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State Contractors Fret About New Public Records Requirements

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Some state contractors are worried about new public records requirements that cost them money and put them at risk of legal trouble.

Vendors acting on behalf of state agencies are now subject to a higher level of record keeping because of a bill passed by the Florida Legislature this year.

They must maintain public records while making sure confidential information is not disclosed – just as state agencies are required to do.

Public policy attorney Karen Walker, a partner with with Holland and Knight in Tallahassee, says the law wasn't on her firm's radar until clients started asking questions.

The new law appears to impose some costson the private sector contractors that weren't there previously,” Walker said, “including the cost of transferring the records back to the public agency at the end of the contract and maintaining electronically stored records in a format that's compatible with those of the public agency.”

Walker says it's not always clear when a contractor is acting on behalf of a state agency. Any number of factors determine that, and they are often determined in court.

Here's a partial list of factors:

1. how much public funding is provided

2. whether the activity is conducted on public property

3. whether the contractor is performing a governmental function 

4. the extent of the public agency's involvement with or regulation of the contractor

5. whether the public agency has a substantial financial interest in the private entity

6. for whose benefit the contractor is functioning

For example, a private consulting firm that's hired to oversee a county airport expansion project could be considered to be acting on behalf of a state agency.

“I'm not sure how the government and the private sector parties are always going to be able to come to terms as to when these provisions are going to have to be included in a contract,” Walker said.

Walker thinks the new requirements could deter companies from doing business with the state.

But the changes in the law were supported by state leaders who wanted more transparency and accountability in government spending, and the law got the unanimous approval of the Florida Legislature.

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