By Ricardo L. Gilmore, Esq.
Published in FAHROgram November/December 2016

RicardoGilmore-cMany of you have expressed some confusion about whether contractors doing business with your housing authority are subject to the Florida public records laws and to what extent. Further, what is your housing authority’s responsibility regarding a contractor’s responsibility to comply with applicable Florida public records laws?
Below is an overview.

First, let’s look at what the law requires. Section 119.0701, Florida Statutes, was adopted  in 2013 and requires the adoption of Public Records Act requirements in contracts with private companies by agencies subject to the Act, including housing authorities. Many contractors are now subject to public records requirements and could face penalties for failure to comply with the Act. Private companies are subject to the Act to the extent they possess “public records.” A contractor may also be subject to the Act to the extent the contractor has been deemed to be acting on behalf of a public agency. This can arise when a private entity contracts with a public agency to perform an agency function. What do acting on behalf of an agency and performing an agency function mean? Are all of the contractors that do business with a housing authority subject to the requirements of the Act?

The attorney general issued an opinion in 2014, interpreting the term contractor as used in Section 119.0701, Florida Statutes. See, Fla. AGO 2014-06. This statute mandates that public entities include a provision in all of their contracts with contractors, requiring said entities to comply with the Act. The question presented was whether the language “… and is acting on behalf of the public agency …” contained in Section 119.0701(1)(a) causes the nature of the services provided to be the determining factor as to the applicability of Section 119.0701 to  a contractor; or instead, whether a contract for services with a public agency, regardless of the nature of the services, automatically results in that contractor being subject to the Act’s requirements.

The attorney general opined that since the term contractors is defined in the statute as those “enter[ing] into a contract for services with a public agency and … acting on behalf of the public agency ….,” the statutory requirements for contractual provisions relating to Florida’s public records law apply only to those “contractor[s]” coming within the scope of the statute, that is, those who not only enter into a contract for services with a public agency, but are also “acting on behalf of the public agency” in providing those services. In reaching that determination, the attorney general relied, in part, upon language from the opinion in Parsons & Whittemore, Inc. v. Metropolitan Dade County, 429 So. 2d 343 (Fla. 3d DCA 1983), where the court noted, in pertinent part: “We are unaware of any authority which supports the proposition that merely by contracting with a governmental agency a corporation acts ‘on behalf of ’ the agency.” The attorney general summarized her ultimate conclusion as follows:

In sum, it is my opinion that the requirements of Section 119.0701, Florida Statutes, apply to “contractor[s]” who contract with public agencies and are acting on behalf of the public agency in providing those services. Thus, based on the terms of Section 119.0701(1)(a), Florida Statutes, the nature and scope of the services provided by a private contractor determine whether he or she is “acting on behalf of ” an agency and thus, would be subject to the requirements of the statute.

Even though the language in the above referenced attorney general’s opinion helps, it does not give a clear guideline as to how to determine when a contractor is acting on behalf of an agency or performing a governmental function of an agency. Further, in July of this year, a new law amended Section 119.0701, Florida Statutes, to require the following language be added (in at least 14-point boldfaced type) to any contract with an individual or entity providing services to  a public agency and acting on behalf of said public agency:

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO  PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE  CUSTODIAN OF PUBLIC RECORDS AT (telephone number, e-mail address, and mailing address).

This is in addition to the other public records language already required to be in such contracts. The law also puts more specific requirements on contractors complying with the public records laws including, but not limited to, providing records upon request from the public agency’s custodian of public records, and keeping/maintaining and transferring public records to the agency upon completion of the contract.

Requests for public records are still to be made directly to the agency, but if the records are not possessed by the agency, the agency must immediately notify the contractor of the request and the contractor must provide the records within a reasonable time or be subject to penalties.

The contract requirements apply to contracts for services entered into or amended on or after July 1, 2016. So, if you have not added this language to your standard contracts with contractors or as an amendment to contracts already entered into, you should do so immediately. This should be done with all contractors doing business with your housing authority at this point. Whether a contractor is acting on behalf of your housing authority or performing a governmental function of your housing authority can be determined later, as this type of clarity is still developing in the law. The contracting officer at your housing authority should consult your legal counsel regarding appropriate contract language. The custodian of records at your housing authority should contact your legal counsel regarding compliance with a public records request involving a contractor to help determine whether the particular contractor is subject to the applicable Florida public records laws.

Ricardo L. Gilmore, Esq., is a senior partner and co-founder of Saxon Gilmore & Carraway PA. He has practiced law for more than 30 years and specializes in the areas of business and corporate law, real estate, public finance and commercial litigation. He serves as special counsel to housing authorities in Florida and other states relative to affordable housing development matters.

 

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