Ralph: When she put two potatoes on the
table, one big one and one small one, you
immediately took the big one without
asking me what I wanted.
Norton: What would you have done?
Ralph: I would have taken the small one, of
course.
Norton:You would?
Ralph:Yes, I would.
Norton: So, what are you complaining
about? You got the small one!
1
Florida Clerks of Court and
Comptrollers
Public Position and
Public Records
Winter Conference
Jacksonville, Florida
January 30, 2014
2
Public virtue is a kind of ghost
town into which anyone can move
and declare himself sheriff.
Saul Bellow, American novelist
(b. 1915)
3
Ethics in Florida
The Florida State Constitution was revised in
1968 to require that a code of ethics for public
officers and employees be prescribed by law to
prohibit conflict between public duty and private
interests.
 The “Sunshine Amendment,” adopted in 1976,
provides additional constitutional guarantees
concerning ethics in government. For
enforcement, it requires an independent
commission to investigate complaints concerning
breaches of public trust by public officers and
employees.

4
Code of Ethics

Part III, Chapter 112, F.S., is the “Code of
Ethics for Public Officers and Employees”
◦ Promote the public interest and maintain the
respect of the people for their government
◦ Ensure that public officials conduct themselves
independently and impartially, not using their
offices for private gain other than compensation
provided by law

In 1974, the Legislature created the
Commission on Ethics “to serve as guardian
of the standards of conduct” for state and
local public officials.
5
Prohibitions and Reporting

Florida's ethics laws contain two types of
provisions:
◦ Those prohibiting certain actions or
conduct
◦ Those requiring that certain disclosures be
made to the public
6
A quick analytical tool
Who’s glad?
How glad?
Who’s mad?
How mad?
7
Misuse of Public Position

Public administrators should be held to a
higher standard than others.
s. 112.313(6), F.S.
8
Misuse of Public Position

No public officer ... Shall
◦ corruptly use or attempt to use
◦ his or her official position or any property
or resource which may be within his or
her trust, or perform his or her official
duties,
◦ to secure a special privilege, benefit, or
exemption
◦ for himself, herself, or others…
s. 112.313(6), F.S.
9
Misuse of Public Position

More than just bad behavior

“corruptly”
◦ engaging in conduct inconsistent with the
proper performance of your duties; AND
◦ knowing that the conduct is wrong; AND
◦ intending to gain a personal privilege, benefit,
or exemption.
10
Nineteenth Statewide Grand Jury
From the First Interim Report, December 17, 2010:
We recommend criminalizing misuse of public
position under F.S. 112.313 (6).
Currently, misuse of public position is only a violation
under the code of ethics. Based on testimony, we make
recommendations to revise this section and make it applicable
both civilly under the Code of Ethics and criminally under
Chapter 838. The term “corruptly” should be removed from
misuse of public position as a civil ethical violation under
Chapter 112. . . . The wrongful acts of an official using his or
her public position to secure a benefit should be a civil
violation, whether done “corruptly” or not. . . .
. . . It appears other states have criminalized similar
misuse of public position violations while Florida only makes
this an ethical violation.
11
Inside Information
Current and former officers and employees
 Personal gain or benefit
 Information not available to the public and gained
by reason of your official position


Statutory exemptions are provided for:
◦ Information relating exclusively to governmental
practices
◦ Use of general expertise or skill
s. 112.313(8), F.S.
12
Chieftains must understand that
the spirit of the law is greater than
its letter.
Attila the Hun,
leader of the Hunnic
Empire (434-453)
13
Public Records

Anything, in any format, that is intended
to PERPETUATE, COMMUNICATE, or
FORMALIZE knowledge

Even if it is not in "final form"
14
Public Records

New in 2013
◦ Exemption: Names of spouses and children of active
or former sworn or civilian law enforcement
personnel, state attorneys/statewide prosecutors and
assistants, DCF personnel who investigate criminal
activities, DOH personnel who support the
investigation of child abuse or neglect, and DOR or
local government personnel engaged in revenue
collection CSE
◦ Exemption: Complaints of misconduct against an
agency employee and information obtained in an
investigation while investigation is active
◦ Agency contracts for services must include
specified provisions requiring the “contractor” to
comply with public records laws
15
Public Records - Notes
Public employees’ notes to themselves “which are designed for
their own personal use in remembering certain things do not
fall within the definition of ‘public record.’ But they may also
have to meet the test that they are not intended to
perpetuate, communicate, or formalize knowledge. The use of
portions of the notes to generate another document to be
distributed would indicate that the notes are public records.
 A memorandum prepared by a city commissioner after a
meeting with a former city official, summarizing details of
what was said and containing alleged factual information
about possible criminal activity, was a public record subject
to disclosure. A court determined that the memorandum
was not a draft or a note containing mental impressions that
would later form a part of a government record, but rather
formalized and perpetuated his final knowledge gained at the
meeting.

16
Public Records - E-mail
In evaluating whether a record is made or received in
connection with the official business of an agency, “the
determining factor is the nature of the record, not its
physical location.”
 Personal e-mails between government employees on
government-owned computers which were not made or
received in the course of official business do not constitute
public records.
 Similarly, the mere fact that an e-mail is sent from a private email account using a personal computer is not the
determining factor as to whether it is a public record; it is
whether the e-mail was prepared in connection with official
agency business and intended to perpetuate, communicate or
formalize knowledge of some kind.

17
Judicial records
Relying on separation of powers principles, Florida courts
have held that the judiciary is not an “agency” for purposes
of Ch. 119, F.S. The judiciary, as a coequal branch of
government, is not an “agency” subject to supervision or
control by another coequal branch of government.
 However, the Florida Supreme Court has expressly
recognized that “both civil and criminal proceedings in
Florida are public events” and that it will “adhere to the well
established common law right of access to court proceedings
and records.” The 2nd DCA has stated: “[W]e recognize that
the press has a general right to access of judicial records.”
 Public access to judicial branch records is set out in Fla. R.
Jud. Admin. 2.420.

18
Reasonable conditions

Section 119.07(1)(a), F.S., establishes a right of access to public
records:
Every person who has custody of a public record shall permit the
record to be inspected and copied by any person desiring to do so, at
any reasonable time, under reasonable conditions, and under supervision
by the custodian of the public records.


The term “reasonable conditions” as used in s. 119.07(1)(a), F.S.,
“refers not to conditions which must be fulfilled before review is
permitted but to reasonable regulations that would permit the
custodian of records to protect them from alteration, damage, or
destruction and also to ensure that the person reviewing the
records is not subjected to physical constraints designed to
preclude review.”
“A policy requiring a physical address for mailing copies of
requested public records or the personal appearance of the
requestor would not appear to relate to the custodian’s duty to
protect public records from alteration or destruction, but to
impose additional constraints on the requestor.”
19
Requestors




Further, “the law provides any member of the public access to
public records, whether he or she be the most outstanding civic
citizen or the most heinous criminal.”
“[A]s long as the citizens of this state desire and insist upon ‘open
government’ and liberal public records disclosure, as a cost of that
freedom public officials have to put up with demanding citizens
even when they are obnoxious as long as they violate no laws.”
“Even though a public agency may believe that a person or group
are fanatics, harassers or are extremely annoying, the public
records are available to all of the citizens of the State of Florida.”
The 4th DCA ruled that a defendant’s conduct in making over 40
public records requests concerning a victim constituted a
“legitimate purpose,” and thus cannot violate the stalking law
“because the right to obtain the records is established by statute
and acknowledged in the state constitution”.
20
Requestor’s interest



“The motivation of the person seeking the
records does not impact the person’s right
to see them under the Public Records Act.”
“[G]enerally, a person’s motive in seeking
access to public records is irrelevant.”
“[T]he fact that a person seeking access to
public records wishes to use them in a
commercial enterprise does not alter his or
her rights under Florida’s public records
law.”
21
Physical custody
An agency that received records from a private entity in the
course of official business and did not make copies of the
documents could not “return” them to the entity following
receipt of a public records request. A court ordered the
agency to demand the return of the records from the private
entity so they could be copied for the requestor.
 A court found that both a city and a private entity violated
the Public Records Act when the city avoided taking
possession of negotiation documents reviewed and discussed
by both parties and instead left them with the private entity’s
attorney.
 Records on private entity’s secure website that were viewed
and used by a state university in carrying out its official
duties were public records even though the university did
not take physical possession.

22
Requests in writing





“There is no requirement in the Public Records Act that requests
for records must be in writing.”
A custodian must honor a request for copies of records that is
sufficient to identify the records desired, whether the request is in
writing, over the telephone, or in person, provided that the
required fees are paid.
If a public agency believes that it is necessary to provide written
documentation of a request for public records, the agency may
require that the custodian complete an appropriate form or
document; however, the person requesting the records cannot be
required to provide such documentation as a precondition to the
granting of the request to inspect or copy public records.
But, a request for records of the judicial branch must be in writing.
Rule 2.420(i)(1), Fla. R. Jud. Admin.
A person requesting access to or copies of public records may not
be required to disclose his or her name, address, telephone number
or the like to the custodian, unless the custodian is required by law
to obtain this information prior to releasing the records.
23
Attorney’s fees
119.12 Attorney’s fees.—If a civil
action is filed against an agency to enforce
the provisions of this chapter and if the
court determines that such agency
unlawfully refused to permit a public record
to be inspected or copied, the court shall
assess and award, against the agency
responsible, the reasonable costs of
enforcement including reasonable
attorneys’ fees.
24
How long do you have?
The custodian of public records or his or her designee is
required to acknowledge requests to inspect or copy
records promptly and to respond to such requests in good
faith. Section 119.07(1)(c), F.S. The Public Records Act,
however, does not contain a specific time limit (such as 24
hours or 10 days) for compliance with public records
requests. The Florida Supreme Court has stated that the only
delay in producing records permitted under Ch. 119, F.S., “is
the limited reasonable time allowed the custodian to retrieve
the record and delete those portions of the record the
custodian asserts are exempt.”
 Standing requests. Nothing in the Public Records Act appears
to require that an agency respond to a “standing” request for
production of public records that it may receive in the
future.

25
County records maintained by
the Clerk
Pursuant to s. 125.17, F.S., the clerk of the circuit court
serves as the ex officio clerk to the board of county
commissioners. Records maintained by the clerk which relate
to this function (e.g., county resolutions, budgets, minutes,
etc.) are public records which are subject to the copying fees
set forth in Ch. 119, F.S., and not the service charges set
forth in Ch. 28, F.S.
 Documents such as minutes of public meetings, which are in
the custody of the clerk as ex officio clerk of the board of
county commissioners, are not subject to the $1.00 per page
charge prescribed in Ch. 28, F.S.
 When members of the public use their own photographic
equipment to make their own copies, the clerk is not entitled
to the fees prescribed in s. 28.24, F.S., but is entitled only to
the supervisory service charge in s. 119.07(4)(e)2., F.S.

26
Public Records - Costs
In the normal course of business, most of
the service charges you will impose are
capped at the amounts specified in s.
28.24, F.S.
 The cost of providing electronic copies of
information in a computer database will
be determined based on the provisions of
Ch. 119, F.S.

27
Public Records - Service charge




Section 119.07(4)(d), F.S. states that if the nature or volume of
public records to be inspected or copied requires the extensive
use of information technology resources or extensive clerical or
supervisory assistance, or both, the agency may charge a reasonable
service charge based on the cost actually incurred by the agency
for such extensive use of information technology resources or
personnel.
The statute does not define the term “extensive.” In 1991, the 1st
DCA upheld a hearing officer’s order rejecting an inmate challenge
to a DOC rule that defined “extensive” as requiring more than 15
minutes to locate, review for confidential information, copy and
refile the requested material.
The 2nd DCA approved a county’s similar formula for calculating its
special service charge.
The Attorney General has stated that it may be prudent for
agencies to define “extensive” in a manner that is consistent with
the purpose and intent of the Public Records Act and that does not
constitute an unreasonable infringement upon the public’s statutory
and constitutional right of access to public records.
28
Public Records - Costs




An agency is not ordinarily authorized to charge for the cost to
review records for statutorily exempt material. However, the
special service charge may be imposed for this work if the volume
of records and the number of potential exemptions make review
and redaction of the records a time-consuming task.
A 2nd Circuit opinion stated “it would not be unreasonable in these
types of cases [involving many documents and several different
exemptions] to charge a reasonable special fee for the supervisory
personnel necessary to properly review the materials for possible
application of exemptions.”
The 2nd DCA approved a county’s special service charge which
included an employee’s salary and benefits in calculating the labor
cost , but ruled that the charge must be reasonable and based upon
the actual labor costs incurred by or attributable to the county.
A 9th Circuit opinion concluded that an agency could charge only a
clerical rate for the time spent making copies, even if due to staff
shortages, a more highly paid person did the work.
29
Deposit (advance payment)
Section 119.07(4)(a)1., F.S., states that the custodian of public
records shall furnish a copy or a certified copy of the record
“upon payment of the fee prescribed by law”
 According to one court, a city “was authorized to require
the payment of an advance deposit under the facts of this
case before proceeding with the effort and cost of preparing
the voluminous copies requested by the plaintiff.”
 The Attorney General has opined that a custodian is
authorized to bill the requestor for any shortfall between the
deposit and the actual cost of copying the public records
when the copies have been made and the requesting party
subsequently advises the city that the records are not
needed.
 An agency may refuse to produce additional records if the
fees for a previous request for records have not been paid by
the requestor.

30
Public Records - No charge
You may not add overhead costs such as
utilities or other office expenses to the
charge for public records.
 You may not charge for travel time to
obtain public records stored off-premises.
 You may not assess fees designed to
recoup the original cost of developing or
producing the records.

31
Public Records - Retention

Department of State – Frequently Asked
Questions:
http://dlis.dos.state.fl.us/recordsmgmt/rm_faq.cfm#2

Department Webinar Training:
Email: RMTraining@DOS.MyFlorida.com
Telephone: Tim Few (850) 245-6746
Roger Sockman (850) 245-6745
32
Is “ethical public service” a
contradiction in terms?
. . . ethics of compliance: tell me what is
right, what is wrong, what is legal, what is
not permissible; if there is anything free
from blame, if there is any security from
accusation, tell me about these things so
that I can be judged an ethical public
servant.
Louis C. Gawthrop, Public Service
and Democracy, 1998, p. 153
33