Recent Public Records Legislation
and Related Judicial Review: The
Impact upon Florida School Districts
34th Annual
Spring Training Program
May 15, 2014
Prepared by Leonard J. Dietzen, III © 2014 Rumberger, Kirk & Caldwell, P.A.
Access to public records
Guaranteed by:
• Article 1, Section24,
Florida Constitution
• Chapter 119, Florida
Statutes (2013)
© 2014 Rumberger, Kirk & Caldwell, P.A.
Article 1, Section 24,
Florida Constitution
“… every person has the right to
inspect or copy any public record
made or received in connection with
the official business of any public
body, officer, employee…”
© 2014 Rumberger, Kirk & Caldwell, P.A.
Defining public records
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Films
Papers
Letters
Maps
Books
Tapes
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Photographs
Sound recordings
Data processing software
Documents
Any material circulated for review,
comment, or information
© 2014 Rumberger, Kirk & Caldwell, P.A.
Email = public record?
Email messages sent in
the course of business
are public records, even if
they are sent from a smart
phone or a personal
laptop. Content of the
message is key.
© 2014 Rumberger, Kirk & Caldwell, P.A.
Email = public record?
• Personal emails may subject
public employees to
disciplinary action.
• Personal email messages do
not fall within the definition of
public records.
State of Florida v. City of Clearwater, 863
So. 2d 149 Fla. 2003
© 2014 Rumberger, Kirk & Caldwell, P.A.
Text messages = public record?
Text messages sent in
the course of business
are public records.
© 2014 Rumberger, Kirk & Caldwell, P.A.
Text messages
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No formal AG opinion or case
law on whether text messages
are public record.
AG’s policy is that text
messages are to be retained as
public records.
March 2010 AG letter to Sec. of
State established retention
schedule for texts which reads
like that for emails.
© 2014 Rumberger, Kirk & Caldwell, P.A.
Facebook
“To the extent that the council
member is publicly posting
comments relating to city
business, this office cannot
conclude that such postings
are not made in connection
with the transaction of official
business. Accordingly, I am of
the opinion that such postings
would be subject to the
provisions of Chapter 119,
Florida Statutes.” AGO 200807
© 2014 Rumberger, Kirk & Caldwell, P.A.
Bottom line
Need formal policy: You
cannot expect any degree of
privacy when using agency
equipment, whether
computers, laptops, cell
phones, Blackberries,
iPhones, telephones or
personal digital assistants
(PDA).
© 2014 Rumberger, Kirk & Caldwell, P.A.
Challenges for staff
• Who determines whether a
text or an email message is
personal or public record?
• How will text and email
messages be stored?
• How will text and email
messages be organized for
response to public records
request?
• Who determines whether
an exemption applies?
© 2014 Rumberger, Kirk & Caldwell, P.A.
Requests in Any Form
Records may be requested
in person, over the phone
or in writing. The person
making the request is not
required to give contact
information or a reason for
his/her request.
© 2014 Rumberger, Kirk & Caldwell, P.A.
Requests Can Be Anonymous
Limited exception – Public school employees’
personnel files
• Section 1012.31(f) Florida Statutes which states
“The custodian of the record shall maintain a
record in the file of those persons reviewing the
file each time it is reviewed.”
© 2014 Rumberger, Kirk & Caldwell, P.A.
Agency Fees or Charges
Inspection is free unless
otherwise provided by law.
Agencies may charge for
copies of records or for
extensive use of records.
The charge is 15 cents per
one-sided copy plus 5 cents
for each two sided copy.
119.07(4)(1)1 Fla. Stat. (2013)
© 2014 Rumberger, Kirk & Caldwell, P.A.
Photographs Allowed
A requestor may photograph
records instead of copying
them. There is no fee for
photographing records though
the custodian may charge for
supervising the requestor while
the records are photographed
if extensive time is needed.
© 2014 Rumberger, Kirk & Caldwell, P.A.
Criminal Penalties
Violation of public records law is
a crime.
• First degree misdemeanor
• Up to one year imprisonment
• Up to $1,000 fine
• Subject to suspension or
removal from office
• Impeachment
© 2014 Rumberger, Kirk & Caldwell, P.A.
Results of failure to produce
• Failure to produce the requested
information in a timely manner may create
liability for your agency and lead to
expensive civil litigation. (Rush v. High
Springs – 8 day delay in producing one
page polygraph test result report)
• Attorneys’ fees and costs in these cases
are awarded to the person denied
reasonable access.
© 2014 Rumberger, Kirk & Caldwell, P.A.
New laws effective 07-31-13
• Some school contractors must comply with public
records laws. 119.0701, Fla. Stat. (2013)
• Schools must protect personally identifiable
information (PII) for applicants for and recipients
of free and reduced school lunches. 595.409, Fla.
Stat. (2013)
• Investigations of complaints of misconduct filed
against agency employees are exempt from
public records laws until investigation is
concluded. 119.071, Fla. Stat. (2013)
© 2014 Rumberger, Kirk & Caldwell, P.A.
119.0701, Fla. Stat. (2013)
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•
In brief, the act requires that each public agency contract
for services must include a provision that requires the
“contractor” to comply with public records laws.
The act defines a “contractor” as an individual,
partnership, corporation, or business entity that enters
into a contract for services with a public agency and is
acting on behalf of the public agency as provided under
F.S. 119.011(2).
© 2014 Rumberger, Kirk & Caldwell, P.A.
119.0701, Fla. Stat. (2013)
To comply with the public records laws, the contractor is
required to:
(1) keep and maintain public records that would be required
by the public agency;
(2) provide the public with access to public records on the
same terms and conditions that the public agency would
provide them, and at a cost allowed by law;
(3) ensure that public records that are exempt or
confidential are not disclosed, except as authorized by
law; and
© 2014 Rumberger, Kirk & Caldwell, P.A.
119.0701, Fla. Stat. (2013)
(4) meet all requirements for retaining public records and
transfer, at no cost, to the public agency all public
records in possession of the contractor upon termination
of the contract and destroy any duplicate public records
that are exempt or confidential and exempt from public
records disclosure requirements.
If a contractor does not comply with a public records
request, the public agency shall enforce the contract
provisions in accordance with the contract. F.S.
119.0701(3).
© 2014 Rumberger, Kirk & Caldwell, P.A.
119.071, Fla. Stat. (2013)
In brief, the act makes a complaint of misconduct filed with
an agency against an agency employee exempt from
disclosure until either:
1. the investigation ceases to be active; or
2. the agency provides written notice to the employee who
is the subject of the complaint, either personally or by
mail, that the agency has either
a. concluded the investigation with a finding not to
proceed with disciplinary action or file charges; or
b. concluded the investigation with a finding to proceed
with disciplinary action or file charges.
© 2014 Rumberger, Kirk & Caldwell, P.A.
Recent Case, Attorney General
Opinions and Proposed Bills
• Morris Publishing Group, LLC v. Florida
Department of Education and the Florida
Education Association, No. 1D13-1376, 2103 WL
5988693 (Fla. 1st DCA, Nov. 12, 2013)
• AGO 2013-17
• AGO 2013-13
• AGO 2013-19
• SB 1648
© 2014 Rumberger, Kirk & Caldwell, P.A.
Morris Publishing v. DOE & FEA
In October 2012, a newspaper owned by Morris Publishing
made a public records request to DOE for the VAM records
(i.e., the “value added” measurement which measures the
amount by which an actual FCAT score is greater than the
predicted score) for Florida teachers during the previous
two years. The request was later amended to seek three
years of VAM records.
- Morris Publishing Group, LLC v. Florida Department of Education and the
Florida Education Association, No. 1D13-1376, 2013 WL 5988693 (Fla. 1st
DCA, Nov. 12, 2013)
© 2014 Rumberger, Kirk & Caldwell, P.A.
Morris Publishing v. DOE & FEA
DOE declined to produce the VAM records, citing Section
1012.31(3)(1)2, Florida Statutes (2012), which exempts
teacher evaluations from public records disclosure until
“the end of the school year immediately following the
school year in which the evaluation was made.”
- Morris Publishing Group, LLC v. Florida Department of Education and the
Florida Education Association, No. 1D13-1376, 2013 WL 5988693 (Fla. 1st
DCA, Nov. 12, 2013)
© 2014 Rumberger, Kirk & Caldwell, P.A.
Morris Publishing v. DOE & FEA
Morris Publishing therefore filed suit
in the circuit court for Leon County
seeking production of the VAM
records. The Florida Education
Association (FEA) intervened on
behalf of DOE.
- Morris Publishing Group, LLC v. Florida
Department of Education and the Florida
Education Association, No. 1D13-1376, 2013 WL
5988693 (Fla. 1st DCA, Nov. 12, 2013)
© 2014 Rumberger, Kirk & Caldwell, P.A.
Morris Publishing v. DOE & FEA
The trial court ultimately denied
Morris Publishing’s requested relief,
holding that under the plain meaning
of Section 1012.31(3)(a)2, a VAM
score is exempt because it is a
teacher evaluation. Morris
Publishing appealed.
- Morris Publishing Group, LLC v. Florida
Department of Education and the Florida
Education Association, No. 1D13-1376, 2013 WL
5988693 (Fla. 1st DCA, Nov. 12, 2013)
© 2014 Rumberger, Kirk & Caldwell, P.A.
Morris Publishing v. DOE & FEA
On appeal, the 1st DCA reversed the trial court and held:
“While section 1012.31(3)(a)2 provides that the evaluation
of a public school teacher is not subject to disclosure
under the public records law, it does not follow that any
information or data used to prepare the evaluation is
likewise exempt from disclosure. To so hold would be to
expand an exclusion to the public records act beyond what
was plainly intended by the Legislature, which a court may
not do.”
- Morris Publishing Group, LLC v. Florida Department of Education and the
Florida Education Association, No. 1D13-1376, 2013 WL 5988693 (Fla. 1st
DCA, Nov. 12, 2013)
© 2014 Rumberger, Kirk & Caldwell, P.A.
AGO 2013-17
• Topic: Government in the Sunshine Law – Public
Meetings – ability to meet in closed meeting when party
to mandatory arbitration. s. 286.011, Fla. Stat.
• Question: Does the exemption provided in section
286.011(8), Florida Statutes, allow a closed attorneyclient session between the city commission and its
attorney to discuss settlement negotiations or strategy
related to expenditures for pending mandatory and
binding arbitration to which the city is presently a party?
© 2014 Rumberger, Kirk & Caldwell, P.A.
AGO 2013-17
• Answer: While the city may conduct a closed attorneyclient session to discuss settlement negotiations or
strategy relating to litigation expenditures when the city is
a party to pending litigation before a court or an
administrative agency, this office cannot say that
mandatory and binding arbitration, absent an identifiable
lawsuit, constitutes litigation for purposes of the
exemption in section 286.011(8), Florida Statutes.
© 2014 Rumberger, Kirk & Caldwell, P.A.
AGO 2013-13
• Topic: Government in the Sunshine Law – Settlement –
“Conclusion of Litigation” – Derivative Claims – whether
exemption for litigation strategy meetings would extend to
“derivative claims’ brought in subsequent action. S. 286.011(8),
Fla. Stat.
• Question: Does the provision of section 286.011(8)(3), Florida
Statues, requiring the disclosure of transcripts of private meetings
between a state entity and its attorney upon the conclusion of
litigation apply when the initial litigation has concluded, but a
close relative of the initial plaintiff seeks information to assist in a
subsequent derivative claim?
© 2014 Rumberger, Kirk & Caldwell, P.A.
AGO 2013-13
• Answer: Section 286.011(8)(3), Florida Statutes, provides that
transcripts of closed meetings to discuss settlement negotiations
or strategy sessions related to litigation expenditures “shall be
made part of the public record upon conclusion of the litigation.”
The statute does not recognize a continuation of the exemption
for “derivative claims” made in separate, subsequent litigation.
© 2014 Rumberger, Kirk & Caldwell, P.A.
AGO 2013-19
• Topic: Drug Testing – Workers’ Compensation – Municipalities –
Public Records – confidentiality of drug-test results from program
established under Ch. 440, Fla. Stat. ss. 440.101-440.102 and
119.07, Fla. Stat.
• Question: Are drug test results obtained under a drug-free
workplace program implemented pursuant to Chapter 440,
Florida Statutes, subject to disclosure under the Public Records
Law?
• Answer: Drug test results obtained pursuant to a drug-testing
program implemented pursuant to Chapter 440, Florida Statutes,
are confidential and exempt from section 119.07(1) and section
24(a), Article I of the Florida Constitution.
© 2014 Rumberger, Kirk & Caldwell, P.A.
SB 1648 - Summary
This bill substantially amends the public records and public
meetings laws. This bill clarifies how the public may
access records and how agencies should respond. This
bill also outlines what an agency may charge as a service
fee and incorporates the cost of litigating attorney fees if an
agency loses an enforcement action. This bill places
additional requirements on organizations that accept
membership fees from the government and on businesses
contracted with the government.
© 2014 Rumberger, Kirk & Caldwell, P.A.
SB 1648 – Bill text
The bill:
• Provides that public records request can be made an any
agency office that is open to receive the public and
provide government services.
• Requires organizations that accept public funds for
membership dues or fees keep records related to those
funds and members. Organizations will also be required
to make records it gives its members or the public
available for inspection and copying.
© 2014 Rumberger, Kirk & Caldwell, P.A.
SB 1648 – Bill text
The bill:
• Provides definitions for “confidential and exempt” and
“exempt” records consistent with court interpretations.
• Provides that public records request do not need to be
made in writing unless there is a specific statutory
requirement present. If a public records request must be
made in writing the records custodian must provide the
statutory citation to the requestor.
© 2014 Rumberger, Kirk & Caldwell, P.A.
SB 1648 – Bill text
The bill:
• Provides that the fee charged for satisfying a voluminous
or complicated public records request is limited to the
cost of the lowest paid personnel capable of performing
the work, and excludes employer-paid benefits.
• Requires a private contractor acting on behalf of a public
agency to inform the agency before denying a public
records request and to notify the agency if the private
contractor is sued for failing to provide public records.
© 2014 Rumberger, Kirk & Caldwell, P.A.
SB 1648 – Bill text
The bill:
• Requires agencies to train their employees regarding
Florida’s public records laws.
• Specifies that the attorney’s fees to which a prevailing
public records plaintiff is entitled includes the fees
incurred in litigating entitlement to and amount of attorney
fees. Courts will be required to award the costs of
enforcement, including attorney’s fees, on each count on
which the plaintiff prevailed.
© 2014 Rumberger, Kirk & Caldwell, P.A.
Disclaimer
The information provided during this presentation is
not intended for legal advice. The presentation, and
any handouts which may accompany it, provide
general information on this topic and answers to
common questions about this issue. Please consult
an attorney to assure that this information, and your
interpretation of it, is appropriate to your particular
situation.
© 2014 Rumberger, Kirk & Caldwell, P.A.
Thank you!
Leonard J. Dietzen, Esquire
Rumberger, Kirk & Caldwell, P.A.
P.O. Box 10507
Tallahassee, FL 32302-2507
(850) 222-6550
[email protected]
© 2014 Rumberger, Kirk & Caldwell, P.A.
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2014 Rumberger, Kirk & Caldwell, PA