Do I Need To Prove that a Record Exists and that it Pertains to Public Business When Making A Public Records Request?

When making a public records request, are you required to include proof that a record exists and that it is a “public record”?

There is a disturbing trend to require a citizen who requests public records to prove: 1) that the record exists, and 2) that the record meets the definition of a “public record.”

A recent public records lawsuit was dismissed on the basis that the Plaintiff failed to prove the records existed or that the requested text messages were “public records.”  A lawsuit by The Florida Center for Government Accountability alleged that the Florida Department of Transportation and Vertol Systems Company, Inc. had incompletely responded to public records requests relating to Governor Desantis’s authorization and payment for the September flight of migrants from Texas to Martha’s Vineyard.  While it was established that the public records request was served, the Leon County judge dismissed on the basis that, “there is no evidence that the public records exist,” and “the mere fact that a document … is part of Vertol’s files does not make it a ‘public record.’ ” 

The court cited the definition of “public record” set forth in Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980):  “[A]ny material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.”  Shevin was cited in Braddy v. State, 219 So. 3d 803 (Fla. 2017).   The judge then ruled that the request for “all text messages relating in any manner to the [transportation] contract” to be insufficient to establish that the text messages were a public record.

There is a rumor that there is a legislative effort to add the Leon County hurdles to Florida’s public records statutes.  Currently, there is nothing in Florida’s Public Records laws that require a requestor to prove that a record exists.  Practically speaking, if a requestor asks for a record that does not exist or does not meet the definition of a “public record,” the response is, “no responsive records.”  Placing the burden on the requestor risks undercutting the intention of the law – transparency in government.  Corrupt officials could simply reply that a record does not exist or that the record exists but does not pertain to public business without the fear of a lawsuit because the requestor is unable to prove otherwise.

Practice tip:  If possible, attorneys and citizens would be smart to include proof establishing that a public record exists and articulate how the record pertains to public business in their initial public records requests, 5-day letters, and lawsuits.  This independent proof might include a statutory obligation to maintain the records, meeting agendas, discussions and comments, and publicity and social media statements.

For more information on this and other First Amendment issues, follow Florida’s First Amendment Foundation, Florida Center for Government Accountability, The Tallahassee Democrat, or, generally, the League of Women Voters.  If you have a public records case, feel free to contact me.

  

Jessica J. Travis, Attorney, DefendBrevard.com, 1370 Bedford Drive, Suite 104, Melbourne, Florida, 32937, 321-728-7280, contact@DefendBrevard.com,  www.DefendBrevard.com.

If you have a public records case, do not rely on this article for legal advice.  Consult with an attorney.