New Public Records Requirements for Contracts with Public Agencies

The Florida Legislature recently enacted Florida Statutes, Section 119.0701 (Chapter 2013-154) which requires that contracts for services with public agencies, where the contractor is acting on behalf of the agency, must provide a provision mandating compliance with the public records laws.  Specifically, Section 119.0701(2) mandates that the provision require the contractor to:

(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 [119] 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.

Based upon the above, we would expect that public agencies will include the above requirements in contracts going forward, and contractors should adopt internal procedures to ensure compliance with the public records law. The above requirements essentially put the contractor in the shoes of the public agency with respect to public records requests, and contractors will need to be prepared to respond accordingly. Further, it will be very important for contractors to become familiar with the exemptions to the public records law, which are generally set forth at F.S. 119.071.

As referenced above, this requirement applies to those contractors who are “acting on behalf” of the public agency. The determination as to whether the contractor is acting on behalf of the public agency must be made on a case by case basis.