public records act developments 2004 legislative changes to ch. 119 september 22, 2004 richard l....

Public Records Act Developments2004 Legislative Changes to Ch. 119

September 22, 2004Richard L. BrownOperations Manager - Governance

State Purchasing

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Public Records Act Developments Agenda

Welcome / Session Overview

A Brief Overview of Ch. 119, F.S.

Recent Developments

Questions / Discussion

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Recent Developments


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• Basic Requirements of Public Records Act

• Possible Procurement Exceptions

• Penalties for Non-Compliance

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A Brief Overview of Ch. 119, F.S. Basic Requirements of Public Records Act

• Chapter 119 requires that an agency in custody of a public record must permit the record to be inspected by any person, in a reasonable place, at a reasonable time, and under supervision. [§119.07(1), F..S.]

• If an exemption applies to a particular record, the agency must redact or delete only that portion of the request. The agency must also state the basis for such exemption and explain its reasoning with particularity. [§119.07(1)(c)-(d), F.S.]

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A Brief Overview of Ch. 119, F.S. Possible Procurement Exceptions

• Sealed bids or proposals are exempt "until such time as the agency provides notice of a decision or intended decision […] or within 10 days after bid or proposal opening, whichever is earlier." [§119.07(6)(m), F.S.]

• Statute does not specifically mention responses to an Invitation to Negotiate.

• Agency may find itself in an awkward position when evaluation takes longer than 10 days.

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A Brief Overview of Ch. 119, F.S. Possible Procurement Exceptions, cont.

• Trade Secrets may be exempt from disclosure under Public Records Act. See §815.045, F.S. and recent SePRO decision.

• SePRO Corp. v. Florida Dep't of Env't Prot., 893 So. 2d 781, 784 (Fla. 1st DCA 2003), review pending, No. SC03-844 (Fla., filed May 1, 2003).

• Case suggests that at a minimum, Contractors must put agency on notice of potential trade secret information, or protection is lost.

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A Brief Overview of Ch. 119, F.S. Penalties for Non-Compliance

• Penalties for Non-Compliance– Criminal penalties (a first-degree misdemeanor)

may be levied against any person who knowingly and willfully violates the Act. [§119.10(2)(a), F.S.]

– Public officers who knowingly violate the Act may be removed from office or impeached, and civil penalties against a public officer include a fine of up to $500. [§119.10(1), F.S.]

– If a requestor brings a successful civil suit against the agency for failure to disclose public records, the successful litigant is entitled to his "reasonable costs of enforcement, including reasonable attorney's fees." [§119.12, F.S.]

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Recent Developments


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Recent Developments

• Reorganization (focus on Electronic Access)• Building Plans• Children in Government-sponsored

Recreation Programs• Motor Vehicle Information• Law Enforcement Personnel• Gov’t Employee Social Security Numbers

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Recent Developments Reorganization

• Reorganization inside sections - The main list of public records exemptions has long been subparagraph (3) of §119.07, F.S. That list is now subparagraph (6). Note to editors: Check your cites!

• Reorganization between sections - Portions of statutes are reorganized into different statutes. (ex. §119.084, F.S.; “electronic access” paragraphs moved to §119.01, F.S.)

• Single-subject rule applied more consistently (ex. the “new” §119.084, F.S. better-focused on its subject.)

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Public Records Act DevelopmentReorganization, cont.

• The reorganization of materials places a new emphasis on electronic storage and recordkeeping.

• Agencies must consider the impact of the Public Records Act when building or contracting for an electronic database or other system. This requirement has been moved to §119.01(2), F.S. – the first statute in the Act.

• Agencies are encouraged to use electronic access as a means of providing public access, but they must balance such ease-of-access against the risk of releasing confidential information.

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Recent DevelopmentsBuilding Plans

• New exemption protects building plans and similar items that depict the internal layout or structural elements of hotels, amusement parks, etc., which are held by a government agency. Drafts, preliminary, and final formats are included within the exemption, and the exemption applies to any documents held either permanently or temporarily by the agency.

• The statute also provides for exceptions to this general exemption: the exempt information may be disclosed to another governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities; to the owner or owners of the stricture in question; or upon a showing of good cause before a court of competent jurisdiction.

• See §119.07(6)(ff), F.S.

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Recent Developments Building Plans, cont.

• The exemption in §119.07(6)(ee),F.S. contains the following exception which is not included in exemption (ff): "Information made exempt by this paragraph may be disclosed […] to a licensed architect, engineer, or contractor who is performing work on or related to the building…"

• This is logical, given the presumed intent in protecting building plans, but remembering the difference in ownership between “(ee) materials” and “(ff) materials.”

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Recent DevelopmentsChildren in Government-sponsored Recreation Programs

• HB635 passed by the 2004 Legislature; codified at §119.07(6)(hh), F.S.

• Protects names, phone numbers, SSNs, and other personal identifying information of children participating in government-sponsored recreation programs, camps, etc.

• Court order necessary to release such info.

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Recent Developments Motor Vehicle Information

• Section 119.07(6)(aa), F.S. already exempted release of motor vehicle records for some purposes but not others. Records are available “in anticipation of litigation,” and “in connection with any filed proceeding,” but the Legislature has expressly ordered that “the information may not be used for mass commercial solicitation of clients for litigation against motor vehicle dealers.” [§119.07(6)(aa)(5)(b)-(c), F.S.]

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Recent DevelopmentsLaw Enforcement Personnel

• Exemption expanded: – Section 119.07(6)(i), F.S. protects personal

identifying information of many government employees (law enforcement, state attorneys, etc.)

– New additions to this list include U.S. Attorneys and their families and Federal judges and their families. [§119.07(6)(i)(3)-(4), F.S.]

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Recent DevelopmentsGovernment Employee SSNs

• Exemption clarified:– Section 119.07(6)(x) protects SSNs from release by

the government employer.– Additional subsection provides that “[a]n agency that is

the custodian of a social security number… and that is not the employing agency shall maintain the exempt status of the… number only if the employee or the employing agency submits a written request for confidentiality to the custodial agency.” (emphasis added) However, commercial entities are only entitled to the last 4 digits instead of entire number. [§119.07(6)(x)(2), F.S.]

– See the public necessity statement in Section 4 of Ch. 2004-95, Laws of Fla., for more information.

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Recent Developments


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Public Records Act DevelopmentsQuestions/Discussion

From Section 119.01, Florida Statutes (2004) – effective October 1, 2004 (portions of this material were formerly located in 119.084, F.S.):(2)(a) Automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law. […](c) An agency may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of the agency, including public records that are on-line or stored in an electronic recordkeeping system used by the agency. (d) Subject to the restrictions of copyright and trade secret laws and public records exemptions, agency use of proprietary software must not diminish the right of the public to inspect and copy a public record. (e) Providing access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible. If an agency provides access to public records by remote electronic means, such access should be provided in the most cost-effective and efficient manner available to the agency providing the information.

Has your agency confronted these issues? Do you have any best practices or lessons learned?

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From Section 119.07, Florida Statutes (2004) –effective October 1, 2004:(1)(b) A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying. […](d) If requested by the person seeking to inspect or copy the record, the custodian of public records shall state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential. (2)(a) As an additional means of inspecting or copying public records, a custodian of public records may provide access to public records by remote electronic means, provided exempt or confidential information is not disclosed. (b) The custodian of public records shall provide safeguards to protect the contents of public records from unauthorized remote electronic access or alteration and to prevent the disclosure or modification of those portions of public records which are exempt or confidential from subsection (1) or s. 24, Art. I of the State Constitution. (c) Unless otherwise required by law, the custodian of public records may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect costs of providing such access. Fees for remote electronic access provided to the general public shall be in accordance with the provisions of this section.

Has your agency relied on electronic access to public records? How have you managed the risk of releasing confidential information?

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• Exempt Building Plans – have you confronted this set of issues?

• Chapter 286 requires public meetings, but confidential records may need to be discussed. How do handle such situations?

• What other issues are you discovering, relating to public records requests? Trade secrets? Other confidential information?

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Public Records Act DevelopmentContact Information

http://dms.myflorida.com/purchasing

Rich BrownOperations Manager, [email protected] 488-3049

Russ RothmanChief Purchasing Operations Officer [email protected]

Fred SpringerDirector, State [email protected] 487-1898

public records act developments 2004 legislative changes to ch. 119 september 22, 2004 richard l....

Documents

brief overview of

noncompliance slide

public officers

noncompliance penalties

recent sepro decision

civil penalties

reasonable time

reasonable place