HomeMy WebLinkAbout07-25-2006 Legal Opinion on Various Records Management IssuesJ U L 2 6 2006
BROWN, GARGANESE, WEISS & UAGRESTA, P.11
Attorny o s at Law c
Debra S. Babb-Nutcher"
Joseph E. Blitch
Usher L. Brown'
Suzanne D'Agresta"
Anthony A. Garganese"
J.W. Taylor
Jeffrey S. Weiss
'Board Certified Civil Trial Lawyer
"Board Certified City, County & Local Government Law
Offices in Orlando, Kissimmee, Cocoa,
Ft. Lauderdale & Tampa
July 25, 2006
VIA U.S. MAIL and E-Mail
Andrea Lorenzo-Luaces, City Clerk
City of Winter Springs
1126 East State Road 434
Winter Springs, Florida 32708
Re: Legal Opinion on Various Records Management Issues
(City of Winter Springs 1193)
Dear Andrea:
Gail C. Bradford
Scott J. Dornstein
Mitchell B. Haller
Katherine W. Latorre
Amy J. Pitsch
Erin J. O'Leary
Catherine D. Reischmann
William E. Reischmann, Jr.
Of Counsel
This correspondence is provided in response to several questions you have posed
regarding the City's records management practices at they relate to Florida's public records
disclosure and retention laws. Preliminary, and as you know, Florida has a very broad policy with
regard to the disclosure of public records. Unless explicitly exempt from disclosure bylaw, all state,
county, and municipal records are open for personal inspection and copying by any person.
Further, providing access to public records is a duty of each agency. See § 119.01, Fla. Stat.
1. Drivers' License Information
You have asked whether the City may require drivers' license information on City application
forms. In sum, while certain, specified personal identifying information contained in a motor vehicle
record is expressly exempt from public disclosure by the Department of Highway Safety and Motor
Vehicles, there is no express provision prohibiting the City from requesting this information on
various City applications.
Florida law does not provide universal protection for information contained in an individual's
driver's license. As such, the City is free to request this information of applicants and as explained
below, may obtain such information from the Department of Highway Safety and Motor Vehicles
upon request, and as long as such request is in furtherance of a City function.
225 East Robinson Street, Suite 660 • P.O. Box 2873 •Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979
Website: www.oriandolaw.net • Email: firm@orlandolaw.net
Lorenzo-Luaces, A.
July 25, 2006
Page 2
Certain information is, however, exempt from disclosure as part of an individuals' motor
vehicle records. Section 119.0712(2), Florida Statutes, provides, with specified exceptions, that
personal information contained in a motor vehicle record that identifies the subject of that record
is exempt from public disclosure requirements. Personal information does not include information
relating to vehicular crashes, driving violations and driver's status. Id. The term "motor vehicle
record" is defined to mean any record that pertains to a motor vehicle operator's permits, motor
vehicle title, motor vehicle registration, or identification card issued by the Department of Highway
Safety and Motor Vehicles. Thus, the exemption applies only to personal information contained
in motor vehicle records of the Department and does not authorize another agency such as the City
to exempt such personal information from its records. See Fla. Op. Atty. Gen'I 2004-54 (finding
that Sheriff's office is not authorized to exempt such personal information from its records).
Despite the exemption, subsections (2)(a) through (o) of section 119.0721, Florida Statutes,
provide a list of circumstances under which personal identifying information contained in motor
vehicle records otherwise exempted shall be released by the Department. One of these
circumstances includes "use by any government agency ... in carrying out its functions." See
§119.0721(2)(b), Fla. Stat. Given this provision, should the City require certain identifying
information from an individual's motor vehicle record, it could obtain as much from the Department
of Highway Safety and Motor Vehicles upon request as long as such information is being used to
carry out City business.
2. Bank Checks Scanned into City's Laserfiche System
Your next question relates to scanning copies of bank checks into the City's Laserfiche
system. You have explained that the City has not been scanning any copies of bank checks in its
Laserfiche system, even if such check was part of an official agenda item.
There is no specific exemption provided by Florida law for an entire bank check. However,
section 119.071(5)(b), Florida Statutes, provides that "bank account numbers and debit, charge,
and credit card numbers held by an agency are exempt" from public disclosure. As you know, bank
checks commonly contain the account number of the account holder on the bottom of the check.
So, while the entire check should not be excluded from the public record, the account number is
exempt from public disclosure and should be redacted before such record is disclosed pursuant
to the public records request or scanned into the City's Laserfiche system. Similarly, the City
should redact any reference to debit, charge, and credit card numbers that may be included in
other public documents.
It is important to note that while Florida law provides that certain information is exempt from
public disclosure, the City should not permanently alter the original record. The exempt information
should be redacted only. See Fla. Op. Aft. Gen'I 2002-69 (finding that Florida's public records law
does not contemplate the permanent alteration or destruction of exempt information, but rather,
original records should be copied and exempt information redacted from that copy).
Given the state of the law, the City may continue to disclose bank checks as part of the
public record, unless otherwise explicitly exempt from disclosure. Further, any account number
information, as specified above, should be redacted prior to disclosure and prior to scanning such
document into the Laserfiche system.
Lorenzo-Luaces, A.
July 25, 2006
Page 3
3. Plans for Capital Improvement Projects
You have also asked what the state of the law is with regard to documents pertaining to
certain capital improvement projects and whether documents depicting expansion plans for certain
City buildings should be made accessible to the public.
Florida law explicitly exempts certain documents related to City building plans from public
disclosure. Specifically, section 119.071(3)(b), Florida Statutes, provides:
Building plans, blueprints, schematic drawings, and diagrams,
including draft, preliminary, and final formats, which depict the
internal layout and structural elements of a building, arena, stadium,
water treatment facility, or other structure owned or operated by an
agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State
Constitution. This exemption applies to building plans,
blueprints, schematic drawings, and diagrams, including draft,
preliminary, and final formats, which depict the internal layout
and structural elements of a building, arena, stadium, water
treatment facility, or other structure owned or operated by an
agency before, on, or after the effective date of this act.
(Bold emphasis added).
Given the statute's construction, all plans, as specified above, are exempt from disclosure,
no matter when the building was constructed. Please note also that the statute allows for this
information to be disclosed to another governmental entity if disclosure is necessary for the
receiving entity to perform its duties and responsibilities; to a licensed architect, engineer, or
contractor who is performing work on or related to the building, arena, stadium, water treatment
facility, or other structure owned or operated by an agency; or upon a showing of good cause
before a court of competent jurisdiction. In such a case, the entities or persons receiving such
information shall maintain the exempt status of the information.
Also note that this provision of law is subject to review by the Florida Legislature and if not
reviewed and reenacted by October 2, 2007, shall stand repealed. My office will keep you abreast
of any crucial developments to this area of the law, as we recognize the significant impact such
changes will have on the City and specifically on the City's Clerk's office.
4. Duplicate Records Disposition
With regard to records disposition guidelines, you have asked whether the City should be
doing dispositions for duplicate records as noted in the records management guidelines or whether
the City should throw away duplicate records.
The administrative rules set forth by the Division of Library and Information Services of the
Department of State ("the Division") define "duplicate (or convenience) records" as "reproductions
of record (master) copies, prepared simultaneously or separately, which are designated as not
being the official copy." See § 1 B-24.001(3)(j), F.A.C. "Record (master) copy" is defined as public
records specifically designated by the custodian as the official record. § 1 B-24.001(3)(i), F.A.C.
Lorenzo-Luaces, A.
July 25, 2006
Page 4
As such, all copies of a public record held by a records custodian that are not the record (master)
copy are duplicates.
The Division requires that the City document the disposition of all duplicate records.
Section 1 B-24.003(10), F.A.C., requires documentation of "each records disposition" and does not
provide an exception for duplicate or OSA (obsolete, superseded or administrative) records.
Therefore, disposition of all public records, including duplicate and OSA public records, and
including those being disposed of after being scanned or microfilmed, should be documented and
those quantities reported on your annual compliance statement.
This documentation requirement should not be confused with a now obsolete requirement
to get Department of State authorization to dispose of records. That pre-2001 requirement did
exclude OSA records in later years, so Department of State authorization would not have been
needed to dispose of such records. The requirement to get Department of State authorization for
disposition of records was eliminated when the new disposition documentation rule went into effect
in 2001.
It is important to document the disposal of duplicate and OSA public records because it may
protect the City in the event of litigation. For example, the City may be required to produce all
master and duplicate copies of particular public records. If, in this case, there is information
indicating that the City has or had duplicates, the City may be required to either produce the
duplicates or provide documentation showing that the pertinent documents were properly disposed
of in the normal course of City business.
5. Personal Identifying Information of City Personnel on Utility Billing System
The final question posed by your office is whether certain personal identifying information,
such as addresses and telephone numbers, of City personnel who are also residents of the City
should be redacted from the City's municipal utility bills. You explained that the only access to
individual utility bills is online, and that access is only granted through the use of an account
number and a customer identification number/password.
First, unless judicially determined otherwise, the home addresses, telephone numbers,
social security numbers, and photographs of the persons enumerated by section 119.07(4)(a)
through (d), Florida Statutes, are exempt from disclosure. However, if the information is only going
to be disclosed to the person whose information is being protected (i.e., the account holder is also
the protected City employee), common sense dictates that providing a person with his or her own
personal identifying information is not a public disclosure.
With that said, the City may still want to consider adopting the same method the Seminole
County Property Tax Appraiser has utilized, which displays a reference to the specific statutory
exemption in place of the name and address of the property owner considered protected personnel.
If this were implemented and if, per chance, the City's online utility billing system were infiltrated
by computer hackers, then those enumerated City employees' personal identifying information
would be protected from disclosure. Given the system's requirement for a password and customer
account number however, I am not of the opinion that the information is absolutely required to be
redacted in this case.
Please note that the personal identifying information of certain personnel enumerated in
section 119.07(4), Florida Statutes, while automatically exempt from disclosure for City employees,
Lorenzo-Luaces, A.
July 25, 2006
Page 5
is not automatically exempt if the City is not the individual's employer. Protected personnel not
employed by the City are required to request the exemption from the City in writing. See §
119.071(4)(d)7., Fla. Stat. So, while a City firefighter's personal identifying information is
automatically exempt from disclosure, a state attorney, judge, or other protected personnel not
employed by the City would have to make a specific request in writing to have their personal
identifying information protected from public disclosure in any City documents otherwise considered
public records.
While redaction of personal identifying information may not be absolutely required with
regard to its use in the City's utility billing system, it cannot hurt to implement some sort of
"safeguard" from this personal information being disclosed, whether by malicious computer
hackers, or inadvertently. I would encourage your office, however, to confer with the City's
Information Services Department regarding the technical safeguards that are in place in order to
prevent hacking into the utility billing system.
Please contact my office should you desire to discuss any of these issues further.
Very Truly Yours,
Kate Latorre
Assistant City Attorney