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.

Legislative Update . . . Records Custodians Can No Longer Comply By Acting Reasonably? Say What?

HB 541 would create new duties and obligations for records custodians, most of which seem innocuous if not completely reasonable. These include things such as requiring each agency to designate a custodian of public records and provide appropriate notice of who the designated custodian is. No problem so far.

It would also prohibit any person who is not a designated custodian of public records from denying the existence of a public records or misleading anyone as to the existence of such a record. Is this really a big problem? Are public employees running around willy nilly denying that records exist? And, more to the point, isn't that already a violation of the public records law . . . assuming that after such a denial comes a refusal to produce the supposedly non-existent record? And why are these burdens being placed on persons other than the designated custodian of records? If a public employee not charged with the duties of the custodian "misleads" somebody as to the existence of a public record -- and notice the complete lack of any intent requirement in the statute -- has some new form of violation, or perhaps even a criminal infraction, been committed? And what exactly is required to "mislead" somebody as to the existence of a record? Here comes a runaway litigation train . . .

As bad as all that is, it's nothing compared to the supremely bad, ridiculously stupid, moronically misguided idea embodied in this seemingly innocuous sentence: "A custodian of public records and his or her designee must respond to requests to inspect or copy records promptly and in good faith." That seems harmless, until you read the House Staff Analysis report here. As the Staff Analysis makes clear, "promptly" as used in this bill means something faster than "a reasonable time," which is what the law currently requires and expects of agencies responding to records requests. Let that sink in . . . it will now no longer be sufficient for agencies to respond to records requests within a reasonable time. In fact, responding within a reasonable time is now patently insufficient and in fact would constitute a violation of the Public Records Law.

A retired partner of mine who spent a career dealing with local government issues used to have a sign on his wall that said "No man's life, liberty or property are safe while the legislature is in session." Seems fitting here . . . only our Florida legislature could actually criminalize acting reasonably.

Current Status: Voted favorably out of the Committee on State Affairs; now pending in the Government Efficiency and Accountability Council.

Legislative Developments . . . Scope of "Shade" Meetings to be Expanded?

HB 825 would expand the scope of the exemption from the Sunshine Law found in Fla. Stat. sec. 286.011(8) for attorney-client sessions, commonly referred to as "shade" meetings. As in, not in the sunshine.

The bill would expressly define "pending litigation" to include "matters which are the subject of a notice given to a governmental entity pursuant to s. 768.28 and for which a lawsuit has not yet been filed, and matters about which the governmental entity is contemplating litigation." This definition would be a departure from current law, which interprets the phrase "pending litigation" to mean . . . well . . . pending litigation. As in, a pending case.

This change recognizes that an agency should be able to discuss threatened litigation with its attorneys in private, and a notice under s. 768.28 is the appropriate trigger for such a provision. When a potential plaintiff sends the required notice of intent to sue a government agency, there's no reason the agency shouldn't immediately be permitted to seek confidential legal advice of its own.

It also recognizes that an agency contemplating litigation should be able to seek private legal counsel in advance of filing suit. Again, it's hard to find anything wrong with that concept.

In fact, the proposed change seems to bring the attorney-client meetings exemption more closely into line with the attorney-client records exemption found in Ch.119, which incorporates the notion of "imminent" civil or administrative proceedings. Doing so addresses the unusual state of the current law, in which a record may be exempt under the attorney-client exemption in Ch. 119, but a meeting to discuss the same matter wouldn't be exempt under Ch. 286 because the case hasn't yet been filed.

Current Status: Referred to the Committee on State Affairs as of March 8, 2007.

Economic Development Agency Records

In AGO 2007-15, the Attorney General discussed the confidentiality provisions relating to records of economic development agencies. The opinion is a straightforward discussion of the exemption found in Fla. Stat. sec. 288.075(2).

In an interesting twist, the Attorney General was asked specifically whether the written request for confidentiality itself was exempt under the statute and whether the statutory confidentiality precluded the agency from citing to the exemption when responding to a public records request. The opinion advises -- correctly, I think -- that the written request for confidentiality may be itself confidential and exempt, if it contains information that the statute is intended to protect, and that the express requirement in Chapter 119 that a records custodian cite to any applicable exemption being relied upon to withhold records from production means that citing to the exemption provision of the statute can't be a violation of the confidentiality requirement.

If My Math is Right . . .

then the Tampa Bay Convention and Visitors Bureau paid $14,000 per week in attorneys fees for its two-week delay in producing records relating to its work on the unsuccessful bid to host the 2008 Republican National Convention. Here's the account as reported in the Tampa Tribune, which brought the suit against the Bureau.

According to the Trib, "The bureau contended it’s not a governmental entity and therefore not subject to the state open records law. The Tribune argued that the bid is a public record because the city delegated to the bureau the governmental function of preparing the bid. The bid spelled out how millions in public money would be spent to host the GOP convention."

Given what I know about the structure and operation of the Bureau, I'm not so sure I would have caved on the legal issue as quickly as what seems to have happened here. And $28,000 is a pretty hefty price to pay for what looks like it amounts to an "Oh never mind" legal strategy.

Legislative Update Coming Soon . . .

There are a number of interesting bills working their way through the current session. I'll have an update on some of them posted soon.

Overlapping Board Membership and the Sunshine Law

In AGO 2007-13, the Attorney General addressed the recurring issue of overlapping board membership and the implications of the Sunshine Law. Here, two Washington County Commissioners served as board members of the West Florida Regional Planning Council. A concern was raised that discuss at a planning council meeting a matter that might later come before them at the County.

After discussing the applicable provisions of the Florida Regional Planning Council Act, including the provisions that expressly require members of the local general purpose governments to serve on such councils, the Attorney General concluded that the two County Commissioners could take part in the regional planning council meetings without violating the Sunshine Law.

If you're interested in this issue, you'll also want to read AGO 98-14.

City Emails Are Public Records . . . Even With a bcc

In AGO 2007-14, the City Attorney for the City of Indian Rocks Beach inquired about emails sent from City Commissioners that contained "undisclosed or blind recipients." The Attorney General properly concluded that such emails, as well as the email addresses of any "blind recipients," were public records under Chapter 119. No big surprise there, and not really sure why anybody would ever think otherwise. Maybe there's more to this story than meets the eye.
In any event, here's a gratuitous plug for my law school classmate Andy Salzman, the City Attorney for the City of Indian Rocks Beach (and some others).

No Media Bias Here . . .

In anticipation of "Sunshine Sunday," now a part of the even larger "Sunshine Week," the media-concocted, self-aggrandizing event, the Tampa Tribune has been printing an invitation for readers to share their stories of "problems or successes" in obtaining government records.

Here's the lead-in to the invitation, which has been running each day on the Op-Ed page: "Florida's commitment to open government is one of the state's greatest strengths, but every year the Legislature tries to weaken public access by passing exemptions to Florida's Sunshine Laws." So you see, no matter how important the public policy behind an exemption may be and no matter how significant the interest protected by an exemption is . . . to the media it's just another attempt by the Legislature "to weaken public access."

Yes, and I suppose that laws that make it illegal to sell firearms to convicted felons are intended "to weaken the Second Amendment rights" of such folks. Guess it's all just a matter of perspective. And it's fine for the media to have their own point of view on such matters . . . but let's not even pretend that the media is objective about these things.

And does anybody want to make a small wager as to how many "successes" get written about during Sunshine Week?

A Little Legislative Sunblock?

Open government advocates and media types reflexively cringe at the suggestion that there is such a thing as too much access to public records, but the Legislature should get credit for recognizing in recent years that there must be an appropriate balance struck between open government on the one hand and other legitimate concerns on the other. Here's the most recent example.

As part of the amendments to the Electronic Mail Communications Act, Chapter 668 of the Florida Statutes, the Legislature in 2006 enacted the following requirement in Fla. Stat. sec. 668.6076:

Any agency, as defined in s. 119.011, or legislative entity that operates a website and uses electronic mail shall post the following statement in a conspicuous location on its website:
Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic
mail to this entity. Instead, contact this office by phone or in writing.

Now, getting lots of unwanted email is certainly inconvenient, wastes time and resources and carries at least some potential for damage to personal property through viruses and other sinister technological weapons, but most folks wouldn't put preventing "spam" in the same category as, say, protecting against unauthorized use of Social Security Numbers or the unwanted distribution or publication of a loved one's autopsy photographs (both of which the Legislature has addressed in recent measures).

So, if open government is such a good thing . . . why do we have to warn people about it?

Email Confusion in Tallahassee

Got a chuckle out of this comedy of errors, in which some of former Governor Bush's archived emails were temporarily "misplaced," then found. All's well that ends well, I suppose.

Boys Will Be Boys . . .

A little short on time this morning, so here's the short version of the mess that's been working its way through the system over on the east coast: State Attorney's 20-something daughter gets arrested and ends up in a restraint device at the local jail. Daddy/State Attorney commences an investigation of the jail and the Sheriff's office. Another local State Attorney convenes a grand jury to investigate the Daddy/State Attorney's investigation of the Sheriff. Grand jury returns no indictment. Daddy/State Attorney/Subject of the grand jury investigation moves to have portions of the presentment expunged or sealed under the provisions of Chapter 905, Fla. Stat. Local media oppose the motion, as do the prosecuting State Attorney and local Sheriffs from surrounding counties. Yikes.

The motion to expunge or seal portions of the presentment remains pending in Flagler County Circuit Court. Here's today's report from the Daytona Beach News-Journal, whose reporter consulted with your humble blogmeister for some insight into the confidentiality of grand jury presentments.

This Seems Obvious . . .

but if you're going to prove a violation of the Public Records Law -- an "unlawful refusal" in statutory parlance -- you have to prove that the record you requested, but were denied, actually exists. So said the Fourth DCA in the case of Hillier vs. City of Plantation, also reported at 935 So.2d 105 (4 DCA 2006).

Hillier, a former City Councilman, filed a petition for writ of mandamus and a complaint for injunctive relief alleging that the City had denied him access to public records. The court noted that Hillier submitted "quite a number" of public records requests and that the City had furnished access to "voluminous documents." Nonetheless, Hillier maintained that not all of the requested records had been made available to him.

The court required Hillier to make a list of the specific records which he claimed he had been denied, which he did. More thoughts on the list a bit further on. Hillier's list had twelve items.

However, Hillier was apparently not able to testify that any of these twelve records actually existed or was in the City's possession. The City's witnesses testified that some of the records did not exist. Moreover, the City's witnesses testified that they had never denied Hillier access to the public records he requested, "if they could understand what he wanted." The court did not elaborate further on this subtle point, but it suggests some confusion or lack of clarity as to the nature of the records that were being requested.

In any event, the court held that faced with conflicting testimony about the existence of the records and whether Hillier was or wasn't ever denied access, the trial court's credibility determination would not be disturbed on appeal.

Now, about that list. Sunshine proponents will usually claim that asking a requestor to submit a public records request in writing is a violation of the Public Records Law. That, of course, is nonsense -- merely asking is not a violation, although insisting on a written request as a condition of granting access likely would be. And most of the time the reason the government agency is asking for a written request is for the same reasons the court required Hillier to make one in this case -- to be sure all parties understand precisely what records are being sought. That seems so patently reasonable that I still struggle to understand why some folks find such a request offensive.

Public Records Seminar in Tampa April 11, 2007

Just a reminder, the Lorman seminar entitled "What You Need to Know About Public Records and Open Meetings" is scheduled for April 11, 2007, in Tampa. Here's all the details, the agenda and the distinguished faculty.

Hope to see many of you there. Bring some tough questions.