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The 5-Day Notice Trap Before Suing Under Section 119.12

Written by Adam Bair.

TL;DR: Florida law lets you collect attorney fees from an agency that wrongly refuses public records, but only if you first send the agency's records custodian a separate written notice that points to your request and wait 5 business days. The original records request does not count as the notice. You can skip the notice if the agency does not post its custodian contact info in its main building and on its website. Get this step wrong and you can win the case and still pay your own lawyer.

What the 5-business-day notice rule actually says

Section 119.12(1)(b), Florida Statutes, requires a complainant to provide written notice identifying the public record request to the agency's custodian of public records at least 5 business days before filing the civil action. The notice period begins on the day the written notice is received by the custodian and excludes Saturday, Sunday, and legal holidays.

The notice serves one purpose: it gives the agency a last chance to produce the records before a lawsuit is filed. If the agency hands over the records during those 5 days, the requester still has a valid case and can still recover attorney fees. If the agency ignores the notice and the requester wins, the court shifts the agency's fees and costs to the agency.

Florida Constitution Article I, Section 24 frames the constitutional backdrop: access to public records is a fundamental right in Florida. Section 119.12 enforces that right by making the cost of unjustified refusals land on the agency, not the person who asked.

Why the original records request is not the notice

The most common mistake in Florida public records litigation is assuming the original records request doubles as the 5-business-day notice. It does not. The Fourth District Court of Appeal settled this in 2023.

The Roldan rule, in plain words

In Roldan v. City of Hallandale Beach, 331 So. 3d 348 (Fla. 4th DCA 2023), the court held that Section 119.12(1) requires a separate written notice identifying the public record request before filing a public records lawsuit. A written public records request sent to the agency custodian is not, by itself, sufficient notice.

Lawyers who learned Florida public records litigation before the 2017 amendment may remember when the original request itself put the agency on notice. The 2017 amendment to Section 119.12 added the formal notice requirement, and Roldan in 2023 confirmed that courts read it as a separate-document requirement. The rule is now settled.

What the notice must contain

The statute does not dictate a specific form, but the notice has three required attributes. Miss any one and the notice may fail.

A separate document

The notice must be a document separate from the original records request. Do not combine the two in one letter, attach the notice to the original as an afterthought, or rely on email threads that contain both. Write the notice as a standalone document.

Identifies the public record request

The notice must identify the specific public record request the requester intends to sue over. Include the date the request was submitted, the custodian it was addressed to, and a brief description of what was asked for and what the agency refused or failed to produce. Vague or generic notices create a risk the agency challenges the sufficiency of the notice at the fee hearing.

Sent to the agency's custodian of public records

The notice must go to the agency's custodian of public records, not to the agency's general counsel, public information officer, or front-counter clerk. If you are unsure who the custodian is, send the notice to every plausible custodian. The cost is postage. The risk of choosing wrong is loss of fees.

How the 5-business-day clock works

Business days, not calendar days

Five business days means Saturday, Sunday, and legal holidays do not count. If you deliver the notice on a Friday, Monday is day one if Monday is not a holiday. If Monday is a holiday, Tuesday is day one. Count forward 5 business days from there before filing.

When the clock starts

The clock starts the day the custodian receives the notice, not the day you send it. Best practice is delivery by a method that creates a date-stamped receipt: certified mail return receipt, email with a read receipt or the custodian's auto-reply, or hand delivery with a signed acknowledgment. You will need to prove the receipt date at the fee hearing if the agency challenges it.

When you can skip the notice

The custodian-posting exception under Section 119.12(2)

Section 119.12(2) excuses the notice if the agency does not prominently post the contact information for its custodian of public records. For the exception to apply, the posting must be absent from both: (1) the agency's primary administrative building in which public records are routinely created, sent, received, maintained, and requested, and (2) the agency's website, if the agency has one.

Both prongs must be missing. If the agency posted custodian contact information in either location, the notice is required. Finding the posting on the website but not in the building does not excuse the notice. Finding it in the building but not on the website does not excuse the notice.

How to prove the posting was missing

If you intend to rely on the posting exception, preserve evidence before filing. A timestamped photograph of the entrance and lobby of the agency's primary administrative building showing no custodian contact information gives you admissible proof. An archive.org capture or dated screenshot of the agency's website with no custodian posting visible covers the web prong. A contemporaneous written note describing what you looked for and what you found ties both pieces together.

What happens if you skip the notice without the exception

If the requester files without sending the notice and cannot rely on the posting exception, the court has no statutory authority under Section 119.12(1) to award the requester reasonable costs of enforcement or reasonable attorney fees. The court may still issue the writ of mandamus and order the agency to produce the records. The records come, but the fees are gone.

This matters most for cases with a lawyer. If you spent money on an attorney and you miss the notice, you win the records but you pay the bill yourself. The agency walks away without penalty. That outcome is what the 5-business-day notice rule is designed to prevent when agencies stall in bad faith.

For a full picture of what you can recover and the traps that can wipe out a fee award, see our article on attorney fees in Florida public records cases. For the full mandamus playbook, see how to sue a Florida agency for refusing to produce public records.

Notice template

The template below satisfies the Section 119.12(1)(b) requirements. Fill in the bracketed fields and deliver to the custodian of public records by a method that creates a receipt. Keep your copy and your proof of delivery.

[YOUR NAME]

[YOUR ADDRESS]

[YOUR EMAIL OR PHONE]

[DATE]


Custodian of Public Records

[AGENCY NAME]

[AGENCY ADDRESS]


Re: Notice of Intent to File Civil Action Under Section 119.12, Florida Statutes


Pursuant to Section 119.12(1)(b), Florida Statutes, I am providing you with written notice that I intend to file a civil action to enforce Chapter 119, Florida Statutes, if the public record request described below is not satisfied within 5 business days of your receipt of this notice.


Public record request at issue:

Date of original request: [DATE OF ORIGINAL REQUEST]

Submitted to: [NAME AND TITLE OF PERSON ADDRESSED]

Records requested: [BRIEF DESCRIPTION OF WHAT WAS REQUESTED]

Agency response to date: [DESCRIBE REFUSAL, LACK OF RESPONSE, OR PARTIAL PRODUCTION]


The agency's failure to produce the requested records constitutes an unlawful refusal under Chapter 119, Florida Statutes. I request that the agency produce the records within 5 business days of receipt of this notice.


Sincerely,


[YOUR NAME]

A few practice points. If you have sent multiple requests on related topics, list each one by date and custodian in the same notice rather than sending one notice per request. The statute requires the notice to identify the public record request. One notice that identifies several requests covers all of them and gives the agency one consolidated cure window.

Frequently asked questions

What is the 5-business-day notice under Section 119.12?
It is a separate written notice the requester must give the agency's custodian of public records at least 5 business days before filing a public records lawsuit, if the requester wants the court to award attorney fees.
Does the original public records request count as the 5-business-day notice?
No. The Fourth District Court of Appeal in Roldan v. City of Hallandale Beach, 331 So. 3d 348 (Fla. 4th DCA 2023), held that the 5-business-day notice must be a separate written document that identifies the public record request.
When can a requester skip the 5-business-day notice?
Section 119.12(2) excuses the notice if the agency does not prominently post its custodian of public records contact information both in the agency's primary administrative building and on the agency's website (if the agency has a website). Both prongs must be missing.
How do you count 5 business days?
The clock starts the day the custodian receives the notice. The 5-day count excludes Saturday, Sunday, and legal holidays.
What happens if you sue without sending the notice?
The court may still issue the writ and order production, but the court has no statutory authority under Section 119.12(1) to award the requester attorney fees or costs.
Does the notice waive your right to sue?
No. Sending the notice does not waive any rights or restart any internal agency clock. It is a precondition to fee-shifting only.
Should the notice go to the agency's general counsel?
No. The statute requires the notice to go to the agency's custodian of public records. If unsure, send it to every plausible custodian.

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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.