Transcript Florida Public Records Act and Electronic Communications

Florida’s Public Records Act and Electronic
Communications
Charles M. Deal
Assistant General Counsel
University of Florida
July 25, 2002
AGENDA
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Overview of statutory framework
Entities subject to the FPRA
Individuals subject to the FPRA
Materials subject to the FPRA
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Computer records
Computer software
Statutory exemptions
Retention of public records
Access to public records
Recent Cases
OVERVIEW
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Article I, Section 24 of the Florida Constitution provides that
“every person has the right to inspect or copy any public
record made or received in connection with the official
business of any public body, officer, or employee of the state.”
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Chapter 119, F.S. provides a broad definition of public records
both in terms of entities covered and of the records covered.
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The statute specifically exempts certain materials from the
statute.
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Requires that public records be retained and that the public be
given access to the records.
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Establishes penalties for violations of the FPRA.
ENTITIES SUBJECT TO THE FPRA
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All executive branch state agencies as well as
local government agencies.
The judiciary is not exempt, but the judicial
function is largely exempt from disclosure. See
Fla. R. Jud. Admin. 2.051.
The FPRA may also cover contractors of covered
entities.
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Distinguishes between providing services to the
agency as opposed to providing services on behalf
of the agency.
Idea is that agencies may not “contract out” of
FPRA.
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Uses a “totality of factors” test.
INDIVIDUALS SUBJECT TO THE FRPA
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FRPA imposes obligations on the records
custodian.
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A records custodian means an employee with
access to the relevant records.
 As a practical matter, specific individuals
are usually responsible for designated
records.
MATERIALS SUBJECT TO THE FPRA
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Statutory language:
“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”.
Section 119.01(1) F.S.
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Interpreted to be limited to materials that are used to
perpetuate, communicate or formalize knowledge.
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Examples drawn from Attorney General Opinions:
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Anonymous letters regarding school personnel
Engineering plans reviewed by the flood control district
Salary records of certain state employees
MATERIALS SUBJECT TO THE FRPA
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Working Papers and Non-final Documents
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There is no specific exemption for documents which are not
finalized.
Question is whether the document – whether or not in final
form – is used to perpetuate, communicate or formalize
knowledge.
Uncirculated Notes
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Preliminary materials which are not used to serve as final
evidence of the knowledge to be recorded.
Examples include attorney notes and secretary dictation
notes
MATERIALS SUBJECT TO THE FPRA
Computer records
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The basic rule is that computer records
are public records. “There can be no
doubt that information stored on a
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.”
Seigle v. Barry, 422 So.2d 63, 65 (Fla.
4th DCA 1982).
Computerized records are subject to the
same exemptions as other public
records.
Calendars, word-processing files and
databases are generally considered
public records.
MATERIALS SUBJECT TO THE FPRA
Computer records
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A common (and sometime contentious) question is
whether the requestor gets to determine the form
or format of the computerized records provided in
response to a public records request.
The basic rule is that computerized records must be
provided in the format in which they are maintained
by the agency. See §119.083(5) (“an agency must
provide a copy of the record in the medium
requested if the agency maintains the record in that
medium”); see also AGO 97-39 (opining that
records maintained in a standard mainframe format
need not be converted to ASCII in response to
public records request).
However, a specially designed program may be
required under special circumstances, such as
where the form does not fairly represent the
records.
MATERIALS SUBJECT TO THE FPRA
Computer software
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“Data processing software” is specifically incorporated into
the definition of public records, but there are three main
exceptions:
• Copyrighted software – software can be copyrighted by
the agency that created it.
• Sensitive software – software that is used to process and
store otherwise exempt data, agency financial information
and security measures for automated systems.
• Trade secret exemption – software obtained by the agency
where: (1) the licensing agreement prohibits disclosure;
and (2) the software qualifies as a trade secret.
Statutory Exemptions
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Active criminal investigative information
Annuity or Custodial Account Activities
Complaints
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Police officers – until the investigation is complete
School system employee – until the investigation is
complete
Employment discrimination
• Confidential if alleged victim does not file a complaint and
requests the records be kept confidential
• Generally, confidential until a finding is reached
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Certain criminal history information
Deferred compensation records
Department of the Lottery personnel information
Statutory Exemptions
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Direct deposit information
Drug test results pursuant to a Drug Free
Workplace Program
Employee Assistance Program records
Certain employee performance evaluations
Examination questions and answers for licensure
Home addresses, phone numbers and
photographs of certain employees
Medical information
Ridesharing information
Social security numbers
Retention of Public Records
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Public records must be maintained in accordance
with destruction schedules promulgated by the
state librarian.
The Secretary of State publishes a handbook
called The Basics Of Records Management
Handbook. It is available online at
http://www.dos.state.fl.us/dlis/barm/handbooks
/basics.pdf.
Although most records should be maintained for
3 years, records that are transitory by their
nature do not have to be maintained.
Access To Public Records
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Records must be made available within a
reasonable time. The length of time deemed
reasonable depends on the nature of the record
requested.
Agencies may not impose artificial barriers to
access by requiring automatic waiting periods
and the like.
Note that any “person” has a right of access.
The person does not have to be a citizen of the
state of Florida.
There is no prescribed form to a public records
request.
Fees for records are set by statute.
Recent Cases
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Times Publishing Co. v. City of Clearwater, 2002 WL 1426532
(Fla. 2nd DCA 2002): Two city employees were alleged to be
running an outside business from work. A local reporter made a
public records request for all email sent from or received by the
government owned computers of the two employees. The city
allowed the two employees, unsupervised, to sort the email into
“work” and “personal” folders, and provided only the work email
in response to the request. The paper sued, arguing that it was
entitled to all the email on the computer.
State v. Webb, 786 So.2d 602 (Fla. 1st DCA 2001): A local
school board official was held criminally liable for waiting four
months before allowing requestor one hour to review ten-inch
stack of documents, and then allowing only two additional onehour sessions five weeks later. The court held that Webb had not
provided "reasonable" access to public records and sentenced her
to 30 days in jail (she only served 7).
Recent Cases
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The Justice Coalition v. First District Court of Appeal Judicial
Nominating Commission, 2002 WL 1562223 (Fla. 1st DCA 2002):
The Coalition sought vote sheets, ballots, tally sheets and
member notes. There were 3 issues in the case: (1) whether the
JNC is subject to Chapter 119; (2) whether the notes of
individual members are public records; and (3) whether the
requested documents were part of the deliberative process of the
Commission (and therefore exempt).
Campus Communications, Inc. v. Earnhardt, 2002 WL 1483806
(Fla. 5th DCA 2002): The case centered around public records
requests for the autopsy photographs of Dale Earnhardt, one by
a for profit website that publishes celebrity autopsy photos (go
figure!).
Recent Cases
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Media General Convergence, Inc. v. Chief Judge of the Thirteenth
Judicial Circuit, 794 So.2d 631 (Fla. 2d DCA 2001): A television station
requested written materials concerning allegations that Thirteenth
Circuit Judge Edward Ward had sexually harassed court employees.
Second,it sought writings relating to "fraternization, romantic
relationships or sexual contact" between any circuit or county judge
in the circuit. The public nature of these items depends on whether
they are "judicial records." A judicial record subject to public access is
"material created by any entity within the judicial branch ... made or
received pursuant to court rule, law or ordinance, or in connection
with the transaction of official business by any court or court agency."
None of the documents requested is a "judicial record" because of the
purely administrative nature of the office of chief judge. The Florida
Constitution states that the chief judge "shall be responsible for the
administrative supervision of the circuit courts and county courts in
his circuit." The circuit chief judge is not imbued with authority to
supervise the social, romantic or sexual behavior of other judges or,
for that matter, of anyone else. Indeed, a chief judge, as such, has no
official role in investigating judicial misconduct of any kind.
Hypotheticals
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Wendy, a UF employee, is divorced from Herbert,
who is known to be abusive and potentially
violent. Herbert asks to see her personnel file in
order to obtain her current local address and
phone number. Does the records custodian have
to provide access to the file?
UF uses a computer program from a vendor that
provides information related to grants –
specifically identifying the most lucrative sources
of research grant funding and the areas of
research most likely to be funded. Roberta, a
local reporter, verbally requests a copy of the
program. Does UF have to provide it?
Hypotheticals
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Shannon is a former UF employee who strongly
believes that management routinely treats
employees unfairly.
She further believes that
managers enjoy documenting their evil practices.
Purporting to act on behalf of other employees,
Shannon makes a number of voluminous and
burdensome public records requests. Further, she
asks that all records be provided in electronic
format so that the responses can be posted on her
website. Management believes that the requests
are made in bad faith and primarily for the
purpose of harassment. Do the records have to
be provided?
Hypotheticals
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Kim, a local environmental activist and former
human resources manager, believes that UF
researchers are adversely altering the weather
through high energy particle research.
She
requests and receives a number of public records
relating to such research. Unfortunately, many of
the documents are highly technical and cannot be
understood without an advanced physics degree.
Kim makes an additional public records request,
including a request for someone to answer her
questions regarding the documents.
Must UF
make such a person available?
Hypotheticals
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While on an extended dive vacation in Tahiti,
Steve, a well-known attorney, suddenly realizes
that he had promised a client in Gainesville that
he would obtain and review certain public records
from UF. The records are not posted on the UF
website. He sends a public records request via
email to Susan, the records custodian, asking that
the documents be placed on the web so that he
access them from his laptop while sipping mai-tais
on the beach. Does Susan have to make the
documents accessible over the internet?
Hypotheticals
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Kim, the environmental activist, makes a public
records request for “all documents pertaining to
the care of plants on the UF campus, especially
those related to the pruning of trees which are
most responsible for taking harmful greenhouses
out of the atmosphere.” May UF respond by:
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Denying the request as overly broad?
Denying the request as vague?
Denying the request because the records are available
from the state environmental protection agency?