exemptions should be considered on a case by case basis by qualified individuals. CREDITS: Portions of the information contained herein were obtained from the following sources: Florida Statutes Attorney General of Florida Sunshine Manual; LINK: http://myfloridalegal.com/sun.nsf/manual

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