By Tracy M. Evans, Esq., Associate, Saxon, Gilmore, Carraway & Gibbons, P.A.
Under a recently enacted Florida Statute, 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.
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 broad definition necessarily includes private entities that would not normally be subject to public records laws.
According to the new statute, contracts for services 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.
Issues regarding public records requests and disclosures are frequently litigated in Florida. In order to avoid facing this type of litigation, private entities not accustomed to operating under the Public Records Act should become familiar with the broad definitions and scope of the Act to ensure compliance. Certain types of records and information are exempt from disclosure as provided by Florida Statutes § 119.071, but Florida law strongly favors disclosure. Any doubt as to whether a record must be disclosed under the Public Records Act should usually be resolved in favor of disclosing the material, in order to avoid becoming a target for litigation.
Our firm has taken steps to ensure that the contracts of our public sector clients comply with this new statutory requirement.
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