Protecting, Leading, Uniting Since 1893

FSA Headquarters • 2617 Mahan Drive • Tallahassee, Florida

Protecting, Leading, Uniting Since 1893

PUBLIC RECORDS OVERVIEW

PART II October 13, 2015

Wayne Evans

General Counsel, FSA Allen, Norton & Blue, P.A.

850-561-3503 revans@anblaw.com

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

Section 119.071(2) (c) 1, F.S. “Active Criminal Investigative Information” is exempt

from disclosure “Criminal investigative information” is defined as

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

To be Considered “active” such information must relate to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future” If the material that otherwise would constitute active

criminal investigative information is turned over to the accused in the criminal discovery process, the exemption no longer applies and the material would need to be disclosed • Post-Newsweek Stations v. DOE, 612 So.2d 549 (Fla. 1991);

Fla. Freedom Newspapers v. McCrary, 520 So.2d 32 (Fla. 1988)

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

“active” as long as it is related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities

Section 119.011(3) (c) 1, F.S. Time, date, location and nature of reported crime, and crime

charged, excluded from exemption. Barfield v. City of Tallahassee, 171 So.3d 239 (Fla. 1st DCA

2015) Email of Facebook post to Tallahassee Police Dept. requesting

alleged domestic violence incident to be investigated subject to public records request because some of the information in email included time, date, locate and nature of reported crime

Section 406.135, F.S., photos, video tapes and audio recordings are confidential and exempt Autopsy report is not

exempt or confidential

Section 406.136, F.S., photos, video tapes and audio recordings or images of killing of a person are exempt and confidential

Section 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

Ch. 15-41, Laws of Fla. 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.

Section 119.0712, 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

S. 119.071(4)(c) 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, s. 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.

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 (s. 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

S.365.171 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, s. 365.171(12), F.S. The sound of a 911 caller’s voice is not

confidential information protected from disclosure to the public

Section 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)

s. 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. Section 119.071(2)(h)2.a., F.S.

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

• Name, photo, address and

report if a felony offense or 3 or more prior misdemeanors

• Charged as an adult

Bent v. State, 46 So.3d 1047 (4th DCA 2010) • Purely personal phone calls of inmates are not public

record. • Only phone calls that involve a crime or security risk fall

within definition of public record • Logs of phone numbers called would be public record

• Subject to any other exemptions from disclosure as applicable

Section 281.301, 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. Central Florida Regional Transportation Authority v. Post-

Newsweek Stations, 157 So. 3d 401 (Fla. 5th DCA 2015) City bus video footage directly relates to and reveals information about a security system and is confidential and exempt pursuant to § 281. 301, F.S. The videos “reveal the capabilities—and as a corollary, the vulnerabilities—of the current system.”

Follow your policy!!!! Acknowledge public records requests What is a reasonable time period? What information can an agency require? Ask for clarification if necessary Where to send public records requests within your

agency? Centralize if possible.

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 Chapter 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

Section 119.07 (1)(c) • 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. 2d 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

Time spent determining whether email or text was personal

Time spent determining if an exemption applies Whose time can you charge for?

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

$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” (“ACD”) ACD – “Cost of the material and supplies used

to duplicate the public record, bud 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: • Section 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

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

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