OIG Public Records Broward Office of the Inspector General 11/29/2018 Public Records Broward Office of the Inspector General 11/29/2018

State policy on public records “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.” §119.01(1), Fla. Stat. (emphasis added). 11/29/2018

Public Records “Public records” 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. §119.011(12), Fla. Stat. “Agency” any state, county district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, . . . and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. §119.011(2), Fla. Stat. 11/29/2018

Public Records (Cont’d) For purposes of Chapter 119’s definition on public records, the Florida Supreme Court has held that a public record is “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). 11/29/2018

Public Records (Cont’d) OIG Public Records 11/29/2018 Public Records (Cont’d) In Florida, the right of access to public records is a constitutional right recognized in Art. I, Sec 24 of the Florida Constitution. Florida’s Public Records Law, Ch. 119 of the Florida Statutes, provides a right of access to the records of the state and local governments as well as to private entities acting on their behalf. The only exceptions are those established by law or by the Constitution. Exceptions are narrowly construed. 11/29/2018

Is It a Public Record? Format is irrelevant OIG Public Records 11/29/2018 Is It a Public Record? Format is irrelevant Electronic files are the same as physical documents Location is irrelevant Personal computers, private parties not determinative. Content of the record determines whether it is a PUBLIC RECORD. Was the record made or received in connection with official agency business And intended to communicate, perpetuate or formalize knowledge ? 11/29/2018

Is It a Public Record? (Cont’d) OIG Public Records 11/29/2018 Is It a Public Record? (Cont’d) Products for your own use that are NOT INTENDED to perpetuate knowledge, such as your own notes and rough drafts, are not public records. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633, 640 (Fla. 1980); The J. Coalition v. The First Dist. Ct. of App. Jud. Nominating Commn., 823 So. 2d 185, 186 (Fla. 1st DCA 2002). However, if the document at issue is circulated either within or outside the agency, it becomes a public record as it is at that point perpetuating, communicating, or formalizing knowledge. Florida Sugar Cane League, Inc. v. Florida Department of Environmental Regulation, No. 91-4218 (Fla. 2d Cir. Ct. June 5, 1992); AGO 05-23. 11/29/2018

Is It a Public Record? (Cont’d) OIG Public Records 11/29/2018 Is It a Public Record? (Cont’d) Postings made on social media as well as text messages can be public records if the content meets the test. Inf. Op. to Browning, March 17, 2010; AGO 09-19. Emails sent from personal account can be public record if the test is met. Butler v. City of Hallandale Beach, 68 So. 3d 278 (Fla. 4th DCA 2011). 11/29/2018

How Long Must We Keep a Public Record? OIG Public Records 11/29/2018 How Long Must We Keep a Public Record? Retention Schedules All municipalities should have a process for maintaining and retaining public records. The state has a general retention schedule which specifies how long certain public records must be kept and applies to the records of local governments. The state’s schedule is available online at: http://dos.myflorida.com/library-archives/records-management/general-records-schedules/ 11/29/2018

How Long Must We Keep a Public Record? OIG Public Records 11/29/2018 How Long Must We Keep a Public Record? Examples of Retention Periods Attendance Records 3 Years Bid Records Capital Improvement Successful Bid 10 years Unsuccessful Bid 5 years Non-capital 5 years Calendars 1 year Administrative Correspondence and memos 3 years Drafts Until Value Lost Financial Disclosure Statements 10 years Investigative Records 5 years Video/Audio of Official Meetings 2 years Transitory Records Until Value Lost 11/29/2018

Things to Consider In Handling A Public Records Request OIG Public Records 11/29/2018 Things to Consider In Handling A Public Records Request The motives of the requestor are completely irrelevant and will not protect you from a public records law violation. You should avoid asking any requestor for their motives. See Curry v. State, 811 So. 2d 736, 742 (Fla. 4th DCA 2002); Barfield v. School Bd. Of Manatee County, 135 So. 3d 560, 562 (Fla 2d DCA 2014). The fact that another official or agency also has a copy of the record is irrelevant as the statute imposes a duty of disclosure on every person who has custody of the public record. Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996). While an agency cannot charge for inspection, it can charge a reasonable fee based on actual labor costs as instructed by §119.07, Florida Statutes. However, providing access to public records should not be a revenue-generating operation. AGO 85-03. 11/29/2018

Does the Record Require Redaction? Public Records Exemptions OIG Public Records 11/29/2018 Does the Record Require Redaction? Public Records Exemptions IG Investigations exempt while they are active Social Security Numbers Banking account numbers, Credit card numbers Address and contact info of specific individuals Identity of complainant with whistleblower information Certain voter/voter registration information (declinations to vote, location of where voter registered, SS#, DL#, Fl. ID #, signature) 11/29/2018

OIG Public Records 11/29/2018 Do Private Companies Have An Obligation to Abide By Public Records Law? Chapter 119’s definition of “agency” includes private entities “acting on behalf of any public agency.” This ensures that a public agency does not attempt to avoid its obligation to disclose public records by contractually delegating to a private entity that which otherwise would be an agency responsibility. The fact that a private entity enters into a contract with a public agency does not, in and of itself, dictate that the private entity is acting on behalf of the public agency. Instead, courts consider the “totality of factors.” These factors include, but are not limited to: 11/29/2018

OIG Public Records 11/29/2018 Do Private Companies Have An Obligation to Abide By Public Records Law? (Cont’d) the level of public funding; commingling of funds; whether the activity was conducted on publicly owned property; whether the contracted services are an integral part of the public agency’s chosen decision-making process; whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; the extent of the public agency's involvement with, regulation of, or control over the private entity; whether the private entity was created by the public agency; whether the public agency has a substantial financial interest in the private entity; and for who's benefit the private entity is functioning. News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029, 1031 (Fla. 1992). 11/29/2018

The Evolution of Public Records Law and Government Contractors OIG Public Records 11/29/2018 The Evolution of Public Records Law and Government Contractors Prior to 2016, section 119.0701, Florida Statutes required public agency contracts to include certain language advising contractors of their public records obligations should the public request those records. In 2016, section 119.0701 was significantly amended. The statute now requires that requests for records be made directly to the public agency as opposed to the private contractor. Also, while private contractors may still be assessed costs and attorneys’ fees for failing to comply, the moving party is now required to provide the public agency and contractor of the non-compliance eight business days before filing suit. Compliance with the public records request within those eight days releases the contractor from liability for reasonable costs of enforcement. 11/29/2018

Violating Public Records Laws OIG Public Records 11/29/2018 Violating Public Records Laws Section 119.10, Florida Statutes: (1) Any public officer who: (a) Violates any provision of this chapter commits a noncriminal infraction, punishable by fine not exceeding $500. (b) Knowingly violates the provisions of s. 119.07(1) is subject to suspension and removal or impeachment and, in addition, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (2) Any person who willfully and knowingly violates: (a) Any of the provisions of this chapter commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. 11/29/2018

Jenna E. Gargano OIG Public Records 11/29/2018 Assistant Legal Counsel Broward Office of the Inspector General 954-357-7878 jgargano@broward.org www.browardig.org 11/29/2018