1. Public Records Overview and Case Update: September 11, 2015 presentation Patricia Gleason Special Counsel for Open Government

2. Florida’s Public Records Act Florida’s Public Records Act, Ch. 119, F.S., provides a right of access to records of state and local governments as well as to records of private entities acting on their behalf.

3. The term “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.” Emails, texts and other electronic communications are included even if the communications are sent from a private cell phone. Made or received pursuant to law or ordinance or in connection with the transaction of official business. By any agency [including a private entity acting ‘on behalf of ‘ a public agency.] Which are used to perpetuate, communicate, or formalize knowledge.

4. Public Records All such materials are public records and subject to public disclosure in the absence of statutory exemption

5. Providing Public Records In the absence of legislative exemption, public records cannot be withheld at the request of the sender. A requestor is not required to show a “legitimate” or “noncommercial interest” as a condition of access. A request cannot be denied because it is “overbroad.” A requestor cannot be required to put a request in writing or fill out a form in order to obtain public records. A public records requestor can be anonymous and is not required to show an ID in order to obtain public records.

6. Providing Public Records The public records law does not contain a specific time limit for compliance with public records requests. The only delay permitted is the reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt. The public records act requires an agency to produce existing public records provided that the required fees are paid but does not require an agency to answer questions about its records (other than to provide information about costs, etc.). Nor is an agency required to reformat its records in order to respond to a public records request. If an agency maintains a record in more than one medium (e.g. it is available in hard copy and in electronic form) the agency must provide the record in the form requested.

7. Retention All public records (including text messages, emails, and Facebook postings) must be retained in accordance with retention schedules approved by the Department of State. Even exempt records must be retained in accordance with a retention schedule. Evidence that constitutes a public record may be destroyed only in accordance with the retention schedules. Retention schedules: GS 1 (general retention schedule) GS 2 (law enforcement records)

8. Question: A police department receives a public records request for emails obtained from a business as part of the investigation of an embezzlement case that is now closed. There is no statutory exemption from the public records law that applies to the emails. Which statement is correct? A. The department may refuse to release the emails because the public records law does not apply to emails. B. Unless release of the emails would violate accepted police standards and procedures, the department must release them. C. Unless the president of the business asked the police department not to release the emails, the department must release them. D. The department must release the emails.

9. Partial listing of law enforcement public records exemptions Active criminal investigative and intelligence information Confessions Confidential informants Juvenile offender records (misdemeanors, not felony arrests) Security system plans Surveillance techniques and procedures Portions of body camera recordings Victims of sexual offense or child abuse crimes Undercover officer identity Home addresses, telephone numbers, dates of birth and photographs of active and former sworn and civilian law enforcement personnel and their spouses and children Complaints against law enforcement officers while investigation is active Social security numbers Medical records

10. Portions of body camera recordings Home addresses, telephone numbers of certain US military personnel upon written request Identity of certain human trafficking victims Location of safe houses for sexual exploitation victims 2015 Legislation

11. Central Florida Regional Transportation Authority v. Post-Newsweek Stations –surveillance video on city bus Lake Shore Hospital Authority v. Lilker– set time for records inspection; obtaining paper copies of records posted online Bennett v. Clerk of Court- provision of free records to “indigent” inmate Brown v. State--agency claim that records “would have been destroyed” per agency policy Barfield v. City of Tallahassee -- criminal investigative information Recent Cases of Interest

12. Fees Unless another fee is prescribed by law for particular records provided by the agency, the fees set forth in Ch. 119, F.S. apply to public records requests.

13. Penalties for noncompliance Criminal penalties Civil action Attorney’s fees

14. Additional Resources Office of Attorney General Pam Bondi website: http://www.myfloridalegal.com Governor Rick Scott website: http://www.flgov.com First Amendment Foundation website: http://www.floridafaf.org