1. Introduction
In certain circumstances, Florida law allows parties to appeal decisions or rules issued by Florida state agencies. Fla. R. App. P. 9.190. As in any appeal, without a complete record of all documents that led up to the agency's decision or rule, the appellate court will not be in a position to determine whether the agency made an error. Therefore, appellant has the same duty to make sure that the appellate court receives all of the necessary documents by direction or supplementation.The procedures for furnishing the record to the appellate court in an administrative appeal are primarily found in Florida Rules of Appellate Procedure 9.190 and 9.200, and all parties involved in the appeal should carefully review and comply with those rules. In challenges to an agency’s nonfinal orders and appeals from "immediate" final orders pursuant to section 120.569(2)(n), Florida Statutes, the record will not be prepared by the agency clerk, but instead must be an appendix prepared by the parties and attached to their briefs as described in section (B)(1) of this chapter. See Fla. R. App. P. 9.190(c)(2)(F)&(c)(3) and 9.220. Otherwise, as in other types of appeals, when a party files a notice of appeal of a state agency’s final decision or rule, a formal record will be prepared by the agency clerk. As in civil appeals, the parties to an administrative appeal will only receive a copy of the record index, not a copy of the entire appellate record. The parties should construct their personal record using the index and their personal copies of record documents.
If a party to an agency appeal needs to review the appellate record, that party can make arrangements with the agency clerk to review it before it is sent to the appellate court. After the record has been sent to the appellate court, an appellate party can call the clerk of the appellate court to review the record there. Alternatively, many state agencies now have online dockets posted on their web sites, which provide easy public access to copies of most, if not all, documents in the record on appeal. For example, the Division of Administrative Hearings' online docket is accessible at www.doah.state.fl.us.
2. Directions to the Agency Clerk
The appellant generally has 10 days to send the agency clerk written directions identifying the documents to be included or excluded from the record on appeal. The appellee has an additional 10 days to send the agency clerk supplemental directions to include any important documents that may be missing from the appealing party's directions. A standardized "directions to clerk" form is included in the appellate rules and may be used as template in preparing directions to the agency clerk. Fla. R. App. P. 9.900(g). The agency clerk is typically located at the same address as the agency's main headquarters. Most state agencies have a rule published in the Florida Administrative Code identifying their particular agency clerk's address. The agency clerk's name and address can also be obtained by calling the agency's lawyer or searching the agency's website. Like any other pleading, motion, or other paper filed in a legal proceeding, a copy of the directions to the agency clerk must be served on all other parties in the case. It is also wise to send a courtesy copy to the clerk of the appellate court.The types of documents that should be included in the record on appeal will depend on the type of agency action being appealed and the types of issues raised on appeal. In this regard, it is very important to review rule 9.190(c) and sections 120.57(1)(f) and (2)(b) and 120.574(2)(d), Florida Statutes, which specifically identify the types of documents that must be included in various types of administrative appeals. As in other types of appeals, such documents normally include, all notices, pleadings, motions, memoranda of law, hearing transcripts, evidence, proposed orders, and orders issued in the administrative proceeding. Fla. R. App. P. 9.190(c). Also like other appeals, the record may generally include only documents that were filed with and reviewed by the state agency before it issued the decision or rule being appealed. Fla. R. App. P. 9.190(c)(1). If documents not on file with the agency are included in the appellate record, the appellate court may strike the document from the record and may even penalize (or "sanction") the party who was responsible for placing them in the appellate record.
