Chapter 119 of the Florida Statutes is known as the Florida Public Records Act.
TYPES OF RECORDS
Florida law defines “public records” as: “All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software of other material, regardless of physical form, or characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”
Almost every any document created, received or maintained by FIU, it employees or by its representatives acting in their official capacities is considered a public record and is subject to inspection by the public. This includes all e-mails received by the University from the public.
How a document is named, marked or titled will not determine whether it is a public record. The content of the document is what matters. Only a specific statutory exemption makes a document confidential and not subject to disclosure.
Yes, as indicated above, e-mail messages made or received by FIU employees in connection with official business are public records and subject to disclosure. E-mails must not be destroyed except as provided for under the University’s records retention schedule as explained below.
Transitory messages including transitory emails may be destroyed by the recipient when the message or email no longer has administrative value to the recipient. However, any record that exists at the time a request for public records is made must be disclosed if within the scope of the request made.
Transitory messages are:
- Records created primarily for the communication of information that are not for the perpetuation of knowledge; and
- Records that do not set policy, establish guidelines or procedures, certify a transaction, or become a receipt.
Some common examples include:
- e-mail messages with short-lived or no administrative value;
- self-sticking notes; and
- telephone messages.
Most of it! The limited exemptions for “personal” records include:
- Personal notes which are neither distributed to others nor filed as a permanent record;
- Personal notes which are kept solely for the purpose of refreshing your memory; and
- Drafts you prepare but are not circulated.
No. While portions of your “personal” work may be exempt, please understand the following:
- Once “personal” work is circulated for “review” or “comment” by others, it becomes a public record; and
- Once circulated, “preliminary” or “working drafts” are considered to “perpetuate, communicate, or formalize knowledge” about University business and are subject to disclosure.
The most common confidential records that are exempt from public disclosure include:
- Social security numbers;
- Certain medical information;
- Academic evaluations of employee performance (see Fla. Stat. 1012.91, Florida Statutes);
- Disciplinary records while discipline is in progress; and
- Student records under FERPA, except for “directory information.”
o Directory information includes name, address and telephone number of students, major, dates of attendance and graduation, and information of a similar nature. (See FIU Regulation 108, Access to Student Education Records)
- Research data and other kinds of research records, including proprietary information or potentially patentable information; and
- Records of the FIU Foundation, Inc. or other direct-support organizations of the University.
PROCESSING A PUBLIC RECORDS REQUEST
The requestor can inspect and/or copy any public record which is not exempt from disclosure.
No. A requestor’s motive is irrelevant and the requestor does not have to tell you why he or she wants the records.
The appropriate records custodian of the University is required to provide access to any public record within a “reasonable” time of the request. There is no set time within which the University must respond. A reasonable period of time will be determined based on the facts and circumstances of each request. Extensive/voluminous requests, request with exempt information requiring redaction, and requests made during or immediately before University holiday periods will require additional time for response.
There is no requirement under Florida law for the University to do any of the following when responding to a request:
- Create a new record;
- Provide the records in the format requested;
- Meet the requestor’s “timetable”;
- Provide information not in the records; or
- Explain the records.
Yes. The University may charge for duplication costs as follows:
- $0.15 per page;
- $0.20 per double-sided copies; or
- the actual cost of duplication if an unusual size or document.
The University may also impose a $1 per copy for a certified copy of a public record.
In addition to the duplication costs above, if the nature or volume of the public records to be copied requires extensive use of information technology resources or clerical or supervisory assistance, the University may add a reasonable “special service charge.” The “special service charge” will be calculated based on the labor costs of the personnel involved in gathering and duplicating the records and/or any other actual costs. An estimation of the charges will be given to the requestor. The University may require prepayment of the special service charge if the costs are high.
The only requirement the University may impose for disclosure of public records is prepayment of the special service charge if the costs associated with responding to a request are high.
Some important questions to consider include:
- Is it clear what the requestor wants? Do I need to ask the requestor to clarify the request?
- Do any exemptions apply to the records request?
- Will there be a need to remove any records or redact confidential information from the records to be produced? “Redact” means to “mark through” or “white out” confidential information before disclosure.
- Do I need to call the Office of the General Counsel for advice?
Public records requests are generally handled by the department that maintains the record requested. For simple public records requests received by those who regularly handle such requests, the records custodian of the respective University department may directly respond to the request.
The Office of General Counsel is available to assist University departments with:
- Extensive or confusing requests that may need further clarification;
- Requests where records may be exempt or need to be redacted;
- Requests involving medical information; and
- Any other requests where the records custodian of the University may require additional assistance.
Please contact Lizvette Torres, Paralegal at 305-348-2103 or email@example.com.
Should OGC’s assistance be requested, please forward a complete copy of the public records request to the contact indicated above and OGC will advise on next steps after its review. If the request is voluminous or requires extensive clerical or supervisory staff, a Charge Procedure Form used by the University will be provided to the requestor prior to gathering and/or duplicating the records. When the requestor has paid the estimated cost of the special service charge, the request will be processed accordingly.
As a state university, the retention/destruction is subject to schedules promulgated by the State of Florida-Department of State- Division of Library and Information Services. More detailed information regarding records management and document retention is available at University’s Records Management website (http://recordsmanagement.fiu.edu/).
Yes. The University has established procedures for the destruction of records when records retention requirements expire. Additional information and instructions regarding records disposition is available at: http://recordsmanagement.fiu.edu/.
Yes, the penalties for intentionally failing to comply with the public records law are:
- For the University: Attorney’s fees and costs to the prevailing party if a lawsuit is filed.
- For University employees: Potential criminal conviction, including up to $1,000.00 fine and serving up to 1 year in jail.
Language for employees:
Florida International University (FIU) is subject to the State of Florida’s public records law under Chapter 119, F.S., which provides that any records made or received by any public agency in the course of its official business are available for inspection, unless specifically exempted by the Florida Statutes and/or other applicable federal laws.
Language for employees of the direct support organizations:
Florida International University (FIU) is subject to the State of Florida’s public records law under Chapter 119, F.S., which provides that any records made or received by any public agency in the course of its official business are available for inspection, unless specifically exempted by the Florida Statutes and/or other applicable federal laws. Certain business records of FIU’s various direct support organizations (including the FIU Foundation, Inc., the FIU Athletics Finance Corporation and the FIU Research Foundation) are confidential and exempt from the State of Florida’s public records law pursuant to Florida Statute, Section 1004.28(5).
If a requesting party fails to respond to inquiries for clarification, cost estimates, or any other communication from the Office of the General Counsel for 30 days, the request will be closed. A non-responsive request may be resubmitted and will be processed as a new request.