2003 Public Records

Page 1 of 11 Summary of the Public Records Law for Advisory Committee/Council Members Office of Chief Counsel, Feb. 11, 2003 Based on excerpts from Part II, GOVERNMENT-IN-THE-SUNSHINE MANUAL (2003) 1. Advisory Committees Are Subject to the Public Records Act The Florida Supreme Court and the Attorney General's Office have ruled that the records of a government advisory committee are subject to the Public Records Act.1 2. What Types of Materials Are Public Records Public records include “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” 2 The Florida Supreme Court has interpreted this definition to encompass all materials made or received by an agency or its employees/agents in connection with official business which are used to perpetuate, communicate or formalize knowledge.3 All such materials, regardless of whether they are in final form, are open for public inspection unless the Legislature has specifically exempted them from disclosure.4 Just a few examples of the wide range of public records that must be disclosed upon request: Anonymous letters about school personnel, received by a school district; 5 communications from third parties; 6 copies of letters received by private citizens which are then given a public official in his/her official capacity; 7 reimbursement records showing amounts paid annually by state agency to medical providers; 8 salary records of employees; 9 travel itineraries and plane reservations for use of state aircraft; 10 applications for employment; 11 grievance records; 12 resumes received; 13 salary information; 14 and travel vouchers. 15 3. Public Records Include Electronic Computer Files Computerized public records are governed by the same rule as written documents and other public records -- the records are subject to public inspection unless a statutory exemption exists which removes the records from disclosure. "As each agency increases its use of and dependence on electronic recordkeeping, each agency must ensure reasonable access to records electronically maintained."16 Page 2 of 11 A court stated that information stored in a public agency's computer "is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet." 17 Information such as electronic calendars, data bases, and word processing files stored in agency computers, can all constitute public records because records made or received in the course of official business and intended to perpetuate, communicate or formalize knowledge of some type, fall within the scope of the Public Records Act. 18 The following are just a few examples of what constitute electronic public records: a videotaped training film; 19 computer tapes; 20 computer disks; 21 and tape recording of incoming calls to a public agency. 22 4. Retention of Records Section 257.36(6), F.S., states that a "public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the division." The School District’s RECORDS RETENTION SCHEDULE is available online at: http://www.palmbeach.k12.fl.us/Records/Rec_Retn.htm. 5. Mail Received The Public Records Act is applicable to letters or other documents received by an advisory committee member in his or her official capacity. 23 As with other public records, upon receipt of a public records request for correspondence, the custodian should retrieve the records, review them for exemptions and allow public inspection of the nonexempt material. 24 6. E-Mail E-mail messages made or received by agency employees in connection with official business are public records and subject to disclosure, like paper documents, in the absence of an exemption.25 Such messages are subject to the statutory restrictions on destruction of public records. 26 The form or manner of transmission -- e.g. in electronic format -- does not to alter the status as a public record under the Public Records Act. 27 Thus, the e-mail communication of factual background information and position papers from one advisory committee member another is a public record and should be retained in accordance with the District’s Records Retention Schedule. There is no express exception stated in the Public Records Act for "personal" e-mail on agency-owned computers. 28 However, private email stored in government computers does not automatically become a public record simply by virtue of that storage. 29 SIDEBAR: The following excerpt from the District’s Guidelines on E-mail Records (available Page 3 of 11 at: http://www.palmbeach.k12.fl.us/Records/Pub_emal.htm ) should be of interest to advisory committee members: GUIDELINE: Public Records Law Compliance Most E-mail messages, created or received in the transaction of official School District business, are public records, open to public inspection according to the Public Records Act. Depending on the content and topic of a particular message, it may or may not be exempt from public inspection under the Public Records Act. Each user is individually responsible for maintaining the public accessibility of his/her own incoming and outgoing E-mail messages as required by the Public Records Law. Questions relating to whether or not the content of a particular E-mail message constitutes a public record should be directed to the Office of Chief Counsel or the Public Information Officer. As a general rule of thumb, information that is known to be exempt from public inspection (for example, confidential student records/data and some personnel information) should not be included in any E-mail message. GUIDELINE: Retention of E-mail Messages Information Technology will delete all E-mail messages 365 days after the message is sent. District employees are encouraged to delete messages on a daily basis, immediately after reading, replying, or taking other action concerning a particular message (if it is one that may be deleted according to the Retention Schedule). However, if, according to the Retention Schedule, the content of an E-mail message possesses long term business value, employees are required to print the message and place it in the proper paper file for further retention. Four record categories are described below to assist users in determining the retention requirement of E-mail messages. It is important to note that some e-mail messages typically fall under the categories of non-record materials (notices with no business value, or transitory messages and therefore should be deleted by both the sender and receiver immediately after the administrative value is lost). E-MAIL CATEGORY #1 - Non-Record Materials (delete at will) The following examples are materials (not records) that may not be appropriate for E-mail and may be deleted at any time:     lost jewelry/keys notice (replace with a lost and found box located in the FHESC). birth/death/funeral announcements. party announcements (baby shower, wedding shower, retirement, bon voyage, etc.). any E-mail not received or created in the course of School District business. E-MAIL CATEGORY #2 - Notices with No Business Value (delete at will) This category includes information with no business value after receipt and review. Examples include internal office announcements such as: Page 4 of 11    "Joe Smith called, please call back" "Is this afternoon's meeting still on?" "Tomorrow's staff meeting location has been changed to conference room #202." E-MAIL CATEGORY #3 - Transitory Messages (delete after administrative value is lost) The District’s Retention Schedule includes a record series category that covers a large percentage of typical E-mail messages. The category title is "Transitory Messages", which has the following definition: "This records series consists of those records that are created primarily for the communication of information, as opposed to communications designed for the perpetuation of knowledge. Transitory messages do not set policy, establish guidelines or procedures, certify a transaction, or become a receipt. The informal tone of transitory messages might be compared to the communication that might take place during a telephone conversation or a conversation in an office hallway. Transitory messages would include, but would not be limited to: E-mail messages with short-lived, or no administrative value, voice mail, self-sticking notes, and telephone messages." The retention requirement for all transitory messages is "retain until obsolete, superseded or administrative value is lost." E-MAIL CATEGORY #4 - Official Records (retain as required by the Retention Schedule) E-mail messages that pertain to a particular District business transaction, project/case file, board action, or student/personnel issue must be retained as long as all other documentation that pertains to the same transaction/project/case/action/issue. The District’s Retention Schedule must be referenced to determine the specific retention requirement for E-mail messages that fall under this category. Questions relating to which record series is applicable for a particular E-mail message should be directed to the Records Management section of Information Technology. 7. Rough Drafts and Unfinished Documents – Subject to Disclosure if Any Other Committee Member or Other Person Has Seen Them There is no "unfinished document" exception to the Public Records Act. If the purpose of a document prepared in connection with the official business of a public agency is to perpetuate, communicate, or formalize knowledge, then it is a public record regardless of whether it is in final form or the ultimate product of an agency. 30 A committee member’s concern that premature disclosure of a report could be harmful to the District would not make the document confidential. 31 Accordingly, any advisory committee document, however prepared, if circulated for review, comment or information, is a public record regardless of whether it is an official expression of policy or marked "preliminary" or "working draft" or similar label. Exam- Page 5 of 11 ples of such materials would include interoffice memoranda, preliminary drafts of agency rules or proposals which have been submitted for review to anyone within or outside the agency, and working drafts of reports which have been furnished to a supervisor for review or approval. Such preliminary records are subject to disclosure unless the Legislature has specifically exempted the documents from inspection or has otherwise expressly acted to make the records confidential. See, for example, Fla. Stat. § 119.07(3)(y), making draft audit reports and work papers confidential until the audit report becomes final. 8. Personal Notes In general, "under chapter 119 public employees' notes to themselves which are designed for their own personal use in remembering certain things do not fall within the definition of 'public record.'" 32 A recent case held that personal handwritten notes made by members of a judicial nominating commission during the deliberation process "are not public record." Nevertheless, so-called "personal" notes can constitute public records if they are intended to communicate, perpetuate or formalize knowledge of some type. A recent case rejected a city's argument that employee responses to survey are "notes" which are not subject to disclosure because "as to each of the employees, their responses were prepared in connection with their official agency business and they were 'intended to perpetuate, communicate, or formalize knowledge' that they had about their department." 33 In 1992, a court stated that handwritten notes of agency staff, "utilized to communicate and formulate knowledge within [committee], are public records subject to no exemption." 34 The Attorney General concluded that handwritten notes prepared by a council member regarding research on a matter under discussion by the council and used at a workshop meeting as a reference in discussing the member's position are public records; 35 and meeting notes that were prepared by a district negotiator to "memorialize" discussions which took place are being used to perpetuate the information contained therein; therefore, they are public records. 36 9. Exemptions. There is seldom any real debate as to whether information prepared or received by an agency (including an advisory committee and/or its members in the course of their duties) is a public record. The only real inquiry is usually whether there is any exemption which would preclude all or part of the public record from being disclosed, thus requiring redaction. The Public Records Act and other statutes provide hundreds of exemptions for specific subject matter. Exemptions to the Public Records Act must be narrowly construed in favor of open government, so they are limited to their stated purpose. 37 In some cases, the statutes specifically make certain matters confidential, which is stronger than mere “exempt.” “Exempt” means the record need not be produced; “confidential” means it must not be produced. Page 6 of 11 SIDEBAR: School Board Policy 2.041(19) lists some of the most common exemptions. The complete list is available in the Attorney General’s Government-in-the-Sunshine Law Manual (2003). Every committee member should be familiar with Policy 2.041. The Manual is also available online: www.schoolboardlegal.com/publicrecords.htm. 10. Who Can Make a Public Records Request "It is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person." 38 The Public Records Act does not require any “legitimate purpose” or "special interest" as a condition of access to public records. "The motivation of the person seeking the records does not impact the person's right to see them under the Public Records Act." 39 "The legislative objective underlying the creation of chapter 119 was to insure to the people of Florida the right freely to gain access to governmental records. The purpose for such inquiry is immaterial." 40 "Even though a public agency may believe that a person or group are fanatics, harassers or are extremely annoying, the public records are available to all of the citizens of the State of Florida." 41 11. Responding to Public Records Requests There is a statutory right of access to public records: “Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian's designee. The custodian shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law . . . and for all other copies, upon payment of the actual cost of duplication of the record.”42 There is a "duty of disclosure" imposed by Fla. Stat. § 119.07(1) upon "[e]very person who has custody of a public record." 43 Thus, the term "custodian" for purposes of the Public Records Act refers to all agency personnel who have it within their power to release or communicate public records. 44 But, "the mere fact that an employee of a public agency temporarily possesses a document does not necessarily mean that the person has custody as defined by section 119.07." 45 In order to have custody, one must have supervision and control over the document or have legal responsibility for its care, keeping or guardianship. 46 Policy 2.041 explains how advisory committees and members thereof should handle public records requests: 5. . . . advisory committees receiving requests for public records shall coordinate responses through the Office of Public Affairs, and the Office of Public Affairs shall determine which District personnel and departments are to provide assistance in responding to the request. a. All departments [and advisory committees] that receive public records requests shall fax them on the day of receipt to the Office of Public Affairs. (If the request was ver- Page 7 of 11 bal, the department receiving the verbal request shall memorialize it in writing and fax a copy to the Office of Public Affairs.) b. For purposes of Section (5), the term "District agent" means any public or private agency, company, organization, or person acting on behalf of the District and subject to the requirements of Fla. Stat. § 119.07(1). c. School principals/designees receiving public records requests should inform the Office of Public Affairs of all records requests except routine inquiries from media reporters. d. The Office of Public Affairs shall maintain a master file containing either a description or actual copies of all public records material released. 6. Unless exempt from public disclosure by law, District records, once located, retrieved, and redacted (if necessary), shall be made available for inspection or copying either at the FultonHolland Educational Services Center, located at 3300 Forest Hill Blvd., West Palm Beach, FL 33406, or at any other District office where such records are maintained, during the hours of 8:30 a.m. to 4:00 p.m., Monday through Friday. However, when a deposit of estimated fees and charges is required . . . the District will not proceed with the request until the estimated funds are deposited. 12. How Soon Must an Advisory Committee Respond to a Public Records Request? The Public Records Act does not contain a specific time limit (such as 24 hours or 3 days) for compliance with public records requests. The Florida Supreme Court has stated that the only delay in producing records permitted by the law is "the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt." 47 An unreasonable and excessive delay in producing public records can constitute an unlawful refusal to provide access to public records. 48 13. What if Someone Requests the Committee to Keep a Document Confidential? Unless the document is exempt or confidential by law, the Committee cannot agree to such a request. To allow the maker or sender of documents to dictate the circumstances under which the documents are to be deemed confidential would permit private parties as opposed to the Legislature to determine which public records are subject to disclosure and which are not. Such a result would contravene the purpose and terms of Ch. 119, F.S. 49 Therefore, unless the Legislature has expressly authorized the maker of documents received by an agency to keep the material confidential, the wishes of the sender in this regard cannot supersede the requirements of Ch. 119, F.S. 50 Page 8 of 11 14. Delivery of records to successor Section 119.05, F.S., provides that whoever has custody of public records shall deliver such records to his or her successor at the expiration of his or her term of office or, if there is no successor, to the records and information management program of the Division of Library and Information Services of the Department of State. Public records are not the personal property of a public officer. 51 All public records regardless of usefulness or relevancy must be turned over to the custodian's successor in office or to the appropriate division in the Department of State. 52 Moreover, Fla. Stat. § 119.06 provides that "[w]hoever is entitled to the custody of public records shall demand them from any person having illegal possession of them, who shall forthwith deliver the same to him or her." 15. Penalties for Violation. Both civil and/or criminal action may be taken for violation of the Public Records Act. Fla. Stat. § 119.10(1) says a violation of any provision of the Public Records Act by a public officer may be a noncriminal infraction, punishable by fine not exceeding $500. Generally, mandamus is the appropriate remedy to enforce an agency’s compliance. 53 It has been recognized that injunctive relief may be available upon an appropriate showing for a violation of the Public Records Act, to prevent future noncompliance when there has been a pattern of violation with likelihood of future violations. 54 However, a public officer who knowingly violates the provisions of s. 119.07(1), F.S., is subject to suspension and removal or impeachment and is guilty of a misdemeanor of the first degree, punishable by possible criminal penalties of one year in prison, or $1,000 fine, or both.55 A willful and knowing violation of Ch. 119 constitutes a first degree misdemeanor.56 A state attorney may prosecute suits charging public officials with violations of the Public Records Act, including those violations which may result in a finding of guilt for a noncriminal infraction. 57 Endnotes 1 See, e.g., AGO 96-32 (interpreting Fla. Stat. Ch. 119 and Art. I, s. 24(a), Fla. Const); Cf., Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) (advisory committees are subject to the Sunshine Law, including the Public Records Act). 2 3 4 5 6 Fla. Stat. § 119.011(1). Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979). AGO 87-48. Douglas v. Michel, 410 So. 2d 936 (Fla. 5th DCA 1982). Page 9 of 11 7 8 9 AGO 77-141. AGO 80-31. AGO 73-30. AGO 72-356. AGOs 77-48 and 71-394. Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981). Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980). 10 11 12 13 14 Lewis v. Schreiber, No. 92-8005(03) (Fla. 17th Cir. Ct. June 12, 1992), per curiam affirmed, 611 So. 2d 531 (Fla. 4th DCA 1992); AGO 73-30. 15 16 17 18 19 20 21 22 23 24 Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., supra; Lewis v. Schreiber, supra. Fla. Stat. § 119.01(3). Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983). AGO 89-39. AGO 88-23. AGO 85-03. AGO 91-61. Inf. Op. to Stone, January 17, 1980. AGO 77-141. See also, Inf. Op. to Paxton, March 19, 1996 (while Public Records Act is applicable to mail received by the city in connection with the transaction of official business, questions as to who opens the mail and how such mail should be handled appear to be more appropriately relegated to local practice and procedure as prescribed by charter, ordinance, or rule). Agencies may wish to adopt policy requiring that personal mail not be delivered to an official's business address in order to avoid the appearance that certain correspondence is being kept from public disclosure. Inf. Op. to Dale, September 18, 1997. 25 26 AGO 96-34. See, s. 257.36(6), F.S., stating that a public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the Division of Library and Information Services of the Department of State; and s. 119.041, F.S., providing for disposal of records no longer needed, "subject to the consent of" the division. And see, In re Amendments to Rule of Judicial Administration 2.051.-Public Access to Judicial Records, 651 So. 2d 1185, 1186 (Fla. 1995) (definition of "judicial records" in Rule 2.051 of the Rules of Judicial Administration, "includes information transmitted by an e-mail system"). 27 AGO 01-20. Page 10 of 11 28 29 Inf. Op. to Harris, July 18, 2001. Times Publishing Company v. City of Clearwater, 27 F.L.W. D1073 (Fla. 2d DCA May 10, 2002), review pending, No. SC02-1694 (Fla. 2002). 30 . Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980). "Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency's later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business." 379 So. 2d at 640. 31 32 Cf., Gannett Corporation, Inc. v. Goldtrap, 302 So. 2d 174 (Fla. 2d DCA 1974). The Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 832 So. 2d 185, 192 (Fla. 1st DCA 2002). 33 See, e.g., City of Pinellas Park, Florida v. Times Publishing Company, No. 00-008234CI-19 (Fla. 6th Cir. Ct. January 3, 2001). 34 Florida Sugar Cane League v. Florida Department of Environmental Regulation, No. 91-4218 (Fla. 2d Cir. Ct. June 5, 1992). 35 36 37 Inf. Op. to McLean, December 31, 1998. Inf. Op. to Fulwider, June 14, 1993. Krischer v. D'Amato, 674 So. 2d 909, 911 (Fla. 4th DCA 1996); Seminole County v. Wood, 512 So. 2d 1000, 1002 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988); Tribune Company v. Public Records, 493 So. 2d 480, 483 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987). 38 39 40 Fla. Stat. § 119.01. Curry v. State, 811 So. 2d 736, 742 (Fla. 4th DCA 2002). As the court stated in Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985). 41 42 43 44 Salvadore v. City of Stuart, No. 91-812 CA (Fla. 19th Cir. Ct. December 17, 1991). Fla. Stat. § 119.07(1)(a). Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996). Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998) (citing Williams v. City of Minneola, 575 So. 2d 683, 687 [Fla. 5th DCA 1991]). 45 46 Id. at 1361. Id. And see, Alterra Healthcare Corporation v. Estate of Shelley, 27 F.L.W. S735, 738n.4 (Fla. September 12, 2002), noting that "only the custodian" of agency personnel records may assert any applicable statutory exemption to disclosure; "not the employee." 47 Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985). Page 11 of 11 48 Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA), review denied, 684 So. 2d 1353 (Fla. 1996). 49 50 See, Gadd v. News-Press Publishing Company, 412 So. 2d 894 (Fla. 2d DCA 1982). Compare, e.g., s. 377.2409(1), F.S. (information on geophysical activities conducted on state-owned mineral lands received by Department of Environmental Protection shall, on the request of the person conducting the activities, be held confidential and exempt from Ch. 119, F.S., for 10 years). 51 52 53 See, Maxwell v. Pine Gas Corporation, 195 So. 2d 602 (Fla. 4th DCA 1967). AGO 75-282. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA), review dismissed sub nom., Staton v. Austin, 605 So. 2d 1266 (Fla. 1992). See also, Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000); Smith v. State, 696 So. 2d 814 (Fla. 2d DCA 1997); Donner v. Edelstein, 415 So. 2d 830 (Fla. 3d DCA 1982); Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981). 54 55 56 57 See, Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989). Fla. Stat. § 119.02 Fla. Stat. § 119.10(2). AGO 91-38.