Are Your Private Records Public? Part 2
By W. Robert Vezina, III & Eduardo S. Lombard
Vezina, Lawrence & Piscitelli, P.A.
In our last article, Are Your Private Records Public? (Fall 2013), we discussed new Florida legislation that expands some contractor obligations to the government and the general public, potentially increasing job and overhead costs and perhaps making public some contractor documents normally considered private. Under the new law, if a contractor is acting on behalf of a government entity, or public agency, the contractor must:
maintain all records that ordinarily and necessarily would be required by the public agency to perform the service;
provide the public access to the records on the same terms and conditions that the public agency would provide, at a cost set forth by statute; and
properly maintain those records and transfer, at no cost, to the public agency all public records in the contractor’s possession on termination of the contract and destroy any duplicate records that are exempt or confidential.
We previously explained what factors are considered to determine whether the contractor is in fact “acting on behalf” of a government entity. Here, we discuss which particular records are covered by Florida’s Public Records Act and a contractor’s obligations to provide access to the public, assuming the contractor is acting on behalf of the government entity.
What Is a Public Record?
Under Florida’s public records law, the term “public records” is broadly defined to include “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”
This far reaching definition of “public records” obligates agencies, like FDOT, to provide public access to documents such as:
- Computer records, such as calendars, Excel documents and other databases, notes, Word documents, and all other electronically stored documents/data;
- Financial information;
- Telephone records and bills;
- Cellphone records and bills;
- Text messages and communications in media other than e-mail;
- Communications with attorneys;
- Legal bills; and
- Personnel records.
This list is not exhaustive, but it captures many of the usual records that a government entity must make available upon request. Generally speaking, if a document was created or received by the government entity in the course of its business, then the document is public – subject only to specific statutory exemptions. In Florida, “Government in the Sunshine” is more than a clever phrase as almost all documents possessed by a government entity are subject to public inspection.
The rub under the new law is the provision for public access to records of a “contractor” that “enters into a contract for services with a public agency and is acting on behalf of the public agency . . . .” So, if a particular document would have been kept by the public agency in performing the same service, then the document is a public record that must be maintained by the contractor, made available to the general public, and transferred to the agency at the end of the contract. What constitutes records that “ordinarily and necessarily would be required by the public agency to perform the service” will be answered in the courts or perhaps in further amendments to the Public Records Act. In the meantime, we believe the prudent contractor should assume that all project records are within the reach of the Act.
What Must a Contractor Do to Comply?
Contractors subject to the Act should have standard protocols and procedures in place to respond to requests for records, regardless of whether a request is made in person or in writing. First, a contractor should adopt a process that allows for it to promptly respond to public records requests. Second, the contractor must provide reasonable access to the records. Third, the contractor may charge only the copying fees provided for in the Act.
What is a “prompt” response? Although the Public Records Act does not provide a specific time limit for compliance with a public records request, the Florida Supreme Court has declared that the only permissible delay in providing access to records under the Act “is the limited reasonable time allowed the [records] custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.” If a records custodian contends that an exemption applies to all or a part of a public record, the custodian must provide the person seeking the records with the basis for the exemption, including the statutory citation for the exemption and the reasons (stated with particularity) for the conclusion that the record is exempt.
One such exemption includes trade secrets. A particular job cost document may or may not qualify as a trade secret depending on the circumstances. If a contractor contends that such a document is a trade secret, the contractor may find itself having to file a declaratory action to have a court formally declare the document as exempt. Or it may find itself as a defendant to an action by a member of the public to enforce a public records request. In the latter instance, the contractor likely would be a named defendant (along with FDOT, perhaps) and would be liable to pay the attorney’s fees and expenses of the requesting party if the court determined that (1) the requested documents were public records (e.g., records that “ordinarily and necessarily would be required by the public agency to perform the service”) and (2) the records were not exempt from disclosure under the Act (e.g., trade secret).
Timely compliance with public records requests is particularly important in light of the criminal and civil penalties included in the Act. Any person who knowingly and willfully violates the Act is guilty of a first degree misdemeanor. Additionally, a civil action to compel compliance may be filed by a person who has submitted a public records request. If through a civil action a court determines that a contractor wrongfully refused to allow inspection of a public record – whether by failing to provide access promptly or by denying access altogether – the court is required to assess attorney’s fees and costs against the contractor.
What is “access”? The right of access means the right to inspect and copy original, nonexempt records, not merely to receive copies of or extracts from a requested record. Thus, the public also has the right to see the original record as it is kept and where it is kept. Taken literally, this means that a person making the request must be allowed to view the contractor’s original public documents (e.g., job correspondence file) in the contractor’s place of business (e.g., division or home office). The public has a right to receive a copy after inspecting the original. Of course, the public can choose to simply receive a copy and forego the right to inspect the original. In any event, a public records custodian may not impose a condition of inspection that restricts or circumvents the public’s right of access.
What fees are allowed? Generally, records custodians are authorized to charge up to 15 cents per one-sided copy for duplicated copies of not more than 14 inches by 8 1/2 inches, and no more than an additional 5 cents for each two-sided copy. Additionally, the custodian may charge the actual cost of duplication of the public record for all other copies.
If the nature or volume of public records requires extensive use of IT resources or extensive clerical assistance, the custodian may charge, in addition to the actual cost of duplication, a reasonable special service charge based on the cost incurred for the extensive use of IT resources or the labor cost of the personnel providing the service that is actually incurred by the custodian or attributable to the clerical assistance required, or both.
The courts have found that the Act’s provisions allowing for a fee are not money-making ventures, but rather a means to recoup actual costs. In some instances, the government entity will charge the hourly rate of the clerk used to retrieve voluminous records, but no markup on that hourly rate. The same would seem to apply to contractors.
What Must a Contractor Do to Maintain Records?
The Act requires that a custodian of public records keep the records where ordinarily used. Any records that are considered “vital, permanent, or archival” must be kept in a fireproof/waterproof location with noncombustible materials. But the records must remain arranged for easy access on request by the public.
The duration of retention depends on the records. Government entities are required to comply with the retention schedule published by the Florida Department of State. That 40-page schedule runs the gamut of State records. Most relevant is the “Project Files: Capital Improvement” category, which imposes a 10-year retention requirement running from the end of the capital improvement project. Susceptible records include, but are not limited to, correspondence, memoranda, drawings, construction and contract specifications, resolutions, narratives, budget revisions, survey information, change orders, and reports. Most importantly, electronic correspondence is deemed to include e-mail; instant messaging; text messaging; multimedia messaging (such as MMS); chat messaging; social networking (such as Facebook, Twitter, etc.); voice mail/voice messaging (whether in audio, voice-over-internet protocol, or other format); or any other electronic messaging technology or device (current or future).
As noted above, a contractor acting on behalf of FDOT must transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and must destroy any duplicate records that are exempt or confidential (including electronic records). Thus, if the documents are all transferred then there should be little concern about maintenance and retention after the contract is concluded. Some in the industry have posited that the requirement to turn over records is triggered only when the contract is involuntarily terminated as opposed to terminated through project completion. If this view is adopted by the State, then a contractor acting on behalf of FDOT would be required to comply with the Department of State’s retention policies because the project records would not be turned over to the public agency. Of course, either option increases costs of doing business.
In sum, if a contractor is acting on behalf of a public agency, the contractor is required to comply with the new requirements of the Public Records Act. While we await court opinions to define the reach of public access to project-related documents and enter the 2014 legislative session with the possibility of having the statute dialed back, contractors acting on behalf of a public agency should assume that all project records and all company documents relating to a project may be public records. Essentially, a contractor must operate as if all communications (including e-mails and texts) and other project records will be public and subject to inspection by anyone.
Moreover, a prudent contractor should adopt protocols and procedures to handle requests from the general public. Those protocols may vary from contractor to contractor depending on company size. A 10-person company would need different procedures than a 500-person company with multiple division and jobsite offices. Each contractor should seek out advice specifically tailored to its circumstances. Additionally, any contractor that receives a public records request and is unsure about the scope of its obligations should seek prompt advice of counsel.
Rob Vezina is the managing shareholder of Vezina, Lawrence & Piscitelli, P.A., Tallahassee and Ft. Lauderdale, practicing in the fields of construction and public contracts law. He received his law degree from Duke University and has for many years served as general counsel to the FTBA.
Ed Lombard is a VLP shareholder resident in the Tallahassee office, practicing construction law and complex commercial litigation with a primary focus on government contracting and procurement. He received his law degree from The Florida State University, where he served as Associate Editor of the Law Review.