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Government-in-the-Sunshine Manual
Chapter updated: 02/25/2008
In addition, Art. I, s. 24, Fla. Const., establishes a constitutional right of access to "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 those records exempted pursuant to this section or specifically made confidential by this Constitution." The right of access includes the legislative, executive, and judicial branches of government; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or by the Constitution.
1. Advisory boards
The definition of "agency" for purposes of Ch. 119, F.S., is not limited to governmental entities. A "public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency" is also subject to the requirements of the Public Records Act. See also, Art. I, s. 24(a), Fla. Const., providing that the constitutional right of access to public records extends to "any public body, officer, or employee of the state, or persons acting on their behalf . . . ." (e.s.)
Thus, the Attorney General's Office has concluded that the records of an employee advisory committee, established pursuant to special law to make recommendations to a public hospital authority, are subject to Ch. 119, F.S., and Art. I, s. 24(a), Fla. Const. AGO 96-32. And see Inf. Op. to Nicoletti, November 18, 1987, stating that the Loxahatchee Council of Governments, Inc., formed by eleven public agencies to study and make recommendations on local governmental issues was an "agency" for purposes of Ch. 119, F.S. Cf., Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) (advisory committees subject to Sunshine Law).
2. Private organizations
A more complex question is posed when a private corporation or entity, not otherwise connected with government, provides services for a governmental body. The term "agency" as used in the Public Records Act includes private entities "acting on behalf of any public agency." Section 119.011(2), F.S.
The Florida Supreme Court has stated that this broad definition of "agency" ensures that a public agency cannot avoid disclosure by contractually delegating to a private entity that which would otherwise be an agency responsibility. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). Cf., Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229n.4 (Fla. 3d DCA 1998) (private company operating state university bookstores is an "agency" as defined in s. 119.011(2), F.S., "[n]otwithstanding the language in its contract with the universities that purports to deny any agency relationship").
a. Receipt of public funds by private entity not dispositive
There is no single factor which is controlling on the question of when a private corporation becomes subject to the Public Records Act. For example, a private corporation does not act "on behalf of" a public agency merely by entering into a contract to provide professional services to the agency. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra. Accord, Parsons & Whittemore, Inc. v. Metropolitan Dade County, 429 So. 2d 343 (Fla. 3d DCA 1983). And see Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970 (Fla. 2d DCA 2002) (fact that private development is located on land the developer leased from a governmental agency does not transform the leases between the developer and other private entities into public records).
Similarly, the receipt of public funds, standing alone, is not dispositive of the organization's status for purposes of Ch. 119, F.S. See, Sarasota Herald-Tribune Company v. Community Health Corporation, Inc., 582 So. 2d 730 (Fla. 2d DCA 1991), in which the court noted that the mere provision of public funds to the private organization is not an important factor in this analysis, although the provision of a substantial share of the capitalization of the organization is important; and Times Publishing Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999) (attorneys retained by individual county commissioners in a criminal matter were not "acting on behalf of" a public agency so as to become subject to the Public Records Act, even though the county commission subsequently voted to pay the legal expenses in accordance with a county policy providing for reimbursement of legal expenses to individual county officers who successfully defend criminal charges filed against them arising out of the performance of their official duties). And see Inf. Op. to Cowin, November 14, 1997 (fact that nonprofit medical center is built on property owned by the city would not in and of itself be determinative of whether the medical center's meetings and records are subject to open government requirements).
b. "Totality of factors" test
Recognizing that "the statute provides no clear criteria for determining when a private entity is 'acting on behalf of' a public agency," the Supreme Court adopted a "totality of factors" approach to use as a guide for evaluating whether a private entity is subject to Ch. 119, F.S. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra at 1031. Accord, New York Times Company v. PHH Mental Health Services, Inc., 616 So. 2d 27 (Fla. 1993) (private entities should look to the factors announced in Schwab to determine their possible agency status under Ch. 119). Cf., Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373, 381 (Fla. 1999), noting that the "totality of factors" test presents a "mixed question of fact and law"; thus, the appellate court "correctly reviewed the legal effect of the undisputed facts in this case." And see Wells v. Aramark Food Service Corporation, 888 So. 2d 134 (Fla. 4th DCA 2004) (trial judge should have applied totality of factors analysis rather than denying petition for writ of mandamus seeking to require Aramark to provide a copy of the food service contract between it and the Department of Corrections).
The factors listed by the Supreme Court in Schwab include the following:
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;
9) for whose benefit the private entity is functioning.
In explaining the totality test, the Court cited to several earlier district court opinions. For example, the Fourth District held that a private nonprofit volunteer fire department, which had been given stewardship over firefighting, which conducted its activities on county-owned property, and which was funded in part by public money, was an agency and its membership files, minutes of its meetings and charitable activities were subject to disclosure. Schwartzman v. Merritt Island Volunteer Fire Department, 352 So. 2d 1230 (Fla. 4th DCA 1977), cert. denied, 358 So. 2d 132 (Fla. 1978). And see Fox v. News-Press Publishing Company, Inc., 545 So. 2d 941 (Fla. 2d DCA 1989) (towing company under contract to remove motor vehicles from public streets is performing a governmental function and is subject to Ch. 119). Compare, Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 927 So. 2d 961 (Fla. 5th DCA 2006), in which the Fifth District applied the totality test and determined that a private corporation that purchased a hospital it had previously leased from a public hospital authority was not "acting on behalf of" a public agency and therefore was not subject to the Public Records Act or the Sunshine Law.
Thus, the application of the totality of factors test will often require an analysis of the statutes, ordinances or charter provisions which establish the function to be performed by the private entity as well as the contract, lease or other document between the governmental entity and the private organization.
For example, in AGO 92-37, following a review of the Articles of Incorporation and other materials relating to the establishment and functions of the Tampa Bay Performing Arts Center, Inc., the Attorney General's Office concluded that the center was an "agency" subject to the Public Records Act. It was noted that the center, which was governed by a board of trustees composed of a number of city and county officials or appointees of the Mayor of Tampa, utilized city property in carrying out its goals to benefit the public and performed a governmental function. See also, AGO 97-27 (documents created or received by the Florida International Museum after the date of its purchase/lease/option agreement with city subject to disclosure under Ch. 119, F.S.); and AGO 92-53 (John and Mable Ringling Museum of Art Foundation, Inc., subject to Public Records Act).
Similarly, in AGO 99-53, the Attorney General's Office advised that the Public Records Act applied to an architectural review committee of a homeowners' association that was required by county ordinance to review and approve applications for county building permits as a prerequisite to consideration by the county building department. Compare, AGO 87-44 (records of a private nonprofit corporation pertaining to a fund established for improvements to city parks were not public records since the corporation raised and disbursed only private funds and had not been delegated any governmental responsibilities or functions).
c. Private entities created pursuant to law or by public agencies
The fact that a private entity is incorporated as a nonprofit corporation is not dispositive as to its status under the Public Records Act. The issue is whether the entity is "acting on behalf of" an agency. The Attorney General's Office has issued numerous opinions advising that if a nonprofit entity is created by law, it is subject to Ch. 119 disclosure requirements. The following are some examples of entities created pursuant to law or ordinance which have been found to be subject to the Public Records Act:
d. Private entities providing services in place of public agencies
As stated previously, the mere fact that a private entity is under contract with, or receiving funds from, a public agency is not sufficient, standing alone, to bring that agency within the scope of the Public Records Act. See, Stanfield v. Salvation Army, 695 So. 2d 501, 503 (Fla. 5th DCA 1997) (contract between Salvation Army and county to provide services does not in and of itself subject the organization to Ch. 119 disclosure requirements). And see Inf. Op. to Michelson, January 27, 1992, concluding that a telephone company supplying cellular phone services to city officials for city business was not an "agency" since the company was not created by the city, did not perform a city function, and did not receive city funding except in payment for services rendered.
However, there is a difference between a party contracting with a public agency to provide services to the agency and a contracting party which provides services in place of the public body. News-Journal Corporation v. Memorial Hospital-West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999). Stated another way, business records of entities which merely provide services for an agency to use (such as legal professional services, for example) are probably not subject to the open government laws. Id. 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 do apply. Id.
Thus, in Stanfield v. Salvation Army, 695 So. 2d 501, 502-503 (Fla. 5th DCA 1997), the court ruled that the Salvation Army was subject to the Public Records Act when providing misdemeanor probation services pursuant to a contract with Marion County. See also, Putnam County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th DCA 1999) (where county humane society assumed the governmental function to investigate acts of animal abuse pursuant to statutory authority, the records created and maintained in connection with this function were governed by the Public Records Act). And see Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 307 (Fla. 3d DCA 2001) (a consortium of private businesses created to manage a massive renovation of an airport was an "agency" for purposes of the Public Records Act because it was created for and had no purpose other than to work on the airport contract; "when a private entity undertakes to provide a service otherwise provided by the government, the entity is bound by the Act, as the government would be").
Similarly, a private company under contract with a sheriff to provide medical services for inmates at the county jail must release its records relating to a settlement agreement with an inmate. Since these records would normally be subject to the Public Records Act if in the possession of the public agency, they are likewise covered by that law even though in the possession of the private corporation. Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999).
More recently, in Multimedia Holdings Corporation Inc. v. CRSPE, Inc., No. 03-CA-3474-G (Fla. 20th Cir. Ct. December 3, 2003), the circuit court required a consulting firm to disclose its time sheets and internal billing records generated pursuant to a subcontract with another firm (CRSPE) which had entered into a contract with a town to prepare a traffic study required by the Department of Transportation (DOT). The court rejected the subcontractor's argument that the Public Records Act did not apply to it because it was a subcontractor, not the contractor. The court found that the study was prepared and submitted jointly by both consultants; both firms had acted in place of the Town in performing the tasks required by DOT. "[T]he Public Records Act cannot be so easily circumvented simply by CRSPE delegating its responsibilities to yet another private entity," the court said.
The following are additional examples of entities performing functions for public agencies whose records were found to be subject to disclosure under the Public Records Act:
The following are examples of businesses or organizations whose records were determined to be outside the scope of the Public Records Act:
Private security force: Sipkema v. Reedy Creek Improvement District, No. CI96-114 (Fla. 9th Cir. Ct. May 29, 1996), per curiam affirmed, 697 So. 2d 880 (Fla. 5th DCA 1997), review dismissed, 699 So. 2d 1375 (Fla. 1997) (reports prepared by Walt Disney World's private security force regarding incidents on roads within the Disney property are not public records even though Disney contracted to provide some security services for a public entity, the Reedy Creek Improvement District).
e. Private company delegated authority to keep certain records
In Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 494 (Fla. 2d DCA 1990), a private entity (the White Sox baseball organization) refused to allow access to draft lease documents and other records generated in connection with negotiations between the White Sox and the city for use of a municipal stadium. The court determined that both the White Sox and the city improperly attempted to circumvent the Public Records Act by agreeing to keep all negotiation documents confidential and in the custody of the White Sox. However, the plan to withhold the documents from public inspection failed. The court ruled that both the city and the White Sox had violated Ch. 119, F.S.
Similarly, in WFTV, Inc. v. School Board of Palm Beach County, No. CL 94-8549-AD (Fla. 15th Cir. Ct. March 29, 1995), affirmed per curiam, 675 So. 2d 945 (Fla. 4th DCA 1996), the court held that a school board which hired a marketing firm to conduct a survey, then reviewed and commented upon survey questionnaires designed by the firm but avoided taking possession of the documents, unlawfully refused a public records request for the documents and was liable for attorney's fees. The court noted that the school board "could have obtained the records from [the marketing research firm] and produced them to the petitioners, but it elected not to do so, choosing instead to try to avoid disclosure by noting that it did not have possession of the records and arguing that [the firm] was not acting on its behalf." See also, Wisner v. City of Tampa Police Department, 601 So. 2d 296, 298 (Fla. 2d DCA 1992) (city may not allow a private entity to maintain physical custody of public records [polygraph chart used in police internal affairs investigation] "to circumvent the public records chapter").
Thus, if a public agency has delegated its responsibility to maintain records necessary to perform its functions, such records will be deemed accessible to the public. AGO 98-54 (registration and disciplinary records stored in a computer database maintained by a national securities association which are used by a state agency in licensing and regulating securities dealers doing business in Florida are public records). See also, Harold v. Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996) (where a county hired a private company to be the construction manager on a renovation project and delegated to the company the responsibility of maintaining records necessary to show compliance with a "fairness in procurement ordinance," the company's records for this purpose were public records).
f. Other statutory provisions
(1) Legislative appropriation
Section 11.45(3)(e), F.S., states that all records of a nongovernmental agency, corporation, or person with respect to the receipt and expenditure of an appropriation made by the Legislature to that entity "shall be public records and shall be treated in the same manner as other public records are under general law." Cf., AGO 96-43 (Astronauts Memorial Foundation, a nonprofit corporation, is subject to the Sunshine Law when performing those duties funded under the General Appropriations Act).
(2) Public funds used for dues
Section 119.01(3), F.S., provides that if an agency spends public funds in payment of dues or membership contributions to a private entity, then the private entity's financial, business and membership records pertaining to the public agency are public records and subject to the provisions of s. 119.07, F.S.
(3) State contracts
Section 287.058(1)(c), F.S., requires, with limited exceptions, that every procurement for contracted services by a state agency be evidenced by a written agreement containing a provision allowing 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.
3. Judiciary
a. Public Records Act inapplicable to judicial records
Relying on separation of powers principles, the courts have consistently held that the judiciary is not an "agency" for purposes of Ch. 119, F.S. See, e.g., Times Publishing Company v. Ake, 660 So. 2d 255 (Fla. 1995) (the judiciary, as a coequal branch of government, is not an "agency" subject to supervision or control by another coequal branch of government) and Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). Cf., s. 119.0714(1), F.S., stating that "[n]othing in this chapter shall be construed to exempt from [s. 119.07(1), F.S.] a public record that was made a part of a court file and that is not specifically closed by order of court . . . ." (e.s.). And see, Tampa Television, Inc. v. Dugger, 559 So. 2d 397 (Fla. 1st DCA 1990) (Legislature has recognized the distinction between documents sealed under court order and those not so sealed, and has provided for disclosure of the latter only).
However, the Florida Supreme Court has expressly recognized that "both civil and criminal proceedings in Florida are public events" and that it will "adhere to the well established common law right of access to court proceedings and records." Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 116 (Fla. 1988). See also, Russell v. Miami Herald Publishing Co., 570 So. 2d 979, 982 (Fla. 2d DCA 1990), in which the court stated: "[W]e recognize that the press has a general right to access of judicial records."
Moreover, even though the judiciary is not an "agency" for purposes of Ch. 119, F.S., there is a constitutional right of access to judicial records established by Art. I, s. 24 of the Florida Constitution. This provision states that the public has a right of access to records in the judicial branch of government, except for those records exempted in the Constitution, records exempted by law in effect on July 1, 1993, records exempted pursuant to court rules in effect on November 3, 1992 [the date of adoption of the constitutional amendment], and records exempted by law in the future in accordance with the procedures specified in s. 24(c), Fla. Const. See, Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208, 209 (Fla. 1998), noting that under Art. I, s. 24, Fla. Const., "any person has the right to inspect court files unless those files are specifically exempted from public inspection."
b. Public access to judicial branch records, Fla. R. Jud. Admin. 2.420
(1) Scope of the rule
In accordance with the directive in Art. I, s. 24, Fla. Const., access to records of the judicial branch is governed by Florida Rule of Judicial Administration 2.420 (formerly 2.051), entitled "Public Access to Judicial Branch Records." The rule was initially adopted in 1992 and has been amended several times since then. See, In re Amendments to the Florida Rules of Judicial Administration--Public Access to Judicial Records, 608 So. 2d 472 (Fla. 1992); In re Amendments to Rule of Judicial Administration 2.051--Public Access to Judicial Records, 651 So. 2d 1185 (Fla. 1995); In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889 (Fla. 2002); In re Amendments to the Florida Rules of Judicial Administration – Reorganization of the Rules, 939 So. 2d 966 (Fla. 2006); and In re Amendments to Florida Rule of Judicial Admin. 2.420--Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007).
According to the Florida Supreme Court, rule 2.420 is "intended to reflect the judiciary's responsibility to perform both an administrative function and an adjudicatory function." In re Amendments to the Florida Rules of Judicial Administration--Public Access to Judicial Records, 608 So. 2d 472 (Fla. 1992). In its administrative role, the judiciary is a governmental entity expending public funds and employing government personnel. Thus, "records generated while courts are acting in an administrative capacity should be subject to the same standards that govern similar records of other branches of government." Id. at 472-473. See also, Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008, 1016 (Fla. 2003) (when an individual complains to a chief circuit judge about judicial misconduct involving sexual harassment or sexually inappropriate behavior by a judge, the records made or received by the chief judge "constitute 'judicial records' subject to public disclosure absent an applicable exemption").
"Records of the judicial branch" are defined to include "all records, regardless of physical form, characteristics, or means of transmission, made or received in connection with the transaction of official business by any judicial branch entity" and consist of "court records" and "administrative records." Fla. R. Jud. Admin. 2.420(b)(1).
The term "judicial branch" means "the judicial branch of government, which includes the state courts system, the clerk of court when acting as an arm of the court, The Florida Bar, the Florida Board of Bar Examiners, the Judicial Qualifications Commission, and all other entities established by or operating under the authority of the supreme court or the chief justice." Fla. R. Jud. Admin. 2.420(b)(2).
The Supreme Court, however, has delayed electronic access to the non-confidential court records until permanent procedures can be adopted which "would not be so onerous that [the Court's] approval of electronic exists only in theory" but would "protect privacy interests and guard against unintended consequences detrimental to the judicial process." Administrative Order of the Supreme Court 06-20, June 30, 2006.
The complete text of Fla. R. Jud. Admin. 2.420, is included as Appendix E to this Manual.
(2) Confidential judicial records
In the absence of exemption, judicial records are subject to disclosure. See, Tedesco v. State, 807 So. 2d 804 (Fla. 4th DCA 2002), noting that the files in criminal cases are included within the definition of "judicial records" contained in Florida Rule of Judicial Administration 2.420(b), and that there is no exemption in the rule which would preclude release of the progress docket or the clerk's minutes from a criminal case. Id. And see Friend v. Friend, 866 So. 2d 116, 117 (Fla. 3d DCA 2004) (denial of access to records in dissolution of marriage case "may not be based solely upon the wishes of the parties to the litigation").
Rule 2.420(c) contains a listing of the judicial branch records which are confidential. Examples include trial and appellate court memoranda, complaints alleging misconduct against judges and other court personnel until probable cause is established, periodic evaluations implemented solely to assist judges in improving their performance, information (other than names and qualifications) about persons seeking to serve as unpaid volunteers unless made public by the court based upon a showing of materiality or good cause, and copies of arrest and search warrants until executed or until law enforcement determines that execution cannot be made. Fla. R. Jud. Admin. 2.240(c)(1) through (6).
Although rule 2.420 contains specific exemptions from disclosure, as set forth above, subdivision (c)(8) of the rule provides a general exemption from disclosure for records deemed to be confidential by court rule, Florida Statutes, prior Florida case law, and by rules of the Judicial Qualifications Commission. Thus, an executed search warrant could be withheld from disclosure pursuant to the statutory exemption for active criminal investigative material even though subdivision (c)(6) of the rule exempts only unexecuted search warrants. Florida Publishing Company v. State, 706 So. 2d 54 (Fla. 1st DCA 1998), review dismissed, 717 So. 2d 531 (Fla. 1998). Accord, State v. Buenoano, 707 So. 2d 714, 718 (Fla. 1998) (documents that are exempt from public access under Ch. 119, F.S., are likewise exempt under rule 2.420). And see Fla. R. Jud. Admin. 2.420(c)(7) providing an exemption for "all records made confidential under the Florida and United States Constitutions and Florida and federal law."
Subdivision (c)(9) of rule 2.420 incorporates the holdings in Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988), and Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982) by "establishing that confidentiality [of court records] may be required to protect the rights of defendants, litigants, or third parties; to further the administration of justice; or to otherwise promote a compelling governmental interest." Commentary, In re Amendments to Rule of Judicial Administration 2.051.--Public Access to Judicial Records, 651 So. 2d 1185, 1191 (Fla. 1995).
The degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect these interests. Fla. R. Jud. Admin. 2.420(c)(9)(B). And see Smithwick v. Television 12 of Jacksonville, Inc., 730 So. 2d 795 (Fla. 1st DCA 1999) (trial court properly required defense counsel to return discovery documents once it realized that its initial order permitting removal of the documents from the court file had been entered in error because the requirements of rule 2.420 had not been met).
"The burden of proof . . . shall always be on the party seeking closure." Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988). "Our reasons for placing the burden on the party seeking closure and maintaining closure remains the same today as it did when we issued Barron in 1988; that is, the strong presumption of openness of court proceedings, and the fact that those challenging the closure order will generally have little or no knowledge of the specific grounds requiring closure." Amendments to the Florida Family Law Rules of Procedure, 853 So. 2d 303, 306 (Fla. 2003). Commentary, supra at 1191. See, In re: Guardianship of Cosio, 841 So. 2d 693, 694 (Fla. 2d DCA 2003), in which the court stated that "[a]ccess to court records may be restricted to protect the interests of litigants only after a showing that the following three-prong test has been met: (1) the measure limiting or denying access (closure or sealing of records or both) is necessary to prevent a serious and imminent threat to the administration of justice; (2) no less restrictive alternative measures are available which would mitigate the danger; and (3) the measure being considered will in fact achieve the court's protective purpose."
(3) Notice of closure of court records
In response to "highly serious concerns first identified by Florida news media reports about hidden cases and secret dockets," the Florida Supreme Court in In re: Amendments to Florida Rule of Judicial Administration 2.420 – Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007), adopted on an interim emergency basis amendments to rule 2.420 regarding the closure of noncriminal court records. "Court records" are defined to include "the contents of the court file, including the progress docket and other similar records generated to document activity in a case, transcripts filed with the clerk, documentary exhibits in the custody of the clerk, and electronic records, videotapes, or stenographic tapes or depositions or other proceedings filed with the clerk, and electronic records, videotapes, or stenographic tapes of court proceedings." Fla. R. Jud. Admin. 2.420(b)(1)(A).
Prior to the 2007 amendment to the rule, the courts had stated that unlike the closure of court proceedings, which has been held to require notice and hearing prior to closure, see Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982), "the closure of court records has not required prior notice." Commentary, In re Amendments to Rule of Judicial Administration 2.051.--Public Access to Judicial Records, 651 So. 2d 1185, 1191 (Fla. 1995). "Requiring prior notice of closure of a court record may be impractical and burdensome in emergency circumstances or when closure of a court record requiring confidentiality is requested during a judicial proceeding[;] [p]roviding reasonable notice to the public of the entry of a closure order and an opportunity to be heard on the closure issue adequately protects the competing interests of confidentiality and public access to judicial records." Id.
The former rule did "not preclude the giving of prior notice of closure of a court record, and the court may elect to give prior notice in appropriate cases." See also, WESH Television, Inc. v. Freeman, 691 So. 2d 532 (Fla. 5th DCA 1997) (once audio and videotapes in criminal case were turned over to the defendant during discovery, they were public records subject to disclosure under Ch. 119, F.S.; only after an evidentiary hearing with the media participating and in camera review of the tapes, may the court enter an order limiting access to the records based on constitutional considerations). And see, Media General Operations, Inc. v. State, 933 So. 2d 1199 (Fla. 2d DCA 2006) (news media entitled to notice of and opportunity to be heard on defendant's motion to seal discovery). The closure of records in criminal cases remains substantially unchanged by the revised rule.
Under the revised rule 2.420(d), however, requests to close circuit or county court records in noncriminal cases under Rule 2.420(c)(9) must be made in the form of a written motion captioned "Motion to Make Court Records Confidential" and must identify the particular court records to be made confidential and the basis for taking such action, including a signed certification by the party making the request that the motion is being made in good faith and is supported by a sound factual and legal basis. Fla. R. Jud. Admin. 2.420(d)(1). The records subject to the motion must be treated as confidential by the clerk pending the court's ruling on the motion; however, the case number, docket number or other number used by the clerk's office to identify the case file are not confidential. Id. Court records made confidential under the rule must be treated as confidential during any appellate proceedings. Fla. R. Jud. Admin. 2.420(d)(7).
The court must hold a public hearing on any contested sealing motion and may hold a hearing on an uncontested motion. Fla. R. Jud. Admin. 2.420(d)(2). Such hearing must be an open proceeding except that a party may request the court to conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A) of the rule. Id. The court may, in its discretion, require prior public notice of the hearing. Id. A sealing order issued by the court must state with specificity the grounds for the sealing and the findings of the court that justify the sealing. Fla. R. Jud. Admin. 2.420(d)(3). Notice of any order granting the motion, except as provided by law or court rule, must be given to the public as provided by the rule. Fla. R. Jud. Admin. 2.420(d)(4).
A nonparty may file a written motion to vacate a sealing order. Fla. R. Jud. Admin. 2.420(d)(5). The court must hold a hearing on any contested motion and may hold a hearing on uncontested motions; such hearing must be an open proceeding except that a party may request the court to conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A) of the rule. Id. A court may impose sanctions on any party who files a sealing motion without a good faith basis and without a sound legal and factual basis. Fla. R. Jud. Admin. 2.420(d)(6).
(4) Procedures for accessing judicial branch records under rule 2.420
"Requests and responses to requests for access to records under this rule shall be made in a reasonable manner." Fla. R. Jud. Admin. 2.420(f). Requests must be in writing and directed to the custodian. Id. In a commentary to the decision incorporating the written request provision, the Court cautioned that the "writing requirement is not intended to disadvantage any person who may have difficulty writing a request; if any difficulty exists, the custodian should aid the requestor in reducing the request to writing." Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
A public records request "shall provide sufficient specificity to enable the custodian to identify the requested records. The reason for the request is not required to be disclosed." Fla. R. Jud. Admin. 2.420(f)(1).
The custodian "is required to provide access to or copies of records but is not required either to provide information from records or to create new records in response to a request." Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
The custodian shall determine whether the requested records are subject to the rule, whether there are any exemptions, and the form in which the record is provided. Fla. R. Jud. Admin. 2.420(f)(2). If the request is denied, the custodian shall state in writing the basis for the denial. Id.
(5) Review of denial of access to judicial records
Expedited review of denials of access to records of the judicial branch shall be provided through an action for mandamus, or other appropriate appellate remedy. Fla. R. Jud. Admin. 2.420(e). See, Mathis v. State, 722 So. 2d 235, 236 (Fla. 2d DCA 1998) (petition for writ of mandamus "is the proper vehicle to seek review of the denial of access to judicial records"). See also, T.T. v. State, 689 So. 2d 1209, 1210 (Fla. 3d DCA 1997) (petition for writ of certiorari seeking to quash trial court order denying access to court records treated as a petition for writ of mandamus by appellate court); and Bostic v. State, 875 So. 2d 785 (Fla. 2d DCA 2004) (petition for certiorari review of trial court order denying petitioner's writ of mandamus seeking a copy of his arrest warrant treated as an appeal by district court). Cf., Lifecare International, Inc. v. Barad, 573 So. 2d 1044 (Fla. 3d DCA 1991) (a two-month delay in ruling on a motion to unseal a file constitutes a denial of access to the file for that period of time and is subject to expedited review by the appellate court).
Where a judge who has denied a request for access to records is the custodian, the action shall be filed in the appellate court having appellate jurisdiction to review the decisions of the judge denying access. Fla. R. Jud. Admin. 2.420(e)(1). Upon order issued by the appellate court, the judge denying access to records shall file a sealed copy of the requested records with the appellate court. Id. All other actions shall be filed in the circuit court where the denial of access occurred. Fla. R. Jud. Admin. 2.420(e)(2).
c. Discovery material
The Florida Supreme Court has ruled that there is no First Amendment right of access to unfiled discovery materials. Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987) (discovery in criminal proceedings); and Miami Herald Publishing Company v. Gridley, 510 So. 2d 884 (Fla. 1987), cert. denied, 108 S.Ct. 1224 (1988) (civil discovery). But see, SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796, 798 (Fla. 4th DCA 2002), noting that even though there is no constitutional right of access to prefiled discovery materials, "it does not necessarily follow that there is a constitutional right to prevent access to discovery." (emphasis supplied by the court).
Even though unfiled discovery material is not accessible under the First Amendment, it may be open to inspection under Ch. 119, F.S., if the document is a public record which is otherwise subject to disclosure under that law. See, e.g., Tribune Company v. Public Records, 493 So. 2d 480, 485 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987), in which the court reversed a trial judge's ruling limiting inspection of police records produced in discovery to those materials which were made part of an open court file because "this conflicts with the express provisions of the Public Records Act." Cf., Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988), in which the Court noted that where pretrial discovery material developed for the prosecution of a criminal case had reached the status of a public record under Ch. 119, F.S., the material was subject to public inspection as required by that statute in the absence of a court order finding that release of the material would jeopardize the defendant's right to a fair trial. And see Post-Newsweek Stations, Florida, Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (public's statutory right of access to pretrial discovery information in a criminal case must be balanced against a nonparty's constitutional right to privacy).
d. Florida Bar
"Given that The Florida Bar is 'an official arm of the court,' see R. Regulating Fla. Bar, Introduction, [the Florida Supreme] Court has previously rejected the Legislature's power to regulate which Florida Bar files were subject to public records law . . . ." The Florida Bar v. Committe, 916 So. 2d 741, 745 (Fla. 2005). See also, The Florida Bar, In re Advisory Opinion Concerning the Applicability of Ch. 119, Florida Statutes, 398 So. 2d 446, 448 (Fla. 1981) (Ch. 119, F.S., does not apply to unauthorized practice of law investigative files maintained by the Bar). Cf., Florida Board of Bar Examiners Re: Amendments to the Rules of the Supreme Court of Florida Relating to Admissions to the Bar, 676 So. 2d 372 (Fla. 1996) (no merit to argument that, under open government constitutional amendment found at Art. I, s. 24, Fla. Const., all records in possession of Board of Bar Examiners should be open for inspection by applicant and the public).
e. Judicial Qualifications Commission and judicial nominating commissions
The proceedings by or before the Judicial Qualifications Commission are confidential until formal charges against a justice or judge are filed by the Commission with the clerk of the Florida Supreme Court; upon a finding of probable cause and the filing of such formal charges with the clerk, the charges and all further proceedings before the Commission are public. See, Art. V, s. 12(a)(4), Fla. Const; Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008 (Fla. 2003).
With regard to judicial nominating commissions, Art. V, s. 11(d), Fla. Const., provides that "[e]xcept for deliberations of the . . . commissions, the proceedings of the commissions and their records shall be open to the public." See, Inf. Op. to Frost, November 4, 1987, concluding that correspondence between a member of a judicial nominating commission and persons wishing to obtain an application for a vacant seat on a District Court of Appeal is a public record subject to disclosure. Accord, Inf. Op. to Russell, August 2, 1991 (documents made or received by a judicial nominating commission in carrying out its duties are open to inspection).
However, records pertaining to voting, including vote sheets, ballots, and ballot tally sheets "are clearly part of the deliberation process" and, therefore, are not subject to public disclosure. The Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185, 192 (Fla. 1st DCA 2002). In addition, personal notes of individual commission members made during the deliberation process are not subject to disclosure because they are mere "precursors" of governmental records, and thus fall outside the definition of "public record." Id., citing to Shevin v. Byron, Harless, Schaffer, Reid and Associates Inc., 379 So. 2d 633 (Fla. 1980).
f. Jury records
(1) Grand jury
Proceedings before a grand jury are secret; therefore, records prepared for use of the grand jury during the regular performance of its duties are not subject to s. 119.07(1), F.S. See, Buchanan v. Miami Herald Publishing Company, 206 So. 2d 465 (Fla. 3d DCA 1968), modified, 230 So. 2d 9 (Fla. 1969) (grand jury proceedings are "absolutely privileged"); and In re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988), affirming a trial court order barring public disclosure of motions filed in accordance with s. 905.28, F.S., to repress or expunge stemming from a grand jury presentment not accompanied by a true bill or indictment. See also, AGO 90-48 (as an integral part of the grand jury proceeding to secure witnesses, grand jury subpoenas would fall under the "absolute privilege" of the grand jury and not be subject to disclosure under Ch. 119, F.S.).
Thus, a letter written by a city official to the grand jury is not subject to public inspection. AGO 73-177. Nor are the names and addresses of the members of the grand jury subject to public disclosure under s. 119.07(1), F.S., because this information is privileged as part of the grand jury proceedings. Inf. Op. to Alexander, September 8, 1995. However, the clerk of court is not authorized to redact the name of a grand jury foreperson or the acting foreperson from an indictment after it has been made public. AGO 99-09.
It is important to emphasize, however, that the exemption from disclosure for grand jury records does not apply to those records which were prepared by a public agency independent of a grand jury investigation. In other words, public records which are made or received by an agency in the performance of its official duties do not become confidential simply because they are subsequently viewed by the grand jury as part of its investigation. As the court stated in In re Grand Jury Investigation, Spring Term 1988, 543 So. 2d 757, 759 (Fla. 2d DCA 1989):
Accordingly, it has been held that a state attorney and sheriff must provide public access to investigative records regarding a judge that were compiled independently of and prior to a grand jury's investigation of the judge. In re Grand Jury Investigation, Spring Term 1988, supra. See also, In re Subpoena To Testify Before Grand Jury, 864 F.2d 1559 (11th Cir. 1989) (trial court's authority to protect authority of grand jury process enabled court to prevent disclosure of materials prepared for grand jury proceedings; however, court not empowered to prohibit disclosure of documents assembled independent of grand jury proceedings).
There are a number of statutes which relate to secrecy of grand jury proceedings. See, ss. 905.24-905.28, F.S., and s. 905.395, F.S. (statewide grand jury). But see, Butterworth v. Smith, 110 S.Ct. 1376 (1990) (provisions of s. 905.27, F.S., which prohibit "a grand juror . . . reporter . . . or any other person" appearing before a grand jury from ever disclosing testimony before the grand jury except pursuant to a court order were unconstitutional insofar as they prohibit a grand jury witness from disclosing his own testimony after the term of the grand jury has ended).
(2) Trial jury
In Kever v. Gilliam, 886 So. 2d 263 (Fla. 1st DCA 2004), the appellate court ruled that the clerk of court was required to comply with appellant's public records request for names and addresses of trial court jurors empaneled in his trial. Accord, AGO 05-61 (statute requiring Department of Highway Safety and Motor Vehicles to provide driver license information to courts for purposes of establishing jury selection lists does not operate to exempt from public disclosure jurors' names and addresses appearing on a jury list compiled by the clerk of court). Cf., Sarasota Herald-Tribune v. State, 916 So. 2d 904, 909 (Fla. 2d DCA 2005) (while "[t]here are unquestionably times when it might be necessary for a trial judge to impose media restrictions on the publication of juror information, . . ." trial court order prohibiting news media from publishing names and addresses of prospective or seated jurors in the high profile murder trial constituted a prior restraint on speech).
g. Sunshine in Litigation Act
The Sunshine in Litigation Act, s. 69.081, F.S., provides, with limited exceptions, that no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard. See, Jones v. Goodyear Tire & Rubber Company, 871 So. 2d 899 (Fla. 3d DCA 2003), review denied, 886 So. 2d 227 (Fla. 2004) (jury finding in favor of mechanic who was injured by an exploding tire established that the tire was a "public hazard" for purposes of the Sunshine in Litigation Act; thus, reversal of pretrial confidentiality order was required). See also, State v. American Tobacco Company, No. CL 95-1466-AH (Fla. 15th Cir. Ct. July 28, 1997) (Sunshine in Litigation Act is constitutional).
Additionally, s. 69.081(8), F.S., provides that any portion of an agreement which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against an agency is void, contrary to public policy, and may not be enforced. Settlement records must be maintained in compliance with Ch. 119, F.S. See, Inf. Op. to Barry, June 24, 1998, citing to s. 69.081(8)(a), and stating that "a state agency may not enter into a settlement agreement or other contract which contains a provision authorizing the concealment of information relating to a disciplinary proceeding or other adverse employment decision from the remainder of a personnel file." However, this subsection does not apply to trade secrets protected under Ch. 688, F.S., proprietary confidential business information, or other information that is confidential under state or federal law. Section 69.081(8), F.S.
4. Legislature
The Public Records Act does not apply to the legislative branch. Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). In Locke, the Court ruled that the definition of "agency" in the Public Records Act does not include the Legislature or its members.
However, there is a constitutional right of access to legislative records provided in Art. I, s. 24, Fla. Const. Pursuant to this provision, "[e]very person has the right to inspect or copy any public record made or received in connection with the official business of any public body . . . ." The right of access specifically includes the legislative branch. Article I, s. 24(a), Fla. Const. The Legislature, however, may provide by general law for the exemption of records provided that such law must state with specificity the public necessity justifying the exemption and be no broader than necessary to accomplish the stated purpose of the law. Article I, s. 24(c), Fla. Const. Each house of the Legislature is authorized to adopt rules governing the enforcement of this section in relation to records of the legislative branch. Id. Any statutes providing limitations on access which were in effect on July 1, 1993, continue in force and apply to records of the legislative branch until repealed. Article I, s. 24(d), Fla. Const.
Section 11.0431(2), F.S., lists legislative records which are exempt from inspection and copying. The text of s. 11.0431, F.S., is set forth in Appendix F. See, Media General Operation, Inc. v. Feeney, 849 So. 2d 3, 6 (Fla. 1st DCA 2003), in which the court rejected the argument that records containing telephone numbers for calls made by legislative employees in connection with official business could be redacted because disclosure of the numbers could result in "unreasonable consequences to the persons called"; however, under the circumstances of the case, employees could redact those portions of the records reflecting personal calls.
There are several other statutory provisions which are applicable to legislative records. See, e.g., s. 11.26(1), F.S. (legislative employees are forbidden from revealing to anyone outside the area of their direct responsibility the contents or nature of any request for services made by any member of the Legislature except with the consent of the legislator making the request); and s. 15.07, F.S. (the journal of the executive session of the Senate shall be kept free from inspection or disclosure except upon order of the Senate itself or some court of competent jurisdiction).
5. Governor and Cabinet
The Governor and Cabinet have duties which derive from both the Constitution and the Legislature. Because of separation of powers principles, the legislatively created Public Records Act does not apply to records gathered in the course of carrying out a specific duty or function which has been assigned to the Governor and Cabinet by the Constitution rather than by statute. See, AGO 86-50, stating that materials collected by the Parole and Probation Commission pursuant to direction of the Governor and Cabinet for pardons or other forms of clemency authorized by Art IV. s. 8(a), Fla. Const., are not subject to Ch. 119, F.S.
The Public Records Act, however, does apply to the Governor and Cabinet when sitting in their capacity as a board created by the Legislature such as the Board of Trustees of the Internal Improvement Trust Fund. In such cases, the Governor and Cabinet are not exercising powers derived from the Constitution but are subject to the "dominion and control" of the Legislature.
In addition, Art. I, s. 24, Fla. Const., establishes a constitutional right of access by providing that "every person" shall have a right of access to public records of the executive branch and of "each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution" except as otherwise provided in this section or specifically made confidential in the Constitution.
6. Commissions created by the Constitution
A board or commission created by the Constitution is not subject to Ch. 119, F.S., inspection requirements when such board or commission is carrying out its constitutionally prescribed duties. See, AGO 86-50 (Ch. 119, F.S., is not applicable to materials gathered by the Parole and Probation Commission regarding an application for clemency since the clemency power is exclusively constitutional). Cf., Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (judicial nominating commissions are not subject to s. 286.011, F.S.), and AGO 77-65 (Ch. 120, F.S., is inapplicable to Constitution Revision Commission established by Art. XI, s. 2, Fla. Const., because the commission is authorized in that section to adopt its own rules of procedure).
Accordingly, the Florida Supreme Court has ruled that the Public Records Act does not apply to the clemency investigative files and reports produced by the Parole Commission on behalf of the Governor and Cabinet relating to the granting of clemency. Release of such materials is governed by the Rules of Executive Clemency adopted by the Governor and Cabinet, sitting as the clemency board. Parole Commission v. Lockett, 620 So. 2d 153 (Fla. 1993). Accord, Jennings v. State, 626 So. 2d 1324 (Fla. 1993).
It should be emphasized, however, that there is a difference between the status of a commission created by the Constitution which exercises constitutional duties and a commission whose creation is merely authorized by the Constitution and whose duties are established by law. While the former is not subject to the Public Records Act, it has been held that a commission performing duties assigned to it by the Legislature must comply with the open government laws. See, Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980), holding that the Parole Commission, which Art. IV, s. 8(c), Fla. Const., recognizes may be created by law, is subject to s. 286.011, F.S., in carrying out its statutory duties and responsibilities relating to parole.
Moreover, Art. I, s. 24, Fla. Const., provides a constitutional right of access for public records of each branch of government, and "each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution." The only exceptions to the right of access are those records exempted pursuant to s. 24 or specifically made confidential by the Constitution. Article I, s. 24(a), Fla. Const. See, King v. State, 840 So. 2d 1047 (Fla. 2003) (clemency records exempt pursuant to s. 14.28, F.S., providing that records made or received by any state entity pursuant to a Board of Executive Clemency investigation are not subject to public disclosure).
What agencies are subject to the Public Records Act?
Section 119.011(2), F.S., defines "agency" to include:
- 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.
In addition, Art. I, s. 24, Fla. Const., establishes a constitutional right of access to "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 those records exempted pursuant to this section or specifically made confidential by this Constitution." The right of access includes the legislative, executive, and judicial branches of government; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or by the Constitution.
1. Advisory boards
The definition of "agency" for purposes of Ch. 119, F.S., is not limited to governmental entities. A "public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency" is also subject to the requirements of the Public Records Act. See also, Art. I, s. 24(a), Fla. Const., providing that the constitutional right of access to public records extends to "any public body, officer, or employee of the state, or persons acting on their behalf . . . ." (e.s.)
Thus, the Attorney General's Office has concluded that the records of an employee advisory committee, established pursuant to special law to make recommendations to a public hospital authority, are subject to Ch. 119, F.S., and Art. I, s. 24(a), Fla. Const. AGO 96-32. And see Inf. Op. to Nicoletti, November 18, 1987, stating that the Loxahatchee Council of Governments, Inc., formed by eleven public agencies to study and make recommendations on local governmental issues was an "agency" for purposes of Ch. 119, F.S. Cf., Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) (advisory committees subject to Sunshine Law).
2. Private organizations
A more complex question is posed when a private corporation or entity, not otherwise connected with government, provides services for a governmental body. The term "agency" as used in the Public Records Act includes private entities "acting on behalf of any public agency." Section 119.011(2), F.S.
The Florida Supreme Court has stated that this broad definition of "agency" ensures that a public agency cannot avoid disclosure by contractually delegating to a private entity that which would otherwise be an agency responsibility. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). Cf., Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229n.4 (Fla. 3d DCA 1998) (private company operating state university bookstores is an "agency" as defined in s. 119.011(2), F.S., "[n]otwithstanding the language in its contract with the universities that purports to deny any agency relationship").
a. Receipt of public funds by private entity not dispositive
There is no single factor which is controlling on the question of when a private corporation becomes subject to the Public Records Act. For example, a private corporation does not act "on behalf of" a public agency merely by entering into a contract to provide professional services to the agency. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra. Accord, Parsons & Whittemore, Inc. v. Metropolitan Dade County, 429 So. 2d 343 (Fla. 3d DCA 1983). And see Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970 (Fla. 2d DCA 2002) (fact that private development is located on land the developer leased from a governmental agency does not transform the leases between the developer and other private entities into public records).
Similarly, the receipt of public funds, standing alone, is not dispositive of the organization's status for purposes of Ch. 119, F.S. See, Sarasota Herald-Tribune Company v. Community Health Corporation, Inc., 582 So. 2d 730 (Fla. 2d DCA 1991), in which the court noted that the mere provision of public funds to the private organization is not an important factor in this analysis, although the provision of a substantial share of the capitalization of the organization is important; and Times Publishing Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct. November 5, 1999) (attorneys retained by individual county commissioners in a criminal matter were not "acting on behalf of" a public agency so as to become subject to the Public Records Act, even though the county commission subsequently voted to pay the legal expenses in accordance with a county policy providing for reimbursement of legal expenses to individual county officers who successfully defend criminal charges filed against them arising out of the performance of their official duties). And see Inf. Op. to Cowin, November 14, 1997 (fact that nonprofit medical center is built on property owned by the city would not in and of itself be determinative of whether the medical center's meetings and records are subject to open government requirements).
b. "Totality of factors" test
Recognizing that "the statute provides no clear criteria for determining when a private entity is 'acting on behalf of' a public agency," the Supreme Court adopted a "totality of factors" approach to use as a guide for evaluating whether a private entity is subject to Ch. 119, F.S. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra at 1031. Accord, New York Times Company v. PHH Mental Health Services, Inc., 616 So. 2d 27 (Fla. 1993) (private entities should look to the factors announced in Schwab to determine their possible agency status under Ch. 119). Cf., Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373, 381 (Fla. 1999), noting that the "totality of factors" test presents a "mixed question of fact and law"; thus, the appellate court "correctly reviewed the legal effect of the undisputed facts in this case." And see Wells v. Aramark Food Service Corporation, 888 So. 2d 134 (Fla. 4th DCA 2004) (trial judge should have applied totality of factors analysis rather than denying petition for writ of mandamus seeking to require Aramark to provide a copy of the food service contract between it and the Department of Corrections).
The factors listed by the Supreme Court in Schwab include the following:
- 1) the level of public funding;
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;
9) for whose benefit the private entity is functioning.
In explaining the totality test, the Court cited to several earlier district court opinions. For example, the Fourth District held that a private nonprofit volunteer fire department, which had been given stewardship over firefighting, which conducted its activities on county-owned property, and which was funded in part by public money, was an agency and its membership files, minutes of its meetings and charitable activities were subject to disclosure. Schwartzman v. Merritt Island Volunteer Fire Department, 352 So. 2d 1230 (Fla. 4th DCA 1977), cert. denied, 358 So. 2d 132 (Fla. 1978). And see Fox v. News-Press Publishing Company, Inc., 545 So. 2d 941 (Fla. 2d DCA 1989) (towing company under contract to remove motor vehicles from public streets is performing a governmental function and is subject to Ch. 119). Compare, Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 927 So. 2d 961 (Fla. 5th DCA 2006), in which the Fifth District applied the totality test and determined that a private corporation that purchased a hospital it had previously leased from a public hospital authority was not "acting on behalf of" a public agency and therefore was not subject to the Public Records Act or the Sunshine Law.
Thus, the application of the totality of factors test will often require an analysis of the statutes, ordinances or charter provisions which establish the function to be performed by the private entity as well as the contract, lease or other document between the governmental entity and the private organization.
For example, in AGO 92-37, following a review of the Articles of Incorporation and other materials relating to the establishment and functions of the Tampa Bay Performing Arts Center, Inc., the Attorney General's Office concluded that the center was an "agency" subject to the Public Records Act. It was noted that the center, which was governed by a board of trustees composed of a number of city and county officials or appointees of the Mayor of Tampa, utilized city property in carrying out its goals to benefit the public and performed a governmental function. See also, AGO 97-27 (documents created or received by the Florida International Museum after the date of its purchase/lease/option agreement with city subject to disclosure under Ch. 119, F.S.); and AGO 92-53 (John and Mable Ringling Museum of Art Foundation, Inc., subject to Public Records Act).
Similarly, in AGO 99-53, the Attorney General's Office advised that the Public Records Act applied to an architectural review committee of a homeowners' association that was required by county ordinance to review and approve applications for county building permits as a prerequisite to consideration by the county building department. Compare, AGO 87-44 (records of a private nonprofit corporation pertaining to a fund established for improvements to city parks were not public records since the corporation raised and disbursed only private funds and had not been delegated any governmental responsibilities or functions).
c. Private entities created pursuant to law or by public agencies
The fact that a private entity is incorporated as a nonprofit corporation is not dispositive as to its status under the Public Records Act. The issue is whether the entity is "acting on behalf of" an agency. The Attorney General's Office has issued numerous opinions advising that if a nonprofit entity is created by law, it is subject to Ch. 119 disclosure requirements. The following are some examples of entities created pursuant to law or ordinance which have been found to be subject to the Public Records Act:
- Pace Property Finance Authority, Inc., created as a Florida nonprofit corporation by Santa Rosa County as an instrumentality of the county to provide assistance in the funding and administration of certain governmental programs--AGO 94-34;
- Rural health networks, established as nonprofit legal entities organized to plan and deliver health care services on a cooperative basis pursuant to s. 381.0406, F.S.--Inf. Op. to Ellis, March 4, 1994;
- South Florida Fair and Palm Beach County Expositions, Inc., created pursuant to Ch. 616, F.S.--AGO 95-17.
d. Private entities providing services in place of public agencies
As stated previously, the mere fact that a private entity is under contract with, or receiving funds from, a public agency is not sufficient, standing alone, to bring that agency within the scope of the Public Records Act. See, Stanfield v. Salvation Army, 695 So. 2d 501, 503 (Fla. 5th DCA 1997) (contract between Salvation Army and county to provide services does not in and of itself subject the organization to Ch. 119 disclosure requirements). And see Inf. Op. to Michelson, January 27, 1992, concluding that a telephone company supplying cellular phone services to city officials for city business was not an "agency" since the company was not created by the city, did not perform a city function, and did not receive city funding except in payment for services rendered.
However, there is a difference between a party contracting with a public agency to provide services to the agency and a contracting party which provides services in place of the public body. News-Journal Corporation v. Memorial Hospital-West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999). Stated another way, business records of entities which merely provide services for an agency to use (such as legal professional services, for example) are probably not subject to the open government laws. Id. 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 do apply. Id.
Thus, in Stanfield v. Salvation Army, 695 So. 2d 501, 502-503 (Fla. 5th DCA 1997), the court ruled that the Salvation Army was subject to the Public Records Act when providing misdemeanor probation services pursuant to a contract with Marion County. See also, Putnam County Humane Society, Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th DCA 1999) (where county humane society assumed the governmental function to investigate acts of animal abuse pursuant to statutory authority, the records created and maintained in connection with this function were governed by the Public Records Act). And see Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302, 307 (Fla. 3d DCA 2001) (a consortium of private businesses created to manage a massive renovation of an airport was an "agency" for purposes of the Public Records Act because it was created for and had no purpose other than to work on the airport contract; "when a private entity undertakes to provide a service otherwise provided by the government, the entity is bound by the Act, as the government would be").
Similarly, a private company under contract with a sheriff to provide medical services for inmates at the county jail must release its records relating to a settlement agreement with an inmate. Since these records would normally be subject to the Public Records Act if in the possession of the public agency, they are likewise covered by that law even though in the possession of the private corporation. Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999).
More recently, in Multimedia Holdings Corporation Inc. v. CRSPE, Inc., No. 03-CA-3474-G (Fla. 20th Cir. Ct. December 3, 2003), the circuit court required a consulting firm to disclose its time sheets and internal billing records generated pursuant to a subcontract with another firm (CRSPE) which had entered into a contract with a town to prepare a traffic study required by the Department of Transportation (DOT). The court rejected the subcontractor's argument that the Public Records Act did not apply to it because it was a subcontractor, not the contractor. The court found that the study was prepared and submitted jointly by both consultants; both firms had acted in place of the Town in performing the tasks required by DOT. "[T]he Public Records Act cannot be so easily circumvented simply by CRSPE delegating its responsibilities to yet another private entity," the court said.
The following are additional examples of entities performing functions for public agencies whose records were found to be subject to disclosure under the Public Records Act:
- Campus bookstore: Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) (private company operating a campus bookstore pursuant to a contract with a state university is the custodian of public records made or received by the store in connection with university business).
Corrections corporation: Times Publishing Company v. Corrections Corporation of America, No. 91-429 CA 01 (Fla.5th Cir. Ct. December 4, 1991), affirmed per curiam, 611 So. 2d 532 (Fla. 5th DCA 1993) (private corporation that operates and maintains county jail pursuant to contract with the county is "acting on behalf of" the county and must make available its records for the jail in accordance with Ch. 119). See also, Prison Health Services, Inc. v. Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999).
- Employment search firm: Shevin v. Byron, Harless, Schaffer, Reid and Associates, supra. Accord, AGO 92-80 (materials made or received by recruitment company in the course of its contract with a public agency to seek applicants and make recommendations to the board regarding the selection of an executive director, subject to Ch. 119)
The following are examples of businesses or organizations whose records were determined to be outside the scope of the Public Records Act:
- Architectural firm: News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992) (architectural firm under contract with a school board to provide architectural services associated with the construction of school facilities is not "acting on behalf of" the school board).
Private security force: Sipkema v. Reedy Creek Improvement District, No. CI96-114 (Fla. 9th Cir. Ct. May 29, 1996), per curiam affirmed, 697 So. 2d 880 (Fla. 5th DCA 1997), review dismissed, 699 So. 2d 1375 (Fla. 1997) (reports prepared by Walt Disney World's private security force regarding incidents on roads within the Disney property are not public records even though Disney contracted to provide some security services for a public entity, the Reedy Creek Improvement District).
- Soft drink company: Trepal v. State, 704 So. 2d 498 (Fla. 1997) (Coca-Cola Company is not required to allow a death-sentenced defendant convicted of poisoning victims with thallium-laced bottles of Coca-Cola to obtain access to records allegedly held by the company concerning lab testing requested by law enforcement agencies).
- Manufacturer of breath testing machine: State v. Spalding, 13 F.L.W Supp. 627 (Fla. 15th Cir. Ct. February 28, 2006) (company manufacturing machine utilized by county law enforcement officers to analyze the breath alcohol contents taken from defendants is not acting on behalf of a public agency).
e. Private company delegated authority to keep certain records
In Times Publishing Company v. City of St. Petersburg, 558 So. 2d 487, 494 (Fla. 2d DCA 1990), a private entity (the White Sox baseball organization) refused to allow access to draft lease documents and other records generated in connection with negotiations between the White Sox and the city for use of a municipal stadium. The court determined that both the White Sox and the city improperly attempted to circumvent the Public Records Act by agreeing to keep all negotiation documents confidential and in the custody of the White Sox. However, the plan to withhold the documents from public inspection failed. The court ruled that both the city and the White Sox had violated Ch. 119, F.S.
Similarly, in WFTV, Inc. v. School Board of Palm Beach County, No. CL 94-8549-AD (Fla. 15th Cir. Ct. March 29, 1995), affirmed per curiam, 675 So. 2d 945 (Fla. 4th DCA 1996), the court held that a school board which hired a marketing firm to conduct a survey, then reviewed and commented upon survey questionnaires designed by the firm but avoided taking possession of the documents, unlawfully refused a public records request for the documents and was liable for attorney's fees. The court noted that the school board "could have obtained the records from [the marketing research firm] and produced them to the petitioners, but it elected not to do so, choosing instead to try to avoid disclosure by noting that it did not have possession of the records and arguing that [the firm] was not acting on its behalf." See also, Wisner v. City of Tampa Police Department, 601 So. 2d 296, 298 (Fla. 2d DCA 1992) (city may not allow a private entity to maintain physical custody of public records [polygraph chart used in police internal affairs investigation] "to circumvent the public records chapter").
Thus, if a public agency has delegated its responsibility to maintain records necessary to perform its functions, such records will be deemed accessible to the public. AGO 98-54 (registration and disciplinary records stored in a computer database maintained by a national securities association which are used by a state agency in licensing and regulating securities dealers doing business in Florida are public records). See also, Harold v. Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996) (where a county hired a private company to be the construction manager on a renovation project and delegated to the company the responsibility of maintaining records necessary to show compliance with a "fairness in procurement ordinance," the company's records for this purpose were public records).
f. Other statutory provisions
(1) Legislative appropriation
Section 11.45(3)(e), F.S., states that all records of a nongovernmental agency, corporation, or person with respect to the receipt and expenditure of an appropriation made by the Legislature to that entity "shall be public records and shall be treated in the same manner as other public records are under general law." Cf., AGO 96-43 (Astronauts Memorial Foundation, a nonprofit corporation, is subject to the Sunshine Law when performing those duties funded under the General Appropriations Act).
(2) Public funds used for dues
Section 119.01(3), F.S., provides that if an agency spends public funds in payment of dues or membership contributions to a private entity, then the private entity's financial, business and membership records pertaining to the public agency are public records and subject to the provisions of s. 119.07, F.S.
(3) State contracts
Section 287.058(1)(c), F.S., requires, with limited exceptions, that every procurement for contracted services by a state agency be evidenced by a written agreement containing a provision allowing 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.
3. Judiciary
a. Public Records Act inapplicable to judicial records
Relying on separation of powers principles, the courts have consistently held that the judiciary is not an "agency" for purposes of Ch. 119, F.S. See, e.g., Times Publishing Company v. Ake, 660 So. 2d 255 (Fla. 1995) (the judiciary, as a coequal branch of government, is not an "agency" subject to supervision or control by another coequal branch of government) and Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). Cf., s. 119.0714(1), F.S., stating that "[n]othing in this chapter shall be construed to exempt from [s. 119.07(1), F.S.] a public record that was made a part of a court file and that is not specifically closed by order of court . . . ." (e.s.). And see, Tampa Television, Inc. v. Dugger, 559 So. 2d 397 (Fla. 1st DCA 1990) (Legislature has recognized the distinction between documents sealed under court order and those not so sealed, and has provided for disclosure of the latter only).
However, the Florida Supreme Court has expressly recognized that "both civil and criminal proceedings in Florida are public events" and that it will "adhere to the well established common law right of access to court proceedings and records." Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 116 (Fla. 1988). See also, Russell v. Miami Herald Publishing Co., 570 So. 2d 979, 982 (Fla. 2d DCA 1990), in which the court stated: "[W]e recognize that the press has a general right to access of judicial records."
Moreover, even though the judiciary is not an "agency" for purposes of Ch. 119, F.S., there is a constitutional right of access to judicial records established by Art. I, s. 24 of the Florida Constitution. This provision states that the public has a right of access to records in the judicial branch of government, except for those records exempted in the Constitution, records exempted by law in effect on July 1, 1993, records exempted pursuant to court rules in effect on November 3, 1992 [the date of adoption of the constitutional amendment], and records exempted by law in the future in accordance with the procedures specified in s. 24(c), Fla. Const. See, Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208, 209 (Fla. 1998), noting that under Art. I, s. 24, Fla. Const., "any person has the right to inspect court files unless those files are specifically exempted from public inspection."
b. Public access to judicial branch records, Fla. R. Jud. Admin. 2.420
(1) Scope of the rule
In accordance with the directive in Art. I, s. 24, Fla. Const., access to records of the judicial branch is governed by Florida Rule of Judicial Administration 2.420 (formerly 2.051), entitled "Public Access to Judicial Branch Records." The rule was initially adopted in 1992 and has been amended several times since then. See, In re Amendments to the Florida Rules of Judicial Administration--Public Access to Judicial Records, 608 So. 2d 472 (Fla. 1992); In re Amendments to Rule of Judicial Administration 2.051--Public Access to Judicial Records, 651 So. 2d 1185 (Fla. 1995); In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889 (Fla. 2002); In re Amendments to the Florida Rules of Judicial Administration – Reorganization of the Rules, 939 So. 2d 966 (Fla. 2006); and In re Amendments to Florida Rule of Judicial Admin. 2.420--Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007).
According to the Florida Supreme Court, rule 2.420 is "intended to reflect the judiciary's responsibility to perform both an administrative function and an adjudicatory function." In re Amendments to the Florida Rules of Judicial Administration--Public Access to Judicial Records, 608 So. 2d 472 (Fla. 1992). In its administrative role, the judiciary is a governmental entity expending public funds and employing government personnel. Thus, "records generated while courts are acting in an administrative capacity should be subject to the same standards that govern similar records of other branches of government." Id. at 472-473. See also, Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008, 1016 (Fla. 2003) (when an individual complains to a chief circuit judge about judicial misconduct involving sexual harassment or sexually inappropriate behavior by a judge, the records made or received by the chief judge "constitute 'judicial records' subject to public disclosure absent an applicable exemption").
"Records of the judicial branch" are defined to include "all records, regardless of physical form, characteristics, or means of transmission, made or received in connection with the transaction of official business by any judicial branch entity" and consist of "court records" and "administrative records." Fla. R. Jud. Admin. 2.420(b)(1).
The term "judicial branch" means "the judicial branch of government, which includes the state courts system, the clerk of court when acting as an arm of the court, The Florida Bar, the Florida Board of Bar Examiners, the Judicial Qualifications Commission, and all other entities established by or operating under the authority of the supreme court or the chief justice." Fla. R. Jud. Admin. 2.420(b)(2).
The Supreme Court, however, has delayed electronic access to the non-confidential court records until permanent procedures can be adopted which "would not be so onerous that [the Court's] approval of electronic exists only in theory" but would "protect privacy interests and guard against unintended consequences detrimental to the judicial process." Administrative Order of the Supreme Court 06-20, June 30, 2006.
The complete text of Fla. R. Jud. Admin. 2.420, is included as Appendix E to this Manual.
(2) Confidential judicial records
In the absence of exemption, judicial records are subject to disclosure. See, Tedesco v. State, 807 So. 2d 804 (Fla. 4th DCA 2002), noting that the files in criminal cases are included within the definition of "judicial records" contained in Florida Rule of Judicial Administration 2.420(b), and that there is no exemption in the rule which would preclude release of the progress docket or the clerk's minutes from a criminal case. Id. And see Friend v. Friend, 866 So. 2d 116, 117 (Fla. 3d DCA 2004) (denial of access to records in dissolution of marriage case "may not be based solely upon the wishes of the parties to the litigation").
Rule 2.420(c) contains a listing of the judicial branch records which are confidential. Examples include trial and appellate court memoranda, complaints alleging misconduct against judges and other court personnel until probable cause is established, periodic evaluations implemented solely to assist judges in improving their performance, information (other than names and qualifications) about persons seeking to serve as unpaid volunteers unless made public by the court based upon a showing of materiality or good cause, and copies of arrest and search warrants until executed or until law enforcement determines that execution cannot be made. Fla. R. Jud. Admin. 2.240(c)(1) through (6).
Although rule 2.420 contains specific exemptions from disclosure, as set forth above, subdivision (c)(8) of the rule provides a general exemption from disclosure for records deemed to be confidential by court rule, Florida Statutes, prior Florida case law, and by rules of the Judicial Qualifications Commission. Thus, an executed search warrant could be withheld from disclosure pursuant to the statutory exemption for active criminal investigative material even though subdivision (c)(6) of the rule exempts only unexecuted search warrants. Florida Publishing Company v. State, 706 So. 2d 54 (Fla. 1st DCA 1998), review dismissed, 717 So. 2d 531 (Fla. 1998). Accord, State v. Buenoano, 707 So. 2d 714, 718 (Fla. 1998) (documents that are exempt from public access under Ch. 119, F.S., are likewise exempt under rule 2.420). And see Fla. R. Jud. Admin. 2.420(c)(7) providing an exemption for "all records made confidential under the Florida and United States Constitutions and Florida and federal law."
Subdivision (c)(9) of rule 2.420 incorporates the holdings in Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988), and Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982) by "establishing that confidentiality [of court records] may be required to protect the rights of defendants, litigants, or third parties; to further the administration of justice; or to otherwise promote a compelling governmental interest." Commentary, In re Amendments to Rule of Judicial Administration 2.051.--Public Access to Judicial Records, 651 So. 2d 1185, 1191 (Fla. 1995).
The degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect these interests. Fla. R. Jud. Admin. 2.420(c)(9)(B). And see Smithwick v. Television 12 of Jacksonville, Inc., 730 So. 2d 795 (Fla. 1st DCA 1999) (trial court properly required defense counsel to return discovery documents once it realized that its initial order permitting removal of the documents from the court file had been entered in error because the requirements of rule 2.420 had not been met).
"The burden of proof . . . shall always be on the party seeking closure." Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988). "Our reasons for placing the burden on the party seeking closure and maintaining closure remains the same today as it did when we issued Barron in 1988; that is, the strong presumption of openness of court proceedings, and the fact that those challenging the closure order will generally have little or no knowledge of the specific grounds requiring closure." Amendments to the Florida Family Law Rules of Procedure, 853 So. 2d 303, 306 (Fla. 2003). Commentary, supra at 1191. See, In re: Guardianship of Cosio, 841 So. 2d 693, 694 (Fla. 2d DCA 2003), in which the court stated that "[a]ccess to court records may be restricted to protect the interests of litigants only after a showing that the following three-prong test has been met: (1) the measure limiting or denying access (closure or sealing of records or both) is necessary to prevent a serious and imminent threat to the administration of justice; (2) no less restrictive alternative measures are available which would mitigate the danger; and (3) the measure being considered will in fact achieve the court's protective purpose."
(3) Notice of closure of court records
In response to "highly serious concerns first identified by Florida news media reports about hidden cases and secret dockets," the Florida Supreme Court in In re: Amendments to Florida Rule of Judicial Administration 2.420 – Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007), adopted on an interim emergency basis amendments to rule 2.420 regarding the closure of noncriminal court records. "Court records" are defined to include "the contents of the court file, including the progress docket and other similar records generated to document activity in a case, transcripts filed with the clerk, documentary exhibits in the custody of the clerk, and electronic records, videotapes, or stenographic tapes or depositions or other proceedings filed with the clerk, and electronic records, videotapes, or stenographic tapes of court proceedings." Fla. R. Jud. Admin. 2.420(b)(1)(A).
Prior to the 2007 amendment to the rule, the courts had stated that unlike the closure of court proceedings, which has been held to require notice and hearing prior to closure, see Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982), "the closure of court records has not required prior notice." Commentary, In re Amendments to Rule of Judicial Administration 2.051.--Public Access to Judicial Records, 651 So. 2d 1185, 1191 (Fla. 1995). "Requiring prior notice of closure of a court record may be impractical and burdensome in emergency circumstances or when closure of a court record requiring confidentiality is requested during a judicial proceeding[;] [p]roviding reasonable notice to the public of the entry of a closure order and an opportunity to be heard on the closure issue adequately protects the competing interests of confidentiality and public access to judicial records." Id.
The former rule did "not preclude the giving of prior notice of closure of a court record, and the court may elect to give prior notice in appropriate cases." See also, WESH Television, Inc. v. Freeman, 691 So. 2d 532 (Fla. 5th DCA 1997) (once audio and videotapes in criminal case were turned over to the defendant during discovery, they were public records subject to disclosure under Ch. 119, F.S.; only after an evidentiary hearing with the media participating and in camera review of the tapes, may the court enter an order limiting access to the records based on constitutional considerations). And see, Media General Operations, Inc. v. State, 933 So. 2d 1199 (Fla. 2d DCA 2006) (news media entitled to notice of and opportunity to be heard on defendant's motion to seal discovery). The closure of records in criminal cases remains substantially unchanged by the revised rule.
Under the revised rule 2.420(d), however, requests to close circuit or county court records in noncriminal cases under Rule 2.420(c)(9) must be made in the form of a written motion captioned "Motion to Make Court Records Confidential" and must identify the particular court records to be made confidential and the basis for taking such action, including a signed certification by the party making the request that the motion is being made in good faith and is supported by a sound factual and legal basis. Fla. R. Jud. Admin. 2.420(d)(1). The records subject to the motion must be treated as confidential by the clerk pending the court's ruling on the motion; however, the case number, docket number or other number used by the clerk's office to identify the case file are not confidential. Id. Court records made confidential under the rule must be treated as confidential during any appellate proceedings. Fla. R. Jud. Admin. 2.420(d)(7).
The court must hold a public hearing on any contested sealing motion and may hold a hearing on an uncontested motion. Fla. R. Jud. Admin. 2.420(d)(2). Such hearing must be an open proceeding except that a party may request the court to conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A) of the rule. Id. The court may, in its discretion, require prior public notice of the hearing. Id. A sealing order issued by the court must state with specificity the grounds for the sealing and the findings of the court that justify the sealing. Fla. R. Jud. Admin. 2.420(d)(3). Notice of any order granting the motion, except as provided by law or court rule, must be given to the public as provided by the rule. Fla. R. Jud. Admin. 2.420(d)(4).
A nonparty may file a written motion to vacate a sealing order. Fla. R. Jud. Admin. 2.420(d)(5). The court must hold a hearing on any contested motion and may hold a hearing on uncontested motions; such hearing must be an open proceeding except that a party may request the court to conduct all or part of the hearing in camera to protect the interests set forth in subdivision (c)(9)(A) of the rule. Id. A court may impose sanctions on any party who files a sealing motion without a good faith basis and without a sound legal and factual basis. Fla. R. Jud. Admin. 2.420(d)(6).
(4) Procedures for accessing judicial branch records under rule 2.420
"Requests and responses to requests for access to records under this rule shall be made in a reasonable manner." Fla. R. Jud. Admin. 2.420(f). Requests must be in writing and directed to the custodian. Id. In a commentary to the decision incorporating the written request provision, the Court cautioned that the "writing requirement is not intended to disadvantage any person who may have difficulty writing a request; if any difficulty exists, the custodian should aid the requestor in reducing the request to writing." Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
A public records request "shall provide sufficient specificity to enable the custodian to identify the requested records. The reason for the request is not required to be disclosed." Fla. R. Jud. Admin. 2.420(f)(1).
The custodian "is required to provide access to or copies of records but is not required either to provide information from records or to create new records in response to a request." Commentary, In re Report of the Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002).
The custodian shall determine whether the requested records are subject to the rule, whether there are any exemptions, and the form in which the record is provided. Fla. R. Jud. Admin. 2.420(f)(2). If the request is denied, the custodian shall state in writing the basis for the denial. Id.
(5) Review of denial of access to judicial records
Expedited review of denials of access to records of the judicial branch shall be provided through an action for mandamus, or other appropriate appellate remedy. Fla. R. Jud. Admin. 2.420(e). See, Mathis v. State, 722 So. 2d 235, 236 (Fla. 2d DCA 1998) (petition for writ of mandamus "is the proper vehicle to seek review of the denial of access to judicial records"). See also, T.T. v. State, 689 So. 2d 1209, 1210 (Fla. 3d DCA 1997) (petition for writ of certiorari seeking to quash trial court order denying access to court records treated as a petition for writ of mandamus by appellate court); and Bostic v. State, 875 So. 2d 785 (Fla. 2d DCA 2004) (petition for certiorari review of trial court order denying petitioner's writ of mandamus seeking a copy of his arrest warrant treated as an appeal by district court). Cf., Lifecare International, Inc. v. Barad, 573 So. 2d 1044 (Fla. 3d DCA 1991) (a two-month delay in ruling on a motion to unseal a file constitutes a denial of access to the file for that period of time and is subject to expedited review by the appellate court).
Where a judge who has denied a request for access to records is the custodian, the action shall be filed in the appellate court having appellate jurisdiction to review the decisions of the judge denying access. Fla. R. Jud. Admin. 2.420(e)(1). Upon order issued by the appellate court, the judge denying access to records shall file a sealed copy of the requested records with the appellate court. Id. All other actions shall be filed in the circuit court where the denial of access occurred. Fla. R. Jud. Admin. 2.420(e)(2).
c. Discovery material
The Florida Supreme Court has ruled that there is no First Amendment right of access to unfiled discovery materials. Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987) (discovery in criminal proceedings); and Miami Herald Publishing Company v. Gridley, 510 So. 2d 884 (Fla. 1987), cert. denied, 108 S.Ct. 1224 (1988) (civil discovery). But see, SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796, 798 (Fla. 4th DCA 2002), noting that even though there is no constitutional right of access to prefiled discovery materials, "it does not necessarily follow that there is a constitutional right to prevent access to discovery." (emphasis supplied by the court).
Even though unfiled discovery material is not accessible under the First Amendment, it may be open to inspection under Ch. 119, F.S., if the document is a public record which is otherwise subject to disclosure under that law. See, e.g., Tribune Company v. Public Records, 493 So. 2d 480, 485 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987), in which the court reversed a trial judge's ruling limiting inspection of police records produced in discovery to those materials which were made part of an open court file because "this conflicts with the express provisions of the Public Records Act." Cf., Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988), in which the Court noted that where pretrial discovery material developed for the prosecution of a criminal case had reached the status of a public record under Ch. 119, F.S., the material was subject to public inspection as required by that statute in the absence of a court order finding that release of the material would jeopardize the defendant's right to a fair trial. And see Post-Newsweek Stations, Florida, Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (public's statutory right of access to pretrial discovery information in a criminal case must be balanced against a nonparty's constitutional right to privacy).
d. Florida Bar
"Given that The Florida Bar is 'an official arm of the court,' see R. Regulating Fla. Bar, Introduction, [the Florida Supreme] Court has previously rejected the Legislature's power to regulate which Florida Bar files were subject to public records law . . . ." The Florida Bar v. Committe, 916 So. 2d 741, 745 (Fla. 2005). See also, The Florida Bar, In re Advisory Opinion Concerning the Applicability of Ch. 119, Florida Statutes, 398 So. 2d 446, 448 (Fla. 1981) (Ch. 119, F.S., does not apply to unauthorized practice of law investigative files maintained by the Bar). Cf., Florida Board of Bar Examiners Re: Amendments to the Rules of the Supreme Court of Florida Relating to Admissions to the Bar, 676 So. 2d 372 (Fla. 1996) (no merit to argument that, under open government constitutional amendment found at Art. I, s. 24, Fla. Const., all records in possession of Board of Bar Examiners should be open for inspection by applicant and the public).
e. Judicial Qualifications Commission and judicial nominating commissions
The proceedings by or before the Judicial Qualifications Commission are confidential until formal charges against a justice or judge are filed by the Commission with the clerk of the Florida Supreme Court; upon a finding of probable cause and the filing of such formal charges with the clerk, the charges and all further proceedings before the Commission are public. See, Art. V, s. 12(a)(4), Fla. Const; Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So. 2d 1008 (Fla. 2003).
With regard to judicial nominating commissions, Art. V, s. 11(d), Fla. Const., provides that "[e]xcept for deliberations of the . . . commissions, the proceedings of the commissions and their records shall be open to the public." See, Inf. Op. to Frost, November 4, 1987, concluding that correspondence between a member of a judicial nominating commission and persons wishing to obtain an application for a vacant seat on a District Court of Appeal is a public record subject to disclosure. Accord, Inf. Op. to Russell, August 2, 1991 (documents made or received by a judicial nominating commission in carrying out its duties are open to inspection).
However, records pertaining to voting, including vote sheets, ballots, and ballot tally sheets "are clearly part of the deliberation process" and, therefore, are not subject to public disclosure. The Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So. 2d 185, 192 (Fla. 1st DCA 2002). In addition, personal notes of individual commission members made during the deliberation process are not subject to disclosure because they are mere "precursors" of governmental records, and thus fall outside the definition of "public record." Id., citing to Shevin v. Byron, Harless, Schaffer, Reid and Associates Inc., 379 So. 2d 633 (Fla. 1980).
f. Jury records
(1) Grand jury
Proceedings before a grand jury are secret; therefore, records prepared for use of the grand jury during the regular performance of its duties are not subject to s. 119.07(1), F.S. See, Buchanan v. Miami Herald Publishing Company, 206 So. 2d 465 (Fla. 3d DCA 1968), modified, 230 So. 2d 9 (Fla. 1969) (grand jury proceedings are "absolutely privileged"); and In re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988), affirming a trial court order barring public disclosure of motions filed in accordance with s. 905.28, F.S., to repress or expunge stemming from a grand jury presentment not accompanied by a true bill or indictment. See also, AGO 90-48 (as an integral part of the grand jury proceeding to secure witnesses, grand jury subpoenas would fall under the "absolute privilege" of the grand jury and not be subject to disclosure under Ch. 119, F.S.).
Thus, a letter written by a city official to the grand jury is not subject to public inspection. AGO 73-177. Nor are the names and addresses of the members of the grand jury subject to public disclosure under s. 119.07(1), F.S., because this information is privileged as part of the grand jury proceedings. Inf. Op. to Alexander, September 8, 1995. However, the clerk of court is not authorized to redact the name of a grand jury foreperson or the acting foreperson from an indictment after it has been made public. AGO 99-09.
It is important to emphasize, however, that the exemption from disclosure for grand jury records does not apply to those records which were prepared by a public agency independent of a grand jury investigation. In other words, public records which are made or received by an agency in the performance of its official duties do not become confidential simply because they are subsequently viewed by the grand jury as part of its investigation. As the court stated in In re Grand Jury Investigation, Spring Term 1988, 543 So. 2d 757, 759 (Fla. 2d DCA 1989):
- Nor can we allow the grand jury to become a sanctuary for records which are otherwise accessible to the public. The mere fact that documents have been presented to a grand jury does not, in and of itself, cloak them in a permanent state of secrecy.
Accordingly, it has been held that a state attorney and sheriff must provide public access to investigative records regarding a judge that were compiled independently of and prior to a grand jury's investigation of the judge. In re Grand Jury Investigation, Spring Term 1988, supra. See also, In re Subpoena To Testify Before Grand Jury, 864 F.2d 1559 (11th Cir. 1989) (trial court's authority to protect authority of grand jury process enabled court to prevent disclosure of materials prepared for grand jury proceedings; however, court not empowered to prohibit disclosure of documents assembled independent of grand jury proceedings).
There are a number of statutes which relate to secrecy of grand jury proceedings. See, ss. 905.24-905.28, F.S., and s. 905.395, F.S. (statewide grand jury). But see, Butterworth v. Smith, 110 S.Ct. 1376 (1990) (provisions of s. 905.27, F.S., which prohibit "a grand juror . . . reporter . . . or any other person" appearing before a grand jury from ever disclosing testimony before the grand jury except pursuant to a court order were unconstitutional insofar as they prohibit a grand jury witness from disclosing his own testimony after the term of the grand jury has ended).
(2) Trial jury
In Kever v. Gilliam, 886 So. 2d 263 (Fla. 1st DCA 2004), the appellate court ruled that the clerk of court was required to comply with appellant's public records request for names and addresses of trial court jurors empaneled in his trial. Accord, AGO 05-61 (statute requiring Department of Highway Safety and Motor Vehicles to provide driver license information to courts for purposes of establishing jury selection lists does not operate to exempt from public disclosure jurors' names and addresses appearing on a jury list compiled by the clerk of court). Cf., Sarasota Herald-Tribune v. State, 916 So. 2d 904, 909 (Fla. 2d DCA 2005) (while "[t]here are unquestionably times when it might be necessary for a trial judge to impose media restrictions on the publication of juror information, . . ." trial court order prohibiting news media from publishing names and addresses of prospective or seated jurors in the high profile murder trial constituted a prior restraint on speech).
g. Sunshine in Litigation Act
The Sunshine in Litigation Act, s. 69.081, F.S., provides, with limited exceptions, that no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or which has the purpose or effect of concealing any information which may be useful to members of the public in protecting themselves from injury which may result from a public hazard. See, Jones v. Goodyear Tire & Rubber Company, 871 So. 2d 899 (Fla. 3d DCA 2003), review denied, 886 So. 2d 227 (Fla. 2004) (jury finding in favor of mechanic who was injured by an exploding tire established that the tire was a "public hazard" for purposes of the Sunshine in Litigation Act; thus, reversal of pretrial confidentiality order was required). See also, State v. American Tobacco Company, No. CL 95-1466-AH (Fla. 15th Cir. Ct. July 28, 1997) (Sunshine in Litigation Act is constitutional).
Additionally, s. 69.081(8), F.S., provides that any portion of an agreement which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against an agency is void, contrary to public policy, and may not be enforced. Settlement records must be maintained in compliance with Ch. 119, F.S. See, Inf. Op. to Barry, June 24, 1998, citing to s. 69.081(8)(a), and stating that "a state agency may not enter into a settlement agreement or other contract which contains a provision authorizing the concealment of information relating to a disciplinary proceeding or other adverse employment decision from the remainder of a personnel file." However, this subsection does not apply to trade secrets protected under Ch. 688, F.S., proprietary confidential business information, or other information that is confidential under state or federal law. Section 69.081(8), F.S.
4. Legislature
The Public Records Act does not apply to the legislative branch. Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992). In Locke, the Court ruled that the definition of "agency" in the Public Records Act does not include the Legislature or its members.
However, there is a constitutional right of access to legislative records provided in Art. I, s. 24, Fla. Const. Pursuant to this provision, "[e]very person has the right to inspect or copy any public record made or received in connection with the official business of any public body . . . ." The right of access specifically includes the legislative branch. Article I, s. 24(a), Fla. Const. The Legislature, however, may provide by general law for the exemption of records provided that such law must state with specificity the public necessity justifying the exemption and be no broader than necessary to accomplish the stated purpose of the law. Article I, s. 24(c), Fla. Const. Each house of the Legislature is authorized to adopt rules governing the enforcement of this section in relation to records of the legislative branch. Id. Any statutes providing limitations on access which were in effect on July 1, 1993, continue in force and apply to records of the legislative branch until repealed. Article I, s. 24(d), Fla. Const.
Section 11.0431(2), F.S., lists legislative records which are exempt from inspection and copying. The text of s. 11.0431, F.S., is set forth in Appendix F. See, Media General Operation, Inc. v. Feeney, 849 So. 2d 3, 6 (Fla. 1st DCA 2003), in which the court rejected the argument that records containing telephone numbers for calls made by legislative employees in connection with official business could be redacted because disclosure of the numbers could result in "unreasonable consequences to the persons called"; however, under the circumstances of the case, employees could redact those portions of the records reflecting personal calls.
There are several other statutory provisions which are applicable to legislative records. See, e.g., s. 11.26(1), F.S. (legislative employees are forbidden from revealing to anyone outside the area of their direct responsibility the contents or nature of any request for services made by any member of the Legislature except with the consent of the legislator making the request); and s. 15.07, F.S. (the journal of the executive session of the Senate shall be kept free from inspection or disclosure except upon order of the Senate itself or some court of competent jurisdiction).
5. Governor and Cabinet
The Governor and Cabinet have duties which derive from both the Constitution and the Legislature. Because of separation of powers principles, the legislatively created Public Records Act does not apply to records gathered in the course of carrying out a specific duty or function which has been assigned to the Governor and Cabinet by the Constitution rather than by statute. See, AGO 86-50, stating that materials collected by the Parole and Probation Commission pursuant to direction of the Governor and Cabinet for pardons or other forms of clemency authorized by Art IV. s. 8(a), Fla. Const., are not subject to Ch. 119, F.S.
The Public Records Act, however, does apply to the Governor and Cabinet when sitting in their capacity as a board created by the Legislature such as the Board of Trustees of the Internal Improvement Trust Fund. In such cases, the Governor and Cabinet are not exercising powers derived from the Constitution but are subject to the "dominion and control" of the Legislature.
In addition, Art. I, s. 24, Fla. Const., establishes a constitutional right of access by providing that "every person" shall have a right of access to public records of the executive branch and of "each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution" except as otherwise provided in this section or specifically made confidential in the Constitution.
6. Commissions created by the Constitution
A board or commission created by the Constitution is not subject to Ch. 119, F.S., inspection requirements when such board or commission is carrying out its constitutionally prescribed duties. See, AGO 86-50 (Ch. 119, F.S., is not applicable to materials gathered by the Parole and Probation Commission regarding an application for clemency since the clemency power is exclusively constitutional). Cf., Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (judicial nominating commissions are not subject to s. 286.011, F.S.), and AGO 77-65 (Ch. 120, F.S., is inapplicable to Constitution Revision Commission established by Art. XI, s. 2, Fla. Const., because the commission is authorized in that section to adopt its own rules of procedure).
Accordingly, the Florida Supreme Court has ruled that the Public Records Act does not apply to the clemency investigative files and reports produced by the Parole Commission on behalf of the Governor and Cabinet relating to the granting of clemency. Release of such materials is governed by the Rules of Executive Clemency adopted by the Governor and Cabinet, sitting as the clemency board. Parole Commission v. Lockett, 620 So. 2d 153 (Fla. 1993). Accord, Jennings v. State, 626 So. 2d 1324 (Fla. 1993).
It should be emphasized, however, that there is a difference between the status of a commission created by the Constitution which exercises constitutional duties and a commission whose creation is merely authorized by the Constitution and whose duties are established by law. While the former is not subject to the Public Records Act, it has been held that a commission performing duties assigned to it by the Legislature must comply with the open government laws. See, Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980), holding that the Parole Commission, which Art. IV, s. 8(c), Fla. Const., recognizes may be created by law, is subject to s. 286.011, F.S., in carrying out its statutory duties and responsibilities relating to parole.
Moreover, Art. I, s. 24, Fla. Const., provides a constitutional right of access for public records of each branch of government, and "each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution." The only exceptions to the right of access are those records exempted pursuant to s. 24 or specifically made confidential by the Constitution. Article I, s. 24(a), Fla. Const. See, King v. State, 840 So. 2d 1047 (Fla. 2003) (clemency records exempt pursuant to s. 14.28, F.S., providing that records made or received by any state entity pursuant to a Board of Executive Clemency investigation are not subject to public disclosure).