REMEMBER WHEN OUR tOWN ATTORNEY STATED IN A LETTER TO JOE GRIFFIN THAT HE DID NOT HAVE TO PROVIDE HIS PERSONAL NOTES FOR THE MEETING, WELL HE LIED AND THIS IS THE LAW. HE APPARENTLY BELIEVES HE CAN LIE HIS WAY OUT OF PROVIDING VALID PUBLIC RECORDS WHETHER HIS NOTES OR NOT….BUT THEY WERE USED FOR THE MEETING AND THUS ARE PUBLIC RECORDS PER THE LAW. THESE NOTES ARE GIVEN TO VANESSA AND PREVIOUSLY I RECEIVED A COPY OF HIS NOTES…FOR WHICH SURELY HE CHARGES BASED ON HIS FEE OF $250 AN HOUR. THEREFORE, HIS NOTES ARE PART OF A PUBLIC RECORD.
When are notes or non-final drafts of agency proposals
33 subject to Chapter 119, Florida Statutes?
There is no “unfinished business” exception to the public inspection and copying
requirements of Chapter 119, Florida Statutes. If the purpose of a document prepared in connection with the official business of a public agency is to perpetuate,
communicate, or formalize knowledge, then it is a public record regardless of whether it is in final form or the ultimate product of an agency. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980). See also, Warden v. Bennett,340 So. 2d 977 (Fla. 2d DCA 1976) (working papers used in preparing a college budget were public records).
Accordingly, any agency document, however prepared, if circulated for review,
comment or information, is a public record regardless of whether it is an official
expression of policy or marked “preliminary” or “working draft” or similar label.
Examples of such materials would include interoffice memoranda, preliminary drafts of agency rules or proposals which have been submitted for review to anyone within or outside the agency, and working drafts of reports which have been furnished to a
supervisor for review or approval.
In each of these cases, the fact that the records are part of a preliminary process
does not detract from their essential character as public records. See, Booksmart
Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So. 2d 227, 229 (Fla. 3d DCA 1998) (book selection forms completed by state university instructors and furnished to campus bookstore “are made in connection with official business, for memorialization and communication purposes[;] [t]hey are public records”); and
Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (canvassing board minutes constitute final work product of the Board, not a preliminary draft or note; therefore, city violated public records law by refusing to produce minutes until after approval by the city commission). It follows then that such records are subject to disclosure unless the Legislature has specifically exempted the documents from inspection or has otherwise expressly acted to make the records confidential. See, for example, section 119.071(1)(d), Florida Statutes, providing a limited work product exemption for agency attorneys.
Similarly, so-called “personal notes” can constitute public records if they are
intended to communicate, perpetuate or formalize knowledge of some type. For
example, in Miami Herald Media Company v. Sarnoff, 971 So. 2d 915 (Fla. 3d DCA
2007), the court held that a memorandum prepared by a city commissioner after a
meeting with a former city official, summarizing details of what was said and containing alleged factual information about possible criminal activity, was a public record subject to disclosure. The court determined that the memorandum was not a draft or a note containing mental impressions that would later form part of a government record, but rather formalized and perpetuated his final knowledge gained at the meeting. See also Op. Att’y Gen. Fla. 05-23 (2005).
However, “under chapter 119 public employees’ notes to themselves which are
designed for their own personal use in remembering certain things do not fall within the definition of ‘public record.'”
OH AND YES, MR. FOREMAN, THERE IS NO CREATED PRIVILEGE BETWEEN YOU AND THE TOWN. AGAIN QUIT FABRICATING!!!
The Public Records Act applies to communications between attorneys and
governmental agencies; there is no judicially created privilege which exempts these
documents from disclosure. Wait v. Florida Power & Light Company, 372 So. 2d 420
(Fla. 1979) (only the Legislature and not the judiciary can exempt attorney-client
communications from Chapter 119, Florida Statutes). See also, City of North Miami v.
Miami Herald Publishing Company, 468 So. 2d 218 (Fla. 1985) (although section
90.502, Florida Statutes, of the Evidence Code establishes an attorney-client privilege for public and private entities, this evidentiary statute does not remove communications between an agency and its attorney from the open inspection requirements of Chapter 119, Florida Statutes).
Moreover, public disclosure of these documents does not violate the public
agency’s constitutional rights of due process, effective assistance of counsel, freedom of speech, or the Supreme Court’s exclusive jurisdiction over The Florida Bar. City of North Miami v. Miami Herald Publishing Company, supra. Accord, Brevard County v. Nash, 468 So. 2d 240 (Fla. 5th DCA 1984); Edelstein v. Donner, 450 So. 2d 562 (Fla.3d DCA 1984), approved, 471 So. 2d 26 (Fla. 1985).