By Tracy M. Evans, Esq., Associate, Saxon, Gilmore, Carraway & Gibbons, P.A.
Published in FAHROgram March/April 2014
Under a recently enacted Florida Statute, certain individuals and entities entering into contracts to perform services for public agencies will now be contractually required to comply with Florida’s Public Records Act. Florida Statutes § 119.0701 went into effect on July 1, 2013, and requires Florida state and local agencies to include provisions regarding the contactor’s retention, maintenance, and disclosure of public records in all contracts for services where the contractor will be acting on behalf of the public agency. The new statute does not impose any new public records disclosure requirements that did not already exist, but rather, creates a new mechanism for the enforcement of the existing obligations.
According to the statute, contracts for services where the contractor will be acting on behalf of the public agency must require the contractor to do each of the following:
(a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service.
(b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.
(d) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency.
In the event that a contractor violates these provisions of the contract, the statute requires the public agency to enforce the contract against the contractor. Depending on the contract, possible consequences could include default, termination of the contract, or possible financial penalties.
Under the new statute, a contractor is defined as “an individual, partnership, corporation, or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency.” This definition does not encompass every entity entering into a contract to provide services to a public agency, but rather, only those that will be acting “on behalf of” the public agency in the scope of their services. In the past, courts have looked at the totality of a number of factors to determine whether a private entity is acting “on behalf of” a public agency including: 1) the level of public funding; 2) commingling of funds; 3) whether the activity was conducted on publicly owned property; 4) whether services contracted for are an integral part of the public agency’s chosen decision-making process; 5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; 6) the extent of the public agency’s involvement with, regulation of, or control over the private entity; 7) whether the private entity was created by the public agency; 8) whether the public agency has a substantial financial interest in the private entity; and 9) for whose benefit the private entity is functioning. News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992).
Housing authorities should avoid arbitrarily incorporating the contractual provisions required by the new statute into every contract for services. Instead, housing authorities should assess each contract on an individual basis to determine whether the contractor will truly be acting on behalf of the agency in its performance of services. The execution of a contract which includes the new provisions could be considered an express admission that the contractor is acting on behalf of the agency, contrary to the intent or understanding of either party, and potentially create liability under the Public Records Act that would not have otherwise existed. Therefore, it is important to assess the nature and scope of the contractor’s duties and services to determine if they will be acting on behalf of the housing authority before adding the new provisions to the contract. As always, it is important to consult your legal counsel to help determine when it is appropriate to add these contractual provisions.
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