By Lance O. Leider, J.D., The Health Law Firm
Citizens of the state of Florida enjoy broad access to the public records created by state agencies. Those records range from information on state contracts to certain police records to information on state licensees. Almost all records created by or held by state agencies on you are considered public records with certain limited exceptions.
Access to public records is guaranteed by both Article I, Section 24, of the Florida Constitution and Chapter 119, Florida Statutes. Those laws state that every person has the right to access any public record made or received in connection with the official business of any public body, officer or employee of the state of Florida, subject to certain specific exceptions.
What to do if Your Records Request is Refused.
Public records requests can be refused for many reasons. The most common reason is a statutory exemption or destruction of the records due to retention policies.
If you have requested records that the custodial agency is refusing on exemption grounds, you have a right to know exactly what Florida Administrative Code Rule or Statute the agency is relying on. You can then challenge the exemption if you believe the agency is not entitled to rely on it.
If you have requested records that the custodial agency has stated were destroyed, you have a right to a copy of the proof of destruction documentation. Rule 1B-24.003(9)(d), Florida Administrative Code, and Florida General Records Schedule GS1-SL provide for records retention schedules and the right to the information pertaining to the disposition of records.
Many agency records are kept in both hard copy and electronic format. It is crucial to check that the disposition of records form states how both types of information were disposed of.
It is the experience of this firm that many times the hard copies of the records are destroyed by the agency, but the electronic copies are maintained in its systems. This can lead to an undisclosed “shadow file” being maintained. This is especially dangerous with records such as Department of Health (DOH) disciplinary files.
In the case of the DOH, it maintains electronic records of discipline that it freely provides to other agencies (even those outside of the state). However, when a licensee requests copies of his or her records, the DOH tells him or her that they have been destroyed. While the paper records may have been destroyed, the electronic ones are freely accessible and disclosable.
If you believe that a state agency has electronic records you have a right to view, speak with an attorney to facilitate a supervised inspection of the records system. This is your right under Chapter 119, Florida Statutes, and the Florida Constitution.
Enforcing Your Right to Inspect and Copy Public Records.
If the agency from which you are requesting records refuses to provide them to you or otherwise permit you to inspect or photograph them in person, you have the right to seek enforcement in court.
In order to do this, you will be required to file a Petition for Writ of Mandamus in the appropriate circuit court. This petition is used to force a public officer to perform the duties of his or her office. Because public officers and officials are required by law to permit the inspection, copying and photographing of all non-exempt public records, a court can force them to comply with your request by issuing a Writ of Mandamus.
Public Records Actions and Attorney’s Fees and Costs.
Many people are willing to accept an agency’s refusal to provide access to public records because they are afraid of the attorney’s fees and costs associated with enforcing their rights. However, the law in Florida strongly favors the public’s access to information and contains a robust attorney’s fees provision.
Section 119.12, Florida Statutes, provides that a person who is forced to bring a civil action (lawsuit) to enforce his or her right to public records is entitled to receive payment of his or her reasonable attorney’s fees and costs incurred in bringing the action from the agency.
Courts have further interpreted the public records laws to provide for an award of attorney’s fees even when the agency produces the records after suit but before being ordered to do so by a court. This means that you can still recover your attorney’s fees and costs even if the agency produces the records before the court forces it to do so.
Protect Your Personal and Professional Reputation.
There is a wide range of potentially damaging information maintained by state agencies. The first step in preventing any harm to your personal and professional reputation is to know what information is out there, in what forms, and know the possibilities of it being disseminated in harmful ways.
Navigating the many exemption and enforcement provisions of Florida’s public records laws can be daunting. It is important to consult with an attorney experienced in handling these matters. It is also important to remember that if you are unlawfully being denied access to public records, there is a strong chance that your enforcement costs will be awarded by a reviewing court.
Contact Attorneys Experienced in Enforcing Access to Public Records.
The attorneys of The Health Law Firm are experienced in representing citizens attempting to determine if a governmental agency has certain records it is keeping on them and obtaining copies or an inspection of such records. We have been successful in suing and obtaining access to “secret” records being kept by the Department of Health (DOH) on health professionals after their existence was denied by the agency for years. In such cases, the citizen who is required to sue the agency is entitled to payment of his or her attorney’s fees and costs by the agency.
To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Comments?
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About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.
“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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