Contractor Private Records as Public Records—Part 1: A Giant Leap in the Right Direction
W. Robert Vezina, III and Megan S. Reynolds
Florida Transportation Builder (Fall 2022)
For years, Florida’s broad public records law has been a source of confusion for road builders. Court-created caselaw, Florida statutes, and government agency positions have fostered this confusion by implying or, in the case of public agencies, even outright declaring that the records of a contractor that contracts to perform services for a public entity like FDOT constitute public records subject to disclosure upon any person’s request. FDOT’s historical position is that all of a contractor’s records for a project are public records.
But a recent Florida appellate court decision indicates that this is not true. Whether a private contractor is subject to public records law has long depended on whether the contractor is “acting on behalf of” the public agency when the records are created. If the answer is yes, then the contractor is subject to public records law and (with certain exceptions) its private records are public records. The recent decision in the case Holifield v. Big Bend Care, Inc. strongly implies that a contractor performing road or bridge construction or maintenance work under a contract with FDOT or another public agency does not act on behalf of the public agency and therefore is not subject to public records law.
Still, because the question hasn’t yet been addressed in a public construction contract case, every contractor should take steps to protect its confidential information, including by availing itself of the various statutory exemptions to the disclosure required by public records law before the question even arises—that is, when the contractor first provides records to a public agency. Additionally, every contractor that receives a public records request must decide for itself whether to fight the request—potentially in court—or to acquiesce to providing its records to the public.
This Part 1 of this article provides an overview of Florida public records law and the public records exemptions most likely to apply to a road contractor. The article also discusses the recent Holifield case and what it means for road contractors. Part 2 of the article, which will appear in the next issue of Florida Transportation Builder, will identify situations in which the records of a contractor that is not subject to public records law still could become public records, such as in an audit by FDOT or another public agency. Part 2 also will detail steps to take to help protect those private records a contractor wants to keep confidential.
Overview of Florida Public Records Law
Florida public records law is perhaps the broadest public records law in the country. The right to inspect public records comes from both the Florida Constitution and the Florida Statutes. Not only are nearly all of a public agency’s records public records, but the records of private entities that contract with public agencies are public records as well if the private entity is “acting on behalf of” the public agency. As explained below, this phrase—acting on behalf of—is key to determining whether a contractor is subject to public records law.
The term public record is defined by statute and refers to essentially any information in possession of an agency, including (but not limited to) documents, email, spreadsheets, CPM schedules, calendars, text messages, financial records, phone records, social media posts, internet searches, recordings, photographs, and personnel records, whether in electronic or hard-copy format. Also defined by statute is the term agency, which includes state, county, district, and municipal governmental entities and officers and “any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.” (Note that some public records statutes use the term public agency, which does not include contractors.)
Under most circumstances, upon request from any person or entity, an agency must allow the requestor to inspect or provide the requestor with a hard or electronic copy of any public record. Various exemptions to this disclosure requirement are set forth in the Public Records Act and other statutes. These include temporary and permanent exemptions for:
- financial statements that an agency requires a prospective bidder to submit to prequalify for bidding for a road or other public works project (permanent exemption);
- financial statements a contractor submits to FDOT as part of an application for qualification (permanent exemption);
- records revealing the identity of a person who has requested or obtained a bid package, plan, or specifications pertaining to any project to be let by FDOT (temporary exemption);
- trade-secret information (permanent exemption); and
- sealed bids, proposals, and replies received by an agency in response to a competitive solicitation (temporary exemption).
Upon receipt of a public records request, an agency must promptly acknowledge the request. The agency then must provide all nonexempt requested records within “the limited reasonable time allowed the [records] custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.” When an agency contends an exemption applies to requested public records, the agency must redact that portion of a record for which the exemption is claimed and produce the remainder of the record to the requestor. Additionally, the agency must identify in writing, by statutory citation, every exemption the agency contends applies. Agencies are authorized to charge the requestor a fee to compensate for duplicated copies, electronic access, and the use of agency resources expended in identifying, reviewing, and providing records.
Any agency—which, again, can be a contractor—that fails to comply with public records law may be ordered to pay the attorneys’ fees and other costs of enforcement incurred by a requestor who files a civil lawsuit to obtain relief. Moreover, any person who willfully and knowingly violates public records law commits a crime, ranging from a first-degree misdemeanor to a third-degree felony.
How a Contractor’s Private Records Can Be Public Records
Merely contracting with or receiving funds from a public agency does not subject a contractor to public records law. Rather, under longstanding Florida law, a contractor to a public agency is subject to public records law if the contractor “is acting on behalf of the public agency.”
There are two ways a contractor can be “acting on behalf of a public agency” within the meaning of public records law. The first way is if the public agency delegates a statutorily authorized function or responsibility to the contractor. The second way is if the “totality of the factors” indicates a significant level of involvement by the public agency. When determining whether a contractor is subject to public records law, courts consider multiple factors (some of which were applied in the recent court decision) that are addressed below. Ultimately, the nature and scope of the services contracted for determines whether a contractor is acting on behalf of the public agency within the meaning of public records law.
In 2013, the Florida Legislature included the “acting on behalf of” standard in section 119.0701, Florida Statutes, which specifically addresses public records requests for contractor records. Section 119.0701 defines contractor as “an individual, partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency as provided under s. 119.011(2).” Unlike other public records laws, section 119.0701 uses the term public agency, which is defined as “a state, county, district, authority, or municipal officer, or department, division, board, bureau, commission, or other separate unit of government created or established by law” and which does not include contractors. Under the current version of section 119.0701, each public agency contract for services must include a provision that:
requires the contractor to comply with public records laws, specifically to:
1. Keep and maintain public records required by the public agency to perform the service.
2. Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.
3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the public agency.
4. Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the contractor or keep and maintain public records required by the public agency to perform the service. If the contractor transfers all public records to the public agency upon completion of the contract, the contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the contractor keeps and maintains public records upon completion of the contract, the contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency., 
After section 119.0701 was created, multiple scam lawsuits were filed against contractors that were alleged not to have met their public records obligations. Thanks to FTBA’s efforts in response to the lawsuits—which were bogus attempts to recover attorneys’ fees—the current version of section 119.0701 eases some of the burden on a contractor that is acting on behalf of a public agency. The current section 119.0701 requires all public records requests to be submitted to the public agency, not the contractor. Only if the public agency doesn’t possess the requested records does it becomes the contractor’s responsibility to provide the records. The current section 119.0701 also gives a contractor the chance to cure any failure to meet its public records obligations so the contractor can avoid paying the requestor’s attorneys’ fees if a court judgment is entered against the contractor.
Importantly, although some public agencies appear to believe otherwise, section 119.0701 doesn’t make all contractors subject to public records law and doesn’t change how to determine whether a contractor is “acting on behalf of” a public agency. Florida law was and still is that a contractor is acting on behalf of a public agency (and consequently subject to public records law) if (1) the public agency has delegated to the contractor a statutorily authorized agency function or responsibility or (2) the totality of the factors indicates a significant level of involvement by the public agency. Under the totality-of-the-factors test, the nonexclusive list of factors that should be considered includes:
- the level of public funding;
- any commingling of funds;
- whether the activity was conducted on publicly owned property;
- whether the services contracted for are an integral part of the public agency’s chosen decision-making process;
- whether the private entity is performing a governmental function or a function the public agency otherwise would perform;
- the extent of the public agency’s involvement with, regulation of, or control over the private entity;
- whether the private entity was created by the public agency;
- whether the public agency has a substantial financial interest in the private entity; and
- for whose benefit the private entity is functioning.
The Recent Court Decision in Holifield
A recent decision in the court case Holifield v. Big Bend Cares, Inc. didn’t change public records law, but it should remove any doubt that a road contractor that performs construction or maintenance services under contract with FDOT or another public agency does not act on behalf of the public agency and thus is not subject to public records law.
In Holifield, a private, charitable corporation had a competitively procured contract with a Florida public agency under which the corporation—a contractor for public records purposes—provided health-related services to certain Big Bend-area residents, invoiced the public agency for certain services, and was reimbursed by the public agency for those services. Id. at 741. A well-known critic of the contractor sought records from the contractor and, when the contractor refused to provide the records on the ground that it was not subject to public records law, sued the contractor for allegedly violating that law. The trial court applied the totality-of-the-factors test and ruled that the contractor was not acting on behalf of the public agency and therefore was not subject to public records law. The appellate court agreed and affirmed the trial court’s ruling. The Florida Supreme Court refused to hear the matter, making the appellate court’s decision the final word on the issue for this particular contractor and this particular contract.
The appellate court’s reasoning is what matters for Florida road contractors. The appellate court explained that the contractor was not acting on behalf of the public agency and not subject to public records law as the totality-of-the-factors analysis showed:
- the public agency didn’t delegate any decision-making authority to the contractor,
- there was no evidence the public agency regulated or otherwise controlled the contractor’s professional activity or judgment,
- the contractor wasn’t created pursuant to any government action,
- all amounts paid the contractor by the public agency were paid in consideration for services already rendered, and
- the activities in question were conducted on property owned by the contractor (although the contractor received some city funding for construction of its facilities).
The appellate court also reiterated that merely contracting with a public agency is not an important factor in the analysis. Although the decision whether a contractor is acting on behalf of a public agency must be made on a case-by-case basis, the appellate court’s ruling that these factors established the contractor was not acting on behalf of the public agency is a very good ruling for road and bridge contractors.
The trial court’s order went into more detail and also noted the following factors—most or all of which would apply to a road and bridge contractor—weighed in the contractor’s favor:
- the contractor did not participate in the operation of any public agency;
- no public agency with which the contractor contracted held any position on the contractor’s board;
- no public employee was involved in the management or direction of the contractor’s corporate affairs;
- no public agency had any authority to direct the corporate management of the contractor or its day-to-day activities;
- the public agency monitored the contractor, but only as to the specific duties related to the applicable contracts;
- the contractor did not receive any form of income from government sources before any services are rendered;
- the contractor expended resources in performing the services required by the contract and then submitted an invoice to the public agency for reimbursement;
- following the public agency’s payment to the contractor, the funds were no longer government funds, but the contractor’s income;
- each of the contracts the contractor had with any public agency was subject to a competitive-bidding process, open for any qualified and interested organization;
- the contractor could seek reimbursement only for approved services based on the contract terms and did not have authority to modify the contract or deviate from its terms;
- the contractor was performing a function that a government agency could perform, but was not performing a function limited to a government agency; and
- there was no financial connection between the contractor and any public entity other than through arm’s-length contracts.
Unlike the appellate court’s decision, the trial court’s application of these factors is not binding on other courts. But, the trial court’s opinion is instructive as to what other factors might lead a court to the same conclusion for road and bridge contractors.
What does this mean for road and bridge contractors?
Although we still don’t have a definitive answer whether a contractor providing road or bridge construction or maintenance services to FDOT or another public agency is “acting on behalf of” the public agency and therefore subject to public records law, the Holifield decision should give road contractors substantial comfort. In the past, we’ve advised contractors to assume their private records are public (while hoping they aren’t). But this advice has changed slightly. Now, the prudent contractor still will take precautions to protect its private records should a court nonetheless conclude the contractor is subject to public records law, but also will rest easier knowing that this is unlikely to occur and that the contractor is very likely to prevail should litigation over the issue occur.
In short, a contractor that is “acting on behalf of a public agency” still is subject to public records law—meaning that the contractor’s private records are public records. But the recent Holifield decision indicates that a road and bridge contractor working for FDOT or another public agency does not act on behalf of FDOT or that public agency. As this question has not yet been answered in a public construction contract case, the door is not fully shut. So, in the meantime, the prudent contractor will act as if its private records are public records. Part 2 of this article will explain just how to do that.
 Art. I, § 24, Fla. Const.; § 119.07(1)(a), Fla. Stat. (2022).
 § 119.011(12), Fla. Stat.
 § 119.011(2), Fla. Stat. (emphasis added).
 Art. I, § 24, Fla. Const.; § 119.07(1)(a), Fla. Stat.
 Many FTBA members already are familiar with two exemptions: one for security system plans (including emergency evacuation plans) and another for plans, blueprints, schematic drawings, and diagrams depicting the layout and structural elements of a building, bridge, or other structure owned or operated by a public agency. §§ 119.071(3)(a), 119.071(3)(b), Fla. Stat. FDOT frequently requires bidders to sign confidentiality agreements to obtain such plans during a procurement.
 § 119.071(1)(c), Fla. Stat.
 § 337.14(1), Fla. Stat.
 § 337.168(2), Fla. Stat. (exemption applies from two working days before the deadline for obtaining bid packages, plans, or specifications until the bid letting).
 §§ 119.0715(2), 815.045, Fla. Stat.
 § 119.071(1)(b), Fla. Stat. (exemption in place until the agency provides notice of an intended decision or until 30 days after opening the bids, proposals, or final replies, whichever is earlier; if the agency rejects all bids, proposals, or replies and concurrently provides notice of its intent to reissue the solicitation, in place until the agency provides notice of an intended decision concerning the reissued solicitation or until the agency withdraws the reissued solicitation, but not longer than 12 months).
 § 119.07(1)(c), Fla. Stat.
 Tribune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984).
 § 119.07(1)(d), Fla. Stat.
 § 119.07(1)(e), Fla. Stat.
 §§ 119.07(2)(c), ‑(4), Fla. Stat.
 §§ 119.12(1), ‑(4), Fla. Stat.
 § 119.10(2), Fla. Stat.
 News & Sun–Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, 596 So. 2d 1029, 1031, 1032 (Fla. 1992).
 Art. I, § 24, Fla. Const.; § 119.011(2), Fla. Stat.; e.g., Schwab, 596 So. 2d at 1031, 1033.
 See, e.g., Holifield v. Big Bend Cares, Inc., 326 So. 3d 739, 741 (Fla. 1st DCA 2021), rev. denied, No. SC21-1511, 2022 WL 898209 (Fla. Mar. 28, 2022).
 Op. Att’y Gen. Fla. 2014-06 (2014).
 As noted above, section 119.011(2) defines agency for purposes of public records law.
 § 119.0701(1)(a), Fla. Stat. (emphasis added).
 § 119.0701(1)(b), Fla. Stat.
 FDOT contractors will recall having to sign “no cost” supplemental agreements by which FDOT added the statutory terms to then-existing contracts.
 § 119.0701(2), Fla. Stat. (emphasis added).
 The contract also must contain the statement, “If the contractor has questions regarding the application of chapter 119, Florida Statutes, to the contractor’s duty to provide public records relating to this contract, contact the custodian of public records at (telephone number, e-mail address, and mailing address).” § 119.0701(2)(a), Fla. Stat.
 E.g., Gray v. Lutheran Social Servs. of NE. Fla., No. 2014-CA-4647, Final Order Denying Relief Under Public Records Act (Fla. 4th Cir. Ct. Dec. 1, 2014), aff’d, No. 1D14-5793 (Fla. 1st DCA Dec. 16, 2015); Fla. H.R. Comm. on Gov. Operations, CS for HB 273 (2016) Final Bill Analysis 5 (Mar. 10, 2016), https://www.myfloridahouse.gov/Sections/ Documents/loaddoc.aspx?FileName=h0273z2.GVOPS.DOCX&DocumentType=Analysis&BillNumber=0273&Session=2016.
 § 119.0701(3)(a), Fla. Stat.
 § 119.0701(4), Fla. Stat.
 Holifield, 326 So. 3d at 741–42.
 Id. at 741 n.2.
 Id. at 739.
 Id. at 740.
 Id. at 742.
 Holifield v. Big Bend Cares, Inc., No. SC21-1511, 2022 WL 898209 (Fla. Mar. 28, 2022) (declining to exercise jurisdiction).
 Holifield, 326 So. 3d at 742.
 Holifield v. Big Bend Cares, Inc., No. 2018-CA-329, Order Granting Resp./Def.’s Mot. for Summ. J. & Denying Mot. for Summ. J. by Pl. (Fla. 2d Cir. Ct. Aug. 20, 2019).