From the Legal Hotline (1-877-NEWS-LAW)

Q. I’m working on a story exploring the differences in how open records requests are handled in Florida and Alabama. While both states are predominantly governed by Republicans, there appears to be a notable difference in their approaches to fulfilling these requests. For example, my experience with some Alabama public agencies has been delays in state agency responses. My questions are as follows:

•  What are the laws surrounding open records requests in Florida, and why do Florida agencies tend to respond more promptly than those in Alabama?
• Are there legal provisions that encourage faster responses, or is the difference due to cultural practices within local and state governments?
•  Do some agencies perform better than others when it comes to responding to open records requests? Are there specific agencies in Florida that media outlets have had difficulties with?

Any insights or information on these topics would be greatly appreciated.

A. Regarding Fla. open records laws, my experience is that response times vary from agency to agency. Some are not so timely, and you might experience delays like those in your state. Florida does not have a set number of days to respond. Rather there is a “reasonable” time requirement and there are sanctions for nonresponse. In particular, a delay in making records available is permissible only under limited circumstances. A delay is permitted to determine whether the records exists; whether the records or any part of the records are exempt; or if the requesting party does not pay the appropriate fees. Otherwise, the only delay allowed is the “limited reasonable time” to retrieve the records and delete any exempt portion. Unjustified delay in making public records available violates the public records law. There are cases on delays that are helpful in getting records especially from law enforcement agencies. Promenade D’Iberville, LLC v. Sundy, 145 So. 3d 980, 983 (Fla. 1st DCA 2014). A delay in disclosing records can rise to the level of a refusal if “there was no good reason for the delay.” Consumer Rights, LLC v. Union County, 159 So. 3d 882, 885 (Fla. 1st DCA 2015). If you find that some information is being withheld or delayed, the Florida Sunshine Manual lays out the parameters of each exemption. It also fleshes out the law surrounding Florida’s broad public access laws. https://www.myfloridalegal.com/open-government/sunshine-manual Finally, yes, some agencies respond better than others. For example, some law enforcement agencies have used Marsey’s Law (2018 Fla. constitutional amendment) in a broad way to redact any information related to what they define as victims and have even deleted identities of law enforcement officers who claim to be “victims,” although a recent Fla. Supreme Court has curtailed this ability. Others have not used the law in this manner.

Q. Who polices the s. 50.011 audience audit requirement for newspapers that run legal ads?

A, The requirement has no direct enforcement mechanism. It is basically self-policing by those who run the ads and the public/third parties who are affected by them. So, for example, if an ad is run in a noncompliant publication or manner, this might open the ad up to the possibility of a challenge/court complaint that the noncompliant ad invalidates the underlying action by the local government, financial institution, or other entity running the ad. There are no civil or criminal penalties in the law.

Q. Do you happen to have a list of exemptions that apply to the executive office and legislative offices in FL? Or, can you point me where to look?

A. A relatively recent exemption relates to travel records by the Governor’s Office (see below). But there are others. You can find them by searching “Governor” and “legislature” or similar terms, using the Sunshine Manual at https://www.myfloridalegal.com/sites/default/files/government-in-the-sunshine-manual.pdf. The case, Executive Office of the Governor v. AHF MCO of Florida, Inc. (Fla. 1st DCA 2019), held that premature disclosure of prospective information relating to the Governor’s detailed schedule and travel plans would reveal surveillance techniques, procedures, or personnel which are exempt pursuant to s. 119.071(2)(d), F.S. See now s. 943.68(10)(a), F.S. (records held by a law enforcement agency relating to security or transportation services provided to the Governor or other specified persons by the Department of Law Enforcement as provided in ss. 943.68(1)(5) or (6), F.S., are exempt from disclosure requirements).

Regarding the legislative branch, the public records act does not apply to legislators. There is, however, a constitutional right of access to legislative records provided in Art. I, s. 24, Fla. Const., which provides that “[e]very person has the right to inspect or copy any public record made or received in connection with the official business of any public body . . . .” and this right of access specifically includes the legislative branch, which may provide for exemptions. Each house of the Legislature has adopted rules governing records, accessed at www.flsenate.gov and www.myfloridahouse.gov.

Q. We ran an article about an animal preserve and now a local animal rights group is asking for “equal time” to lay out their view of events. I let them know that we would need extra time to review whatever they submitted. What are the ramifications if I don’t run their response?

A.You are not obligated to run responses or editorials under any “equal time rule” (like the old radio political rules required). On the other hand, I appreciate your concerns about some parties being aggressive. As Jim McGuire points out, it is quite reasonable to hesitate running something from a third party simply because they are mentioned once in an article in the paper. The newspaper is not a billboard for anyone to post their thoughts. It reflects the editorial judgment of the publisher and editors. I would suspect that animal rights group would much prefer to spend its time boycotting or protesting at zoos or other “preserves” rather than spend time focused on a newspaper that, with rare exceptions, has nothing whatsoever to do with animals.