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What If the Florida Agency Claims the Records Don't Exist?

TL;DR: When a Florida agency says it has no records that match your request, that is not always the final word. The agency must run a good-faith search before saying no. Three real reasons records are missing each call for a different follow-up move: the record was never created, it was destroyed under a retention schedule, or it exists somewhere else. A targeted follow-up letter asking the agency to describe its search and identify the applicable retention schedule is your first tool. Section 119.07(1)(f) requires a written explanation on request.

By the end, you will know what duties the agency has when it tells you records do not exist, how to test that answer, and what to do if you have reason to believe the agency is wrong.

What does a "no responsive records" letter actually mean?

What the agency is and is not saying

A no responsive records letter means the agency looked, or says it looked, and found nothing that matches your request. It is not a refusal to produce. It is a claim that nothing is there to produce. That is an important difference.

The agency is also not saying it has a legal right to keep the records from you. It is saying the records are not in its possession. Whether that claim is accurate is a different question, and it is one you can test.

Why the answer is not always the end

Florida's constitution at article I, section 24 gives every person the right to inspect and copy public records. That right is broad. Agencies carry a duty under section 119.07(1) (c) of the Florida Statutes to acknowledge requests promptly and respond in good faith. Good faith means the agency must make reasonable efforts to find out from its officers and employees whether the record exists and where it is. A form letter saying no, without any real search, does not satisfy that duty.

What Florida law requires the agency to do

No duty to create a record that does not exist

Florida law does not require an agency to compile, summarize, or generate information that has not already been put into a record. If you ask for a report that was never written, the agency does not have to write it for you. The Public Records Act gives you access to existing records. It does not create new ones.

But there is a duty to search reasonably and in good faith

The agency cannot simply send a form letter saying no. Section 119.07(1)(c) requires a good-faith response, which includes making reasonable efforts to determine whether the record exists and where it can be found. A good-faith search covers the custodians, systems, and storage locations where the record would ordinarily live.

Duty to acknowledge promptly and respond in good faith under section 119.07(1)(c)

The statute places the obligation on every person who has custody of a public record, not just the named records custodian. If the agency says the search is done but the request covered a broad set of custodians and the agency only checked one filing cabinet, that is not a reasonable search. You are entitled to probe how the search was conducted before accepting the answer.

Three reasons records don't exist, and what to do about each

The record was never created

Some records are never made. An informal verbal decision that was never written down. A meeting that produced no minutes. A policy that existed only in someone's head. If the record was never created, the agency is correct that it does not have one to produce. But if the law required the agency to create the record, and it did not, the absence is itself a compliance problem. A use-of-force report that was required but never filed is not a satisfactory no. Look at whether the agency had an obligation to document the underlying event before accepting the answer.

The record existed and was destroyed under a retention schedule

Every Florida agency record is governed by a retention schedule. Section 119.021 of the Florida Statutes requires the Division of Library and Information Services of the Department of State to adopt rules setting those schedules. Agencies must follow them. A record destroyed before its minimum retention period was unlawfully destroyed. A record destroyed after the minimum period while a public records dispute was active is also a compliance problem. If the agency says the record existed but is gone, ask for the retention schedule that applied and the date and manner of destruction.

The record exists but was not located in the search the agency ran

The most common reason for a no records answer that turns out to be wrong is a search that did not go far enough. The record may be held by a different unit, stored on a system the custodian did not check, or sitting in the records of an official who conducted work on a personal device. A no from one custodian does not mean no across the whole agency.

Pushing back: the follow-up letter

The right follow-up letter asks four things. Send it in writing and keep a copy with the date.

Ask for a description of the search

Ask the agency to describe the search it ran. What steps did it take? Who conducted the search? What search terms or criteria did it use? Section 119.07(1)(f) requires the agency to state the basis for any denial in writing on request. Treating the no records answer as a denial and invoking that section is a reasonable move.

Ask which custodians and systems were searched

A search limited to one office or one database is not a search of the agency. Ask which custodians were asked to look and which electronic or paper systems were checked. If the record concerns communications, ask whether personal email accounts and personal devices of relevant officials were included.

Ask which retention schedule applies and the disposition history

If the agency says the record no longer exists, ask which retention schedule governed records of this type and when the record was destroyed or disposed of. If it was destroyed before the minimum retention period, that is a statutory violation. If it was destroyed during an active public records dispute, that is a serious problem.

Ask whether the record was sent to or received from another agency

A record sent between agencies is a record at both of them. If the original custodian does not have it but the record was generated in connection with inter-agency work, ask whether the record may be with another agency, office, or contractor.

Retention schedules: what the agency was supposed to keep

Section 119.021 and the Department of State retention schedules

Section 119.021 of the Florida Statutes directs the Division of Library and Information Services to set retention schedules and a disposal process for public records. Each agency must follow those rules. The general records schedule for state and local government is publicly available. If you know the record type and the agency, you can look up the minimum retention period before asking.

General records schedules versus agency-specific schedules

The Department of State issues a general records schedule that covers common record types across all state and local agencies. Some agencies also have their own approved schedules for records unique to their function. Both the general schedule and any agency-specific schedule set binding minimums. Destruction before the minimum is unlawful under section 257.36 and section 119.021.

When destruction is improper

Two situations trigger the most serious concern. First, destruction before the minimum retention period. Second, destruction while a public records request or dispute is active. Section 119.07(1)(h) says that if an assertion is made that a requested record is not a public record, the record may not be disposed of for 30 days after the written request was made. If litigation is filed within that 30 days, the agency may not dispose of the record without a court order. Destruction in violation of these rules can support penalties under section 119.10 and fee shifting under section 119.12.

When the record exists somewhere else

The official-business test reaches personal devices

A record made or received in connection with official business is a public record regardless of the device or account it lives on. A text message sent from a public official's personal phone about agency business is a public record. An email sent from a personal account about official decisions is a public record. An agency's no responsive records answer is incomplete if it did not ask relevant officials and employees to search their personal accounts and devices for work-related items.

Cross-agency requests

A record sent from one agency to another is a record at both of them. If the original custodian says it does not have a record that you believe was shared with or generated by another agency, send the same request to the receiving or originating agency. An agency cannot avoid its obligations by transferring physical custody of records to another agency.

Contractors under section 119.0701

Section 119.0701 of the Florida Statutes requires contractors performing services for a public agency to keep public records and produce them on request. If the function at issue was outsourced to a private contractor, the records may be with the contractor rather than the agency. Ask whether a contractor handled the relevant function and send the same request to the contractor.

Escalation when you don't believe the answer

Section 119.07(1)(f) written basis

Invoke section 119.07(1)(f) and ask the agency to state in writing the basis for its no records answer. Treat the no records response as a denial and demand the written statutory explanation. An agency that refuses to engage at all provides evidence that its search was not conducted in good faith.

AG mediation program under section 16.60

Section 16.60 of the Florida Statutes establishes a free, informal mediation program for public records disputes within the Office of the Attorney General. It is voluntary on the agency's side but widely used. Contact the AG's open-government mediation program in writing and describe the agency, the request, the no records answer, and the dates. Agencies that ignore the program and later face a lawsuit and an attorney-fee award have made the wrong bet.

Section 119.12 pre-suit notice and mandamus posture

If earlier steps fail, section 119.12 of the Florida Statutes provides a path to court. Before filing a civil action, the statute requires a written notice to the agency's custodian identifying the public records request. The notice must be sent at least five business days before filing. In a mandamus posture, you must allege specific facts showing that records exist or should have existed. Specific dates, officials, events, and the record-creation duties tied to those events carry the petition. A court will not order an agency to produce something you cannot show should exist.

The practical floor: not every no records answer is wrong

Some records genuinely do not exist. Not every agency response is a stall. The goal is to give you a method to test the answer, not a promise that records are always there. If the agency describes a reasonable search that covered the right custodians, systems, and retention schedules, and your request asked for records that were never created or were lawfully disposed of, the no records answer is likely correct. The follow-up letter and the escalation ladder are tools for the cases where the answer does not hold up under scrutiny.

Related

• What to do if your Florida public records request is denied
• What to do when a Florida agency ignores your public records request
• Are emails to Florida government officials public records
• Are text messages from Florida elected officials public records
• How to request public records in Florida

Frequently asked questions

What does it mean when a Florida agency says it has no responsive records?

It means the agency claims, after some search, that no record matching the request was found in its possession. The agency does not have to create a record that does not exist. The agency does have to conduct a good-faith search before saying no.

Can I challenge a no responsive records answer?

Yes. You can ask the agency to describe the search it ran, identify the custodians and systems searched, and identify the retention schedule for records of this type. Section 119.07(1)(f), Florida Statutes, requires the agency to state the basis for any denial in writing on request.

Are records on a Florida official's personal phone or email public records?

Records made or received in connection with official business are public records regardless of the device or account they are stored on. A no responsive records answer that ignores work-related communications on personal accounts is incomplete.

Can a Florida agency destroy records to avoid producing them?

No. Florida agencies must follow retention schedules set under section 119.021, Florida Statutes. Destroying records before the minimum retention period or during a known dispute is unlawful and can trigger penalties under section 119.10 and fee exposure under section 119.12.

Does the agency have to search personal devices and personal email?

When work-related records are stored on personal devices or accounts, the agency's good-faith search duty extends to them. The agency typically asks the relevant officials and employees to identify and produce responsive items.

What if the record exists at a different agency?

The original agency does not have to produce records it never had. Ask which agency or custodian likely holds the record and redirect the request there. Under section 119.0701, contractors performing services for a public agency must also keep and produce public records.

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.