2016 Amendments to the Public Records Act: Relief for Government Contractors from Predatory Requests, But Not for Public Agencies

The Public Records Act in Florida allows citizens to request and access government records. Government agencies must provide access to these records, but there are some exceptions. If an agency refuses to provide the records, they can be penalized and the person requesting the records can be awarded their legal fees. There are a lot of exemptions to the law, which can cause confusion and delays in getting the records. Before 2013, it wasn’t clear if companies with contracts with the government had to follow public records laws. Courts looked at whether the company was acting on behalf of a public agency. In 2013, a law was passed saying that government contractors have to give the public access to public records. If they don’t, the government agency they work for has to make them. After a new law was passed, some people and companies started asking for public records from government contractors and then suing them if they didn’t get the records right away. One person, Gray, sued a nonprofit that helps people in need when they didn’t give him the records he asked for. The judge said Gray and others were abusing the law for money and denied their request for legal fees. Some organizations have also sent tricky public records requests to government agencies and sued when they didn’t respond fast enough. One organization even used a fake email address to trick a county into thinking their request was a scam. The courts said the county didn’t have to respond right away to that request. Overall, the courts have been denying legal fees to people who sue over public records because they haven’t followed all the rules. Some people are abusing public records requests to sue small towns and get money. One town got hit with 2,000 requests from one person and ended up spending $1 million a year on lawyers. The state passed a law to make it harder for these abusers to get records from government contractors. The new law makes it easier for contractors to handle public records requests. If a contractor doesn’t give the public agency the records they asked for, they may have to pay the person requesting the records for their attorney’s fees. But the person asking for the records has to tell the agency and the contractor first, and the contractor has 8 days to fix the problem.

After a contract ends, the contractor can choose to keep the records they made for the agency, but they have to follow the rules for keeping public records and keep any secret information safe. If they give all the records to the agency, they have to get rid of any extra copies. This makes it easier for contractors, because now the agency has to deal with public records requests instead of the contractor. And if someone wants to sue a contractor, they have to tell the agency and the contractor first, so the contractor has a chance to follow the law before getting sued. Public agencies now have to include the contact information of the person in charge of public records in their contracts. A bill that would have required people to give notice before filing a lawsuit over public records violations did not pass. The Senate bill was changed several times and would have made the notice requirement a law, but also kept the rule that courts must award attorneys’ fees in public records cases. The final version of the bill had a compromise with the First Amendment Foundation, but it ultimately did not become a law. The Florida legislature passed a bill that makes it clear that financial information of private companies given to the government can be considered a trade secret, meaning it doesn’t have to be disclosed to the public. This is important for companies that have to share their financial information with the government, as they can argue that it should be kept private. There were no changes to the rules for public agencies, so there will likely be more legal battles and new bills in the future. The courts have been dealing with whether it’s illegal to refuse to let people see public records. There have been different opinions on when attorneys’ fees should be given in these cases. The First Amendment Foundation is a good resource for open government laws. There are exemptions to the Public Records Act and the Sunshine Law. It’s important to follow the law when it comes to sharing public records. Mr. Gray is fighting a legal case because he wants the government to make it easier for people to access public records. Some people abuse the system by making impossible requests just to cause problems. There are ongoing discussions about how to address these issues. The Town of Gulf Stream and a contractor sued people for making too many requests for public records, but the court dismissed the case. A law was changed in 2016, which sparked concerns from organizations like the Florida AFL-CIO and the First Amendment Foundation. There were discussions and compromises made in the Florida Senate regarding public records laws. The column was written by Brittany Adams Long, a lawyer, and submitted by the Administrative Law Section. We want our members to understand their responsibilities to the public and to make the legal system better. We also want to improve the way the law works and learn more about legal principles.

Source: https://www.floridabar.org/the-florida-bar-journal/2016-amendments-to-the-public-records-act-relief-for-government-contractors-from-predatory-requests-but-not-for-public-agencies/