Many private companies conduct business with state and local governments in Florida. Therefore, it is important to know about the state’s broad public record and open meeting laws, commonly referred to as the Sunshine Law.
At its most basic level, the Sunshine Law requires public access to all meetings and records of governmental entities. While seemingly straightforward, it can quickly become complicated—particularly when it comes to public records. Consider these three likely scenarios in which a private company is working with government employees or officials:
- Your company is a government contractor hired to provide recommendations on a transportation project in a city’s downtown. Nearly all of the communications with your government client is via text message and email.
- Several of your marketing firm’s employees are attending a county commission meeting to take notes on changes to the county’s tourism plan, which you have been contracted to work on. The notes are for personal recollection of what was presented during the meeting, and the notes are not provided to the county.
- You work on a team of private company architects and project managers hired to plan a mixed-use space recently approved by the city council. You have a group email chain among the private companies to keep everyone on the team informed on the project. There are no government employees or officials in the email chain.
Are these communications subject to Florida’s public records laws? The answer: yes, no and maybe. Due to the law’s nuances and fact-intensive nature, many private companies do not know when they are subject to the public records laws until it may be too late.
There are numerous aspects of the law every business needs to be aware of, as well as basic steps you can take to ensure your company’s communications are not potentially damaging, either in the courts or in the “court of public opinion.”
Public Records Component of the Sunshine Law, and Why It Matters
Florida has the nation’s broadest, most widely applicable definition of what constitutes a “public record.” In Florida, public records include all documents, communications, and material, regardless of the physical form, characteristics, or means of transmission, which are made or received in connection with the transaction of official business. This includes text messages, emails, voicemail recordings, social media posts, and draft documents circulated for comment.
All public records carry with them a duty to maintain the record for a specific period of time, and a duty to allow public access to such records unless covered by a specific statutory exemption.
If your company is doing work with a Florida governmental entity, it is vitally important to know that any and all communications regarding that work may become the subject of a public records request.
Private contractors may even have a duty to provide access to public records which are in their sole possession if they are considered to be acting on behalf of the government.
Gray Areas of the Sunshine Law:
When Private Contractors Undertake Public Business
Consider scenario three that was presented above, where a private contractor is working on a team of private architects and project managers hired by a city. In this scenario, there is a long email chain among the private team members, but the members do not include any government officials in their correspondence.
There are two ways this email chain could become a public record:
- If any member of the email chain forwards the chain to city employees or officials. So any comment, from a potentially controversial project detail to a tactless comment about how hard the city is to work with, could end up as front-page news.
- If the team of private entities is considered to be acting on behalf of the government. While this sounds simple, there is no single factor which dictates when a private corporation, not otherwise connected with the government, may find itself subject to the public records laws.
Courts will look to a “totality of factors” test – which applies nine different factors ranging from funding considerations to whether the contracted services are an integral part of the city’s chosen decision-making process – along with a “delegation of function” test. Each test is highly fact-intensive and may turn on nuances in the contract between the government and private entity.
What is at Stake and Who to Watch Out For
Simply put, all the work you have done to build your company is at stake. Not understanding the Sunshine Law could impact your company’s reputation and ability to gain future work, while also creating the possibility of lengthy and costly legal battles. The court system is hard enough to face, but the court of public opinion can be just as damaging to your company and its reputation.
While any person can make a public records request, there are three parties, each with different objectives, frequently making public records requests. They are:
- Journalists. The news media routinely makes public records requests as part of reporting on important hot-button topics.
- Community watchdogs. These local groups or individuals generally have an agenda, and will use public records to their advantage whenever possible.
- Law firms. Some law firms generate business by exposing inaccuracies in responses to public records requests, then bringing lawsuits against the government and private contractors.
Good General Practices to Follow
If you and your company follow communications best practices, grappling with the public records law need not be as frightening as it may sound. Here are three general tips to follow:
- Be smart with texts and emails. Do not put anything into a text or email that could become damaging to your business. Important conversations and big decisions should be made via phone calls or through in-person meetings. Also, text messages are difficult to archive and are commonly deleted, making it best to avoid using text messages as a regular form of communication with government employees and officials whenever possible.
- Have a company-wide communication policy. Creating a policy should be a joint project for team members from communications, human resources, IT and your legal counsel, working together to craft a company-wide communication policy that covers all aspects of your business. This is even more important if your company regularly works under contracts with Florida governmental entities.
- Know the rules. Working with governments is different than doing private work, and understanding this is a vital step to protecting your company. Remember, the higher profile the project, the higher the likelihood a public record request will come your way.
Taking a smart approach to your professional communications is the best way to avoid any issues that could arise from the Sunshine Law. That includes having a thorough company-wide communication policy, understanding the rules in working with government officials and working with legal counsel who thoroughly understands the Sunshine Law and how it may apply to the work your company does.
Nicole “Nikki” Nate is a member of the State & Local Government and Litigation practice groups at Bryant Miller Olive P.A., where her primary practice includes representing local governments in all manner of legal matters. She is board certified in City, County & Local Government by The Florida Bar and teaches seminars throughout the state on the Sunshine Law and related topics.