Florida has an extremely broad public records law, which rightfully helps provide open access to documents of public concern. However, the unintended consequences of open and public records can spell trouble for companies looking to do business with government entities. A handful of bad actors have erroneously, and in some cases fraudulently, used the well-intentioned provisions of Chapter 119 of the Florida Statutes to line their own pockets and wreak havoc in cities across Florida.
Any company looking to do business with a government agency, whether it is at the city, county, or state level, should be cognizant of the implications of Chapter 119 of the Florida Statutes. Government entities across Florida are required to capture and maintain communications, records, and other documents that are subject to the public records laws.
For example, e-mail communications between municipal staff members and potential vendors would need to be cataloged by the municipality and would be subject to production and inspection by any member of the public (including potential competitors). With limited exceptions, public records can be requested by any member of the public and can even be requested anonymously. Such requests must be addressed within a reasonable amount of time and only reasonable limitations may be placed on responding to the requests.
With limited exceptions, public records can be requested by any member of the public and can even be requested anonymously.
Public records requests can have unintended consequences for smaller cities
In recent years, smaller cities have been inundated with public records requests that have stifled the municipality’s ability to provide traditional services to their residents. For example, the City of Gulfstream has fewer than 1,000 residents, fewer than 20 city employees (including the police force), and a total city budget of approximately $5.8 million.
Between 2013 and 2015, Gulfstream fielded more than 2,000 public records requests, over 1,100 in 2014 alone. One individual made more than 400 requests in 2013 and 2014, and one company made more than 500 requests in 2014.
Since October 2013, Gulfstream has been sued for alleged violations of the public records law more than 42 times. The town spent more than 4,000 staff hours responding to the requests and had to budget over $1 million dollars for legal fees.
The increased cost in order to respond to the requests and defend against the lawsuits caused the town to cut its hurricane reserve fund and raise its millage rate by 40%.
Public records request affect companies too
For companies looking to do business with a government entity, the Florida’s public records law can cause headaches. Whether a vendor or potential vendor’s documents fall within the broad net of public records requests is often a factual question. Government contractors are held to the public records requirements both when they enter into a contract for services with a public agency and act on behalf of the public agency.
What government contractors are required to do
As of July 1, 2016, government contracts are required to have specific language included in its terms that expressly require conformance with public records requirements. Additionally, the government contractor must keep and maintain documents as public records for the life of the contract. Upon full performance or termination of the contract, the contractor has the option of continuing maintenance or turning over all public documents to the government entity. If the company chooses to turn the documents over to the government entity, duplicate documents must be destroyed.
While there are certain corporate details and documents that are exempt from public disclosure and examination, there is a fine line that companies must walk when doing business with government entities. For example, trade secrets can be withheld from public records disclosures, but what exactly qualifies as a trade secret is again considered a factual determination.
Penalties for violations apply to both government entities and government contractors
Should a government entity violate the provisions of Chapter 119, Florida law allows fines, removal from office, and criminal charges depending on the severity of the violation.
Florida law also provides for attorney’s fees for the party that brings a civil action for noncompliance against an agency. In a recent court decision, the Florida Supreme Court held that a prevailing party is entitled to attorney’s fees if a trial court determines the government entity violated the public records law, even if they did so unknowingly and unwillingly. These same penalties can be levied against government contractors that do not properly conform to Chapter 119 requirements.
Contractors can grow their business, but must know legal implications
Companies choosing to contract with government entities have a tremendous opportunity to grow their business while providing services that better communities across Florida. That being said, government contractors should be knowledgeable of the potential implications of Florida’s broad public records law and the best ways to maintain compliance before starting work with government entities.
Joseph M. Goldstein is the Managing Partner of the Fort Lauderdale office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. Joseph also practices out of the Tallahassee office.
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