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PUBLIC RECORDS LAW

PUBLIC RECORDS LAW

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PUBLIC RECORDS LAW

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  1. PUBLIC RECORDS LAW

  2. F.S. 119.01(1) • It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.

  3. F.S. 119.011(11) • "Public records" means 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.

  4. any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980).

  5. Exemptions

  6. F.S. 119.011(8) • "Exemption" means a provision of general law which provides that a specified record or meeting, or portion thereof, is not subject to the access requirements of s.119.07(1), s. 286.01, or s. 24, Art. I of the State Constitution.

  7. A document is exempt if a statute exempts it.

  8. There are approximately 900 public records and public meetings exemptions. (HB 1731, Staff Analysis, 3/30/2005)

  9. 119.071General Exemptions

  10. Agency Administration • Attorney Work Product • Data Processing Software

  11. Agency Investigations • Active criminal intelligence and active criminal investigative information

  12. F.S. 119.071(2)(g) • When the alleged victim chooses not to file a complaint and requests that records of the complaint remain confidential, all records relating to an allegation of employment discrimination are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

  13. Security • Buildings plans, blueprints, drawings, security system plans

  14. Agency Personnel Information F.S. 119.071(4)(a)1 • The social security numbers of all current and former agency employees which numbers are contained in agency employment records are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

  15. F.S. 119.07(4)(b) • Medical information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, would identify that officer or employee is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

  16. F.S. 119.07(4)(d)1-7 • The home addresses, telephone numbers, social security numbers, and photographs of certain specified employees

  17. Other Personal Information F.S. 119.071(5)(a)2 • An agency shall not collect an individual's social security number unless authorized by law to do so or unless the collection of the social security number is otherwise imperative for the performance of that agency's duties and responsibilities as prescribed by law.

  18. Social security numbers collected by an agency must be relevant to the purpose for which collected and shall not be collected until and unless the need for social security numbers has been clearly documented.

  19. An agency that collects social security numbers shall also segregate that number on a separate page from the rest of the record, or as otherwise appropriate, in order that the social security number be more easily redacted, if required, pursuant to a public records request.

  20. An agency collecting a person's social security number shall, upon that person's request, at the time of or prior to the actual collection of the social security number by that agency, provide that person with a statement of the purpose or purposes for which the social security number is being collected and used.

  21. Social security numbers collected by an agency shall not be used by that agency for any purpose other than the purpose stated.

  22. F.S. 119.071(5)(a)3 • Effective October 1, 2002, all social security numbers held by an agency are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This exemption applies to all social security numbers held by an agency before, on, or after the effective date of this exemption.

  23. F.S. 119.071 (5)(b) • Bank account numbers and debit, charge, and credit card numbers held by an agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This exemption applies to bank account numbers and debit, charge, and credit card numbers held by an agency before, on, or after the effective date of this exemption.

  24. F.S.119.0711Executive Branch Agency Exemptions All complaints and other records in the custody of any agency in the executive branch of state government which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap, or marital status in connection with hiring practices, position classifications, salary, benefits, discipline, discharge, employee performance, evaluation, or other related activities are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until a finding is made relating to probable cause, the investigation of the complaint becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding.

  25. F.S.119.072 • Department of Health • Department of Highway Safety and Motor Vehicles Executive Branch Agency-Specific Exemptions

  26. F.S.119.0713Local Government Agency Exemptions

  27. Each agency may have their own exemptions in other statutes • DOC • Confidential Information- 945.10 • DOT • Financial Statements- 337.14(1) • Trade Secrets- 334.049(4)

  28. Case Law Exemptions • Shevin Case- Drafts

  29. Seigle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982) • The public has a right to inspect records in the format maintained by the state. If the software cannot produce the records in the format preferred by the requesting party, the state is not obligated to do so.

  30. Personnel Records • Personnel Records are public records within the meaning of Chapter 119. Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985); News-Press Publishing Co. v. Wisher, 345 So. 2d 646, 647 (Fla. 1977).

  31. What is kept in personnel files is largely a matter of judgment of the employer, but whatever is so kept is public record and subject to being published. Michel v. Douglas

  32. Grievance records of teachers employed by county school board were public records, even though a collective bargaining agreement prohibited their disclosure. Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981)

  33. No policy of the state protects a public employee from the embarrassment which results from his or her public employer's discussion or action on the employee's failure to perform his or her duties properly. News-Press Publishing Co. v. Wisher

  34. No absolute right to examine all personnel files.

  35. Certain information if exempt by statute and must be redacted • Drafts- not completed investigations

  36. Personnel Records: not like all other business records • We find, however, that the right of access to personnel records as public records is not the right to rummage freely through public employees' personal lives. Michel v. Douglas

  37. Personnel records are not kept as a principal function of a public agency. They are merely an internal agency function maintained to facilitate the primary purpose of that particular agency. Michel v. Douglas;Roberts v. News-Press Publishing Co., 409 So.2d 1089, 1095 (Fla. 2d DCA).

  38. Discipline Decisions • Like grievance records, generally a public record. • Any exemptions (drafts, investigations) • Even if causes embarrassment. News-Press Publishing Co. v. Wisher

  39. Wisher: denied newspaper access to personnel files of county employees after the Board of County Commissioners had voted in public to place a warning of possible termination in the personnel file of an unnamed employee. • The document or documents which identified the name of the department head and expressed the commission's reasons for taking action on his or her continued employment are nonexempt public documents, including the document or documents of warning which were placed in his or her file on direction of the Commission.

  40. Sealing Records (usually seal a company’s data, but not personnel files on bad conduct)

  41. Hiring/Interview Notes • Public Record • Possible Arguments Against Public Records: • May be able to argue Wisher and not allow unbridled review • Notes are preliminary

  42. Affect of Outsourcing on Public Records • Which contractors are bound by public records law?

  43. F.S. 287.058(1)(c), “where applicable,” the contract should include: • A provision allowing unilateral cancellation by the agency for refusal by the contractor to allow public access to all documents, papers, letters, or other material made or received by the contractor in conjunction with the contract, unless the records are exempt from s. 24(a) of Art. I of the State Constitution and s. 119.07(1).

  44. Definition of agency: F.S.119.011(2) • "Agency" means any state, county, district, … and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

  45. Courts apply “totality of factors” test to determine if a contractor is “acting on behalf of a public agency.” News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992) • Nine factors in Schwab but Court said may be more.

  46. Company designing schools for school board was merely providing professional services and not subject to Chapter 119 • Company not regulated by school board, payment was for professional services, company not involved in school board’s decision making process, not performing a governmental function.

  47. For hire professional services, not related to traditional governmental services, are not subject to Chapter 119. • an architectural firm, such as the respondent, that contracts to provide professional services for the construction of a school is not acting on behalf of a public agency so as to be subject to the provisions of chapter 119. 596 So. 2d 1033.

  48. Booksmart Enterprises, Inc. v. Barnes and Noble College Bookstore, 718 So. 2d 227 (Fla. 3d DCA 1998). • Barnes and Noble operated campus bookstore. Off campus competitor wanted the forms professors filled out listing books needed for their courses that Barnes and Noble used to order books.

  49. We conclude that the completed forms are public records and that Barnes & Noble is their custodian, therefore Barnes & Noble must comply with the provisions of chapter 119, Florida Statutes (1995), including those that require a records custodian to make the documents available for inspection and copying by any person (including Booksmart).

  50. Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997) • Salvation Army contracted with a county to provide probationary services for misdemeanants, which county was required to have performed by law. • Salvation Army was subject to Chapter 119. Providing essential government services. Something the government normally has to perform and regularly performs.