HomeMy Public PortalAboutSunburned Article on the Mis-Use of Public Records LawTo: Members of the Florida Legislation
From: Florida League of Cities/Town of Gulf Stream, FL
Subject: Stetson Law Review Article on Abuse of Public Records Laws
In the process of reviewing amended language for the Florida Public Records Act (HB 163/SB 224), you
should be aware of the attached prepublication draft of an extremely provocative article soon to
appear in the Stetson Law Review. The author, Keith Rizzardi, is a Professor of Law at St. Thomas
University, and a recognized legal scholar on issues of government ethics and administrative practice.
Mr. Rizzardi has reviewed Public Records legislation and court interpretation at the Federal level, and in
all 50 U.S. states. His conclusion is that Florida has the broadest and most all-encompassing sunshine
laws in the entire nation, and under normal circumstances, Florida Public Records law is a model for
ensuring the disclosure of information for the public benefit of an informed citizenry.
His meticulous research demonstrates, however, that the abnormal is occurring far too often, due to
the lack of sufficient boundaries to prevent misuse of the law. As a result, the efficiency of many
governmental agencies is compromised and taxpayers are the victims. The article is an attempt to
"provide a solution to the outlier problems, while leaving intact the public right to assess that
democracy holds dear". The techniques used by "outliers" to use the Public Records Act to harass,
intimidate, and extort public agencies and contractors are recounted in great detail, using actual case
histories of Florida municipalities and contractors who have become unwitting victims of fraud.
The author concludes that statutory checks and balances that are already part of Florida law can be
judiciously applied to the Public Records Act. He proposes, for instance, borrowing language from the
Florida Tort Claims Act to compel plaintiff to provide notice of intent to sue when a requested record is
not delivered within 48 hours (usually because the requestor has filed multiple requests, often
anonymously in a short time duration). The purpose would be to give an alleged violator a chance to
remedy the problem and settle with plaintiff, all without going to court.
His most salient recommendation regarding Public Records litigation concerns the one-dimensional fee
provision in Chapter 119.2, which provides outliers virtual impunity to file or threaten lawsuits for
alleged violations of the Act. He notes that 18 states, including Texas and California, allow for
attorney's fees to be collected by either prevailing party in a Public Records action. Florida Statutes
already permit such fee shifting under analogous circumstances, such as the Florida False Claims Act
which awards reasonable fees to defendants when the claims are "clearly frivolous, clearly vexatious, or
brought primarily for the purpose of harassment".
The Florida League of Cities strongly supports appropriate amended language in the Public Records Act
that dissuades misuse, while preserving transparency. The attached article provides a roadmap to
achieve these ends.
March 1, 2015
Pae-PUBLtcnnoN Da :PLE Do Nor Cm
SUNBURNED: HOW MISUSE OF THE PUBLIC
RECORDS LAWS CREATES AN
OVERBURDENED, MORE EXPENSIVE, AND
LESS TRANSPARENT GOVERNMENT
Keith W. Rizzardi-
I. INTRODUCTION. THE ENLIGHTENED PUBLIC
"Every Government degenerates when trusted to the rulers of the
people alone," Thomas Jefferson wrote, emphasizing the importance of
an informed citizenry and its role in monitoring the workings of its
government.' Similarly, Louis Brandeis noted that "[s]unlight is said to
be the best of disinfectants," when he urged for greater disclosure in the
regulation of the financial industry? In the era of the administrative
state, powerful public records laws have codified and protected these
historic sentiments. The federal government has the Freedom of
Information Aet,3 and many states have similar laws, including
Florida ° where the public records law has been praised as a model of
open government. But a more careful review of the facts shows that
state "government in the sunshine" laws can cause sunburn. A select
few people can cause the government to degenerate.
C 2015, Keith W. Rizzardi. All rights reserved. Law professor at St. Thomas University
School of Law, a Board Certified Specialist in State and Federal Government and Administrative
Practice, and a Certified Compliance and Ethics Professional. The Author was inspired to write
this Article by his personal experience working with the United States Department of Justice,
South Florida Water Management District, and the Town of Gulf Stream, Florida, on various
efforts to comply with public records laws. The Author thanks Daniel A. Villavisanis, and Edward
"Trey" Nazzaro and Giovanni Giarratana for their research and editorial assistance, and he
gratefully acknowledges Patricia Gleason and P. Stephen Gidiere III as the authors and editors of
two essential resources on public records law: THE FLORIDA GOVERNMENT -IN -THE -SUNSHINE -
MANUAL and The Federal Information Manual.
1. THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 160 (J.W. Randolph 1853)
("Every Government degenerates when trusted to the rulers of the people alone. The people
themselves, therefore, are its only safe depositories. And to render even them safe, their minds must
be improved to a certain degree.").
2. LOUIS D. BRANDEIS, OTHER PEOPLE'S MONEY AND How THE BANKERS USE IT 92,103-
05 (Frederick A. Stokes Co. 1914).
3. 5 U.S.C. § 552 (2012).
4. FLA. STAT. ch. 119 (2014).
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2 Stetson Law Review [Vol. 44
In theory, the federal Freedom of Information Act, and other state
public records laws, all bestow upon the citizens a right of access to
government information. These laws define the process by which people
can make and enforce their public record requests. Some documents
must be provided immediately; other documents may be exempt from
disclosure. A requester might be required to pay for the costs associated
with access to those records. Significantly, a person seeking public
records has the right to seek judicial relief for government delays and
wrongdoing in processing his or her public records request.
The principles of these public records laws protect the people,
ensuring that they can monitor their government. Still, these noble laws
can be misused. As Oliver Wendell Holmes once warned: "If you want
to know the law and nothing else, you must look at it as a bad
man... ."5 Sharing the wisdom he earned through years as a law
professor and jurist, Holmes recognized that some people would not
care about ethics or morality or the "vaguer sanctions of conscience."'
Rather, the "bad man" would make decisions solely based upon the
legal consequences that follow.7 That predictive analysis readily applies
in the States of Florida and Washington, where citizens can manipulate
the government and harass the public servants by creating countless
public records requests. If the government takes too long to respond, or
makes any error at all—even in a good faith response—citizens can file
the most trivial of lawsuits, knowing that they will be paid fees and
costs. The public records laws have granted the people rights without
responsibility. People can, and do, misuse these laws, seemingly
immune from consequences.
The problems with the public records laws are acute in Florida,
where a typical email from a government employee includes a warning
at the bottom, such as the following: "Florida enjoys a broad public
records law—any emails sent to or from this address are subject to
review by the public at any time.i8 That type of openness comes at a
5. Oliver Wendell Holmes, Jr., The Path ofthe Law (Jan. 8, 1897), in 10 HARV. L. REv. 457,
459 (1897) ("If you want to know the law and nothing else, you most look at it as a bad man, who
cares only for the material consequences which such knowledge enables him to predict, not as a
good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer
sanctions of conscience.").
6. Id.
7. Id. ("A man who cares nothing for an ethical rule which is believed and practised by his
neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will
want to keep out ofjail if he can. ").
8. E.g., Email from Mary Anne Hodel, Treasurer, Fla. Library, to Fla. Pub. Library Dv.
Mailing List, Support FLA and You Can Also Save Money on Your Conference Registration! (Dec. 3,
2013, 4:07 PM EST) (copy available at https://Iists.fsu.edu/piperniail/
PRE-PUELICAnoN DRnrr: PLEASE Do NOT CITE
20151 Sunbumed 3
price. One town spent $20,000 on legal fees because it gave a citizen a
bill for $1.25 in photocopies.' Another town continues to litigate over a
public records request that it fulfilled because the requester complained
that a two-day response was not fast enough.10 These cases of sunburn
are not unique to the Sunshine State. Various academic studies have
warned of the unintended consequences of government in the
sunshine," and many states struggle with citizens who are pushing the
public records laws to the point of logical absurdity.
This Article also shows that some of the problems associated with
public records laws can be solved using traditional tools of ethics,
compliance, policing, judicial interpretation, and statutory reform. The
entire government, and even the legal profession as a whole, must
engage in repairs, while keeping intact the fundamental goal of public
access to government information. Part II provides a brief nationwide
perspective on the problem, considering both media and public servant
perspectives. After providing examples of how state and federal public
records laws have been pushed to their limits, Part II turns to Florida,
discussing the provisions of state law and their potential for misuse.
Part III, further analyzing the nuances of Florida statutes and
cases, proposes solutions that can be readily implemented. First, in the
executive branch, greater compliance with the public records laws is
fla-pld/2013-Decembectxt); Ste also FLA. STAT. § 668.6076 (2014) (requiring certain government
agencies to post a notice on their website stating that if a person does not want his or her "email
address released in response to a public records request, do not send electronic mail to [the]
entity"); City of Cape Canaveral, Welrome to the City of Cape Canaveral,
CITYOFCAPECANAVERAL.ORG, http://www.cityofcapc=averal.org (last visited Dec. 20, 2014)
(placing the public on notice that anything sent to the city is subject to public disclosure).
9. Michael Mayo, Southwest Ranches Shouldn't Be Rewarded for Thwarting Sunshine Law, SUN
SENTINEL (Max. 28, 2012), http://ardcles.sun-sentinel.com/2012-03-28/news/fl
10. verified Complaint to Enforce Florida's Public Records Act and for Declaratory,
Injunctive and Monetary Relief ¶¶ 31-32, O'Boyle v. Town of Gulf Stream, (Fla. 15th Cir. Ct. Jan. 22,
2014) (No. 502014CA000834).
11. E.g., Mark Fenster, Seeing the State: Transparency as Metaphor, 62 ADMIN. L. REV. 617,622-
23 (2010); Steven J. Mulmy, Sunlight's Glare: How Overbroad Open Government Laws Chill Free Speech
and Hamper Effective Democracy, 78 TENN. L. REV. 309, 314 (2010). At times, the phrase
"government in the sunshine" can be used loosely; public records laws can best be viewed as a
subset of the overall notion of open governance. In addition to laws requiring the disclosure of
public records, the concept of government in the sunshine also includes open meetings laws
designed to ensure that government decision-making takes place in the public and not behind
closed doors. See, e.g., Government in the Sunshine Act, Pub. L. No. 94.409, 90 Stat. 1241, 1241
(1976) (codified at 5 U.S.C. § 552) (Federal "Government in the Sunshine Act" intended "it]o
provide that meetings of Government agencies shall be open to the public"); Federal Advisory
Committee Act, Pub. L. No. 92-463, § 10, 86 Stat. 770, 774 (1972) (codified at 5 U.S.C. App. §§ I-
16) (requiring notice, public access, and recordkeeping for federal advisory committee meetings);
FLA. STAT. § 286.011 (2014) (requiring public meetings to be open to the public at a0 times and to
be recorded).
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4 Stetson Law Review (Vol. 44
needed, including a commitment to transparency and online
publication. That approach, in turn, gives the government the moral
and equitable authority to justify change. More robust use of existing
cost recovery mechanisms is needed, too. And, rather than solely
relying upon citizens to declare themselves the public records police,
government should increase its traditional role of enforcement in the
context of the public records laws. Second, the judicial branch should
avoid instinctive declarations that the public records law provides
"virtually unfettered" rights. Instead, the courts should carefully assess
the facts and the letter of the law. Courts must recognize that clever
citizens will apply precedent to play "gotcha" with the government,
overwhelming governmental entities with burdensome requests and
evading any duty to pay for the costs of asking for public records.
Citizens can sue for every type of error—no matter how petty—
ultimately demanding attorney's fees as a reward for manufacturing the
problem in the first place. Third, the legislature should make statutory
changes. Citizens should be required to give the government notice of
intent to sue and an opportunity to fix the problem before they rush to
court. In addition, the incentive to rush to court should be decreased by
exposing abusive lawsuits and practices to the possibility of paying the
government's attorney's fees. And lastly, the legal profession should
adhere to the applicable standards of legal ethics and professionalism
and also hold pro se plaintiffs accountable.
Part IV concludes that the matter is not just one of morality,
governance, or fairness: it is about economics and efficiency too. State
public records laws should maintain a meaningful public right of access
while reducing the potential for mischief and misuse. Otherwise, the
public servants, acting rationally in an effort to reduce the burdens and
economic risks of the public records law, are incentivized not to
document their decisions. If the burdens and abuses of the public
records laws remain as they are, the public receives a less transparent
government that costs more.
II. ADMITTING THE PROBLEM. BLACKAND WHITE
AND READ ALL OVER
In general, the public records laws follow a standard pattern. Public
records statutes provide rights to citizens and groups that can request
records, define the records that are subject to and exempt from
disclosure, provide guidance on allowable fees that can be charged to
the person requesting the records, identify procedures for enforcement
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2015] Sunburned 5
of the law, and establish sanctions for noncompliance. 12 Yet many
citizens do not even understand their own state's public records law,13
and at times, some government agencies have even resisted their public
records obligations. 14 Ignorance is unacceptable, especially for the
public servants.
Still, there is more than one informed perspective on the public
records laws. While the media's emphasis on open government has
unquestionable merit, the public servant's perspective lends nuance to
the matter. Society should be wary of a black and white belief in open
government and access to public records. Careful scrutiny of the law
exposes the potential for calculated misuse of the public records laws.
A. Idealism: The Demand for Access to Public Records
As one Florida court succinctly stated, "[a]n open government is
crucial to the citizens' ability to adequately evaluate the decisions of
elected and appointed officials."15 Florida is certainly not alone in that
view. All fifty states have public records laws allowing public access to
the records of state and local government. 16
12. On the Reporters Committee for Freedom of the Press webpage, the public records laws of
all fifty states are summarized. The webpage organizes the information using a standard outline,
applied to each state. See generally Reporter Comm. for Freedom of the Press, Open Governmera
Guide, RCFP.ORG, http://www.rcfp.org/open-govemment-guide, past visited Dec. 20, 2014).
13. See, e.g., Halifax Media Servs., Pal: Few North Carolinians Understand Public Rerord Laws,
SUN J. (Dec. 28, 2013, 2:10 PM), http://www.nmb=j.mm/news/local/pon
-few-north-Carolinians-undemand-public-record-laws-1.255031 ("A majority Of North Carolina
residents are unaware that state laws exist to make public records and government meetings
accessible, according to the findings of an Eton University poll released early December.").
14. Mike Wynn, Kentucky Cabinet Penalized 8756,000 for 'Wilfully Cimtmrrnting' Child -Abuse
Open Records Ruling, Judge Says, THE COURIER -J. (Dec. 23, 2013,
7:15 PM EST), http://www.courier-joumal.mm/story/news/aime/2013/12/23/kentucky
-cabinet-penalized-756000-for-willfufly-circumventing-child-abuseropen-records-mling
judge-says/4180437/ ("The Kentucky Cabinet for Health and Family Services most pay a
$756,000 penalty after it 'willfully circumvented' open -records laws by failing to fully release
records on child abuse fatalities and new deaths, according to a scathing court order issued
Monday. ").
15. Times Pubfg Co. v. City of St. Petersburg, 558 So. 2d 487, 492 (Fla. 2d Dist. Ct. App.
1990).
16. ALA. CODE § 36-12110 (2014); ALASKA STAT. § 40.25.110 (2013); ARM REV. STAT. ANN.
§ 39-121.01 (2014); ARK. CODE ANN. §§ 25.19-101 to 25-19-110 (2014); CAL. GOVT CODE §§
6250-6270 (West 2014); COLO. REV. STAT. § 24-72-200.1-206 (2014); CONN. GEN. STAT. § 1.200-
242 (2013); DEL. CODE. ANN. tit. 29, § 10001-10005 (2014); D.C. CODE §§ 2-531-2-540 (2012);
FLA. STAT. § 119.07-119.15 (2014); GA. CODE ANN. §§ 50-18-70 to 50-18-76 (2014); HAW. REV.
STAT. §§ 92F-1 to 92F-19 (West 2014); IDAHO CODE ANN. §§ 9-338 to 9.350 (2014); 5 ILL. COMP.
STAT. 140/1-140/11.5 (2014); IND. CODE §§ 5-14-3-1 to 5.14.3.10 (2014); IOWA CODE §§ 22.1-
22.14 (2014); KAN. STAT. ANN. §§ 45-215 to 45-229 (2013); Ky. REV. STAT. ANN. §§ 61.870-
61.884 (West 2014); LA. REV. STAT. ANN. §§ 44:31114:35 (2014); ME. REV. STAT. ANN. tit. 1, §
408-A (2014); MD. CODE ANN., GEN. PROVIS. §§ 4-101 to 4-601 (West 2014); MASS. GEN. LAWS
ch. 66, § 10 (2014); MICH. COMP. LAWS §§ 15.231-15.246 (2014); MINN. STAT. § 13.03 (2014);
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6 Stetson law Review [Vol. 44
In American jurisprudence, the public's right to know is well-
established, especially for purposes of protecting the news media, which
can expose governmental wrongdoing through careful review.17 As the
United States Supreme Court acknowledged more than fifty years ago
in New York Times Co. v. Sullivan,18 the First Amendment reflects a
"profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open," and its ruling to
limit defamation actions against the press accepted the possibility of
"vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials." 19 Leaks to the media are an essential
part of American history.20 The whistleblower serves an accepted role in
societyy21—one can even purchase books on how to do it.22 National
security confidentiality is routinely questioned, too 23
When a government entity does decide to assert a non -disclosure
position, news media outlets can be highly critical. For example, even
after acknowledging that a series of proposed exemptions being
considered by the Florida legislature in 2014 "would not have a major
impact," a Tallahassee newspaper headlined that "[ojpen government
MISS. CODE ANN. § 25-61.1 to 25-61-17 (2014); Mo. REV. STAT. §§ 610.010-.035 (2013); MONT.
CODE ANN. §§ 2.6.101 to 2-6-111 (2014); NEB. REV. STAT. § 84712 (2014); NEV. REV. STAT. §§
239.005-.030 (2013); N.H. REV. STAT. §§ 91 -A:1 -91-A:10 (2014); N.J. STAT. ANN. §§ 47:1A -Ito
47:1A-1.3 (2014); N.M. STAT. ANN. §§ 142-1 to 142-12 (West 2014); N.Y. PUB. OFF. LAW §§ 84-
90 (McKinney 2014); N.C. GEN. STAT. §§ 132-1 to 132-10 (2013); N.D. CENT. CODE §§ 440418
to 494)4.18.8 (2013); OHIO REV. CODE ANN. § 149.43 (West 2014); OKLA. STAT. tit. 51, §§ 24A.1-
24AI8 (2014); OR. REV. STAT. §§ 192.410-192.505 (2013); 65 PA. CONS. STAT. ANN §§ 67.101-
67.3104 (West 2014); R.I. GEN. LAWS §§ 38-2-1 to 38-2-14 (2014); S.C. CODE ANN. §§ 30-410 to
304165 (2013); S.D. CODIFIED LAWS §§ 1-27-1 to 1-27-1.19 (2014); TENN. CODE ANN. § 10-7-503
to 10.7.508 (2014); TEx. GOVT CODE §§ 552.001-552.353 (West 2013); UTAH CODE. §§ 63G.2-
101 to 63G-2-804 (2014); VT. STAT. ANN. tit. 1, §§ 315-320 (2014); VA. CODE ANN. §§ 2.2.3700 to
2.2-3714 (2014); WASH. REV. CODE §§ 42.56.001-42.56.904 (2014); W. VA. CODE §§ 2913-1-1 to
29&1.7 (2014); WIS. STAT. ANN. §§ 19.31-19.39 (2013); WYO. STAT. ANN. §§ 164201 to 16.4-
205 (2014); see FOIA Advocates, State Fublic Record Laws, FIOADVOCATES.COM,
http://www.fbiadvocates.mm/remrds.btml (last visited Dec. 24, 2014) (providing a hyperlinked
directory of many of the states' public record laws).
17. See, e.g., Wynn, supm note 14 (providing an example of when a news outlet filed suit
against a state agency for insufficiently responding to its public records request and the court ruled
in the news outlet's favor).
18. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).
19. Id. at 270.
20. Matthew Green, 10 of the Biggest Government Leaks in U.S. History, KQED (June 18, 2013,
6:30 AM), http://blogs.kged.org/lowdown/2013/06/18/10-big-leaks/.
21. See FLA. STAT. § 112.3187 (Florida's whistleblower protection aa).
22. E.g., Government Accountability Project, The Corporate Whistleblowers Survival Guide,
WHISTLEBLOWER.ORG, http://www.whistleblower.org/node/208 (last visited Dec. 24, 2014)
(advertising a book that advises people who anticipate blowing the whistle on their company).
23. See, e.g., Dana Priest & William M. Arkin, A Hidden World, Growing Beyond
Control, WASH. POST (July 19, 2010), http://projects.wuhingtonpost.com/top-seaet
-america/articles/a-hidden-world-growing-beyond-mntrol/ (discussing the expansion of secret
government agencies in the United States after the terrorist attacks on September 11, 2011).
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takes a beating" and equated the lawmakers with mice in your walls,
"slowly gnawing away at the idea of open government.s24 Not even the
risk of violence is enough to stem the open government idealist. In a
Wisconsin case, an appellate court upheld an agency's refusal to provide
public records to a person with a history of violence against a state
employee, finding that the agency's reasonable concern for the safety
and welfare of its employee outweighed the public policy interest in
disclosure. ' Despite these extraordinary facts, the local newspaper
editorial board disagreed with the notion that a right of public access
should have limits because intent was irrelevant to the right of public
access 25 Similarly, when a respected journalist recently opined that
news organizations should sometimes defer to the government and
accept limitations upon what the public has a right to know about the
secret activities of government, the journalist was attacked by his
peers 27 Simply put, any supporter of government confidentiality
becomes a potential target of media criticisms .21
To read the publications of the watchdogs, one might think open
government to be a hopeless cause. The critique of government is sharp.
Evaluating the responsiveness of state governments to freedom of
information requests, the Better Government Association and National
24. Op -Ed., Our Opinion: Open Government Takes a Beating, TALLAHASSEE DEMOCRAT (May 8,
2014), bttp://www.mHahwsee.com/story/opinion/editorials/2014/05/08/opinion
-open-government-takes-beating/8867859/.
25. State ex rel. Ardell v. Milwaukee Bd. of Sch. Dirs., 849 N.W.2d 894, 894-98 (Wis. Ct.
App. 2014).
26. Editorial, Journal Times Editorial., There Should Be No Judging Intent in Open -Records Requests,
J. TIMES (May 14, 2014, 6:00 AM), http://joumaltimm.mm/news/
opinion /editorial/joumal-times-editorial-there-should-be-no judging-inten6in/article
aaeO82c2-db5f-]le3-b59b-00la4bct887a.html; see also Editorial, Public Retards law Must Be
Managed Carefully, LEADER -TELEGRAM (May 15, 2014, 12:00 AND, http://www
.leadertelegram.mm/opinions/editorials/article_4d89589a.62e7-526a-9c44-145a97e470e8
.html (questioning an appellate court's opinion regarding Wisconsin's public records laws).
27. Margaret Sullivan, Op -Ed., Kinsley, Greenwald and Government Secrets, N.Y. TIMES (May 27,
2014, 9:22 PM), http://publiceditor.blogs.nytimes.mm/2014/05/27/kinsley
-greenwald-and-govemment-secrets/7-thp=true&_type=blogsik_r--0.
28. Despite government and agency policies to be open and forthright with public critiques of
government confidentiality and government restrictions, leaks are expounded on by various media
outlets. See, e.g., Leonard Downie, Jr. & Sara Rafsky, The Obanta Administration and the Frw: Leak
Investigations and Surveillance in Post -9/11 Arnedw, CPJ.ORG (Oct. 10, 2013),
http://clj.org/reports/2013/ 10/obama-and-the-press-us4eaks
-surveillance-post-911.php (criticizing President Bamck Obama for "pledging open government,
but ... [falling] short of his promise"); see also Scott Higham, Intelligence Security Initiatives Have
Chilling Effect on Federal Whistleblowers, Critia Say, WASH. POST (July 23, 2014),
c9dfd794-OeaO-lle4-8341-b8072ble7348_story.htm] (discussing government action in response to
leaked classified information).
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8 Stetson law Review [Vol. 44
Freedom of Information Coalition gave thirty-eight out of fifty states an
"F" grade, and not a single state earned an "A."'9 Similarly, the Center
for Effective Government's evaluation of the United States government
concluded that not one of the fifteen federal agencies studied earned an
exemplary "A" grade overall; instead, four earned a "B" or "C," four
more earned a "D," and the remaining seven all failed .30 Undoubtedly,
the government can and must do better in responding to public records
requests. But scorecards generated by media -oriented organizations do
not tell the whole story.
B. Extremism: Unintended Consequences and the
Potential for Misuse
Due to the powerful idealism fueling the demands for open
governance, coupled with the frequent suggestion that governmental
transparency remains inadequate, bureaucrats and lawmakers find
themselves in an uncomfortable position when discussing public records
laws. To begin with, the burden of compliance with the procedural and
production requirements of public records laws necessitates a
commitment of time, money, and staffing that detracts from any effort
to comply with or fulfill an agency's other substantive responsibilities. A
regulatory agency is unlikely to try to earn an "A" grade in public
records compliance if it means eaming a "D" on its substantive
outcomes.
The realities of limited funding and resources can be ignored by the
courts. Routine backlogs, for example, do not give agencies an excuse
for a delayed response to a federal public records request pursuant to the
Freedom of Information Act. 31 Instead, agencies are expected simply to
obtain sufficient congressional funding to address their routine needs. 2
But the realities of public records compliance are not limited to
budgetary politics. Rather, any discussion of reforming the public
records law quickly transforms into a debate over the First Amendment.
29. Nat'l Freedom of Info. Coal., States Failing F01 Responsiveness, NFOIC.ORG,
http://www.nfbic. org/states-failing.foi-responsiveness (last visited Jan. 4, 2015).
30. Ctr. for Effective Gov't, Making the Grade: Access to Jnfom dan Scorecard
1014, FOREFFEcnVEGOV.ORG (Mar. 10, 2014) http://www.fomffectivegov.org/access-to
-information-scorecard-2014.
31. COMM. ON GOVT REFORM, A CITIZEN'S GUIDE ON USING THE FREEDOM OF
INFORMATION Act AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS, H.R.
REP. No. 106-50, at 14 (1999), available at http://w .gpo.gov/fdsys/pkg/CRPT
-106hrpt5O/pdf/ CRPT-106hrpt5O.pdf.
32. Fiduccia v. U.S. Dept of.iutice, 185 F.3d 1035, 1041 (9th Cir. 1999).
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Any admission by public officials that they have not dedicated
adequate resources to public records compliance can expose them to
criticisms and allegations that they are undermining the journalists
working for the fourth estate and the public's right to know. Fearing the
power of the press and the adverse publicity it can bring, agencies,
towns, and other governmental entities and political leaders all avoid
exposing themselves to criticisms that they are evading a state's laws or
otherwise preventing public access. To do so is to oppose the press itself
and all the organizations and resources advocating for open
government 33 As a result, discussions of public records problems often
understate the degree of difficulty faced by the government. Rather than
admitting the inadequacy—or even impossibility—of compliance with
the public records laws, many public officials stay silent. But truth is
truth, nonetheless. Open government may be a beautiful rose, but roses
can mildew, even in the sunlight 34
1. AcadetnicPerspectives
Scholars have already documented the variety of problems created
by the right of public access to public records. For example, public
records laws can chill collegial decision-making and cause fewer
meetings and less documentation, leading to reduced efficiency 35 They
can encourage an overreliance on individual staff, force disclosure of
sensitive information, and create barriers to honesty and compromise36
In the worst cases, the public records laws "[r]eward[ ] the [s]cofflaw"
who ignores the law, create large volumes of work for the scrupulous
official who tries to precisely comply with the law, and ultimately
"breed contempt for the law. ,37
33. See, e.g., Reporters Comm. Por Freedom of the Press, How to File a FOIA
lawsuit, RCFP.ORG, http://www.rcfp.org/fedeml-open-govemment-guide/fcderal-freedom
-information-act/how-file-Ibia-lawsuit (last visited Dec. 30, 2014) (providing instructions on how to
file a FOIA lawsuit if an agency fails to respond to a records request in a timely manner); Nat'l
Freedom of Info. Coal., F07 Center, NFOIC.ORG, http://www.nfbic.org/foi
-center past visited Dec. 30, 2014) (giving information regarding the Freedom of Information
Center, which is a research library in the Donald W. Reynolds Journalism Institute at the Missouri
School of Journalism); The Brechner Ctr. for Freedom of Info., Norida County & State Arress Issues
2011-2013, BRECHNER.ORG, http://brechner.org/mty
%20issum%202011.2012.asp past visited Dec. 30, 2014) (providing a synopsis of various public
record issues and cases throughout Florida).
34. Rose Magazine, Mildew, ROSEMAGAZINE.COM, http://www.msemagazine.mm/
articles02/pages/mildew.asp past visited Dec. 30, 2014).
35. Muhoy, supm note 11, at 314, 360, 362-63.
36. Id. at 314, 363-66.
37. Id. at 367.
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State universities have developed a special understanding of the
problems and unintended consequences created by public records
laws38 For example, dozens of scholarly papers have considered the
likelihood that employed officials are deterred from applying for jobs at
public universities for fear of losing their current jobs when their interest
becomes known, and open access to public records can influence a
university's tenure and promotion process too.39 Public records laws
also have been critiqued as a tool to harass academic scholars,
jeopardizing the basic premise of academic freedom by exposing state
university professors to politically motivated public records requests for
their research 40 As noted by a lawyer for the California university
system, "seven people fully exercising their rights under the California
public records act could shut the university down.s41 Indeed, in the
absence of exemptions, a public records law could even require a public
university football coach to turn over the team's playbook to the
unscrupulous private university opponent 42 Aware of that possibility,
many Florida public universities create quasi -private corporations to
manage their affairs, which are free from the burdens and the
transparency of the public records laws43
38. MICHAEL K. MCLENDON, LEIGH GILCHRIST & JAMES C. HEARN, STATE OPEN -
MEETINGS AND OPEN -RECORDS LAWS IN HIGHER EDUCATION: AN ANNOTATED BIBLIOGRAPHY
1-2 (2003), available at http://www.usc.edu/dept/chepa/pdf/govemance_bib
.pdf.
39. Id. at 6, 9-10, 14, 16-17, 27.
40. See, e.g., Ryan C. Fairchild, Comment, Giving Away the Playbook: Haw North Carolina's
Public Records Law Can Be Used to Hams, Intimidate, and Spy, 91 N.C. L. REV. 2117, 2121, 2133
(2013) (arguing that there should be a statutory exception in public records laws to protect public
universities because of academia's "unique role ... in fostering knowledge and educating
students"); William Cronon, A Tactic I Hope Republicans Will Rethink: Using the Open Records Law to
Intimidate Critics, SCHOLAR AS CITIZEN (Mar. 24, 2011),
http://scholarcitizen.wiHiamaonon.net/2011/03/24/open-mmrds
-attackon-academic-freedom/ (providing a university professor's blog post that voices frustration
with Wisconsin's public record laws because of how they could affect academia); Editorial, Using
Open -Records laws to Harass Scholars, WASH. POST
(Apr. 3, 2011), http://www.washingtonpost.com/opinions/mingopen-records-laws-to-hamss
-scholars/2011/04/01/AFLInHXC-story.html (discussing how public records laws could "pose a
particular threat to academic freedom").
41. Fairchild, supra note 40, at 2149 (quoting JAMES C. HEARN, MICHAEL K. MCLENDON &
LEIGH Z. GILCHRIST, GOVERNING IN THE SUNSHINE: OPEN MEETINGS, OPEN RECORDS, AND
EFFECTIVE GOVERNANCE IN PUBLIC HIGHER EDUCATION 20 (2004)).
42. Id. at 2151-53.
43. Mike Schneider, Colleges Duck Public Records Laws Via Corporations, TALLAHASSEE
DEMOCRAT (Oct. 12, 2014, 11:50 PM EDT), http://www.mUahassee
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2. State Perspectives
The potential misuse of the public records laws, however, exceeds
the mere inconveniences and unintended consequences facing
academia. As one columnist explained, broadly written laws designed
to ensure transparency can become weapons "to discredit political
opponents, intimidate critics, and simply harass private citizens for no
better reason than that they are government employees."44 Across the
nation, public records laws can become a source of consternation for
public servants who recognize the ideals of the public records laws, but
who also endure the flaws.
In California, an upset general contractor whose contract was
terminated by the city filed a public records suit against the city, alleging
unreasonable delays, even though the city had already produced more
than 40,000 pages of requested documents.45 In Montana, the state
attorney general has warned that the use of public records requests can
have a chilling effect on whether records are generated in the first
place.' In New Jersey, where one citizen admitted to sending more
than a thousand public records requests to his local government so he
could track the government's performance, 47 town clerks have declared
the number of public records requests to be "through the roof,"
emphasizing that public time is being used to help private companies
develop marketing information 48 In North Carolina, as a result of
increasing numbers of public records requests, the governor enacted
controversial new policies requiring people to pay for public records that
44. Howard Schweber, Open Records Laws Go from Sunshine to Sunburn, HUFFINGTON POST,
http://www.but ngtonpost.com/howwd.schweber/open-records-laws-go
-from b_845432.html Cot updated June 6, 2011, 5:12 AM EDT).
45. Jason Green, Pala Alto: Fight over Mitchell Park Library Project Takes Legal Tum, SAN JOSE
MERCURY NEWS (July 26, 2014, 12:22 AM PDT), http://www.mercurynews.com/
peninsula/d_26221311 /pato-alto-fight-over-mitchell-park-library-project.
46. Tim Murphy, Montana AG: Public Records Requests Grate "Chilling Effect", MOTHER JONES
(August 9, 2013, 11:42 AM EDT), http://www.mothedones.com/mojo/2013/
O8/montana-ag-reporters-investigating-gun-laws-create-chilling-effect.
47. Geoff Mulvihill, New Jersey Judge Says State Wrongly Denied Ramds, PHILLY.COM (July 22,
2014, 11:59 PM), http://www.phiDy.com/philly/news/Imal/20140722
New_Jeneyjudge_mys_state wmngly_denied_records.html (noting that "[w]ith the advent of
electronic records [former photojournalist Ed Scheeler] could get without paying for it, he has
become a regular information requester").
48. Terrence T. McDonald, Public-Rerords Requests Are 'Through the Roof in Jersey City, JERSEY
J. (May 2, 2014, 2:46 PM), http://www.nj.mm/hudson/index.ssf/2014/05/public
-records_requests_are_through_the_ roof_injersey_rity.html (noting, for example, that a pool
supply company can file a public records request seeking permits from everyone in a town who
applied for a pool permit, use that information to develop mailing lists, and bog down the clerk's
offices).
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once were free .41 In Tennessee, the publisher and editor of an alternative
newspaper who wanted to get even with a city demanded that the city
produce cookie and cache file records from city computers 50
Washington State public officials have endured particularly
difficult times due to citizen suits related to the public records laws. The
state attorney general warned that requests for public records had tripled
in a decade and that people were requesting records and "gaming the
system" by suing state agencies to catch the agencies in a costly
mistake51 The emergence of "gotcha" litigation in Washington State
has economic consequences for the government, too—as well as the
taxpayers who ultimately pay the judgment. The Washington State
Department of Labor and Industries was ordered "to pay $500,000
because of errors related to a single Public Records Act Request. 02 The
City of Prosser settled with a requester for $175,000 to avoid even
greater liability because the city was unable to respond to forty-one
requests filed by a requester within the five-day requirement.51 In
another instance, even though the state agencies did respond to a public
records request by producing approximately 9,200 emails covering a
two-year span, the agency still had to defend itself in court to prove that
its response, which took two months instead of the statutorily mandated
54
five days, was reasonable. According to one study, payouts for public
records lawsuits leapt from $108,000 in 2006 to nearly $1.7 million in
2011, for a grand total of $4.8 million spent between 2006 and 2011 on
alleged violations of the state's Public Records Ac't.55
49. Tom Kludt, North Carolina Gov. McCrory Wants Payrnentfor Public Records, TPM LIVEWIRE
(Nov. 27, 2013, 7:21 AM EST), http://talkingpointsmemo.mm/livmire/north
-Carolina-gov.mccrory-wants-payment-for-public-records (Upset with the increase in public record
requests, North Carolina's governor will start charging for requests that previously were available
at no cost to citizens; the media organizations are decrying the move as unprecedented.).
50. Don Walker, Tennessee Qfflcials and the Cookie Monster, AMORG (Jau. 1998),
http://ajmchive.org/artirJe.up7id=2329.
51. King Staff, State Paying Record Amount for Records Lawsuits, KING 5 (Oct. 26, 2013, 4:06
PM PDT), http://www.king5.com/story/news/local/investigations/2014/08/02/
13057030/.
52. Poster Pepper Mon. Grp., Court: $500, 000 for Errors Related to a Single Public Records Aa
Request, LOCALOPENGOVERNMENT.COM (July 13, 2009), hup://www
.localopengovemmmt.com/2009/07/articles/taxpayer-costs/mutt-500000-for-mors-related
-to-a-single-public-records-act-request/.
53. Drew Poster, Prosser Votes to Pay J175Kto Settle PublicRecords Suit, TRI -CITY HERALD (July
16, 2009), http://www.tri-cityherald.com/2009/07/16/648319/promo.votes-m
-pay-175k-to-settle.html.
54. West v. Wash. State Dep't of Natural Res., 258 P.3d 78, 80-82 (Wash. Ct. App. Div. 2
2011).
55. King Staff, supm note 51.
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While the media continues to report these events as if they suggest
a failure by governmental officials to comply with the public records
laws 5' a coalition of Washington governmental groups is using them to
push for reform. 57 As explained by the Association of Washington
Cities, public records laws can be strengthened by curbing abuses, so the
organization has proposed legislation seeking to serve as: (1) "[a]
mechanism to address financially motivated, punitive, or retributive
requests"; (2) a way to protect the continuation of essential
governmental services; and (3) "[a]uthority to stop subsidizing requests
made for commercial purposes."58 The proposal triggered predictable
news media and editorial opposition.59 Although the legislation did not
pass in 2013, the issue is expected to be revisited because the University
of Washington is engaged in a state -funded study of the degree to which
the state's public records law has been abused.60
Interestingly, even the watchdog organizations dedicated to open
government recognize the potential for misuses of the public records
laws. One California group even issued a warning on its webpage,
noting that requests for huge volumes of data were overburdening state
agencies and telling its readers: "[do not] abuse the law or it will be
repealed or modified! ,61
3. Federal Perspectives
The federal Freedom of Information Act62 (FOIA) offers a point of
comparison to the state experiences. FOIA requires many federal public
56. Id.
57. Jerry Cornfield, Battle to Restrict Public Records Requests Heats Up, HERALD NET (Aug. 22,
2013, 12:01 AM), http://www.heraldnet.mm/article/20130822/NEWSOI/
708229915/Battle-to-restrict-public-nmrds-requests-heats-up; Jerry Cornfield, Officials Seek Relief
frorn Abuse of Public Record Access Law, HERALD NET (Jan. 26, 2013, 12:01 AM),
http://www.heraldnet.mm/article/20130126/NEWSOI/701269955.
58. Assn of Wash. Cities, Strengthening the Public Records Act by Curbing
Abuses, AWCNET.ORG (Feb. 2013), https://www.awmet.org/portals/0/documents/legislative/
PublicRecords0213.pdf.
59. See Editorial, Editorial: Protect State's Public Records Act, THE SEATTLE
TIMES (July 20, 2013, 4:06 PM), http://scattletimes.com/html/editorials/2021430856
editpublicrecordsxml.html (criticizing proposed state legislation in Washington that would allow,
the government to sue requesters that abused the Public Records Act).
60. Jeff Rhodes, Coalition Doing Its Own Study on Public Records Search Abuse, THE OLYMPIA
REP. (July 17, 2013), http://thcolympiareport.com/coalition-conducting-its-own
-study-on-public-records-search-abuse/.
61. Cal. Public Records Access Project, California Public Records Act (PRA), CALPUBREC.ORG,
http://calpubmc.org/pra.html Out visited Dec. 30, 2014) (discussing the California Public Records
Act, tips on how to request public records, and what to do in the event a request is not fulfilled).
62. 5 U.S.0 FN61 5 USC 552.PDF. § 552 (2012).
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records to be either published in the Federal Register or made available
for public inspection and copying. 63 It also generally requires other
records to be made available, upon specific request, for public
inspection and copying, allowing fees to be charged for the production
of some documents '65 while also creating exemptions that release some
types of documents from the need for public disclosure. Like many
state statutes, FOIA is enforceable by citizens, and FOIA allows citizen
suits to be filed in the federal courts "to enjoin the agency from
withholding agency records and to order the production of any agency
records improperly withheld from the complainant. "67 FOIA, however,
includes many provisions that recognize the competing perspectives and
needs of the governmental agencies. For example, while state laws
might provide strict deadlines that demand a rush to produce
documents or that allow an unsatisfied requester to rush to the
courthouse, FOIA compels a walk. Before a suit can be filed, the
requester must exhaust administrative remedies .68 Citizens seeking
records must often wait until the federal agency has undertaken various
procedural steps. To begin with, an agency is usually allowed twenty
days to respond to a public records request .6' FOIA also includes
numerous mechanisms to enable the agency to extend the time needed
to respond to a public records request.70 For unusual circumstances and
63. Id. § 552(aXl)-(2).
64. Id § 552(aX3).
65. Id § 552(aX4).
66. Id. § 552(6). The exemptions from disclosure of federal documents, which are often more
broadly construed than state public records laws, include exemptions for public records related to
(1) "national defense or foreign policy'; (2) internal agency personnel rules and practices;
(3) exemptions from disclosure specifically made by statute; (4) "trade secrets and commercial or
financial information"; (5) "inter -agency or intra -agency memorandums or letters which would not
be available by law to a party other than an agency in litigation with the agency'; (6) "personnel
and medial files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy"; (7) certain types of records or information compiled for law
enforcement purposes; (8) certain records associated with the regulation or supervision of financial
institutions; or (9) "geological and geophysical information and data, including maps, concerning
wells." Id
67. Id § 552(aX4XB).
68. Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). Some courts have deemed the
exhaustion requirement to be a discretionary, prudential doctrine, while others have found it to be
jurisdictional. Compare Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) ("[T]he exhaustion
requirement is not jurisdictional because the FOIA does not unequivocally make it so.") and Taylor
v. Appleton, 30 F.3d 1365, 1367 n.3 (I lth Cir. 1994) ("Exhaustion of administrative remedies is
not a jurisdictional requirement ....") with Johnson v. Comm'r of Internal Revenue, 239 F. Supp.
2d 1125, 1136 (W.D. Wash. 2002) ("Where a FOIA plaintiff attempts to obtain judicial review
without first exhausting administrative remedies, the lawsuit is subject to dismissal for lack of
subject matter jurisdiction.").
69. 5 U.S.C. § 552(aX6XA Xi).
70. Id. § 552(aX6)(B).
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unusually burdensome requests," defined to include the need for
searches in separate offices ,72 searches for and examinations of
voluminous amounts of records," and searches requiring consultation
with another agency,74 federal agencies can obtain an additional ten
days .75 Even after thirty days, and even if a lawsuit is filed, a court still
has discretion to retain jurisdiction over the matter and allow the agency
additional time if "exceptional circumstances" exist and the agency is
acting with "due diligence. ,76
But, as Congress itself has explained:
Agencies may ... make a showing of exceptional circumstances
based on the amount of material classified, based upon the size and
complexity of other requests processed by the agency, based upon
the resources being devoted to the declassification of classified
material of public interest, or based upon the number of requests for
records by courts or administrative tribunals. A court also shall
consider a requester's unwillingness to reasonably limit the scope of
his or her request or to agree upon a processing timeframe prior to
seeking judicial review. 77
Just as FOIA allows courts to exercise some discretion when
evaluating delays, it also necessitates discretion with regard to
application of FOIA's disclosure exemptions 7' At times, courts have
narrowly interpreted the way FOIA's disclosure requirements apply,
erring in favor of privacy interests for the purposes of FOIA, to uphold
an agency's decision not to disclose documents or records.79 In United
71. Id. § 552(aX6)(B)(i).
72. Id § 552(aX6XBXiiiX1).
73. Id § 552(aX6XBXuiXH).
74. Id. § 552(aX6XBXiiiXHl).
75. Id. § 552(aX6XB)(i).
76. Id. § 552(aX6XCXi).
77. COMM. ON GOV'T REFORM, A CITIZEN'S GUIDE ON USING THE FREEDOM OF
INFORMATION ACF AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS, H.R.
REP. NO. 106.50, at 14-15 (1999), awilable at http://www.gpo.gov/fdsys/pkg/CRPT
-106hrpt50/pdf/CRPT-106hrpt50.pdf.
78. There are nine exemptions to the presumption of disclosure in FOIA pursuant to 5 U.S.C.
§ 552(6X1){9) (stating that the FOIA does not apply to matters that fall under the categories of.
(1)classified information and national security; (2)internal agency personnel information;
(3) information exempted by existing statutes; (4) trade secrets and other confidential business
information; (5) agency memoranda; (6) disclosures that invade personal privacy; (7) law
enforcement investigation records; (8) reports from regulated financial institutions; and
(9) geological and geophysical information).
79. See generally Martin E. Halstuk & Charles N. Davis, The Public Imereu Be Damned* Lower
Court Treatment ofthe Reporters Committee "Central Purpose" Reformulation, 54 ADMIN. L. REV. 983
(2002) (discussing the impact of United States Department of Justice v. Reporters Committee for Freedom
ofthe Fres and the courts' increasing deference to government privacy concerns).
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States Department of Justice v. Reporters Committee for Freedom of the Press, 80
for example, the Supreme Court explained that "FOIA's central
purpose is to ensure that the Government's activities be opened to the
sharp eye of public scrutiny, not that information about private citizens
that happens to be in the warehouse of the Government be so
disclosed." 81 Rejecting a demand for information held by the Federal
Bureau of Investigation about a living individual, the Supreme Court
considered the protected personal privacy interests at stake and
concluded that the request fell 'outside the ambit of the public interest
that the FOIA was enacted to serve.i82 Applying this "central purpose"
test, a federal district court later held that an Air Force database was not
a public record .83
The differences between FOIA and state public records laws—
especially Florida's—are significant. FOIA, to a degree, recognizes and
manages the tension between the public's demands and competing
interests such as the public interest, private interests, and an agency's
capacity to respond. Inevitably, some people place higher value upon
public access than other competing interests, and FOIA and federal
notions of open government have been criticized as providing
"[t]ransparency [w]ithout [a]ccountability." 4 Yet, the degree of
flexibility that FOIA provides to the agencies (and the courts) prevents
the statute from overwhelming Washington, D.C. Florida law, in
contrast, is much more rigid in its expectations of government.
C. The Sunshine State: A Model Public Records Law
or a Morass?
In Florida, a constitutional right of access reflects the intensity of the
state's commitment to individual access to "public records," meaning
documents and other material produced by the government to
communicate or perpetuate knowledge.eS Florida's open government
laws have been described as "among the broadest and most all -
80. 489 U.S. 749 (1989).
81. Id. at 774.
82. Id. at 775.
83. Baizer v. U.S. Dep't of the Air Force, 887 F. Supp. 225,228-29 (N.D. Cal. 1995).
84. Jennifer Shkabamr, Tmnsparmey With(out) Accountability: Open Government in the United
States, 31 YALE L. & POL'Y REV. 79, 117 (2012).
85. See, e.g., Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633, 640 (Fla.
1980) (Public records encompass all materials "prepared in connection with official agency
business which is intended to perpetuate, communicate, or formalize knowledge.").
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encompassing of their kind in the entire nation .06 But Florida's
government also experiences difficulties with the implementation of its
state public records law.87 In normal circumstances, the Sunshine State's
public records law is a model for ensuring the disclosure of information
to the benefit of an informed citizenry. Experience shows that the
abnormal is occurring. Lacking sufficient boundaries to prevent misuses
of the law, the efficiency of our bureaucracy is compromised, and
taxpayers are the victims.
1. Florida's Constitutional and Statutory Rights ofAccess
In the Sunshine State, open government is not just a concern of
good governance: it is a fundamental right. Article I, Section 24, of the
Florida Constitution, governing access to public records and meetings,
states as follows:
Every person has the right to inspect or copy any public record made
or received in connection with the official business of any public
body, officer, or employee of the state, or persons acting on their
behalf, except with respect to records exempted pursuant to this
section or specifically made confidential by this Constitution. This
section specifically includes the legislative, executive, and judicial
branches of government and each agency or department created
thereunder; counties, municipalities, and districts; and each
constitutional officer, board, and commission, or entity created
pursuant to law or this Constitution. 88
Although self-executing, this constitutional principle is further
implemented by the Florida legislature through laws governing the
enforcement of the right of access to public records, including the
"maintenance, control, destruction, disposal, and disposition" of public
records.A9 Sovereign immunity from disclosure does not exist.90
86. Sandra F. Chance & Christina Locloe, The Government -in -the -Sunshine law Then and Now: A
Model for Implementing New Technologies Con unt with Ronda!; Position as a Leader in Open
Government, 35 FIA. ST. U. L. REv. 245, 258 (2008).
87. See infm Part II(CH2) (discussing the many problems Florida government agencies face
bemuse of current public record laws and using the Town of Gulf Stream as an illustrative
example).
88. FLA. CONST. art. 1, § 24(a).
89. Id. art. I, § 24(c).
90. "The philosophical argument that 'government mn[notl operate' without relief from the
legislative waiver of sovereign immunity" has been "consistently rejected." Carter v. City of Stuart,
468 So. 2d 955, 959 (Fla. 1985) (citing Neu v. Miami Herald Publ'g Co., 462 So. 2d 821 (Fla.
1985); Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984); Wood v. Marston, 442 So. 2d 934
(Fla. 1983); Wait v. Fla. Power & Light Co., 372 So. 2d 420 (Fla. 1979); City of Miami Beach v.
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Furthermore, exemptions from public records disclosure must be
explicit,91 so the Florida legislature created statutory exemptions for
certain types of public records.92 Indeed, aside from these exemptions,
the Florida Supreme Court has ruled that the right to access public
documents is "virtually unfettered.i93
Although much of Florida's public records law is codified in
Chapter 119 of the Florida Statutes, specific provisions and exemptions
related to public records are scattered throughout the body of Florida
law. 94 The definition of a public record in Florida is far-reaching in
scope, including not just traditional papers, but all forms of perpetuation
or formalization of knowledge.95 As a matter of public policy, Florida
has concluded that the electronic era must not undermine public access
to information.96 Public records, therefore, include e-mails, voicemails,
photographs, and anything else, regardless of physical form, "made or
received ... in connection with the transaction of official business by
any agency. ,97
Berns, 245 So. 2d 38 (Fla. 1971); Bd. of Pub. Instruction of Broward Cnty. v. Doran, 224 So. 2d
693 (Fla. 1969)).
91. "[I]n the Public Records Law, the coverage is expressed generally; exemptions are
identified explicitly." Wood, 442 So. 2d at 938.
92. FLA. STAT. § 119.07 (2014).
93. Times Publ'g Co. v. City of St. Petersburg, 558 So. 2d 487, 492 (Fla. 2d Dist. Ct. App.
1990) ("[T]he right to access public documents is virtually unfettered, save only the statutory
exemptions designed to achieve a balance between an informed public and the ability of the
government to maintain secrecy in the public interest.").
94. See OFFICE OF THE ATTORNEY GEN. OF FLA., GOVERNMENT -IN -THE -SUNSHINE -MANUAL
199-262 (2014), available at http://www.myfloridalegal.com/mn.nsf/sunmmual (listing hundreds
of exemptions and other provisions related to the implementation of the public records laws)
[hereinafter GOVERNMENT -IN -THE -SUNSHINE -MANUAL].
95. Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633, 640 (Fla. 1980) (The
Florida Supreme Court has interpreted this definition to encompass all materials made or received
by an agency in connection with official business which are used to "perpetuate, communicate, or
formalize knowledge."),
96. See FLA. STAT. § 119.01(2xa) ("Automation of public records must not erode
the right of access to [public records]."); cf Fla. Att'y Gen. Op. 90-04
(Jan. 25, 1990), available at http://www.myforidalegal.com/ago.nsf/Opinions/
3CC46507EB4D58798525652CO0476FDA ("[I]nfomtation stored on a computer is as much a
public record as a written page in a book or a tabulation in a file stored in a filing cabinet.").
Accordingly, electronic public records are governed by the same role as written documents and
other public records—the records are subject to public inspection unless a statutory exemption
exists, which removes the records from disclosure.
97. The Florida Statutes define "public records" to 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." FLA. STAT. § 119.011(12).
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The term "agency" is also broadly defined,98 and can even include
government contractors.99 Whether or not a contractor's documentation
falls within the scope of a public records request depends on a case-by-
case evaluation of whether the contractor was acting on behalf of the
government or was otherwise delegated a governmental
responsibility. too Although further analysis of the effect of the public
98. The Florida Statutes define "agency" as "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." Id. § 119.011(2).
99. The term "contractor" is defined to mean "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." Id. § 119.0701(I)(a); see also id § 119.011(2) (defining "agency"). However, the
mere act of contracting with, or receiving public funds from, a public agency is not sufficient to
subject a private entity to the Florida public records laws and Chapter 119 of the Florida Statutes.
Instead, case history suggests that this sentence will be interpreted by using one of two tests.
100. The Florida Supreme Court held that a public agency could not avoid disclosure by
contractually delegating responsibility to a private entity, which would otherwise be an agency
responsibility. News & Sun -Sentinel Co. v. Schwab, Twitty & Hauser Architectural Grp., 596 So.
2d 1029, 1031 (Fla. 1992). To determine whether a private entity was "acting on behalf of" a public
agency, the court adopted a "totality Of factors" approach, listing nine factors for evaluation:
(1) the level of public funding; (2) commingling of funds; (3) whether the activity was
conducted on publicly -owned property; (4) whether 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 otherwise
would 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 whose benefit the private entity is functioning.
Id.
Alternatively, to determine whether a contractor is acting on behalf of a public agency, other
courts have applied a "delegation" test. E.g., City of Fayetteville v. Edmark, 801 S.W.2d 275, 279
(Ark. 1990) ("The FOIA requirements cannot be circumvented by delegation of regular duties to
one specially retained to perform the same task as the regular employee or official."); Forum Publ'g
Co. v. City of Fargo, 391 N.W.2d 169,172 (N.D. 1986) ("We do not believe the open -record law
can be circumvented by the delegation of a public duty to a third party ......). These cases
generally emphasize the notion that a party contracting with a public agency to provide services to
the agency is different from a contractor providing services in place of the agency. See Edmark, 801
S.W.2d at 279 (an agency "cannot avoid FOIA requirements by substituting a private anomey for
the city attorney"); Forum Pub(g Co., 391 N.W.2d at 172 (rejecting an agency's argument that a
government contractor was an independent contractor and therefore finding the government
contractor was subject to public record requests). As summarized by the Florida Attorney
General's Office, "Stated another way, business records of entities which merely provide services
for an agency to use (e.g., legal professional services) are probably not subject to the open
government laws. But, if the entity contracts to relieve the public body from the Operation of a
public obligation such as operating a jail or providing fire protection, the open government laws
apply." GOVERNMENT -IN -THE -SUNSHINE -MANUAL, supra note 94, at 64 (citations omitted) (also
listing as examples of delegation of services: a corrections company operating a county jail, an
employment search firm, an engineering company providing ongoing engineering services to a city,
a humane society investigating animal abuse for the county, and the Salvation Army providing
probation services for a county).
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records laws on a contractor is best left to a follow-up article, private
entities have reason to hesitate before putting their business and
reputations at risk by contracting with the government.10' Recently, the
legislature required governmental entities to include specific language
related to public records compliance in their contracts with private
government contractors.102 In some circumstances, private contractors
will be affected by the excesses of the public records laws. At a
minimum, a private entity's failure to fully comply with Florida's public
records laws can result in the immediate and unilateral cancellation of
its contracts because the Florida Statutes provide, with limited
exceptions, that every procurement for contracted services by a state
agency be evidenced by a written agreement containing a provision that
allows a unilateral cancellation by the agency for the contractor's refusal
to allow public access to "all documents, papers, letters, or other
material made or received by the contractor in conjunction with the
contract, unless the records are exempt" from disclosure.103 And as
noted earlier, contractors in possession of government records, "acting
on behalf of the government or performing delegated functions, could
be held to robust compliance with the public records laws, just like the
government agencies.
Upon receipt of a public records request, agencies must
acknowledge it and respond promptly in good faith.104 When
responding, agencies are allowed to charge actual costs of duplication
for copies.' 05 In most cases, actual costs are even lower for copies of
101. The mere act of contracting with the government does not make the public records law
applicable to the contractor. Fla. Att'y Gen. Op. 2014-06 (June 18, 2014), available at
http: / /www.myf oridalegal.mm/ago.mf/Opinions/FFA361674B 780AE085257CFDO065OCCB
("We are unaware of any authority which supports the proposition that merely by contracting with
a governmental agency a corporation acts 'on behalf of the agency.").
102. See FLA. STAT. § 119.0701(2Xa) (Contractors must "[k]eep and maintain public records
that ordinarily and necessarily would be required by the public agency in order to perform the
service."); id. § 119.0701(2)(6) (Contractors must "[p]mvide the public with access to public records
on the same terms and conditions that the public agency would provide the records and at a cast
that does not exceed the cost provided in this chapter or as otherwise provided by law.").
103. FLA. STAT. § 287.058(I)(c) (2014).
104. FLA. STAT. § 119.07(lXc) ("A custodian of public records and his or her designee must
acknowledge requests to inspect or copy records promptly and respond to such requests in good
faith. A good faith response includes making reasonable efforts to determine from other officers or
employees within the agency whether such a record exists and, if so, the location at which the
record can be accessed.").
105. If no fee is prescribed elsewhere in the statutes, Florida Statute authorizes the custodian to
charge a fee of up to 15 cents per one-sided copy for copies that are 14 inches by 8 1/2 inches or
less. Id. § 119.07(4)(aXl). An agency may charge "[n]o more than an additional 5 cents for each
two-sided duplicated copy." Id. § 119.07(4XaX2).
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electronic records.106 However, Florida law does authorize the
imposition of a special service charge when "the nature or volume of
public records ... to be inspected ... is such as to require extensive use
of information technology resources or extensive clerical or supervisory
assistance ... or both." 107 The charge must be reasonable and based on
the labor or computer costs actually incurred by the agency.108
Consistent with the policy goal of ensuring public access to information,
large special service charges can trigger careful court scrutiny. 109
An agency's failure to acknowledge or properly respond to a public
records request entitles the record requester to seek judicial relief,
usually through a mandamus action.110 In fact, if an action is filed to
enforce the public records law, the court shall set an "immediate
hearing" and give the case priority."' If the court orders an agency to
provide access to public records, it generally must do so within forty-
eight hours. 112 The requester may be entitled to attorney's fees, too.113
106. Fla. Att'y Gen. Op. 2013-03 (Jan. 30, 2013), available at http://www.myforidalegal
.com/ago.mf/Opinions/C50E174E0287AFBI85257B03005C63BA ("The City of Miami Gardens
may charge the 'actual costs of duplication' for electronic mail forwarded to a public records
requestor in lieu of photocopying those records. When calculating the 'actual costs of duplication,'
charges may not be made for labor costs or associated overhead costs.").
107. FLA. STAT. § 119.07(4)(d); see also Fla. Att'y Gen. Op. 99.41 (June 30, 1999) (Unless a
special service charge is authorized by law, the agency may charge only the actual cost of
duplication, and cannot charge for the incidental costs, such as limited labor expenses, or non.
extensive use of information technology, or the costs to maintain a database.).
108. See lid. of Cray. Comm'rs of Highlands Cary. v. Colby, 976 So. 2d 31, 37 (Fla. 2d Dist. Ct.
App. 2008) (providing that "special service chargels] apply] to requests for both inspection and
copies of public records when extensive clerical assistance is required" and may include both an
employee's salary and benefits in calculating the actual labor costs incurred by the county).
109. Carden v. Chief of Police, 696 So. 2d 772, 773 (Fla. 2d Dist. Ct. App. 1996) (In a challenge
to a special service charge that exceeded $4,000 for staff time, the court held that an "excessive
charge could well serve to inhibit the pursuit of rights conferred by the Public Records Act" and
remanded the rase to the agency to "explain in more detail the reason for the magnitude of the
assessment.").
110. Generally, mandamus is the appropriate remedy to enforce compliance with the Public
Records Act. Staton v. McMillan, 597 So. 2d940 (Fla. 1st Dist CL App. 1992), review dinnissedsub
nam., Staton v. Austin, 605 So. 2d 1266 (Fla. 1992) (table); see also Weeks v. Golden, 764 So. 2d
633, 634 (Fla. 1st Dist. Ct. App. 2000) ("[M]andamus is an appropriate means of compelling
compliance."); Smith v. State, 696 So. 2d 814, 815 (Fla. 2d Dist. Ct. App. 1997) (Mandamus is
"used to enforce an 'established legal right."'); Donner v. Edelstein, 415 So. 2d 830, 831 (Fla. 3d
Dist. Ct. App. 1982) (Mandamus was used to compel disclosure.); Mills v. Doyle, 407 So. 2d 348,
350 (Fla. 4th Dist. Ct. App. 1981) ("[M]andamus was the appropriate vehicle to remedy the refusal
of the records custodian to accede to [a records request].").
111. FLA. STAT. § 119.11(1) ("Whenever an action is filed to enforce the provisions of this
chapter, the court shall set an immediate hearing, giving the case priority over other pending
cases."); Matos v. Office of the State Att'y for the Seventeenth Judicial Circuit, 80 So. 3d 1149,
1149 (Fla. 4th Dist. Ct. App. 2012) ("[A]n immediate hearing does not mean one scheduled within
a reasonable time but means what the statute says: immediate.").
112. FLA. STAT. § 119.11(2) ("Whenever a court orders an agency to open its records for
inspection in accordance with this chapter, the agency shall comply with such order within [forty-
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22 Stetson Law Review [Vol. 44
Raising the stakes for the government, even a good faith but mistaken
interpretation of the public records exemptions can result in a judicial
ruling that the government refused to comply with the law and a
judgment for attorney's fees. 114
While lawsuits and attorney's fees provisions have reputational and
economic effects on the agencies, violations of the public records laws
can have even more direct and dire consequences for public servants,
including prosecution by the state attomey.115 Unknowing violations of
any provision of Chapter 119 by a public officer may be a "noncriminal
infraction, punishable by fine not exceeding $500."116 A public officer
who knowingly violates the public records law "is subject to suspension
and removal or impeachment and ... commits a misdemeanor of the
first degree," punishable by possible criminal penalties of one year in
prison, or a $1,000 fine, or both.' 17 In extraordinary cases involving
concealment of public records, a felony of the third degree and five
years of imprisonment may be imposed upon a public servant.118 In
sum, the public records laws of Florida are not to be trifled with.
2. An Unfettered Right: Too Much of Good Thing?
Rights still need restraints. Evidence exists that public records laws
can be intentionally misused as tools to prevent the effective functioning
of government. While citizens can use every provision of the public
records laws to their full advantage, public servants cannot stop these
excesses of government in the sunshine. Florida, like other states,
forbids the government from even asking why public records are
eight] hours, unless otherwise provided by the court issuing such order, or unless the appellate
court issues a stay order within such [forty -eight] -hour period.").
113. Id § 119.12.
114. Attorney's fees are recoverable even where access is denied on a good faith but mistaken
belief that the documents am exempt from disclosure. VIM, Inc. v. Robbins, 625 So. 2d 941, 943
(Fla. 4th Dist. Ct. App. 1993); Times Publ'g Co. v. City of St. Petersburg, 558 So. 2d 487, 495 (Fla.
2d Dist. Ct. App. 1990); News & Sun -Sentinel Co. v. Palm Beach Cray., 517 So. 2d 743, 744 (Fla.
4th Dist. Ct. App. 1987).
115. "A state anomey may prosecute suits charging public officials with violation[s]" of the
Public Records Act, including those violations that "may result in a finding of guilt for a
noncriminal infraction." Fla. Att'y Gen. Op. 91-38 (May 30, 1991), awilable at
http://www.myflod"egal.com/ago.mf/Opinions/85126F70134BB IFA852562A80057D7F3.
116. FIA. STAT. § 119.10(lXa).
117. Id. § 119.10(1)(b); FLA. STAT. § 775.082(4xa) (2014); id. § 775.083(lXd).
118. FLA. STAT. § 838.022(l)(b) (2014) (requiring up to 5 years imprisonment "for a public
servant, with corrupt intent to obtain a benefit for any person or to cause harm to another," who
seeks to "[c]onceal, cover up, destroy, mutilate, or alter any official record or official document or
cause another person to perform such an act").
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20151 Sunbumed 23
needed; commercial uses are acceptable119 and motives are considered
irrelevant.120 While it seems reasonable at first to declare that all
documents are public records, the unbounded right of access can
produce absurd results.
The Town of Gulf Stream, Florida, is a tiny beach community with
a population of about nine hundred people, a municipal town hall staff
consisting of four people, and similarly small police and water
departments. 121 Its log tracking public records requests, however,
exposes an excess of government in the sunshine.122 Many requests
clearly have no purpose other than to create mischief or work for the
public servant.
While Florida law treats motive as irrelevant, the nature and
content of some public records requests reveals the consequences of that
policy decision. Consider these examples of requests received by the
Town, which are made available for public inspection on the Town's
webpage:123
119. "[Tjhe fact that a person seeking access to public records wishes to use them in a
commercial enterprise does not alter his or her rights under Florida's public records law."
Microdecisions, Inc. v. Skinner, 889 So. 2d 871, 875 (Fla. 2d Dist. Ct. App. 2004); see also State ex
rel Davis v. McMillan, 38 So. 666 (Fla. 1905) (holding that companies who compile abstracts may
copy documents from the clerk's office for their own use and sell copies to the public for a profit).
120. Florida cases consistently hold that "[t]he motivation or purpose of the person seeking
disclosure of public records is iffelevant." RRrneses, Inc. v. Demings, 29 So. 3d 418, 421 (Fla. 5th
Dist. Ct, App. 2010); see also Staton v. McMillan, 597 So. 2d 940, 941 (Fla. 1st Dist. Ct. App. 1992)
(stating that petitioner's reasons for seeking access to public records "are immaterial"); Lomi v.
Smith, 464 So. 2d 1330, 1332 (Fla. 2d Dist. Ct. App. 1985) ("The legislative objective underlying
the creation of chapter 119 was to insure to the people of Florida the right freely to gain access to
governmental records. The purpose for such inquiry is immaterial."); News -Press Publ'g Co. v.
Gadd, 388 So. 2d 276, 278 (Fla. 2d Dist. Ct. App. 1980) ("The hospital's defense alleging malicious
motives for seeking the documents is likewise irrelevant. The Public Records Act does not direct
itself to the motivation of the person who seeks the records."); Heidi Toth, Freedom of Information
Remains a Push -Pull Relationship: Public Records Are Not Always Easy to Obtain, LUBBOCK
AVALANCHE -J. (Mar. 15, 2014, 11:31 PM), http://Iubbockonline.mm/local
-news/2014-03-15/freedom-information-remains-push-puR-relationship#.U6hywCgoG_J
("The laws say government agencies should make an assumption information is public ......
121. Town of Gulf Stream, Population, GULF-STREAM.ORG, http://www.gulf-strcam.org/
population.html past visited Dec. 29, 2014).
122. See Town of Gulf Stream, Public Records Request Log, GULFSTREAM.ORG, http://
www2.gulf-stream.org/WebLink8/DmVim.mpx?id=19269&dbid=0, past visited Jan. 4, 2015)
[hereinafter Public Records Request Log A (providing a log of public records requests received from
August 2013 to December 2013); Town of Gulf Stream, Public Records Request Log, GULF-
STREAM.ORG, http://www2.gulf--stream.org/WebLinkS/DmVim.mpx?id=19268 (last visited
Jan. 4, 2015) [hereinafter Public Records Request Log 1A (providing a log of public records requests
received for 2014).
123. Town of Gulf Stream, Public Records Requests, GULF-STREAM.ORG, http://www2
.gulf-stream.org/ WebLink8/bmwse.aspx?dbid=0.
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24 Stetson Law Review [Vol. 44
Requests for electronic versions of letterhead and official signatures.
While Florida's public records law makes the purpose of the
request irrelevant, Town officials and residents cannot help but
become suspicious of a request for an electronic copy of the
Town stationary, the police stationary, the Town manager's
electronic signature block, and the police chiefs electronic
signature block. 124
Requests for documents obviously known to be exempt. A request for
"[a]ny and all records containing a social security number," 125
remarkable in breadth and lacking any timeframes at all, is
pointless. By Florida law social security numbers are exempt
from disclosure.126
Requests for the impossible. One public records request sought
"[a]ll Public Records situate[d] atop the Chief of Police's desk
on 7/15/2014 at 11:20 a.m."127 A Town cannot stop time, and
papers move on and off a public servant's desk all day long.
Moreover, a police chiefs records may need to be redacted to
conform with other exemptions.
Un
fu�6lled requests for the tedious. A request for "[a] photographic
reproduction of equal size, resolution, optical value and
granularity of the aerial photograph of a portion of Gulf Stream
on exhibition in Town [H]all chambers," 128 while precise, still
requires a city staffer to spend time obtaining a quote and then
sending the requestor a letter seeking a deposit for the actual
124. Town of Gulf Stream, Public Records Request 14-0931 (May 27, 2014), available at
http://www2.gulf-strem.org/WebLink8/0/doc/18853/Pagcl.wpx.
125. Town of Gulf Stream, Public Records Request 13.0322 (Oct. 29, 2013), available at
http://www2.gulf-mem.org/WebLinkS/O/doc/18303/Pagel.aspx.
126. FLA. STAT. § 119.071(5xax5) (2014).
127. Town of Gulf Stream, Public Records Request 14.1137 (July 15, 2014), available at
http://www2.gulf-stream.oTg/ WebLink8/0/doc/17652/Pagel.mpx; see also Town of Guff Stream,
Public Records Request 14-1140 (July 15, 2014), available at http://www2.gulf
-stmam.org/WebLink8/0/doc/17655/Pagel.wpx (seeking all public records "situate[d] atop [a
Town employee's] desk on 7/15/14 at 11:20 a.m."); Town of Gulf Stream, Public Records Request
14-1138 (July 15, 2014), available at http://www2.gulf-stream.org/WebLinkB/0/
doc/17653/Pagel.aspx (seeking all public records "situate[d] atop the desk in the Lobby to the left
of the front door in the Police Department on 7/15/14 at 11:20 a.m."); Town of Gulf Stream,
Public Records Request 14-1139 (July 15, 2014), available at http://www2.gulf
-stream.org/WebLinkS/0/doc/17654/Pagcl.aspx (seeking all public records "situate[d] atop [a
Town employee's] desk on 7/15/14 at 11:20 a.m.").
128. Town of Gulf Stream, Public Records Request 14-0968 (June 6, 2014), available at
http://www2.gulf-meam.org/WebLink8/0/doc/20544/Pagel.aspx; Town of Gulf Stream, Public
Records Request 13-0413 (Nov. 23, 2013), available at http://www2.gulf-stream.org/
WebLink8/0/doc/17922/Pagel.aspx.
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costs of creating the requested replica. Nothing, of course,
requires the requestor to actually pay that deposit, so the
government's time is easily wasted. 129
• Requests for documents previously sent to the requester. In perhaps the
perfect game of "gotcha," some public records requests involve
requests for documents already possessed by the person or entity
making the request—even including requests for documents
related to past public records requests.130 In these instances, if
the government fails to produce a document, or makes any error
at all, a lawsuit and claim for attorney's fees is likely, because
the requester already has a copy of the documents.
These types of public records do not serve the public interest. And
they do little, if anything, to achieve the central goal of a public records
law: an enlightened society. Instead, these requests require a public
servant to drop all other responsibilities and to become a plaything for
one individual public records requester—all to the detriment of the
public interest.
Among public records lawyers, one example of how the public
records laws can burden the government with little public benefit is
particularly well known. A public records request sought to obtain the
health insurance information for Polk County school employees,
spouses, and children. 131 To many, the request appeared to be a
shocking invasion of privacy, but under the Florida Constitution, the
right to privacy is subordinate to the right of access to public records. 132
Indeed, the broad request, and the resulting litigation, eventually
expanded to include eleven Florida school boards, and the government
was compelled to respond. 133 But the responsive documents now sit in
129. The Town of Gulf Stream's response to Public Records request 14-0968 (June 6, 2014),
available at http://www2.gulf-stream.org/WebLinkg/0/doc/20544/Pagel.upx shows that no
further action was taken by the requester atter the deposit request was sent.
130. See, e.g., Public Records Requat Log 11, supra note 122, at Log No. 912 (requesting copies of
public records requests submitted to the Town); id at Log No. 936, Log No. 1639 (requesting
copies of public records containing the requester's own name).
131. Michael Van Sickler, A Curious Champion for Senate President Don Cae:' Public Rerords Bill,
TAMPA HAY TIMES (Apr. 16, 2014, 6:28 PM), http://www.tampabay.mm/news/
132. FLA. CONST. art. I, § 23 ("Every natural person has the right to be let alone and free from
governmental intrusion into the person's private life except as otherwise provided herein. This
section shall not be construed to limit the public's right of access to public records and meetings as
provided by law.").
133. Sickler, supra note 131.
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boxes at the bottom of the litigant's closet, and the legislature eventually
created a new public records exemption to make sure this particular
request could not reoccur.134 To some, this example embodies the
pointlessness of some public records requests; to others, it represents a
civics lesson—albeit an expensive and time-consuming one.
But the substance, breadth, or purpose of a public records request is
only one way that the Florida public records law is subject to misuse.
The sheer volume of requests is another. While it might seem
reasonable, at first, to say that there should be no limit on the number of
public records requests that a person can file, the notion of unlimited
public access also generates problematic results. Again, the Town of
Gulf Stream provides insights into the problem:
• Volutnes of requests over time. In less than one year, the Town
endured more than 1,100 public records requests 135 (By
comparison, the Department of Justice's Bureau of Alcohol,
Tobacco, Firearms and Explosives processed 1,054 FOIA
requests for the entirety of 2013.).136 Moreover, the requests do
not need a purpose; the mere act of requesting a public record
triggers the duty of the public servant to respond. 137 Among
Gulf Stream's many requests were dozens of requests for the
"[number of] most recent entails created by the Town Manager
and containing the word [ -1."138 One particular example,
showing the pettiness of the request, sent to the Town Mayor,
and using an obviously fake name for an email address with an
unpleasant misspelling of a Town Commissioner's name,
requested "the ten most recent emails from each and every
email account controlled by [the Town Mayor] that contain[ed]
public records. ,139
134. Id.
135. See Public Rerords Request Log II, supra note 122 (listing all public records requests for the
year 2014) (The records request log lists the requests for the year 2014 numerically, starting at No.
466 and ending at No. 1639, at least through November 14, 2014. Subtracting these two numbers
shows that there have been 1,173 records requests from January 2014 through Nov. 14, 2014.).
136. U.S. Dep't of Justice, Data, FOIA.Gov, http://w .fbia.gov/data.htnil?fbia/Services/
RequestDisposition.jsp7agencyName=DOJ&.requestYear--2013 (last visited Jan. 4, 2015).
137. See wpm note 120 (providing caselaw that supports the notion that the purpose of the
request is immaterial).
138. E.g., Public Records Request Log I, wpm note 122, Log Nos. 33-56 (all received on Sept. 20,
2013); id. at Log Nos. 74-88, 90, 92-97, 99-105, 107-14 (all received on Sept. 23, 2013).
139. See Towa of Gulf Stream, Public Records Request 14.1557 (Oct. 3, 2014), available at
http://www2.gulf-stream.org/WebLink8/0/do /23020/Pagel.aspx.
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Coordinated volumes of public records requests. The Town of Gulf
Stream's "Public Records Request Log" further shows how a
select few people can create a substantial problem. In 2013 and
2014, without accounting for emails sent by alias addresses,
one person sent more than 400 public records requests, and one
company (based on the email suffix) generated more than 500
public records requests.140 In many instances, the Town worked
on the requests, only to receive no further inquiry. 141 Other
times, a deposit was requested but unpaid. 142
• Repeated requests. Repeat requests for documents require the
public servants to ensure that they carefully keep track of all
public records requests, both to ensure that responses are
consistent, and to avoid needless duplication of effort. 143
In other words, citizens can—and do—intentionally send multiple
public records requests to a governmental entity and then promptly sue
the governmental entity when their own volume of public records
requests causes a delay. These stories are not limited to the Town of
Gulf Stream. Similar stories revealing the logical limits of the public
records laws have occurred elsewhere in Florida. Over the past five
years, one citizen, who views himself as a civil rights activist, has sued
more than a hundred different government agencies and state
contractors.144 These lawsuits have been estimated to cost government
agencies and contractors over one million dollars, 145 yet the same
individual has been honored by organizations representing the media -146
140. According to the Town of Gulf Stream's Public Records Log,
chrisoharegulfstream@gmail.com sent 237 public records requests in 2013 and 219 public records
requests in 2014, and entails with a suffix of @commerce-group.com accounted for 518 public
records requests in 2014. Public Records Request Log I, supra note 122; Public Records Request Log II,
supra note 122.
141. The Town of Gulf Stream, Public Records Log tracks various data to monitor when
requests are received, when "intake" letters are sent to acknowledge receipt, when an estimate is
provided, and when documents are produced. Comparison of the fields quickly shows that many
deposit requests do not lead to record production. Public Records Request Log I, supm note 122; Public
Records Request Log II, supm note 120.
142. Id
143. Id. at Log Nos. 815-23.
144. Jessica Vander Velde, Public Records Watchdog Sues Several Tampa Bay Agencies, TAMPA BAY
TIMES (Jan. 21, 2013, 3:30 AM), http://www.tampabay.com/news/courts/civil/
public-records-watchdog-sues-several-mmpa-bay-agencies/ 1271682.
145. Id
146. Nat'l Freedom of Info. Coal., Lakeland (FZ) Public Records Watchdog Joel Chandler Honored,
NFOIC.ORG (Much 14, 2012, 1:39 PM), http://www.nfbic.org/lakelmd
-fl-public-remrds-watchdog-joel-chandler-honored.
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Of course, even though a sweeping right to request public records
can be abused, the notion of restricting the content or number of public
records requests is also problematic. The specific merits of any
individual public records request might be debatable. Nevertheless, the
overall evidence proves that a problem exists. This Article is an attempt
to provide a solution to the outlier problems, while leaving intact the
public right of access that democracy holds dear.
M. RECOMMENDATIONS AND SOLUTIONS.
SEEKING SHADES OF GREY
At least some of the problems faced by Florida's public servants
can be rectified without undermining the objectives of Florida public
records law. The executive branch must faithfully implement the law,
particularly by ensuring that it makes important public records quickly
and readily available, in accordance with the public records laws. 14' But
the judiciary also should be judicious in its interpretations of public
records laws; the legislature should recognize that its strictures may be
too strict; and the legal profession must adhere to its own codes of
professionalism and ethics.
A. Executive Action: Implementing Principles
Critics of this Article and opponents of any effort to reform
Florida's public records laws will inevitably claim that the government
itself is the problem. A person accused by some of being a radical abuser
of the public records laws might even be defended by others as a hero
and a government watchdog. 148 To overcome the skeptics, Florida's
governmental entities must continue to show and document their
commitment to the faithful execution of the public records laws.
147. While Part III(A) of this Article focuses on the executive branch because, in the era of the
administrative state, it is the largest source of government records, these principles apply equally to
the judicial and legislative branches of government. See FLA. CONST. art. I, § 24 ("This section
specifically includes the legislative, executive, and judicial branches of government and each
agency or department created thereunder; counties, municipalities, and districts; and each
constitutional officer, board, and commission, or entity created pursuant to law or this
Constitution.").
148. Sickler, supra note 131.
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1. Enhancing Compliance
Compliance with the public records law, however, is no easy task,
especially for small local governments with limited staffing.
Governmental officials also have a legal duty to implement the
sometimes ambiguous, legislatively created exemptions, which are often
narrowly interpreted. 149 Individual privacy rights still exist, protecting
some forms of personal information.150 Police records must be carefully
redacted.15' Corporate trade secrets are exempt from public records
disclosure too.152 And of course, government also has the practical and
sometimes burdensome duty to dedicate personnel and other resources
to fulfill the requests and adhere to the exemptions—or else.
149. One article, comparing the common exemptions of state public records laws, summarized
them as: (1) a balancing test, (2) Federal Law/FERPA, (3) Personal Information, (4) Academic
Exams, and (5) Academic Research. Fairchild, supra note 40, at 2173. Florida offers none of these
exemptions. But when exemptions are offered in Florida, they are narrowly interpreted. For
example, in Southern Bell Telephone & Telegraph Co. v. Beard, the court agreed with the Public Service
Commission's determination that a statutory exemption for proprietary, confidential business
information be narrowly construed "consistent with the liberal construction afforded the Public
Records Act [and] in favor of open government.' 597 So. 2d 873, 876 (Fla. 1st Dist. Ct. App. 1992).
FLA. STAT. § 119.071(1xd) creates a narrow exception to the Public Records Act for attorney work
product, which is more narrowly interpreted than the work product privilege recognized by the
courts for private litigants. Fla. Att'y Gen. Op. 91-75 (Oct. 1, 1991), available at
Fla. Att'y Gen. Op. 85.89 (Oct. 30, 1985), available at http://www.myfloridalegal.com/
ago.nsf/Opinions/99BC3B5E9D4A2810852565760056FB2F. Similarly, although the Auditor
General's work -papers and notes are not a public record pursuant to FLA. STAT. § 11.45(4xc)
(2014), the Florida Attorney General concluded that "the term'audit work papers and notes' should
be construed narrowly and limited to such 'mw data' as is commonly considered to constitute the
work papers of an accountant." Fla. Att'y Gen. Op. 79.75 (Aug. 23, 1979), available at
http://www.mylloridalcgal.mm/ago.mf/Opiniom/
9511192E3DF39D8FB525658E0063BEF5.
150. Grayson Barber, Personal Information in Government Recardr. Protecting the Public Interest in
Privacy, 25 ST. LOUIS U. PUB. L. REv. 63 (2006), available at http://
graysonbarber.mm/pdf/SLU_PubLRev_2006.pdf,, see, eg., FIA. STAT. § 119.071(2)0)(1)
(exempting from disclosure the "identity, home or employment telephone number, home or
employment address, or personal assets of the victim of a crime").
151. See, e.g., FLA. STAT. § 119.071 (2xcxl) (exempting "[a]ctive criminal intelligence
information and active criminal investigative inf rmation" from public inspection); but see id. §
119.011(3)(c) (stating that six categories of information commonly found in police records are not
"criminal investigative" or "criminal intelligence information": (1) the "time, date, location and
nature of a reported crime'; (2) the "name, sex, age, and address of a person arrested or of the
victim," unless the victim suffered a sexual offense or of child abuse; (3) the "time, date and
location of the incident and of the arrest'; (4) the crime charged; (5) certain documents given or
required to be given to the person arrested; and (6) other infomrations and indictments).
152. See FLA. STAT. § 815.045 (2014) ("The Legislature finds that it is a public necessity that
trade secret information ... be expressly made confidential and exempt from the public records law
because it is a felony to disclose such records."); Andy Bertron, Conflicts Between the Sunshine law
and Trade Secret Protection in Public Procurement, 76 FLA. B.S., Feb. 2002, at 36, available at
https://www.floridabu.org/divcom/J*n/injoumal0l.mf/
Author/4DOBDB6DE7BF91FD85256B52007BF485 (proposing that the legislator should create
"an exemption for procurement meetings when trade secrets are involved").
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30 Stetson Law Review [Vol. 44
But legal compliance is compulsory, nonetheless—a point brought
home by an industry of compliance professionals who have special skills
helping companies to develop policies and procedures to reduce risks of
legal violations.15' The principles of a successful compliance program
have been set forth by the United States Sentencing Commission. 154
Originally developed to identify the measures expected of corporations
and organizations seeking to minimize risks of criminal misconduct, the
seven principles provided by the Sentencing Commission help
organizations to reduce and ultimately eliminate misconduct,
empowering the organizations to self -police their own conduct. 155
According to the Federal Sentencing Guidelines Manual, the principles
of an effective ethics and compliance program are: (1) to "establish
standards and procedures to prevent and detect criminal conduct";
(2)to ensure that organizational leadership, including senior officers
and boards, is knowledgeable of and oversees the compliance program;
(3) to take reasonable efforts to exclude bad actors from managerial
ranks; (4) to implement routine education communications and training
programs; (5) to monitor, audit, and evaluate the effectiveness of the
program, in part by maintaining a confidential system for employee
reporting of non-compliance; (6) to promote and enforce the program
through appropriate incentives and disciplinary measures; and (7) to
take reasonable steps to respond to and prevent misconduct when it
occurs. 156 These principles, though originally focused on the criminal
context, apply equally well to civil compliance and can certainly be
applied to governmental entities seeking to ensure civil and criminal
compliance with the public records laws.
In fact, demonstrating their commitment to Florida's system of
open government, and in full accord with the fust principle of an
effective ethics and compliance program, dozens of Florida
153. For example, the Society of Corporate Compliance and Ethics (SCCE) is a regulatory
compliance association that provides discussion forums and educational programs for its members
to promote the introduction, development, and maintenance of high-quality corporate compliance
programs in a complex regulatory environment. Soc'y of Corp. Compliance & Ethics, Ahour the
Satiety of Corporate Compliance and
Ethics, CORPORATECOMPLIANCE.ORG, http://www.corporatecompliana.org/AboutSCCE/
AboutSCCE.wpx out visited Dec. 30, 2014).
154. U.S. SENTENCING COMM'N, U.S. SENTENCING GUIDELINES MANUAL 503, § 8132.1
(2014), available at http://www.ussc.gov/sites/default/files/pdf/guidelines.manual/2013/
manual-pdf/Chapter_8.pdf.
155. Id. at 503-04, § 8132.1(b).
156. Id.; see also Kwamina Williford & Daniel Small, Establishing an Effective Compliano Program:
An Overview to Prorating Your Organization, ASSN OF CORP. CoUNS. (Jan. 25, 2013),
http://www.am.mm/legalr s urces/quickmumel/eaecp.cfhi.
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governmental entities—cities,157 counties,158 school boards,1S9 executive
branch departments,160 and other Florida governmental entities 161—
publish their public records standards and procedures online. Generally,
these policies help educate the agency staff and the public on topics such
as the definition of a public record, exemptions to disclosure,
procedures for requesting different records, timeframes for fulfillment of
requests, and possible fees to be assessed. At a minimum, every public
157. Eg., CITY OF LONGWOOD, CITY OF LONGWOOD PUBLIC RECORDS POLICY &
PROCEDURE (2004), awilable at http://www.longwoodfl.org/filestomgc/210/212/314/319/
Public Records_Policy.pdf, CITY OF MAITLAND, CITY OF MAITLAND, FLORIDA, PUBLIC
RECORDS REQUEST POLICY (2005), available at https://www.itsmymaitland.com/
RecordsRequestProcedures.pdf, CITY OF ROCKLEDGE, CITY OF ROCKLEDGE: PUBLIC RECORDS
POLICY AND PROCEDURES (2008), awilable at http://www.cityofrockledge.org/
DocumentCenter/Home/View/491; CITY OF SATELLITE BEACH, CITY OF SATELLITE BEACH,
FLORIDA: PUBLIC RECORDS POLICY—INSPECTING AND DUPLICATING, awilable
at http://www.satellitebeachfl.org/Documents/Public°/a2ORemrds%2OPolicy%2O2-15-07.pdf, City
of Deltona, Public Records Request Policy, CI.DELTONA.FL.US, http://www.ci.deltona.fl
.us/Pages/DeltonaFL_Depts/DeltonaFL_Clerk/FOIA (last visited Dec. 30, 2014); City of
Plantation, City Clark: Guidelines for Public Recons Request, PLANTATIOMORG,
http://www2.plantation.org/City-Clerk/public-records-mquest.hmd# Cast visited Dec. 30, 2014);
Town of Windermere, Town of Windermere, Florida Public Records Request Policy (Amended),
TOWN.WINDERMER.FL.US, http://www.town.windermere.fl.us/pView.aspx?id
=238878ccadd=484 Cast visited Dec. 30, 2014).
158. E.g., COLUMBIA CNTY., COLUMBIA COUNTY, FLORIDA: PUBLIC RECORDS REQUEST
POLICY, available at http://www.mlumbiamunEyfla.com/downloads/mlumbia_munty
_records_request–policy.pdf, GULF CNTY., GULF COUNTY, FLORIDA: PUBLIC RECORDS REQUEST
"PRR" POLICY (2011), available at http://www,gulfcounty-fl.gov/pdf/
13696512020400.pdf, OKALOOSA CNTY., PUBLIC RECORDS REQUEST POLICY (2010), available at
http://www.co.okaloosa.fl.w/Dept_doo/dm/prr,_policy.pdf, ST. JOHNS CNTY., GROWTH
MANAGEMENT SERVICES RECORDS MANAGEMENT PROGRAM: PUBLIC RECORDS POLICIES AND
PROCEDURES (2008), awilable at http://www.co.st-johns.fl.us/
GmwthManagement/ media/PublicRemrdsPoliciesandProcedum2008.pdf.
159. E,g., BREVARD PUB. SCHS., RECORDS MANAGEMENT MANUAL: POLICIES AND
PROCEDURES (2012), available at bttp://districtmmmunimtions.brevardschools.org/
RecMgt/Publications_Guides/Remrds_Management_Manual-Policies-Pr edures.pdf, Sch. Bd.
of Collier Cnry., The School Board of Collier County Administmtire Procedures 8310A—Public Records
Requests, NEOLA.COM, http://www.neola.mm/mllier-fl/search/
ap/ap8310a.htrn Cast visited Dec. 30, 2014).
160. E.g., Dep't of Elder Affairs, Public Retort Request Procedure, EDLERAFFAIRS.STATE.FL.US,
http://cldemffa n.state.fl.w/dma/record_requmt.php Cast visited Dec. 30, 2014); Fla. Dept of
Fin. Servs., Public Records Requests: Making a Public Records Request to DPS, MYFLORIDACFO.COM,
http://www.myfloridacfb.mm/sitepages/
required/publicrecords.aspx Cast visited Dec. 30, 2014).
161. FLA. DEP'T OF JUVENILE JUSTICE POLICY, REQUESTS FOR DEPARTMENT RECORDS
(2009), available at http://www.db.smte.fl,m/docs/policies/request-departmental-remrds
-policydjj-1910.pdf/sfvrsn=4; FLA. DEPT OF JUVENILE JUSTICE PROCEDURE, REQUESTS FOR
DEPARTMENT RECORDS PROCEDURES (2009), amilable at http://www.di.state.fl.us/
=o; ORLANDO HOUSING AUTHORITY, PUBLIC RECORDS POLICY FOR THE
HOUSING AUTHORITY, available at http://www.orl-oha.org/dommmts/
pubiiaemrdspolicyphaform042013.pdf, Miami -Dade Cary., Public Records, MIAMIDADE.GOV,
http://www.miamidade.gov/transparency/public-records.wp Cast visited Dec. 30, 2014).
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32 Stetson Law Review [Vol. 44
servant should know that a request for public records can be ora1162 and
should be trained to promptly resolve minor requests for documents in
his or her immediate possession. 163 For documents not in a person's
possession, public employees should be trained to immediately direct a
citizen to the record custodian or other proper point of contact.164 In
addition, public servants should read and keep a copy of the Florida
Attorney General's Government-in-the-Sunshine-Manuaff at hand. The
book offers a searchable and readable question and answer summary of
decades of caselaw on open government and is an indispensable tool for
public records compliance.166
But true compliance with the public records laws requires more
than just a published manual. A governmental entity could have
excellent policies and procedures, a well-trained staff, leadership fully
dedicated to ethical compliance with the public records laws, and a
robust reporting, monitoring, and enforcement process. Yet, it can still
fall short, in substance, of the constitutional goal of giving every person
a right to inspect or copy any public record.
162. Fla. Att'y Gen. Op. 80-57 (June 17, 1980), available at http://www.myforidalegal
.corn/ago.nsf/ Opinions/29B1FE397E99E1238525658DO05C903B ("There is no express or
implied requirement in the statute that the requesting party make the demand in person, as opposed
to requesting copies by telephone or in writing, and I decline to read such a requirement into the
statute. Therefore, in the absence of such a requirement, and in view of the public policy
enunciated in the cited cases, it is my opinion that a request for copies of records which is sufficient
to identify the records desired must be honored by the custodian, whether the request is in writing,
over the telephone, or made in person, so long as the required fees are paid.").
163. The "duty of disclosure" imposed by FLA. STAT. § 119.07(1) (2014) applies to "'[e]very
person who has custody of a public record."' Pins v. City of Port St. Lucie, 678 So. 2d 514, 514
(Fla. 4th Dist. Ct. App. 1996) (quoting FLA. STAT. § 119.07(1)). The custodian of a record, for
purposes of the public records laws, includes all agency personnel "who have it within their power
to release or communicate public records." Minms v. City of West Palm Beach, 711 So. 2d 1359,
1361 (Fla. 4th Dist. Ct. App. 1998) (citing Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla.
5th Dist. CL App. 1991)).
164. Courts have concluded that the public records law's reference to a "records custodian"
does not alter the "duty of disclosure" imposed by Section 119.07(1) of the Florida Statutes; rather,
the duty of disclosure is upon "te]veryperson who has custody of a public record." Puts, 678 So. 2d
at 514. Thus, any person who has custody of a record must disclose that record. But not every
public servant can immediately answer every public records request, and may not be a custodian of
the record. See, e.g., Minna, 711 So. 2d at 1361 ("The mere fact that an employee of a public agency
temporarily possesses a document does not necessarily mean that the person has custody as defined
by [S]ecdon 119.07.") Moreover, requests can require additional time for redactions and reviews.
See, e.g., Lang v. Reedy Creek Improvement Dist., No. CJ -5546, slip op. at 2, 7-8 (Fla. 9th Cir. Ct.
Oct. 2, 1995) (rejecting a claim that the agency should have produced requested records within ten-,
twenty-, and sixty-day periods because the nineteen different public records requests, which
involved 135 categories of information and records, required time and a considerable amount of
review and redaction of exempt information), afd per curiam, 675 So. 2d 947 (Fla. 5th Dist. Ct.
App. 1996) (table).
165. GOVERNMENT-IN-THESUNSHINE-MANUAL, supm note 94.
166. Id.
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To fully embrace the public records laws means that a
governmental entity should embrace the right of public access. The
underlying goal of an informed public can be achieved through the
affirmative effort of publishing and disseminating government records—
even without a request. Greater transparency can be readily
accomplished because the Internet has made public access easier. 167
For
example, governments can easily publish their rules and orders online,
which is something explicitly encouraged by Florida law.168 The
agendas and backup material for collegial boards can be posted in
advance of the public meetings, which is a practice consistent with other
open governance statutes. 169 Once again, many governmental entities do
just that, and more. 170
In addition to the routine publication of various types of public
records, specific projects of great public importance might also warrant
special consideration. When the South Florida Water Management
District (SFWMD) was engaged in an effort to acquire all the assets of
the United States Sugar Corporation in 2008, the enormous $2 billion
deal made international news. 171 The highly controversial proposal also
167. The Obama Administration, for example, expressed its commitment to transparency and
the use of the Internet in its Memorandum from Peter R. Orszag, Director, Office of Management
Bud Budget, to Heads of Executive Departments Bud Agencies, Open Government Directive 1, 8 (Dec.
8, 2009), available at http://www
.whitehouse.gov/omb/insets/memomnda_2010/m10-06.pdf, see also WENDY R. GINSBERG, THE
OBAMA ADMINISTRATION'S OPEN GOVERNMENT INITIATIVE: ISSUES FOR CONGRESS (2011),
available at http://fas.org/sgp/as/secrecy/R41361.pdf (discussing the Obama Administration's
directive to make the government more transparent and providing examples of how Congress may
respond to it). Despite good intentions, criticisms remain. See, e.g., Shkabamr, supra note 84, at 80-
81 (questioning whether the Obama Administration's open government directive "succeed[s] in
improving public accountability").
168. FLA. STAT § 119.01(2xe) (2014) ("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.").
169. The Florida Statutes require various governmental agency meetings to be open to the
public and further requires that "minutes of a meeting of any such board or commission of any
such state agency or authority shall be promptly recorded, and such records shall be open to public
inspection." FLA. STAT. § 286.011(1)-(2) (2014). In addition, the Florida Statutes require that
"[e]xcept in the rase of emergency meetings, each agency shall give notice of public meetings,
hearings, and workshops by publication in the Florida Administrative Register and on the agency's
website not less than [seven] days before the event. The notice shall include a statement of the
general subject matter to be considered." FLA. STAT. § 120.525 (2014).
170. For example, Martin County, Florida, provides ready access to virtually all of its public
meeting documents through an Internet portal with searchable date ranges. Martin Cary., Public
Meeting Documents: Agendas and Morel, MARTIN.FL.US, http://www.martin.fl
.us/portal/page7_pageid=356,1923330 dad=portal&_schema=PORTAL (last visited Dec. 29,
2014).
171. Jim Loney, Florida to Buy Chunk of Everglades from Sugar Firm, REUTERS (June 24, 2008,
4:42 PM EDT), http://www.reutem.com/article/2008/06/24/w-ms vaglades
-idUSN2433223220080624.
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became the subject of great public scrutiny, leading to an abundance of
public records requests.[' But SFWMD took a highly proactive
approach. On a webpage dedicated to the proposed "Reviving the River
of Grass" transaction, SFWMD published nearly every non-exempt
public record associated with the dea1.173 It published the video and
audio files and PowerPoint presentations, 174 the contracts and due
diligence documents,175 the amendments to the proposal as they were
negotiated,176 and even the daily news clipS.177 When public records
requests were made for material not otherwise posted online, it even
published those requests and the responsive documents. 171
Online publication of an agency's public records provides an
effective demonstration of commitment to open governance. By
embracing transparency, government agencies can enhance public
access and improve their own accountability and credibility, especially
by releasing substantive information on their own decision-making
processes and on their substantive performances.' 79 Moreover,
transparency comes with an additional benefit—being able to quickly
respond to some public records requests by informing the requester that
the desired documents are already available online. In other words,
online publication ensures that governmental entities fulfill the
fundamental purpose of the public records laws and the Florida
Constitution by providing public access to government information.
172. See S. Fla. Water Mgmt. Dist., Public Records Requests, SFWMD.GOV, http://www
Our visited Dec. 29, 2014) [hereinafter Public Records Requats] (providing copies of the public
records requests received in response to the acquisition of the sugar firm for years 2008 to 2010).
173. S. Fla. Water Mgmt. Dist., River of Gross Land Acquisition Archive, SFWMD.GOV,
http://www.sfwmd.gov/portal/page/portal/pg-grp_sfwmd km/pg-sfvmcLkoe_riverofgms Out
visited Dec. 29, 2014) [hereinafter River ofGrass Land Acquisition Archive].
174. S. Fla. Water Mgmt. Dist., Presentations and Discussions, sFWMD.GOV,
-presentations (last visited Dec. 29, 2014).
175. S. Fla. Water Mgmt.Dist., Acquisition Documents: Contracts and Due Diligence, SFWMD.GOV,
http://www.sfwmd.gov/portal/page/poral/pg-m-sfwmc koe/pg_sfwmd_koe
_riverofgrass_acquisition (last visited Dec. 29, 2014).
176. RiverofGrass Land Acquisition Archive, supra note 173.
177. S. Fla. Water Mgmt. Dist., Guest Opinions, Editorials and News Articles, SFWMD.GOV,
http://www.sfWmd.gov/postal/page/portal/p&-M-sfw cLkm/pg-sfwmd_koe
riverofgms-guest Out visited Dec. 29, 2014).
178. PublicRemnisRequests, supra note 172.
179. Shkabamr, supra note 84, at 81 (discussing transparency policies and arguing that policies
should focus on including "structured information on [agency] decisionmaking processes and on
[agency] performance" because these two categories of information "are most pertinent for public
accountability purposes").
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2. Managing Costs
In theory, a governmental entity's decision to post vast amounts of
material online offers a rational and effective tool to enhance
compliance with the public records laws. Although this can be a costly
process, such is the price of good governance. Agencies must design
systems to comply with the public records laws and provide necessary
staff or information technology systems.180 In ideal and even normal
circumstances, the investment to comply with Florida's public records
laws will produce an informed public through information access.
But even with the most abundant of financial resources, and even
with the most idealistic of motives, a government agency routinely finds
that there are limits to what it can do. Creation of the necessary
electronic platforms takes time, effort, funding, as well as substantial
information technology expertise. Large volumes of emails and text
messages, in particular, can make implementation of the public records
law especially challenging.1A' And before being posted online,
documents must be carefully scrubbed to ensure that exempt material is
not accidentally made public, 182 Ambiguities in the exemptions must
also be carefully assessed. 183 Sometimes, even if an agency is willing and
able to widely publish its information, the type of record, such as large
detailed maps or scientific databases, or the risks of that information
being modified, can create special obstacles to embracing public access.
180. FLA. STAT. § 119.01(2)(a) (2014) ("Automation of public records must not erode the right
of access to those records. As each agency increases its use of and dependence on electronic
recordkeeping, each agency must provide reasonable public access to records electronically
maintained and must ensure that exempt or confidential records are not disclosed except as
otherwise permitted by law.").
181. Cheryl Cooper, Comment, Sending the Wrong Message: Technology, Sunshine Law, and the
Public Rerord in Florida, 39 STETSON L. REV. 411, 422-23 (2010); Op -Ed., Governor's End Run
Around Public Rerords Law, FLA. TIMES -UNION (April 22, 2014, 2:36 PM EDT),
http: / /jacksonviUc.com/opinion/editorials/2014-04-22/story/govemon-end-run
-around-public-records-law (discussing applicability of public records laws to text messages by
administration employees); Morgan Watkins, Text Messaga as Public Records: A New Set of Issues,
GAINESVILLE SUN (March 10, 2013, 10:14 PM EDT),
http://www.gainesvffle.com/article/201303 10/ARTICLES/ 130319994.
182. Although an agency is not required to provide direct access to the agency's electronic
records through a hard drive provided by a requester, it must otherwise allow inspection and
copying of such records in a manner that will accommodate the request and protect from disclosure
exempt or confidential materials. Fla. Att'y Gen. Op. 2013-07
(Apr. 1, 2013), available at http://www.myfioridalegal.com/ago.nsf/Opinions/
63BIE6EFIO IAA01685257B41004A23AA.
183. Ambiguities in the exemptions create special complications too. For example, consider
whether mail containing Federal Express account numbers can be redacted. A Florida statute
provides an exemption for "[blank account numbers and debit, charge, and credit card numbers."
FLA. STAT. § 119.071(5)(b). But does a Federal Express account number, printed on a mailing
label, constitute a "charge ... number"? Id
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36 Stetson Law Review [Vol. 44
As a result, as a practical matter, not every document can be made
available online.
Of course, the public will still have a right to access those
documents—for a price. Public access does not necessarily mean at no
cost to the person making the request. Sometimes, costs are strictly
determined by law. Florida's public records laws authorize the
government to collect a fee of up to 15 cents per one-sided copy for
copies that are 14 inches by 8 1/2 inches or less, up to 20 cents for each
two-sided copy, and up to $1.00 for a certified public record.184 For
other copies, a charge is allowed for the actual cost of duplication."5
Alternatively, Florida law allows a "special service charge" when "the
nature or volume of public records to be inspected ... require[s]
extensive use of information technology resources or extensive clerical
or supervisory assistance ... or both. o186
When implementing these special service charges, the government
must be fair not only to the requester, but also to the rest of the public.
Agencies must be sure to develop appropriate documentation to support
"reasonable" special service charges based on the actual costs of the
information technology and labor resources. 187 Some Florida courts
have required agencies to communicate to the requester, before
beginning work, an estimate of the total charge or the hourly rate to be
applied so that the requester can determine whether it appears
reasonable under the circumstances. 188 Other courts have noted that the
request for an advance deposit is prudent to ensure that taxpayers do
not bear the full cost of complying with a public records request. 189
But requiring a deposit is not a sufficient measure to prevent the
potential for abuse of the public records laws. By fling dozens,
hundreds, or even thousands of public records requests, a citizen can
overwhelm a governmental entity. In these instances, governmental
entities should be sure to track the requests and to document the facts as
best they can. When the inevitable debate over the reasonableness of a
184. Id. § l l9.07(4xax1){2), (4xc).
185. Id. § 119.07(4xa)3.
186. Id. § 119.07(4xd).
187. Id.
188. Herskovitz v. Leon Cray., No. 98-22, slip op. at 9 6 (Fla. 2d Cir. Ct.
June 9, 1998), available at http://myfloridalcgal.com/sun.nsf/cases/
79A 163A3DOOE070D852578490076EC3C/$file/Hmkovitz+vs.+Leon+County+2.pdf.
189. Bd. of Cnty. Comm'rs of Highlands Cray. v. Colby, 976 So. 2d 31, 37 (Fla. 2d Dist. Ct.
App. 2008) (stating that a "policy of requiring as advance deposit seems prudent given the
legislature's determination that taxpayers should not shoulder the entire expense of responding to
an extensive request for public records").
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delayed response arises, the government will need to be able to provide
evidence of the problem.
Notably, while some states, and even FOIA, provide timeframes
for responding to a public records request, Florida's public records law
does not provide such a specific time frame for a response to be
provided. Nevertheless, the Florida Supreme Court has been openly
intolerant of delay, stating that the only permitted delay in producing
records "is the limited reasonable time allowed [for] the custodian to
retrieve the record and delete those portions of the record the custodian
asserts are exempt."190 Thus, the reasonableness of the delay can
become a question of fact—sadly, potentially necessitating a costly trial
for the agencies, entities, or persons responsible for responding to the
public records request even when a request had been fulfilled.
When large volumes of documents have been requested or
substantial redactions of exempt information might be needed, courts
have upheld substantial special service charges and longer periods of
time for disclosure of the requested records.191 One divided appellate
court upheld an agency rule allowing the imposition of service charges
based on the aggregation of multiple requests that collectively would
take more than fifteen minutes of time. 192 Such a rule, however, will not
190. Tribune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984).
191. See, e.g., Hmkovitz, No. 98-22, slip op. at 115-6 (Fla. 2d Cir. CL June 9, 1998) (In view of
the "nature and volume of the materials requested[, which included over 9,000 pages], their
location, and the need Por close supervision by some knowledgeable person of the review of those
records for possible exemptions," the county's need for several weeks to produce records was not
unreasonable.); Lang v. Reedy Creek Improvement Dist., No. 0-5546, slip op. at 7-8 (Fla. 9th
Cir. Ct. Oct. 2, 1995) (finding that an agency's response to public records requests for 135
categories of information and records, which were filed by an opposing parry in litigation, was
reasonable in light of the cumulative impact of the requests and the need for a considerable amount
of review and redaction), q#'dpercuriam, 675 So. 2d 947 (Fla. 5th Dist. Ct. App. 1996) (table).
However, for the Clerk of Court, a "fee may not be charged for the redaction of a social security
number or a bank account, debit, charge, or credit card number pursuant to such request." FLA.
STAT. §119.0714(2Xc). Instead, the clerk must keep social security numbers confidential and
exempt pursuant to Section 119.071(SXa) of the Florida Statutes, and bank account, debit, charge,
and credit card numbers must be kept exempt as provided for in Section 119.071(5)(6) without any
person having to request redaction.
192. Fla. Inst. Legal Servs., Inc. v. Fla. Dep't of Corr., 579 So. 2d 267, 267-69 (Fla. Ist Dist.
Ct. App. 1991). The dissenting judge argued that Florida law prevented the agency from
aggregating multiple public records requests when calculating the appropriate fees:
The rule defines "extensive" as requiring a clerk to expend at least fifteen minutes of
time. The hearing officer's order contains a finding that fifteen minutes is not in itself
extensive, but justifies treating this short limitation as "extensive" within the meaning of
the statute by reason of the "cumulative effect of numerous requests" for information from
the agency. I find no language in section 119.07(i)(b) that supports a notion that this
section contemplates the cumulative effect of numerous requests in determining what is
"extensive." On the contrary, this section is written in terms of a single request, and it is
clear to me that unless a single request for location and review of public records requires
"extensive" time, no charge may be made for the service pursuant to the statute. In view of
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stop the requests. To begin with, its purpose can be evaded by multiple
requesters who simply file daily requests for records, demanding only
the number of records that can be produced in fifteen minutes or less—a
practice currently being endured by the Town of Gulf Stream.193
Furthermore, even the possibility of requiring a public records requester
to pay for some of the costs of responding to a request will not stop the
well -funded requester.
The prospect of a small governmental entity being overwhelmed by
an overabundance of public records requests parallels the circumstances
created by litigators who once toyed with the rules of civil procedure.
Well-financed law firms with large clients could bury smaller opponents
in the discovery process. Discussing the problem of excessive requests in
the context of interrogatories and civil procedure, one scholar explained
that:
[a] broad interrogatory practice can thus occasion gross inefficiencies
and encourage abuse. This is particularly true for big-ticket cases,
where the stakes frequently motivate parties to litigate by hook or
crook. But interrogatory abuse can reach smaller cases as well,
where moneyed parties can ); rotract discovery beyond the means of
their less wealthy opponents. 94
To end the tactical abuse of civil procedure, the rules were
amended to be consistent with the goals of ensuring the "just, speedy,
and inexpensive determination of every action."195 Federal civil
procedure now allows only twenty-five written interrogatories,
including discrete subparts, 196 and many states have imposed similar
constraints.
the hearing officer's finding that fifteen minutes per se is not extensive, neither the record
nor section 119.07(lxb) supports the validity of this rule requirement.
Id. at 270. If this dissenting view ever became law, the public records laws would collapse—one
citizen could send thousands of tiny public records requests, each designed to be small enough to
stay under the fifteen minute (or other) threshold, but collectively requiring countless amounts of
time. The government would have no hope at all of cost recovery; the government would be sued
for alleged non-compliance and unreasonable delays; and the taxpayers would foot the bill.
193. See, e.g., Public Rerords Request Log, supm note 122 (noting that one person was responsible
for more than 400 public records requests).
194. David S. Yon, Comment, Rule 33(a) s Interrogatory Limitation: By Party or by Side?, 75 U.
CHI. L. REV. 911, 912-13 (2008).
195. FED. R. CIV. PRO. I ("[These rules] should be construed and administered to secure the
just, speedy, and inexpensive determination of every action and proceeding.").
196. Id. at 33(a)(1) ("Unless otherwise stipulated or ordered by the court, a party may serve on
any other parry no more than [twenty-five] written interrogatories, including all discrete
subparts.").
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Just like the interrogatory abusers of the past, people using
Florida's public records laws can intentionally burden poorer and
smaller governmental agencies with public records requests. Eventually,
just as the courts rewrote civil procedure, the Florida legislature will
need to consider limiting the number of public records requests that can
be made. But until reform happens, the governmental entities trying to
comply with the public records laws must rely upon the law's limited
cost recovery tools as the sole mechanism to deal with large volumes of
public records requests. On this subject, two legal opinions warrant
careful review.
First, in Lotman v. City of Riviera Beach,197 the Florida Fourth
District Court of Appeal considered a situation where a citizen had
requested public records related to meeting transcripts covering a two-
year period and "emails and letters between numerous people over a
[three-year] period."198 The city compiled the copies of the records and
requested payment for $233.50.199 Lozman, however, refused to pay and
instead requested other documents.200 The city, in tum, refused to do
any further work until the outstanding debt was paid.201 Rejecting
Lozman's subsequent complaint seeking a writ of mandamus, the court
held, in a short opinion, that the public records law "does not require
the [c]ity to do any more than what it did in this case."202 Taking this
case to its logical conclusion, a governmental entity could simply refuse
to respond to any public records requests made by the same individual
until the debts associated with prior requests are settled.
Second, in a formal opinion issued to the City of Lake Worth, the
Florida Attorney General concluded that not only could the city seek a
monetary deposit for its actual costs incurred in making copies to
comply with a public records request, but the city could also "bill the
requester for any shortfall between the deposit and the actual Cost[s]."203
In fact, even after the requesting party advised the city that the copies
were no longer needed, the Florida Attorney General concluded that
the city's "clerk [was] entitled to receive payment for the entire amount
of the value of his or her services as authorized by the statute. "204
197. 995 So. 2d 1027 (Fla. 4th Dist. Ct. App. 2008).
198. Id. at 1028.
199. Id.
200. Id.
201. Id.
202. Id.
203. Fla. Att'y Gm. Op. 2005-28 (Apr. 28, 2005), available at http://www
.my0oridalegal.mm/ago.nsf/Opinions/C6EF678CEB69883B85256FF1005C71B 1.
204. Id.
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These decisions provide helpful (but still incomplete) tools that can
be used by a governmental entity to manage the requests made by a
single person. Charges and bills for public records services, however,
and even the possibility of the cessation of work for unpaid bills, will
not stop the well-financed and zealous public records litigant. If the
requester pays the deposits or withdraws some requests and files others,
the government is still forced to respond. Meanwhile, time spent on
public records is time not spent on the rest of the government's business,
which is an especially vexing problem for a small governmental entity
with a small number of employees capable of working on the public
records responses. Anonymous requests, as discussed below, provide an
especially vexing problem. A careful and well -organized strategy for
requesting deposits and recovering costs is, at a minimum, an important
component of any governmental entity's efforts to contain the public
records process. But by itself, it is wholly inadequate to solve the
problems of extreme sunshine and misuse of the public records laws.
3. Enforcing Laws Without Citizen Lawsuits
When documents are not made public as required or when costs
are improperly imposed, an enforcement mechanism becomes
necessary. The government must, of course, be held accountable to
comply with the law. But an important question should also be
considered: enforcement by whom?
As a matter of both law and fact, the Florida Attorney General,
who is the constitutional "chief state legal officer, 0205
possesses expertise
with the state public records law. The Attorney General's office
publishes the annual Government-in-the-Sunshine-Manuaf0b and has
offered hundreds of advisory opinions on the public records laws. 207 The
Attorney General is also responsible for public records training 208 In
addition, the Attorney General has a statutory duty to implement a
public records mediation program and to provide a formal, non -
205. FLA. CONST. art. IV, § 4(b).
206. GOVERNMENT -IN -THE -SUNSHINE -MANUAL, supra note 94.
207. Fla. Office of the Attorney Gen., Search for Advisory Legal opinions,
MYFLORIDALEGAL.COM, http://www.myforidalegal.com/ago.nsf/Web+Search+Simple
70penForm (last visited Dec. 29, 2014) (searching for the term "public records" reveals more than
five hundred advisory opinions).
208. FLA. STAT. § 16.60(3Hc) (2014) (requiring the Attorney General to "[a]ssist the
Department of State in preparing training seminars regarding access to public records").
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adversarial assistance to parties in identifying issues, "fostering joint
problem solving, and exploring settlement alternatives. ,219
To a degree, the Attorney General has abdicated its role in
enforcement of the public records laws to the citizen. To some, the
yielding of authority makes sense. For example, when the media, the
prisoner, or the regulated entity seeks information and is denied access,
the affected person who has a right of access has both an equitable basis
for a claim and a special understanding of the circumstances to justify a
citizen suit.
But public records compliance need not be different from other
areas of executive authority. If the legislature and citizenry are
genuinely concerned that Florida's public records laws need
enforcement, then they should consider enhancing the way public
records laws are policed within the state. The State Attorney's office
already has authority to prosecute criminal and noncriminal cases
involving the public records and public meetings laws. 210 Elsewhere in
government, ethics commissions exist to ensure enforcement of and
compliance with various local government ethics laws.211 Surely, the
Attorney General's office can serve a similar role. It could audit
governmental entities by sending public records requests to the
government, evaluate the results, and engage in follow up training or
enforcement measures.212 To reduce the perceived need for enforcement
by self-proclaimed citizen watchdogs, the Attorney General could also
make its data public. But Florida's governmental entities, like their
counterparts in Washington State seeking legislative reforms, 213 need to
209. Id. § 16.60(1).
210. "A state attorney may prosecute suits charging public officials with violation of Florida's
Public Records Law," including those violations that may result in a finding of guilt for a
noncriminal infraction. Fla. Att'y Gen. Op. 91-38 (May 30, 1991), available at
see also FLA. STAT. § 286.011(3)(a) (imposes noncriminal penalties and a fine of up to $500 for
violations of the Sunshine Law); State v. Foster, 12 Fla. L. Weekly Supp. 1194a (Fla. Broward
Cnty. Ct. Sept. 26, 2005) (providing an example where county commissioners where charged with
a noncriminal infraction of Florida's public records law); cC State v. Foster, 13 Fla. L. Weekly
Supp. 385a (Fla. 17th Cir. Ct. San. 25, 2006) (finding that there is no right to a jury when an
individual faces a noncriminal violation of the Sunshine Law).
211. E.g., Miami -Dade Comm'n on Ethics & Pub. Trust, About the Miami -Dade commission on
Ethics and Public Trust, ETHICS.MIAMIDADE.GOV, http://ethio.niian ldade
.gov/about.asp past visited Dec. 30, 2014); Palm Beach Cary. Comm'n on Ethics, Home,
PALMBEACHCOUNTYETHICS.COM, http://www.palmbeacheountyethia.com/ (last visited Dec. 30,
2014).
212. As noted earlier in this Article, the Department of State already prepares training seminars
related to the public records laws. FLA. STAT. § 16.60(3xc) (2014).
213. See supra notes 51-57 and accompanying text (discussing issues that have arisen in the
State of Washington because of public records laws and how government entities are calling far
reform).
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42 Stetson Law Review [Vol. 44
demand the change and must be prepared to police themselves
effectively.214
B. Judicial Interpretation: Exercising Caution
Until and even after reforms to the public records laws are made,
citizens can and will bring public records cases to court. The reality for
the governmental entity is that once a matter reaches the Florida
judiciary, the case is likely to be resolved against it. As a Florida
appellate court held, "If there is any doubt about the application of the
law in a particular case, the doubt is resolved in favor of disclosing the
documents."2I5 Precedent speaks for itself. A review of more than forty
Florida Supreme Court cases citing Section 119.07 of the Florida
Statutes, which codifies the right to inspect and copy public records,
demonstrates the strict construction and pro -requester manner in which
the law has been interpreted and implemented. Exemptions for law
enforcement information have been narrowly construed in favor of the
requester. 216 Other categories of documents traditionally deemed to be
confidential, including medical documents, hospital records,
employment records, and even attorney records, have also been found
to fall within the disclosure requirements of the public records laws. 217
214. During the 2014 session, the Florida Legislature considered a number of bills that would
make the public records laws even more onerous for government. One bill even sought to reduce
the special service charges that the government agency could assess for the costs of producing
records, requiring government (and taxpayers) to further subsidize the already high costs of
voluminous requests. Incongmously, a Florida state senator who endured a reporter's repeated
public records requests Criticized them as a "fishing expedition." Matt Dixon, Public Rerords Request
Brings Profanity -Laced Response from Florida Ethics Chairman, FLA. TIMES -UNION (Mar. 12, 2013,
2:27 AM), http://jacksonville
.com/news/florida/2013-03-11 /story/public-records-request-brings-profanity-land-response
-Florida-ethics.
215. Nat'l Collegiate Athletic Ass'n v. Associated Press, 18 So. 3d 1201, 1206 (Fla. 1st Dist. Ct.
App. 2009).
216. See, e.g., Lightbourne v. McCollum, 969 So. 2d 326, 332-33 (Fla. 2007) (The public records
act "is to be construed liberally in favor of openness," and two Department of Corrections
memoranda discussing the lethal injection procedures and the methods for assessing an inmate's
level of consciousness during an execution, despite being prepared by counsel, were public records
bemuse they were not prepared "exclusively for litigation" and "conveyed specific factual
information rather than mental impressions or litigation strategies."); Provenzano v. Dugger, 561
So. 2d 541, 547 (Fla. 1990) (stating that the criminal investigative information exemption in public
records laws "expire[] when the defendant's conviction and sentence bec[o]me final"); State v.
Kokal, 562 So. 2d 324, 327 (Fla. 1990) (finding that a criminal was entitled to disclosure of the
state attorney's files, but only documents defined as public records were to be disclosed.).
217. See, e.g., Altera Healthcare Corp. v. Estate of Shelley, 827 So. 2d 936, 941 (Fla. 2002)
(stating that "[a]bsent an applicable statutory exception, pursuant to Florida's Public Records
Act ... public employees (as a general mle) do not have privacy rights in [employment] records.");
Mem'l Hosp.-W. Volusia, Inc. v. News-Joumal Corp., 784 So. 2d 438, 441 (Fla. 2001) (finding that
"the right of access to public records is a substantive right," and a statute exempting From
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Neither individual privacy considerations, nor the government's
objectives of efficiency, have altered the pro -requester interpretation of
the public records laws. 218 In the cases where a public records requester
ultimately lost, the cases involved a judicial finding that an existing
exemption applied 219 a matter where a requester failed to pay required
disclosure records and meetings of corporations that lease public hospitals if certain conditions are
met was "presumptively prospective," and in the absence of clear legislative intent, could not be
applied retroactively); Mem'l Hosp.-W. Volusia, Inc. v. News -Journal Corp., 729 So. 2d 373, 384
(Fla. 1999) (concluding that private entity was subject to public records request based on Schwab
factors); Barton v. Fla. Freedom Newspapers, Inc., 531 So. 2d 113, 119 (Fla. 1988) (finding that a
sealed file did not contain protected information, and all portions of a trial are subject to public
disclosure, including medical reports, which are generally protected by a person's right to privacy);
Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985) (finding that employee records, kept as part of
tax -supported hospital's employee records, were public records within the scope of the Public
Records Act); City of N. Miami v. Miami Herald Publ'g Co., 468 So. 2d 218, 220 (Fla. 1985)
(stating that "[t]he lawyer -client privilege section of [C]hapter 90 does not exempt written
communications between lawyers and governmental clients from disclosure as public records, but
[S]ection 119.07(3)(o) does provide a limited exception within its terms"); Wait v. Fla. Power &
Light Co., 372 So. 2d 420, 424 (Fla. 1979) (stating that the provision of the Public Records Act that
all public records which are "deemed by law to be confidential" or which are "prohibited from
being inspected by the public, whether provided by general or special acts ... [or which] shall be
exempt" operates to "exempt those public records made confidential by statutory law and not those
documents which are confidential or privileged only as a result of the judicially created privileges of
attorney-client and work product"); News -Press Publ'g Co. v. Wisher, 345 So. 2d 646, 648 (Fla.
1977) (finding that documents discussing possible termination and were placed in personnel file of
county employee were public records).
218. See, e.g., Henderson v. State, 745 So. 2d 319, 326-27 (Fla. 1999) (amending the Florida
Rules of Criminal Procedure, and finding that in a criminal defendant's use of the public records
laws to expand the scope of discovery, the defendant could use Chapter 119 to obtain otherwise
unavailable documents, but in so doing, triggered a reciprocal discovery obligation for the
defendant); Tribune Co. v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984) (The custodian of records
does not need to be present during the inspection or even be given notice that an inspection has
been given or made, and a delay in the inspection of the records "is not within the legislative
scheme."); Forsberg v. Hous. Auth. of City of Miami Beach, 455 So. 2d 373, 379 (Fla. 1984)
(stating that the public examination of housing authority files is a "reasonable intrusion necessary
to implement the state interest of having the public know how [the] agency [works]"); Shevin v.
Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633, 640111 (Fla. 1980) (Neither the state nor
federal right of privacy prevent public disclosure of papers prepared by a management recruitment
consultant; and "letters, memoranda, resumes, and travel vouchers made or received by the
consultant" were public records; only the handwritten and preliminary notes still to be finalized
were not public records.); Lewis v. Bank of Pasco Cnty., 346 So. 2d 53, 55 (Fla. 1976) (finding that
a statute declaring banking information to be confidential except when released "with the consent
of the department" delegated "unrestricted and unlimited power to exempt particular records" and
was therefore unconstitutionally broad (internal citations omitted)); State a rel. Cummer v. Pace,
159 So. 679, 681 (Fla. 1935) ("[T]he fact that the city ... owns and operates as a public utility its
municipal docks and terminals as a proprietary, instead of a governmental, capacity" does not give
it the right to deny a citizen examination of its "books and records ... including those relating to
and covering the details of its operation of its municipal docks and terminals."); State a rel.
Davidson v. Couch, 156 So. 297, 299 (Fla. 1934) ("[T]he language of the statute ... accords the
privilege of personal inspection of municipal records" in a county to any citizen of Florida, even if
the citizen is not a citizen of the county in question); cf. Allen v. Butterworth, 756 So. 2d 52, 66
(Fla. 2000) (declaring the Death Penalty Reform Act unconstitutional to the extent it "regulate]d]
the procedure for public records production in capital cases").
219. See, e.g., Chavez v. State, 132 So. 3d 826, 828, 830 (Fla. 2014) (A prisoner awaiting
sentence of death was not entitled to records because relevant rules of executive clemency stated
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44 Stetson Law Review [Vol. 44
costs 220 or otherwise involved preliminary judicial records or attorney
notes. 221 Even the cases involving remands or the need for other activity
tend to demonstrate a strict and pro -requester reading of the statute.
that "all records and documents generated and gathered in the clemency process as set forth in the
Rules of Executive Clemency are confidential." (internal citations omitted) (typeface altered));
Bryan v. State, 753 So. 2d 1244, 1251 (Fla. 2000) (upholding me constitutionality and public
necessity for an exemption of the executioner's identity); Ragsdale v. State, 720 So. 2d 203, 206
(Fla. 1998) (finding that "the transfer of a document from one agency to another [does not] nullify]
the exempt status of the record"); State v. Buenoano, 707 So. 2d 714, 717-I8 (Fla. 1998) (finding
that documents "made available to the State Attorney by the federal government on a'confidential
or similarly restricted basis' ... were criminal intelligence or investigative information" and were
inadvertently "given ... in violation of the terms of the loan agreement and [public records laws],"
so court should have issued a protective order); Lopez v. State, 696 So. 2d 725, 728 (Fla. 1997)
(holding that an "attorney's handwritten notes dealing with trial strategy and cross-examination of
witnesses were not public records"); Roberts v. Butterworth, 668 So. 2d 580, 582 (Fla. 1996)
(finding that, "for purposes of capital collateral litigation," the work product exemption applies
"whether a death -sentenced person is represented by private counsel or state -appointed counsel");
Times Publ'g Co. v. A.J., 626 So. 2d 1314, 1315 (Fla. 1993) (holding that "child protection statutes
and the accompanying public -records law exceptions give standing to the noncustodian of public
record to assert a statutory exception provided the noncustodian is member of a class the exception
was intended to protect"); Kight v. Dugger, 574 So. 2d 1066, 1069 (Fla. 1990) (holding that
documents in "possession of [Capital Collateral Representative] in furtherance of its representation
of an indigent [murder defendant were] not subject to public disclosure under [public records
law] "); Fla. Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 34 (Fla. 1988) (stating that "the
legislature recognized that there would be occasions where court files containing public records
would nevertheless be closed to the public by order of the court"); City of Orlando v. Desjardins,
493 So. 2d 1027, 1028-29 (Fla. 1986) (allowing retroactive application of statutory attomey-client
exemption from disclosure under Florida Public Records Act to litigation files); Rose v.
D'Alessandro, 380 So. 2d 419, 419-20 (Fla. 1980) (noting that records related to state attorney's
investigation would not have been confidential but for the subsequent passage, during the litigation
of this case, of pertinent exemptions).
220. See, e.g., Roesch v. State, 633 So. 2d I, 2 (Fla. 1993) (Prisoner was not entitled to receive
copies of documents under the Public Records Act without paying for them.).
221. See, e.g., Times Publ'g Co. v. Ake, 660 So. 2d 255 (Fla. 1995) (newspaper was not entitled
to attorney's fees because court clerks, when acting under the authority of their Article V powers
concerning judicial records and other matters relating to administrative operation of the courts, are
not subject to the Public Records Act.); Scott v. Butterworth, 734 So. 2d 391, 391, 393 (Fla. 1999)
(affirming that handwritten notes and drafts of pleadings prepared by Attorney General's office
were not public records); Johnson v. Butterworth, 713 So. 2d 985, 987 (Fla. 1998) (Notes by
attorneys in Attorney General's office were not yet public records; they were "preliminary guides
intended to aid the attorneys when they later formalized the knowledge." (internal citations and
quotations omitted); Valle v. State, 705 So. 2d 1331, 1335 (Fla. 1997) (upholding trial court's
conclusion, after in camera review, that prosecutors' personal notes were not public records under
Chapter 119); Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 384 (Fla. 1987) (agreeing that
"once a transcribed deposition is filed with the court[,] ... it is open to public inspection," and
finding that "nothing in chapter 119... would point toward the blanket access to unfiled
depositions").
222. See, e.g., Henderson, 745 So. 2d at 326-27 (amending the Florida Rules of Criminal
Procedure, and finding that in a criminal defendant's use of the public records laws to expand the
scope of discovery and to obtain otherwise unavailable documents, but in so doing, triggered a
reciprocal discovery obligation for the defendant); DJ ardins, 493 So. 2d at 1029 (remanding for
further proceedings regarding the litigation file created by the City of Orlando, and ordering the
court to prohibit the disclosure to "only of those records reflecting 'a mental impression,
conclusion, litigation strategy, or legal theory of the attorney or the agency"' (internal citations
omitted)); Sch. Bd. of Marion Cnty. v. Pub. Emp. Relations Comm'n, 334 So. 2d 582, 585 (Fla.
1976) (The school board did not specifically allege any of the grounds enumerated in other labor
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Only on rare occasion, where the lines between public and private
conduct become blurred (such as cases involving personal emai]s and
government contractors) has the Florida Supreme Court taken a more
cautious approach to the public records law. 223 While public access to
the public records is a clearly established and essential civil right, the
judiciary should be aware of how its pro -requester precedent is being
manipulated. Perhaps the courts should rethink the principles of
standing in Florida, as discussed below. In addition, courts must be
wary of the reflex to support the right of access to public records;
instead, when exercising its role in constitutional and statutory
interpretation, the judiciary should carefully consider the particular
facts, and the specific language in the statutory scheme.
1. Rethinking Standing and Denying Citizen Suits
Based on Self- Inflicted Injuries
In other areas of civil litigation where citizen suits are available, the
concept of standing is an important component that prevents needless
litigation. Pursuant to the Case or Controversy Clause of the United
States Constitution, a federal lawsuit requires an actual, live dispute 224
The Supreme Court has held that a person bringing suit, to have Article
III standing, must suffer an injury that is "concrete, particularized, and
actual or imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling."225 Often, standing is a major obstacle
to the availability of judicial review, especially in the context of
environmental citizen suits 226 Importantly, in the absence of a proper
laws that would entitle the Board to examine union authorization cards signed by public
employees; case was dismissed without prejudice.).
223. See, e.g., Times Publ'g Co. v. City of Clearwater, 830 So. 2d 844, 845 (Fla. 2d Dist. Ct.
App. 2002) (finding that a newspaper's request for personal e-mails of city employees was properly
denied bemuse the emails did not qualify as public records subject to disclosure under the public
records statute.), approved sub nom., State v. City of Clearwater, 863 So. 2d 149, 155 (Fla. 2003);
News & Sun -Sentinel Co. v. Schwab, Twitty & Hauser Architectural Grp., 596 So.2d 1029, 1033
(1992) (stating that "an architectural firm ... that contracts to provide professional services for the
constmetion of a school is not acting on behalf of a public agency so as to be subject to the
provisions of [C]hapter 119").
224. U.S. CONST. art. III, § 2, el. 1 ("The Judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority ... to Controversies to which the United States shall be a
Party ....").
225. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,149-50 (2010).
226. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564-06 (1992) (finding that environmental
plaintiffs lathed standing bemuse a threatened future injury was not imminent); see also David
Krinsky, How to Sue Without Standing: The Constitutionality of Citizen Suits in Non -Article Itt Tribunals,
57 CASE W. RES. L. REv. 301, 304-05 (2007) (stating that the holding in "Lujan restricts the
availability of judicial review in Article III federal courts to those situations where some party with
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46 Stetson Law Review [Vol. 44
case or controversy, the doctrine of standing places important limits on
the ability of citizens to sue, leaving at least some portion of the law
enforcement role to the Executive Branch.
The test of whether a party's standing is "fairly traceable" to a
defendant's illegal conduct requires plaintiffs to establish that there
exists a "substantial likelihood" that the defendant's conduct caused the
plaintiffs halm.' But when plaintiffs injury is an injury of the
plaintiffs own creation, it can become "unfairly traceable" to the
defendant. So, as the courts have warned, an overly broad application of
the fairly traceable concept can be problematic; 228 on the other hand, as
other legal writers have noted, a broad view of standing may be
acceptable when it comes to the exercise of fundamentally beneficial
constitutional rights, but only if they outweigh the judicial burdens.'
Public records cases create a special circumstance, testing the limits
of the principles of standing. Citizens have clear constitutional rights to
ask for records. Yet public records laws that empower citizens to file
lawsuits are easily abused because citizens can create the circumstances
necessary to give themselves standing. A citizen who is determined to
harass a governmental entity can send an endless stream of public
records requests that are designed to ensure that the overburdened
government does not adequately respond to the public records requests.
Citing the government's breach of its legal duties, the citizen then sues
to remedy the alleged injury. In the federal courts, this type of
"manufactured standing" might not survive constitutional scrutiny. For
example, in Clapper v. Ainnesty International USA 230 a divided United
States Supreme Court found that lawyers, journalists, and human rights
advocates did not have standing to challenge a provision of the Foreign
Intelligence Surveillance Act (FISA) 231 The various plaintiffs argued
that government surveillance would intercept their communications
with "foreign contacts," requiring costly and burdensome measures to
the ability and inclination to sue has suffered a redressable injury -in -fact"). See generally Jonathan
H. Adler, Stand or Deliver.• Citizen Suits, Standing, and Environmental Protection, 12 DUKE ENVTL. L.&
POLY F. 39, 39 (2002) (examining "competing approaches to standing" in citizen suits that involve
environmental issues).
227. See, e.g., Pub. Interest Research Grp. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d
Cir. 1990) (stating that the "fairly traceable' test for standing does not require the plaintiff to show
"to a scientific certainty" that the defendant was the cause of injury).
228. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546,557 (5th Cir. 1996).
229. Katherine Mims Crocker, Note, Securing Sovereign State Standing, 97 VA. L. REV. 2051,
2099-100(2011).
230. 133 S. Ct. 1138, 1143 (2013); id. at 1151.
231. Id. at 1155.
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protect the confidentiality of their communications."' Applying
concepts of standing, the Supreme Court found that the injury was not
fairly traceable to the government because the affected parties "cannot
manufacture standing merely by inflicting harm on themselves based on
their fears of hypothetical future harm that is not certainly
impending. ,233
State legislatures have also been rebuffed when they tried to
manufacture standing by passing legislation specifically designed to
cause a federal case or controversy. For example, the Virginia Health
Care Freedom Act234 was a direct response to the individual mandate
component of the Patient Protection and Affordable Care Act, 235 and
Virginia's Attorney General then sued the federal government on
constitutional grounds. 236 Even the writers who supported this type of
"manufactured standing" recognized that "[i]t would be naive to ignore
the potential for abuse inherent in [this] type of standing. ,23' But the
Fourth Circuit Court of Appeals later characterized Virginia's law as a
"smokescreen" to vindicate a desired policy objective, holding that the
state lacked constitutional standing because the law had not injured
Virginia's sovereign interests.238 The Fourth Circuit noted, "[I]f we were
to adopt Virginia's standing theory, each state could become a roving
constitutional watchdog of sorts; no issue, no matter how generalized or
quintessentially political, would fall beyond a state's power to litigate in
federal court."239
Manufactured standing may prove to be a useful doctrine in federal
court to rebut cases where FOIA is abused, and it might have parallels
in state courts, too 240 But in Florida, the doctrine might be unavailable
as a barrier to public records litigation. On the one hand, Florida's
232. Id. at 1141, 1146.
233. Id. at 1151; see also id. at 1143 (The respondents "cannot manufacture standing by choosing
to make expenditures based on hypothetical future harts that is not certainly impending.").
234. VA. CODE ANN. § 38.2-3430.1:1 (2014).
235. 42 U.S.C. § 18091 (2012); 26 U.S.C. § 5000A (2012).
236. Virginia a rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010), rev'd, 656 F.3d
253 (4th Cir. 2011).
237. Crocker, supra note 229, at 2099.
238. Virginia exrel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011).
239. Id at 272. The Supreme Court denied certiorari for Virginia's appeal. Virginia ex rel.
Cuccinelli v. Sebelius, 133 S. Ct. 59 (2012). Instead, it heard the constitutional challenge to the
federal health care laws in National Fedemtion of Independent Business v. Sebelius, which was a rase
that included private entities and did not address the matter of state standing in its plurality
decision upholding the constitution. 132 S. Ct. 2566 (2012).
240. For examples of the "fairly traceable" test of Article III constitutional standing being
applied in the FOIA context, see McBumey v. Cuccinelli, 616 F.3d 393,410 (4th Cir. 2010); Nat'l
Sec. Counselors v. CIA, 898 F. Supp. 2d 233, 253 (D.D.C. 2012); Gilmore v. U.S. Dep't of Energy,
33 F. Supp. 2d 1184, 1188 (N.D. Cal. 1998).
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courts have stated that litigation requires a "real controversy" because
courts cannot merely issue advisory opinions on abstract propositions"
Thus, a manufactured controversy need not be adjudicated. In fact, at
the appellate level, courts have also held that a party cannot benefit
from an "invited error" by appealing a ruling that they invited the lower
tribunal to make 242 On the other hand, for purposes of evaluating a
party's standing in the lower court, the Florida Rules of Civil Procedure
state that a person with a legally protectable right or interest at stake in
an otherwise justiciable controversy is a proper party to obtain judicial
resolution of that controversy. 43 The legislature, through statute,
elaborated on the constitutional rights of access to public records,
defined the scope of their protection, and granted every individual the
capacity to sue244 Nevertheless, Florida Courts must begin to engage in
more rigorous scrutiny of public records cases, carefully evaluating
whether a party's self -generated injuries form the necessary "legally
protectable right" and "real controversy" necessary to and justify public
records litigation.
While it may seem romantic and democratic to make every Florida
citizen a constitutional watchdog, the watchdogs who file public records
requests and bring lawsuits lack the checks and balances that are
imposed upon the rest of our government. Unlike trained law
241. Merkle v. Guardianship of Jacoby, 912 So. 2d 595, 600 (Fla. 2d Dist. Ct. App. 2005);
Orchid Island Props., Inc. v. W.G. Mills, Inc. of Bradenton, 889 So. 2d 142,143 (Fla. 4th Dist. Ct.
App. 2004); Reinish v. Clark, 765 So. 2d 197, 202 (Fla. Ist Dist. Ct. App. 2000); Breakers of Fort
Walton Beach Condos., Inc. v. Ad. Beach Milan., 552 So. 2d 274, 276 (Fla. 1st Dist. Ct. App.
1989).
242. Goodwin v. State, 751 So. 2d 537, 544 (Fla. 1999) (holding that under the invited error
doctrine, a parry may not make or invite error at trial and then take advantage of the error on
appeal); Zanoletti v. Norle Props., Corp., 688 So. 2d 952, 954 (Fla. 3rd Dist. Ct. App. 1997)
(providing that invited error occurs when an appellant "induce[s] the specific ruling by his or her
affirmative action or inactivity"); Fuller v. Palm Auto Plaza, Inc., 683 So. 2d 654, 655 (Fla. 4th
Dist. Ct. App. 1996) ("It is well settled that under the invited error mle'a party cannot successfully
complain about an error for which he or she is responsible or of rulings that he or she has invited
the trial court to make."'); cf. City of Coral Gables v. Levison, 220 So. 2d 430, 431 (Fla. 3rd Dist.
Ct. App. 1969) (fording where a party is given an opportunity to correct an alleged error and the
parry fails to take advantage of that opportunity, the party cannot successfully challenge the alleged
error on appeal).
243. See FLA. R. CIV. P. 1.210(a) ("All persons having an interest in the subject of the action and
in obtaining the relief demanded may join as plaintiffs ......); Kumar Corp. v. Nopal Lines, Ltd.,
462 So. 2d 1178, 1183 (Fla. 3d Dist. Ct. App. 1985) (stating that a claim must be brought by a
"'real parry in interest,' that is, 'the person in whom rests, by substantive law, the claim sought to
be enforced"' (internal citations omitted)).
244. FLA. STAT. § 119.11(1) (2014) ("Whenever an action is filed to enforce the provisions of
this chapter, the court shall set an immediate hearing, giving the rase priority over other pending
cases."); see also Rogers & Ford Constr. Corp. v. Carlandia Corp., 626 So. 2d 1350, 1352 (Fla.
1993) (discussing the interplay between the Florida court's role in determining whether an
individual litigant has standing and the legislature's role in granting capacity to sue).
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enforcement officers and prosecutors, citizens may not know when to
exercise discretion. Litigants have their own ulterior motives, including
the pursuit of profit through the recovery of attorney's fees and costs. 245
The government simply cannot stop the self-appointed watchdog—
arguably, the public records vigilante—who is neither elected nor
supported by the people but who can take the people's money by filing
hundreds of public records requests, and bringing dozens of lawsuits
that push the boundaries of public records laws and cripple the capacity
of government to do anything else,246 By failing to rigorously enforce the
need for a real controversy in the context of the public records laws, the
courts have allowed citizens to exercise great power without any
responsibility.
2. Recognizing the Burden of Cuntulative and
Anonymous Requests
A frequent talking point, raised in opposition in any discussion of
public records reform, is an assertion that the government can recover
its costs. That statement is simply false. In fact, a Florida governmental
entity can only recover a portion of actual costs and can only charge a
special service charge for "extensive" labor or information technology
resources247 The law does not define extensive use; although as noted
earlier, an agency rule defining "extensive" as more than fifteen minutes
245. See, e.g., Sickler, supro note 131 (noting that the Florida Senate President was seeking to
expand the mechanisms for attorney fee recovery, and also noting that his son is an attorney who
specializes in public records suits); David M. Young, Plaintiffs' Attorneys' Fees in Class Action
Litigation: An Ethical Solution], 2 J. INST. STUD. LEGAL ETHICS 255, 255 (1999) (recognizing
incentives for litigation where attorney's fees are disproportionate to the legal work performed and
the benefit to plaintiffs or society in general, and calling for safeguards, ethics, and reasonableness).
246. Another example of a citizen pushing the boundaries of his or her authority by relying on a
statutory scheme in unintended ways occurred when George Zimmerman shot and killed an
unarmed minor, Trayvon Martin. The citizen viewed himself as a neighborhood watchdog
empowered by the Stand Your Ground Law but ignored the warnings of police and clearly lacked
the discretion of a law enforcement officer. See Tamara F. Lawson, A Fresh Cut in an Old Wound—A
Critical Analysis ofthe Tmyvon Martin Killing: The Public Outcry, the Prasecutors'Diseretion, and the Stand
Your Ground law, 23 U. FLA. J.L. & PUB. POLY 271 (2012) (providing background of the Tmyvon
Martin case and calling to reform Florida's Stand Your Ground Law). But interestingly, some
lawmakers have proposed a public records exemption to impede public access to information
related to the Stand Your Ground Law. Janie Campbell, Florida Moves to Restrict Media Arra to
Stand Your Ground Case Records, HUFFINGTON POST (March 24, 2014, 1:36 PM EDT),
http://www.huffingtonpost.com/2014/03/24/stand-your-ground
ngtonpost.com/2014/03/24/stand-your-ground
-retards n 5007847.html.
247. FLA. STAT. § 119.07(4xd) (2014) (authorizing a record custodian to charge, in addition to
the cost of duplication, a reasonable service charge for the cost of extensive use of information
technology resources or of personnel).
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was upheld .248 Yet this principle is easily evaded. For example, if
multiple requests for public records are made by multiple people, each
request is entitled to fifteen minutes of labor. The cumulative sum of the
minimal labor becomes extensive, yet the government's costs are never
recovered.
Inevitably, the citizens asking for access to public records object to
the fees being charged by governmental entities 249 but as one Florida
court noted, "taxpayers should not shoulder the entire expense of
responding to an extensive request for public records. ',250 Consistent
with that principle, the judiciary, when interpreting whether the charge
is for "extensive" labor, should recognize the agency's need to plan for
the cumulative sum of many public records requests. For an agency
with a tiny staff, grappling with thousands of public records requests,
five minutes per request might even be extensive.
To some degree, this entire discussion has been rendered academic
by a series of flawed judicial and attorney general opinions. Florida
courts and the attorney general have interpreted Florida's laws to allow
public records requests to be made anonymously, without revealing any
personal information 251 But both the Florida constitution and the public
records statute grant the right of access to public records to a
248. Fla. Inst. Legal Servs., Inc. v. Fla. Dep't of Corr., 579 So. 2d 267, 268-69 (Fla. 1st Dist.
Ct. App. 1991). See also Bd. of Cray. Commis of Highlands Cnty, v. Colby, 976 So. 2d 31,32 (Fla.
2d Dist. Ct. App. 2008) (approving the county's "formula" for assessing special service charges
involving "extensive public records requests").
249. In a particularly colorful example of the problem, a dispute emerged in Missouri when
taxpayers were required to pay more than $18,000 for 16,500 copied pages of public records
requested. Elizabethe Holland, Group Upset over 818,005 Fee for Rockwood Public Rewn1s,
S7LTODAY.COM (May 4, 2012, 12:05 AM), http://www.sdtoday.com/news/Imal/
-ae5f-a Ibdf510e433.hrm1.
250. Lozman v. City of Riviera Beach, 995 So. 2d 1027, 1028 (Fla. 4th Dist. Ct. App. 2008)
(citing Bd. of Cnty. Comm'rs or ighlands Cnty., 976 So. 2d at 37).
251. See, e.g., Chandler v. City of Greenaaes, 140 So. 3d 1080, 1085 (Fla. 4th Dist. Ct. App.
2014) (concluding that the anonymous requester could not be required to fill out the city's form and
give an "address or other identifiable source for payment of the associated costs"); Bevan v.
Wanicka, 505 So. 2d 1116, 1118 (Fla. 2d Dist. Ct. App. 1987) (concluding that the production of
public records may not be conditioned upon a requirement that the person seeking inspection
disclose background information about himself or herself); Fla. Att'y Gen. Op. 92-38, 1992 WL
527447, at *3 (May 6, 1992) ("A person requesting access to or copies of public records ... may
not be required to disclose his [or her] name, address, telephone number or the like to the
custodian, unless the custodian is required by law to obtain this information prior to releasing the
records."); Fla. Att'y Gen. Op. 91-76, 1991 WL 528207, at*1 (Oct. 4, 1991) (concluding that "a
person requesting access or copies of a court file is not required to disclose his [or her] name,
address, telephone number or the like to the clerk on duty"); Fla. Att'y Gen. ME Op. to Sandra M.
Cook (May 27, 2011) (concluding that an agency may not require an anonymous requester "to
disclose his or her name, address, telephone number, or similar identifying information to the
custodian prior to inspecting or receiving copies of public records").
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"Person. o252 An anonymous email—which can even be generated by an
automated system—is certainly not the same thing as a "person"
making a public records request. Moreover, there is no statutory
exception supporting anonymity. If anonymous public records requests
are to be allowed, then that should be based on a policy decision made
by the legislature or the affected executive agency; it should not be
mandated by the attorney general or the courts.
The decision to allow anonymous public records requests actually
harms the government and runs contrary to the basic principles of the
public records laws. Elsewhere in public records laws, anonymity is not
allowed unless expressly provided for by law. For example, Florida law
creates exemptions to allow anonymity to protect donors ,253 investors'254
government hotline callers ,755 and respondents to publicly conducted
252. FLA. CONST. art. I, § 24 ("Every person has the right to inspect or copy any public record
made or received in connection with the official business of any public body ...."); FLA. STAT. §
119.01 ("It is the policy of this state that all state, county, and municipal records are open for
personal inspection and copying by any person.").
253. Multiple statutes protect the identities of donors, allowing them to remain anonymous or
confidential, See, e.g., FLA. STAT. § 11.45(3Xi) (2014) (protecting anonymity for donors to
Enterprise Florida, Inc.); id. § 11.45(3Xj) (protecting anonymity for donors to the capital
development board); FLA. STAT. § 265.7015(2) (2014) (protecting anonymity for donors to benefit a
publicly owned performing arts center); FLA. STAT. § 267.076 (2014) (protecting anonymity for
donors to a museum designated by the United States Department of the Interior as a National
Historic Landmark); id. (protecting anonymity for donors to the Division of Historical Resources of
the Department of State); id. § 267.1732(8) (protecting anonymity for donors to the University of
West Florida); id. § 267.1736(9) (protecting anonymity for donors to the University of Florida's
assistance in the historic preservation of the City of St. Augustine); FLA. STAT. § 272.136(7Xa)
(2014) (protecting anonymity for donors to the Florida Historic Capitol and the Legislative
Research Center); FLA. STAT. § 288.1226(6) (2014) (protecting anonymity of donors to the Florida
Tourism Industry Marketing Corporation); id § 288.809(4) (protecting anonymity of donors to the
Florida Intergovernmental Relations Foundation); FLA. STAT. § 292.055(9) (2014) (protecting the
anonymity of donors to the Department of Veterans' Affairs); FLA. STAT. § 379.223(3) (2014)
(protecting the anonymity of donors to the Fish and Wildlife Conservation Commission); FLA.
STAT. § 413.615(7)(a) -(b) (2014) (protecting anonymity of donors to the Florida Endowment
Foundation for Vocational Rehabilitation); FLA. STAT. § 570.686 (2014) (protecting anonymity for
donors to the Florida Agriculture Center and Horse Park Authority); id. § 570.691(6) (protecting
the anonymity of donors to the agricultural support programs through the Department of
Agriculture and Consumer Services); FLA. STAT. § 744.7082(6) (2014) (protecting anonymity for
donors to the Statewide Public Guardianship Office); FLA. STAT. § 1004.28(5) (2014) (protecting
anonymity for donors to university direct -support organizations); id § 1004.45(2)(h) (protecting
anonymity for museum donors); id. § 1004.55(6) (protecting anonymity of donors to regional
autism centers); id §§ 1004.70(6), 1004.71(6) (protecting anonymity for donors to Florida College
System institution direct -support organizations); FLA. STAT. § 1009.983(4) (2014) (protecting
anonymity of donors in reports related to the Florida Prepaid College Program).
254. FLA. STAT. § 288.9626(2) (protecting the anonymity of investors in the Florida
Opportunity Fund); FLA. STAT. § 288.9627(2) (protecting the anonymity of investors in the
Institute for the Commercialization of Public Research).
255. FLA. STAT. § 17.325(3) (2014) (preserving anonymity of a caller on the governmental
efficiency hotline established by the chief financial officer by providing that the caller "may remain
anonymous, and, if the caller provides his or her name, the name shall be confidential"); FLA.
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52 Stetson Law Review [Vol. 44
marketing surveys .256 Each of these exemptions serves an important
public purpose by allowing the State of Florida's governmental entities
to obtain funds or information and to ensure that the public gains a
benefit that might have been lost in the absence of anonymity. In
contrast, an interpretation of the public records laws to protect the
anonymity of a public records requester has precisely the opposite effect:
it denies the public of a benefit, withholding the information and the
funding that it would otherwise have gained. The government cannot
recover fees from an anonymous email address, and the public is denied
its right to know who is asking for public records.
Clever citizens using anonymous requests can make cost recovery
impossible. For example, a public records requester can file many
anonymous public records requests by email jimla@yahoo.com,
joe2b@gmail.com, jon3c@outlook.com, etc. Each email forces the
government to engage in some degree of responsive efforts, sending
acknowledgement letters, records, estimates or deposit requests, or other
responses without the requester ever paying a penny. Lacking specific
knowledge of who made each request, the government cannot force a
person to pay for the costs of exercising his or her right of access to
public records. The statutory cost recovery provision and even the
attorney general opinion espousing a right to enforce cost recovery are
rendered largely meaningless because the person making the request
remains anonymous.
Meanwhile, the anonymous requester has a unique advantage. The
requester can make up fake email addresses, face no risks of paying fees
or costs, and stay immune from public scrutiny; but the anonymous
requester cannot be ignored. Instead, the government must spend time
on an acknowledgement letter and a response, or a good faith estimate
of the costs of a response 257 If the anonymous person making public
records request is unsatisfied with the government's response, then by
revealing him or herself, a lawsuit can be brought alleging constitutional
violations and breaches of the public records laws. This outcome is not
compelled by the Florida Constitution, and the judiciary and attorney
general should revisit past conclusions that a public records request can
be anonymous. The Florida Constitution and the statutory scheme
STAT. § 760.11(12) (2014) (preserving anonymity for complaints filed with the Commission on
Human Relations).
256. FLA. STAT. § 288.1226(8) (protecting anonymity of respondents to surveys by the Florida
Tourism Industry Marketing Corporation).
257. FLA. STAT. § 119.07(1).
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grant a person the right to make a public records request2sa—which also
includes a duty to pay for it. Allowing anonymity disregards the rights
of the taxpayers and the public servants who pay for and endure the
consequences of anonymous abuses of the public records laws.
3. Punishing Refusal, not Mere Error
Once a person makes a request, the custodian of public records
must acknowledge requests to inspect or copy records promptly and
respond to such requests in good faith 259 This law, of course, must be
meaningfully enforced, and the statute and its enforcement mechanisms
are designed to encourage compliance. 260 An award of attorney's fees to
a successful plaintiff serves as a form of punishment and can have a
deterrence effect, making agencies less likely to deny proper requests for
documents261 Nevertheless, it is important to note the actual language
of statutory scheme. Section 119.12 of the Florida Statutes, with regard
to the availability of attorney's fees, states:
If a civil action is filed against an agency to enforce the provisions of
this chapter and if the court determines that such agency unlawfully
refused to permit a public record to be inspected or copied, the court
shall assess and award, against the agency responsible, the
reasonable costs of enforcement including reasonable attorneys'
fees. 262
The standard to be applied, based on this provision, is to award
fees when an agency has "unlawfully refused" to permit public access.263
And elsewhere in the statutes, government is instructed to respond to a
public records request "in good faith. ,264 Mere "unlawful" activity,
therefore, is not enough; the concept of unlawfulness supplements the
verb "refused."
258. FLA. CONST. art. 1,§ 24; FLA. STAT. § 119.07(I)(a).
259. FLA. STAT. § 119.07(lXc).
260. Office of the State Attorney for the Thirteenth Judicial Circuit of Fla. v. Gonzalez, 953
So.2d 759, 762 (Fla. 2d Dist. Ct. App. 2007) (Section 119.12 of the Florida Statutes is designed "to
encourage voluntarily compliance with Florida's public records law.").
261. N.Y. Times Co. v. PHH Mental Health Servs., Inc., 616 So. 2d 27, 29 (Fla. 1993) ("If
public agencies are required to pay attorney's fees and costs to parties who are wrongfully denied
access to the records of such agencies, then the agencies are less likely to deny proper requests for
documents.").
262. FLA. STAT. § 119.12 (emphasis added).
263. Id.
264. Id. § 119.07(1)(c).
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In the word's ordinary meaning, "to refuse" something requires an
affirmative action with intent. Merriam -Webster defines "refuse" as "to
say that you will not accept (something, such as a gift or offer), to say or
show that you are not willing to do something that someone wants you
to do, [or] to not allow someone to have (something). '265 Logically, it
follows that in the absence of an affirmative indication that a
governmental entity will not comply with a public records request, the
government has not "unlawfully refused."
Despite this statutory language, Florida's courts have held that an
"unjustified delay in complying with a public record request amounts to
an unlawful refusal." 266 Attorney's fees have also been assessed against
the government when access is denied on a good faith but mistaken
belief that the documents are exempt from disclosure. 161 Another
appellate court found that attorney's fees were authorized, even if the
failure to tum over the records was due to a mistake or ineptitude, and
its opinion rendered the term "refused" and the concept of "good faith"
largely irrelevant:
[A]ttomey's fees are awardable for unlawful refusal to provide public
records under two circumstances: first, when a court determines that
the reason proffered as a basis to deny a public records request is
improper, and second, when the agency unjustifiably fails to respond
to a public records request bz delaying until after the enforcement
action has been commenced.2 8
In other words, despite the explicit statutory language to the
contrary, a government can be exposed to claims for attorney's fees
based on something less than a refusal. In fact, another court held that
attorney's fees were appropriate even if an agency's error was "neither
knowing, willful, nor done with malicious intent."269 Based on the logic
265. Merriam -Webster Dictionary, Refuse, M-w.COM, http://www.merriam-webster.com/
dictionary/refuse (last visited Nov. 10, 2014).
266. Johnson v. Jarvis, 74 So. 3d 168, 171 (Fla. 1st Dist. Ct. App. 2011) (quoting Barfield v.
Town of Eatonville, 675 So. 2d 223 (Fla. 5th Dist. Ct. App 1996)). See also Hewlings v. Orange
Cray., Fla., 87 So. 3d 839, 841 (Fla. 5th Dist. Ct. App. 2012) (awarding attorney's fees even though
the county had responded to the records request).
267. WFTV, Inc. v. Robbins, 625 So. 2d 941, 942 (Fla. 4th Dist. Ct. App. 1993); Times Publ'g
Co. v. City of St. Petersburg, 558 So. 2d 487, 495 (Fla. 2d Dist. Ct. App. 1990); News & Sun -
Sentinel Co. v. Palm Beach Cnty., 517 So. 2d 743, 744 (Fla. 4th Dist. Ct. App. 1987).
268. Office of the state Attorney for the Thirteenth Judicial Circuit of Fla. v. Gonzalez, 953
So.2d 759, 764 (Fla. 2d Dist. Ct. App. 2007).
269. Lee v. Bd. of Trs., Jacksonville Police & Fre Pension Fund, 113 So. 3d 1010, 1010 (Fla.
tat Dist. Ct. App. 2013) (finding that the agency's failure to produce public records was "neither
]mowing, willful, nor done with malicious intent" and reversing a lower court's refusal to award
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above, even if the government is working on a response in good faith,
any governmental error, and even the mere fact that a requester files a
lawsuit before receiving the documents, can be sufficient to justify an
award of attorney's fees against the government. This runaway judicial
logic should be revisited 210
Although an award of attorney's fees can have the benefit of
deterring misconduct by the government, these overreaching, pro -
requester interpretations of the public records laws have generated
another consequence altogether: incentivizing mischievous litigation.271
Self-proclaimed citizen watchdogs and other citizens can push the
public records laws to their logical extreme. A requester can ask for a
public record, and if the government does not respond to the satisfaction
of the requester, the rush to the courthouse follows with the filing of a
lawsuit and a claim for attorney's fees?'Z The public records laws should
not be so abused.
C. Legislative Modification: Removing the Misguided Incentives
While the executive and judicial branches have important roles to
play in reducing some of the problems with Florida's public records
laws, it is the legislature that can make the biggest difference. As with
any other effort to reform the public records laws, the legislature will
need to take into account competing tensions. Lawmakers must ensure
public access while avoiding abuse. They must allow citizens to enforce
attorney's fees to petitioner), perm. app. granted, 147 So. 3d 521 (table), 2014 WL 2885421 (Fla.
2014).
270. Of course, this is another area where the legislature could choose to amend the statute,
using the same concept already applied elsewhere in Florida law. Not every case against the
government deserves a fee award, as the Florida Administrative Procedure Act has already clearly
recognized:
If the appellate court or administrative law judge declares a proposed rule or portion of a
proposed rule invalid pursuant to s. 120.56(2), a judgment or order shall be rendered
against the agency for reasonable costs and reasonable attorney's fees, unless the agency
demonstrates that its actions were substantially justified or special circumstances exist
which would make the award unjust. An agency's actions we "substantially justified" if
there was a reasonable basis in law and fact at the time the actions were taken by the
agency.
FLA. STAT. § 120.595(2) (2014).
271. See generally Young, supra note 245, at 255 (recognizing incentives for litigation where
attorney's fees are disproportionate to the legal work performed and the benefit to plaintiffs or
society in general, and calling for safeguards, ethics and reasonableness).
272. In fact, pursuant to Senate Bill 1648, lawyers would be compensated for counts on which
they prevailed, even if they lost the case, which creates an even more powerful incentive to drag
cases on; the bill also proposed to compensate lawyers for the time spent negotiating for their legal
fees. S. 1648, Reg. Sess. (Fla. 2014).
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the law and to be fairly compensated, without incentivizing litigation or
exposing government to needless payouts. Legislative caution is
essential.
As noted earlier in this Article, there is room for change and debate
associated with the question of how many public records requests
should be allowed and by whom. 273 A strict rule on the number of
requests could be adopted, and the notion of anonymity could be
eliminated to uphold the language in the constitution that empowers a
person—not an anonymous email address—to access public records.
Putting these two concepts together, an amendment to Section
119.07(1)(a) of the Florida Statutes, which codifies the public right of
access to public records 274 could clarify that the right is limited to one
request per person per day, without anonymity. Under this simple rule,
large requests could still be made, provided that they are paid for;
whereas the overabundance of tiny, harassing, anonymous requests that
trigger uncompensated work and unnecessary waste of government
resources would be reduced .275
But two topics deserve further attention. First, the legislature
should enact a requirement that a notice of intent to sue must be filed
before a lawsuit can begin, giving the government (and the courts) an
opportunity to avoid needless litigation. And second, to dissuade
baseless lawsuits, the risk of exposure to attorney's fees should be
shared by all litigants.
1. Requiring Notice oflntent to Sue
The mere fact that the person is unsatisfied with response to a
public records request is not necessarily sufficient to empower the
person to rush to court. The concept of empowering the citizen to sue is
a well-established tool for ensuring that the government complies with a
law. But Florida's lawmakers should learn from history too.
In the field of environmental law, the altruistic notion of an
environmental citizen as plaintiff has been overshadowed by practical
realities. Critics note that the enforcement of environmental law is
273. See supra text accompanying notes 119-147, 247-260 (discussing the Town of Gulfstream
and using it as an illustrative example of how the public records laws in Florida have been abused
as well as discussing the burden and costs associated with cumulative requests).
274. FLA. STAT. § 119.07(1)(a) (2014).
275. In addition, Florida law could be amended to allow the imposition of special service
charges where evidence exists that multiple people are coordinating their requests to evade special
service changes.
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routinely the domain of environmental advocacy groups, and the citizen
suit and attorney's fees provisions in those laws have become measures
for subsidizing the environmental movement 276 Cognizant of this
possibility, many federal laws—the Clean Air Act; 77 the Clean Water
ACt,278 the Safe Drinking Water Act, 279 the Endangered Species ACt,210
the Resource Conservation and Recovery Act; 81 the Comprehensive
Environmental Response, Compensation and Liability Act, 282 and the
Emergency Planning and Community Right -to -Know Act,283
(EPCRA)—include a jurisdictional requirement, establishing that no
lawsuit can be filed unless the litigant has sent the agency a notice of
intent to sue. By requiring a notice of intent to sue, the government and
any other alleged violator are provided notice of the facts, such as the
specific activity involved, as well as notice of the relevant legal
standards, rules, conditions, or orders that have been violated .214 In
addition, the notice of intent to sue provides the government and any
other alleged violator a chance to remedy the problem and to settle with
the plaintiff—all without going to court.285
The same concept of a notice of intent to sue exists throughout
Florida law, too. Pursuant to the Florida Tort Claims Act 286 a case
cannot be brought against the government unless the litigant files a
notice of intent to sue with the affected agency.287 Similarly, pre -suit
notice must be provided before a medical malpractice suit can be
filed 288 The Florida Construction Defect Statute 211 requires owners to
276. Michael S. Greve, 77re Private Enfomonmt of Environmental Law, 65 TUL. L. REV. 339,341-
42(1990).
39,341-
42(1990).
277. 42 U.S.C. § 7604 (2012).
278. 33 U.S.C. § 1365(b) (2012).
279. 42 U.S.C. § 300i-8 (2012).
280. 16 U.S.C. § 1540 (2012).
281. 40 C.F.R.§ 254.2(2014).
282. 42 U.S.C. § 9613(g)(I)(B) (2012).
283. 42 U.S.C. § 11046(d) (2012).
284. See generally Steven C. Russo & Elizabeth A. Read, Defense Perspectives on Environmental
Citizen Suits, 10 WIDENER L. REV. 395 (2004) (discussing the requirement in a citizen suit regarding
environmental laws that the plaintiff must provide the defendant an intent to sue before
commencing an action and how this requirement is beneficial in resolving disputes).
285. Id at 398-99.
286. FLA. STAT. § 768.28 (2014).
287. Id. § 768.28(6Xa) (In general, "[a]n action may not be instituted on a claim against the state
or one of its agencies or subdivisions unless the claimant presents the claim in writing to the
appropriate agency... [and to the] Department of Financial Services, within [three] years after
such claim accrues.").
288. FLA. STAT. § 766.106(2xa) ("After completion of presuit investigation pursuant to
[Section] 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify
each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation
for medical negligence. Notice to each prospective defendant must include, if available, a list of all
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send a "notice of claim" to developers, contractors, subcontractors,
suppliers, and other design professionals, specifically identifying any
alleged construction or design defects in "reasonable detail" before any
litigation may be initiated.m The public records laws should be no
different. If the government deserves advance notice of and an
opportunity to cure problems associated with environmental and
tortious injuries, and if private doctors and contractors must be given
advance notice too, then clearly the omission of a handful of public
records, or even the complete failure to respond, deserves similar
treatment.
Once given notice of intent to sue, the government should be given
a reasonable amount of time to respond before the suit can be filed. For
example, in the Florida Civil Rights Act, 291 which also requires a pre -
suit notice, the government is allowed 180 days to investigate the
matter. 292 Of course, Florida's public records laws would never tolerate
such a long delay. The current statutory scheme demands an
"immediate" hearing on a case once filed 293 and allows a mere forty-
eight hours for the government to respond to a public records request
once ordered to do So.294 Yet the public records law also allows ten days
for a person who illegally possesses public records to tum them over.295
That same ten-day standard could readily be used for a notice of intent
to sue, allowing a governmental entity to become aware of the problem,
(mown health rare providers seen by the claimant for the injuries complained of subsequent to the
alleged act of negligence, all known health care providers during the [two] -year period prior to the
alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records
relied upon by the expert in signing the affidavit, and the executed authorization form provided in
[Section] 766.1065.").
289. FLA. STAT. ch. 558.
290. Id. § 558.004(1).
291. FLA. STAT. ch. 760.
292. See id. § 760.11(4), (8) (providing that if the Florida Commission on Human Relations
Fails to make a reasonable cause determination within 180 days of the filing of the complaint, the
claimant may proceed with an action).
293. FLA. STAT. § 119.11(1) (2014) ("Whenever an action is filed to enforce the provisions of
this chapter, the court shall set an immediate hearing, giving the case priority over other pending
cases.").
294. Id § 119.11(2) ("Whenever a court orders an agency to open its records for inspection in
accordance with this chapter, the agency shall comply with such order within [forty-eight] hours,
unless otherwise provided by the court issuing such order, or unless the appellate court issues a stay
order within such [forty -eight] -hour period.").
295. Id. § 119.06(4)(6) ("Whoever is entitled to the custody of public records shall demand them
from any person having illegal possession of them, who shall forthwith deliver the same to him or
her. Any person unlawfully possessing public records shall upon demand of any person and within
[ten] days deliver such records to their lawful custodian unless just cause exists for failing to deliver
such records.").
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to consult with its lawyer, and to either prepare a defense for an
immediate hearing or to tum over the records.
For these reasons, the legislature should amend the Florida public
records laws to include a notice of intent to sue provision, requiring the
public records requester to identify the relevant facts and laws and also
requiring them to wait a sufficient period of time to allow the
government to respond before filing a lawsuit. For example, mirroring
the Florida Tort Claims Act, the public records laws in Section 119.11
of the Florida Statutes 296 could be amended as follows:
(1) Whenever an action is filed to enforce the provisions of this
chapter, the court shall set an immediate hearing, giving the case
priority over other pending cases. An action may not be instituted on a
claim against an agency or contractor unless the claimant presents the claim
in writing at least 10 days before filing suit.297
2. Expanding the Risk ofAttorney's Fees and Costs
While the requirement of a notice of intent to sue might enable the
government to quickly comply with some public records requests and
avoid the need for some litigation, it represents only a partial solution.
Some citizens, determined to use the public records laws to its fullest
extent, will still file suits against the government. But not every lawsuit
deserves to be heard. The one -directional attorney's fees provisions in
Florida law should be reformed, and citizens who engage in abuses of
the public records laws should be exposed to the potential consequence
of paying the government's actual costs and attorney's fees.
Consider the experience of the Town of Southwest Ranches, as
reflected in the court -filed pleadings and news coverage!" After making
a public records request, a citizen asked to review and photograph the
296. Id. § 119.11.
297. Rather than leaving debates over the adequacy of the notice of intent to sue to the
judiciary, the legislature might also consider including a series of requirements to clarify exactly
what information should be provided in the notice. But at a minimum, a meaningful notice of
intent to sue should include: (a) the Facts at issue, including the date and nature of the original
public records request and the date and nature of the response; and (b) the legal arguments, such as
the need for a mandamus action due to a lack of response, unreasonable delay, incomplete
response, or improper withholding or redaction.
298. Huffpost Miami, Resident Bill Di .Scipio Sues Town of Southwest Ranches for $1.15,
HUFFINGTON POST (Dec. 6., 2011, 4:29 PM EST), http://www.hufrmgtonpost.com/
2011/12/06/bill-di-Scipio-sues-town-_n_1132061.hmg; Answer Brief of Appellees, the Town of
Southwest Ranches and Jeff Nelson, DiScipio v. Town of Southwest Ranches, 113 So. 3d 13 (Fla. 4th
Dist. Ct. App. 2012) (No. 4DI2-1953) [hereinafter Answer Brief of AppeBeesl.
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records, but was charged $1.20 for copies instead 299 Days later, but
before a lawsuit was filed, the Clerk of Court called, admitting that the
citizen should have been allowed to take the pictures instead of paying
copying charges.300 Most people would have ended the debate there.
Instead, the pro se plaintiff filed suit.301 The trial court dismissed the
case, and an appellate court affirmed, per curiam.302 Although the Town
won the case and did not pay for the plaintiffs fees or costs, the $1.20
mistake cost the Town more than $20,000 in fees for its own attorney.
ttorney 303
A wholly separate but similar matter involved a charge for $1.89.304
While the media might treat these cases as heroic, the legal system
should not.3os
In federal litigation, an attorney's signature on a pleading
represents a personal certification. 306 Pursuant to Rule 11 of the Federal
Rules of Civil Procedure, that signature means that a lawsuit is "not
being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation," and that
the legal contentions being made are warranted or otherwise not
frivolous. 307 Courts have, in fact, threatened and used sanctions for
breaches of this rule in FOIA cases. 308
299. Answer Brief of Appellees, supra note 298, at 1-2.
300. Id. at 4.
301. Id at4-5.
302. While the case was dismissed, the orders lack specific explanations for the dismissal. Order
Granting Motion to Dismiss, DiScipio v. Town of Sw. Ranches (17th Jud. Cir. Mar. 12, 2012) (No.
11-28577(21)), q fd per mnam,113 So. 3d 13 (Fla. 4th Dist. Ct. App. 2013) (table). The Town had
argued, among other points, that the matter was moot, and the court dismissed the case for failure
to state a claim. Answer Brief of Appellees, supra note 298.
The DiScipio case may he unusual. Florida courts have not looked favorably on moomess
arguments in public records cases. See, e.g., Grapski v. City of Alachua, 31 So. 3d 193, 195-96, 198
(Fla. Ist Dist. Ct. App. 2010) (The plaintiff alleged the city violated the public records laws because
the city refused to provide a copy of unapproved board meeting minutes; once approved, but after
suit was filed, the city provided the minutes to the plaintiff, the court held that unreasonable delay
thwarted the "primary usefulness" of the documents after approval, the release did not cure the
injury, and the city's policy was capable of repetition yet evading review.).
In contrast, FOIA cases have been held to be moot when the agency has complied. Vazquez -
Gonzalez v. Shalala, No. 94-2100 (SEC), 1995 WL 67659, at * I (D.P.R. Feb. 13, 1995) (After
FOIA suit was filed, the Department of Health and Human Services provided copies of the
documents, and the court found that compliance with the FOIA request rendered the case moot.).
303. Mayo, supra note 9.
304. Joel Engelhardt, Gulf Stream Millionaire Challenging State Attorney's Offire over.... 51.89,
PALM BEACH POST (Aug. 22, 2013, 12:47 PM), http://www.palmbeachpost
.com/news/news /gulf-stream-millionaire-challenging-state-attomey/nZYSC/.
305. Mayo, supra note 9.
306. FED. R. Civ. P. 11(b).
307. Id. at 11(bX1){2).
308. See, e.g., Schwarz v. CIA, 182 F.3d 933 (table), 1999 WL 330237, at *I (loth Cir. 1999)
(admonishing the plaintiff for "frivolousness" in light of a "recurring pattern of similarly
unsuccessful FOIA actions" and warning that "future frivolous filings ... will result in sanctions");
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In Florida, pursuant to Section 57.105 of the Florida Statutes, a
defendant can notify a plaintiff that a lawsuit or a claim is baseless and
unsupported by material facts or existing law. 309 If the claim is not
withdrawn and the defendant wins, then the plaintiff will pay the
defendant's legal fees. 310 Florida's provision, however, offers an
inadequate deterrent to stop the filing of needless public records cases
because the risk of fees can be evaded with a voluntary dismissal .311
Dropping a lawsuit does not relieve the government defendant from
enduring the expenses and frustration of the initial process of
responding to a baseless public records complaint. Even in cases where
a lawsuit is dropped after the plaintiff receives the Section 57.105
letter, 312 the government entity and lawyer still incur time and costs on
the research and drafting of the letter and the other litigation pleadings
and motions. Something more is needed, and appropriate solutions
already exist elsewhere in the law.
When it comes to fee shifting provisions in the public records laws,
the fifty states and Washington, D.C. take a variety of approaches.
Twenty-seven jurisdictions, including Florida, have laws with a one -
directional fee shifting provision that awards attorney's fees and costs or
reasonable expenses to a prevailing public records requester. 313 Eighteen
jurisdictions allow for attorney's fees and costs to be collected by the
Goldgar v. Office of Admin., 26 F.3d 32, 35-36, 36 n.3 (5th Cir. 1994) (warning the plaintiff that
subsequent filing or appeal of FOIA lawsuits without jurisdictional basis may result in assessment
of "costs, attorney's fees, and proper sanctions" or that the plaintiff may be required to "obtain
judicial preapproval of all future filings").
309. FLA. STAT. § 57.105(1) (2014) ("Upon the court's initiative or motion of any parry, the
court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the
prevailing parry in equal amounts by the losing party and the losing party's attorney on any claim
or defense at any time during a civil proceeding or action in which the court finds that the losing
parry or the losing party's attorney knew or should have known that a claim or defense when
initially presented to the court or at any time before trial: (a) Was not supported by the material
facts necessary to establish the claim or defense; or (b) Would not be supported by the application
of then -existing law to those material facts.").
310. Id § 57.105(2){3).
311. Id § 57.105(3)(d).
312. Id § 57.305(4).
313. D.C. CODE § 2.537 (2014); FLA. STAT. § 119.12 (2014); HAW. REV. STAT. § 9217-15 (West
2014); 5 ILL. COMP. STAT. 140/11 (2014); IOWA CODE § 22.10 (2014); LA. REV. STAT. ANN. §
44:35 (2014); ME. REV. STAT. ANN. tit. 1, § 409 (2014); MD. CODE ANN., GEN. PROVIS § 4-632
(West 2014); MICH. COMP. LAWS § 15.240 (2014); MISS. CODE ANN. § 25-61-15 (2014); Mo. REV.
STAT. § 610.027 (2014); MONT. CODE ANN. § 2-6.101 (2013); NEB. REV. STAT. § 84712.07 (2013);
NEV. REV. STAT. § 239.011 (2013); N.J. STAT. ANN. § 47:1A-6 (2014); N.M. STAT. ANN. § 14-2-12
(West 2014); N.Y. PUB. OFF. LAW § 89 (2014); N.D. CENT. CODE § 44-0421.2 (2014); OHIO REV.
CODE § 149.43 (2014); OR. REV. STAT. § 192.410 (2014); S.C. CODE ANN. § 30-4-100 (2013);
TENN. CODE ANN. § 10-7-505 (2014); UTAH CODE. § 63G-2-802 (2014); VA. CODE § 2.2-3704
(2014); WASH. REV. CODE § 42.56.550 (2014); W. VA. CODE § 29B-1.7 (2014); Wis. STAT. ANN. §
19.37 (2013).
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either prevailing party, although some of them require fees to be paid to
the government only if the requester's case involved bad faith or a lack
of substantial justification. 314 Although other state laws related to
attorney's fees might apply, two jurisdictions' public records laws are
wholly silent on the subject of attorney's fees,315 three more jurisdictions
provide only for fines or civil penalties against the government, 316 and
one state has a unique fee shifting provision that inures to the benefit of
the public agency, preventing misuse of the public records laws for
commercial purposes, and including a triple damages clause. 317
Based on this analysis, a modification to Florida's attorney's fee
shifting provisions would not be unusual in comparison with other
states. In fact, it would not even be unusual in Florida, where statutes
already provide for fee shifting and awards to the prevailing party. The
Florida False Claims Act empowers people to sue the government
contractors for specified misuses of public funds. 318 However, citizen
activists cannot simply file baseless suits against government contractors
because Florida law will hold the citizens accountable. Attorney's fees
and costs can be assessed against a plaintiff for the reasonable costs of
defending a claim that was "clearly frivolous, clearly vexatious, or
brought primarily for purposes of harassment. ""9 Similarly, pursuant to
the Florida Administrative Procedure Act, if an administrative law
judge "determines that a party participated in the proceeding for an
improper purpose," the judge can "determine the award of costs and
attorney's fees."320 An improper purpose was further defined as
participation in a proceeding "primarily to harass or to cause
unnecessary delay or for frivolous purpose or to needlessly increase the
314. ARIZ. REV. STAT. ANN. § 39-121.02 (2014); ARK. CODE ANN. § 25.19.107 (2014); CAL.
GOVT CODE § 6259 (2014); COLO. REV. STAT. § 24.72.204 (2014); CONN. GEN. STAT. § 1-206
(2013); DEL. CODE. ANN. tit. 29, § 10005 (2014); GA. CODE ANN. § 50.18.73 (2014); IDAHO CODE
ANN. § 9.344 (2014); IND. CODE § 5-14-3-9 (2014); KAN. STAT. ANN. § 45-222 (2014); MINN.
STAT. § 13.085 (2014); N.C. GEN. STAT. § 132.9 (2013); N.H. REV. STAT. § 91-A:8 (2014); OKLA.
STAT. tit. 51, § 24A.17 (2014); 65 PA. CONS. STAT. ANN. § 67.1304 (West 2014); R.I. GEN. LAWS §
38.2.9 (2014); TEX. GOVT CODE § 552.323 (West 2013); VT. STAT. ANN. tit. 1, § 319 (2014).
315. ALA. CODE § 36-1240 (2014); ALASKA STAT. § 40.25.110 (2013).
316. MASS. GEN. LAWS ch. 66, §§ 10 (2014); S.D. CODIFIED LAWS § 1.27.40.2 (2014); WYO.
STAT. § 16-4-205 (2014).
317. KY. REV. STAT. ANN. § 61.8745 (West 2014); cf. UTAH CODE. § 63G-2-802 (allowing
prevailing requesters to recover kes from the government, but not "if the purpose of the litigation is
primarily to benefit the requester's financial or commercial interest").
318. FLA. STAT. § 68.083(2) (2014) ("A person may bring a civil action for a violation of
[section] 68.082 for the person and for the affected agency. Civil actions instituted under this act
shall be governed by the Florida Rules of Civil Procedure and shall be brought in the name of the
State of Florida.").
319. /d. § 68.086.
320. !d. § 120.595(Ixd).
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cost of litigation, licensing, or securing the approval of an activity.i321
As noted above, an embrace of this approach, which uses a restricted
form of prevailing party fee shifting, would make the Sunshine State's
public records laws similar to the ones used in eighteen other United
States jurisdictions.
The legislature can control the excesses of the public records laws if
it chooses to. Amending the public records laws to mirror either the
Florida False Claims Act322 or the Florida Administrative Procedure
Act323 would mean that the government can recover fees only in cases
where the citizen abuses the law. A limited fee -shifting provision of this
type could reduce the misuse of the public records laws without creating
an undesirable chilling effect on the honorable citizen who simply seeks
access to public records as an exercise of an important civil right.
D. Professional Restraint: The Vaguer Sanctions of Conscience
The executive, judicial, and legislative branches of government all
have roles to play if the abuses of the public records law are to be
stopped. But another form of change must occur in the marketplace:
lawyers need to stop contributing to the problem.
1. Adhering to Professionalism
In theory, lawyers should not allow themselves to be a participant
in the misuse of the public records laws. Florida's principles of
professionalism—which are now mandates as part of a Supreme Court
order324—call for professional self-restraint. Of greatest relevance,
perhaps, is Rule 7.1 of Florida's Ideals and Goals of Professionalism,
which states as follows:
A lawyer should counsel the client or prospective client, even with
respect to a meritorious claim or defense, concerning the public and
private burdens of pursuing the claim as compared with the benefits
to be achieved. 325
321. Id § 120.595(IXeXI).
322. Id § 68.083(2).
323. Id § 120.595(IXd).
329. In re Code for Resolving Professionalism Complaints, 116 So. 3d 280 (Fla. 2013).
325. FLA. BAR R. IDEALS & GOALS OF PROFESSIONALISM 7.1 (2010), available at
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In other words, professionalism standards would normally
dissuade a lawyer from bringing a lawsuit to challenge the government's
request for $1.25 for copies of public records '326 or a lawsuit alleging that
a city's response to a public records request, forty-eight hours after
receipt, was an unreasonable delay. 327 These types of petty claims place
needless burdens upon the agency, the public, and the entire system of
justice that the lawyers serve. Those burdens far exceed any possible
benefits to be achieved—except, perhaps, for the requester's lawyer,
who may gain attorney's fees just by litigating. Similarly, the Guidelines
for Professional Practice, which state that "a lawyer should not force an
adversary to make a motion and then not oppose it," would normally
prevent a lawyer from filing a series of lawsuits only to withdraw them,
forcing his or her opponent to file an answer, affirmative defenses,
counterclaims, or demands for attorney's fees328 Yet these behaviors
happen anyway.
Professionalism violations might even deserve a referral to the local
courts for enforcement actions pursuant to the Supreme Court's order
mandating lawyer professionalism. 329 The effectiveness and legality of
the professionalism mandates and enforcement mechanisms, however,
remain untested 336 And, of course, as this Article suggests, the
anonymous clients and devious lawyers are unlikely to be swayed by the
vaguer sanctions of conscience or lawyer professionalism. To
paraphrase Justice Holmes, the "bad man" can find a bad attorney.331
326. Mayo, supm note 9.
327. Verified Complaint to Enforce Florida's Public Records Act and for Declaratory,
Injunctive and Monetary Relief 49 31-32, O'Boyle v. Town of Gulf Scream (Fla. 15th Cir. Ct. Jan, 22,
2014) (No. 502014CA000834).
328. FLA. GUIDELINES FOR PROFESSIONAL PRACTICE 1(1)-(2) (2008), available
at http://www.flaridabar.org/tfb/TFBProfess.nsf/5d2a29f983dcB Ief85256709006a486a/
329. In To CodeforRewlving Prof tuionalism Complaints, 116 So. 3d at 283.
330. See Keith W. Rizzardi, Redefining Profesn'onalisml Florida's Code Mandating the Aspirational
Raises Challenging Questions, 87 FLA. B.J., Nov. 2013, at 39-41 (discussing the newly enacted code
governing Florida lawyer professionalism).
331. Holmes, mpm note 5, at 459. Ideally, when confronted with the client who is clearly
engaged in misuse of the law, the ethical lawyer will act as a steward for thejustice system. See, e.g.,
Keith R. Fisher, Repudiating the Holmesian "Bad Man" Through Contemal Ethical Reasoning: The
Lawyer as Steward, 2008 J. PROF. LAW. 13, 14 ("In The Path ofthe Law, Justice Holmes defined law
as simply a prediction about how particular cases might be derided and illustrated this instrumental
approach through the metaphor of a 'bad roan' who is interested only in avoiding legal penalties
that might attach to his conduct or business affairs." (internal citations omitted)).
Pae-PnaLJGTION DRAer: PLeAse Do NOT CITE
2015] Sunburned 65
2. Enforcing Ethics
In the most egregious matters, violations of professionalism
standards in public records litigation should expose the lawyer to claims
of ethical misconduct. For example, Rule 43.1 of the Rules Regulating
the Florida Bar, which follows the American Bar Association's Model
Rules of Professional Conduct, states as follows:
A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith3argument
for an extension, modification, or reversal of existing law.
Explaining this concept, the commentary acknowledges the potential
for abuse of the law and addresses the lawyer's duties:
The advocate has a duty to use legal procedure for the fullest benefit
of the client's cause, but also a duty not to abuse legal procedure.
The law, both procedural and substantive, establishes the limits
within which an advocate may proceed. 333
Based on this ethical directive, the Florida Bar could even
discipline a lawyer who repeatedly brings public records lawsuits against
a governmental entity, only to withdraw them in response to a letter or
affirmative defense establishing the frivolousness of the claim 334 The
Florida Supreme Court also has been intolerant of cases where
attorneys file frivolous and meritless lawsuits that waste a defendant's
332. FLA. R. PROVI-CONDUCT 4-3.1.
333. Id. at 4-3.1 mt. The commentary also notes that "the law is not always clear and never is
static. Accordingly, in determining the proper scope of advocacy, account must be taken of the
law's ambiguities and potential for change." Id
334. Multiple instances of withdrawing cases, for example, could provide a reasonable context
for imposing attorney discipline. FLA. R. PROM. CONDUCT 4 pmbl. ("Moreover, the rules
presuppose that whether discipline should be imposed for a violation, and the severity of a
sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation,
extenuating factors, and whether there have been previous violations."); see, e.g., Fla. Bar v. Kelly,
813 So. 2d 85, 88, 89 (Fla. 2002) (disapproving a referee's recommended discipline of a sixty-day
suspension and imposing a ninety -one -day rehabilitative suspension for filing a frivolous lawsuit
and other misconduct); Fla. But v. Richardson, 591 So. 2d 908, 910, 911 (Fla. 1991) (suspending
an attorney for sixty days for £ding a frivolous federal lawsuit in violation of Rule 4-3.1); see also
Fla. Bar v. Nunes, 734 So. 2d 393, 398, 399 (Fla. 1999) (imposing a three-year suspension for filing
a frivolous lawsuit, continuing to represent clients after being discharged, making disparaging
remarks about judges and opposing counsel, and making false representations to a tribunal in
violation of Rule 4.8.4(d), among others).
Par,-POOICA I TON DRAT 1: PLUAsIi Do NOT CITE
66 Stetson Law Review [Vol. 44
time and resources and those of the court system."' Abuses of the public
records laws should be treated with the same type of severity.
Governments, however, should be careful not to expose themselves to
counterarguments that they are misusing the discipline process.336
Nevertheless, legal ethics have a proper place in the contentious area of
public records litigation.
3. Seeking Fairness in Pro Se Cases, Too
While attorney discipline might be an available option, it certainly
cannot suffice, by itself, to end the excess of Florida's public records
laws. The lawyers are not alone in shouldering the blame for the
problems because pro se litigation is quite commonplace with public
records. Indeed, a simple Lexis search 337 reveals more than thirty
different appellate cases involving pro se litigants and the public records
law Section 119.07. It is a certainty that many more unreported cases
have been threatened, filed, settled, or otherwise decided.
In these pro se cases, the non -lawyer advocate is often unaware of
the legal profession's principles of ethics and professionalism, which do
not apply to him or her. 338 But the standards of ethics and
335. Fla. Barv. Committe, 136 So. 3d 1111, 1113, 1118 (Fla. 2014) (finding a violation of Rule
4-3.1 where Committe and "his client knew or should have known that the claims asserted in thew
complaint were not supported by the material facts; [and] would not be supported by the
application of then -existing law to those facts," and increasing the lawyer's suspension from ninety
days to three years).
336. FLA. R. PROM. CONDUCT 4-3.4(h) (providing that an attorney must not "present,
participate in presenting, or threaten to present disciplinary charges under these rules solely to
obtain an advantage in a civil matter"). Of course, the Florida Bar is likely to be cautious in
enforcing disciplinary mles and might be concerned about appearances of partisan interference. See
generally James E. Molitemo, Politically Motivated BarUiseipline, 83 WASH. U. L.Q. 725, 730 (2005)
(discussing the "misuse of the bar machinery to punish government dissenters").
337. The search used the term "pro se" and Section 119.07 of the Florida Statutes to identify
relevant cases.
338. A noteworthy exception recently occurred in Palm Beach County, however, where the
non -lawyer executive director of a non-profit organization, who was purportedly dedicated to open
government, resigned from his position, citing ethical concerns. In his publicly circulated parting
statement, he acknowledged the excesses and abuses of public records litigation and the ethical
violations that were taking place:
My decision to resign was the result of a series of irreconcilable philosophical and ethical
differences. I have come to believe that my continued affiliation with the Foundation in
spite of those differences would have eroded my credibility as a civil rights activist and
negatively impacted the public's right to know.
As an activist, my objective is to strengthen the public's right to know. While litigation
may at times be a means to that end, for me it has never been—and will never be—the end in
itself Over the past five months it has become increasing[ly] clear that myjudgment on this
and other issues is at odds with the Foundation's Board of Directors.
PRE -PUBLICATION DRAr-r: PLEAsc Do NOT CM
20151 Sunburned 67
professionalism still apply, to a degree, in matters where a lawyer
remains involved as a ghostwriter. As noted in the Florida Rules of
Professional Conduct, pro se filings can include assistance from
counsel .339 The lawyers who assist with pro se filings can still be held
accountable for their actions, including breaches of the duties of
competence and candor.340 It is also attorney misconduct for an attorney
to knowingly use or induce another person to violate or attempt to
violate the ethical rules. 341
Furthermore, even though pro se litigants receive great leniency
from the courts 342 and do not need to adhere to the rules of professional
conduct, limits still exist. Pro se litigants are not wholly immune from
complying with the rules of the court .343 For example, federal appellate
courts have allowed punitive awards against pro se litigants when the
non -lawyer advocate engaged in a "pattern of delay and contumacious
behavior" and "fail[ed] to comply with [ ] discovery obligations."344 In
the most egregious cases, the lawyers representing the beleaguered
governmental entities should not hesitate to invoke these principles
against the pro se public records litigants too.345
In spite of my reputation Por being litigious, I don't love fling open government lawsuits
although I am certainly willing to do so when the facts are right and the case will serve to
improve the public's right to know. What I'm passionate about is helping regular folks gain
access to the records and meetings they are entitled to.
Joel E. Chandler, D*nding the Public's Right to Know, FOGWATCH.ORG (July 1, 2014),
http://fogwatch.org/from-the-editor/defending-the-publics-right.htnil. Not everyone main -tains
these ethical standards.
339. FLA. R. PROF'L CONDUCT 4-1.2 amt. (noting that "[i]f the lawyer assists a pro se litigant
by drafting any document to be submitted to a court, the lawyer is not obligated to sign the
document. However, the lawyer must indicate 'Prepared with the assistance of counsel' on the
document to avoid misleading the court which otherwise might be under the impression that the
person, who appears to be proceeding pro se, has received no assistance from a lawyer"); Id. at 4-
5.5 emt. (commenting that "a lawyer may counsel non -lawyers who wish to proceed pro se").
340. Swgenerally John C. Rothemuch, Note, Ethical and Procedural Implications of "Ghostwriting"
far Pro Se Litigants: Toward InneasedAtrem to Civil Junire, 67 FORDHAM L. REV. 2687, 2689 (1999).
341. FLA. R. PROF'L CONDUCT 4-8.4(a).
342. Rothermich, supra note 340, at 2698-99 (discussing caselaw and quoting Haines v. Kemer,
404 U.S. 519, 520 (1972) (stating that pro se complaints are held "to less stringent standards than
formal pleadings drafted by lawyers")).
343. See, e.g., Moon v. Newsome, 863 F.2d 835, 837 (11th Cu. 1989) (stating that a pro se
litigant "is subject to the relevant law and rules of court, including the Federal Rules of Civil
Procedure").
344. Saldinger v. Ferri, 541 F. App'x 219, 222 (3d Cir. 2013) (upholding district court
judgment); see also Lisa R. Hasday, No Merryfor Pro Se Litigant, ABA LmG. NEW s (Jan. 13, 2014),
http://apps.americanbar.org/litigation/litigatiomms/top stories/011314-pro-se
ditigmthtml (discussing the court's holding in Baldinger).
345. See, e.g., Paula J. Frederick, Learning to Live with Pro Se Opponents, GPSOLO MAG.
(Oct./Nov. 2005), http://www.americanbu.org/newsletter/publications/gp_solo
magnine_home/gpsolo_magazine_index/pms opponents.html ("Judges and court personnel
have grown increasingly accustomed to dealing with pro se litigants.... If you think the court has
PRE-Pmnacnnov DRm T: PrensE Do NOT CITE
68 Stetson Law Review [Vol. 44
IV. CONCL USION. DARK SHADES OF RED
Florida's public records laws, like those of other states, have
enormous benefits to an informed public. But good laws can still be
manipulated and abused. A powerful right of public access to public
records must be preserved without bestowing an unlimited right to
harass the government. This Article shows how some problems can be
fixed, and many of these concepts can quickly be applied to other state
laws too.
As presently constructed, a small municipality simply cannot fully
comply with the Florida public records laws when faced with a well-
financed and determined adversary. Even the insurance industry
recognizes the impossibility of compliance. While local governments
routinely obtain insurance policies to cover the defensive legal expenses
of unanticipated litigation, insurers will not cover the municipality's
risks associated with public records suits. The insurance adjusters
have read the public records laws, too.
Any individual can quickly fire off hundreds of emails requesting
public records and make dozens of oral requests too. The small
municipality, however, has a much greater task: it must respond—
perfectly. Send a letter acknowledging the request. Calculate an estimate
of the costs of responding. Receive and manage the deposits. Track
time. Locate documents. Apply exemptions and redactions. Reproduce
and deliver the documents. The government must accomplish every
task, expeditiously and without error, or else defend itself against claims
of unreasonable delay or an unlawful refusal to produce the documents.
If the government loses, it pays the requester's attorney's fees, and even
if it wins, the taxpayer still foots the bill for the defense. The
government's budgetary risk is uncontainable, and the costs are all too
real. Faced with the deluge of public records requests discussed above,
the Town of Gulf Stream's budget and staff were crippled .347 This
gone too far in forgiving the pro se litigant's errors, point it out. The court is required only to give a
fair hearing to a litigant, not to take on the role of counsel to the unrepresented.'); Rick Rousos,
Public Records Advocate Finds Court Tmuble, THE LEDGER (May 10, 2013, 11:28 PM),
http://www.theledger.com/article/201305 10/
NEWS/ 130519923 (discussing lawsuit where public records requester was accused of fraudulently
claiming indigent status).
346. Email fiom Irma Cohen, Litigation Specialist, to Bill Thrasher, Re: Bthmsher@gulf-
stream.org Has Sent You a File Via WeTransfa (Apr. 3, 2014, 2:30 PM) (copy on file with Stetson Law
Renew) (explaining that insurance coverage does not extend to public records cases where the relief
requested does not include any claims of bodily, property, or personal injury).
347. See mpm notes 119-146 (using the Town of Gulf Stream as an example of the effect that
public records requesters can have on a government agency when they abuse public records laws).
Pae -PUBLICATION Danrr: PLe wDo NOT COTE
20151 Sunbumed 69
overabundance of public records requests can have other policy
consequences, too. The large volume of public records requests made by
one resident became a contributing factor to Gulf Stream's
decisionmaking in a zoning dispute; in 2012, the Town paid $181,000 as
part of a settlement of just one zoning dispute that also included
dismissal of a series of public records cases. 348 The following year, in
2013, the Town depleted its budget of emergency reserves to deal with
its public records problems, 349 and legal fees associated with public
records compliance and litigation exceeded $400,000, accounting for
more than ten percent of the Town's approximately $3 million total
budget 350 Information technology costs, including a massive investment
into the online publication of Town Commission and architectural
review board meetings, minutes, and documents, exceeded $130,000 in
2013; in fact, the Town estimates that cumulatively it spends ten to
fifteen percent of its annual budget on public records matters without
even accounting for staffing."'
These expenses of open governance have the potential to render
government less effective. In the face of an onslaught of public records
requests, funding and staffing is redirected, and other responsibilities are
cast aside. The private information demands of citizens and
348. The Town and resident agreed to a settlement for $180,000 that included a publicly
recorded land use development agreement and a withdrawal of all pending public records requests.
Development Agreement Between Town of Gulf Stream & Martin E. O'Boyle, Exhibit B,
Settlement Agreement 110, CFN 20130420056, OR BK 26343 PG 1285 (Palm Beach Cnty., Fla.
Sept. 24, 2013) ("Plaintilrs agree that upon execution of this Agreement, all pending public record
requests made to the Town shall be deemed withdrawn."); see also Tim O'Meilia, Gulf Stream:
Remodeling Approved in O'Boyle Lawsuit Settlement, THE COASTAL STAR (July 31, 2013, 2:49 PM),
http://thecomtalstar.ning.com/profiles/blogs/gulfstream-remodeling-approved-ino-boyle
-lawsuit-settlement [hereinafter Remodeling Approved in O'Boyle Lawsuit Settlement] (describing
lawsuit between Martin Boyle and the Town of Gulf Stream and the $181,000 settlement
agreement). That same resident was also involved in similar public records disputes with the Palm
Beach County State Attorney's office. Engelhardt, supra note 304.
349. Tim O'Meilia, Gulf Stream: Town Sets Up Finances for Legal Wrangle, THE COASTAL STAR
(May 29, 2013, 12:30 PM), http://thccoastalsw.ning.com/profiles/blogs/gulf
-stream-town-sets-up-finances-for-legal.w mgle7xg_source=activity. In 2014, the Town's budget
increased, due to increased revenue from property value increases, but the new funds were
consumed by the continuing public records costs.
350. The Town of Gulfstream spent $30,016 in legal fees in 2010-2011, $51,554 in legal fees in
2011-2012, $411,987 in 2012-2013, and more than $900,000, and counting, in 2013-2014. Town
of Gulf Stream, General Fund: 2012-2013 Budget, GULF-STREAM.ORG, http://www.gulf-
stream.org/images/fyl3budget.pdf Out visited Nov. 10, 2014); Town of Gulf Stream, General
Fund: 2013-2014 Budget, GULF-STREAM.ORG, http://www.gulf
-stream.org/images/Final%20Budgct%2013-14.pdf (last visited Nov. 10, 2014); Town of Gulf
Stream, Final Budget 1014-2015, GULF-STREAWORG (Sept. 23, 2014), http://www.gulf
-srrmm.org/iinages/Final°/u2OBudget�/n2Ol3-14.pdf.
351. Memorandum from William Thrasher, Town Manager, Town of Gulf Stream, to Erika
Bowen, Florida League of Cities, Public Records Inquiries 1 (Oct. 22, 2014), available at
bttp://www2.gulf-stream.org/ WebLinkg/DocView.aspx7id=34459&dbid=0.
Pae-PnaLJGTION DRAer: PLeAse Do NOT CITE
2015] Sunburned 65
2. Enforcing Ethics
In the most egregious matters, violations of professionalism
standards in public records litigation should expose the lawyer to claims
of ethical misconduct. For example, Rule 43.1 of the Rules Regulating
the Florida Bar, which follows the American Bar Association's Model
Rules of Professional Conduct, states as follows:
A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis in law and fact for
doing so that is not frivolous, which includes a good faith3argument
for an extension, modification, or reversal of existing law.
Explaining this concept, the commentary acknowledges the potential
for abuse of the law and addresses the lawyer's duties:
The advocate has a duty to use legal procedure for the fullest benefit
of the client's cause, but also a duty not to abuse legal procedure.
The law, both procedural and substantive, establishes the limits
within which an advocate may proceed. 333
Based on this ethical directive, the Florida Bar could even
discipline a lawyer who repeatedly brings public records lawsuits against
a governmental entity, only to withdraw them in response to a letter or
affirmative defense establishing the frivolousness of the claim 334 The
Florida Supreme Court also has been intolerant of cases where
attorneys file frivolous and meritless lawsuits that waste a defendant's
332. FLA. R. PROVI-CONDUCT 4-3.1.
333. Id. at 4-3.1 mt. The commentary also notes that "the law is not always clear and never is
static. Accordingly, in determining the proper scope of advocacy, account must be taken of the
law's ambiguities and potential for change." Id
334. Multiple instances of withdrawing cases, for example, could provide a reasonable context
for imposing attorney discipline. FLA. R. PROM. CONDUCT 4 pmbl. ("Moreover, the rules
presuppose that whether discipline should be imposed for a violation, and the severity of a
sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation,
extenuating factors, and whether there have been previous violations."); see, e.g., Fla. Bar v. Kelly,
813 So. 2d 85, 88, 89 (Fla. 2002) (disapproving a referee's recommended discipline of a sixty-day
suspension and imposing a ninety -one -day rehabilitative suspension for filing a frivolous lawsuit
and other misconduct); Fla. But v. Richardson, 591 So. 2d 908, 910, 911 (Fla. 1991) (suspending
an attorney for sixty days for £ding a frivolous federal lawsuit in violation of Rule 4-3.1); see also
Fla. Bar v. Nunes, 734 So. 2d 393, 398, 399 (Fla. 1999) (imposing a three-year suspension for filing
a frivolous lawsuit, continuing to represent clients after being discharged, making disparaging
remarks about judges and opposing counsel, and making false representations to a tribunal in
violation of Rule 4.8.4(d), among others).
Par,-POOICA I TON DRAT 1: PLUAsIi Do NOT CITE
66 Stetson Law Review [Vol. 44
time and resources and those of the court system."' Abuses of the public
records laws should be treated with the same type of severity.
Governments, however, should be careful not to expose themselves to
counterarguments that they are misusing the discipline process.336
Nevertheless, legal ethics have a proper place in the contentious area of
public records litigation.
3. Seeking Fairness in Pro Se Cases, Too
While attorney discipline might be an available option, it certainly
cannot suffice, by itself, to end the excess of Florida's public records
laws. The lawyers are not alone in shouldering the blame for the
problems because pro se litigation is quite commonplace with public
records. Indeed, a simple Lexis search 337 reveals more than thirty
different appellate cases involving pro se litigants and the public records
law Section 119.07. It is a certainty that many more unreported cases
have been threatened, filed, settled, or otherwise decided.
In these pro se cases, the non -lawyer advocate is often unaware of
the legal profession's principles of ethics and professionalism, which do
not apply to him or her. 338 But the standards of ethics and
335. Fla. Barv. Committe, 136 So. 3d 1111, 1113, 1118 (Fla. 2014) (finding a violation of Rule
4-3.1 where Committe and "his client knew or should have known that the claims asserted in thew
complaint were not supported by the material facts; [and] would not be supported by the
application of then -existing law to those facts," and increasing the lawyer's suspension from ninety
days to three years).
336. FLA. R. PROM. CONDUCT 4-3.4(h) (providing that an attorney must not "present,
participate in presenting, or threaten to present disciplinary charges under these rules solely to
obtain an advantage in a civil matter"). Of course, the Florida Bar is likely to be cautious in
enforcing disciplinary mles and might be concerned about appearances of partisan interference. See
generally James E. Molitemo, Politically Motivated BarUiseipline, 83 WASH. U. L.Q. 725, 730 (2005)
(discussing the "misuse of the bar machinery to punish government dissenters").
337. The search used the term "pro se" and Section 119.07 of the Florida Statutes to identify
relevant cases.
338. A noteworthy exception recently occurred in Palm Beach County, however, where the
non -lawyer executive director of a non-profit organization, who was purportedly dedicated to open
government, resigned from his position, citing ethical concerns. In his publicly circulated parting
statement, he acknowledged the excesses and abuses of public records litigation and the ethical
violations that were taking place:
My decision to resign was the result of a series of irreconcilable philosophical and ethical
differences. I have come to believe that my continued affiliation with the Foundation in
spite of those differences would have eroded my credibility as a civil rights activist and
negatively impacted the public's right to know.
As an activist, my objective is to strengthen the public's right to know. While litigation
may at times be a means to that end, for me it has never been—and will never be—the end in
itself Over the past five months it has become increasing[ly] clear that myjudgment on this
and other issues is at odds with the Foundation's Board of Directors.
PRE -PUBLICATION DRAr-r: PLEAsc Do NOT CM
20151 Sunburned 67
professionalism still apply, to a degree, in matters where a lawyer
remains involved as a ghostwriter. As noted in the Florida Rules of
Professional Conduct, pro se filings can include assistance from
counsel .339 The lawyers who assist with pro se filings can still be held
accountable for their actions, including breaches of the duties of
competence and candor.340 It is also attorney misconduct for an attorney
to knowingly use or induce another person to violate or attempt to
violate the ethical rules. 341
Furthermore, even though pro se litigants receive great leniency
from the courts 342 and do not need to adhere to the rules of professional
conduct, limits still exist. Pro se litigants are not wholly immune from
complying with the rules of the court .343 For example, federal appellate
courts have allowed punitive awards against pro se litigants when the
non -lawyer advocate engaged in a "pattern of delay and contumacious
behavior" and "fail[ed] to comply with [ ] discovery obligations."344 In
the most egregious cases, the lawyers representing the beleaguered
governmental entities should not hesitate to invoke these principles
against the pro se public records litigants too.345
In spite of my reputation Por being litigious, I don't love fling open government lawsuits
although I am certainly willing to do so when the facts are right and the case will serve to
improve the public's right to know. What I'm passionate about is helping regular folks gain
access to the records and meetings they are entitled to.
Joel E. Chandler, D*nding the Public's Right to Know, FOGWATCH.ORG (July 1, 2014),
http://fogwatch.org/from-the-editor/defending-the-publics-right.htnil. Not everyone main -tains
these ethical standards.
339. FLA. R. PROF'L CONDUCT 4-1.2 amt. (noting that "[i]f the lawyer assists a pro se litigant
by drafting any document to be submitted to a court, the lawyer is not obligated to sign the
document. However, the lawyer must indicate 'Prepared with the assistance of counsel' on the
document to avoid misleading the court which otherwise might be under the impression that the
person, who appears to be proceeding pro se, has received no assistance from a lawyer"); Id. at 4-
5.5 emt. (commenting that "a lawyer may counsel non -lawyers who wish to proceed pro se").
340. Swgenerally John C. Rothemuch, Note, Ethical and Procedural Implications of "Ghostwriting"
far Pro Se Litigants: Toward InneasedAtrem to Civil Junire, 67 FORDHAM L. REV. 2687, 2689 (1999).
341. FLA. R. PROF'L CONDUCT 4-8.4(a).
342. Rothermich, supra note 340, at 2698-99 (discussing caselaw and quoting Haines v. Kemer,
404 U.S. 519, 520 (1972) (stating that pro se complaints are held "to less stringent standards than
formal pleadings drafted by lawyers")).
343. See, e.g., Moon v. Newsome, 863 F.2d 835, 837 (11th Cu. 1989) (stating that a pro se
litigant "is subject to the relevant law and rules of court, including the Federal Rules of Civil
Procedure").
344. Saldinger v. Ferri, 541 F. App'x 219, 222 (3d Cir. 2013) (upholding district court
judgment); see also Lisa R. Hasday, No Merryfor Pro Se Litigant, ABA LmG. NEW s (Jan. 13, 2014),
http://apps.americanbar.org/litigation/litigatiomms/top stories/011314-pro-se
ditigmthtml (discussing the court's holding in Baldinger).
345. See, e.g., Paula J. Frederick, Learning to Live with Pro Se Opponents, GPSOLO MAG.
(Oct./Nov. 2005), http://www.americanbu.org/newsletter/publications/gp_solo
magnine_home/gpsolo_magazine_index/pms opponents.html ("Judges and court personnel
have grown increasingly accustomed to dealing with pro se litigants.... If you think the court has
PRE-Pmnacnnov DRm T: PrensE Do NOT CITE
68 Stetson Law Review [Vol. 44
IV. CONCL USION. DARK SHADES OF RED
Florida's public records laws, like those of other states, have
enormous benefits to an informed public. But good laws can still be
manipulated and abused. A powerful right of public access to public
records must be preserved without bestowing an unlimited right to
harass the government. This Article shows how some problems can be
fixed, and many of these concepts can quickly be applied to other state
laws too.
As presently constructed, a small municipality simply cannot fully
comply with the Florida public records laws when faced with a well-
financed and determined adversary. Even the insurance industry
recognizes the impossibility of compliance. While local governments
routinely obtain insurance policies to cover the defensive legal expenses
of unanticipated litigation, insurers will not cover the municipality's
risks associated with public records suits. The insurance adjusters
have read the public records laws, too.
Any individual can quickly fire off hundreds of emails requesting
public records and make dozens of oral requests too. The small
municipality, however, has a much greater task: it must respond—
perfectly. Send a letter acknowledging the request. Calculate an estimate
of the costs of responding. Receive and manage the deposits. Track
time. Locate documents. Apply exemptions and redactions. Reproduce
and deliver the documents. The government must accomplish every
task, expeditiously and without error, or else defend itself against claims
of unreasonable delay or an unlawful refusal to produce the documents.
If the government loses, it pays the requester's attorney's fees, and even
if it wins, the taxpayer still foots the bill for the defense. The
government's budgetary risk is uncontainable, and the costs are all too
real. Faced with the deluge of public records requests discussed above,
the Town of Gulf Stream's budget and staff were crippled .347 This
gone too far in forgiving the pro se litigant's errors, point it out. The court is required only to give a
fair hearing to a litigant, not to take on the role of counsel to the unrepresented.'); Rick Rousos,
Public Records Advocate Finds Court Tmuble, THE LEDGER (May 10, 2013, 11:28 PM),
http://www.theledger.com/article/201305 10/
NEWS/ 130519923 (discussing lawsuit where public records requester was accused of fraudulently
claiming indigent status).
346. Email fiom Irma Cohen, Litigation Specialist, to Bill Thrasher, Re: Bthmsher@gulf-
stream.org Has Sent You a File Via WeTransfa (Apr. 3, 2014, 2:30 PM) (copy on file with Stetson Law
Renew) (explaining that insurance coverage does not extend to public records cases where the relief
requested does not include any claims of bodily, property, or personal injury).
347. See mpm notes 119-146 (using the Town of Gulf Stream as an example of the effect that
public records requesters can have on a government agency when they abuse public records laws).
Pae -PUBLICATION Danrr: PLe wDo NOT COTE
20151 Sunbumed 69
overabundance of public records requests can have other policy
consequences, too. The large volume of public records requests made by
one resident became a contributing factor to Gulf Stream's
decisionmaking in a zoning dispute; in 2012, the Town paid $181,000 as
part of a settlement of just one zoning dispute that also included
dismissal of a series of public records cases. 348 The following year, in
2013, the Town depleted its budget of emergency reserves to deal with
its public records problems, 349 and legal fees associated with public
records compliance and litigation exceeded $400,000, accounting for
more than ten percent of the Town's approximately $3 million total
budget 350 Information technology costs, including a massive investment
into the online publication of Town Commission and architectural
review board meetings, minutes, and documents, exceeded $130,000 in
2013; in fact, the Town estimates that cumulatively it spends ten to
fifteen percent of its annual budget on public records matters without
even accounting for staffing."'
These expenses of open governance have the potential to render
government less effective. In the face of an onslaught of public records
requests, funding and staffing is redirected, and other responsibilities are
cast aside. The private information demands of citizens and
348. The Town and resident agreed to a settlement for $180,000 that included a publicly
recorded land use development agreement and a withdrawal of all pending public records requests.
Development Agreement Between Town of Gulf Stream & Martin E. O'Boyle, Exhibit B,
Settlement Agreement 110, CFN 20130420056, OR BK 26343 PG 1285 (Palm Beach Cnty., Fla.
Sept. 24, 2013) ("Plaintilrs agree that upon execution of this Agreement, all pending public record
requests made to the Town shall be deemed withdrawn."); see also Tim O'Meilia, Gulf Stream:
Remodeling Approved in O'Boyle Lawsuit Settlement, THE COASTAL STAR (July 31, 2013, 2:49 PM),
http://thecomtalstar.ning.com/profiles/blogs/gulfstream-remodeling-approved-ino-boyle
-lawsuit-settlement [hereinafter Remodeling Approved in O'Boyle Lawsuit Settlement] (describing
lawsuit between Martin Boyle and the Town of Gulf Stream and the $181,000 settlement
agreement). That same resident was also involved in similar public records disputes with the Palm
Beach County State Attorney's office. Engelhardt, supra note 304.
349. Tim O'Meilia, Gulf Stream: Town Sets Up Finances for Legal Wrangle, THE COASTAL STAR
(May 29, 2013, 12:30 PM), http://thccoastalsw.ning.com/profiles/blogs/gulf
-stream-town-sets-up-finances-for-legal.w mgle7xg_source=activity. In 2014, the Town's budget
increased, due to increased revenue from property value increases, but the new funds were
consumed by the continuing public records costs.
350. The Town of Gulfstream spent $30,016 in legal fees in 2010-2011, $51,554 in legal fees in
2011-2012, $411,987 in 2012-2013, and more than $900,000, and counting, in 2013-2014. Town
of Gulf Stream, General Fund: 2012-2013 Budget, GULF-STREAM.ORG, http://www.gulf-
stream.org/images/fyl3budget.pdf Out visited Nov. 10, 2014); Town of Gulf Stream, General
Fund: 2013-2014 Budget, GULF-STREAM.ORG, http://www.gulf
-stream.org/images/Final%20Budgct%2013-14.pdf (last visited Nov. 10, 2014); Town of Gulf
Stream, Final Budget 1014-2015, GULF-STREAWORG (Sept. 23, 2014), http://www.gulf
-srrmm.org/iinages/Final°/u2OBudget�/n2Ol3-14.pdf.
351. Memorandum from William Thrasher, Town Manager, Town of Gulf Stream, to Erika
Bowen, Florida League of Cities, Public Records Inquiries 1 (Oct. 22, 2014), available at
bttp://www2.gulf-stream.org/ WebLinkg/DocView.aspx7id=34459&dbid=0.
Pae-PaaucnnoN Dane -r. Pie Do Not Cm
70 Stetson Law Review [Vol. 44
organizations, whether meritorious or not, take precedence over the rest
of the public interest. Further complicating the government's efforts to
fulfill its mission while complying with the public records laws, some
public servants who are tired of pointless searches through emails and
other files might even resign.
Misuse of the public records law by the relentless public records
vigilante also undermines the law's objective of public access to
information in two ways. First, while one overzealous person can
manipulate the public records laws by burdening the government with
innumerable requests, the government's responses to other persons
making appropriate public requests can be delayed. Rather than
instinctively defending the abuses of the public records laws, reporters
and other advocates who want rapid access to the government's public
records should recognize that if the abuses are not curbed, then their
own self -interests may be affected.
Second, the mere existence of a public records vigilante can cause
government transparency to decline. Cognizant that every written word
can be responsive to future public records requests, public servants
avoid creating documentation in the first place. They stop using email,
relying instead upon in-person and unrecorded communications. The
once -proud footer on the typical public servant's email is rewritten:
"Florida has a broad public records law that costs taxpayers millions.
Please think before you type."
The rights of access to public records must be preserved for the
media, the prisoners, the innocence commissions, and other genuinely
interested persons. The ideal of government in the sunshine requires a
powerful public records law with citizen suit enforcement, too. Yet
ideals sometimes contrast with reality. The virtually unfettered rights in
the public records laws need to be fettered, and the recommendations in
this Article would be a meaningful start. Until reform occurs, a few
individuals, irresponsibly exercising their government in the sunshine
rights, will continue to scald our government with a blistering case of
sunburn.