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Why Design Professionals and Construction Contractors Should be Aware of Florida’s 2016 Revised Public Records Act

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By on Sep 1, 2016 in All Topics, Newsletters, Operations |

By Bo Sutton, Of Counsel, GrayRobinson, P.A. and Natalie Bunnell, Summer Associate, GrayRobinson, P.A.

Florida’s Public Records Act (“Act”) was recently revised to make prior amendments to the Act easier to comply with for Public Agencies, as well as those acting on their behalf. Its other purpose was to curb litigation and liability for attorneys’ fees from public information requests. For these reasons, those that may be subject to the Act should be aware of the recent amendment.

To better understand the recent amendment, a brief discussion of the Act is helpful. Florida’s Constitution and the Act require records made or received in connection with the transaction of official business be made available by a Public Agency for personal inspection and copying by any person. Historically, it has been the responsibility of each Public Agency to house and provide ongoing access to its public records. However, this could change a bit with the recent amendment. There are several important questions to address with regard to the recent amendment: first is there a Public Agency involved in the contractual chain; second, is a private entity acting on behalf of the Public Agency; and third, what does the contract say about ongoing responsibility for maintaining the public records?

First things first, what is a Public Agency? Florida considers a “Public Agency” to include a state, county, district, authority, municipal officer, department, division, board, bureau, commission, or other separate unit of government. However, because Public Agencies are permitted to hire “contractors” to provide services or to act on behalf of the Public Agency, contractors may also be required to comply with the Act. A “contractor” includes “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.” (emphasis added) Who is or is not a “contractor” in the eyes of the Act is the critical piece of the puzzle. In the design and construction world, this could include the architect, engineer, general contractor, or whomever had a direct contract with the Public Agency for a construction project if they are determined to be “acting on behalf of a public agency”. To be clear, though, providing services to or for a Public Agency does not, by default, constitute “acting on behalf of a public agency”. More is required.

What constitutes “acting on behalf of the public agency”? Unfortunately, the Act does not address this. This has been left up to case law. Since 1992, Florida’s courts have applied a “totality of the factors” analysis, codified in the case News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992) to determine whether a private entity is acting on behalf of a Public Agency and falls within the purview of the Act. These factors include, but are not limited to, (1) the level of public funding; (2) commingling of funds; (3) whether the activity was conducted on a publicly owned property; (4) whether the services contracted for are an integral part of the Public Agency’s chosen decision-making process; (5) whether the private entity is performing a governmental function or a function which the Public Agency would otherwise perform; (6) the extent of the Public Agency’s involvement with, regulation of, or control over the private entity; (7) whether the private entity was created by the Public Agency; (8) whether the Public Agency has a substantial financial interest in the private entity; and (9) for who’s benefit the private entity is functioning. At the conclusion of the analysis, if it is determined a private entity is acting on behalf of a Public Agency, the Act applies to that entity, and triggers access to public documents requirements and penalties for failure to comply.

In 2013, with a goal of clarification, the Act was amended to create section 119.0701, which required provisions to be included in Public Agency contracts with contractors “acting on behalf of the public agency” to contain contractual provisions clarifying the public record responsibilities of the contractor. Among other things, the affected contractors were to provide open access to the public records in their possession, the same as the Public Agency would, during the pendency of the contract, but required the public files be transferred to the Public Agency at the termination of the contract. Unfortunately, the 2013 amendment to the Act led to more litigation for agencies and their contractors.

On March 8, 2016, Governor Scott approved CS/HB 273, which enacted changes to contractors’ duties to provide access to public records relating to contracts with a Public Agency. The goal is to soften the effect of the 2013 changes. It can now be easier for construction contractors and design professionals to comply with the Act’s requirements. The 2016 amendment applies to contracts with a Public Agency entered into or amended on or after July 1, 2016.

Importantly, now the contractor can be required to keep the public records upon termination or completion of the contract instead of the Public Agency maintaining those public records. The contract between a Public Agency and a contractor must address which of the two will retain the public records. This is a critical distinction that carries additional compliance efforts, as well as legal implications. As a result, if the contractor keeps the records upon termination or completion of the contract, it must comply with all requirements under the Act or face penalties for failing to timely produce the public records.

Additional Information

The amendment creates new procedural requirements for public information requests. It also provides a safe harbor for contractors undergoing such a request. Now, requests for public records must be made directly to the Public Agency, but if the Public Agency does not possess the records, because they were kept by the contractor, the Public Agency must notify the contractor, who, “within a reasonable time,” is obligated to either produce the records to the Public Agency or allow for the inspection of the records. A contractor’s failure to perform one of the two options may subject it to penalties. If a Public Agency or contractor fails to timely provide a requested public record, the person making the public records request may sue to have the request enforced. Because contractors deemed to be “acting on behalf of the public agency” are bound to the same public records requirements as Public Agencies, they too can be held liable for the cost of a lawsuit to produce public records as well as the requestor’s attorneys’ fees, in the same manner a Public Agency would be liable. Further, it is a misdemeanor of the first degree to willfully and knowingly violate the Act.

If the party making the public records request is unable to obtain the records in a timely manner, it must provide notice to both the Public Agency and the contractor at least eight days before filing its civil lawsuit. A contractor who complies with a public records request within eight business days after the notice is sent is not liable for the costs of enforcement. Once a civil lawsuit is filed, and provided the filing party gave proper notice,[1] the court will determine whether the contractor unlawfully failed to comply with the public records request. If the court finds the contractor failed to timely comply with the public records request in an “unlawful”[2] manner, it may award against the contractor reasonable costs of enforcement, including attorneys’ fees. For these reasons, it is important for contractors to be aware of requirements to retain and produce public records when entering into a contract for services with a Public Agency, as they may face liability and fines if they fail to comply with the Act.

When negotiating a contract, or if already working on a project, either directly or indirectly involving a Public Agency, design professionals and construction contractors should be aware of the following issues:

1). Is the contract with a Public Agency? If so, the Act applies to the Public Agency, but whether it applies to the contractor is determined by the “totality of the factors” analysis. Contractors should be familiar with these factors. Because the test is subjective, with no clear answer, contractors should review their contract and scope of services with legal counsel.

2). Does the contract state whether or not the Act applies? The contract’s failure to include the requisite statement of applicability could lend itself to excusing a contractor’s failure to timely comply with the Act. Ask your attorney for confirmation.

3). Does the contract mandate what is to be done with the file upon completion of the project? If the contractor must keep it, long-term organization and file management are keys to ensure timely responses and access, so as to maintain compliance with the Act. Simply delegating this to an employee may not suffice. For example, what happens if that employee leaves, taking with him or her the institutional knowledge about public records from long ago?

4). What about subconsultants or subcontractors to a contractor who has a direct contract with a Public Agency? Be aware if there is a flow down provision in the subcontract, which could require compliance with the Act, and what may be required.

5). How long must public records be maintained? The answer depends on what Public Agency is involved. For example, the Florida Department of State, Division of Library and Information Services, has created General Records Schedules that set different retention requirements for certain records. However, not all records are covered by these General Records Schedules. To be sure, contractors should confer with the Public Agency directly and get the answer in writing.

As discussed by the Court in the News and Sun-Sentinel Co. case, in the typical construction scenario, an architect, engineer, general contractor, etc. is usually not “acting on behalf of a Public Agency”. In that case, the Florida Supreme Court cautioned, though, this may not always be so. Given the subjectivity of the Act’s applicability, contracts and scopes of work are worth a closer look with legal counsel, or at a minimum, the “totality of the factors” analyses is something to be aware of going forward.

Bottom line, the new amendments to the Act help reduce compliance risks by providing public records request procedures and creating a safe harbor window in which to respond. By the same token, the amendments expand compliance risk by allowing the Public Agency to require its contractor to retain the project file. This record keeping headache can be alleviated if the project file is turned over to the Public Agency. To be safe, when initially negotiating the contract, design professionals and construction contractors’ default request should be for project file turnover to the Public Agency upon the contractor’s completion of the services to be provided under the contract.

 

[1] Notice is proper if it is sent to the public agency’s records custodian and to the contractor or the contractor’s registered agent. If notice is sent to the contractor, it must be sent to the contractor’s address listed in its contract with the public agency.

[2] Note that in construing the term “unlawful” in the public records context, the Florida Supreme Court in Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) held that “unlawful” equates to simply failing to provide the public record.  Acting in good faith, bad faith, or unreasonably is of no consequence.