The COVID-19 pandemic has caused nations and organizations across the world to take emergency action to safeguard public health. Courts, public schools and colleges, municipalities, and other agencies throughout Florida, and across the nation, have temporarily closed office buildings, suspended or reduced operations, and instituted work from home policies. Federal, state, and local governments have requested that residents practice social distancing, and some states have even implemented “stay-at-home” orders.
Notwithstanding these unprecedented times, agencies continue to have an obligation to acknowledge and respond to public records requests. Florida’s Public Records Act requires public records custodians to “acknowledge requests to inspect or copy records promptly and respond to such requests in good faith.” Fla. Stat. Section 119.07. A delay in responding to a public records request can amount to a violation of the Public Records Act if it is “unjustified.” Notably, a delay “does not in and of itself create liability” under the Public Records Act, reasonable delay is permissible. See Siegmeister v. Johnson, 240 So. 3d 70, 73 (Fla. 1st DCA 2018), reh’g denied (Mar. 28, 2018), review denied, No. SC18-637, (Fla. July 5, 2018). Where delay is at issue, courts determine whether the delay in responding to public records requests was justified by analyzing the facts of the particular case. In analyzing the delay, courts often look to the amount of time between the receipt of the request and production of public records and the reason for the delay.
Agencies subject to Florida’s Public Records Act should continue to promptly acknowledge public records requests as they receive them, and should advise requestors of any anticipated delays in searching for or providing responsive public records due to limited information technology “IT) or clerical staff, remote employees, or restricted access to paper records as a result of the agency’s COVID-19 precautions. During these extraordinary times, agencies should review all written or online publications identifying their designated custodian of public records. Agencies that receive public records via regular mail should consider temporarily modifying their procedures so that all public records requests are directed to a designated email account or online database. Alternatively, agencies should direct that public records requests sent by mail be sent to an address that is accessible to the agency during the pandemic. This is particularly important for agencies that do not have access to their office buildings during the pandemic, as well as agencies that have implemented remote policies in response to the pandemic. Such measures are necessary to ensure the agency fulfills its obligation to “acknowledge requests to inspect or copy records promptly.”
Agencies should also continue to work towards fulfilling public records requests to the extent possible. The Public Records Act requires that agencies permit records “to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of public records.” Fla. Stat. Section 119.07(1)(a). This obligation may prove particularly challenging if the agency’s office is closed, as the custodian may not be able to enter the office building. Moreover, federal, state, and local governments may implement orders urging (and even requiring) residents to stay home. Even if the agency could overcome these obstacles, the agency must consider safety and health risks to the custodian supervising the inspection of public records. Agencies that have closed their offices in response to a pandemic may rely on the Public Records Act’s “reasonableness” standard if they are unable to promptly provide access to responsive public records as a result of the pandemic. However, agencies should still notify requests of the anticipated delay and reasons for the delay, and should contact requestors once the records are accessible.
For public records requests seeking electronic public records, such as emails, agencies should, to the extent possible, follow their standard procedures with respect to informing their IT department of the request. Notably, even if the agency’s IT department is able to conduct the search remotely, that is often just the first stage of the process. The agency may be entitled to collect a special service charge before providing the records to the requestor. The agency may also be required to review the records to determine whether an exemption applies and redact any information that is exempt from disclosure. This process may cause a lengthier response time than would otherwise be required absent the agency’s COVID-19 protocols.
Once agencies resume normal operations, it is imperative that they fulfill any outstanding public records requests, and promptly advise requestors of the times when inspection of public records will be permitted.
Given the multitude of legal and practical issues facing agencies that receive public records request during a pandemic, agencies subject to Florida’s Public Records Act should consult with legal counsel to formulate clear and concise policies for acknowledging and responding to public records requests in a remote environment.
This information is intended to inform our clients and other friends about legal developments, including recent decisions of various municipalities, legislative, and administrative bodies. Because of the rapidly changing landscape related to COVID-19, we intend to send out regular updates. The information we provide is not intended as legal advice and viewers/readers should not rely on information contained in these materials to make business or legal decisions. Before making any legal decisions, consult your lawyer. Please do not hesitate to contact us should you need assistance responding to the many issues which have arisen, and will continue to arise, out of this situation.