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FCCC Summer Conference
June 2016
Gypsy Bailey
General Counsel
Leon County Clerk of the Circuit Court
& Comptroller
Jean Sperbeck
Attorney
Alachua County Clerk of Clerk
Best Practice on Public Records Requests
O Purpose of the BP: Clerks are required to provide public records in two capacities: (1) As a court records custodian, and (2) as an agency subject to the public records laws in chapter 119 (the Sunshine Law). According to the Attorney General, the purpose of the Sunshine Law is to afford citizens the ability to see behind the curtain of government and remain involved in the processes that affect their lives.
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Best Practice on Public Records Requests continued
O Critical for Clerks to provide statewide
consistency as much as possible, since
entities can make statewide requests for
data
O Important for Clerks to insure compliance
not only with state law, but federal law as
well
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Best Practice on Public Records Requests continued
O Review of the BP
O Define “public records”
O List exemptions
O Develop procedures
O Process public records requests
O Provide form “Public Records Request Log”
O Provide a general legal reference guide
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Best Practice on Public Records Requests continued
O What is a “public record”?
O Any document or paper or electronic
media, regardless of physical form,
characteristic, or means of
transmission, including electronic
mail, made or received in connection
with official Clerk business.
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Best Practice on Public Records Requests continued
O Exemptions
O Social security numbers
O Personal financial info (e.g., credit card & bank account numbers)
O Data processing software
O Sealed bids or proposals
O Security system plans, etc.
O Building plans, etc.
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Best Practice on Public Records Requests continued
O Processing Public Records Requests
O How Requested
O Identification
O Clarifying Requests
O Record Creation
O Information About Records
O Central Contact Person
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Best Practice on Public Records Requests continued
O Processing Public Records Requests continued
O Estimates
O Special Service Charges
O Redaction
O Response Time
O Inspections
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Issues to Consider in Implementing the BP
O How to design your workflow to insure that public records requests are handled consistently and expeditiously
O Electronic queue?
O Limited number of staff to handle?
O Court records are different from other Clerk records
O Rule 2.420 and the written request
O $1.00/page under FS 28.24 vs. chapter 119’s $.15/page
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Issues to Consider in Implementing the BP continued
O The interplay between Fla. R. Jud. Admin. 2.420, Chapter 119, and AOSC14-19, 15-18, and 16-14
O Some Clerks read the rule as trumping 119 provisions, e.g., if a customer wants redaction based on FS 119.071, he/she must file a motion in a court case, but may simply request by form in OR
O Some Clerks implement the provisions of the rule and 119
O The AOs noted do not clarify this position and refer to both.
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Issues to Consider in Implementing the BP continued
O AOSC14-19, 15-18, and 16-14 TANGENT ALERT!!
O Issued 04/27/16
O Approved 48 counties’ electronic record systems
O Requires Clerks to incorporate all amendments to the matrix and electronic standards
O Provided for a new amendment: PD role on the matrix
O PD is considered the attorney of record at a defendant’s first appearance as permitted by Juvenile Rule of Procedure 8.010 and Rule of Criminal Procedure 3.130.
O All records except those that are expunged or sealed, automatically confidential under rule 2.420(d)(1), or made confidential by court order.
O Access to records as permitted by FS 27.51, 27.52, 27.58, and 27.59
O Access to juvenile delinquency records as permitted by FS 985.045(2) and Rule of Juvenile Procedure 8.165.
O Access to mental health records as permitted by FS 916.107(8)
O Access to mental health records as permitted by FS 394.4615, 394.4655, & 394.467
O Access to records of individuals detained under the Involuntary Civil Commitment of Sexually Violent Predators Act (formerly known as the “Jimmy Ryce Act”) as permitted by FS 394.916 and 394.917
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Issues to Consider in Implementing the BP continued
O Special records issues
O Indigent/incarcerated customers – what is
free, what is not –FS 27.52, 57.081, 57.082,
and 940.04
O Requests for a large number of records
O If copies are requested, provide electronically,
and for what fee?
O If viewing is requested, consider reasonable
“supervision fee”
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Issues to Consider in Implementing the BP continued
O Special records issues continued
O FS 28.345 (free copies) – judges, SAO, GAL, public guardians, attorneys ad litem, court appointed private counsel, conflict counsel, PDO, and state agencies
O FS 744.637 (free copy) – copy required by US Dept of Veterans Affairs used to determine eligibility for benefits
O FS 940.04 (free copy) – if applicant for executive clemency is required to supply a certified copy of applicant’s information, indictment, judgment, or sentence
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Issues to Consider in Implementing the BP continued
O Special records issues continued
O FOIA Freedom of Information Act
O The Freedom of Information Act requires an “agency”
to make certain information public. 5 U.S.C. §552.
O Agency is defined as an “authority of the
Government of the United States.” 5 U.S.C. §551.
O A clerk is not an agency or authority of the
Government of the United States.
O Treat as a public records request.
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Case LawO Board of Trustees, Jacksonville Police & Fire Pension
Fund v. Lee, SC13-1315 (Fla. 04/14/2016)O 1st DCA in this case: Attorney’s fees should have been
awarded after the trial court found a violation of the Public Records Act, even though the violation was not willful, knowing or done with malicious intent.
O 2nd DCA has taken the same approach – Office of State Att’y v. Gonzalez, 953 So. 2d 759 (Fla. 2nd DCA 2007). However, 3rd, 4th, and 5th DCAs have construed the attorney fee provision of the Public Records Act to require a showing that the agency acted unreasonably or in bad faith before awarding attorney fees. Althouse v. Palm Beach Cty. Sheriff's Office, 92 So.3d 899, 902 (Fla. 4th DCA 2012); Greater Orlando Aviation Auth. v. Nejame, Lafay, Jancha, Vara, Barker, 4 So.3d 41, 43 (Fla. 5th DCA 2009); Knight Ridder, Inc. v. Dade Aviation Consultants, 808 So.2d 1268, 1269 (Fla. 3d DCA 2002).
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Case Law continued
O The Florida Supreme Court resolved this conflict between the five DCAs by siding with the 1st and the 2nd: A “prevailing party is entitled to statutory attorney's fees under the Public Records Act when the trial court finds that the public agency violated a provision of the Public Records Act in failing to permit a public record to be inspected or copied. There is no additional requirement . . . that the trial court find that the public agency did not act in good faith, acted in bad faith, or acted unreasonably.”
O Facts: Lee requested records and the pension fund imposed conditions he had to meet before inspecting and copying. Lee refused and sought declaratory relief. The trial court found some actions by the pension fund to be proper, but 2 – (hourly photocopying and supervisor fees) – were in violation of FS 119.07 (2009).
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Case Law continued
O REMEMBER, FS 119.07 provides:O (3)(d) & (4)(e): Where provision of another room or place for
photographing is required, the expense of providing the same shall be paid by the person desiring to photograph the public record.
O (4)(d): If the nature or volume of public records requested to be inspected or copied . . . is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both.
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Case Law continued
O Schweickert v. Citrus County Florida Board, etc., et al., 5D15-3007 (Fla. 5th DCA June 17, 2016)O Plaintiff/publisher of an Internet newspaper, requested
records from a private attorney hired to represent the Board and investigate charges made in a County Administrator’s letter about a county commissioner. Counsel responded that her notes were exempt and she would provide them after the investigation was complete.
O 5th DCA said exemption didn’t apply and thus there was an unlawful delay in providing the requested records. While the trial court had denied the complaint to enforce public records law as moot because the board provided the records after the lawsuit was filed, the 5th DCA said the request for attorney’s fees was not moot: “We reverse the decision of the trial court and remand the case for determination and award of reasonable costs and attorney’s fees”.
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Case Law continued
O Citizens Awareness Foundation v. Wantman Group, Inc., Case No. 4D15-1760 (Fla. 4th DCA 05/25/2016)O Contractor and SFWMD entered into a contract that provided that Contractor
would allow public access to all project documents under 119 and that Contractor would direct all public records requests to SWFMD.
O Email public records request sent to the consultant, with “DidTheyRedIt.com” at the end of the email. Subject line was “This is a public records request” and it was from “An Onoma”.
O Citizens filed a lawsuit when this email was not answered. Contractor responded that it had never received a request but had provided the records, and moved for summary judgment stating it was not subject to public records law and even if it was, it did not wrongfully refuse to produce the requested document.
O The trial court granted summary judgment, assuming the contractor was subject to public records law but held there was no unlawful refusal, relying on Consumer Rights, LLC v. Union Cty., 159 So. 3d 882 (Fla. 1st DCA 2015).
O The 4th DCA agreed with the trial court, stating that the Contractor had “acted in good faith and that its delay in responding was attributable to the suspicious nature of the email. . . . [and] believed the Request to be illegitimate and spam and for that reason did not respond to it.”
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Case Law continued
O Consumer Rights, LLC v. Union Cty., 159 So. 3d 882 (Fla. 1st DCA 2015) O Public records request from “[email protected]” to the county at
“[email protected],” not associated with a particular county employee, made by an unidentified “Florida company” and submitted by an unnamed agent of the company. 4 months after no response, lawsuit filed.
O 1st DCA said delay of over 4 months was considered reasonable under the circumstances.
O “The email from the sender could have contained a virus. It might have been a computer-generated message sent out from a computer-created email account. The sender might have intended to initiate a series of electronic communications that would have caused the disclosure of exempt materials or created difficulties for the county's information technology officers. . . . But the delay in this case could have been avoided altogether if the plaintiff had just given the county a phone number or some other contact information that could be associated with a person.”
O “We have no reason to believe that the county would not have provided the records much sooner had it been able to verify the authenticity of the plaintiff's email and thus we have no reason to question [the] trial court's conclusion that the county acted in good faith. . . . the delay in responding to the email was not tantamount to a refusal and . . . the trial court correctly denied the plaintiff's request for attorney fees.”
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Case Law continued
O Settlement Agreement between the US Dep’t of
Justice and the Orange County Clerk’s Office,
204-17M-440, 2014
O Clerks must have procedures for individuals with
disabilities to request court documents in an
accessible format.
O Clerks must provide ADA-compliant documents
when posted on the Clerks’ electronic viewers or
in the court record, in a reasonable time period.
O Clerks’ websites must comply with ADA standards.
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Case Law continued
O Orange County v Hewlings, 152 So. 3d 812 (5th DCA 2014)
O “The public records law embodies important public policy. It is designed to provide citizens with a simple and expeditious method of accessing public records.”
O Requiring requestor to come to office, search records was labeled as “bureaucratic hurdles.”
O Attorney’s fees granted for unreasonable delay (2 weeks) and county sanctioned for appealing trial court’s attorney fee order.
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Clerk ExampleO THIS IS A PUBLIC RECORDS REQUEST
O ATTENTION: Custodian of Public Records for Leon County Clerk of Court
O IF YOU ARE NOT THE CUSTODIAN OF THE REQUESTED PUBLIC RECORDS, PLEASE FORWARD THIS EMAIL TO THE
CUSTODIAN OF PUBLIC RECORDS FOR: Leon County Clerk of Court.
O Pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119.07 of the Florida Statutes, I wish to make
a public records request of your agency for the following records:
O Personnel file for XXXXXXXXXXXX. Responsive records may include, but are necessarily limited to, job applications,
resumes, disciplinary records, etc.
O If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure
please cite the specific exemption as required by §119.07(1)(e) of the Florida Statutes and state in writing and with
particularity the basis for your conclusions as required by §119.07(1)(f) of the Florida Statutes.
O Please take note of §119.07(c) Florida Statues and your affirmative obligation to (1) promptly acknowledge receipt of
this public records request and (2) make a good faith effort which “includes making reasonable efforts to determine
from other officers or employees within the agency whether such a record exists and, if so, the location at which the
record can be accessed.” I am, therefore, requesting that you notify every individual in possession of records that may
be responsive to this public records request to preserve all such records on an immediate basis.
O If the public records being sought are maintained by your agency in an electronic format please produce the records in
the original electronic format in which they were created or received. See §119.01(2)(f), Florida Statutes.
O If you anticipate the production of these public records will require the payment of any fees please notify me in
advance of their production with a written estimate of the total cost. Please be sure to itemize any estimates so as to
indicate the total number of pages and/or records, as well as to distinguish the cost of labor and materials.
O All responses to this public records request should be made in writing to the following email address:
O Thank you,
O Joel Edward Chandler
O 1355 Forest Park Street
O Lakeland, Florida 33803
O www.FOGWatch.org
O If you no longer wish to receive these emails, simply click on the following link: Unsubscribe 23
Clerk Example continued
O Many Clerks’ Offices received this email - operational employees, not directed to HR or managers. Staff alerted office point person who coordinated response to the requestor.
O Important to respond as quickly as possible to provide records you have at the time of the request.
O Provide an estimate of expense before producing records.
O You do not have to produce in a format you do not maintain.
O http://www.tampabay.com/news/humaninterest/lawsuits-from-public-records-group-are-a-nuisance-florida-cities-say/2236362
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2016 Legislation
O HB 2731O FS 119.0701 is revised to include "contract requirements",
requiring public agencies to have the following language in contracts, in 14 point bold faced font: IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF THE PUBLIC RECORDS AT (phone #, email address & mailing address).
O FS 119.0701 is revised to create (3): “A request to inspect or copy public records relating to a public agency's contract for services must be made directly to the public agency. If the public agency does not possess the requested records, the public agency shall immediately notify the contractor of the request and the contractor must provide the records to the public agency or allow the records to be inspected or copied within a reasonable time.”
O FS 119.0701 is revised to create (4) to provide for a civil action against a contractor to compel production of public records.
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2016 Legislation continued
O HB 293O Revises FS 985.04 to says that name, photo, address and
crime/arrest report of a child are confidential if child taken into custody by law enforcement for felony; charged w/ a felony; found to have committed a felony; and transferred to adult court.
O Revises FS 943.053 to say that criminal history info regarding a juvenile compiled by the Criminal Justice Info Program from intrastate sources is confidential, same stuff as in 1 above. States that juvenile criminal history info is available only to: criminal justice agency; person to whom record relates and his/her attorney, parent, guardian, legal custodian of person to whom record relates, provided the person is not 18, married, or emancipated; agency under FS 934.0585(4) or 943.059(4).
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2016 Legislation continued
O SB 592O Revises FS 119.071(4) to add (d)(2)(IV) re home
addresses, telephone numbers, DOB and photographs of current or former non-sworn investigative personnel of DFS whose duties include the investigation of fraud, theft, workers’ compensation coverage requirements and compliance, other related criminal activities, or state regulatory requirement violations; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel.
O Revises FS 119.071(4) to add "o", same as the above except for EMT or paramedics certified under ch. 401.
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2016 Legislation continued
O SB 752O Revises FS 119.071(4) to add "o" that exempts the home
addresses, telephone numbers, DOB, and photographs of current or former employees in an agency's office of inspector general or internal audit department whose duties include auditing or investigating waste, fraud, abuse, theft, exploitation, or other activities that could lead to criminal prosecution or administrative discipline; the names, home addresses, telephone numbers, dates of birth, and places of employment of spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel, if the personnel have made reasonable efforts to protect such information from being accessible through other means available to the public.
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2016 Legislation continued
The last 2 bills
required a
revision to the BP
form, adding 25
and 26 to the list
of exemptions.
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Conclusion
O Best Practice on Public Records Requests is
located at www.flclerks.com, under Best
Practices.
O Consistent implementation throughout the
state, through written procedures and staff
training, will assist all Clerks with
compliance with Florida’s Public Records
Act.
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