Shedding Light on the Sunshine January 11, 2017

1. Shedding Light on the Sunshine January 11, 2017

2. Amanda L. Swindle Counsel Officeof the General Counsel Florida Municipal Power Agency Also serving as General & Regulatory Counsel to Florida Municipal Electric Association, Inc.

3. Presentation Overview • Overview of Florida Public Records Laws • Retention of Public Records • Access to Public Records • Exempt and/or Confidential Records • Common Types of Public Records • How to Handle Public Records Requests 3

4. Presentation Overview • Overview of Florida Open Meetings Laws • What is a public meeting • What discussions are included • Notice and procedural requirements • Common Open Meeting Issues 4

5. Penalties for Noncompliance • Any violation could result in non-criminal infraction punishable by fine not exceeding $500. • However, a knowing violation could result in suspension or termination and a first degree misdemeanor, punishable by up to one year in prison and/or $1000 fine. • Attorney’s fees • Lee v. Board of Trustees – Jacksonville Police & Fire Pension Fund (Fla. 2016) 5

6. FLORIDA Public records LAW 6

7. What is a Public Record? • “All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other materials, regardless of physical form, characteristics, or means of transmission made or received pursuant to law or in connection with official business by an agency.” Ch. 119, Florida Statutes (2016). • Includes all materials made or received in connection with official agency business that are used to “perpetuate, communicate, or formalize knowledge.” Sunshine Law Manual (2016). 7

8. What is an “agency”? • “[A]ny state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law . . . .” • EX: FMPA is a “separate unit of government” created under Ch. 163, Florida Statutes • You are subject to Florida’s public records laws 8

9. What is “official business”? • Procurement, operations, financing, public meetings, etc. 9

10. What does this mean? • Public agencies have two main obligations under the Florida Public Records laws • Public Records Retention • Access to Public Records 10

11. Public records retention 11

12. Public Records Retention • The Sunshine Law defines the term “Custodian of Public Records” as “the elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee.” • HOWEVER, the courts have concluded that the statutory reference to the records custodian does not alter the “duty of disclosure” of “[e]very person who has custody of a public record.” • Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996). 12

13. Public Records Retention • Thus, the term “custodian” for purposes of the Public Records Act refers to all agency personnel who have it within their power to release or communicate public records. • “[O]ne must have supervision and control over document or have legal responsibility for its care, keeping or guardianship.” • Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998) (citing Williams v. City of Minneola, 575 So. 2d 683, 687 [Fla. 5th DCA 1991]). 13

14. Public Records Retention • If you make or receive a public record, you must retain it in some way for some period of time. • How Long? • A public record may be destroyed or otherwise disposed of only in accordance with retention schedules established by the Division of Library and Information Services of the Department of State • GS1-SL is used for State and Local Government Agencies 14

15. Public Records Retention • Administrative Support Records • Retain until obsolete, superseded, or administrative value is lost • Drafts/Working Papers • Retain until obsolete, superseded, or administrative value is lost • Contracts • 10 fiscal years after termination of contract (Capital Improvement/Real Property) • 5 fiscal years after termination of contract (Non-Capital Improvement) • Approved Annual Budget • Permanent • Bid Records • Varies – 5 to 10 years • Records in Support of an Audit • 3 to 5 years 15

16. Public Records Retention • Retention applies to the agency’s record (master) copy of the records, those public records specifically designated by the custodian as the official record. • The retention period for duplicates – copies of records that are not the official record of an agency – is “Retain until obsolete, superseded, or administrative value is lost.” • Retention applies to all public records, even those that may be exempt from disclosure or made confidential by law. 16

17. Public Records Retention • Does format matter? • Information stored in a public agency’s computer “is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet . . . .” Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983). • Includes electronic calendars, databases, and data processing software 17

18. Public Records Retention • Electronic recordkeeping • “Automation of public records must not erode the right of access to those records. . . . • When designing or acquiring an electronic recordkeeping system, an agency must consider whether such system is capable of providing data in some common format. . . . • An agency may not enter into a contract for the creation or maintenance of a public records database if that contract impairs the ability of the public to inspect or copy the public records of the agency. . . .” 18

19. Public Records Retention • Final Disposition of Public Records • Identify the appropriate retention schedule • For agency record copies, internal documentation of disposition must be maintained • Retention schedule number, retention schedule item number, records series title, inclusive dates, volume (in cubic feet) of paper records destroyed, and disposition action (manner of disposition) and date. • A Records Disposition Document is available at http://dos.myflorida.com/library-archives/records-management/forms-and-publications/ 19

20. Public Records Retention • Archival Value • Some records that do not have a permanent retention still might have enduring value to your community as evidence of the interactions between government and citizens and as sources of information about local government, society, and culture. • For your convenience, we have indicated that “These records may have archival value” for series that are most likely to have such historical or archival value. Not all such records will be determined to be archival; conversely, some records without this statement in the series description might have archival value. • Technical assistance in determining archival value is available from State Archives staff at 850.245.6750. 20

21. Public Records Retention • Other Factors Affecting Retention • Public Records Requests - The custodian of a public record may not dispose of a record for a period of at least 30 days after a public records request is received for that record. • Litigation - When a public agency has been notified that a potential cause of action is pending or underway, that agency should immediately place a hold on disposition of any and all records related to that cause. • Federal, state, or local laws and regulations regarding recordkeeping and records retention for specific agencies or specific types of records might require a longer retention period. 21

22. Public records INSPECTION 22

23. Public Inspection • Access to Public Records in Florida is Constitutional Right (Art. 1, sec. 24) • “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution…” 23

24. Public Inspection • “It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.” § 119.01, F.S. (2016). • An agency can not require as a condition of inspection: • Requestor’s name, address, telephone number, etc. • The reason for the inspection • The request to be in writing 24

25. Public Inspection • “An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium, and the agency may charge a fee in accordance with this chapter.” • The agency does not have to create a new record in response to a request (e.g., compiling a list or spreadsheet that doesn’t already exist). • However, the agency may elect to “provide a copy of a public record in a medium not routinely used by the agency,” or “compile information not routinely developed or maintained by the agency or that requires a substantial amount of manipulation or programming” if paid for by the requestor 25

26. Public Inspection • All public records are subject to public inspection and examination by any member of the public UNLESS • An exemption applies, OR • The information is made confidential by law. • Difference?? 26

27. Exempt vs. Confidential? • Exempt = May be released; Agency’s discretion • Confidential and Exempt = May not be released; no discretion; PENALTIES! • Statutes are not always clear, so always seek guidance!! 27

28. Common Types of Exempt/Confidential Information • Proprietary Confidential Business Information • Trade Secrets • Security Plan and Blueprints • Social Security Numbers • Bank Account Numbers • Medical Records 28

29. CONFIDENTIAL Legal Disclaimer – This slide contains confidential, proprietary, and privileged information. Reproduction or public inspection is strictly PROHIBITED!!!!!!! DO NOT COPY FOR YOUR EYES ONLY UNDER PENALTY OF DEATH AND DISMEMBERMENT • Does this mean this slide is not a public record? 29

30. Confidentiality • Information may only be withheld as confidential if designated so by law. • “[A] private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential.” NCAA v. AP, 18 So.3d 1201 (1st DCA 2009). • Confidentiality agreement also cannot be used to circumvent public records law. • “A public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private.” Id. 30

31. NCAA v. AP • In March 2007, on the campus of FSU, allegations surfaced that three former academic support services staff members had provided "improper" academic assistance to at least 61 FSU athletes. • The NCAA's investigation and infractions report was initially released in March 2009. • Traditionally, interested parties have been provided paper copies of investigative documents, but since 2007 the NCAA has gone “paperless” and instead provides access to electronic copies of pertinent documents via a secure website. • The AP and many other news outlets requested access to as much information as possible, including copies of documents that FSU might possess. 31

32. NCAA v. AP • NCAA initially denied the request, claiming that such records were either not public, or protected under the Federal Educational Right to Privacy Act (FERPA). • In addition, the NCAA contended that Florida's "sunshine" law did not apply to documents accessed via a website, since no actual documents or emails were physically received by a state agency within the boundaries of the state of Florida. • “[A] document may qualify as a public record under the statute if it was prepared by a private party, so long as it was 'received' by a government agent and used in the transaction of public business.“ • Applies even if the document was not physically received. • Applies even is received by an agent of the agency. 32

33. CRITICAL ENERGY INFRASTRUCTURE INFORMATION - Is this slide a public record? - Should it be disclosed if requested? 33

34. New Cyber Security Exemption • Section 119.0713(5)(a), Florida Statutes (2016). Exempts: • Information related to the security of the utility's technology, processes, and practices designed to protect the utility’s networks, computers, programs, and data from attack, damage, or unauthorized access that, if disclosed, would facilitate the alteration, disclosure, or destruction of such data or information technology resources; and • Information related to the security of the utility’s existing or proposed information technology systems or industrial control technology systems that, if disclosed, would facilitate unauthorized access to, and alteration or destruction of, such systems in a manner that would adversely impact the safe and reliable operation of the systems and the utility. 34

35. Contractors • Effective July 1, 2013, any contract for services with a public agency, where the contractor is acting on behalf of the public agency, must include a provision that requires the contractor to comply with public records laws. • As of July 1, 2016, such contracts must also include a statement that if the contractor has questions regarding the application of Chapter 119, the contractor should contact the agency’s public records custodian § 119.0701, F.S. (2016). • Court opinions have established two general sets of circumstances where a private entity is acting on behalf of a public agency and therefore subject to public records laws— • the delegation of a statutorily authorized function (operating a jail, providing fire protection services, improving municipal water system) • the “totality of factors” test (level of public finding, commingling of funds, publicly-owned property, integral part of decision-making process, governmental function, level of control, entity created by agency, substantial financial interest, who will benefit) 35

36. Contractors Contractor shall allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, made or received by the Contractor in conjunction with this Contract. Specifically, the Contractor must: (1) Keep and maintain public records that ordinarily and necessarily would be required by [THE AGENCY] in order to perform the services being performed by the Contractor. (2) Provide the public with access to public records on the same terms and conditions that [THE AGENCY] would provide the records and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (4) Meet all requirements for retaining public records and transfer, at no cost, to [THE AGENCY] all public records in possession of the Contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to [THE AGENCY] in a format that is compatible with the information technology systems of [THE AGENCY]. 36

37. Contractors The Contractor shall promptly provide [THE AGENCY] with a copy of any request to inspect or copy public records in possession of the Contractor and shall promptly provide [THE AGENCY] a copy of the Contractor’s response to each such request. Failure to grant such public access will be grounds for immediate termination of this Contract by [THE AGENCY].  THIS ARTICLE WILL BE DEEMED TO APPLY TO ALL SERVICE CONTRACTS UNLESS THE CONTRACTOR CAN DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NOT ACTING ON BEHALF OF [THE AGENCY] UNDER FLORIDA LAW. If the contractor has questions regarding the application of chapter 119, Florida Statutes, to the contractor’s duty to provide public records relating to this contract, contact the custodian of public records at (telephone number, e-mail address, and mailing address). 37

38. Agency Records • Personnel Records – Public records with certain exemptions, such as social security numbers; direct deposit account numbers; deferred compensation; medical information; etc. • As of June 2, 2015, the home address, telephone number, date of birth, and cell phone number of current or former active duty servicemembers of the U.S. Armed Forces, Reserve Forces, or National Guard and their spouse and dependents are exempt. • Bids - Sealed bids or proposals received by an agency pursuant to an invitation to bid or RFP are public records, but are exempt from disclosure until either: • Agency provides notice of its decision; OR • Within 30 days after bid or proposal opening, whichever is earlier. • Audits - Audit becomes a public record when it becomes final 38

39. Agency Records • Budgets – Budgets and working papers used to prepare them are public records • Blueprints – Building plans, blueprints, schematic drawings, and diagrams of government buildings are exempt. • Security System Information – Information relating to the security systems for property owned by or leased to the state or any of its political subdivisions is confidential and exempt from disclosure • Litigation Records – A public record that was prepared by an agency attorney that “reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney”, and that was prepared exclusively for or in anticipation of “imminent civil or criminal litigation or imminent adversarial administrative proceedings”, is exempt “until the conclusion of the litigation or adversarial administrative proceedings.” 39

40. Agency Records • Emails/Text Messages • Emails made or received in connection with agency business are public records • Making comments about public business in an email to a friend can make part of the email a public record • The mere fact that an e-mail is sent from a private e-mail account using a personal computer is not the determining factor as to whether it is a public record 40

41. Notes and Drafts • There is no “unfinished business” exemption. • Any document, however prepared, that is circulated for review, comment, or information, is a public record: • Inter-office memos • Preliminary draft proposals submitted for review by another employee • Working draft of report submitted to supervisor for review • Notes to self are not a public record • Must be for you own use 41

42. Social Media • Attorney General Opinion 2009-19: • “[T]he placement of material on the city's [Facebook] page would presumably be in furtherance of [a municipal purpose] and in connection with the transaction of official business and thus subject to the [Public Records Law].” • “Similarly, whether the Facebook page of the friends would also be subject to the Public Records Law…would depend on whether the page and information contained therein was made or received in connection of the transaction of official business.” • “In light of the above, the city, should it establish a Facebook page, may wish to post a warning regarding the application and implications of the Public Records Law.” 42

43. The Take-away . . . • Regardless of what form it comes in—email, text message, YouTube video, Facebook wall post, photograph, cave drawing, carrier pigeon, etc.—if it concerns public business, it is a public record! • This includes communication on your own personal devices!

44. Responding to public records requests 44

45. How to handle a public records request? • A request for public record must be dealt with in timely manner. • If a request is denied, the agency must provide a written explanation for the denial, along with a citation to the specific statute that exempts the information. • Agencies cannot impose conditions of inspection that act as a barrier. • REMEMBER: An agency can not require as a condition of inspection: • Requestor’s name, address, telephone number, etc. • The reason for the inspection • The request to be in writing 45

46. How to handle a public records request? • Guidance we give our staff: • If you are certain that the requested item is a public record subject to inspection, you should make the record available in the same format as it is retained by your agency. • EX: Meeting Minutes and Agendas • If you are uncertain, you should tell the requestor that you need to consult with the records custodian, ask them how they would like to be contacted, and give them a reasonable time in which you will get back to them 46

47. In-Person public records requests 47

48. In-Person public records requests • Guidance we give our staff: • Inform the individual that you will get someone who will assist them. Avoid responding affirmatively or negatively to their actual public records request. Do not require them to sign in to the daily visitor log. Do not require them to put the request in writing or take any other steps to make their request. • “I will get someone who can assist you with your request. You may have a seat here in the lobby, and someone will be with you shortly.” • The individual is not required to give their name, so do not demand it. 48

49. In-Person public records requests • If the individual has a video recording device, you may request that you not be filmed. • However, audio or video recording is not permitted in non-public, restricted access portions of the building without prior consent • If at any time you feel threatened or intimidated, excuse yourself and seek assistance. 49

50. In-Person public records requests • Remember: • Be helpful • Be courteous • Be respectful • If you are uncertain, seek assistance 50