Can a Florida school district delay a public records request to let employees claim an exemption?

Plain-English summary

The Superintendent of Washington County Schools asked two questions about the names of employees and dependents enrolled in the district's self-insured health plan. First, since a recent Polk County circuit court ruling (Chandler v. School Board of Polk County) had found that school board was not a HIPAA-covered entity, and Washington County is self-insured and therefore arguably is covered, would HIPAA override Florida's Public Records Law and bar release of who is enrolled? Second, could the district give employees a chance to assert the section 119.071(4) exemption before responding to a records request? Assistant Attorney General Lagran Saunders answered the second question and declined the first.

On HIPAA, the office explained it generally does not interpret federal law, so it would not opine on whether HIPAA preempts the Public Records Law; it enclosed a similar prior informal opinion noting that simply identifying plan participants does not clearly amount to protected medical information. On the delay question, the answer was firm: no automatic delay is allowed. Under the Florida Supreme Court's Tribune Company v. Cannella decision, the only permissible delay under Chapter 119 is the limited reasonable time the custodian needs to retrieve the record and redact what is exempt. The Public Records Law does not allow extra time to notify employees so they can assert the section 119.071(4) exemption, and that exemption requires a written request to maintain it, with nothing suggesting the request can be made after a records request comes in.

Currency note

This opinion was issued in 2008. 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.

Background and statutory framework

Section 119.071(4) lets an agency that holds personal information, but is not the individual's employing agency, maintain the information's exempt status only if the individual or the employing agency makes a written request that the exemption be kept. The opinion noted nothing indicates that request can be made after a public records request has already been submitted. Generally, the date that controls whether a document is disclosable is the date the records request is made, applying the law in effect then; the office cited Baker County Press, Inc. v. Baker County Medical Services for that point.

On timing, Tribune Company v. Cannella holds that the only delay Chapter 119 tolerates is the limited reasonable time to retrieve a record and delete exempt portions. Building in a separate waiting period so employees can be notified and assert an exemption is not that kind of permissible delay. The office kept clear of the HIPAA preemption question, consistent with its practice of not interpreting federal law, and pointed the superintendent to its enclosed informal opinion addressing a comparable inquiry.

Common questions

Q: Can a Florida school district pause a records request to let employees object first?
A: No. The AG's office said Chapter 119 allows only the brief time needed to retrieve the record and redact exempt parts, not an added delay to notify employees so they can claim an exemption.

Q: Does HIPAA let a self-insured district hide who is in its health plan?
A: The opinion did not decide. The office does not generally interpret federal law and declined to opine on HIPAA preemption, while noting a prior opinion that merely identifying plan participants is not clearly protected medical information.

Q: When does the law that controls disclosure get fixed?
A: Generally as of the date the public records request is made. A written request to maintain the section 119.071(4) exemption made only after the records request would not appear to apply.

Citations and references

Statutes:

• s. 119.071(4), Fla. Stat. (exemption for personal information held by a custodian agency)
• Ch. 119, Fla. Stat. (Public Records Law)

Cases:

• Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), only permissible delay is the time to retrieve and redact
• Baker County Press, Inc. v. Baker County Medical Services, 870 So. 2d 189 (Fla. 1st DCA 2004), disclosure judged as of the date of the request

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/public-records-school-district-employees
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8234

Original opinion text

Dr. Sandra Cook

Superintendent

Washington County Schools

652 Third Street

Chipley, Florida 32428

Dear Dr. Cook:

You have asked whether the school district must release information identifying employees and dependents of same who participate in the school district's health plan. You cite to the recent Polk County circuit court case, Chandler v. School Board of Polk County,[1] and its conclusion that the school board was not a covered entity under the Health Insurance Portability and Accountability Act (HIPPA), stating that Washington County is self-insured and, therefore, would be a covered entity. If so, you question whether HIPPA would preempt the provisions of Florida's Public Records Law precluding the release of information on those enrolled in the district’s self-insurance plan. You also ask whether the district may provide employees reasonable opportunity to assert the exemption in section 119.071(4), Florida Statutes, prior to responding to a public records request.

This office recently commented upon a similar situation posed by Senator Paula Dockery. The informal opinion noted the confidentiality of medical information, but concluded that identifying information regarding participants in a school district's health insurance plan did not clearly constitute protected medical information. A copy of the informal opinion to Senator Dockery is enclosed for your review.

As stated in the informal opinion to Senator Dockery, this office does not generally comment upon Federal law and a response to your first question would necessarily involve interpretation of HIPPA. In regard to your second question, this office has consistently stated that no automatic delay is permissible. The Florida Supreme Court has stated that the only delay in producing records allowed under Chapter 119, Florida Statutes, "is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt."[2] Thus, this office would advise that the Public Records Law does not allow a delay in the production of public records in order for the school district to notify employees who may be able to assert the exemption in section 119.071(4), Florida Statutes.

I would note that section 119.071(4), Florida Statutes, states that an agency that is the custodian of personal information, but is not the employing agency of the individual may maintain the exempt status of the information only if the individual or his or her employing agency makes a written request that the exemption be maintained. There is nothing to indicate that such a written request for maintenance of the exemption may be made after a request for the public record has been made. Generally, the date in determining whether a document is subject to disclosure is the date the public records request is made, making the law in effect on that date applicable.[3]

I trust these comments and the enclosed informal opinion will be of assistance to you in addressing this matter.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

Enclosure

[1] Case No. 2008CA-004389, Tenth Judicial Circuit in and for Polk County, Order Granting Plaintiff’s Motion for Summary Judgment, The Honorable Roger A. Alcott, Circuit Judge, October 9, 2008.

[2] Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub. nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985).

[3] See Baker County Press, Inc. v. Baker County Medical Services, 870 So. 2d 189, 192-193 (Fla. 1st DCA 2004).