PUBLIC RECORDS OVERVIEW
October 3 & 10, 2017
This presentation is posted at:
http://www.flsheriffs.org/webinars/
3
Wayne Evans
General 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 released
Times 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
§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 estate
Next 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, their
places 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 Evans
General Counsel, FSA
Allen, Norton & Blue, P.A.
850-561-3503 (o)
850-766-0945 (c)
revans@anblaw.com
