PUBLIC RECORDSPUBLIC RECORDSFOR LAW ENFORCEMENT FOR LAW ENFORCEMENT

AGENCIESAGENCIESHoward MaltzHoward Maltz

Deputy General CounselDeputy General CounselCity of JacksonvilleCity of Jacksonville

(904) 630-1854(904) 630-1854hmaltz@coj.nethmaltz@coj.net

FLEPIOA ConferenceFLEPIOA ConferenceJune 30, 2011June 30, 2011

Today’s TopicsToday’s Topics

Basic concepts of Florida’s public records Basic concepts of Florida’s public records law; law;

New decisions in the public records world; New decisions in the public records world;

Address some hot topics for law Address some hot topics for law enforcement agencies in the public enforcement agencies in the public records worldrecords world

Concepts We’ll CoverConcepts We’ll Cover

What is “public record”What is “public record” Some important exemptionsSome important exemptions Procedures for disclosureProcedures for disclosure What happens if you mess upWhat happens if you mess up

Why do we need to know what Why do we need to know what is a Public Recordis a Public Record

Important distinction: items that are Important distinction: items that are not not public recordpublic record vs. items that are public vs. items that are public record but are record but are exempt from disclosureexempt from disclosure If it isn’t public record- you don’t need to If it isn’t public record- you don’t need to

disclose itdisclose it Don’t need to cite to an exemption if respondingDon’t need to cite to an exemption if responding

If it is public record- you need to disclose it If it is public record- you need to disclose it unless it is confidential or exempt from unless it is confidential or exempt from disclosuredisclosure

What is a “Public Record?”What is a “Public Record?” ““Public record is any material prepared in Public record is any material prepared in

connection with official agency business which is connection with official agency business which is intended to perpetuate, communicate, or intended to perpetuate, communicate, or formalize knowledge of some type.” formalize knowledge of some type.” Shevin v. Shevin v. Byron, Harless, et. al. Byron, Harless, et. al. 379 So.2d 633 (Fl. 1980)379 So.2d 633 (Fl. 1980)

““all documents, papers, letters, maps, books, all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data tapes, photographs, films, sound recordings, data processing software, or other material processing software, or other material regardless regardless of physical form characteristics, or means of of physical form characteristics, or means of transmissiontransmission, made or received pursuant to law , made or received pursuant to law or ordinance or in connection with the transaction or ordinance or in connection with the transaction of official business by any agency” F.S. of official business by any agency” F.S. §119.011(12)§119.011(12)

Fundamental Concepts of Fundamental Concepts of Whether the Item is Public Whether the Item is Public

RecordRecord If it relates to the official business of If it relates to the official business of

the agency, it’s public recordthe agency, it’s public record

PersonalPersonal papers or documents are papers or documents are generally not public record.generally not public record.

It may be a public record, but it may It may be a public record, but it may also be exempt from disclosure and/or also be exempt from disclosure and/or confidentialconfidential

Some Examples of Public Some Examples of Public RecordRecord

Police ReportsPolice Reports Electronic data recordsElectronic data records Your bar tab last night that you Your bar tab last night that you

plan on submitting to your agency plan on submitting to your agency for reimbursementfor reimbursement

The title of the movie you rented The title of the movie you rented last night on the hotel’s TV that last night on the hotel’s TV that you plan on submitting for you plan on submitting for reimbursementreimbursement

ErroneousErroneous Things We Often Things We Often Hear Regarding Public RecordsHear Regarding Public Records

““I don’t want to email it to you, I’ll I don’t want to email it to you, I’ll hand it to you so it doesn’t become hand it to you so it doesn’t become public record.”public record.”

““It’s Just a Draft”It’s Just a Draft” ““It’s just my notes so it’s not public It’s just my notes so it’s not public

record”record”

Scenario- Personal NotesScenario- Personal Notes

Media requests police chief’s personal Media requests police chief’s personal notes regarding his meeting with local notes regarding his meeting with local prosecutor regarding a high profile case.prosecutor regarding a high profile case. Assume they are his personal notes to recall Assume they are his personal notes to recall

events in the future- is it public record?events in the future- is it public record? Assume he showed them to a colleague to Assume he showed them to a colleague to

let them know about the conversation- is it let them know about the conversation- is it public record?public record?

Rules on Personal NotesRules on Personal Notes AGO 2010-55 (12/29/10)AGO 2010-55 (12/29/10)

Personal notes taken in course of conducting official Personal notes taken in course of conducting official business by a public employee are not public record, if not business by a public employee are not public record, if not transcribed or shown to others and not intended to transcribed or shown to others and not intended to perpetuate, communicate or formalize knowledgeperpetuate, communicate or formalize knowledge

Notes utilized by writer to assist in remembering matters Notes utilized by writer to assist in remembering matters discussed, not shown to others and not intended to discussed, not shown to others and not intended to perpetuate, communicate or formalize knowledge are not perpetuate, communicate or formalize knowledge are not public records public records

Notes used to memorialize events related to official Notes used to memorialize events related to official business were public record.business were public record.

Miami Herald v. SarnoffMiami Herald v. Sarnoff, 971 So.2d 915 (3rd DCA , 971 So.2d 915 (3rd DCA 2007)2007)

AG Informal Opinion 6/2/09AG Informal Opinion 6/2/09 If circulated, the notes will be public recordIf circulated, the notes will be public record

Scenario- DraftsScenario- Drafts

Police chief creates a preliminary Police chief creates a preliminary draft of a reorganization of his draft of a reorganization of his agency and shows it to the City agency and shows it to the City Manager for a preliminary discussionManager for a preliminary discussion Is the draft public record?Is the draft public record?

Rules on Drafts- if it was circulated, it Rules on Drafts- if it was circulated, it is public record even if not the final is public record even if not the final decision of the agencydecision of the agency

Scenario- EmailsScenario- Emails

Sheriff gets a public records request from Sheriff gets a public records request from the media for all of his emails between a the media for all of his emails between a certain time period.certain time period. Are the emails public record?Are the emails public record?

What about his personal emails?What about his personal emails? What if done on govt. computer?What if done on govt. computer?

What about business emails on home What about business emails on home computer?computer?

What about Text messages?What about Text messages?

Rules on EmailRules on Email Personal email, even on a government Personal email, even on a government

computer is not a public record.computer is not a public record. State of Fla. v. City of ClearwaterState of Fla. v. City of Clearwater, 863 , 863

So.2d 149 (Fla. 2003)So.2d 149 (Fla. 2003) ““Personal email” is email that is “not made or Personal email” is email that is “not made or

received pursuant to law or ordinance or in received pursuant to law or ordinance or in connection with the transaction of official business.”connection with the transaction of official business.”

Official business emails are public recordOfficial business emails are public record Regardless of the computer it was created or Regardless of the computer it was created or

the server that it is onthe server that it is on

Text MessagingText Messaging Should treat text messages like emails for public Should treat text messages like emails for public

records purposes;records purposes; AG Informal Opinion (3/17/10)AG Informal Opinion (3/17/10)

AG letter to Secretary of State asking for retention AG letter to Secretary of State asking for retention schedules to be updated to provide for text messagesschedules to be updated to provide for text messages

““The same rules that apply to email should be The same rules that apply to email should be considered for Blackberry PIN and Text”considered for Blackberry PIN and Text”

General Records Retention Schedule GS1-SL General Records Retention Schedule GS1-SL §V §V revised to include text messaging, et. al.revised to include text messaging, et. al. ““Printouts of electronic communications (e-mail, instant Printouts of electronic communications (e-mail, instant

messaging, messaging, text messagingtext messaging, , multimedia messagingmultimedia messaging, , chat messaging, social networking,chat messaging, social networking, or any other or any other current or future electronic messaging technology or current or future electronic messaging technology or device) are acceptable in place of the electronic files, device) are acceptable in place of the electronic files, provided that the printed version contains all date/time provided that the printed version contains all date/time stamps and routing information.”stamps and routing information.”

Email Question Email Question

Request for employee’s emails for a Request for employee’s emails for a certain time periodcertain time period

In order to distinguish personal from In order to distinguish personal from public record that employee must public record that employee must review all of the emails and is thus review all of the emails and is thus familiar with the requestfamiliar with the request

How do you prevent the employee How do you prevent the employee from deleting or destroying public from deleting or destroying public record?record?

Tips to Assure the End User Tips to Assure the End User Doesn’t Destroy Public RecordDoesn’t Destroy Public Record

Advise the end user that intentional Advise the end user that intentional deletion or destruction of public record is a deletion or destruction of public record is a crime in Florida;crime in Florida;

Have IT set up 2 folders for the end user to Have IT set up 2 folders for the end user to put emails within parameters (1) purely put emails within parameters (1) purely personal emails; (2) all other emails that personal emails; (2) all other emails that are public record. At the end of the are public record. At the end of the process, have IT check to see if anything process, have IT check to see if anything was deleted by the end userwas deleted by the end user

ScenarioScenario Attorney requests “All emails or text Attorney requests “All emails or text

messaging between Officer Smith and Officer messaging between Officer Smith and Officer Jones about the shooting on 3/14/10”Jones about the shooting on 3/14/10”

You check agency server and there are no You check agency server and there are no emails between Smith and Jones.emails between Smith and Jones.

You talk with Smith and Jones and they tell You talk with Smith and Jones and they tell you that the two of them exchanged text you that the two of them exchanged text messages regarding the shooting?messages regarding the shooting? Does it matter if it was on their personal phones?Does it matter if it was on their personal phones?

Public record definition-119.011(12)Public record definition-119.011(12) ““public records” means all documents, public records” means all documents,

papers …. made or received pursuant to papers …. made or received pursuant to law or ordinance or in connection with the law or ordinance or in connection with the transaction of official business transaction of official business by any by any agencyagency””

119.011(2) Agency definition includes 119.011(2) Agency definition includes persons acting on behalf of a public agencypersons acting on behalf of a public agency

In scenario- likely public record (subject to In scenario- likely public record (subject to exemptions).exemptions).

How do you comply with producing text How do you comply with producing text messages?messages?

Examples of things that Examples of things that become public record later, become public record later, often to the embarrassment often to the embarrassment

of the authorof the author E-mailsE-mails TextsTexts Circulated DraftsCirculated Drafts Circulated NotesCirculated Notes

CLINTON, Wis- A Wisconsin prosecutor who sent sexually suggestive text messages to a domestic abuse victim downplayed the seriousness of their content and urged state officials to keep them from the public, his peers and state regulators, e-mail shows…..

Tips for EmailTips for Email

Avoid using personal email accounts (e.g. Avoid using personal email accounts (e.g. gmail, etc.) for business email- the email is gmail, etc.) for business email- the email is public record and people tend to write more public record and people tend to write more freely on private email accounts;freely on private email accounts;

Have department officials set up a folder in Have department officials set up a folder in their business email account for personal their business email account for personal emails- it makes complying with a records emails- it makes complying with a records request without disclosing personal emails request without disclosing personal emails much easiermuch easier

Do not delete business emails- records Do not delete business emails- records retention schedules apply to email like all retention schedules apply to email like all other public records- create foldersother public records- create folders

Tips for Text MessagingTips for Text Messaging

Consider deactivating text messaging on Consider deactivating text messaging on agency devices or enact a policy of no agency devices or enact a policy of no business related communications via textbusiness related communications via text

No texting with substantive business No texting with substantive business related discussionsrelated discussions ““Call me”, “where are you”, etc. are okayCall me”, “where are you”, etc. are okay

If you can’t preserve it or produce what If you can’t preserve it or produce what could happen?could happen? Civil or criminal penaltyCivil or criminal penalty

Consider software to archive text Consider software to archive text messagesmessages

Scenario- Jail CallsScenario- Jail Calls

You have received a public records You have received a public records request for recordings of all phone request for recordings of all phone calls made by an inmate during a calls made by an inmate during a particular time period.particular time period. Is it public record?Is it public record?

Inmate Phone CallsInmate Phone Calls Bent v. StateBent v. State, 46 So.3d 1047 (4, 46 So.3d 1047 (4thth DCA DCA

9/29/10)9/29/10) Newspaper made public records request of Newspaper made public records request of

Broward S.O. for 2 inmates’ recorded phone callsBroward S.O. for 2 inmates’ recorded phone calls Purely personal phone calls of inmates are not Purely personal phone calls of inmates are not

public record.public record. Only phone calls that involve a crime or security Only phone calls that involve a crime or security

risk fall within definition of public recordrisk fall within definition of public record Does this mean you disclose all calls involving crimes or Does this mean you disclose all calls involving crimes or

security risks?security risks? Logs of phone numbers called would be public Logs of phone numbers called would be public

recordrecord Subject to any other exemptions from disclosureSubject to any other exemptions from disclosure

QuestionQuestion

How are you going to ascertain which How are you going to ascertain which calls are purely personal, which are calls are purely personal, which are public record (talking about crimes or public record (talking about crimes or security breaches) and which are public security breaches) and which are public record subject to an exemption from record subject to an exemption from disclosure?disclosure?

Social MediaSocial Media

Social media sites are subject to same Social media sites are subject to same public records lawspublic records laws Facebook pages, friends lists, postings, etc. Facebook pages, friends lists, postings, etc.

are all public record (AGO 09-19)are all public record (AGO 09-19) Twitter messages- outgoing and incoming Twitter messages- outgoing and incoming

by agency are public recordby agency are public record What about Social Media What about Social Media

communications by agency officials on communications by agency officials on their personal accounts involving their personal accounts involving agency business?agency business?

Tips for Social MediaTips for Social Media

Consider limiting or not allowing postings by Consider limiting or not allowing postings by others on the wallothers on the wall All wall postings on agency Facebook page All wall postings on agency Facebook page

become public recordbecome public record Consider limiting or not allowing incoming Consider limiting or not allowing incoming

Tweets- Outgoing Tweets onlyTweets- Outgoing Tweets only All outgoing and incoming Tweets are public All outgoing and incoming Tweets are public

recordrecord Instruct agency members about implications Instruct agency members about implications

of discussing agency business on their of discussing agency business on their personal accountspersonal accounts

Common Public Records Common Public Records Exemptions Issues Facing Exemptions Issues Facing

Law Enforcement AgenciesLaw Enforcement Agencies

““Exempt” vs. “Exempt and Exempt” vs. “Exempt and Confidential”Confidential”

If it’s public record, you must then determine if it If it’s public record, you must then determine if it is “exempt,” “exempt and confidential,” or is “exempt,” “exempt and confidential,” or subject to disclosuresubject to disclosure

““Exempt” only-Exempt” only- Agency is not required to disclose records, but may do Agency is not required to disclose records, but may do

so at its discretionso at its discretion

““Exempt and Confidential”-Exempt and Confidential”- Agency must not release recordsAgency must not release records

AGO 07-21AGO 07-21

(New Exemption) (New Exemption) CS/HB411(2011)CS/HB411(2011)

Makes Makes exempt and confidentialexempt and confidential “a photograph or “a photograph or video or audio recording that depicts the killing of a video or audio recording that depicts the killing of a person.”person.”

““killing of a person” means all acts or events that killing of a person” means all acts or events that cause or otherwise relate to the death of any human cause or otherwise relate to the death of any human being, being, including any related acts or events including any related acts or events immediately preceding or subsequent to the acts or immediately preceding or subsequent to the acts or events that were the proximate cause of death.events that were the proximate cause of death.

Available to family members as provided in the act.Available to family members as provided in the act. A local governmental entity, or state or federal A local governmental entity, or state or federal

agency may request this information in writing in agency may request this information in writing in furtherance of its official dutiesfurtherance of its official duties

A court on showing of good cause may order A court on showing of good cause may order disclosuredisclosure

Willful violation is a 3Willful violation is a 3° Felony° Felony

CS/HB411 (Cont.)CS/HB411 (Cont.) Similar to bill with regard to autopsy photos, Similar to bill with regard to autopsy photos,

recordings, etc.recordings, etc. Photos of homicide victims are exempt and Photos of homicide victims are exempt and

confidential;confidential; 911 recording of killing in progress E & C911 recording of killing in progress E & C Videos of crime scenes with homicide victims subject Videos of crime scenes with homicide victims subject

to redactionto redaction May share with other govt. entities upon written May share with other govt. entities upon written

requestrequest Criminal and administrative proceedings are exempt Criminal and administrative proceedings are exempt

form this act, though Court may limit disclosureform this act, though Court may limit disclosure Retroactive applicationRetroactive application Effective 7/1/11Effective 7/1/11 Ch. 2011-115, Laws of Fla.Ch. 2011-115, Laws of Fla.

CS/HB 409 (New)CS/HB 409 (New)

119.071(2)(h)1.c- currently provides that 119.071(2)(h)1.c- currently provides that photos, videos or images of any part of photos, videos or images of any part of the body of a sex crimes victim is the body of a sex crimes victim is confidential and exempt from disclosureconfidential and exempt from disclosure

Amended to include victims under Amended to include victims under 810.145810.145 Video voyeurism and sextingVideo voyeurism and sexting

Signed by Governor and effective 7/1/11Signed by Governor and effective 7/1/11

HB 597 (New)HB 597 (New)

Creates a new subsection 119.071(5)(j) Creates a new subsection 119.071(5)(j) exempting from public record disclosure any exempting from public record disclosure any information furnished by a person to an information furnished by a person to an agency for the purposes of being provided agency for the purposes of being provided emergency notification by an agency, emergency notification by an agency, including the person’s name, address, including the person’s name, address, telephone number, email address, or other telephone number, email address, or other electronic communications addresselectronic communications address

Effective 7/1/11 Effective 7/1/11 Retroactive applicationRetroactive application

ScenarioScenario One of your dispatchers has been One of your dispatchers has been

arrested for murder and the media arrested for murder and the media has requested her personnel file. has requested her personnel file.

Is it all subject to disclosure?Is it all subject to disclosure?

Rules Regarding Law Rules Regarding Law Enforcement Agency Personnel Enforcement Agency Personnel

FilesFiles F.S. 119.071(4)(d)1 exemptions for “law F.S. 119.071(4)(d)1 exemptions for “law

enforcement enforcement personnelpersonnel”-”- Social Sec. #- (applies to everyone)Social Sec. #- (applies to everyone) Home address, telephone #, photos, info Home address, telephone #, photos, info

regarding spouses and children including regarding spouses and children including their places of employment.their places of employment.

Applies to active and former law Applies to active and former law enforcement personnelenforcement personnel

What Constitutes “Law What Constitutes “Law Enforcement Personnel”Enforcement Personnel”

AGO 07-21- AG’s position: “law enforcement AGO 07-21- AG’s position: “law enforcement personnel” only means personnel” only means sworn personnelsworn personnel.. ““Thus, while sworn officers would be included Thus, while sworn officers would be included

within the exemption, support personnel within the exemption, support personnel employed by a police department would not employed by a police department would not appear to be included.”appear to be included.”

Florida courts have said that the public records Florida courts have said that the public records law is to be construed in favor of disclosurelaw is to be construed in favor of disclosure and and all exemptions are to be narrowly construed.all exemptions are to be narrowly construed.

Other issues within L.E. Other issues within L.E. Personal Info ExemptionPersonal Info Exemption

Does it apply to Does it apply to former residencesformer residences of of the law enforcement officer?the law enforcement officer? No- Per AGO 2010-37- it only applies to No- Per AGO 2010-37- it only applies to

current residences of law enforcement current residences of law enforcement personnelpersonnel

Applies to others as well- e.g. ASAs, Applies to others as well- e.g. ASAs, judges, firefighters, DCF investigators, judges, firefighters, DCF investigators, probation officers, public defenders, probation officers, public defenders, etc.etc.

Cell Phone NumbersCell Phone Numbers

Scenario- Records request for the Scenario- Records request for the cell phone numbers of police cell phone numbers of police department issued cell phonesdepartment issued cell phones Is it public record subject to disclosure?Is it public record subject to disclosure?

Cell Phone RecordsCell Phone Records AG Informal Opinion 7/17/03AG Informal Opinion 7/17/03

An officer’s issued cell phone number is public An officer’s issued cell phone number is public record- does not fall within the exemption in record- does not fall within the exemption in 119.071(4).119.071(4).

““business telephone numbers used to contact law business telephone numbers used to contact law enforcement officers, whether providing access to a enforcement officers, whether providing access to a desk telephone at the officer’s workplace or to a desk telephone at the officer’s workplace or to a cellular telephone carried by the officer while cellular telephone carried by the officer while performing his or her official duties, would be public performing his or her official duties, would be public record”record”

Argument (weak) by some that it falls within Argument (weak) by some that it falls within 119.071(2)(d)- comprehensive list of law enf. 119.071(2)(d)- comprehensive list of law enf. resources- that is a very limited exemption- MOUs and resources- that is a very limited exemption- MOUs and emergency deploymentsemergency deployments

Argument (weak) it falls in §119.071(2)(d)(exemption-- Argument (weak) it falls in §119.071(2)(d)(exemption-- disclosure might reveal surveillance techniques, disclosure might reveal surveillance techniques, procedure, or personnel.  procedure, or personnel. 

Records of Cell Phone CallsRecords of Cell Phone CallsScenarioScenario

An individual requests records of an An individual requests records of an officer’s cell phone calls on a officer’s cell phone calls on a particular dateparticular date On his agency cell phone- is it public On his agency cell phone- is it public

record?record? What about personal numbers called?What about personal numbers called? On his personal phone?On his personal phone?

Booking Photos/Mug ShotsBooking Photos/Mug Shots

Scenario Scenario Individual has been conducting numerous Individual has been conducting numerous

highly publicized robberies with similar M.O.s. highly publicized robberies with similar M.O.s. An arrest is made; however, due to the number An arrest is made; however, due to the number

of robberies, detectives have not yet shown of robberies, detectives have not yet shown photospreads (or conducted a lineup) to a photospreads (or conducted a lineup) to a number of the victims. Detectives will not be number of the victims. Detectives will not be able to complete the victim photospreads (or able to complete the victim photospreads (or line ups) for about 48 hours.line ups) for about 48 hours.

The media is requesting the booking photo nowThe media is requesting the booking photo now Is the booking photo a public record which Is the booking photo a public record which

must be disclosed?must be disclosed?

Booking PhotosBooking Photos

• Booking photos are generally Booking photos are generally considered non-exempt public record considered non-exempt public record which must be disclosed;which must be disclosed;

• HOWEVER, if the active criminal HOWEVER, if the active criminal investigation investigation exemption, or any exemption, or any other exemption, is still applicable it other exemption, is still applicable it would not be subject to disclosurewould not be subject to disclosure

ScenarioScenario

An officer is arrested for DUI and the An officer is arrested for DUI and the media asks for his/her booking photomedia asks for his/her booking photo

Police Officer Booking Police Officer Booking PhotosPhotos

Booking photos are generally considered Booking photos are generally considered non-exempt public record; however, non-exempt public record; however, If a law enforcement officer If a law enforcement officer requestsrequests exemption exemption

of his/her photo under s.119.071(4)(d), the of his/her photo under s.119.071(4)(d), the booking photo of an arrested police officer booking photo of an arrested police officer would be exempt from disclosure.would be exempt from disclosure.

FOP, Lodge 5-30 v. City of JacksonvilleFOP, Lodge 5-30 v. City of Jacksonville (4 (4thth Jud. Cir. Jud. Cir. 2001)2001)

Sarasota Herald-Tribune Co. v. Sarasota County Sarasota Herald-Tribune Co. v. Sarasota County Sheriff’s OfficeSheriff’s Office, (12, (12thth Jud. Cir. 1996) Jud. Cir. 1996)

Because the photo is not related to their work, the Because the photo is not related to their work, the exemption only applies if they specifically claim it and exemption only applies if they specifically claim it and is not automaticis not automatic

Booking Photos (Cont.)Booking Photos (Cont.)

What about retired police officers?What about retired police officers? What about officer’s family What about officer’s family

members?members? What about retired firefighters?What about retired firefighters?

Active Criminal Investigative Active Criminal Investigative InformationInformation

““Active Criminal Investigative Information” is Active Criminal Investigative Information” is exemptexempt from disclosurefrom disclosure

““Criminal investigative informationCriminal investigative information” is defined as ” is defined as “information with respect to an identifiable person or “information with respect to an identifiable person or group of persons compiled by a criminal justice group of persons compiled by a criminal justice agency in the course of conducting a criminal agency in the course of conducting a criminal investigation of a specific act or omission, including, investigation of a specific act or omission, including, but not limited to, information derived from but not limited to, information derived from laboratory tests, reports or investigators or laboratory tests, reports or investigators or informants, or any type of surveillance.”informants, or any type of surveillance.”

To be considered “To be considered “activeactive” such information must ” such information must relate to an ongoing investigation which is continuing relate to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.”an arrest or prosecution in the foreseeable future.”

Active Criminal Investigative Active Criminal Investigative Information (cont.)Information (cont.)

If the material that otherwise would If the material that otherwise would constitute active criminal constitute active criminal investigative information is turned investigative information is turned over to the accused in the criminal over to the accused in the criminal discovery process, the exemption no discovery process, the exemption no longer applies and the material longer applies and the material would need to be disclosed.would need to be disclosed.

Post-Newsweek Stations v. DoePost-Newsweek Stations v. Doe, 612 So.2d , 612 So.2d 549 (Fla. 1992); 549 (Fla. 1992); Fla. Freedom Newspapers v. Fla. Freedom Newspapers v. McCraryMcCrary, 520 So.2d 32 (Fla. 1988), 520 So.2d 32 (Fla. 1988)

ScenarioScenario Undercover operation at strip club Undercover operation at strip club

resulting in arrests. U/C officers video resulting in arrests. U/C officers video the girls doing ‘the girls doing ‘thingsthings’ and video ’ and video includes images of U/C officersincludes images of U/C officers

During prosecution of the strippers, as During prosecution of the strippers, as part of discovery the SAO turns over part of discovery the SAO turns over unredacted versions of the video.unredacted versions of the video.

Is the unredacted version now public Is the unredacted version now public record subject to disclosure?record subject to disclosure?

Rameses v. DemingsRameses v. DemingsFla. 5Fla. 5thth DCA 3/5/10 DCA 3/5/10

Facts from scenarioFacts from scenario Despite the fact that unredacted version Despite the fact that unredacted version

was turned over during discovery, because was turned over during discovery, because the video discloses the surveillance the video discloses the surveillance techniques and identity of U/C officers- techniques and identity of U/C officers- exemption still appliesexemption still applies

Only active criminal investigative Only active criminal investigative information loses its exemption upon information loses its exemption upon disclosure as part of criminal discovery.disclosure as part of criminal discovery.

Active Criminal Intelligence Active Criminal Intelligence Information (exempt)Information (exempt)

"Criminal intelligence information" means "Criminal intelligence information" means information with respect to an identifiable information with respect to an identifiable person or group of persons collected by a person or group of persons collected by a criminal justice agency in an effort to criminal justice agency in an effort to anticipate, prevent, or monitor possible anticipate, prevent, or monitor possible criminal activity. criminal activity.

Criminal intelligence information shall be Criminal intelligence information shall be considered considered "active""active" as long as it is related as long as it is related to intelligence gathering conducted with a to intelligence gathering conducted with a reasonable, good faith belief that it will reasonable, good faith belief that it will lead to detection of ongoing or reasonably lead to detection of ongoing or reasonably anticipated criminal activities.anticipated criminal activities.

911 Calls911 Calls

Recording of the call itself is public record Recording of the call itself is public record (unless otherwise exempt); however, (unless otherwise exempt); however, portions of the call that reveal the name, portions of the call that reveal the name, address, telephone number, and identifying address, telephone number, and identifying or personal information regarding the caller, or personal information regarding the caller, are are confidential & exemptconfidential & exempt from disclosure from disclosure (F.S. (F.S. §§365.171(12))365.171(12))

Although public record, under certain Although public record, under certain circumstances the remainder of the call may circumstances the remainder of the call may be active criminal investigative information be active criminal investigative information and become exempt from disclosureand become exempt from disclosure

Administrative Administrative InvestigationsInvestigations

Scenario:Scenario: Officer shoots someone Officer shoots someone agency policy results in an administrative agency policy results in an administrative

investigation into the matter. investigation into the matter. You have a shooting review board that is You have a shooting review board that is

open to the public. open to the public. Media requests records from the Media requests records from the

Administrative reviewAdministrative review Can the review board be open to the Can the review board be open to the

public and can the records be released?public and can the records be released?

Applicable StatuteApplicable Statute F.S. 112.533(2)(a) makes F.S. 112.533(2)(a) makes complaintscomplaints filed against filed against

officers and info obtained during investigation officers and info obtained during investigation confidentialconfidential and exemptand exempt until conclusion of the until conclusion of the investigation.investigation.

But what if the admin. investigation is conducted But what if the admin. investigation is conducted not pursuant to complaint but routinely per not pursuant to complaint but routinely per policy?policy? City of Delray Beach v. BarfieldCity of Delray Beach v. Barfield, 579 So.2d 315 (Fla. 4th , 579 So.2d 315 (Fla. 4th

DCA 1991)- provision does not apply to agency DCA 1991)- provision does not apply to agency investigations initiated as a matter of course or routine. investigations initiated as a matter of course or routine.

FOP v. Rutherford, 51 So.3d 485 (Fla. 1FOP v. Rutherford, 51 So.3d 485 (Fla. 1stst DCA 2010)- DCA 2010)- provision applies anytime a law enforcement officer is provision applies anytime a law enforcement officer is investigated that could lead to discipline regardless of investigated that could lead to discipline regardless of whether pursuant to complaintwhether pursuant to complaint

Fl. Sup. Court declined review on 6/27/11Fl. Sup. Court declined review on 6/27/11

Victim InformationVictim Information Any information revealing the identity of Any information revealing the identity of

victims of victims of sex crimessex crimes or or child abusechild abuse is exempt is exempt and confidential;and confidential;

Upon written request, home and business Upon written request, home and business addresses and phone numbers, and personal addresses and phone numbers, and personal assets of victims of sexual battery, agg. child assets of victims of sexual battery, agg. child abuse, agg. stalking, harassment, agg. battery abuse, agg. stalking, harassment, agg. battery or domestic violence is exempt- 5 year limit;or domestic violence is exempt- 5 year limit;

Personal asset info of a crime victim other than Personal asset info of a crime victim other than property stolen or destroyed during a crime is property stolen or destroyed during a crime is exempt;exempt;

F.S. F.S. §119.071(2)(h) and (j)§119.071(2)(h) and (j)

Crash ReportsCrash Reports

Confidential and Exempt for 60 days Confidential and Exempt for 60 days after report is filed, except the following after report is filed, except the following may obtain them within the 60 days:may obtain them within the 60 days: Involved parties, their legal representatives, Involved parties, their legal representatives,

their insurance companies, prosecutors, their insurance companies, prosecutors, victim services, andvictim services, and

Certain mediaCertain media F.S. F.S. §316.066§316.066

Media that Can Get Crash Media that Can Get Crash Reports within 60 daysReports within 60 days

Radio and TV stations licensed by FCCRadio and TV stations licensed by FCC Newspapers qualified to publish legal noticesNewspapers qualified to publish legal notices Free newspapers of general circulation, published Free newspapers of general circulation, published

once a week or more, available and of interest to once a week or more, available and of interest to the public for dissemination of newsthe public for dissemination of news

Publications excluded from acceptable Publications excluded from acceptable publications for disclosure:publications for disclosure: Those intended primarily for members of a particular Those intended primarily for members of a particular

profession, primary purpose is distributing advertising, profession, primary purpose is distributing advertising, primary purpose is to publish identifying info of parties primary purpose is to publish identifying info of parties to MV crashesto MV crashes

Juvenile InformationJuvenile Information

Confidential and exempt Confidential and exempt exceptexcept:: Name, photo, address and report if a Name, photo, address and report if a

felony offense;felony offense; Charged as an adult;Charged as an adult; Adjudicated delinquent for certain sex Adjudicated delinquent for certain sex

offensesoffenses

DL PhotosDL Photos

Exempt from public record disclosure

Per F.S. §322.142(4)

Fundamentals of What Not Fundamentals of What Not To do with Public Records To do with Public Records

Requests and the Requests and the Requested RecordsRequested Records

How Much Can you Charge for How Much Can you Charge for Production?Production?

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

Special service charge- allowed if the “nature and Special service charge- allowed if the “nature and volume” of the request requires extensive use of volume” of the request requires extensive use of information technology resources or extensive information technology resources or extensive clerical or supervisory assistance to comply.clerical or supervisory assistance to comply. Charge page rate or ACD + service charge- based on cost Charge page rate or ACD + service charge- based on cost

of the personnel time (of the personnel time (salary plus benefitssalary plus benefits) ) Highlands Highlands County v. Colby, County v. Colby, 976 So.2d 31 (Fla. 2d DCA 2008)976 So.2d 31 (Fla. 2d DCA 2008)

First DCA upheld a service charge for requests exceeding First DCA upheld a service charge for requests exceeding 15 minutes - 15 minutes - Fla. Institutional Svcs. Inc. v. Dept. of Fla. Institutional Svcs. Inc. v. Dept. of CorrectionsCorrections, (Fla. 1, (Fla. 1stst DCA 1991) CAUTION DCA 1991) CAUTION

Improper to charge service charge regardless of how Improper to charge service charge regardless of how long it takes to complylong it takes to comply

Lee v. Jax Police and Fire Pension Fund, Lee v. Jax Police and Fire Pension Fund, 44thth Judicial Circuit 6/24/11 Judicial Circuit 6/24/11

Can you charge for the time Can you charge for the time spent going through emails spent going through emails

and texts?and texts? Time spent determining whether email or text Time spent determining whether email or text

was personalwas personal Time spent determining if an exemption Time spent determining if an exemption

appliesapplies Whose time can you charge for?Whose time can you charge for?

If the request is of such a nature that it requires a skill set If the request is of such a nature that it requires a skill set beyond that of strictly clerical functions, it is lawful to beyond that of strictly clerical functions, it is lawful to charge the rate for higher skilled personnel needed to charge the rate for higher skilled personnel needed to comply with the requestcomply with the request

Lee v. Jax Police and Fire Pension Fund, 4Lee v. Jax Police and Fire Pension Fund, 4thth Judicial Circuit Judicial Circuit 6/24/116/24/11

Rules Regarding Payment for Rules Regarding Payment for RecordsRecords

$0.15 single sided- $0.20 double sided- $1 $0.15 single sided- $0.20 double sided- $1 certified copy of documents, unless certified copy of documents, unless otherwise provided by statute.otherwise provided by statute.

Production of other records: “Production of other records: “actual cost of actual cost of duplicationduplication””

ACD- “cost of the material and supplies ACD- “cost of the material and supplies used to duplicate the public record , used to duplicate the public record , but but does not includedoes not include labor cost or overhead labor cost or overhead cost associated with such duplication”cost associated with such duplication”

E.g.- photos, videos, audio recordings, etc.E.g.- photos, videos, audio recordings, etc.

Rules Regarding Payment for Rules Regarding Payment for Records (Cont.)Records (Cont.)

May require money up front and/or May require money up front and/or deposit before complying with deposit before complying with requestrequest Deposit to be based on good faith Deposit to be based on good faith

estimate and must refund any excess. estimate and must refund any excess. AGO 05-28AGO 05-28

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

Rules Regarding Payment for Rules Regarding Payment for Records (Cont.)Records (Cont.)

Can you charge for the time for someone Can you charge for the time for someone to oversee the production?to oversee the production? Okay to assess special service charge (SSC) to Okay to assess special service charge (SSC) to

oversee production if documents being oversee production if documents being reviewed are originals incapable of duplication reviewed are originals incapable of duplication and you must assure “a heightened degree of and you must assure “a heightened degree of protection from alteration or destruction,” protection from alteration or destruction,” provided overseer is not doing their regular provided overseer is not doing their regular duties at the same time. AGO 2000-11duties at the same time. AGO 2000-11

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

Lee v. Jax Police and Fire Pension Fund, 4Lee v. Jax Police and Fire Pension Fund, 4thth Judicial Judicial Circuit 6/24/11Circuit 6/24/11

Rules Regarding Payment for Rules Regarding Payment for Records (Cont.)Records (Cont.)

If the requestor had an earlier If the requestor had an earlier request that they still have not paid request that they still have not paid for or picked up, it is proper to not for or picked up, it is proper to not comply with their subsequent comply with their subsequent request until they pay up for the request until they pay up for the previous request(s).previous request(s). Lozman v. City of Riviera BeachLozman v. City of Riviera Beach, 995 , 995

So.2d 1027 (Fla. 4th DCA 2008),So.2d 1027 (Fla. 4th DCA 2008),

How to respond when not How to respond when not turning over public recordsturning over public records

You must respond in writing if not You must respond in writing if not turning over public records;turning over public records;

If relying on an exemption to If relying on an exemption to disclosure of public records, you disclosure of public records, you must cite the specific exemption to must cite the specific exemption to the disclosure requirements of the the disclosure requirements of the Public Records Law.Public Records Law.

AG Informal Opinion 5/27/11AG Informal Opinion 5/27/11 Where records were stored electronically by Where records were stored electronically by

agency and requestor asked for them to be agency and requestor asked for them to be emailed, agency could not require requestor to emailed, agency could not require requestor to provide mailing address to send hard copies or to provide mailing address to send hard copies or to physically come to agency to review recordsphysically come to agency to review records

Agency must provide a copy of the record in Agency must provide a copy of the record in medium requested if the agency maintains the medium requested if the agency maintains the record in that mediumrecord in that medium Not required to convert records into a medium in which Not required to convert records into a medium in which

it is not maintainedit is not maintained Requests need not be made in writingRequests need not be made in writing Requestor need not reveal his purpose for Requestor need not reveal his purpose for

requestrequest Requestor is not required to provide name, Requestor is not required to provide name,

address, telephone #, or identifying informationaddress, telephone #, or identifying information

What if you are wrong in not What if you are wrong in not turning over Public Records?turning over Public Records?

Civil Penalty: Civil Penalty: 119.07 provides for the recovery of 119.07 provides for the recovery of

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

Attorney’s FeesAttorney’s Fees In September 2009, a Sarasota In September 2009, a Sarasota

County Judge ordered the City of County Judge ordered the City of Venice to pay Venice to pay $749,076$749,076 in attorneys in attorneys fees and costs, pursuant to chapter fees and costs, pursuant to chapter 119, following an adverse decision on 119, following an adverse decision on a public records issue.a public records issue.

What if you are wrong (Part What if you are wrong (Part II)II)

Criminal PenaltiesCriminal Penalties It is a It is a CRIMECRIME to to knowinglyknowingly violate the violate the

Florida Public Records Law.Florida Public Records Law.

In 1998 an Escambia County School In 1998 an Escambia County School Board member was convicted and Board member was convicted and sentenced to jail for failing to sentenced to jail for failing to respond in a timely or reasonable respond in a timely or reasonable manner to a public records request.manner to a public records request.

What to do when you have What to do when you have realized you made a mistake in realized you made a mistake in not turning over public recordsnot turning over public records

Turn over the records as soon as the Turn over the records as soon as the mistake is realized- it will minimize the mistake is realized- it will minimize the risk of a law suit or large attorney’s fees risk of a law suit or large attorney’s fees awardaward

If it was a really bad mistake and going If it was a really bad mistake and going to cost your agency a bunch of moneyto cost your agency a bunch of money Blame someone else for the mistake!!Blame someone else for the mistake!!