Jun. 7, 2013  

June Shine On – Monthly Chat with First Amendment Foundation

COLOR-LOGOBarbara Petersen with the Florida First Amendment Foundation is back! Last month she addressed whether or not you can take pictures of documents and how far of a reach the Federal HIPPA law has locally. This month she addresses the issue of whether notes taken by public officials during meetings are subject to public information laws and what police are required to release during an ongoing investigation.

Let us know what you could use some help with, when it comes to the Florida Sunshine Laws. You can leave questions and comments below or send them to Lynn Walsh.

SPJ South Florida: If a public official reads from a document at a public meeting, is such “hard” copy an allowable subject of a public records request? If an official has notes from which she/he refers to during public meeting are such “notes” subject to a public records request?  

Barbara Petersen:  The answer to this question relies on the definition of “public record” found in the public records law and the court’s interpretation of that definition.  Basically, if the document in question relates to public business and was made or received in connection with public business, then yes, the document is undoubtedly a public record.  And it would seem as if both conditions are met.  The harder question is the notes.

Generally, there’s no unfinished business exception to the public records law, which means that a document doesn’t have to be in its final form; a draft document becomes a public record subject to disclosure once it’s shared for comment or review.  This means that an employee’s notes to him/herself “which are designed for their own personal use in remembering certain things do not fall w/in the definition of public record.”

The important question is whether such notes were “intended to perpetuate, communicate, or formalize knowledge” relating to public business.  I would argue that if the notes are used during a presentation at a public meeting then those notes are a public record.  The relevant test is whether the notes were prepared to “perpetuate, communicate, or formalize knowledge of some type,” and the Attorney General has opined “it is only uncirculated materials that are not in and of themselves intended to serve as the final evidence of the knowledge to be recorded that fall outside the definition of a public record.”  AGO 05-23.  There’s a lengthy discussion of this issued on pages 54 – 57 of the 2013 Government in the Sunshine Manual which may be helpful.

SPJ South Florida: Do the police have to release anything to the public relating to an ongoing investigation?

Barbara Petersen: Generally, active criminal investigative information is exempt from disclosure under s. 119.071(2)(c), F.S.

Again, however, it’s important to look at the statutory definition of “active criminal investigative information.”  Specifically, “active criminal investigative information” does not include: (1) the time, date, and location of a reported crime; (2) the name, sex, age, and address of a person arrested or of the victim of a crime (unless the crime was of a sexual nature, in which case information identifying the victim will be exempt from disclosure; (3) the time, date, and location of the incident and of the arrest; (4) the crime charged; and (5) documents given to the person arrested (with some exceptions.)  Section 119.011(3)(c).

This means that most information in an incident report is subject to disclosure.  Also, Florida law makes an important distinction between information contained in a public record that is “confidential and exempt” and that which is merely “exempt:”  information that is confidential and exempt cannot be disclosed except as specified in the exemption, but information that is exempt can be released at the discretion of the custodial agency.  Active criminal investigative information is exempt from disclosure, which means that the custodial law enforcement agency can release information relating to an active investigation but is not required to do so.

Click here in case you missed last month’s chat.

Answers to these questions and many more, including questions about application of Florida’s open meetings law, can be found in the 2013 Government-in-the-Sunshine Manual, which is now available in both a print edition and electronically.  Go to the First Amendment Foundation website, www.floridafaf.org, and click on FAF Store for information on how to order the manual.

Barbara A. Petersen, President First Amendment Foundation

Barbara Petersen headshotA graduate of the University of Missouri-Columbia and Florida State University College of Law, Barbara A. Petersen is president of Florida’s First Amendment Foundation.  Before taking her current position in 1995, Petersen was staff attorney for the Joint Committee on Information Technology Resources of the Florida Legislature, where she worked exclusively on public records legislation and issues.  A passionate advocate of the public’s right to oversee its government, Petersen is the author of numerous reports and articles on open government issues.  She currently sits on the board of the National Freedom of Information Coalition, having served as its president and treasurer, and was recently appointed to the Integrity Florida board of directors.  Petersen served as chair of Florida’s Commission on Open Government Reform.

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