Open Records Memo (for MPA class)

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. 

Memo on Federal Evidence Rule 15

QUESTION PRESENTED

Can the new amendments to Rule 15 be used to prevent Mr. G from traveling to the UK to be physically present at a deposition?

BRIEF ANSWER

Probably; Mr. G’s situation meets all the qualifications under the new rules to allow for a foreign deposition without his physical presence. Mr. G’s pre-release conditions could not be replicated in the UK, and his status as a citizen of the United Kingdom creates additional flight risks that necessitate that he not be allowed to travel out-of-custody. If he wishes to travel as an in-custody defendant it would only be possible if the British official agree to take control of him, and even then there is a risk that he may not return because he could face charges over there.

ANALYSIS

On December 1, 2012 an amendment to Rule 15 of the FRCRP will go into effect regarding the taking of depositions in foreign countries. The purpose of the rule is to provide “a procedural framework” in cases involving foreign witnesses distilling the analysis used in existing caselaw. (June 2011 Memo of the Advisory Committee on the FRCRP). The entire amendment is as follows:

 (c) Defendant's Presence.

(1) Defendant in Custody. Except as authorized by Rule 15(c)(3), the officer who has custody of the defendant must produce the defendant at the deposition and keep the defendant in the witness's presence during the examination, unless the defendant:

(A) waives in writing the right to be present; or

(B) persists in disruptive conduct justifying exclusion after being warned by the court that disruptive conduct will result in the defendant's exclusion.

(2) Defendant Not in Custody. Except as authorized by Rule 15(c)(3), a defendant who is not in custody has the right upon request to be present at the deposition, subject to any conditions imposed by the court. If the government tenders the defendant's expenses as provided in Rule 15(d) but the defendant still fails to appear, the defendant--absent good cause--waives both the right to appear and any objection to the taking and use of the deposition based on that right.

(3) Taking Depositions Outside the United States Without the Defendant's Presence. The deposition of a witness who is outside the United States may be taken without the defendant's presence if the court makes case-specific findings of all the following:

(A) the witness's testimony could provide substantial proof of a material fact in a felony prosecution;

(B) there is a substantial likelihood that the witness's attendance at trial cannot be obtained;

(C) the witness's presence for a deposition in the United States cannot be obtained;

(D) the defendant cannot be present because:

(i) the country where the witness is located will not permit the defendant to attend the deposition;

(ii) for an in-custody defendant, secure transportation and continuing custody cannot be assured at the witness's location; or

(iii) for an out-of-custody defendant, no reasonable conditions will assure an appearance at the deposition or at trial or sentencing; and

(E) the defendant can meaningfully participate in the deposition through reasonable means.

…

 (f) Admissibility and Use as Evidence. An order authorizing a deposition to be taken under this rule does not determine its admissibility. A party may use all or part of a deposition as provided by the Federal Rules of Evidence.

Fed. R. Crim. P. 15

Even though the rule is not yet in effect it will be in effect by the time Mr. G’s trial begins. The rule states that it is to apply to all ongoing cases, therefore for the sake of efficiency the court should use the new rule early. Otherwise, it risks having to having to amend its own decision in just a few months to comply with the rules. Furthermore, because the rule has been written over six years with the advice of many legal experts and has been given the approval of the Supreme Court, it should be considered a reputable authority on the issue.

Amended Rule 15(c)(3) says a deposition outside the united states can be taken without the presence of an out-of-custody defendant, like Mr. G, when “no reasonable conditions will assure an appearance at the deposition or at trial or sentencing.” The question of what constitutes a reasonable condition for release in a foreign country should be similar to the analysis used when deciding any kind of pretrial release conditions. US v. Sapse, 2011 WL 1576898 (D. Nevada, 2011).  The actions taken to overcome these concerns in order to secure the physical presence of the defendant at a foreign deposition “must be undertaken in good faith, [but] they need not be heroic, and the possibility of using a deposition does not evaporate even if those efforts prove fruitless.” United States v. McKeeve, 131 F.3d 1, 8 (1st Cir. 1997) (Involving an in-custody defendant who the U.K. refused to take custody of for the duration of the deposition).

Flight Concerns

Currently, Mr. G’s pre-trial release conditions include a curfew and electronic monitoring. He also has had to surrender his passport. For the past four years, Mr. G has complied diligently with these rules, but there is no way to replicate them in the UK. The U.S. Marshal’s service lacks authority to enforce these rules on foreign soil. (McKeeve at 7). They have no authority to compel Mr. G to appear at the deposition. If he were to choose to just walk away from them, they would have no authority to stop him.

Furthermore, while the current pre-release conditions may be satisfactory in the United States, they would be inadequate overseas. Mr. G is a citizen of the United Kingdom with friends and family in that nation. As a U.K. citizen the potential for flight are greatly increased if he were allowed to return to his home country. Even though he has surrendered his passport, once he was in the U.K. he could file to get a new passport and receive it the same day under the Identity and Passport Service’s Premium One-Day Service. He could also possibly borrow a passport from a friend and use it without being detected because of lax security demonstrated by news reports of an 11 year old boy flying from the UK to Rome with no passport or ticket, a BBC reporter who was able to fly out of and into the UK on a private plane without any passport check, and a couple who flew swapped passports and went undetected through security- nobody noticing that the name, picture, or genders didn’t match.

This is a huge issue because with a UK passport and no visa he could travel to a number of countries that lack extradition treaties with the United States including Croatia[1], The Marshall Islands[2], and Micronesia. Even though the United States has extradition treaties with a number of other EU nations that is no guarantee that the foreign nation will agree to extradition or that it would be accomplished in a timely manner (see Polanski, Roman). Even without a passport he could travel to any of the places within the UK common travel area like Scotland, Ireland, and The Isle of Man making it possible for him to disappear from justice.

Because of concerns over flight, the only reasonable condition available to allow Mr. G’s physical presence is to be placed into custody of U.K. officials, but even that may prove difficult to arrange. In McKeeve the British authorities refused to take custody of a defendant. If they similarly refuse to take custody in Mr. G’s case the courts will not force the issue. In U.S. v. Salim the French government’s refusal to allow a defendant to be present at a deposition within the country did not render the deposition unusable in the Second Circuit. “A sovereign nation is entitled to refuse to acquiesce in the use within its borders of American methods of gathering, preserving and presenting evidence; such refusal, however, should not automatically and invariably cause the prosecution to abandon its efforts to obtain evidence abroad.” United States v. Salim, 855 F.2d 944, 950 (2d Cir. 1988).

The government must make a good faith effort to allow the defendant to appear at the deposition, but we are not held responsible for the decisions of other nations. Our offer should be to allow the defendant to travel in-custody if the UK authorities agree to take responsibility for his care and transport to the deposition. It is possible that they will refuse, as they did in the McKeeve case, but we have at least demonstrated that we have made the effort which is all that will matter if the issue is appealed.

Potential Charges in Foreign Countries

Another potential issue arises when a defendant’s crimes may subject them to criminal charges in the country where they wish to travel for the deposition. The problem isn’t one of flight, but that defendant will be subject to arrest and prosecution while in the foreign nation, thus delaying his return to the United States to face trial and sentencing. While this is not as strong an argument as the Flight issue, it is still a potential problem which we could raise in regard to concerns surround Mr. G’s travel to the U.K.

In U.S. v. Medjuck the 9^th circuit found that the fact that there was a Canadian warrant for his arrest justified his preclusion from an in-person appearance at the deposition of a Canadian witness. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998). A warrant does not need to be issues for this concern to be valid. In U.S. v. Abu Ali, one of the cases the Judicial Committee cites as using during their drafting of the new rule, a 4^th Circuit court found that concern that the defendant’s conduct “might subject him to prosecution overseas” were reasonable. U Ali, 528 F.3d 210, 239 (4th Cir. 2008). The threat of prosecution needed to be reasonable. In U.S. v. Snapse a district court found that the fact that the defendant had been investigated for criminal activity in Romania would not prevent him from being able to appear at a deposition in the Ukraine as long as there was not an international warrant for his arrest. Sapse, 2011 WL 1576898 (D. Nev. Apr. 26, 2011).

Mr. G’s legal situation in the UK is not as certain as the one in the Medjuck case, where a warrant had been issued. That being said, it is similar to the situation in Ali where prosecution was possible. Mr. G has been questioned by the UK authorities, and while they have given us no reason to believe that they are interested in their own prosecution, we also have no way to prevent them from doing so. Mr. G, like the defendant in Ali and distinguishable from the one in Sapse, is asking to enter the country where the potential violation occurred. In Sapse the risk of the defendant being held in Ukraine for activities in Romania would have required jurisdictional hurdles making it less likely. Once Mr. G is in the boarders of the United Kingdom, and possibly in their custody, there is nothing preventing them from going forward with their own case other than their verbal assurance that they won’t.

It’s possible that the court may take the UK’s assertion that they are not going to proceed with their own charges against Mr. G to be enough to eliminate these concerns. The existing cases to not deal with that particular issue or offer court guidance in deciding what types of overseas legal threats are reasonable. The Ali case clearly leaves this concern open as one that may be used by courts in denying the appearance of a defendant, but it is not as strong as the issues surrounding flight.

Use of Deposition at Trial

It is important to note that the taking of a deposition under rule 15 does not assure that it can be used at trial. It would still need to meet Rule of Evidence 804 showing that a witness continues to be unavailable to testify at trial. Additionally, the drafters of the new Rule 15 said that it might be possible for a deposition taken in accordance with the new rules to be unable to be used at trial if “the technology [used for video conferencing] is inadequate or fails” because such a deposition might violate the defendant’s rights under the confrontation clause if the court finds the technological glitches hampered the defendant’s ability to meaningfully assist counsel in the cross-examination of the witness.

CONCLUSION

The amended Rule 15 should be used in advance of its official enactment for the sake of judicial efficiency. If the court’s ruling does not comply with the new rule now, then it will be possible to appeal that decision once the rule becomes effective before the start of trial. Under the new rule, Mr. G could appear at the deposition in a foreign nation if reasonable conditions are in place to assure his appearance at the deposition and his return to face trial. Mr. G’s status as a UK citizen, and the ease with which that status would allow him to disappear in Europe, means that the only reasonable condition to allow for his appearance would be to enter into custody. Even that may not be enough, since the UK may not accept custody and if the UK choses to go forward with a prosecution there is no way to compel his timely release. The flight argument is probably the stronger of these issues since UK officials have offered assurances they do not intend to go forward with their own prosecution. Although case law suggests that the fact that prosecution is possible, even without a warrant or indication that prosecution is imminent, may be enough to prevent a defendant’s travel.

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[1] Technically there is an extradition treaty from 1901, but it is not being followed by the Croatian government who refused to allow convicted arms dealer Peter Walaschek  to be returned to the United States. http://www.thedailybeast.com/newsweek/blogs/declassified/2010/01/15/u-s-angered-as-allies-fumble-extraditions-of-alleged-iranian-agents.html

[2] He would need a Visa, but these are available upon entry at the airport with no prior authorization.