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HomeMy Public PortalAboutPRR 14-1029Your orieinal request, dated June 22, 2014, is reproduced in the space below: IQ From: freddy farnsworth ( mailto :frederick.freddy.farnsworth @gmail.com] 29 Sent: Sunday, June 22, 2014 8:05 PM To: Bill Thrasher Subject: record of ag opinion PUBLIC RECORDS REQUEST attorney general Pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119.07 of the Florida Statutes I wish to make a public records request of your agency for the following records: Any opinion written by a Florida Attorney General and located in the Town's public records. If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure please cite the specific exemption as required by §119.07(1)(e) of the Florida Statutes and state in writing and with particularity the basis for your conclusions as required by §119.07(1)(f) of the Florida Statutes. Please take note of §119.07(c) Florida Statues and your affirmative obligation to (1) promptly acknowledge receipt of this public records request and (2) make a good faith effort which "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." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. If any records are readily available, please produce those records first without waiting for all responsive records to be available. Produce the less readily available records as soon as they are available. If the public records being sought are maintained by your agency in an electronic format please produce the records in the original electronic format in which they were created or received. See §119.01(2)(f), Florida Statutes. If you anticipate the production of any of these public records to exceed $1.00 please notify me in advance of their production with a written estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages and /or records, as well as to distinguish the cost of labor and materials. If any records may be produced for less than $1.00, please produce those records first while waiting to obtain authorization from me to produce more costly records. Do not incur any costs that you expect me to pay which are greater than $1.00 until first obtaining my authorization to do so. All responses to this public records request should be made in writing to the following email address: frederick.freddy.farnsworth(@Rmail.com TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail October 28, 2014 freddy farnsworth [mail to: frederick .freddy.famsworth @gmail.com] Re: GS #1029 (record of ag opinion) Any opinion written by a Florida Attorney General and located in the Town's public records. Dear freddy farnsworth [mail to: frederick .freddv.famsworthna,email.coml, The Town of Gulf Stream received your public records requests on June 22, 2014. You should be able to view this request at the following link: httv://www2.gulf- stream. orQ/ WebLink8 /0 /doc /18186/Pagel.asnx. If your request was verbal, then the description of your public records request is set forth in the italics above. In future correspondence, please refer to this public records request by the above referenced number. The Town may incur expenses for the production of documents. You are responsible for the costs of duplication, as allowed by Chapter 119, Florida Statutes, and you may also incur a special service charge for the labor needed to respond to this request. To produce the documents for that you have requested, since there is no time frame associated with the request, the Town of Gulf Stream estimates the need for 4 hours of administrative support at $39.23 per hour, and Access Computers estimates the need for 1 hour of IT support at $120.00 per hour, the labor cost of the personnel providing the service, per Fla. Stat. § I I9.07(4)(d). If the costs of producing these documents will exceed your deposit, the Town will provide you with an initial production of responsive records and an estimate for the production of any additional responsive records. If the costs of production are less than the deposit, the Town will provide you with the responsive records and a refund. If you would like to narrow the scope of your request, for example, by identifying a particular document type or date range, the Town may be able to provide these records at a lower cost. (4 hours @ 39.23 = 156.92) - (.25 hour @ 39.23= 9.81) + (1 hours @ $120.00 = 120.00) _ Deposit Due: $267.11 in cash or check. The Town of Gulf Stream is currently working on a large number of incoming public records requests. Upon receipt of your deposit, the Town will use its very best efforts to further respond to your public records request in a reasonable amount of time. Sincerely, Town Clerk TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail June 25, 2014 Freddy farnsworth [mailto: frederick.freddy.famsworth@gmail.com] Re: record of ag opinion Any opinion written by a Florida Attorney General and located in the Town's public records. Dear Freddy farnsworth [mailto: frederick.freddy.farnsworth@gmail.com], The Town of Gulf Stream has received your public records request dated June 22, 2014. If your request was received in writing, then the first page of that request is attached to this cover letter. If your request was verbal, then the description of your public records request is set forth in the space below. The Town of Gulf Stream is currently working on a large number of incoming public records requests. The Town will use its very best efforts to respond to you in a reasonable amount of time with the appropriate response or an estimated cost to respond. Sincerely, Town Clerk Custodian of the Records Advisory Legal Opinion - Public Records -- Contracts -- Public Agencies Florida Attorney General Advisory Legal Opinion Number: AGO 2014-06 Date: June 18, 2014 Subject: Public Records -- Contracts -- Public Agencies The Honorable Wilton Simpson Senator, District 18 322 Senate Office Building 404 South Monroe Street Tallahassee, Florida 32399-1100 Dear Senator Simpson: Page 1 of 4 As Senator for the Eighteenth District of Florida and in anticipation of filing amendatory legislation clarifying this matter, you have requested my opinion on substantially the following question: Does the language of section 119.0701(1)(a), Florida Statutes, ". . . and is acting on behalf of the public agency . . . ", result in the nature of the services provided being the determining factor as to the applicability of Chapter 119, Florida Statutes, to a contractor; or does a contract for services with a public agency, regardless of the nature of the services, automatically result in that private contractor being subject to the requirements of the Public Records Law? In sum: The requirements of section 119.0701, Florida Statutes, apply to "contractor[s]" who contract with public agencies and are acting on behalf of the public agency in providing those services. Thus, based on the terms of section 119.0701(1)(a), Florida Statutes, the nature and scope of the services provided by a private contractor determine whether he or she is acting on behalf of an agency and would be subject to the requirements of the statute. Section 119.0701, Florida Statutes, was created by the Legislature during the 2013 Legislative Session as a component of a bill relating to governmental accountability.[l] Section 1 of CS/CS/HB 1309, which became section 119.0701, Florida Statutes (2013), "requires public agency contracts for services performed on behalf of the agency to contain contract provisions clarifying the public record responsibilities of the contractor."[2] The language about which you inquire is found in section 119.0701(1)(a), Florida Statutes, defining a "contractor" for purposes of the statute: "'Contractor' means an individual, partnership, corporation, or business Advisory Legal Opinion - Public Records -- Contracts -- Public Agencies Page 2 of 4 entity that enters into a contract for services with a public agency and is acting on behalf of the public agency as provided under s. 119.011 (2)." (e.s.) [3) Thus, for those contractors who are subject to its provisions, the statute treats the private contractor as one taking the place of or standing in the shoes of the public agency, that is "acting on behalf of" the public agency, and requires that the private entity comply with the same public records requirements as the public agency.[4] While I am aware that section 119.0701(2), Florida Statutes, provides that "each public agency contract for services must include" the provisions set forth in the statute, these requirements are imposed on contracts entered into by public agencies with certain "contractors." "Contractors" coming within the scope of the statute are defined as those "enter[ing] into a contract for services with a public agency and . . . acting on behalf of the public agency . . . ."[5] Thus, the statutory requirements for contractual provisions relating to Florida's Public Records Law apply to "contractor[s]" coming within the scope of the statute, that is, those who not only enter into a contract for services with a public agency, but are "acting on behalf of the public agency" in providing those services.[6] This conclusion is supported by case law construing the language of section 119.011(2), Florida Statutes, addressing the definition of the term "agency" for purposes of the Public Records Law. The statute includes public or private agencies or persons "acting on behalf of any public agency" within the definition of an "agency." As the court in Parsons 6 Whittemore, Inc. v. Metropolitan Dade County noted: "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."[7] Thus, for example, a private entity, the Salvation Army,[8] which had contracted with a county to provide all of the county's probation services for misdemeanants was held by the court to have taken the place of the county as the provider of probation services. The Salvation Army was acting on behalf of the county and the private entity's records "which would be public if the county were providing the . . . services" were public records when the Salvation Army performed these tasks. The courts will look to whether a private entity has been delegated that which would otherwise be an agency responsibility in order to determine whether the private entity is "acting on behalf of" the public agency within the scope of the statute. [9] In sum, it is my opinion that the requirements of section 119.0701, Florida Statutes, apply to "contractor[s]" who contract with public agencies and are acting on behalf of the public agency in providing those services. Thus, based on the terms of section 119.0701(1)(a), Florida Statutes, the nature and scope of the services provided by a private contractor determine whether he or she is "acting on behalf of" an agency and thus, would be subject to the requirements of the statute. Advisory Legal Opinion - Public Records -- Contracts -- Public Agencies Page 3 of 4 Sincerely, Pam Bondi Attorney General PB/tgh [1] See CS/CS/HB 1309, Florida House of Representatives, 2013 Legislative Session, and the title of the act. [2] See Summary Analysis, House of Representatives Final Bill Analysis for CS/CS/HB 1309, dated June 10, 2013. [3] Compare the definition of the term "contractor" in ss. 119.0701(1)(a) and 119.011(2), Fla. Stat., with the definition of "contractor" in s. 287.012(7), Fla. Stat.: "Contractor" means a person who contracts to sell commodities or contractual services to an agency." [4] See Letter from Senator Don Gaetz to Attorney General Bondi dated June 13, 2013, discussing the crafting of the language of s. 119.0701(2), Fla. Stat., by the Senate and the inclusion of the language in HE 1309. [5] The definition provides that the contractor is "acting on behalf of the public agency as provided under s. 119.011(2)." Section 119.011(2), Fla. Stat., is a definitional section and provides the definition of "[a]gency" as follows: "'Agency' means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency." (e.s.) [6] When the language of the statute is clear and unequivocal, the legislative intent may be gleaned from the words used without applying incidental rules of construction. See M.W. v. Davis, 756 So. 2d 90 (Fla. 2000); McLaughlin v. State, 721 So. 2d 1170 (Fla. 1998); Tallahassee Memorial Regional Medical Center, Inc. v. Tallahassee Medical Center, Inc. 681 So. 2d 826 (Fla. 1st DCA 1996); Ops. Att'y Gen. Fla. 00-46 (2000), 99- 44 (1999), and 97-81 (1997). [7] 429 So. 2d 343, at 346 (Fla. 3d DCA 1983). And see News and Sun - Sentinel Co. v. Schwab, Twitty, Hanser Architectural Group, Inc., 596 So. 2d 1029, 1031 (Fla. 1992). [8] Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997). [9] See News and Sun -Sentinel Company, supra n.8. And see Booksmart v. Barnes 6 Noble, 718 So. 2d 227, 229 n.4 (Fla. 3d DCA 1998) (privately owned on -campus bookstore, which kept university instructors' course book list Advisory Legal Opinion - Public Records -- Contracts -- Public Agencies Page 4 of 4 forms, was custodian of public records and agent of university and could not deny access to forms to others); Sarasota Herald - Tribune Co. v. Community Health Corp., Inc., 582 So.2d 730 (Fla. 2d DCA 1991) (separate corporation created by county public hospital board was subject to Public Records Act as business entity acting on behalf of county board, in at least some of the corporation's functions).