February Shine On – Monthly Chat with First Amendment Foundation
It’s time to shine again. Barbara Petersen with the Florida First Amendment Foundation is back! This month she is addressing what information is available when contracts exist between public agencies and private companies.
Let us know what you could use some help with, when it comes to the Florida Sunshine Laws. You can leave questions and comments below or send them to Lynn Walsh.
SPJ Florida: How much information in a contract between a public agency and a private agency can be redacted or considered exempt?
Barbara Petersen: Contracts between a public agency and a private entity are public records subject to disclosure under ch. 119, Florida’s Public Records Law. And as with all other records, if a request is made to inspect and/or copy a contract, the agency can redact only that information which is statutorily exempt.
In other words, the private entity doesn’t have the authority to demand that certain information in the contract be withheld simply because the private entity doesn’t want the information disclosed – there must be specific statutory authority. When making a public record request, you should get in the habit of asking the custodial agency to put any denial of your request in writing and that the agency provide you with the statutory citation authorizing the denial. (ss. 119.07(1)(d) – (f), F.S.
SPJ Florida: What information if anything, is a private entity doing business with a government agency required to release to the public?
Barbara Petersen: This is a very interesting and timely question. The definition of “agency” in s. 119.011(2), F.S., includes any “private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.”
There’s a list of factors – known as the Schwab test — courts will consider when determining whether a private company is “acting on behalf of” a public agency. It’s sort of tricky, and until recently there haven’t been any bright or well-defined lines on this question. However, there’s a new provision in the public records law, s. 119.0701, created by the Legislature last session, that stipulates that every public agency contract for services must include a provision that requires the contractor to comply with the requirements of the public records law. Importantly, the law requires such contractors to provide access to public records “on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed” those costs authorized under chapter 119. This should provide us with a more clarity when attempting to access public records from service providers. Click here for a link to the new provision.
Answers to these questions and many more, including questions about application of Florida’s open meetings law, can be found in the 2013 Government-in-the-Sunshine Manual, which is now available in both a print edition and electronically. Go to the First Amendment Foundation website and click on FAF Store for information on how to order the manual.
Click here In case you missed last month’s chat.
Barbara A. Petersen, President First Amendment Foundation
A graduate of the University of Missouri-Columbia and Florida State University College of Law, Barbara A. Petersen is president of Florida’s First Amendment Foundation. Before taking her current position in 1995, Petersen was staff attorney for the Joint Committee on Information Technology Resources of the Florida Legislature, where she worked exclusively on public records legislation and issues. A passionate advocate of the public’s right to oversee its government, Petersen is the author of numerous reports and articles on open government issues. She currently sits on the board of the National Freedom of Information Coalition, having served as its president and treasurer, and was recently appointed to the Integrity Florida board of directors. Petersen served as chair of Florida’s Commission on Open Government Reform.