Can a Florida hospital district pay a board member's attorney fees for help responding to a public records request?
Plain-English summary
A South Broward Hospital District commissioner hired a private attorney to help respond to a public records request that swept in records on her personal computer and phone (the district had not provided official email or phones for commissioners). Allegations of a Sunshine Law violation surfaced, but no formal charge or lawsuit was ever filed. The district's general counsel then asked the AG whether the district could pay the commissioner's private legal bills out of public funds.
Attorney General Pam Bondi said no. The narrow Florida statute that authorizes a public board to reimburse a member's attorney's fees, § 286.011(7), is triggered only when (1) the member is "charged with" a Sunshine Law violation and (2) the member is later acquitted of that charge. Both events have to occur. Mere allegations or anticipated litigation are not enough. Because no formal charge was filed against the commissioner, that statute did not authorize reimbursement.
The AG also confirmed that the district's enabling act (Chapter 2004-397, Laws of Florida) does not contain its own attorney-fee reimbursement provision parallel to § 286.011(7), and that the public-records statute itself only allows fee shifting to a successful plaintiff who has to sue an agency to compel inspection. As a creature of statute, the district can only do what the statute expressly permits or what is necessarily implied; without express authority, the bill stays with the commissioner personally.
Currency note
This opinion was issued in 2016. 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
Q: When can a board reimburse a member's attorney's fees under § 286.011(7)?
A: Only after both events occur: the member was "charged with a violation" of the Sunshine Law in a formal proceeding, and the member is "subsequently acquitted." If either box is empty, the statute does not apply.
Q: Why did the AG read the statute so narrowly?
A: Because special districts and their boards are statutory creatures with only the powers the Legislature has expressly given them, plus those necessarily implied. Where doubt exists about a power, doubt is resolved against the power. § 286.011(7) is the only Sunshine-related fee provision the Legislature wrote, and the AG was unwilling to extend it beyond its terms.
Q: What about § 111.07, which lets agencies provide a defense attorney for officers?
A: That statute covers a different situation, namely civil tort or damages actions arising out of an officer's official conduct. It does not authorize prepaid private counsel to assist with public records compliance, and its protections drop out when the officer acted in bad faith.
Q: What about § 119.12, the records-act fee provision?
A: § 119.12 only shifts fees to a prevailing plaintiff who sued an agency that "unlawfully refused" to allow inspection. It is not a reimbursement vehicle for the agency or its members.
Q: What is the lesson for special districts and their members?
A: Two practical takeaways. First, a public official who uses personal devices for public business should expect that those devices will be searched in response to public records requests, and that the cost of any private counsel they retain to help with that search likely sits with them personally. Second, districts that want to provide legal cover for commissioners need to look hard at whether their enabling act or general law supplies the authority; § 286.011(7) is narrow, and silence elsewhere usually means the district cannot pay.
Q: Could the district have provided counsel from the start?
A: The district's own counsel was offered to help extract the records but the commissioner declined out of independence concerns. The AG opinion does not foreclose a district providing in-house or contracted attorneys to assist commissioners with records compliance proactively; the question presented was reimbursement after the fact, which is what § 286.011(7) regulates.
Background and statutory framework
Florida's Public Records Law, Chapter 119, Florida Statutes, defines records broadly and imposes the duty to produce on the agency. The South Broward Hospital District is a special district of the state created by Chapter 2004-397, Laws of Florida. Its enabling act gives the commissioners broad operational powers, requires them to keep "true and accurate minutes and records," and mandates that those records be open to inspection by the public.
§ 286.011(7) is a freestanding fee-shifting provision tied to the Sunshine Law. Its trigger requires a formal "charge" of a Sunshine violation and an "acquittal." § 119.12 is a separate fee-shifting provision tied to the Public Records Act, but it works the other way: a person who sues to enforce records access and prevails can recover fees from the agency. Neither statute authorizes an agency to pre-fund or reimburse a board member's private counsel for help producing records when no enforcement litigation is pending.
§ 111.07 sits adjacent to these provisions. It permits a state, county, municipal, or political-subdivision agency to provide an attorney to defend an officer in a civil action arising out of an act or omission within the scope of employment, but the action has to be one for damages or injury, and the protection does not extend to bad-faith or wanton conduct. Responding to a public records request is not a "civil action" against the officer, so § 111.07 does not engage.
The settled doctrine for special districts, articulated in Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974), and Fiat Motors v. Calvin, 356 So. 2d 908 (Fla. 1st DCA 1978), is that an administrative agency has only the powers expressly granted by statute and those necessarily implied. Doubts about a particular power get resolved against its exercise. With no express grant and no obvious implication, the AG concluded the district could not lawfully pay.
Citations
- § 286.011(7), Fla. Stat. (Sunshine Law fee reimbursement: charge plus acquittal)
- § 119.07(1), Fla. Stat. (public records inspection right)
- § 119.12, Fla. Stat. (fees to a successful records-enforcement plaintiff)
- § 111.07, Fla. Stat. (agency-provided defense in civil actions)
- Ch. 2004-397, Laws of Florida (South Broward Hospital District enabling act)
- Greenberg v. Fla. State Bd. of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974) (statutory-creature doctrine)
- Fiat Motors v. Calvin, 356 So. 2d 908 (Fla. 1st DCA 1978) (limits on agency powers)
- Gardinier, Inc. v. Fla. Dep't of Pollution Control, 300 So. 2d 75 (Fla. 1st DCA 1974) (doubts resolved against power)
Source
- Landing page: https://www.myfloridalegal.com/ag-opinions/south-broward-hospital-district-public-records
- Original PDF: https://www.myfloridalegal.com/print/pdf/node/1502
Original opinion text
Ms. Kimarie Stratos
General Counsel
Memorial Healthcare System
South Broward Hospital District
3111 Stirling Road
Fort Lauderdale, Florida 33312
RE: SOUTH BROWARD HOSPITAL DISTRICT – PUBLIC RECORDS – ATTORNEY'S FEES – PUBLIC FUNDS – authority of district to reimburse attorney's fees to individual commissioner retaining private counsel to respond to public record request. ss. 119.07 and 286.011, Fla. Stat.
Dear Ms. Stratos:
As general counsel to the South Broward Hospital District, you submit substantially the following question:
May the district reimburse a board member's attorney's fees incurred by her in responding to a public records request pertaining to her board service when no suit, claim, charge, or action has been instituted against the commissioner during the time the attorney's fees were incurred?
In sum:
The South Broward Hospital District is not authorized to reimburse a board member for attorney's fees incurred by her in responding to a public records request when no suit, claim, charge or action has been instituted against the commissioner during the time the attorney's fees were incurred.
You have provided the following background. The South Broward Hospital District (hospital district) was conducting a search for a new chief operating officer. A public records request was made of all commissioners in relation to the search. Allegations of violation of section 286.011, Florida Statutes (Government in the Sunshine Law) were made, but no legal action was filed, and the subject commissioner retained private counsel to assist in her response to the public records request. The district did not provide a district email address or phone for individual commissioners to conduct district business such that the commissioner's private computer and telephone records had to be reviewed to recover the requested public records. Due to her concerns about the independence of the district's counsel, the commissioner was unwilling to turn over all of her records to the district's counsel for review or to make use of the district's information technology staff who were made available to all commissioners to extract and copy responsive material from their individual devices. At no point were any legal charges filed against the commissioner.
Section 286.011(7), Florida Statutes, provides:
"Whenever any member of any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision is charged with a violation of this section and is subsequently acquitted, the board or commission is authorized to reimburse said member for any portion of his or her reasonable attorney's fees."
While the language in section 286.011(7), Florida Statutes, is clear in the parameters which must be met before a member of a board may be reimbursed for his or her attorney's fees in successfully defending a charge of violation of the Government in the Sunshine Law, the facts in this situation are that no legal action has been filed against the commissioner and she retained private counsel in order to respond to a public records request.[1] The authority extended by section 286.011(7), Florida Statutes, to reimburse attorney's fees, therefore, is not applicable.
Chapter 2004-397, Laws of Florida, is the enabling legislation for the South Broward Hospital District. The act sets forth the broad powers of the district's governing board to carry out the district's purpose of providing health care services.[2] The commissioners are required to
"cause true and accurate minutes and records to be kept of all business transacted by them, and shall keep full, true, and complete books of account and minutes, which minutes, records, and books of account shall at all reasonable times be open and subject to the inspection of inhabitants of the district; and any person desiring to do so may make or procure a copy of the minutes, records, or books of account, or such portions thereof as he may desire."[3]
There is no question that all records of the district are public records, subject to inspection and copying by anyone requesting same, unless exempted or made confidential by law.[4] While there is provision for the recovery of attorney's fees when a plaintiff files a civil action against an agency to enforce the provisions of this chapter and the court determines that such agency unlawfully refused to permit a public record to be inspected or copied,[5] there is no provision similar to that found in section 286.011(7), Florida Statutes, nor is there authority for the reimbursement of attorney's fees to a public official who has hired a private attorney to assist in the production of public records.
As an administrative agency created by statute, the South Broward Hospital District is constrained to exercise those powers expressly granted or by implication necessary to carry out the express authority granted them by statute.[6] Any reasonable doubt as to the lawful existence of a particular power sought to be exercised must be resolved against the exercise thereof.[7]
Therefore, it is my opinion that the South Broward Hospital District is not authorized to reimburse a board member for attorney's fees incurred by her in responding to a public records request when no suit, claim, charge, or action has been instituted against the commissioner during the time the attorney's fees were incurred.
Sincerely,
Pam Bondi
Attorney General
PB/tals
[1] See also s. 111.07, Fla. Stat., authorizing any agency of the state, or any county, municipality, or political subdivision of the state to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment or function, unless, in the case of a tort action, the officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
[2] See s. 4, Ch. 2004-397, Laws of Fla.
[3] Section 5, Ch. 2004-397, Laws of Fla.
[4] See s. 119.07(1), Fla. Stat.
[5] See s. 119.12, Fla. Stat.
[6] See State ex rel. Greenberg v. Fla. State Bd. of Dentistry, 297 So. 2d 628, 634 (Fla. 1st DCA 1974) (administrative agencies are creatures of statute and have only such powers as statutes confer); Fiat Motors of North America, Inc. v. Calvin, 356 So. 2d 908, 909 (Fla. 1st DCA 1978).
[7] See, e.g., Gardinier, Inc. v. Fla. Dep't of Pollution Control, 300 So. 2d 75, 76 (Fla. 1st DCA 1974); Williams v. Fla. Real Estate Comm'n, 232 So. 2d 239, 240 (Fla. 4th DCA 1970).