February Shine On – Monthly Chat with First Amendment Foundation
Many people are envious of the Sunshine Laws in Florida. But, if you are a journalist working in the Sunshine State you know that even though we may have more access to public information than people in other states, there are still challenges.
The South Florida Chapter of the Society of Professional Journalist recognizes that working through the nuances and case law associated with the Sunshine Laws can be difficult. So, we reached out to the Florida First Amendment Foundation to provide answers to your information access questions.
Barbara Petersen, President of FAF, will be joining us once a month to answer your questions in our newly launched Shine On column. We want this to be an opportunity for you to get answers, so let us know what you need clarification on, help with, etc. when it comes to Florida’s Sunshine Laws. You can leave questions and comments below, send them to SPJ South Florida Pro Vice President of Programs Lynn Walsh, or send us a message on Facebook or Twitter.
We hope you find this helpful and best of luck navigating the laws and fighting for access.
SoFlaSPJ: Is there a time frame outlined in the Florida Sunshine Laws for an agency to respond to a public information public record request?
Barbara Petersen: Yes. However, there’s a distinction in the law between a response to a public records request and the subsequent production of the records requested.
Section 119.07(1)(c), F.S., requires an agency to respond to a request to inspect or copy public records promptly and in good faith. A “good faith” response specifically “includes making reasonable efforts to determine from other officers or employees within the agency” whether the requested records exist, and if so, whether the records are located.
Unlike many other states, Florida’s public records law doesn’t contain a specific time frame – 10 days, for example – for the production of requested records. Instead, our law says that an agency has to produce public records within a “reasonable” period of time, and the state Supreme Court held that the only permissible delay in producing public records “is the reasonable time allowed . . . to retrieve the record and delete those portions of the record the custodian asserts are exempt.” Agencies can’t create arbitrary time limits, so the time frame for a response will depend entirely on the type and volume of records requested to be inspected or copied.
SoFlaSPJ: Is there a charge to view for documents associated with a public record request?
Barbara Petersen: Yes. There are two separate fee provisions in chapter 119, our public records law.
The first allows an agency to charge no more than $0.15/page for paper copies up to 8 ½ x 14 inches, plus an additional $0.05 for a two-sided copy. For all other copies – a DVD or video tape, for example, or for larger sized paper – an agency can charge the “actual cost of duplication” which is defined as the cost of the materials and supplies used to duplicate the record.
The second fee provision says if a request requires the extensive use of agency resources, whether information technology or personnel or both, an agency can include a special service charge, most commonly referred to as an extensive use fee.
The fee must be reasonable and must be based on actual costs incurred, and automatic application of the extensive use fee is prohibited. This means that each agency has to define what is an extensive use of its resources. If an agency charges for personnel time, the agency can charge no more than the hourly rate, including benefits, of the lowest paid person capable of performing the task.
Here’s an example: A request is made for a copy of the school board’s most recent budget, including all supporting documentation. The school board has defined extensive as 30 minutes or more. There are 200 pages of documents and it’s going to take 45 minutes to collect the records and make copies. The school board can charge the requester $30 for the copies (200 x $0.15) plus 15 minutes of extensive use time. If the records were copied on to a DVD, the school board could charge no more than the actual cost of the DVD, maybe around $0.50?
Again, agencies can require a requester to pay the estimated costs associated with the public record request in advance. In such cases, the requester should ask for a detailed invoice with a breakdown of all charges. If it includes an extensive use fee, ask for the agency’s definition.
Three more important points:
Generally, there’s no fee for the mere inspection of a public record. However, an agency can supervise a person inspecting public records; if that supervision requires an extensive use of agency resources, the agency can charge under the extensive use provision.
Secondly, an agency can charge an extensive use fee for redaction of exempt information but only if review and redaction requires an extensive use of its resources.
Finally, some agencies have specific statutory fee authority. There aren’t many with such authority, however, and the majority of local governments and state agencies fall under the general fee provisions in chapter 119. If an agency charges more than $0.15 a page for paper copies, ask for the statutory citation authorizing the charge.
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,www.floridafaf.org, and click on FAF Store for information on how to order the manual.
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.