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HomeMy WebLinkAbout06-05-2008 Public Records Exemption Applicable to City StaffBROWN, GARGANESE, WEISS & D'AGRESTA, P.A. Debra S. Babb-Nutcher° Joseph E. Blitch Usher L. Brown' Suzanne D'Agresta° Anthony A. Garganese° William E. Reischmann, Jr. J.W. Taylor Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer 'Board Certified City, County 8 Local Government Law Board Certified Appellate Practice .Actor n ys at Lain Offices in Orlando, Kissimmee, Cocoa, Tara L. Barrett Ft. Lauderdale & Tampa Vivian P. Cocotas Scott J. Dornstein Robin Gibson Drage Christopher H. Hunt Katherine W. Latorre Terri E. Oster Amy J. Pitsch June 5, 2008 Via Email: Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 E. State Road 434 Winter Springs, FL 32708 Re: Public Records Exemptions Applicable to City Staff Dear Andrea: Erin J. O'Leary' Catherine D. Reischmann Of Counsel I am providing this legal opinion in response to various emails I have received over the course of several weeks from you and your staff which seek legal opinions regarding whether certain city employees may enjoy the benefit of having their personal identifying information exempt from public records disclosure under exemptions to Florida's Public Records Law. I have reviewed your inquiries and the job descriptions you have provided for the employment positions in question and opine as follows: General Services Director When I have discussed this issue in the past with the current General Services Director, Kevin Smith, we have talked specifically about the following public records exemption contained in section 119.071(4)(d)2, Florida Statutes: The home addresses, telephone numbers, and photographs of current or former human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district whose duties 111 N. Orange Ave, Suite 2000 • 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.orlandolaw.net • Email: firm@orlandolaw.net include hiring and firing employees, labor contract negotiation, administration, or other personnel -related duties; the names, home addresses, telephone numbers, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.070) and s. 24(a), Art. I of the State Constitution. It is my understanding that while Mr. Smith may not be referred to as a "human resource director," "labor relations director," "employee relations director," or assistant director, manager etc., he nevertheless still functions in a similar professional capacity. Further, Mr. Smith has explained that his day-to-day job duties entail hiring and firing of employees, labor contract negotiation, administration and other personnel -related duties. These are the functions of employment that likely led the Legislature to provide for this exemption; however, the legislative history relevant to the enactment of this exemption did not provide any guidance. In my opinion, the job functions actually conducted by Mr. Smith would fall under the above - cited exemption; however, given that lack of specificity in the job description, the City would likely be hard-pressed to justify such an exemption in the event of a challenge. In construing the Public Records Law, the courts have held that while the Law is to be liberally construed in favor of open government, exemptions from disclosure are to be narrowly construed. See e.g. Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987). This essentially means that if there's any ambiguity regarding whether certain information is exempt from disclosure under the Public Records Law, it should be resolved in favor of disclosure. Further, the City's job description for the General Services Director does not help the City to justify an exemption for Mr. Smith. The job functions listed do not specifically address anything regarding labor contract negotiation and only briefly mention that the General Services Director is responsible for developing and monitoring human resources administrative policies. Thus, to remedy this issue, I would advise that, at a minimum, the job description for General Services Director be modified to include more specific functions served by the position. Finance Director; Revenue Officers; Utility Billing Staff The Public Records Law provides the following exemption for local government personnel responsible for the collection of revenue in section 119.071(4)(d)1, Florida Statutes, as follows: The home addresses, telephone numbers, social security numbers, and photographs of active or former ... personnel of the Department of Revenue or local governments whose responsibilities include revenue collection and enforcement or child support enforcement; the home addresses, telephone numbers, social security numbers, photographs, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care 111 N. Orange Ave, Suite 2000 • 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 facilities attended by the children of such personnel are exempt from S. 119.070) and s. 24(a), Art. I of the State Constitution. In AGO 96-57, the Attorney General opined that this particular exemption only applied to those individuals who had both revenue collection and revenue enforcement responsibilities. Thus, a customer service representative or utility billing specialist who simply collects revenue and does not exercise any enforcement authority would not be qualified to receive the benefit of this exemption. Under these circumstances, the City's Finance Director should determine which employees, if any, have both collection and enforcement responsibilities. Only those particular individuals qualify for the exemption. (Enforcement responsibilities in this instance likely include determination of whose utility services will be terminated for failure to remit timely payment; determinations to send customer to collections etc.). City Arborist/Forester Section 119.071(4)(d)5, Florida Statutes, provides: The home addresses, telephone numbers, and photographs of current or former code enforcement officers; the names, home addresses, telephone numbers, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Section 2-59 of the City Code and section 162.04(2), Florida Statutes, both generally provide that a "code inspector" is any authorized agent or employee of the city whose duties are to ensure code compliance and to initiate enforcement proceedings. The City Code provides in section 5-5 that the City forester is responsible for, among other things, issuing code enforcement citations for violations of Chapter 5, Tree Protection and Preservation. Given these provisions of law, which should be read together, it is my opinion that the City's Arborist qualifies for the exemption set forth in section 119.071(4)(d)5, Florida Statutes, given that he is charged under the City Code with enforcing the City's tree preservation provisions. Building Department Personnel Your office has previously asked whether certain members of the building department may have their personal identifying information exempt from disclosure under the exemption applicable to code enforcement officers. I opined last year in an email to you dated April 5, 2007, that personnel of the City's building department likely do not qualify for an exemption of their personal identifying information unless they can specifically point to an applicable exemption. After extensive research, I have not found any exemption that would apply to members of the building department. The exemption for code enforcement officers cited above does not apply unless building department personnel has been specifically charged with enforcement of the City 111 N. Orange Ave, Suite 2000 • 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.orlandolaw.net • Email: firm@orlandolaw.net Code. Further, as noted above, ambiguities in the Public Records Laws are to be resolved in favor of disclosure. Seminole County v. Wood, supra. Thus, I advise that the City not extend the benefit of an exemption to such personnel. Law Enforcement Personnel You have advised that several administrative members of the City's Police Department have sought to have their personal identifying information exempted from disclosure. These personnel include, among others, dispatchers, secretaries, communications specialists, and records clerks. As you know, section 199.071(4)(d)1, Florida Statutes, provides an exemption for "active or former law enforcement personnel." The Attorney general has recently opined that while sworn officers of the police department, as "law enforcement personnel", come within the exemption to disclosure, support personnel employed by the police department do not appear to come within the exemption. Op. Atty. Gen., 2007-21, (April 25, 2007). Thus, the exemption does not apply to those individuals referenced above. In order to receive the benefit of the exemption, one must be a sworn officer of the police department. Fire Department Personnel You have also advised that certain Fire Department administrative personnel have applied for an exemption under the exemption related to firefighters. While there is an exemption for firefighters found in section 119.071(4)(d)1, Florida Statutes, the exemption applies strictly to firefighters certified in compliance with section 633.35, Florida Statutes. Thus, unless the individuals seeking the exemption are certified firefighters under Florida law, the exemption does not apply. I hope this email sufficiently addresses the various questions and concerns relayed by you and members of the City Clerk's department. Please contact me should you require additional information. Very truly yours Kate Latorre Assistant City Attorney 111 N. Orange Ave, Suite 2000 • 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.orlandolaw.net • Email: firm@orlandolaw.net Voice mail/Public Record Here's Kate's response to the question posed at last week's staff meeting regarding voice mails that are now available on the voice mail system as well as in your email inbox relative to retention and public record. Let me know if you have any questions. From: Kate Latorre jmailto:klatorre(aborlandolaw net] Sent: Tuesday, January 24, 2012 5:05 PM To: Joanne Dalka Subject: RE: Voice mail messages and the Public Record Joanne, I generally agree that VM message remain transitory, no matter what format in which they're stored. That said, a record being transitory doesn't affect whether it's a public record or not, it goes to its retention requirements — that is, how long does the City have to maintain it prior to disposal? We've opined in the past that given the transitory nature of VM messages, once it's listened to and not needed anymore, there's no reason to retain it. The same holds true even if it's imported to an employee's inbox. However, if it's in the inbox, it's still a public record until it's disposed of, and therefore still subject to disclosure pursuant to a public records requests if it should fall into the scope of a particular request. So, VM message are always public records, but there's no reason to retain them once they've been heard and are no longer of value for communicating, formulating or perpetuating public knowledge or public business. Does this help?