By: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law
The following is a summary of a recent appellate case on an issue that may be relevant to those pursuing administrative hearings in health law cases or related cases:
Promenade D’Iberville v Sundy, 145 So. 3d. 980 (Fla. 1st DCA 2014)
After receiving a public records request from Promenade D’Iberville, LLC (Promenade), with whom the Jacksonville Electric Authority (JEA) was in active litigation in Mississippi, the JEA filed a motion for protective order in the Mississippi court to circumvent the request. The JEA eventually turned over the requested records, but only after two months had passed and Promenade was forced to file an action for the public records.
The appellate court framed the issue as whether the JEA had violated the public records law by withholding requested non-exempt public records. The court noted that, as a general rule, governmental entities in Florida are broadly responsible to make public records available to all who request them. The JEA did not argue that any statutory exemption excused its obligation to make the requested documents available. Rather, the JEA delayed making the records available pending a ruling on its Mississippi motion, even though the pending litigation was not grounds for a public records exemption. Thus, the appellate court concluded, the JEA violated the public records law by delaying Promenade’s access to non-exempt public records for legally insufficient reasons.
Moreover, the appellate court concluded that JEA’s delayed production of records did not “cure” its unjustified delay. Only justified delay is permissible, such as to determine whether such records exist or due to a relief that some or all of the requested records are exempt from disclosure. Unjustified delay violates Florida public records law. Where there is unjustified delay to the point of forcing a requester to file a law suit that, alone, is “tantamount to an unlawful refusal to provide public records in violation of the Act.”
The case summary above was originally published in the Administrative Law Section Newsletter, Vol, 34, No. 2 (Dec 2014), a publication of the Administrative Law Section of the Florida Bar.
Blog Editor’s Comments:
Florida has a very broad Public Records Act, codified in Chapter 119, Florida Statutes. It entitles Florida residents to obtain copies of most records kept by state agencies (with certain exceptions, of course).
If a state agency denies a person’s request improperly, that person may sue the agency. If successful, the person is awarded attorney’s fees and costs incurred in bringing the litigation.
Comments?
Do you think that governmental entities in Florida are responsible to make public records available to all who request them? Do you agree/disagree that Unjustified delay violates Florida public records law? Do you think a person should be able to sue state agency if their request is denied improperly? Please leave any thoughtful comments below.
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About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of 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.
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