Rouselle “Bo”Sutton, III | GrayRobinson PA | August 31, 2016
Florida’s Public Records Act (“Act”) was recently revised to make prior amendments to the Act easier to comply with for Public Agencies, as well as those acting on their behalf. Its other purpose was to curb litigation and liability for attorneys’ fees from public information requests. For these reasons, those that may be subject to the Act should be aware of the recent amendment.
To better understand the recent amendment, a brief discussion of the Act is helpful. Florida’s Constitution and the Act require records made or received in connection with the transaction of official business be made available by a Public Agency for personal inspection and copying by any person. Historically, it has been the responsibility of each Public Agency to house and provide ongoing access to its public records. However, this could change a bit with the recent amendment. There are several important questions to address with regard to the recent amendment: first is there a Public Agency involved in the contractual chain; second, is a private entity acting on behalf of the Public Agency; and third, what does the contract say about ongoing responsibility for maintaining the public records?
First things first, what is a Public Agency? Florida considers a “Public Agency” to include a state, county, district, authority, municipal officer, department, division, board, bureau, commission, or other separate unit of government. However, because Public Agencies are permitted to hire “contractors” to provide services or to act on behalf of the Public Agency, contractors may also be required to comply with the Act. A “contractor” includes “an individual, partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency.” (emphasis added) Who is or is not a “contractor” in the eyes of the Act is the critical piece of the puzzle. In the design and construction world, this could include the architect, engineer, general contractor, or whomever had a direct contract with the Public Agency for a construction project if they are determined to be “acting on behalf of a public agency”. To be clear, though, providing services to or for a Public Agency does not, by default, constitute “acting on behalf of a public agency”. More is required.
What constitutes “acting on behalf of the public agency”? Unfortunately, the Act does not address this. This has been left up to case law. Since 1992, Florida’s courts have applied a “totality of the factors” analysis, codified in the case News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992) to determine whether a private entity is acting on behalf of a Public Agency and falls within the purview of the Act. These factors include, but are not limited to, (1) the level of public funding; (2) commingling of funds; (3) whether the activity was conducted on a publicly owned property; (4) whether the 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 would otherwise 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. At the conclusion of the analysis, if it is determined a private entity is acting on behalf of a Public Agency, the Act applies to that entity, and triggers access to public documents requirements and penalties for failure to comply.
In 2013, with a goal of clarification, the Act was amended to create section 119.0701, which required provisions to be included in Public Agency contracts with contractors “acting on behalf of the public agency” to contain contractual provisions clarifying the public record responsibilities of the contractor. Among other things, the affected contractors were to provide open access to the public records in their possession, the same as the Public Agency would, during the pendency of the contract, but required the public files be transferred to the Public Agency at the termination of the contract. Unfortunately, the 2013 amendment to the Act led to more litigation for agencies and their contractors.
On March 8, 2016, Governor Scott approved CS/HB 273, which enacted changes to contractors’ duties to provide access to public records relating to contracts with a Public Agency. The goal is to soften the effect of the 2013 changes. It can now be easier for construction contractors and design professionals to comply with the Act’s requirements. The 2016 amendment applies to contracts with a Public Agency entered into or amended on or after July 1, 2016.
Importantly, now the contractor can be required to keep the public records upon termination or completion of the contract instead of the Public Agency maintaining those public records. The contract between a Public Agency and a contractor must address which of the two will retain the public records. This is a critical distinction that carries additional compliance efforts, as well as legal implications. As a result, if the contractor keeps the records upon termination or completion of the contract, it must comply with all requirements under the Act or face penalties for failing to timely produce the public records.