Memo
To: Leona Clerk, the City Clerk of Leon County
From: Melissa Duvall Becker
Re: Public Records Request Issues 7/10/14
Situation:
You’ve presented my office with three different
situations involving public records requests. The first situation involves a
records request by the city of Tampa for documents created by Leon County for
the benefit of visitors and tourists. You want to know if you must respond to a
request made by a city. You also are concerned that the requested record
includes information which was created at taxpayer expense and that it will be
used to financially benefit the requestor.
The second issue involves a frequent requestor of
records who has acted in a way which has disrupted the staff. You are wondering
if there is a way to limit this person’s ability to request records. You would
also like to know if there is any way to limit the requestor from making
requests in person.
The final issue involves a request made for meeting
minutes which includes thousands of records. The requestor has given a 48 hour
deadline which can only be met by having the staff work through the night.
Questions
Presented
1) Can
a public records request be refused because the requestor is a municipal body?
2) Can
a public records request be refused because the requestor will be using a
resource created with taxpayers money for their own financial benefit?
3) What
options are available for limiting the how a specific person is able to make a
records request?
4) What
options are available when a record requestor is asking for completion of the
request in a short period of time?
Summary:
As to question 1, Section 119.01 states that “All
state, county, and municipal records are open for personal inspection and
copying by any person.” A county government has been found to meet the
definition of person in Hillsborough County, Florida v. Buccaneers Stadium
Limited Partnership. A city would similarly meet the definition of a person and
is able to make a public records request. For this reason, it is not
permissible to deny a records request made by the City of Tampa based on their
status as a municipal government.
As to question 2, the fact that the requestor will be
able to use the information to gain a financial benefit even though taxpayers
paid for the record is not a valid reason to deny a records request. There is
no statutory authority to deny a request based on the reason behind the request
or what the records would be used for. “The motivation of the person seeking
the records does not impact the person’s right to see them under the Public
records act.” Curry v. State, 811 so. 2d 736, 742 (Fla. 4th DCA 2002). All public records are made with taxpayer
funds in one form or another, and is not a reason to deny a request.
That being said, there is a public records exemption
for county tourism promotion agencies from disclosing information that is
either a trade secret or business records of booking information. In your
question you specified that the record requested was a map that included points
of interest for visitors. This information would not be a trade secret or
booking information, and therefore is not exempt. A map that is given to
visitors would not meet either of these exemptions. If there were other records
in the request that you believe might fall under one of these exemptions please
contact me so we can look at them specifically to see if they are exempt.
As to Question 3, Section 119.07 says that “every person who has custody
of a public record shall permit the record to be inspected and copied by any
person desiring to do so”. This is exceptionally broad and does not permit the
banning of a person making public records requests, even if the requests are
frequent and burdensome. Any rule that would limit access only to certain modes
of communication are not permissible. See Informal Attorney General Opinion to
Cook, May 27, 2011, “The courts of
this state have invalidated measures which seek to impose any additional burden
on those seeking to exercise their rights to obtain records under Chapter 119”
this includes limiting requests to those that are written.
Similarly, there is no
crime in making frequent public records requests. In Curry v State the court
said that an individual’s frequent requests for public records of a specific
person could not violate stalking law because the requests in themselves, no
matter the reason, were legitimate under public records law. If an individual
violates the law in the course of their legally protected request for public
records, for example by assaulting someone or making physical threats, then
they can be arrested for that crime.
Applied to your
situation, this means that you cannot institute a ban on this requestor from
making requests. You also cannot limit the method by which they are able to
make a request. If this person’s behavior in how they interact with the
employees becomes violent or violates a law you may involve law enforcement,
however the frequency or subject of their requests cannot be criminal.
As to Question 4, Florida’s 2014 Sunshine
annual says that “the custodian of public records and his or her designee must
acknowledge requests to inspect or copy records promptly and respond to such
requests in good faith.” There is no specific time requirement that must be met
and there is no requirement that the custodian works outside of normal working
hours to meet that request. However, an unjustified delay can be considered to
be an unlawful refusal to provide the records (Sunshine Manual page 141). If
the staff is diligently working on meeting the request, but simply not working
overtime, the court will likely find the effort to be in good faith.
However, it is in the
best interest of everyone that any litigation be avoided and we maintain a good
relationship with someone making the request. If there is a report or other
collection of the information available that will help the requestor find the
information they need you may point the requestor to its existence and suggest
that they request that. Similarly, you can ask if there is any particular type
of information they need from the minutes (for example, just the minutes of
meeting where travel expenses were discussed) which could help you narrow down
the records and meet the request more quickly.
It is important to make
clear that in offering these other options you are not refusing the original
request, simply looking to help them get the information they need as quickly
as is reasonably possible. Since the requestor also needs to pay for the copies
made for the request, narrowing the scope of records may also be in their
interest since it reduces the expense.
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