Are public employees' drug-test results from a Florida drug-free workplace program open to a public records request?

Subject

Drug Testing -- Public Records -- Municipalities

Plain-English summary

The City of Fort Meade got a public records request for the drug-test results of city employees. The city ran a drug-free workplace program under Chapter 440, Florida Statutes (the workers' compensation chapter), which gives employers a premium credit for maintaining such a program. The city's attorney asked the AG whether those drug-test results had to be handed over under the Public Records Law.

The AG said no. Section 440.102(8) makes drug-test results and other information from a Chapter 440 drug-testing program confidential. With narrow statutory exceptions that did not apply here, the statute bars releasing that information without a written consent form the tested person signs voluntarily. Because the records are made confidential, not merely exempt, they are outside the reach of section 119.07(1) (the general right to inspect and copy public records) and the public-records right in section 24(a), Article I of the Florida Constitution. So the city could not release its employees' drug-test results in response to the request.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Are public employees' drug-test results public records in Florida?
Under this opinion, drug-test results from a Chapter 440 drug-free workplace program are confidential and exempt from disclosure. They are not open to a routine public records request, even though the employer is a government body.

What does it take to release the results?
The opinion points to section 440.102(8)'s requirement of a written consent form signed voluntarily by the person tested. The form must, at a minimum, name who is authorized to get the information, state the purpose of disclosure, identify the precise information, set the duration of the consent, and carry the signature of the person authorizing release.

Are there any exceptions where results can be disclosed without consent?
Yes, narrow ones, though the opinion found them inapplicable to Fort Meade's request. Section 440.102(8)(b) allows release compelled by an administrative law judge, hearing officer, or court on an appeal under the section, or when deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding.

Does this apply to drug testing not run under Chapter 440?
The opinion's holding is tied specifically to programs implemented under sections 440.101 through 440.102. It cites an earlier opinion (AGO 94-51) noting that the confidentiality protection turned on the testing being conducted under section 440.102, so testing done outside that framework is not covered by this analysis.

Background and statutory framework

The Legislature declared an intent to promote drug-free workplaces, and sections 440.101 through 440.102 let employers, including municipalities, set up qualifying drug-free workplace programs in exchange for a workers' compensation premium credit. Section 440.102(8) supplies the confidentiality rule: information received as a result of such a program is confidential and may not be released without the tested person's signed written consent, apart from the enumerated exceptions.

Florida's Public Records Law works against that backdrop. Section 119.07(1) generally requires a custodian of public records to allow inspection and copying, and section 24(a), Article I of the Florida Constitution recognizes a right of access to public records. But both yield to specific statutory exemptions. The opinion treats section 440.102(8) as making the drug-test records confidential, a stronger protection than a bare exemption, which is why the city was not permitted to disclose them.

Citations

• ss. 440.101 – 440.102, Fla. Stat. (drug-free workplace programs; workers' compensation credit)
• Section 440.102(8), Fla. Stat. (confidentiality of drug-test results; consent form; exceptions)
• Section 119.07(1), Fla. Stat. (general right to inspect and copy public records)
• section 24(a), Article I of the Florida Constitution (constitutional right of access to public records)
• Ops. Att'y Gen. Fla. 98-38, 94-51

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/drug-testing-public-records-municipalities
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1573

Original opinion text

Mr. Thomas A. Cloud

Attorney for the City of Fort Meade

Gray Robinson

Post Office Box 3068

Orlando, Florida 32802

RE: DRUG TESTING – WORKERS’ COMPENSATION – MUNICIPALITIES – PUBLIC RECORDS – confidentiality of drug-test results from program established under Ch. 440, Fla. Stat. ss. 440.101 – 440.102 and 119.07, Fla. Stat.

Dear Mr. Cloud:

On behalf of the City of Fort Meade, you ask substantially the following question:

Are drug test results obtained under a drug-free workplace program implemented pursuant to Chapter 440, Florida Statutes, subject to disclosure under the Public Records Law?

In sum:

Drug test results obtained pursuant to a drug-testing program implemented pursuant to Chapter 440, Florida Statutes, are confidential and exempt from section 119.07(1) and section 24(a), Article I of the Florida Constitution.

You state that a public records request has been made for drug test results for city employees. The materials you have provided indicate that the city has implemented a drug-free workplace program pursuant to Chapter 440, Florida Statutes.[1]

The Legislature has expressed its intent to promote drug-free workplaces in this state.[2] This office has determined that municipalities may use sections 440.101 – 440.102, Florida Statutes, to establish a drug-free workplace program.[3] Section 440.102(8), Florida Statutes, provides for the confidentiality of drug test results or other information received as a result of a drug-testing program.[4] With specific enumerated exceptions[5] not applicable here, the statute precludes the disclosure of any information concerning drug test results obtained pursuant to Chapter 440, Florida Statutes, without a written consent form signed voluntarily by the person tested.[6]

Thus, the provisions in sections 440.101 – 440.102, Florida Statutes, clearly make any information received as a result of a drug-testing program implemented pursuant to Chapter 440, Florida Statutes, confidential and exempt from section 119.07(1), Florida Statutes, and section 24(a), Article I of the State Florida.[7]

Accordingly, it is my opinion that drug test results obtained by a municipality pursuant to a drug-testing program implemented under Chapter 440, Florida Statutes, are not subject to inspection or copying pursuant to a request under Chapter 119, Florida Statutes, Florida’s Public Records Law.

Sincerely,

Pam Bondi

Attorney General

PB/tals

[1] Attached to your request is copy of the city’s application for the workers compensation credit program for fiscal year 2013-14 indicating that the city implemented its drug-free program in 1995; a certificate designating the City of Fort Meade as a Drug-Free Workplace, issued by Public Risk Management of Florida; and a letter from The Department of Financial Services, dated July 25, 2013, acknowledging the city’s entitlement to a premium credit for assessments due the Workers’ Compensation Administration Trust Fund and Special Disability Trust Fund.

[2] Section 440.101(1), Fla. Stat.

[3] See Op. Att’y Gen. Fla. 98-38 (1998).

[4] Cf. Op. Att’y Gen. Fla. 94-51 (1994) (city may not remove consent forms or records of disciplinary action relating to city employees’ drug testing from personnel records when drug testing was not conducted pursuant to s. 440.102, Fla. Stat.); and Inf. Op. to McCormack, dated May 13, 1997 (s. 440.102[8], Fla. Stat., applies to public employees and not to drug test results of public assistance applicants).

[5] Section 440.102(8)(b), Fla. Stat., acknowledges the release of drug-test result "compelled by an administrative law judge, a hearing officer, or a court of competent jurisdiction pursuant to an appeal taken under this section" or when "deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding."

[6] Section 440.102(8)(b), Fla. Stat., states that the consent form must contain, at a minimum:

"1. The name of the person who is authorized to obtain the information.

2. The purpose of the disclosure.

3. The precise information to be disclosed.

4. The duration of the consent.

5. The signature of the person authorizing release of the information."

[7] Section 119.07(1), Fla. Stat., generally requires every person who has custody of a public record to 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. Section 24(a), Art. I, Fla. Const., recognizes a right of access to all public records.