PUBLIC RECORDS FOR LAW ENFORCEMENT AGENCIES

1. PUBLIC RECORDSFOR LAW ENFORCEMENT AGENCIES Howard Maltz Deputy General Counsel City of Jacksonville (904) 630-1854 hmaltz@coj.net FLEPIOA Conference June 30, 2011

2. Today’s Topics Basic concepts of Florida’s public records law; New decisions in the public records world; Address some hot topics for law enforcement agencies in the public records world

3. Concepts We’ll Cover • What is “public record” • Some important exemptions • Procedures for disclosure • What happens if you mess up

4. Why do we need to know what is a Public Record • Important distinction: items that are not public record vs. items that are public record but are exempt from disclosure • If it isn’t public record- you don’t need to disclose it • Don’t need to cite to an exemption if responding • If it is public record- you need to disclose it unless it is confidential or exempt from disclosure

5. What is a “Public Record?” • “Public record is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” Shevin v. Byron, Harless, et. al. 379 So.2d 633 (Fl. 1980) • “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material regardless of 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” F.S. §119.011(12)

6. Fundamental Concepts of Whether the Item is Public Record • If it relates to the official business of the agency, it’s public record • Personal papers or documents are generally not public record. • It may be a public record, but it may also be exempt from disclosure and/or confidential

7. Some Examples of Public Record • Police Reports • Electronic data records • Your bar tab last night that you plan on submitting to your agency for reimbursement • The title of the movie you rented last night on the hotel’s TV that you plan on submitting for reimbursement

8. Erroneous Things We Often Hear Regarding Public Records • “I don’t want to email it to you, I’ll hand it to you so it doesn’t become public record.” • “It’s Just a Draft” • “It’s just my notes so it’s not public record”

9. Scenario- Personal Notes • Media requests police chief’s personal notes regarding his meeting with local prosecutor regarding a high profile case. • Assume they are his personal notes to recall events in the future- is it public record? • Assume he showed them to a colleague to let them know about the conversation- is it public record?

10. Rules on Personal Notes • AGO 2010-55 (12/29/10) • Personal notes taken in course of conducting official business by a public employee are not public record, if not transcribed or shown to others and not intended to perpetuate, communicate or formalize knowledge • Notes utilized by writer to assist in remembering matters discussed, not shown to others and not intended to perpetuate, communicate or formalize knowledge are not public records • Notes used to memorialize events related to official business were public record. Miami Herald v. Sarnoff, 971 So.2d 915 (3rd DCA 2007) AG Informal Opinion 6/2/09 • If circulated, the notes will be public record

11. Scenario- Drafts • Police chief creates a preliminary draft of a reorganization of his agency and shows it to the City Manager for a preliminary discussion • Is the draft public record? • Rules on Drafts- if it was circulated, it is public record even if not the final decision of the agency

12. Scenario- Emails • Sheriff gets a public records request from the media for all of his emails between a certain time period. • Are the emails public record? • What about his personal emails? • What if done on govt. computer? • What about business emails on home computer? • What about Text messages?

13. Rules on Email • Personal email, even on a government computer is not a public record. • State of Fla. v. City of Clearwater, 863 So.2d 149 (Fla. 2003) • “Personal email” is email that is “not made or received pursuant to law or ordinance or in connection with the transaction of official business.” • Official business emails are public record • Regardless of the computer it was created or the server that it is on

14. Text Messaging • Should treat text messages like emails for public records purposes; • AG Informal Opinion (3/17/10) • AG letter to Secretary of State asking for retention schedules to be updated to provide for text messages • “The same rules that apply to email should be considered for Blackberry PIN and Text” • General Records Retention Schedule GS1-SL §V revised to include text messaging, et. al. • “Printouts of electronic communications (e-mail, instant messaging, text messaging, multimedia messaging, chat messaging, social networking, or any other current or future electronic messaging technology or device) are acceptable in place of the electronic files, provided that the printed version contains all date/time stamps and routing information.”

15. Email Question • Request for employee’s emails for a certain time period • In order to distinguish personal from public record that employee must review all of the emails and is thus familiar with the request • How do you prevent the employee from deleting or destroying public record?

16. Tips to Assure the End User Doesn’t Destroy Public Record • Advise the end user that intentional deletion or destruction of public record is a crime in Florida; • Have IT set up 2 folders for the end user to put emails within parameters (1) purely personal emails; (2) all other emails that are public record. At the end of the process, have IT check to see if anything was deleted by the end user

17. Scenario • Attorney requests “All emails or text messaging between Officer Smith and Officer Jones about the shooting on 3/14/10” • You check agency server and there are no emails between Smith and Jones. • You talk with Smith and Jones and they tell you that the two of them exchanged text messages regarding the shooting? • Does it matter if it was on their personal phones?

18. Public record definition-119.011(12) • “public records” means all documents, papers …. made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency” • 119.011(2) Agency definition includes persons acting on behalf of a public agency • In scenario- likely public record (subject to exemptions). • How do you comply with producing text messages?

19. Examples of things that become public record later, often to the embarrassment of the author • E-mails • Texts • Circulated Drafts • Circulated Notes

20. CLINTON, Wis- A Wisconsin prosecutor who sent sexually suggestive text messages to a domestic abuse victim downplayed the seriousness of their content and urged state officials to keep them from the public, his peers and state regulators, e-mail shows…..

21. Tips for Email • Avoid using personal email accounts (e.g. gmail, etc.) for business email- the email is public record and people tend to write more freely on private email accounts; • Have department officials set up a folder in their business email account for personal emails- it makes complying with a records request without disclosing personal emails much easier • Do not delete business emails- records retention schedules apply to email like all other public records- create folders

22. Tips for Text Messaging • Consider deactivating text messaging on agency devices or enact a policy of no business related communications via text • No texting with substantive business related discussions • “Call me”, “where are you”, etc. are okay • If you can’t preserve it or produce what could happen? • Civil or criminal penalty • Consider software to archive text messages

23. Scenario- Jail Calls • You have received a public records request for recordings of all phone calls made by an inmate during a particular time period. • Is it public record?

24. Inmate Phone Calls • Bent v. State, 46 So.3d 1047 (4th DCA 9/29/10) • Newspaper made public records request of Broward S.O. for 2 inmates’ recorded phone calls • Purely personal phone calls of inmates are not public record. • Only phone calls that involve a crime or security risk fall within definition of public record • Does this mean you disclose all calls involving crimes or security risks? • Logs of phone numbers called would be public record • Subject to any other exemptions from disclosure

25. Question • How are you going to ascertain which calls are purely personal, which are public record (talking about crimes or security breaches) and which are public record subject to an exemption from disclosure?

26. Social Media • Social media sites are subject to same public records laws • Facebook pages, friends lists, postings, etc. are all public record (AGO 09-19) • Twitter messages- outgoing and incoming by agency are public record • What about Social Media communications by agency officials on their personal accounts involving agency business?

27. Tips for Social Media • Consider limiting or not allowing postings by others on the wall • All wall postings on agency Facebook page become public record • Consider limiting or not allowing incoming Tweets- Outgoing Tweets only • All outgoing and incoming Tweets are public record • Instruct agency members about implications of discussing agency business on their personal accounts

28. Common Public Records Exemptions Issues Facing Law Enforcement Agencies

29. “Exempt” vs. “Exempt and Confidential” • If it’s public record, you must then determine if it is “exempt,” “exempt and confidential,” or subject to disclosure • “Exempt” only- • Agency is not required to disclose records, but may do so at its discretion • “Exempt and Confidential”- • Agency must not release records • AGO 07-21

30. (New Exemption) CS/HB411(2011) • Makes exempt and confidential “a photograph or video or audio recording that depicts the killing of a person.” • “killing of a person” means all acts or events that cause or otherwise relate to the death of any human being, including any related acts or events immediately preceding or subsequent to the acts or events that were the proximate cause of death. • Available to family members as provided in the act. • A local governmental entity, or state or federal agency may request this information in writing in furtherance of its official duties • A court on showing of good cause may order disclosure • Willful violation is a 3° Felony

31. CS/HB411 (Cont.) • Similar to bill with regard to autopsy photos, recordings, etc. • Photos of homicide victims are exempt and confidential; • 911 recording of killing in progress E & C • Videos of crime scenes with homicide victims subject to redaction • May share with other govt. entities upon written request • Criminal and administrative proceedings are exempt form this act, though Court may limit disclosure • Retroactive application • Effective 7/1/11 • Ch. 2011-115, Laws of Fla.

32. CS/HB 409 (New) • 119.071(2)(h)1.c- currently provides that photos, videos or images of any part of the body of a sex crimes victim is confidential and exempt from disclosure • Amended to include victims under 810.145 • Video voyeurism and sexting • Signed by Governor and effective 7/1/11

33. HB 597 (New) • Creates a new subsection 119.071(5)(j) exempting from public record disclosure any information furnished by a person to an agency for the purposes of being provided emergency notification by an agency, including the person’s name, address, telephone number, email address, or other electronic communications address • Effective 7/1/11 • Retroactive application

34. Scenario • One of your dispatchers has been arrested for murder and the media has requested her personnel file. • Is it all subject to disclosure?

35. Rules Regarding Law Enforcement Agency Personnel Files • F.S. 119.071(4)(d)1 exemptions for “law enforcement personnel”- • Social Sec. #- (applies to everyone) • Home address, telephone #, photos, info regarding spouses and children including their places of employment. • Applies to active and former law enforcement personnel

36. What Constitutes “Law Enforcement Personnel” • AGO 07-21- AG’s position: “law enforcement personnel” only means sworn personnel. • “Thus, while sworn officers would be included within the exemption, support personnel employed by a police department would not appear to be included.” • Florida courts have said that the public records law is to be construed in favor of disclosure and all exemptions are to be narrowly construed.

37. Other issues within L.E. Personal Info Exemption • Does it apply to former residences of the law enforcement officer? • No- Per AGO 2010-37- it only applies to current residences of law enforcement personnel • Applies to others as well- e.g. ASAs, judges, firefighters, DCF investigators, probation officers, public defenders, etc.

38. Cell Phone Numbers • Scenario- Records request for the cell phone numbers of police department issued cell phones • Is it public record subject to disclosure?

39. Cell Phone Records • AG Informal Opinion 7/17/03 • An officer’s issued cell phone number is public record- does not fall within the exemption in 119.071(4). • “business telephone numbers used to contact law enforcement officers, whether providing access to a desk telephone at the officer’s workplace or to a cellular telephone carried by the officer while performing his or her official duties, would be public record” • Argument (weak) by some that it falls within 119.071(2)(d)- comprehensive list of law enf. resources- that is a very limited exemption- MOUs and emergency deployments • Argument (weak) it falls in §119.071(2)(d)(exemption-- disclosure might reveal surveillance techniques, procedure, or personnel. 

40. Records of Cell Phone CallsScenario • An individual requests records of an officer’s cell phone calls on a particular date • On his agency cell phone- is it public record? • What about personal numbers called? • On his personal phone?

41. Booking Photos/Mug Shots

42. Scenario • Individual has been conducting numerous highly publicized robberies with similar M.O.s. • An arrest is made; however, due to the number of robberies, detectives have not yet shown photospreads (or conducted a lineup) to a number of the victims. Detectives will not be able to complete the victim photospreads (or line ups) for about 48 hours. • The media is requesting the booking photo now • Is the booking photo a public record which must be disclosed?

43. Booking Photos • Booking photos are generally considered non-exempt public record which must be disclosed; • HOWEVER, if the active criminal investigation exemption, or any other exemption, is still applicable it would not be subject to disclosure

44. Scenario • An officer is arrested for DUI and the media asks for his/her booking photo

45. Police Officer Booking Photos • Booking photos are generally considered non-exempt public record; however, • If a law enforcement officer requests exemption of his/her photo under s.119.071(4)(d), the booking photo of an arrested police officer would be exempt from disclosure. • FOP, Lodge 5-30 v. City of Jacksonville (4th Jud. Cir. 2001) • Sarasota Herald-Tribune Co. v. Sarasota County Sheriff’s Office, (12th Jud. Cir. 1996) • Because the photo is not related to their work, the exemption only applies if they specifically claim it and is not automatic

46. Booking Photos (Cont.) • What about retired police officers? • What about officer’s family members? • What about retired firefighters?

47. Active Criminal Investigative Information • “Active Criminal Investigative Information” is exempt from disclosure • “Criminal investigative information” is defined as “information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports or investigators or informants, or any type of surveillance.” • To be considered “active” such information must relate to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.”

48. Active Criminal Investigative Information (cont.) • If the material that otherwise would constitute active criminal investigative information is turned over to the accused in the criminal discovery process, the exemption no longer applies and the material would need to be disclosed. • Post-Newsweek Stations v. Doe, 612 So.2d 549 (Fla. 1992); Fla. Freedom Newspapers v. McCrary, 520 So.2d 32 (Fla. 1988)

49. Scenario • Undercover operation at strip club resulting in arrests. U/C officers video the girls doing ‘things’ and video includes images of U/C officers • During prosecution of the strippers, as part of discovery the SAO turns over unredacted versions of the video. • Is the unredacted version now public record subject to disclosure?

50. Rameses v. DemingsFla. 5th DCA 3/5/10 • Facts from scenario • Despite the fact that unredacted version was turned over during discovery, because the video discloses the surveillance techniques and identity of U/C officers- exemption still applies • Only active criminal investigative information loses its exemption upon disclosure as part of criminal discovery.