Judges: Charlie Crist Attorney General
Filed Date: 6/1/2005
Status: Precedential
Modified Date: 7/5/2016
Mr. W. Nelon Kirkland Attorney for the Manatee County Property Appraiser Post Office Box 400 Bradenton, Florida 34206-400
Dear Mr. Kirkland:
On behalf of the Honorable Charles E. Hackney, Manatee County Property Appraiser, you ask substantially the following questions:
1. May a property appraiser enter into an agreement with a private company to provide public records, excluding exempt or confidential information, to such company which will then repackage the information and provide the property appraiser with either in-kind services or a share of the profits or proceeds from the sale of the information?
2. May the property appraiser accept electronic records such as requests for exemptions as allowed by law or other filings, whether signatures are requested or not, from members of the public and store such information electronically?
Question One
It is the policy of this state that all state, county, and municipal records are open for personal inspection by any person. Providing access to public records is a duty of each agency.1 Section
"Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records."
It has long been the opinion of this office that, in the absence of a statute to the contrary, public information must be open to the public without charge.2 The provision of access to public records is a statutory duty imposed by the Legislature upon all records custodians and should not generally be considered a revenue-generating operation.3
Moreover, the courts and this office have recognized that the Legislature has made the requirements of Chapter
With respect to permitting inspection of public records or furnishing copies, section
"(a)1. Up to 15 cents per one-sided copy for duplicated copies of not more than 14 inches by 8½ inches;
2. No more than an additional 5 cents for each two-sided copy[.]"5
For other copies, the charge is limited to the actual cost of duplication of the record.6
In addition, section
This office has stated that only those fees or charges that are authorized by statute may be imposed.9 Thus, while the property appraiser may provide public records to a private company, he or she may only charge and receive the fees prescribed by statute. I am not aware of any provision generally authorizing the property appraiser to enter into an agreement with a private company to provide public records whereby the property appraiser would receive either a percentage of the profits from the resale of such information by the private company or in-kind services.10
Accordingly, I am of the opinion that while the property appraiser may provide public records, excluding exempt or confidential information, to a private company, the property appraiser may only receive those fees that are authorized by statute and thus may not, in the absence of a statute so providing, enter into an agreement with such company where the property appraiser provides such records in exchange for either in-kind services or a share of the profits or proceeds from the sale of the information by the private company.
Question Two
You ask whether the property appraiser may accept electronic records, such as requests for exemptions or other filings, from the public and store such information electronically.
Section
"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."
Subsection (2)(f) of the statute states in part that 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 that is not exempted by law from public disclosure.11
I am not aware of, nor have you brought to the attention of this office, any provision prohibiting the property appraiser from maintaining records electronically. Section
Part II of Chapter
"Except as otherwise provided in paragraph (12)(f), each governmental agency shall determine whether, and the extent to which, such agency will send and accept electronic records and electronic signatures to and from other persons and otherwise create, generate, communicate, store, process, use, and rely upon electronic records and electronic signatures."15
The statute does not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form; rather, it only applies to transactions between parties where each patry has agreed to conduct transactions by electronic means.16
Section
"(a) A record or signature may not be denied legal effect or enforceability solely because the record or signature is in electronic form.
(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in the formation of the contract.
(c) If a provision of law requires a record to be in writing, an electronic record satisfies such provision.
(d) If a provision of law requires a signature, an electronic signature satisfies such provision."
If a law requires that a record be retained, that requirement is satisfied by retaining an electronic form of the information. Such electronic form must accurately reflect the information set forth in the record after the record was first generated in final form as an electronic record or otherwise and must remain accessible for later reference.17
In light of the above, it appears that the property appraiser may accept electronic records, including those for which a signature is required, and may store such information electronically. In light of the responsibilities of the Department of Revenue in this area and its authority to prescribe the forms to be used, it may be advisable to contact the department on this matter.
Sincerely,
Charlie Crist Attorney General
CC/tjw
reversed on other grounds,
"If the nature or volume of public records requested to be inspected or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both." (e.s.)
And see s.
"(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.
(c) An agency may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of the agency, including public records that are on-line or stored in an electronic recordkeeping system used by the agency.
(d) Subject to the restrictions of copyright and trade secret laws and public records exemptions, agency use of proprietary software must not diminish the right of the public to inspect and copy a public record."
"(g) "Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.
(h) "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(i) "Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of this state, including a county, municipality, or other political subdivision of this state and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency."