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Winter 2015
IN THIS ISSUE
d&G Lawyer News
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Q & A - PUBLIC RECORDS
Q. What are public records in Florida, and what must be done with them?
A. Section 119.011(12), Florida Statutes defines “public records” as:
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.
The definition is broad, and generally speaking, if a public record does not fall under one of the exemptions specifically identified in statute, it must be made available for inspection and copying upon the request of any individual.
Q. Why is the public records law important?
A. If you work for or with a state agency, it is important to assure that you are complying with public records law. The failure to comply with its requirement can result in penalties, including fines, criminal sanctions, and award of attorney’s fees.
If you deal with state or local agencies, public records requests can be an invaluable tool to obtain documents and information that would otherwise be unavailable.
Q. What types of documents are considered to fall within the definition of public records?
A. Any materials, in any format, that are made or received by a state agency (including local governments) in connection with official business, and are used to perpetuate, communicate, or formalize knowledge. This includes documents in draft form.
This also includes:
- Information stored on a public agency’s computers, including databases and archives.
- Emails sent and received by agency employees in connection with official business, regardless of whether they are sent to or from a government issued or personal email account.
- Facebook posts as messages and other social media sites.
- Text messages in various formats, as long as they relate to official agency business.
Q. What if the electronic communication is a nonpublic business using a public electronic device?
A. In State v. City of Clearwater, the Florida Supreme Court addressed whether personal emails sent by agency employees using agency-owned computers constitute a public record. The Court held that the mere placement of private messages on a public computer system does not make the messages a public record. Instead, the determination hinges on the content of the message itself. If the communication does not involve the transaction of official business by the agency, it is not considered a public record, and therefore does not need to be provided. The determining factor is the nature of the record, not its medium or location.
Q. What if the electronic communication is on a private email system?
A. On the other side of the coin, agencies cannot evade public records requirements by using private email accounts to conduct public business. In fact, some have argued that individuals using private email accounts to conduct state business become the custodian of those records, meaning the individual has the potential obligation and liability associated with preserving those public records.
Q. How are text messages treated as public records?
A. Generally speaking, text messages are subject to the same requirements as any public record. If they concern public business, they are considered a public record regardless of the format. How long text messages have to be retained, however, raises the issue of whether the text message is considered to be “transitory” in nature. The term refers to the short-term value of the content and purpose of the message, not the medium used to transmit the message. Generally speaking, transitory messages only need to be maintained until they are obsolete, superseded, or the administrative value is lost. Thus text messages or other communications that are of a transitory nature are subject to a different standard for retention. The inquiry focuses on the nature of the communication, not the format in which the communication occurs.
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