Public Records Act exemptions for undercover police identities not lost merely because they were disclosed to criminal defendant during discovery.  [Added 3/11/10]

    During discovery in a criminal prosecution of nightclub dancers, the state disclosed unredacted copies of undercover surveillance video recordings.  The recordings showed the faces of undercover law enforcement personnel.  Related administrative charges were filed against the entity were the dancers worked ("the Club").  After the criminal and administrative cases were concluded, the Club filed a public records request with the Sheriff seeking unredacted copies of the video.  The Sheriff offered to provide copies that were redacted to obscure the faces of the undercover personnel.  The Club objected and filed suit.

    Both the Club and the Sheriff moved for summary judgment.  Sheriff conceded that the recordings were public records but arguing that several exemptions applied that would permit production only if the recordings were redacted to conceal the identities.  The Club contended that because "unredacted tapes had been released to the defendant dancers during discovery in the criminal proceedings, the exemptions no longer applied."  The trial court "granted summary final judgment in favor of the Sheriff, concluding that the Sheriff was authorized to 'obscure the faces' of all the undercover MBI officers prior to producing the recordings pursuant to the exemptions contained in section 119.071(4)(c) [exempts any "information revealing undercover personnel of any criminal justice agency"] and (4)(d) [exempts ". . . photographs of active or former law enforcement personnel"]."  The Club appealed.

    The Fifth DCA affirmed, finding support in Salcines v. Tampa Television, 454 So.2d 639 (Fla. 2d DCA 1984), and Christy v. Palm Beach County Sheriff’s Office, 698 So.2d 1365 (Fla. 4th DCA 1997).  "[T]he defendant dancers may have been entitled to unredacted versions of the surveillance recordings in preparing their defenses under [Fla.R.Crim.P.] 3.220.  However, we see no reason why such forced disclosure should transform otherwise exempt material into public information when the specific exemptions contained in section 119.071 are considered.  . . .  To conclude otherwise would effectively allow the rules of criminal procedure, which are enacted to govern criminal discovery, to trump legislatively approved exemptions from disclosure under the Public Records Act [F.S. Ch. 119].  Such a result would impinge on the Legislature’s prerogatives."  (Citation and footnote omitted.)  The court concluded:  "We hold that the disclosure to a criminal defendant during discovery of unredacted versions of undercover police surveillance recordings does not destroy, in a public records context, the exemptions contained in section 119.071 for information relating to the identity of undercover law enforcement personnel."  Rameses, Inc. v. Demings, __ So.3d ___ (Fla. 5th DCA, No. 5D09-208, 3/5/2010).

City's eventual production of meeting minutes months after their request did not moot issue of City's violation of public records law.  [Added 1/25/10]

    On the night of a City Commission election (April 11, 2006), the Board of Canvassers met to canvass the election.  A City employee prepared minutes of that meeting.  Two citizens ("Requesters") attended the meeting and "observed what they perceived to be improprieties."  The City set a regular City Commission meeting for May 15, and the "Consent Agenda" for the May 15 meeting included approval of the April 11 meeting minutes.  Requesters made a public records request for a copy of the April 11 meeting minutes.  It was denied.  Other requests for the minutes before the May 15 meeting also were fruitless.

    Nine months after their initial public records request, Requesters brought an action alleging, inter alia, that City's failure to provide the requested minutes before the May 15 meeting violated F.S. sec. 119.07 and Fla.Constit. Art. I, Sec. 24(a).  Requesters "sought judgment against the City in the nature of an order declaring a violation of constitutional and statutory rights, enjoining the City either to grant requests for public records or to provide written reasons for its denials, and granting attorney’s fees and costs."  The trial court "concluded that public records law, chapter 119, Florida Statutes, cannot be used to compel production of a document already provided to the requesting party before filing the lawsuit.  In other words, the court determined the public records claim was moot by the time appellants filed the initial complaint.  The court denied any relief to [Requesters] on this claim."

    The First DCA reversed.  The minutes of the April 11 meeting were a public record, as a "final work product of the Board" rather than "a preliminary draft or note."  The City had a duty to produce the minutes after receiving the public records request, and the City's "unjustified refusal denied any realistic access for the only purpose appellants sought to achieve – review of the Minutes before the Commission meeting."  In the appellate court's view, production of the minutes later did not cure the City's error.  "Accordingly, [Requesters'] receipt of a copy of the Minutes –months after their requests and clearly after their primary need passed – did not moot the issue of the City’s unlawful refusal to fulfill its duty to allow reasonable inspection and copying."

    The court explained the reasoning behind its decision:  "A holding otherwise would allow a covered body to delay meaningful access to public records, only to disclose them belatedly and after the utility of such records had faded.  In that instance, an assertion of mootness because the violation had been 'cured' once the requesting party gained access to the records would disguise a breach of public records law.  The express language in the statutes and Florida Constitution demonstrates the City failed to comply with public records law, and the damage to appellants was not mooted."

    Requesters also alleged two violations of the open meetings law, F.S. 286.011(2).  The appeals court affirmed the trial court's dismissal of one count, but reversed on the second count.  "As may be inferred from the foregoing 'public records' analysis, the City violated both the language and the purpose of section 286.011(2) by denying public access to its Minutes until after approval, or, stated flatly, after the Minutes would have been useful to those seeking inspection."  Because prejudice is presumed in such situations, the appeals court "declare[d] the City's approval of those Minutes null and void ab initio."  (Citing Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla. 1974).  Grapski v. City of Alachua, __ So.3d ___ (Fla. 1st DCA, No. 1D09-509, 1/21/2010).

Criminal defendant's filing of pleading in his closed case not appropriate method of filing public records request.  [Added 10/23/09]

    Defendant filed a document entitled "Request for Inspection of Public Records Pursuant to Government in the Sunshine Law" in the closed file of his criminal case.  The pleading requested inspection of some documents relating to Defendant's 1995 plea in the case.  The trial court entered an order denying Defendant's "Request."  Defendant appealed.

    The Third DCA affirmed.  "As the State points out in its response, where the defendant requests public records, the correct procedure is to submit a written request by letter to the agency or agencies from whom the defendant desires to receive the documents.  Filing a pleading in the defendant’s original 1992 case does not effectively convey the request for records to the appropriate agency, such as the State Attorney or the Clerk of the Circuit Court.  We therefore affirm the order now before us, without prejudice to the defendant to send an appropriate request for public documents to the appropriate agency.  Requests of executive branch agencies are governed by chapter 119, Florida Statutes (2008).  Payment for copying costs may be required."  (Citations omitted.)  Harris v. State, 21 So.3d 864 (Fla. 3d DCA 2009).

Audio recording of criminal defendant's sentencing hearing is not a "court record" and therefore is not a public record.  [Added 5/10/09]

    A newspaper Publisher petitioned for a writ of mandamus to compel the Chief Judge of the Sixth Judicial Circuit to release the audio recording of a criminal defendant's sentencing hearing.  Publisher contended that the recording was a public record.  The Second DCA disagreed and denied the petition.

    Fla.R.Jud.Admin. 2.420 governs access to records of the judicial branch.  These records include "court records," which are defined in the rule to include "contents of the court file, including . . . electronic records, videotapes, or stenographic tapes of court proceedings."  The court explained that the audio recordings were made as part of the circuit's digital electronic court reporting system, which is used in some proceedings rather than a stenographic court reporter.  These recordings capture all of the sounds made in the courtroom, not just the statements made in the course of the official proceedings.  The recordings are used to create a record of the "court proceedings," but they are not the record of the proceedings.  "Accordingly, we conclude that the audio recording created by the digital electronic court reporting systems is not, in and of itself, an 'electronic record' of the proceedings."  Media General Operations, Inc. v. State, 12 So.3d 239 (Fla. 2d DCA 2009).

Government lawyer's memo concerning Disadvantaged Business Enterprise application must be produced in response to public records request  [Added 2/17/09]

    Aviation Authority is a government entity that receives federal transportation funds and, consequently, must grant contract preferences to Disadvantaged Business Enterprises ("DBEs").  An applicant seeking to qualify as a DBE must demonstrate that he or she has a personal net worth of no more than $750,000.  The principal of a business seeking DBE status filed with Aviation Authority a personal net worth statement and supporting documentation.  Subsequently Law Firm filed a public records request asking Aviation Authority to produce documents including legal memoranda of Aviation Authority lawyers regarding the applicant's eligibility or ineligibility for DBE certification.  Aviation Authority admitted that one such document existed but refused to produce it, citing a right of privacy found in the Code of Federal Regulations, which provides in pertinent part:  "'Notwithstanding any provision of Federal or state law, you must not release an individual's personal net worth statement nor any documentation supporting it to any third party without the written consent of the submitter.'  49 C.F.R. § 26.67(a)(2)(iv) (emphasis added)."

    Law Firm filed an action in circuit court to compel production.  The court ordered that the document be produced.  Aviation Authority appealed.

    The Fifth DCA affirmed.  "[Aviation Authority] does not contend that the document [Law Firm] seeks is [the applicant]'s personal net worth statement.  Rather, it contends that it is documentation supporting her net worth.  We disagree with [Aviation Authority]'s position.  Like the trial court, we have examined the document and conclude that the legal memo written by one [Aviation Authority] attorney to another is not 'documentation supporting' [the applicant]'s worth as contemplated by the regulation.  The document is a general analysis of whether [the applicant] is entitled to deduct a loan request made to a bank from the calculation of her net worth when determining whether she is eligible for the DBE program.  Only generally does the memo refer to [the applicant]'s net worth as exceeding the $750,000 cutoff for DBE eligibility.  Consequently, we conclude that the memo is not exempt from production under 49 C.F.R. § 26.67(a)(2)(iv)."  (Footnote omitted.)

    The appellate court observed that a document attached to the memo might constitute "documentation supporting" the application and remanded for a determination.  The court also noted that it did not address the attorney-client privilege question because Aviation Authority did not raise the issue.  Greater Orlando Aviation Authority v. Nejame, Lafay, Jancha, Vara, Barker & Joshi, P.A., 4 So.3d 41 (Fla. 5th DCA 2009).

Internal investigation procedures used by County Sheriff's Office did not violate Sunshine Law  [Added 1/19/09]

    A County Sheriff appeals a judgment that his office violated the Sunshine Law (Fla.Stat. sec. 286.011 (1999)) while conducting internal affairs ("IA") investigation of office deputies.  The Second DCA reversed, concluding that the Sunshine Law was not violated.

    IA officials made findings and recommendations concerning the IA investigations of the deputies.  These findings and recommendations were included in written memoranda that were given to senior Sheriff's Office officials, who in turn gave the memoranda to the Sheriff.  The memoranda were not made public until the IA investigations had been concluded.

    The trial court concluded that "the circulation of the memoranda from the senior officials in the Sheriff's Office to [Sheriff] constituted a 'meeting' under the Sunshine Law, and therefore, the failure of the Sheriff's Office to make the memoranda public during the IA investigations was a violation of the Sunshine Law."  The Second DCA disagreed, holding that "the memoranda did not constitute a meeting of a 'board' or 'commission,' and therefore, the Sheriff's Office did not violate the Sunshine Law."  Although the memoranda were reviewed by Sheriff's Office officials, the final decision was made by the Sheriff alone.  Thus the senior officials did not deliberate with the Sheriff.

    The court additionally noted that "because the memoranda were related to an IA investigation, they were confidential" under Fla.Stat. sec. 112.533(2)(a) (2008) until the investigations were concluded.  McDougall v. Culver, 3 So.2d 391 (Fla. 2d DCA 2009).

Portions of personal flight logs of pilots for police department's aviation unit are public records  [Added 1/19/09]

    The Professional Law Enforcement Association obtained a writ of mandamus ordering the aviation unit of the County Police Department to allow the Association to inspect and copy the personal flight logs of the unit's pilots.  The circuit court concluded that the flight logs were "public records" under Fla.Stat. sec. 119.011(11) (2008).  The County appealed.

    The Third DCA affirmed, clarifying the order.  Original flight logs are maintained by all pilots and are the pilots' personal property.  They document the pilots' lifetime flight experience.  Consequently, the logs maintained by the aviation unit's pilots included personal flight information as well as information on flights made on County business.  In this regard, the court stated:  "We affirm the order insofar as it relates to personal flight log entries for flights which occurred during the time the Police Department pilots have been assigned by the County to the aviation unit, but we clarify that the order does not extend to entries for flights before or after such assignment.  Although the order found that '[t]he personal flight logs are a matter of public record,' the Association’s original request was limited, and properly so, to the dates the aviation unit officers were assigned to the unit."  Miami-Dade County v. Professional Law Enforcement Ass'n,  997 So.2d 1289 (Fla. 3d DCA 2009).

Someone requesting public records from city must pay past-due fees owed before city must comply with new request.  [Added 10/31/08]  --  Lozman v. City of Riviera Beach, 995 So.2d 1027 (Fla. 4th DCA 2008).

Private engineering firm that contracted to perform public functions on behalf of city is considered "agency" subject to public records laws.  [Added 7/10/08]  --  B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So.2d 17 (Fla. 1st DCA 2008).

Government's charge for labor costs in responding to extensive public records requests may include both salary and employee benefit costs.  [Added 1/29/08]  --  Board of County Commissioners of Highlands County v. Colby, 976 So.2d 31 (Fla. 2d DCA 2008).

Memo "to the file" written by county commissioner is public record subject to disclosure under Chapter 119, Florida Statutes.  [Added 12/27/2007]  --  Miami Herald Media Co. v. Sarnoff, 971 So.2d 915 (Fla. 3d DCA 2007).

Public records law does not require copies be furnished free of charge to convicted defendant pursuing postconviction relief.  [Added 7/10/07]  --  Clowers v. State, 960 So.2d 840 (Fla. 3d DCA 2007).

Litigation files of county and its law firm continue to be exempt from public records laws while claimant pursues claims bill in Legislature.  [Added 6/22/07]  --  Wagner v. Orange County, Florida, 960 So.2d 785 (Fla. 5th DCA 2007).

Attorney's fees awarded against state attorney's office that did not respond to public records request until after requestor filed suit to require production.  [Added 4/27/07]  --  Office of the State Attorney for the Thirteenth Judicial Circuit v. Gonzalez, 953 So.2d 759 (Fla. 2d DCA 2007).

Public records laws precluded judge from ordering production of notices of hearing from unemployment appeals.  [Added 3/23/07]  --  Fla. Agency for Workforce Innovation v. Mitchell S. Ritchie, P.A., 951 So.2d 111 (Fla. 1st DCA 2007).

Labor unions must pay statutory copying charge for public records sought from public employer with which union is engaged in collective bargaining.  City of Miami Beach v. Public Employees Relations Comm'n, 937 So.2d 226 (Fla. 3d DCA 2006).

City's data identifying persons and businesses cited for security alarm ordinance violations not available as matter of public record.  Critical Intervention Services, Inc. v. City of Clearwater, 908 So.2d 1195 (Fla. 2d DCA 2005).

Police event security plan not "public record" under Fla.Stat. sec. 119 even after event is over.  Timoney v. City of Miami Civilian Investigative Panel, 917 So.2d 885 (Fla. 3d DCA 2005).

Statements made in city commission meeting that arguably were relevant to former employee's suit against city were not improper ex parte communications under Fla.Stat. sec. 286.0115  The City of Hollywood v. Hakanson, 866 So.2d 106 (Fla. 4^th DCA 2004).

Personal email messages not considered public records by virtue of placement on government-owned computer system.  State v. City of Clearwater, 863 So.2d 149 (Fla. 2003).