I. Introduction

Electronic record keeping is now pervasive as businesses, individuals and governments increasingly transact their affairs and store records by means of electronic media. Law review commentary and texts on electronic discovery now abound. E.g., Scheindlin, S. and Rabkin, J., Electronic Discovery in Federal Civil Litigation, 41 B.C. L. REV. 237 (March 2000); Robins, M., Computers and the Discovery of Evidence, 17 MARSHALL J. COMPUTER & INFO. L. 411 (Winter 1999); Testa, Hurwitz and Thibeault, The Electronic Paper Trail: Evidentiary Obstacles to Discovery and Admission of Electronic Evidence, 4 B. U. J. SCI. & TECH. L. 5 (1997); Symposium, Lawyers Online: Discovery, Privilege and the Prudent Practitioner, 3 B. U. J. SCI. & TECH. L. 5 (1997).

Electronically stored government records, like electronic records kept by the private parties, have become increasingly useful and valuable sources of information. In many cases, electronically stored government records may be more valuable tools than paper or “hard copy” versions of the “same” information.

Familiarity with the electronic records that government agencies maintain, the treatment of that electronic information under Florida’s Public Records Law, and techniques for obtaining those sorts of records is useful.

II. The increasing usefulness of electronic government records

The potential uses of information stored electronically by government agencies expand daily, as practitioners and their clients learn to make use of such information. Electronic records are often useful, for example:

    A. To aid business surveys or marketing programs 

    B. To assist in gauging the regulatory environment before entering the market 

    C. To assist in evaluating competition in regulated industries 

    C. To assist in public relations and lobbying efforts 

    D. As pre-suit investigative and evaluative tools 

    E. Litigation tools to aid in defending against or prosecuting claims against a government agency, or in defending against or prosecuting private sector claims.

III. Core principles regarding computer-stored records as public records. 

    A. Computer-stored records and other electronically stored information in the possession of a public agency are public records. Such electronic records may be inspected and copied in the manner and subject to the limits set out in Chapter 119, Florida Statutes.

• Information stored in a public agency’s computer “is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet….” Seigle v. Barry, 422 So.2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So.2d 988 (Fla. 1983). 
• Several Attorney General Opinions, relying on Seigle, conclude that the Public Records Act covers computer records.
• AGO 98-54 (Reports maintained in a computer system operated by NASD, received and kept electronically by a state agency for use in licensing and regulating securities dealers, are public records subject to Ch. 119). 
• AGO 91-61 (A computer disk containing information that is a public record in electronic data format is a public record, which must be copied in the form so maintained when requested, even though hard copies of the same records may be available for inspection and copying.) 
• AGO 85-03 (computer tape subject to disclosure) 
• AGO 89-39 (Board of County Commissioners may use computer systems to facilitate and conduct official business, such as by maintaining electronic calendars, using electronic mail, etc. However, inter-office and intra-office memoranda communicating information from one public employee to another, or merely prepared for filing, would constitute public records, since they supply the final evidence of knowledge obtained in connection with the transaction of official business, absent a specific statute exempting the information or providing for its confidentiality.) 
• AGO 96-34 (“E-mail” messages made or received by the employees of the Property Appraiser’s office on connection with the transaction of official business are public records.) 
• The Florida Supreme Court has concluded that “e-mail” constitutes a judicial record, noting that the “fact that information made or received in connection with the official business of the judicial branch can be made or received electronically does not change the constitutional and rule-mandated obligation of judicial officials and employees to direct and channel such official business information so that it can be properly recorded as a public record.” In re Amendments to Rule of Judicial Administration 2.051, Public Access to Judicial Records, 651 So.2d 1185, 1187 (Fla. 1995).

    B. The electronic record must be produced on request, in the electronic format in which the agency maintains it. The availability of a paper version of the information is not a valid basis for failing to comply with a request for the record in electronic form. 

• Section 119.011(12), Fla. Stat. (2010): “Public records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, 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. 
• West's F.S.A. § 119.01(2)(f), Fla. Stat. (2010): Each agency that maintains a public record in an electronic recordkeeping system shall provide to any person, pursuant to this chapter, a copy of any public record in that system which is not exempted by law from public disclosure. An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium, and the agency may charge a fee in accordance with this chapter. 
• AGO 91-61

    C. However, an agency is not generally required to reformat its electronic records to meet a requestor’s particular needs. The intent of Ch. 119, F.S., is “to make available to the public information which is a matter of public record, in some meaningful form, not necessarily that which the applicant prefers.” Seigle v. Barry, supra, at 66. Thus, in AGO 97-39, the Attorney General concluded that a school district was not required to furnish electronic public records in an electronic format other than the format in which the district routinely maintained the information. 

• Nevertheless, Seigle recognized that an agency may be required to provide access through a specially designed program, prepared by or at the expense of the requestor, where:

1. available programs do not access all of the public records stored in the computer’s data banks; or 
2. the information in the computer accessible by the use of available programs would include exempt information necessitating a special program to delete such exempt items; or 
3. for any reason the form in which the information is proffered does not fairly and meaningfully represent the records; or 
4. other exceptional circumstances exist warranting this special remedy. Seigle v. Barry, supra, at 66-67.

• Subsequent legislative acts, subsequent rulemaking and advances in computer technology since Seigle was decided may affect the application of Seigle’s tests for when an agency may be required to furnish electronic records in a format other than that in which the agency routinely maintains the information. 
  • Section 119.01(2), Fla. Stat. (2010):

(a) Automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law.

(b) When designing or acquiring an electronic recordkeeping system, an agency must consider whether such system is capable of providing data in some common format such as, but not limited to, the American Standard Code for Information Interchange. 

• • Department of Management Services purchasing guidelines for hardware specify IBM compatible computer hardware (such as Dell Opti-plex). Department of Management Services purchasing guidelines for software specify Windows operating systems (Windows 2000 or Windows 98 SE and Microsoft Office) as the standard. Therefore, the accessibility and transparency of data maintained electronically by agencies should steadily increase.

    D. The reason or motive for requesting a public record is irrelevant, and cannot serve as the basis for denying an inspection request. City of St. Petersburg v. Romine ex rel. Dillinger, 719 So.2d 19 (Fla. 2nd DCA 1998). See also Christy v. Palm Beach County Sheriff’s Office, 698 So.2d 1365 (Fla. 4th DCA 1997). 

• Seeking public records to obtain information relevant to lawsuits is permitted. See, e.g., State, Dept. of Highway Safety & Motor Vehicles v. Kropff, 445 So.2d 1068 (Fla. 3rd DCA 1984) 
• Public employees’ personal emails are not public records in every case. State v. City of Clearwater, 863 So.2d 149 (Fla. 2003) But see Wallace v. Guzman, 687 So.2d 1351 (Fla. 3rd DCA 1997) (personal information about members of a public agency received by that agency in connection with the transaction of official business of the agency are public records, and must be open to inspection if no statutory exemption applies to the information.)

    E. What may an agency charge for copying records? 

• For non-certified copies: the “actual cost of duplication,” which includes the “cost of the material and supplies used to duplicate the public record, but does not include labor cost or overhead cost associated with such duplication. §§ 119.01(1), 119.07(4), Fla. Stat. (2010) 
• With the exception of county maps or aerial photographs supplied by county constitutional officers, Florida law does not authorize the addition of overhead costs such as utilities or other office expenses to the charge for public records. AGO 99-41. Thus, an agency may not charge for travel time and retrieval costs for public records stored off-premises. AGO 90-07. 
• An agency may not charge fees designed to recoup the original cost of developing or producing the records. AGO 88-23 (state attorney not authorized to impose a charge to recover part of costs incurred in production of a training program; the fee to obtain a copy of the videotape of such program is limited to the actual cost of duplication of the tape). See also, State, Department of Health and Rehabilitative Services v. Southpointe Pharmacy, 636 So.2d 1377, 1382 (Fla. 1st DCA 1994) (once a transcript of an administrative hearing is filed with the agency, the transcript becomes a public record regardless of who ordered the transcript or paid for the transcription; the agency can charge neither the parties not the public a fee that exceeds the charges authorized in Chapter 119, Florida Statutes. 
• See AGO 99-41 (The Public Records Law does not authorize the addition of incidental costs such as utilities or other office expenses to the charge for public records. Nor many an agency charge fees designed to recoup the original cost of developing the records.) 
• An Agency is not ordinarily authorized to charge for the cost to review records for statutorily exempt material. AGO 84-81. However, a special service charge may be imposed if the volume of records and the number of potential exemptions make review and redaction of the records time-consuming and costly. See, Florida Institutional Legal Services v. Florida Department of Corrections, 579 So.2d at 269. See also Herskovitz v. Leon County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), (“it would not be unreasonable in these types of cases [many documents and several potential exemptions] to charge a reasonable special fee for the supervisory personnel necessary to properly review the materials for possible application of exemptions.”) 
• If the nature or volume of public records to be inspected or copied requires the extensive use of information technology resources or extensive clerical or supervisory assistance, or both, the agency may charge a reasonable service charge based on the cost actually incurred by the agency for such extensive use of information technology resources or personnel. 
  • See AGO 90-07, concluding that an agency may not ordinarily charge for travel time and retrieval costs for public records stored off-site; however, if the nature or volume of the records requested, rather than the location of the records, requires extensive clerical or supervisory assistance or extensive use of information technology resources, a special service charge may be imposed under Chapter 119, Florida Statutes. Unless the nature or volume of public records to be requires “extensive” use of information technology resources or “extensive” clerical or supervisory assistance, a special service charge is not authorized. Special services charges should not be routinely imposed, but should reflect the information technology resources or labor costs actually incurred by the agency. See also AGOs 92-38, 86-69 and 84-81. And see, Carden v. Chief of Police, 696 So.2d 772 (Fla. 2d DCA 1996) (special service charge must be “reasonable”). 
  • See AGO 92-38 (Town may not restrict access to and copying of public records because of the number of records requested or the span of time which is covered by the request; however, if extensive use of information technology resources or clerical or supervisory personnel is needed for retrieval of such records, the town may impose a reasonable service charge, based upon the actual costs incurred for the use of such resources). 
  • See Cone & Graham, Inc. v. State, No. 97-4047 (Fla. 2d Cir. Ct. October 7, 1997) (Agency’s decision to “archive” older e-mail messages on tapes so that they could not be retrieved or printed without a systems programmer was analogous to an agency’s decision to store records off-premises; the agency rather than the requestor must bear the costs for retrieving the records and reviewing them for exemptions). 
  • In the Government in the Sunshine Manual (2001, p. 147), the Attorney General counsels that agencies should interpret define “extensive” in a manner that is consistent with the purpose and intent of the Public Records Act and that does not constitute an unreasonable infringement upon the public’s statutory and constitutional right of access to public records. But see Florida Institutional Legal Services, Inc. v. Florida Department of Corrections, 579 So.2d 267 (Fla. 1st DCA), review denied, 592 So.2d 680 (Fla. 1991) (agency rule defining “extensive” to mean that it would take more than 15 minutes to locate, review for confidential information, copy and refile the requested material upheld in face of inmate’s rule challenge).

    F. How long must an agency keep electronic records? 

• AGO 96-34: “E-mail” messages made or received by the employees of an agency in connection with the transaction of official business are subject to the statutory restrictions on destruction of a public record, which require agencies to adopt a schedule for disposal of records, subject to the approval of the Division of Library and Information Services of the Department of State. Section 237.36(6), Florida Statutes, directs agencies to submit to that division a list or schedule of records no longer needed or of significance. In that division’s discretion, such records may be transferred to its possession for preservation or may be discarded. However, no record may be disposed of unless approval of the division is first obtained per section 237.36(7), Florida Statutes. 
• See also AGO 2001-20, pointing out that it is the nature and content of electronic records, not the electronic form of the records, that determines how long such records must be maintained and how they may be disposed of under law and Department of State rules and retention schedules.

IV. Advantages and drawbacks to using requests for electronic public records in litigation

    A. Advantages

        1. Finding and copying electronic records is usually much faster, easier and less expensive than are paper records. 

• Key word or symbol searches of most databases and files is now possible with modern technology, so that vast amounts of information can be scanned quickly to sort out records that are likely relevant to the topic of interest. 
• With standardization of technology, it is becoming the norm that data can be easily exported and read by the same software or by compatible software. 
• Copying it is usually fast and inexpensive, once the data is located. It may be online.

        2. Electronic records are often not the “same” as paper versions; they are better in many ways. 

• Electronic records are difficult to discard. Discarding to a computer doesn’t mean what it means to you and me. The record remains stored in available memory space, noted merely by the computer as space that can be overwritten and used for other purposes. Until overwritten, it is available for retrieval. 
• Electronic records, especially documents produced and stored by word processing programs and “e-mail” programs, automatically back up documents as they are being created and revised, so that various versions of the documents remain stored. 
• Many electronic programs store embedded data about the file that does not appear on a paper, printout version: residual data (back-up files even of deleted files), “embedded” data (information about when the data files are created, who edits them and when, and who accesses them.) 
• See Armstrong v. Executive Office of the President, 821 F. Supp. 761, 767-768, n. 9 (D.D.C. 1993) (“[I]nstructing staff to print out electronic federal records in paper form does not satisfy the requirements of the FRA because often the paper copy does not contain all the information contained in these electronic records. [citation omitted] In other words, the paper copies do not show who knew what and when they knew it.”)
• People tend to treat “e-mail” casually. They often assume, incorrectly, that their electronic conversations are short term, and quickly and permanently discarded. People therefore tend to be less guarded and more frank in their statements in “e-mail” than they would be when committing their thoughts “to paper,” which most of us view as a permanent record. Note that many of the newer voice mail systems are integrated with computer systems. Voice mail on those systems winds up as just another file on the computer system. The casual way in which people tend to communicate by “e-mail” and voice mail makes this category of electronic record particularly inviting for litigation purposes.

        3. Electronic databases are easy to sort and manipulate.

        4. Public record requests are free from scope limitations the discovery rules of the Rules of Civil Procedure. 

• See Lorei v. Smith, 464 So.2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So.2d 695 (Fla. 1985) (the “breadth of such right [to inspect] is virtually unfettered, save for the statutory exemptions….”) 
• See AGO 92-38 (“It is well settled that a request may not be denied because of a lack of specifics in the request or that the request is overbroad. Accordingly, in the absence of a statutory exemption, a custodian must produce the records requested, regardless of the number of records involved or the possible inconvenience.”) 
• Likewise, public record requests are free from timing constraints imposed by civil procedure rules or case management orders.

    B. Disadvantages, roadblocks, and suggestions to overcome them

        1. The agency is not required to answer questions about information in the public records, but merely to make them available for inspection. AGO 92-38. Therefore, the agency probably does not have to provide information in response to a public record request that seeks a description of the agency’s computer hardware, software and the organization of its electronic records. 

• Use the Internet to build background on the agency, its personnel, and its program functions. 
• Take a deposition to get the information you need to frame a public record request. 
• Depose the agency’s IT manager; top programmers, “e-mail” administrator. 
• Find out about: types of hardware and software: how the systems work; types of computer storage media; archiving procedures; hard drives of specific persons; diskettes; CD-ROM devices; laptops issued to specific persons or units; network file servers; and back-up systems, including magnetic tapes. 
• Take a good computer programmer with you.
• Have a good computer programmer help you prepare for the depositions. 
• Have a good computer programmer help you craft the request for public electronic records.

        2. Formatting problems: The agency’s data may be formatted in an older, “legacy” system that is incompatible with your system, making the data unreadable. 

• If the agency developed the system internally, and has not copyrighted it, the agency should be required to supply the code necessary to understand the system logic, and perhaps enable conversion of the data to a format manipulatable by another system (except for situations where the system remains in use and is “sensitive” within the meaning of section 119.07(3)(o). See Seigle v. Barry, supra; State ex rel. Davidson v. Couch, 158 So. 103 (Fla. 1934). 
• If the system is licensed under copyright protection, investigate its continued availability from the vendor. 
• Consider using discovery devices under the Rules of Civil Procedure. The federal courts have found means under the federal rules to require a producing party to make electronic information available in a convenient and usable form to a requesting party. Since Florida’s discovery rules are patterned closely on the federal rules, federal precedents are persuasive. 
• See Daewoo Elec. Co., Ltd. v. United States, 650 F. Supp. 1003, 1006 (Court of Int’l Trade 1986) (“It appears to the court that the placing of … data in sequential files is comparable to the normal ordering of files which would have been done by the respondent in routine discovery of documents. The normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden of a respondent, in the absence of showing extraordinary hardship.”) 
• See Santiago v. Miles, 121 F.R.D. 636, 640 (W.D.N.Y. 1988) (“A request for raw information in computer banks is proper and the information is obtainable under the discovery rules.”) (citing cases). 
• See Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1998) (Responding party may be required to allow discovering party to use responding party’s computer system for the purpose of examining and analyzing data that cannot be read by systems outside of the responding party’s system. The trial court did not abuse its discretion in making such an order, despite the fact that the requesting party could have been provided with print-out versions of the data residing on the responding party’s system.)

        3. Demands for “special service charges” under section 110.07(1)(b), Florida Statutes, to search for the electronic records, or to copy the database for your use. 

• The ability of modern systems to do relational searches undercuts the argument that a broad public record request is burdensome, and therefore undercuts the justification for a special charge to have the computer system search for responsive records. (Ask for specific types of records or for searches of key terms, names, topics, etc., and be as precise as you can be.) 
• Copying data in the electronic form in which the agency maintains it is now a duty of the agency by statute. 
• Consider using the public records mediation program within the Office of the Attorney General to resolve disputes. §16.60, Fla.Stat.

        4. Demands for “special service charges” to inspect and redact exempted or confidential records from the database before supplying it. 

• The Attorney General has advised that agencies should design or develop software with the capability of redacting confidential or exempt information when a public request has been made, in view of the legislature’s refinement of public policy in favor of making electronic records readily accessible. Inf. Op. to Moore, October 19, 1993. 
• If the agency has upgraded its systems and did not design in such a feature, perhaps the agency may not penalize a requesting party for the agency’s failure to design its system in a way that accommodates a prompt and efficient redaction process. 
• If the agency has relatively recent, standardized systems, it is relatively easy to filter out records that are potentially exempt by searching for key names, words, or concepts, or relationships among those things, and thereby to limit the number of files that need to be individually examined for exempt or confidential materials. Likewise, in a database, it is fairly easy to filter out the record fields containing confidential information. 
• An Agency is not ordinarily authorized to charge for the cost to review records for statutorily exempt material. AGO 84-81. Computer – maintained recordkeeping allows responsive records to be identified more efficiently, which reduces the overall burden on the public agency in responding. Therefore, query whether the agency should be allowed to charge for review of files to locate and remove exempt material, particularly since the agency’s system operators should be able to have the computer system identify files or data fields that are likely to contain exempt or confidential information, and thereby reduce the agency’s burden of redacting such information in responding to the public record request.

        5. Assertions that the electronic records (particularly e-mail) do not exist any longer. 

• Test such assertions by deposition. Inquire into compliance with retention schedules, which apply equally to electronic records. Find out whether the agency searched its back-up files and electronic storage files by key word or by similar means to ascertain whether responsive records exist. Find out what specific data storage media sites the agency searched before it concluded that records no longer exist. 
• Be specific and be helpful in your request. If appropriate to the subject matter of the request, ask that the agency inspect data on the hard drives of specific persons, diskettes, CD-ROM devices, laptops issued to specific persons or units, network file servers, and back-up systems, including magnetic tapes.

        6. Assertions that documents (particularly drafts) are not public records because they do not constitute records “intended to perpetuate, communicate, or formalize knowledge.” E.g., Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So.2d 633, 640 (Fla. 1980) 

• If these documents were transmitted to others within the agency (for instance, as an attachment to an “e-mail” message), then they may meet the test for public records by virtue of such transmission, or they may be subject to disclosure as a part of the “e-mail” message. 
• Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., supra (“Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency's later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.”) 
• However, employees’ personal emails are not public records in every case. State v. City of Clearwater, 863 So.2d 149 (Fla. 2003) 
• You may be able to get such records through discovery, even if they cannot be obtained by a public record request. For instance, if the dispute centers on the agency’s intention in forming a contract, the personal notes of the agency personnel involved in negotiating the contract, stored in computer files, are relevant to the subject matter of the action, and are therefore discoverable under the Rules of Civil Procedure, though not technically a record which the agency must produce in response to a public records demand under Chapter 119.