Public Records and E-Mails: If It's Not the City's Business, It's Not Necessarily a Public Record

On July 20, 2011, Daniel L. Abbott and Jamie A. Cole won a significant case for City of Hallandale Beach in the Fourth District Court of Appeals concerning the scope of records accessible to the public. A citizen sued the City after he was denied access to a list of e-mail addresses containing the recipients of an e-mail sent by the Mayor. The Mayor sent the email, which contained three articles the Mayor submitted as a columnist to the South Florida Sun Times, from her personal e-mail address on her personal computer. The trial court found that the Mayor had no obligation under Florida law or local ordinance to notify her friends and supporters that the article had been published. The trial court also found that the City played no role in the Mayor's decision to send the e-mail. The court found that the e-mail therefore fell outside the scope of the public records and the petitioner was not entitled to the names and e-mail addresses of the people who received the e-mail in question.

Article I, section 24(a) of the Florida Constitution provides that a person "has the right to inspect a copy any public record made or received in connection with the official business of any...officer, or employee of the state...except with respect to records exempted pursuant to this section or explicitly made confidential by this Constitution." Florida Statutes § 119.011(12) defines "public records" as "documents, papers, letters, maps, books, tapes photographs, films sound recordings, data processing software, or other material, regardless of the physical form, characteristics or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business of an agency."

Determining whether a communication, regardless of its form, is a public record can be tricky. In State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003), the court used a common sense approach to determine whether a communication is a public record; the determining factor is the nature of the record. In reviewing a case in which a reporter requested copies of e-mails sent and received by two city employees over the city's computer network, the Florida Supreme Court held that the e-mails were not public records because the they did not contain public information and were not prepared with the intent of perpetuating or formalizing knowledge and prepared in connection with the official business of the agency.

Looking at the Mayor's e-mail attaching her columns to the South Florida Sun Times, the Fourth District Court of Appeals agreed that the e-mail was not a public record. The City played no role in the Mayor's decision to write and distribute her columns. The recipients of the e-mail were personal friends and supporters, and the e-mail was not written pursuant to her duties as Mayor. Because the e-mail was not a public record, the petitioner did not have a right to inspect it.

For a copy of the opinion, please click here.


Categories: LitigationGovernment AffairsLocal Government
Tags: Governmental LitigationMunicipal GovernmentEthicsSpecial Counsel to Local GovernmentDaniel L. AbbottMitchell A. BiermanJamie A. ColeChad S. FriedmanEdward G. GuedesMichael S. PopokJoseph H. SerotaRichard Jay WeissDavid M. WolpinFort Lauderdale Business Litigation AttorneysFort Lauderdale Business Litigation LawyersMiami Commercial Litigation AttorneyMiami Commercial Litigation LawyerSouth Florida Commercial Litigation AttorneySouth Florida Commercial Litigation LawyerFort Lauderdale Local Government LawMiami Local Government LawSouth Florida Local Government LawFort Lauderdale Governmental Affairs AttorneysMiami Governmental Affairs AttorneysSouth Florida Governmental Affairs AttorneysFort Lauderdale Municipal AttorneysMiami Municipal AttorneysSouth Florida Municipal AttorneysMatthew H. MandelFort Lauderdale LitigatorsMiami LitigatorsSouth Florida LitigatorsFlorida Commercial Litigation LawyerFort Lauderdale Civil Litigation AttorneysFort Lauderdale Commercial Litigation AttorneysFort Lauderdale Commercial Litigation AttorneysMiami Litigation Attorney
Author(s): Brooke P. Dolara