HomeMy WebLinkAbout2013 04 08 Regular 600 Resolution 2013-07 City's Public Records PolicyCOMMISSION AGENDA
ITEM 600
Apri108, 2013
Regular Meeting
Informational
Consent
Public Hearings
Regular X
KS
City Manager Department
REQUEST:
The City Attorney, City Manager and City Clerk request that the City Commission approve
Resolution 2013 -07 updating the City's public records policy.
SYNOPSIS:
The City Commission last updated the City's Public Records Policy regarding handling
records requests in 2007. While the 2007 updated policy has served the City well, the City
Manager, City Attorney and City Clerk are recommending several revisions to the policy to
address changes in technology; to wit, the common usage of personal mobile devices. In
addition, after considering past practices at the City, they are recommending a more
decentralized approach to fulfilling requests for inspection and /or copying of records that
are not made on a city -wide basis. These non - city -wide requests can be fulfilled more
expeditiously and routinely by the City department, official, or employee primarily
responsible for the record.
CONSIDERATIONS:
1. The City Commission adopted Resolution 2007 -25 amending the City's Public
Records Policy (the 2007 Policy).
2. Since 2007, the use of personal mobile devices for communication purposes
(including emails, texting, electronic voice mail, etc.) have become more prevalent in
society and are frequently used to conduct government and business. These devices are
typically managed on an individual basis.
3. To address these communication changes, some local governments including Orange
Regular 600 PAGE 1 OF 3 - April 08, 2013
County have recently begun adopting more specific policies regarding not only the use of
personal communication devices, but on how to handle public records created by such
devices.
4. Because of the enormous practical challenges in attempting to centrally manage
public records generated from and received on personal communication devices and
personal computers (including tablets), the proposed Resolution 2013 -07 adopts a more
decentralized approach to managing public records by stating that each official and
employee will be the custodian of his or her own public records including any public
records created or received on the official's or employee's personal mobile device or other
personal property, such as a computer.
5. In addition, with several exceptions, the 2007 Policy currently designates the City
Clerk the supervisor of all public records of the City. Requests for inspecting and /or
copying records are currently predominantly handled and logged by the City Clerk's
office. At times, this creates a significant burden on the Clerk's Office because many
records are stored at various places by each department and many records are not familiar
to the City Clerk's office because they do not involve the Clerk's routine duties.
6. The proposed Resolution 2013 -07 modifies this centralized approach and
decentralizes the records management responsibilities on a department and individual
official/ employee basis because the departments and individual officials /employees tend to
be better situated than the City Clerk in maintaining and producing for public inspection
and /or copying their own public records, including those on personal communication
devices.
7. If Resolution 2013 -07 is adopted, the City Clerk shall remain custodian of her
department's records, the records of the Mayor and City Commission as a governing body,
and certain vital records required by law such as ordinances, resolutions, board minutes,
City land records and deeds, etc. The Clerk's Office will also assist in coordinating city-
wide public record requests made to her office or as directed by the City Manager.
8. The primary intent and purpose of the proposed policy is to (1) address changes in
technology (personal communication devices); (2) streamline the ability of the City to
expeditiously produce for public inspection and /or copying public records upon request
and (3) spread the work load for complying with the public records law to the various
departments, officials, and employees that are better situated to respond to public records
requests made involving their respective official City duties than the City Clerk's office.
9. The proposed policy also addresses the transitory nature of many electronic
communications and the requirement to only maintain these communications until
obsolete, superseded, or the administrative value is lost. In addition, several technical
amendments are being proposed including addressing public record requests related to
litigation and adverserial matters.
FISCAL IMPACT:
None.
Regular 600 PAGE 2 OF 3 - April 08, 2013
COMMUNICATION EFFORTS:
This Agenda Item has been electronically forwarded to the Mayor and City Commission,
City Manager, City Attorney /Staff, and is available on the City's Website, LaserFiche, and
the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the
respective Meeting Agenda which has also been electronically forwarded to the individuals
noted above, and which is also available on the City's Website, LaserFiche, and the City's
Server; has been sent to applicable City Staff, Media/Press Representatives who have
requested Agendas /Agenda Item information, Homeowner's Associations/Representatives
on file with the City, and all individuals who have requested such information. This
information has also been posted outside City Hall, posted inside City Hall with additional
copies available for the General Public, and posted at five (5) different locations around the
City. Furthermore, this information is also available to any individual requestors. City Staff
is always willing to discuss this Agenda Item or any Agenda Item with any interested
individuals.
RECOMMENDATION:
The City Attorney, City Manager, and City Clerk recommend approval of Resolution 2013-
07.
ATTACHMENTS:
1. Resolution 2013 -07
Regular 600 PAGE 3 OF 3 - April 08, 2013
Attachment 1
RESOLUTION NO. 2013 -07
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, FLORIDA, AMENDING
RESOLUTION 2007 -25 TO ADOPT A REVISED PUBLIC
RECORDS POLICY OF THE CITY OF WINTER SPRINGS,
FLORIDA; PROVIDING FOR REPEAL OF PRIOR
INCONSISTENT RESOLUTIONS; SEVERABILITY AND AN
EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Winter Springs adopted Resolution 2007-
25 establishing an amended "Public Records Policy of the City of Winter Springs, Florida" ( "the
Policy "); and
WHEREAS, the City Manager and the Office of the City Clerk desire to update the City's
Policy to further streamline the handling requests to inspect and /or copying public records and to
address changes in technology specifically the use of personal mobile devices and more advanced
digital phone systems; and
WHEREAS, the City Commission deems it is in the best interests of public health, safety,
and welfare of the citizens of Winter Springs to adopt a revised public records policy to provide the
public with access to public records while at the same time safeguarding the public records and
insuring the orderly function of the City of Winter Springs, Florida.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF WINTER SPRINGS, SEMINOLE COUNTY, FLORIDA, AS FOLLOWS:
Section 1 . Recitals. The foregoing recitals are deemed true and correct and are hereby fully
incorporated herein by this reference.
Section 2. Amend Resolution 2007 -02. The City Commission of the City of Winter Springs
hereby amends Resolution 2007 -02 as follows (st ikeon type denotes deletions and underlined type
denotes additions):
Public Records Policy of the City of Winter Springs, Florida.
A) SHORT TITLE This resolution and any amendments or modifications thereto
shall be known and cited as "the Public Records Policy of the City of Winter Springs, Florida."
B) APPLICATION This policy shall uniformly apply to all requests for public
records made to the City and its departments and personnel.
City of Winter Springs
Resolution No. 2013 -07
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C) PURPOSE The purpose of this policy is to comply with the public records law of
the State of Florida and to set forth policy and procedures for providing public accessibility to public
records while at the same time safeguarding the public records from alteration, damage, theft, or
destruction.
D) POLICY It is the policy of the City of Winter Springs that all public records,
except those exempted by law, shall at all times be open for personal inspection, examination, or
copying by any person in accordance with Chapter 119, Florida Statutes, and the public records
policy of the City of Winter Springs. The City will endeavor to produce all public records requested
regardless of the number of documents involved or possible inconvenience to the City. A request
for public records may be made verbally or in writing.
E) DEFINITIONS The following words used herein shall have the meaning
ascribed below:
1. "Actual Cost of Duplication" means the cost of the material and supplies used to
duplicate the public record, but does not include the labor cost or overhead cost associated with such
duplication.
2. "Custodian" means any person who has supervision and control over a public record
or legal responsibility for its care, keeping or guardianship including, but not limited to, the City
Clerk and the department custodian required herein. Each official and employee is the custodian of
his or her own public records including any public records created or existing on the official's or
employee's personal mobile device or other personal property, such as a computer.
3. "Public Records" means 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
ordinance or in connection with the transaction of official business by the City of Winter Springs.
The term "public record" is not limited to traditional written documents.
F) GENERAL GUIDELINES
1. All Custodians shall permit the inspection and examination of public records by any
person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision
of the Custodian of the public record or the Custodian's designee. The identity of the Custodian's
designee shall be disclosed to the person requesting to inspect or copy public records. All
Custodians or their designees shall acknowledge requests to inspect or copy records promptly and
respond to such requests in good faith. A good faith response includes making reasonable efforts
to determine from other officers or employees whether such a record exists and, if so, the location
at which the record can be inspected.
City of Winter Springs
Resolution No. 2013 -07
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(a) Reasonable Time. An automatic delay in producing public records shall not
be imposed before allowing access to public records. However, the Custodian shall be allowed a
reasonable time to retrieve the public records and delete those portions of the record the Custodian
asserts are exempt from public records disclosure. If satisfying the request immediately would
unduly interfere with conducting official City business or the operation of the department, however,
the Custodian will arrange to the extent agreeable with the requestor, a mutually satisfactory time
for fulfilling the request. If a mutually acceptable time is not agreeable, the Custodian shall fulfill
the request as soon as possible in accordance with this Policy. This will vary according to the
circumstances of the request for public records including, but not limited to, the number of records
requested and reviewed, the number of years of public records requested and reviewed, the
department's filing system, storage of records, timely receipt of a deposit for estimated copy charges
and actual cost of duplication, and any other factor affecting the retrieval and copying of public
records. Upon request by an individual or as deemed appropriate by the Custodian, a written receipt
may be provided which will acknowledge the public records request, the date and time of such
request, and the approximate date and time the individual can pick up the public records requested.
(b) Reasonable Conditions. The Custodian shall neither prohibit the inspection
and copying of public records nor create burdensome constraints designed to preclude such
inspection and copying. Notwithstanding, the Custodian shall, as circumstances dictate, take
appropriate and reasonable steps that would permit the Custodian to protect public records from
alteration, damage, theft or destruction.
2. Custodians should be familiar with the following requirements of the Florida Public
Records law when a public records request is made to inspect or copy a record and the Custodian
should advise the public of the same when appropriate:
(a) Individuals are not required to identify themselves or make the request in
person, in writing or any other particular format, nor give a reason for such request;
(b) Individuals may not be denied access to public records due to the lack of
specifics of the record they wish to inspect or copy;
(c) eompaterizc Public records on computers, personal mobile devices, or other
communication devices are governed by the same rule as written documents and other public
records. Information stored on a computer personal mobile device, or other communication device
are is as much a public record as a written page or a tabulation in a file stored in a file cabinet.
(d) Custodians are not required to verbally give out information contained in a
public record. The Custodian's obligation is to provide access to, or copies of, the public records
being requested.
(e) Custodians are not required to produce records in a particular form or format
City of Winter Springs
Resolution No. 2013 -07
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as demanded by the requestor, nor tailored to the requestor's specific needs. If a particular form or
format of a public record does not exist because it is not ordinarily created, filed, produced,
maintained, or used in that form by the City, a Custodian is not required, upon request, to create that
public record in such form or format.
(f) If any attorney requests to inspect or copy public records regarding a pending
lawsuit which the City is a party, the City Attorney shall be promptly contacted and advised of the
request. The City Attorney will determitic help coordinate the City's response to the request to the
extent deemed necessary by the City Attorney In situations involving potential or actual litigation,
administrative proceedings, or any form of actual dispute involving the City or its officials or
employees, the City Attorney's office shall be notified and at the discretion of the City Attorney,
either act as a liaison and /or provide guidance to the Custodian for purposes of coordinating the
public records production, examination, or inspection with the opposing counsel or the adverse party
and the Custodian.
(g) A special service charge or fee may not be imposed for the mere inspection
and examination of public records by the general public unless the nature or volume of the public
records to be inspected is such as to require extensive use of information technology resources or
extensive clerical or supervisory assistance. As set forth in section J of this public records policy,
a special service charge or fee shall be required when extensive use of information technology
resources or extensive clerical or supervisory assistance is required to locate, review for confidential
information, copy and re -file requested public records.
(h) Custodians should advise those individuals requesting copies ofpublic records
that may be copyrighted that copying such records may be subject to federal copyright laws and
penalties.
3. If a public records request is insufficient to identify the records sought, the Custodian shall
promptly notify the requestor that more information is needed in order to produce the records.
G) DESIGNATED CUSTODIANS
1. Each official and employee is the Custodian of his or her own public records, including
but not limited to, any public records created or existing on his or her computer, personal mobile
device, and any other communication device. As such, each official and employee is responsible for
maintaining his or her own public records and complying with the Public Records laws. To that
extent, each official and employee shall have full authority to manage and coordinate the inspection
and /or copying of public records requested consistent with this Policy. If the official or employee
is not available or is no longer employed by the City, the department director shall be responsible
for ensuring that the request to inspect and /or copy public records is handled in a timely fashion.
+2. The City Clerk is hereby designated the
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Resolution No. 2013 -07
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Winter Springs. To that extent, the eity elerk shall ha-re fid! authority to manage and Coordin
the inspection and copying of public records requested by the getteral public consistent vVith this
Policy. The eity elerk shall be the Custodian of public records generated and received by the Mayor
and City Commission as a governing body, and insofar as practicable, the Custodian of vital,
permanent, or archival records of the City and records generated and received by the Mayor and City
Commissioners in their respective official capacities. The City Clerk shall also assist in coordinating
city -wide public records that are either made directly through the City Clerk's office or as directed
by the City Manager.
-2 The City Manager and each department director of the City is hereby designate
eastodia; of public records shall be responsible for appropriate handling of all public records
requested from far their respective office or departments and the City Manager and each director may
designate an assistant within their office or department for purposes of implementing this Policy.
flic eastodian vv ill be responsible for handling, in coorditiation vv ith, and at the direction of, ttic eity
elerk, requests for public records vvifich are relev ant to the department, vvitether the request is made
H) PROCEDURE
1. All requests to inspect and copy public records shall be managed and handled by the
Custodian in accordance with this public records policy. To the extent deemed necessary, the
Custodian may create and maintain a public record's log for noting requests
made for public records, the date and time of the request, the information requested, the date and
time the request was completed, fees and special service charges (if any), and any other information
deemed pertinent by the City Custodian to efficiently manage public records requests.
-2. Shoald any person reqrTest public records directly from any department (other thati
eity elerk and the Police and fire i3epartments), the department's eastodian shall promptly notify
the department's eastodian, and any other d . I hich may have a public record being
requested, the retriev a! an&or copying of the public records. —The eity elerk and the department's
Custodian will ensure that the inspection and copying of the public records request has been
completed and delivered to the requestor.
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Resolution No. 2013 -07
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City of Winter Springs
Resolution No. 2013 -07
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- 53. Should the City Clerk receive a city -wide request for public records either directly or at
the direction of the City Manager, and said records vv hich are not on file with the City Clerk, the City
Clerk shall forward said request to the affected department official or employee and the
department's Custodian, official or employee shall be responsible for retrieving and /or copying the
public records and forwarding them to the City Clerk in accordance with this public records policy.
6 To the extent feasible and in order to avoid disrupting the day -to -day operations of City
business, the City Manager shall establish a designated area or areas at City Hall, the Police
Department and Fire Station 24, for the purpose of safeguarding public records from alteration,
damage, theft, or destruction and allowing the general public the opportunity to inspect public
records.
- 7 5 . Should any person making a request for public records from any department official or
employee of the City feel that the department official or employee has restricted or circumvented
their right to inspect and /or copy p ublic records, said person shall make their request to the City
£irk Manager for resolution.
$ The Mayor /City Commission, City Manager, and City Attorney will be advised
immediately of any formal citizen or news media complaints and lawsuits filed against the City
regarding access to public records.
I)
EXEMPT AND CONFIDENTIAL RECORDS
1. Florida law provides that some public records are confidential and exempt
from public records disclosure. It is the policy of the City of Winter Springs that exempt and
confidential public records shall not be disclosed to the public. All Custodians shall take reasonable
steps to ensure that exempt and confidential records are not improperly released to the public.
2. The City of Winter Springs "Request for Confidentiality" form shall be made
available to individuals seeking to make confidential those public records of the City which contain
certain personal identifying information which is exempt from disclosure pursuant to Chapter 119,
Florida Statutes. City employees shall complete said "Request for Confidentiality" form annually
to assist the City in meeting its statutory obligation to keep the personal identifying information of
its employees confidential and exempt from disclosure where provided by law. Completed "Request
for Confidentiality" forms shall be notarized and submitted to the Office of the City Clerk for
processing.
3. Any Custodian who has a question regarding whether a certain public record,
or portion thereof, is exempt or confidential should address the matter with their department director.
If the department director can not determine whether the public record is exempt or confidential, the
City of Winter Springs
Resolution No. 2013 -07
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City Clerk should be contacted to address the matter. If the City Clerk can not make such a
determination, the City Attorney shall be contacted to determine whether a public record should be
declared by the City to be exempt from public records disclosure or confidential. A record referred
to the City Attorney for review shall not be made public until the City Attorney has made a final
determination of the legal questions presented. The City Attorney shall review all public records
requests which present a legal question as to whether a record contains information which is
confidential or exempt.
4. If the Custodian asserts that a record, or part of a record, is exempt from
public records disclosure, the Custodian shall deny the public records request and state to the
requestor the basis of the exemption which the Custodian believes is applicable to the record,
including the statutory citation to the exemption. Additionally, upon request by the requestor, the
Custodian shall state in writing and with particularity the reasons for asserting the exemption and
denying the public records request.
5. If the Custodian asserts that only a portion of a record is exempt or
confidential, the Custodian shall delete or redact the exempt or confidential portion of the record and
produce the remainder of the record which is not exempt or confidential. A Custodian may comply
with this subsection by using any reasonable method which maintains and does not destroy the
exempted portion while allowing public inspection of the nonexempt portion.
6. Any public record related to a federal agency which contains information that
is suspected of being confidential, and said record is deemed public and open for inspection and
copying by Florida law, should be examined to determine whether a federal statute (i.e. The Freedom
of Information Act, U. S. C. Section 552) requires the particular information to be exempt from public
disclosure.
J) VOICE MAIL AND PERSONAL MOBILE DEVICES /COMPUTERS
1. Voice mail messages are intended to be brief, transitory messages instead of
non - transitory messages, and therefore transitory voice mail messages need to be retained by a City
employee or official only until obsolete, superceded, or the administrative value is lost. Land -line
voice mail messages on the City's phone system are not required to be retained for longer than ten
(10) days. In the event an employee or official receives a non - transitory voice mail message or a
transitory voice mail message on his /her mobile device or land -line that will not be obsolete within
ten (10) days, the recipient shall be responsible for retaining the content in accordance with the
Public Records Law.
2. City business transacted on a personal mobile device or computer may be
subject to disclosure under the Public Records laws. Furthermore, transacting City business on a
personal mobile device or computer may result in a request to inspect the personal mobile
device /computer or its contents, thereby placing in jeopardy the privacy of communications that do
City of Winter Springs
Resolution No. 2013 -07
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not meet the definition of a "public record" under the Public Record Law. If an employee /official
decides to use his /her personal mobile device or computer to transact City business, it shall be the
employee's /official's responsibility to take all appropriate steps at his or her own cost and discretion
to ensure that any public record generated on such device or computer is retained consistent with the
Public Record Law so that, if necessary, the public record may be produced for inspection and /or
copying upon request. However, nothing in this subparagraph shall be construed or interpreted to
mean that an employee /official who uses a personal mobile device or computer to conduct City
business forfeits any individual rights to protect against or prevent the disclosure of communications
that the employee /official believes do not meet the definition of a "public record."
-JK) FEES
as follows:
Any person requesting copies ofpublic records shall be charged a copying fee,
(a) Fee for Duplication of Public Records:
14 "x8 -1/2" or less - one sided $0.15
14 "x8 -1/2" or less - two sided $0.20
11 "x17" $0.25
14 -7/8 "x11" (greenbar, computer) $0.25
All other printed copies Actual cost of duplication
Tapes /Disks Actual cost of duplication
(b) Certified copy:
In addition to the actual cost of duplication, a $1.00 fee shall be charged for each
certified copy of a public record.
(c) Fee for Extensive Clerical or Supervisory Assistance:
If the nature or volume of public records requested to be inspected, examined, or
copied is such as to require extensive use of information technology resources or extensive clerical
or supervisory assistance by personnel of the department, City Clerk, or City Attorney involved, in
addition to the actual cost of duplication, a special service charge may be imposed. The actual
charge shall be reasonable and based upon the labor costs actually incurred or attributable to the City
for the clerical and supervisory assistance required of such personnel providing the service.
The amount to be charged shall reflect the actual hourly rate of the individual
providing the service. In keeping with the City of Winter Springs' commitment to provide open
access to public records, there will be no special service charge for requests requiring thirty (30)
minutes or less in actual labor. However, when a person requests public records which require more
City of Winter Springs
Resolution No. 2013 -07
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than thirty minutes in actual service to locate, review for confidential information, copy and re -file
requested public records, the person will be charged for all time expended above thirty minutes.
Based upon the length of time estimated to provide the service and the cost of copying, a reasonable
deposit may be collected prior to the cost actually being incurred. Monies collected exceeding the
actual cost of assistance and copying shall be returned to the person requesting the public records.
2. Nothing herein shall prohibit the City from providing free copies of public records
to the news media, government agencies, and public service charitable groups for purposes of
disseminating information to the public, such as, copies of City newsletters, City Commission and
other City board agendas, and press releases.
KL) DESTRUCTION OF PUBLIC RECORDS
Pursuant to the requirements of section 119.041, Florida Statutes, the Eity Custodian,
in coordination with the City Clerk to the extent necessary, shall systematically dispose of public
records no longer needed by the City, in accordance with the records and information management
program of the State Library & Archives of Florida of the Department of State.
f:M) RELATIONSHIP TO FLORIDA AND FEDERAL PUBLIC RECORDS LAWS
Nothing herein is intended in any way to conflict with or abrogate chapter 119, Florida
Statutes, or any other applicable Florida or federal laws. In the event of any conflict between this
Policy and any Florida or federal law, the conflicting provision of the Florida or federal law shall
prevail and apply.
Section 4 . Repeal of Prior Inconsistent Resolutions. All resolutions or parts of resolutions
in conflict herewith are hereby repealed to the extent of the conflict.
Section 5 . Severability. If any section, subsection, sentence, clause, phrase, word, or portion
of this resolution is for any reason held invalid or unconstitutional by any court of competent
jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such
holding shall not affect the validity of the remaining portion hereto.
Section 6 . Effective date. This Resolution shall become effective immediately upon adoption
by the City Commission of the City of Winter Springs, Florida.
[Adoption Page Follows]
City of Winter Springs
Resolution No. 2013 -07
Page 9 of 10
DONE AND ADOPTED in regular session of the City Commission of the City of Winter Springs,
Florida, this day of April, 2013.
CHARLES LACEY, Mayor
ATTEST:
ANDREA LORENZO- LUACES, City Clerk
Approved as to legal form and sufficiency for
the City of Winter Springs only:
ANTHONY A. GARGANESE, City Attorney
City of Winter Springs
Resolution No. 2013 -07
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