November Shine On – Monthly Chat with First Amendment Foundation

It’s time to shine again. Barbara Petersen with the Florida First Amendment Foundation is back! In October she addressed whether or not you need to show identification to attend public meetings and a recent bill that passed in the Florida Legislature. This month she is addressing access to social media account information and if an agency can create their own policy on public records.

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 Florida: Are personal social media accounts subject to the public records law? Any examples?

Barbara Petersen: It’s doubtful that posts to a social media account would be subject to the public records law, but the Attorney General’s Office has said that placement of material on an official Facebook page presumably would be in connection with the transaction of public business and thus subject to the disclosure and retention requirements of the public records law.

So, if Commissioner Jones maintains a Facebook page and posts to that page about her work as a commissioner, those posts are public records.  But if Jane Jones has a personal Facebook page to which she posts comments about her family and friends – posts not related to her role as a commissioner – then those posts are not public record.  Here’s a link to AGO 2009-19 on the subject. You can read it here.

Can each agency have their own policy on how public records are made? Can they appoint one person to take those requests?

Barbara Petersen: Yes, agencies can develop public access policies – in fact, we encourage the development of such policies, as they help inform both requestors and agency employees.  Public access policies must, however, conform to the requirements of the public records law, and agencies can’t adopt policies that act to restrict the right of access or adopt fee policies that run contrary to the fees allowed by law.

A policy that says all public records requests must be made through the city clerk or the agency’s public information officer, for example, could constitute a restriction on the public’s right of access.  Section 119.07(1), F.S., says that “every person” who has custody of a public record must allow that record to be inspected or copied under the supervision of the custodian of the public record.  The phrase “custodian of public records” is defined in s. 119.011(5) as the elected or appointed officer charged with the responsibility of maintaining the office having public records, and the courts have said the statutory reference to the “custodian of public records” doesn’t relieve the duty of disclosure upon “every person” who has custody of a public record.  It’s the custodian’s responsibility to make sure that all employees understand the rights and requirements of the public records law.

Here’s a letter from the First Amendment Foundation on this issue.

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 and click on FAF Store for information on how to order the manual.

Barbara A. Petersen, President First Amendment Foundation

A 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.