PUBLIC RECORDS OVERVIEWOctober 3 & 10, 2017

This presentation is posted at: http://www.flsheriffs.org/webinars/

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Wayne EvansGeneral Counsel, FSA

Allen, Norton & Blue, P.A.850-561-3503

revans@anblaw.com

(1) All materials(2) made or received pursuant to law or ordinance or

in connection with the transaction of official busines(3)By any agency including a private entity acting on behalf

of a public agency(4) which are used to perpetuate, communicate or formalize

knowledge All such materials regardless of whether they are in final form, are open

for public inspection unless the legislature has exempted them from disclosure

Shevin v. Bryon, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d. 633, 640 (Fla. 1980)

§406.135, F.S., photos, video tapes and audio recordings are confidential and exempt

Autopsy report is not exempt or confidential

§394.4615, F.S., clinical records (including Report of Law Enforcement Officer Initiating Involuntary Examination) of persons subject to Baker Act are confidential and exempt

Offense or incident report is not a clinical record

§119.071(1)(b), F.S. Sealed bids received pursuant to

invitation to bid are exempt until notice of bid award or 30 days after opening bids, whichever is earlier

§119.071(1)(l), F.S. Body camera recording or a portion there of is confidential

and exempt if the recording is taken:• Within the interior of a private residence;• Within the interior of a facility that offers health care, mental health

care, or social services; or • In a place that a reasonable person would expect to be private• A law enforcement agency must disclose a body camera recording,

or a portion thereof, to: (1) a person recorded by a body camera; (2) the personal representative of a person recorded by a body camera; (3) a person not depicted in a body camera recording if the recording depicts a place in which the person lawfully resided, dwelled, or lodged at the time of the recording; (4) pursuant to a court order

§119.071(2)(e), F.S. Information revealing the substance of a confession is

exempt if request is made prior to criminal case being finally determined

Transcript of interview unrelated to defendant’s participation in crime must be releasedTimes Publishing Co. v. State, 827 So.2d 1040, 1042 (Fla. Ed DCA 2002)

§119.071(2)(f), F.S.Any information revealing identity of

confidential informant is exempt

§119.0712(2), F.S., Driver’s Privacy Protection Act

Information identifying person, including photo, name, Social Security number, driver’s I.D. number, emergency contact information is confidential and exempt

§406.136, F.S., photos, video tapes and audio recordings or images of killing of a law enforcement officer acting in the course of official duties are exempt from disclosure and confidential

§119.071(1)(a), F.S., exempts from disclosure examination questions and answers for licensing, certification, or employment

Agency can properly redact polygraph answers and questions from polygraph report

Rush v. City of High Springs, 82 So.3d 1108 (1st DCA 2012)

Confidential and exempt pursuant to §985.04, F.S., except:

• Name, photo, address and report if a felony offense

• Transferred to adult court

§119.071(4)(b), F.S. – records may be disclosed upon consent of person to whom information pertains or person’s legal representative Cardiovascular Surgeon, P.A. v. Anthony, 773 So.2d

633, 634 (Fla. 5th DCA 2000)Legal representative must be judicially appointed, e.g., personal representative of an estateNext of kin are not legal representatives unless judicially confirmed

Recording of the call itself is a public record (unless otherwise exempt); however, portions of the call that reveal the name, address, telephone number, and identify or personal information regarding the caller, are confidential & exempt for disclosure §365.171(12), F.S. Although a public record, under certain circumstances

the remainder of the call may be active criminal investigative information and become exempt from disclosure

§365.171, F.S., caller identity is confidential and exempt but may be disclosed to a public safety agency While 911 caller identity information obtained from a 911

call for the purposes of providing emergency services (e.g., 911 recording, CAD) is confidential, identifying information of the caller obtained or created independently of the 911 call (e.g., offense report), is not exempt information• If the report specifically identifies the person as the 911 caller, that

part of the report can be redacted• AGO 2011-27 (12/21/11)

AGO 15-01 to Sheriff Deryl Loar, issued January 28, 2015, §365.171(12), F.S. The sound of a 911 caller’s voice is not

confidential information protected from disclosure to the public.

§119.071(4)(d)1, F.S., exemptions for law enforcement personnel –

• Social Sec. # - (applies to everyone)• Home address, telephone #, photos, date of birth

names of spouses and children including schools, theirplaces of employment

• Applies to active and former law enforcement personnel

“Law enforcement personnel” includes “sworn and civilian personnel”

“Telephone numbers” specifically include “home phone numbers, personal cellular telephone numbers, personal pager telephone numbers, and telephone numbers associated with personal communications devices”

§119.071(4)(c), F.S. Information revealing is exempt Unredacted version of U.C. video was turned over

during discovery Because the video disclosed the surveillance

techniques and identity of U.C. officers – exemption still applies Only active criminal investigative information loses its

exemption upon disclosure as part of criminal discovery

• Rameses v. Demings, 29 So.3d 418 (Fla. 5th DCA 2010)

AGO 15-02, to Oviedo Chief of Police Jeffrey Chudnow, January 28, 2015, §119.071(4)(c), F.S. Names of law enforcement officers on personnel

rosters, assigned to undercover duty constitute information revealing undercover personnel of any criminal justice agency regardless of whether the record reveals the nature of their duties

§119.071(2)(h),(j), F.S. Any information revealing the identity of victims of sex

crimes or child abuse is exempt and confidential Upon written request, home and business addresses and

phone numbers, and personal assets of victims of sexual battery, agg. battery or domestic violence are exempt – 5 year limit Personal asset info. of a crime victim other than property

stolen or destroyed during a crime is exempt Case report can be released to victim unredacted in

furtherance of law enforcement agency’s duties and responsibilities. §119.071(2)(h)2.a., F.S.

§119.071(3)(a)1, F.S. Information relating to security systems for property owned by public agencies is confidential and exempt Information relating to security systems of privately owned or

leased property in possession of public agency is confidential and exempt §119.071(3)(a)3, F.S. Information e.g., video may be disclosed

in furtherance of agency’s official duties

Establish and follow a policy!!!! Acknowledge public records requests Produce records within a reasonable time period Ask for clarification if necessary Advise where to send public records requests within

your agency Designate a Public Records Custodian

Agencies are required to provide copies of public records. If asked, you may not mandate inspection only Requests can be:

• Verbal or written• Made by any person

Agency has a “reasonable” time to respond Agency can charge the cost of retrieving records to

the requestor if the amount requested actually requires extensive use of IT resources or agency labor §119, F.S., does not contain a provision that

prohibits agencies from charging indigent persons or inmates the applicable statutory fee to obtain copies of public records

§119.07(1)(c), F.S.• Duty to acknowledge requests promptly• Automatic delay is impermissible

• Tribune Co. v. Cannella, 458 So. 2d. 1075, 1078-79 (Fla. 1984)

• Unjustified delay in producing records constitutes unlawful refusal to provide access to records Lilker v. Suwannee Valley Transit Authority., 133 So. 3d 654, 655 (Fla. 1st DCA 2014)

Lake Shore Hospital Authority v. Lilker, Case No. 1D14-4579 (Fla. 1st DCA July 8, 2015) • Restricting inspection of public records to limited

period of time, e.g., 8:30 am to 9:30 am, Mon. –Fri. violates Public Records Act

• Referring to website in response to public records request for actual paper copies violates Public Records Act

Chandler v. City of Sanford, 121 So. 3d 657 (Fla. 5th DCA 2013) State Atty’s order not to produce records did not

relieve City of its duty to process the public records request City was the records custodian and couldn’t avoid

public records request by transferring records to the State Atty’s Office

Does not require the creation of records Does not require providing records

immediately to a requestor Does not require verbal explanation Does not require provision of records in a different

format Ongoing request for records, e.g., arrest reports or

accident reports

Can you charge for the technology or clerical resources required to retrieve and produce public records?

Special service charge – allowed if the “nature and volume: of the request requires extensive use of information technology resources or extensive clerical or supervisory assistance to comply

$0.15 single sided - $0.20 double sided - $1 certified copy of documents, unless otherwise provided by statute Production of other records: actual cost of

duplication Cost of the material and supplies used to

duplicate the public record, but does not include labor cost or overhead cost associated with such duplication• E.g., - photos, videos, audio recordings, etc.

May require money up front and/or deposit before complying with request• Deposit to be based on good faith estimate and must refund

any excess. AGO 05-28

Can’t charge travel time to retrieve records stored off site – AGO 90-07

Can you charge for the time for someone to oversee the production?

• Okay to assess special service charge (SSC) to oversee production if documents being reviewed are originals incapable of duplication and you must assure “a heightened degree of protection from alteration or destruction,” provided overseer is not doing their regular duties at the same time AGO 2000-11

• However, not okay to charge SSC if documents are not originals requiring a heightened degree of protection from alteration or destruction

If the requestor had an earlier request that they still have not paid for or picked up, it is proper to not comply with their subsequent request until they pay up for the previous request(s)

• Lozman v. City of Riviera Beach, 995 So.2d 1027 (Fla. 4th DCA 2008).

Civil Suit with Attorney’s Fees:• §119.07, F.S., provides for the recovery of

attorney’s fees when a requestor sues to recover records that they had requested and were not produced

• §119.12, F.S. An award of attorneys’ fees to prevailing plaintiff may be assessed only if complainant provided written notice to public records custodian at least 5 days prior to filing lawsuit

• Agency can recover fees if court determines complainant made request primarily to cause a violation of the public records law or for a frivolous purpose

Criminal Penalties

It is a CRIME to knowingly violate the Florida Public Records Law

Noncriminal Infraction – a public official not complying with the public records law can receive a non-criminal infraction with a fine of up to $500

Turn over the records as soon as the mistake is realized – It will minimize the risk of a law suit or large attorney’s fees award

In an offense report on a domestic violence call, the deputy lists the names of the children at the residence. A neighbor has made a request for the report. Are the children’s names redacted?

In an offense report on a domestic violence call, the deputy lists the names of the children at the residence. A neighbor has made a request for the report. Are the children’s names redacted?

No; they are not alleged to be victims of child abuse.

A deputy responds to a burglary. In the report, the stolen items include prescription medications. The victim relates several medical conditions for which she is taking the medications. Are the medications and medical conditions confidential?

A deputy responds to a burglary. In the report, the stolen items include prescription medications. The victim relates several medical conditions for which she is taking the medications. Are the medications and medical conditions confidential?

No. They aren’t HIPAA protected. The sheriff’s office is not a covered entity.

A member of the public requests copies of arrest reports. The sheriff’s office has given an estimate of $30 to retrieve and copy the reports. There is an outstanding charge of $65 for copies of personnel files.

A member of the public requests copies of arrest reports. The sheriff’s office has given an estimate of $30 to retrieve and copy the reports. There is an outstanding charge of $65 for copies of personnel files.

The copies of the current reports do not need to be produced until $65 charge for previous copies has been paid.

To comply with a public records requests, a human resources manager estimates 3 hours to redact the files and an hour to copy them. Her records clerk, who makes $17/hour, is on leave. Can the H.R. manager charge her hourly rate of $30/hr. for the redaction and copying?

To comply with a public records requests, a human resources manager estimates 3 hours to redact the files and an hour to copy them. Her records clerk, who makes $17/hour, is on leave. Can the H.R. manager charge her hourly rate of $30/hr. for the redaction and copying?

No; only reasonable costs may be assessed. In this case the clerk’s hourly rate should be assessed.

CAD reports and records relating to an arrest can be provided on compact disks. The attorney requesting the records objects to the charge for the disks and has provided a thumb-drive for downloading the requested records.

CAD reports and records relating to an arrest can be provided on compact disks. The attorney requesting the records objects to the charge for the disks and has provided a thumb-drive for downloading the requested records.

The Sheriff’s Office is not required to reformat the records, or utilize foreign media which could corrupt the system.

THIS POWERPOINT IS A PUBLIC RECORD

Protecting, Leading, Uniting Since 1893

Wayne EvansGeneral Counsel, FSA

Allen, Norton & Blue, P.A.850-561-3503 (o)850-766-0945 (c)

revans@anblaw.com