How New Public Records Law Affects Companies Providing Services to Florida State or Local Governmental Entities

During its 2013 Regular Legislative Session, the Florida Legislature passed CS/CS/HB 1309, which relates to governmental accountability in contracting. Among other things, this legislation created Section 119.0701, Florida Statutes, a new section in Florida's Public Records Act that took effect July 1, 2013. It mandates that Florida state and local public agencies include provisions in services contracts where the contractor is acting on behalf of the public agency confirming the contractor's obligations under the Public Records Act.

A "public agency" is defined for purposes of the new law to include a "state, county, district, authority, or municipal officer, or department, division, board, bureau, commission, or other separate unit of government created or established by law."

New Provisions Required in Certain Contracts

Florida's Public Records Act has historically applied to business entities that are acting on behalf of a public agency. The issue of whether or not a private contractor is acting on behalf of a public agency has been the subject of numerous court decisions and Florida Attorney General Opinions. In addition, for many years, Section 287.058, Florida Statutes, has required all Florida executive branch contracts above a certain dollar threshold to include a provision allowing the agency to unilaterally terminate the contract if the contractor does not allow public access to records made or receive in connection with the contract unless legally exempt from disclosure.

Although the new law does not appear to expand the applicability of the Public Records Act to private entities contracting with Florida public agencies, new Section 119.0701, Florida Statutes, requires a state or local public agency to include certain provisions in each public agency contract for services where an individual, partnership, corporation or business entity is acting on behalf of the public agency. The provisions must require a contractor to do each of the following:

• keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service
• provide the public access to public records on the same terms and conditions that the public agency would provide and at the same statutorily authorized cost
• ensure that exempt or confidential records are not disclosed except as authorized by law
• meet all requirements for retaining public records and transferring public records at the contractor's cost upon contract termination

The new law also requires the contractor to provide the public agency with electronically stored records in a format that is compatible with the agency's information technology.

Florida law previously required that the same contract provisions in the new law be included in state outsourcing contracts with an expected cost in excess of $10 million in a fiscal year. Now they apply to all services contracts where the contractor is acting on behalf of the public agency. Such requirements confirm that the Public Records Act applies to the private entity to the same extent that it would apply to the public agency if it were performing the services that are being contracted.

Noncompliance Risks

If the contractor does not comply with these contractual provisions, new Section 119.0701 requires the public agency to enforce the contract provisions in accordance with the contract. This could mean not only the risk of termination or default, but also potential financial penalties.

In addition, as Florida state and local governments know well, any person can submit a public records request and public records issues are frequently the subject of litigation. The enactment of this new public records law, along with related publicity, could result in increased public records and associated litigation directed at private contractors who provide services to Florida state or local governmental entities.

The new law is codified in Chapter 2013-154, Laws of Florida, and can be accessed through the following link: http://www.flsenate.gov/Session/Bill/2013/1309. Please contact the author of this alert for additional information. Summaries of this and other laws passed during the 2013 Florida Legislative Session are available in Holland & Knight's 2013 session recap.