As addressed in my recent article, the Florida League of Cities is pushing for a dramatic and unwarranted change to Florida’s Public Records Act for which no empirical justification is offered. Further, its anecdotal reliance on cases it cites actually undermines its basic premise.
That is, an analysis of the relevant case law demonstrates that the courts have properly defeated attempts to obtain attorneys’ fees which were based on a perceived predatory abuse of public records laws. Further, the primary case allegedly demonstrating the existence of abusive schemes actually shows the extent to which judges are biased toward the government and fail to understand public records issues.
The case is Consumer Rights, LLC v. Union County, FL, 159 So.3d 882 (Fla. 1st DCA 2015) and it is easily the worst public records analysis to be found in Florida jurisprudence. Here are the facts.
On October 20, 2013, a representative of Consumer Rights, LLC e-mailed the following public records request to Union County, FL:
To: The county of Union County, Florida
PUBLIC RECORDS REQUEST: I am making the following public records request on behalf of a Florida company: I don’t know what records you keep, or how you keep them, but I would like to get a complete list of all the work email addresses of all the employees that work for your county that have email addresses. If you already have such a list put together then that list is what I want. If you don’t already have such a list put together, I am not asking you to create the list per se. I am simply requesting that you produce to me all of the individual public records (email addresses) you have that, when put together, would make up a list of all the work email addresses of all the employees of your county that have work email addresses. I am describing the list I desire so you will know what group of individual public records (email addresses) I want. I don’t want duplicates. I want these records emailed to me at firstname.lastname@example.org electronically please. I don’t want any paper records of these email addresses. I want electronic copies of these records. If you feel that I am not entitled to these records for some reason, please email me and let me know every reason why you feel this way. If you take longer than the law allows you to produce these requested records, the utility of the records to the requestor (the Florida company I am writing on behalf of) will have substantially diminished and the requestor will be damaged as a result of such delay. If you conclude that any portions of the records requested by this request are exempt or confidential, please state in writing and with particularity the reasons for your conclusion that those portions of the records requested are exempt or confidential. If you contend that any of the public records I have requested are exempt, confidential, or otherwise not subject to disclosure, please email me every reason why you feel that way in writing and with particularity. Thank You.
When the agency failed to produce the requested records after approximately four months, the requestor sued for an unreasonably delay. In finding that the county’s delay was not unlawful, the trial court found that the request was “intentionally designed to appear deceptive.” This finding was based on the testimony of a county official who explained that he ignored the request because he thought it was “phishing,” i.e., “a scam to dupe an email recipient into revealing personal or confidential information that can later be used illicitly.”
On appeal, the First District Court of Appeals affirmed, summarizing the case in this fashion:
The plaintiff made the request in a suspicious email that could not be easily verified, directed it to a general email account that might not be checked by the person having anything to do with the records at issue, waited four months without saying anything and then sued the county, claiming a right to attorney fees.
The Court went on to state that:
The request was made by an unnamed agent for an undisclosed company and it was sent to the county from an email address that did not appear to be the address of a person. This would lead anyone familiar with the perils of email communication to exercise caution, if not to disregard the communication entirely.
The Court even went so far as to speculate that:
The email from the sender could have contained a virus. It might have been a computer-generated message sent out from a computer-created email account. The sender might have intended to initiate a series of electronic communications that would have caused the disclosure of exempt materials or created difficulties for the county’s information technology officers.
This short case is so bad that it is difficult to read, much less address all the misstatements of law.
Suspicious E-Mail. For starters, there is nothing suspicious about the request for the County employees’ e-mail addresses. These e-mail addresses are non-exempt public records. Requestors are often looking for contact information to compile into a list. Indeed, many agencies list such contact information on their websites. However, if a requestor requests a list, an agency can deny his request if it does not keep the information in that format. This is because Florida law provides that agencies are not required to create new records in response to a public records request. This is one of the few rules in favor of the government, and often seems to amount to the sum total of government employees’ knowledge of the Public Records Act. On the other hand, each e-mail address is a public record, and the requestor is explaining that he wants the agency to gather and provide them.
He goes on to specify that he wants them in electronic format and requests that if they assert an exemption, they provide a written explanation. Both of these terms are expressly provided for in the Public Records Act: requestors are entitled to copies of records in the form in which they are normally kept (e.g., electronic format), and, upon request, the agency must provide a written explanation of an asserted exemption. See Fla. Stat. §§ 119.01 (2)(f) and 119.07(1)(f). All of this is very common language which will likely be familiar to those who have requested public records in Florida.
Phishing Scam. A public records request seeking possibly the most common of public records, e-mail addresses, could only be confused for a phishing scam to the extent the recipient has zero training or experience with public records. As those having custody of public records have a duty to comply with the Public Records Act, they should not be sheltered from liability on the sole basis of their lack of training and experience.
“General E-Mail Account.” This is perhaps the closest the Court comes to making any sense at all. The duty to produce public records is imposed broadly upon anyone who has custody of a public record, not just the designated records custodian. See Fla. Stat. § 119.07(1)(a). The “custodian of public records” is defined as “the elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee.” See Fla. Stat. § 119.011(5). For counties, the Board of County Commissioners is the head of the agency. Fla. Stat. § 125.01. So, if a public records request was submitted to a county janitor, for example, it might make some sense that it was not received by a person with custody of public records. However, after speaking with counsel for the Plaintiff, Robert Earl Case, Jr., I was informed today that the e-mail in question was submitted to the e-mail account listed for the Board of County Commissioners on the minutes for the Board’s most recent public meeting. Therefore, this argument also holds no water upon investigation.
Waited 4 Months Without Saying Anything. When the government fails to comply with its obligation to produce records, it often blames the victim and insists that it would have complied if only the requestor would have repeatedly reminded it of its obligations. This argument has already been expressly rejected, and courts have declined to “engraft upon the [Public Records Act] an additional obligation for a plaintiff to make repeated requests before filing suit to enforce his public records rights.” Office of the State Atty. for the Thirteenth Judicial Circuit v. Gonzalez, 953 So. 2d 759, 765 (Fla. 2d DCA 2007).
Request Made by Unnamed Agent for Undisclosed Company. Requestors are permitted to remain anonymous and “the Public Records Act does not condition the inspection of public records on any requirement that the person seeking to inspect records reveal that person’s background information.” Bevan v. Wanicka, 505 So. 2d 1116, 1118 (Fla. 2d DCA 1987).
E-Mail Address Did Not Appear to Be a Person/Request Could Have Been Sent By A Computer. This would be comical if there wasn’t so much on the line. While it is true that the rights in the Public Records Act are conferred upon “any person,” (Fla. Stat. § 119.07(1)(a)) there was no reason to suspect that a computer submitted the request in this case. Further, such an argument should not be considered by the courts to determine the reasonableness of a delay. If a government agency ignores a request on the alleged basis that it suspects the sender to be literally non-human, it should take on the liability of paying fees and costs in the event the plaintiff is forced to prove that a person submitted the request. This rationale also seems to assume that a records-seeking robot could not have an e-mail address with a name in it. Also, how could a requestor using e-mail ever show that they are human without revealing their identity?
E-Mail Could Have Contained A Virus. This is baseless and amounts to rank speculation. If anything, the consequence of this argument would be that all e-mail communications be ignored.
Requestor Might Have Intended to Cause the Disclosure of Exempt Materials. This is incredible. Unencumbered by any data, the Court is suggesting that the County rightfully ignored a valid public records request for non-exempt records because the requestor’s goal may have been to cause the County to violate its obligation not to disclose exempt or confidential information in the future. Here, I think the Court is tipping its hand and exposing the suspicion with which it views members of the public who dare to enforce their constitutional rights to access public records.
To conclude, established case law completely undermines the League of Cities’ premise that any amendment to Florida’s Public Records Act is needed to address a contrived concern, much less the dramatic and unwarranted proposed amendments.