1. Delivery of records to successor

Section 119.021(4)(a), F.S., provides that whoever has custody of public records shall deliver such records to his or her successor at the expiration of his or her term of office or, if there is no successor, to the records and information management program of the Division of Library and Information Services of the Department of State. See, Maxwell v. Pine Gas Corporation, 195 So. 2d 602 (Fla. 4th DCA 1967) (state, county, and municipal records are not the personal property of a public officer); AGO 98-59 (records in the files of the former city attorney which were made or received in carrying out her duties as city attorney and which communicate, perpetuate, or formalize knowledge constitute public records and are required to be turned over to her successor); and AGO 75-282 (public records regardless of usefulness or relevancy must be turned over to the custodian's successor in office or to the Department of State). And see s. 119.021(4)(b), F.S., providing that "[w]hoever is entitled to custody of public records shall demand them from any person having illegal possession of them, who must forthwith deliver the same to him or her."

In the absence of contrary direction in the legislation dissolving a special taxing district, the district's records should be delivered to the Department of State. AGO 95-03. Cf., s. 257.36(2)(b), F.S., specifying procedures for disposition of agency records stored in the state records center in the event that the agency is dissolved or its functions are transferred to another agency.

2. Retention and disposal of records

Section 119.021(2)(a), F.S. requires the Division of Library and Information Services (division) of the Department of State to adopt rules establishing retention schedules and a disposal process for public records. Each agency must comply with these rules. Section 119.021(2)(b), F.S. And see s. 119.021(2)(c), F.S., providing that public officials must "systematically dispose" of records no longer needed, subject to the consent of the division in accordance with s. 257.36, F.S.

The division "shall give advice and assistance to public officials to solve problems related to the preservation, creation, filing and public accessability of public records in their custody." Section 119.021(2)(d), F.S. Public officials shall assist the division by preparing an inclusive inventory of categories of public records. Id. The division shall establish a time period for the retention or disposal of each series of records. Id. And see s. 119.021(3), F.S., stating that notwithstanding the provisions of Chs. 119 or 257, F.S., certain orders that comprise final agency action must be permanently maintained. Cf., Fla. R. Jud. Admin. 2.430, establishing retention schedules for court records.

Section 257.36(6), F.S., states that a "public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the division." The division is required to adopt reasonable rules relating to destruction and disposition of records. Id. See generally, Chs. 1B-24 and 1B-26, F.A.C. An affected party seeking to challenge an agency's approved records retention schedule may be entitled to a hearing pursuant to Ch. 120, F.S. L.R. v. Department of State, Division of Archives, History and Records Management, 488 So. 2d 122 (Fla. 3d DCA 1986). And see AGO 04-51, regarding the application of the retention schedules to materials obtained by law enforcement agencies which become evidence in criminal investigations and prosecutions; and Inf. Op. to Matthews, July 12, 2004, noting the division's statutory responsibility to adopt rules establishing standards for reproduction or duplication of audio or audiovisual tape recordings.

Thus, for example, a municipality may not remove and destroy disciplinary notices, with or without the employee's consent, during the course of resolving collective bargaining grievances, except in accordance with the statutory restrictions on disposal of records. AGO 94-75. See also, AGO 98-54 (registration and disciplinary records which are stored in a national association securities dealers database and which are used by the state banking department for regulatory purposes are public records and may not be destroyed merely because an arbitration panel of the national association has ordered that they be expunged; such records are subject to statutory mandates governing destruction of records); AGO 96-34, stating that as public records, "e-mail" messages are subject to the statutory limitations on destruction of public records; and AGO 75-45, concluding that tape recordings of proceedings before a public body must be preserved in compliance with statutory record retention and disposal restrictions. Cf., AGO 91-23 (clerk of circuit court not authorized to expunge a court order from the Official Records, in the absence of a court order directing such action). Accord, Inf. Op. to Hernandez, July 1, 2003 (agency not authorized to purge or expunge documents which it created while carrying out what it perceived to be its official duty based upon an accusation that the agency may have been mistaken in such an assessment).

The statutory restrictions on destruction of public records apply even if the record is exempt from disclosure. For example, in AGO 81-12, the Attorney General's Office concluded that the City of Hollywood could not destroy or dispose of licensure, certification, or employment examination question and answer sheets except as authorized by statute. Similarly, in AGO 87-48, it was concluded that the statutory prohibition against placing anonymous materials in the personnel file of a school district employee did not permit the destruction of such materials received in the course of official school business, absent compliance with statutory restrictions on destruction of records. An exemption only removes the records from public access requirements, it does not exempt the records from the other provisions of Ch. 119, F.S., such as those requiring that public records be kept in a safe place or those regulating the destruction of public records. AGO 93-86. See, s. 119.021, F.S.