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The Special Service Charge Trap in a Florida Public Records Request

Written by Adam Bair.

TL;DR: A Florida public records special service charge is an extra fee for staff or computer time. The agency may add it only when the nature or volume of a request calls for extensive work. Get the hours, the rate, and the total in writing before you pay.

This guide covers when the fee applies and what the bill has to show. It also shows how to push back on a number that looks too high.

The default rule: inspection is free, copies are cheap

A public record is one an office made or received pursuant to law, or for its official business. The state constitution gives each person a right to see and copy it.

Under Section 119.07(1)(a), any person desiring to see a record may look at it. In most cases there is no fee just to look. State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905).

Section 119.07(4)(a) of the Florida Statutes caps a one-sided copy at 15 cents. A second side adds up to 5 cents, and a certified copy costs up to $1.

Other copies cost only the actual cost of duplication. Under Section 119.011(1), that means the cost of the supplies, with no labor and no overhead.

The exception: Section 119.07(4)(d)

Section 119.07(4)(d) covers a request whose size or type calls for extensive use of information technology resources. It also covers a request that needs extensive clerical or supervisory assistance from staff.

In those cases, the agency may charge a fee on top of the copy cost. The law says the charge shall be reasonable and based on the cost incurred for that work.

The fee can apply to a visit to look, not just to copies, when the work is truly extensive. Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008).

What does extensive mean?

The law does not define extensive, as AGO 13-03 notes. The Attorney General urges each office to use the fee without cutting into public disclosure.

Just using a computer is not enough, since the use must be extensive. AGOs 13-03 and 99-41 both say so.

The fee must be reasonable

One court sent back a fee of more than $4,000 so the office could explain its size. Carden v. Chief of Police, 696 So. 2d 772, 773 (Fla. 2d DCA 1996).

The Florida Supreme Court has warned that padded fees keep people from records they have a right to see. There, a copy fee by the hour and a fee by the hour for staff to watch broke the law.

That case is Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 122 (Fla. 2016).

How the labor rate is supposed to be calculated

Actual labor costs incurred by the agency

The fee should match the labor cost the office truly bears, not a made-up billing rate. Ask who does the work, the hourly rate, and the hours.

Pay plus benefits is allowed; billing for regular work is hard to justify

In the Colby case, the county could count both pay and benefits, as long as the total stayed fair.

A fee is hard to justify when staff do their regular jobs while they help you. AGO 00-11 says so, and it says the office must decide case by case, not by rote.

Lowest-paid qualified employee question (Trout v. Bucher)

An office does not have to use its lowest-paid worker. Trout v. Bucher, 205 So. 3d 876 (Fla. 4th DCA 2016). But the labor cost still has to be one it truly paid.

What the agency cannot bill for

Can the agency charge to review records for an exemption?

As a rule, an office may not charge you to check records for closed parts, says AGO 84-81. Each closed part rests on an exemption in the law.

A large request can change that, when the set may hold many parts to black out. City of St. Petersburg v. Dorchester Holdings, LLC, 331 So. 3d 799 (Fla. 2d DCA 2021).

What if you take your own photos of the records?

Section 119.07(3)(a) gives any person a right to photograph a public record while the office holds it. You take the photos in the room where the office keeps it, or in another room or place.

If the office needs another room, the person desiring to photograph a public record pays the expense of providing it. That rule is in Section 119.07(4)(e)1.

The office may bill the person making the photographs a fee for supervision services. You and the office agree on the rate. If you cannot agree, the custodian sets the appropriate charge.

That rule is in Section 119.07(4)(e)2. In that case the office may not add copy fees on top, says AGO 82-23.

How to push back on an inflated invoice (step by step)

  1. Ask for the breakdown in writing: who does the work, the rate, and the hours. An office that gives no estimate before it hands over records may lose its fee. Miami Dade College v. Nader + Museu I, LLLP, 373 So. 3d 10 (Fla. 3d DCA 2022).
  2. Ask the office to explain why the work is truly extensive.
  3. Narrow the request by dates, people, file types, or subject.
  4. Ask to look instead of buying copies, or bring a camera and take your own photos.
  5. Ask for records in batches, so you can stop once you have what you need.
  6. Try the free open government mediation program the Attorney General runs under Section 16.60.
  7. Keep your Section 119.12 options open if the fee works like a denial. See the next section.

When the inflated charge becomes a Section 119.12 unlawful refusal

An unlawful condition or a padded fee can count as an unlawful refusal under Section 119.12. The Florida Supreme Court said so in Lee, 189 So. 3d at 129-130.

To seek fees in court, give the custodian separate written notice of the public record request. Do it at least 5 business days before you sue, under Section 119.12(1)(b). See what to do when an agency goes silent.

An office may ask for a fair deposit for a large request, as the Colby court noted. It may also hold back new records until you pay an old bill. Lozman v. City of Riviera Beach, 995 So. 2d 1027 (Fla. 4th DCA 2008).

But once you pay what you owe, the office cannot ban you from records for good. Smith v. State, 335 So. 3d 795 (Fla. 2d DCA 2022).

Related

Frequently asked questions

When can a Florida agency charge for staff time on a public records request?
Only when the request calls for extensive staff or computer work, under Section 119.07(4)(d). The fee must be fair and must match what the work cost.
What does extensive mean?
The law does not define it. The office has to decide case by case, and just using a computer is not enough.
Can the agency charge me for the time it takes to black out closed parts?
Not as a rule. A large set of records with many parts to check can support a fee for that review.
Can the agency charge me for overhead, utilities, or travel time?
The Attorney General says no to overhead and to travel time for records kept off site. The office also cannot bill you for the first cost of making the record.
What can I do if the cost estimate looks inflated?
Ask for a written breakdown, narrow the request, and ask to look instead of buying copies. You can also try the free mediation program the Attorney General runs.
Can the agency demand a deposit before doing the work?
Courts have upheld fair deposit rules for large requests. The deposit should track the real cost of the work.

Not legal advice. Educational and informational content only. Reading this site does not create an attorney-client relationship. For advice on a specific matter, consult a licensed Florida attorney.