What do businesses contracting with the state need to know?
When a private business enters a contract for services on behalf of a state agency, that business becomes subject to Florida’s Public Records Act for purposes of that contract. Although there are other factors that may come in to play in each case, a business is generally acting on behalf of the state when it contracts to perform a governmental function.
During the 2016 Legislative Session, the Florida Legislature made some important changes to the obligations of a private contractor when a public records request is made. These changes came in the wake of several high-profile cases where unscrupulous requesters made public records requests to contractors that were designed to be denied. Upon receiving the denial they sought, the requesters would then file lawsuits in hopes of winning easy attorney fees. This type of scam gained popularity because of the Public Records Act’s provision requiring courts to award fees to plaintiffs after an unlawful failure to produce under Section 119.12, Florida Statutes. Fees are awarded even in cases where the denial was in good faith and the records were eventually produced. Contractors have been prime targets because they are less likely than a state agency to have staff trained in processing public records requests.
Although appellate courts in recent years have moved away from upholding fees for such plaintiffs in some of the most egregious cases, the scams caught the attention of legislators. Under the new amendments to Section 119.0701, Florida Statutes, requesters are required to go through the state agency instead of making requests directly to contracting businesses. If the state agency does not have access to the public records that are requested, the contractor is still obligated to produce them to the agency for dissemination. Additional protections for businesses include a new requirement that the request be made through a written notice to the agency records custodian and the contractor at least eight days before a potential plaintiff can file a lawsuit. If the contractor complies within the eight day period, it cannot be held liable for the costs of enforcement.
About the Authors:
John L. Wharton is a member of Dean Mead’s Administrative Law and Business Litigation departments and the Government Relations and Lobbying Industry Team. He represents both public and private clients in cases from application creation to administrative litigation before state and federal agencies. He also practices general litigation in state and federal courts. Mr. Wharton has over 30 years of experience in Tallahassee practicing before and often litigating against numerous state agencies in the areas of water resource planning; permitting and regulation; mitigation banking; utility law and utility regulation; professional regulation and environmental law. He may be reached at firstname.lastname@example.org.
Brittany Finkbeiner focuses on Real Property and Administrative Law. Prior to going into private practice, Ms. Finkbeiner served as a chief attorney for the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes. In addition, she’s worked at the Florida Department of Economic Opportunity, The Florida Senate Judiciary Committee and as a legislative aide for the Florida Senate. She may be reached at email@example.com.