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HomeMy WebLinkAbout01-22-2007 Records Management / Legal Concerns?Page 1 of 5 Andrea Lorenzo-luaces From: Kate Latorre [klatorre@orlandolaw.net] Sent: Monday, January 22, 2007 1:30 PM To: Andrea Lorenzo-luaces Subject: RE: Records Management/Legal Concerns? Andrea: Pertaining to part 3 in my July 25, 2006 legal opinion, you have asked whether certain building plans which contain security information may be exempt from disclosure as part of the public record. Under the statute cited in part 3 of my opinion, section 119.071(3)(b), Florida Statutes, there is only and exemption for building plans, blue prints etc. etc. of buildings owned or operated by an agency. However, building plans, blue prints, schematic drawings, and diagrams of several other kinds of buildings are exempt under section 119.071(3)(c), Florida Statutes, when such documents are held by an agency. The exemption applies to "entertainment or resort complexes," "industrial complexes," "retail and service developments," "office developments" and "hotel or motel developments" as those terms are defined in the statute. The exemption is set forth in total here: (c) Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout or structural elements of an attractions and recreation facility, entertainment or resort complex, industrial complex, retail and service development, office development, or hotel or motel development, which documents are held by an agency are exempt from s. 1.1.9.07(1) and s. 24(a), Art. I of the State Constitution. This exemption applies to any such documents held by an agency before, on, or after the effective date of this act. Information made exempt by this paragraph may be disclosed to another governmental entity if disclosure is necessary for the receiving entity to perform its duties and responsibilities; to the owner or owners of the structure in question or the owner's legal representative; or upon a showing of good cause before a court of competent jurisdiction. As used in this paragraph, the term: 1. "Attractions and recreation facility" means any sports, entertainment, amusement, or recreation facility, including, but not limited to, a sports arena, stadium, racetrack, tourist attraction, amusement park, or park mutuel facility that: a. For single -performance facilities: (1) Provides single -performance facilities; or (II) Provides more than 10,000 permanent seats for spectators b. For serial -performance facilities: Provides parking spaces for more than 1,000 motor vehicles; or Provides more than 4,000 permanent seats for spectators. 2. "Entertainment or resort complex" means a theme park comprised of at least 25 acres of land with permanent exhibitions and a variety of recreational activities, which has at least 1 million visitors annually who pay admission fees thereto, together with any lodging, dining, and recreational facilities located adjacent to, contiguous to, or in close proximity to the theme park, as long as the owners or operators of the theme park, or a parent or related company or subsidiary thereof, has an equity interest in the lodging, dining, or recreational facilities or is in privity therewith. Close proximity includes an area within a 5-mile radius of the theme park complex. 3. "Industrial complex" means any industrial, manufacturing, processing, distribution, warehousing, or 1 /22/2007 Page 2 of 5 wholesale facility or plant, as well as accessory uses and structures, under common ownership which: a. Provides onsite parking for more than 250 motor vehicles; b. Encompasses 500,000 square feet or more of gross floor area; or c. Occupies a site of 100 acres or more, but excluding wholesale facilities or plants that primarily serve or deal onsite with the general public. 4. "Retail and service development" means any retail, service, or wholesale business establishment or group of establishments which deals primarily with the general public onsite and is operated under one common property ownership, development plan, or management that: a. Encompasses more than 400,000 square feet of gross floor area; or b. Provides parking spaces for more than 2,500 motor vehicles. 5. "Office development" means any office building or park operated under common ownership, development plan, or management that encompasses 300,000 or more square feet of gross floor area. 6. "Hotel or motel development" means any hotel or motel development that accommodates 350 or more units. This exemption does not apply to comprehensive plans or site plans, or amendments thereto, which are submitted for approval or which have been approved under local land development regulations, local zoning regulations, or development -of -regional -impact review. This public records exemption was put into place shortly after 9/11 in response to possible terror threats on facilities with the capability of housing large numbers of people. Please note the final paragraph which specifies that this section does not exempt site plans submitted for approval. Given the wording and limitations of this exemption, it's unlikely that building plans for the Colonial Bank would be exempt from disclosure. Because the plans are a part of the City's records, the public may access the building plans. Section 119.071(3)(a), Florida Statutes, might provide an exemption related to the actual security system records. That exemption provides as follows: (a)1. As used in this paragraph, the term "security system plan" includes all: a. Records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to the physical security of the facility or revealing security systems; b. Threat assessments conducted by any agency or any private entity; c. Threat response plans; d. Emergency evacuation plans; e. Sheltering arrangements; or f. Manuals for security personnel, emergency equipment, or security training. 2. A security system plan or portion thereof for: a. Any property owned by or leased to the state or any of its political subdivisions; or 1 /22/2007 Page 3 of 5 b. Any privately owned or leased property held by an agency is confidential and exempt from s. 1,1907(1) and s. 24(a), Art. I of the State Constitution. This exemption is remedial in nature, and it is the intent of the Legislature that this exemption apply to security system plans held by an agency before, on, or after the effective date of this paragraph. 3. Information made confidential and exempt by this paragraph may be disclosed by the custodian of public records to: a. The property owner or leaseholder; or b. Another state or federal agency to prevent, detect, guard against, respond to, investigate, or manage the consequences of any attempted or actual act of terrorism, or to prosecute those persons who are responsible for such attempts or acts. Notice that this exemption applies to security system plans for both private and public properties. Under this exemption, a security system plan for the Colonial Bank may be exempt as long as it satisfies the definition set forth above. Regarding your next question, part 4 of my legal opinion provided that the City document the disposition of all duplicate records and that the Florida Administrative Code did not provide an exception for duplicate or OSA records. It looks as if the State Department of Library Services has changed its policy since my July 2006 opinion letter was written. While I can't find an exact explanation as to why, I remember pulling the information in my opinion letter from the same website you cite below which now provides that disposition of OSA records is no longer necessary. The major overhaul to the records disposition guidelines likely included this change in policy. As it is the most current direction with regard to OSA records, it supercedes my legal opinion on that point and should be the policy of the City. As to your last question regarding personal identifying information being available through the City's online utility billing system --you have indicated that an email from Anthony may conflict with my opinion letter. I have pulled Anthony's email that you're referring to from our file and as far as I can tell, my opinion was consistent with his on this point. If you find otherwise, please bring the details to my attention so it can be addressed. After all, we want to make sure you have accurate, consistent legal advice and information. I hope you find this email responsive to your questions. I am always happy to provide further follow up information if needed. Thanks, Kate Latorre, Esq. 225 East Robinson Street, Suite 660 P.O. Box 2873 Orlando, Florida 32802-2873 Phone (407) 425-9566 Fax (407) 425-9596 Kissimmee (321) 402-0144 Cocoa (866) 425-9566 Website: www.orlandolaw.net Email: klatorre .orlandolaw.net Any incoming e-mail reply to this communication will be electronically filtered 1 /22/2007 Page 4 of 5 for "spam" and/or "viruses." That filtering process may result in such reply being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we may not receive your reply and/or we may not receive it in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time -sensitive by means other than e-mail. Confidentiality Note: This e-mail, and any attachment to it, contains privileged and confidential information intended only for the use of the individual(s) or entity named on the e-mail. If the reader of this e-mail is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that reading it is strictly prohibited. If you have received this e-mail in error, please immediately return it to the sender and delete it from your system. Thank you. From: Andrea Lorenzo-luaces [mailto:aluaces@winterspringsfl.org] Sent: Sunday, December 03, 2006 8:58 PM To: Kate Latorre Subject: FW: Records Management/Legal Concerns? Kate, In your attached Opinion Letter, I don't have any questions related to your 1. or 2. in your attached Opinion Letter; however, somewhat related to 3., 1 would be interested in getting information related to building plans that we might have in house, say for the new Colonial Bank building on SR 434 or other such buildings. What if someone wanted to review the plans, and because there are some kind of security concerns with that, is there a way we can legally safeguard such Plans or do they have to be turned over to a requestor for copying/inspection. Regarding 4., in your attached Opinion which has been very helpful, I was just informed that the State of Florida has now changed this rule and now OSA type documents do not need to be documented, and can simply be thrown out. If that is the case, we would need to change our day-to-day procedures, although if this is the case, a number of people here won't be too unhappy with this new ruling. This is what I was sent: No need to "document" destruction of copies. The Bureau of Archives and Records Management is no longer asking for destruction documentation for OSA duplicates. I spoke with them today and here is the paragraph I was directed to at http://dIis.dos.state.fl.us/recordsmqmt/scheduIing.cfm Agencies are not required to document the disposition of records with a retention of "retain until obsolete, superseded or administrative value is lost" (OSA) except for records that have been microfilmed or scanned in accordance with Rule 1 B-26, F.A.C., where the microfilm or electronic version will serve as the record copy. One last point, on 5., specifically the third paragraph, it was brought to my attention that Michelle Greco and Joanne Dalka had received an email from Anthony which possibly contradicted this (third) paragraph. Could you please look into that? Thanks again for any assistance you could provide us. Andrea 1 /22/2007 Page 5 of 5 Andrea Lorenzo-Luaces, CMC City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Telephone: (407) 327-5955 Facsimile: (407) 327-4753 email: aluaces@winterspringsfl org Florida Association of City Clerks Central East Director 1 /22/2007