Service Charge for Records May Include Salary Plus Benefits

In this case from the Second DCA, the court examined the legislative history of the provisions of Ch. 119 that authorize agencies to charge for "extensive" clerical or supervisory time required to respond to public records requests and decided that such a charge may be based upon the salary plus benefits of the agency employees whose time is required to respond to such requests.


The court also expressly approved the practice of requiring an advance deposit before the agency undertakes the work necessary to respond to a records request.


The opinion tacitly approves of an agency rule or policy that defines "extensive" for these purposes as any request requiring more than 15 minutes of the agency's time to respond to it and also clarifies and confirms that the service charge applies irrespective of whether the request is for copies of records or merely for inspection.

When is a "Notice of Claim" not a Part of a "Claims File"?

Why, when the Attorney General doesn't want to have to say that the notice of claim is exempt from disclosure under the Public Records Law.

In AGO 2007-47, the Attorney General considered a seemingly simple question: Is the notice of claim required under Fla. Sta. §768.28 as a condition precedent to a tort suit against an agency exempt from disclosure under Fla. Stat. §768.16, which exempts "claims files" from the Public Records Law?

Anybody who sues or defends agencies in Florida is familiar with the notice of claim required under the waiver of sovereign immunity statute. Presumably, such a notice of claim upon receipt by an agency prompts the creation of a file related to the claim . . . commonly referred to as a "claims file." The first logical piece of paper that goes into the claims file is, of course, the notice of claim.

For some reason, the Attorney General struggled with the notion that "claims file" must necessarily include the things in the claims file . . . like the notice of claim. You really have to read this one for yourself.

Property Owners Association Exercising Delegated Authority

In AGO 2007-44, the Attorney General explained that a property owners association was subject to operation under the Sunshine Law when it was performing duties delegated to it by a Municipal Services Taxing Unit.

Elected Officials Exchanging Documents . . .

is no problem, according to the Attorney General, as long as they don't comment on or respond to the documents sent to them by other members of the same board. See AGO 2007-35.

1st Carnival of Open Records is Up and Running

For a collection of the best public records and sunshine posts from around the blogosphere, see the 1st Edition of the Carnival of Open Records.

Litigation Exemptions in the Legislative Claims Bill Process

In Wagner v. Orange County, the Fifth DCA considered the statutory exemptions for attorney-client records and risk management claims files in the context of a legislative claims bill. The court's extensive discussion of the nature of the claims bill process is worth the read.

Workers Compensation Cases - Statutory Exemptions

In this recent decision, the First DCA addressed the public records exemptions in Fla. Stat. ss. 443.171(5) and 443.1715(1) and affirmed the trial court's denial of a writ of mandamus requiring the production of notices of workers compensation hearings in the absence of proper redaction of identifying information.

State of Florida Agency for Workforce Innovation v. Mitchell S. Ritchie, P.A., 951 So.2d 111 (Fla. 1 DCA 2007).

Hospital Strategic Plans

In AGO 2007-28, the Attorney General discussed sunshine and public records issues regarding the strategic plans of leased public hospitals. Much recent sunshine and public records law litigation, including some in which I've participated, has involved public hospitals leased to private organizations under the provisions of Fla. Stat. s. 155.40, and the issue is worthy of a more comprehensive post, which I'll endeavor to bang out sometime soon. For now, this AGO has a pretty good discussion of some of the issues that typically arise.

Attorney-Client "Shade" Meetings

In AGO 2007-31, the Attorney General opined that a closed attorney-client meeting permitted under Fla. Stat. s. 286.011(8), sometimes referred to as a "shade" meeting, could properly be called if the agency attorney requests the closed session at any properly noticed meeting of the board, irrespective of whether it is a regular meeting or a special meeting. That's certainly a reasonable interpretation of the statute, which doesn't specify at which type of meeting such a closed session may be requested. It also kind of makes you wonder about what's really behind the request for this opinion from the AG.

Manatee County Goes Live With E-Access to Court Records

Also from the current issue of The Florida Bar News, word that Manatee County Clerk of the Court has gone live with a new pilot program for electronic access to court records. Read the article here.

Classic Commercial Use of the Public Records Law

As reported here in the current issue of The Florida Bar News, internet company Avvo.com has announced that is has obtained the disciplinary records of all Florida attorneys through a public records request and will be adding that information to its lawyer rating site in the near future.

The article presents a fairly balanced discussion of the issue and there are points to be made on both sides of the question. Irrespective of how one may feel about this, it's further evidence that information has become a mere commodity -- and that many of the more "noble" arguments advanced on behalf of open government laws may have little to do with much of the very commercial nature of the modern information age.

Local Health Councils Subject to Sunshine Law?

In AGO 2007-27, the Attorney General opined that local health councils authorized by Fla. Stat. §408.033 are subject to the Sunshine Law.

Journalist Suggests Public Records May Be "Too Public"; In Other News, Pigs Fly

In this interesting article by Jason Fry of the Wall Street Journal Online, which surely amounts to some form of media heresy, Fry actually suggests that some forms of modern technology that provide immediate and virtually unlimited access to "public" records could, well, be a bad thing.

Wow . . . did a journalist just suggest that public records can actually be "too public"?`

Public Tongue Lashing for Jax City Council

As reported here, the Jacksonville City Council received a well-deserved and highly public scolding from State Attorney Harry Shorstein last week. The mess in Jacksonville has yet to be cleaned up and is likely to get worse before it gets any better.

Jacksonville City Council Under Investigation . . .

for flagrant and ongoing violation of the Sunshine Law on a regular basis. For details, see the Times Union's coverage here, here, here, here and here.

A grand jury is currently considering the matter. Early prediction: indictments forthcoming.

Governor Appoints Commission of Foxes to Guard Hen House

Well, officially it's the Governor's Commission on Open Government, but given the makeup of the Commission you could probably predict with reasonable accuracy the substance of the recommendations that are likely to issue from this group.

Here's Executive Order 07-107 creating the Commission. Here's the Commission's membership and meeting schedule.

And some selected -- and predictable -- media reaction can be found here, here and here.

I'll of course be following the activities of the Commission and posting as developments warrant.

Chapter 2007-39, Laws of Florida, Amending Chapter 119

Here's Ch. 2007-39, Laws of Florida, as enacted in the last legislative session. Records custodians, take note.

Kudos to the Legislature - Your Open Records Laws at Work

If you've spent any time here, you know that I won't hesitate to criticize actions or decisions that continue to extend the open government laws beyond the government. But at heart, I'm all in favor of just about all routine GOVERNMENT records being available -- and easily and cheaply available -- to us, the governed.

So here's kudos to the Florida Legislature (don't get the opportunity to say that much) for having lots of important documents pertaining to the ongoing tax reform debate and special session available for easy access on its website. Access the tax reform documents here.

Many Thanks . . .

to Tampa attorney Matt Conigliaro, the grandaddy of legal bloggers around here, for this very kind mention in his outstanding blog, Abstract Appeal.

Back in Blog and Hoping to Catch Up . . .

Well, just settled a case that was set for trial in St. Petersburg next week. Better to get it done on the Friday before a long holiday weekend than on the Tuesday after. I'll be working hard to catch up on other things. Like other cases. And the blog.

Stay tuned . . .

HB 541 Now Clarified - Records Custodians Must Now Both "Acknowledge" and "Respond" to Requests

Here's the engrossed version of CS/HB 541, which appears headed for passage and sure signing by the Governor. The Committee Substitute clarifies an important point that this blogger (and no doubt others) had raised when the original bill was filed. Under the amended version of the bill, records custodians must now "acknowledge" requests "promptly" and then "respond" to requests "in good faith."

The clarification is a positive development, as the earlier version of the bill had seemingly changed the well-established requirement to respond to requests within a reasonable time in a manner that seemed to defy explanation. But I'm not too sure the requirement to "acknowledge" requests promptly is anything but a "feel good" provision. My prediction (and my advice to my public clients) is that records custodians will now issue form letters in response to records requests that say something like this: "Thank you for your public records request which was received by this office on [date]. We will respond to your request within a reasonable time." And that accomplishes what, exactly?

The new requirement also raises another issue. Records proponents will claim that even asking for a requestor's personal information -- like a name and contact information -- is a violation. It isn't (although making such information a condition of producing records might be). But the new legislation seemingly would require a records custodian to ask for such information . . . how else can he or she "acknowledge" the request? So maybe asking for that basic information from a requestor isn't such a big deal, after all.

13th Circuit State Attorney Gets Tagged for Fees in Public Records Dispute

In this recent decision from the Second District, the State Attorney for the Thirteenth Judicial Circuit gets tagged for attorneys fees (including appellate fees for two appeals) based on its failure to respond to a public records request from an inmate. The opinion reveals some systemic problems in the prosecutor's office in terms of its handling of records requests, which no doubt will be addressed by Mark Ober in short order.

Sarasota City Manager Search on Shaky Ground?

Buried at the end of this article from the Sarasota Herald-Tribune, the gist of which is that former Largo City Manager Steve Stanton has applied for the open City Manager position in Sarasota, is a brief discussion of the search process being conducted by the City through a private consultant. The process is typical and, if handled improperly, can easily run afoul of both the Sunshine Law and the Public Records Law.

Here's the text of the end of the article:

Sarasota's search for a new manager is being conducted by Winter Haven-based The Mercer Group, Inc.The firm received about 50 applicants for the city manager position.Sarasota spokeswoman Jan Thornburg said the city could not immediately supply the names of the candidates because the applications were sent to the consultants in Winter Haven.The Mercer Group is still sorting the Sarasota city manager applications out from other applications, Thornburg said. She did not know when they will be available for public review.The Mercer Group is scheduled to screen applications next week before presenting semi-finalists to commissioners.

Hmmm . . . they can't produce the applications because they're still "sorting" them. But they have apparently "sorted" them enough to know how many there are? Sound like an unlawful refusal to produce records?

And the private consultant will be "screening" the applications before presenting "semi-finalists" to the City? ill that screening process take place at a properly noticed public meeting? If not and if the consultant will be winnowing the field, ranking the applicants or eliminating applicants from further consideration based on anything but purely objective criteria, then a potential Sunshine violation is looming.

Let's follow this one and see how it plays out.

Records Custodians Take Note . . .

HB 541 continues to sail through the Florida House of Representatives, voted favorably out of the Government Efficiency and Accountability Council with a committee substitute on April 18, 2007. I haven't been able yet to find details of the committee substitute. Here's the current status of the bill.

In a prior post I expressed my concerns over provisions in the bill that seem clearly intended to subject records custodians to an obligation to do more that what is merely reasonable in responding to public records requests. The new duty to respond "promptly" remains undefined in the bill, but the Staff Analysis report makes clear that whatever "promptly" means, it means something faster than "within a reasonable time."

In recent days, I've heard open government advocates advance different positions on the bill and its requirements. Some have argued that the bill doesn't change the current obligation to produce records within a reasonable time, but merely adds a new requirement to "respond" to records requests sooner. Of course, the bill doesn't say that at all . . . nothing in the bill defines what it means to "respond" to a records request and the bill certainly doesn't expressly indicate that it is intended to create a new two-step procedure to deal with public records requests. Besides, if that's all this bill intends to accomplish, it will accomplish nothing: agancies will just send all requestors a form letter that says "Thank you for your public records requests. We will produce any non-exempt records within a reasonable time." What does that accomplish?

Others have suggested that "promptly" doesn't mean anything different than "within a reasonable time," despite the conclusion to the contrary in the House's own analysis. That's just plain disingenuous.

The bill appears headed on its way to passage and there's little doubt that the Governor will sign it. So we'll apparently be litigating some new issues about the duty of public records custodians in the near future.

I remain concerned about the practicalities of the bill. But I am far more concerned about the larger philosophical question raised by holding often lower level government employees to a higher standard of conduct that simple reasonableness. Think about this . . . a police officer can shoot you dead if he reasonably believes that you intend to shoot him. A city or county can take your private property away from you through eminent domain if it can show a reasonable necessity for the project and the property. A government agency can abridge your First Amendment right to speak freely on government-owned property through he adoption of reasonable time, place and manner restrictions. Anybody see a pattern here?

So, if we only require the government to act reasonably when its actions impair our most fundamental rights -- life, liberty and property -- why in the world should we hold a records custodian to any higher standard? Please . . . somebody explain this to me . . . . my head is about to explode.

And records custodians . . . the Legislature is doing this to you. Speak now, or forever hold your peace.

Never Expected to Use the Word "Transgendered" in a Post . . .

but according to this account in today's St. Petersburg Times, former Largo City Manager and self-proclaimed transgendered person Steve Stanton (now apparently known as Susan Stanton according to this report) is in hot water with the City of Largo for allegedly deleting public records from a City-owned laptop computer. Apparently, a forensic examination of the laptop indicated that files had been deleted, and Stanton was also known to have used portable memory devices or "memory sticks" with his laptop and has refused to turn those devices over to the City. Stanton denies that he deleted any public records.

Sordid details of the story notwithstanding, it does illustrate a couple of good points. First, personal records are not public records, even if they are made or received on a city-owned computer. Conversely, records that are made or received in connection with official agency business are public records, irrespective of who owns the computer on which they are stored. It's pretty much that simple.