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Public Records Considerations in Creating and Sharing Domestic Security Information Observations from a Wide Open Public Records State |
Michael Ramage, General Counsel
Florida Department of Law Enforcement
Tallahassee, Florida
michaelramage@fdle.state.fl.us
presented to the
IACP Legal Officers Section
October 25, 2003
Note: Copies of Florida statutory provisions can be accessed via the web at www.leg.state.fl.us, the Florida Legislature s Web Page. Click statutes under the Laws tab on page one.
I. OVERVIEW Public records and Sunshine laws in Florida
A. Public Records Laws: Florida has a strong public policy favoring disclosure of agency records.
1. Statutory (Chapter 119, Florida Statutes)
2. Constitutional language (Article I, Section 24, Florida Constitution)
B. If a specific statute making a record exempt from disclosure or confidential under law does not exist, the record is a public record under Florida law.
1. Florida s public records law is used by the media to secure law enforcement records in an attempt to discern what an agency is doing.
2. Agencies cannot inquire into why seeking records so terrorists have same potential access as citizen or reporter.
3. Courts in Florida do not have equitable power to craft exemptions that are not specifically provided by statute.
4. Enforced by civil suit, which is top priority for handling. Loser pays costs and attorneys fees.
C. Government In Sunshine Law F.S. 286.011
1. Requires all meetings of any board or commission of any state agency or authority or of any agency or authority of any county, city, or political subdivision at which official acts are to be taken to be public, and held after reasonable notice, with minutes taken.
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II. Pertinent Exemptions On The Books Prior To 9/11
A. Records:
1. Active criminal intelligence information (F.S. 119.07(3)(b)) and 119.011(3)(a)
2. Active criminal investigative information (F.S. 119.07(3)(b)) and 119.011(3)(b)(c)
3. Info revealing identity of confidential informant or source (F.S. 119.07(3)(c))
4. Info revealing surveillance techniques, procedures or personnel (F.S 119.07(3)(d))
5. Info revealing undercover personnel of any criminal justice agency (F.S. 119.07(3)(e))
6. Criminal intelligence or investigative info received prior to 1/25/1979 (F.S. 119.07(3)(h))
7. Criminal intelligence information or criminal investigative information held by a non-Florida criminal justice agency made available to a Florida criminal justice agency on a confidential or similarly restricted basis. (May obtain and use such information in accord with providing agency s restrictions.) F.S. 119.072.
B. Meetings:
1. Information relating to security systems for any property owned by or leased to the state or any of its political subdivisions, and information relating to the security systems for any privately owned or leased property which is in the possession of any agency including all records, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations or consultations or portions thereof relating directly to or revealing such systems or information. F.S. 281.301.
III. Florida s Initial Response To 9/11
A. F.S. 943.0311 Chief of Domestic Security Initiatives position created within FDLE.
B. F.S. 943.0312 Regional Domestic Security Task Forces.
C. F.S. 943.0321 Florida Domestic Security and Counter-Terrorism Intelligence Center and Database.
1. Specifically included provision that exempt information possessed by the intelligence center maintains exemption if revealed to federal, state or local law enforcement or prosecutor; applies same to exempted information received by the center.
IV. How the public records and meeting problems have been addressed.
A. Security Assessments and Other Terrorism-Related Documents
1. Seaport security assessments were already underway prior to 9/11 but took on new interest to press, community and public.
2. Additional security assessments of public facilities were begun and took on similar interest.
3. Statute existing prior to 9/11 exempted seaport security plans for public seaports from public disclosure but only to records held by a seaport authority or to records of a county or municipal seaport department that operates a seaport. (F.S. 311.13).
a. Immediate problem: If plans were in law enforcement hands, not covered by the exemption, so exemption was limited. Meetings discussing the security responses could fall in the Sunshine. Not clear whether F.S. 281.301 would override the narrower F.S. 311.13 exemption.
b. Legislative response New Exemption.
i. Records: F.S. 119.071(1) A security system plan or portion thereof for any property owned by or leased to the state or subdivisions; or any privately owned or leased property which plan or portion thereof is in the possession of any agency is confidential and exempt security system plan includes all 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; threat-assessments conducted by any agency or any private entity; threat response plans; emergency-evacuation plans; sheltering arrangements; or manuals for security personnel, emergency equipment, or security training Information may be disclosed by the custodial agency to 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 and the confidential and exempt status of such information shall be retained while in the possession of the receiving agency .
ii. Meetings: F.S. 286.0113 Those portions of any meeting which would reveal a security system plan or portion thereof made confidential and exempt by s. 119.071(1) are exempt from (the Sunshine Law) .
iii. Amended in 2003 to permit disclosure to property owner or landlord without jeopardizing exempt status.
iv. Still some inconsistency between F.S. 286.0113 ( Those portions of any meeting ) and F.S. 281.301 ( all meetings relating to or that would reveal )
B. Other concerns:
1. Layout of public facilities ( blueprints ) were public and could be used by terrorist in planning attacks.
a. Response: F.S. 119.07(3)(ee): Building plans, schematic drawings and diagrams 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 may be disclosed if necessary for receiving entity to perform its duties and responsibilities; to a licensed architect, engineer, or contractor who is performing work on or related to the (structure) or upon good cause before a court of competent jurisdiction.
2. Requests by Florida law enforcement for public records in response to intelligence or investigative needs were being used by media to help discern what leads law enforcement were pursuing.
a. Response: F.S. 119.07(3)(b)(2): A request of a law enforcement agency to inspect or copy a public record that is in the custody of another agency the response to the request and any information that would identify the public record that was requested by the law enforcement agency or provided are exempt during the period in which the information constitutes criminal intelligence information or criminal investigative information that is active.
3. The locations of pharmaceutical caches, inventories, etc. held within Florida to counter biological attacks were public records within the agencies holding them.
a. Response: F.S. 381.95: Any information identifying or describing the name, location, pharmaceutical cache, contents, capacity, equipment, physical features, or capabilities of individual medical facilities, storage facilities, or laboratories established, maintained, or regulated by the Department of Health as part of the state s plan to defend against an act of terrorism is exempt The certification by the Governor of the sufficiency of any location (etc.) is a public record.
4. Records detailing plans of hospitals emergency management plans, security assessments, vulnerability assessments, etc. were public records.
a. Response: F.S. 395.1056: Those portions of a comprehensive emergency-management plan which address the response of a public or private hospital to an act of terrorism which are filed with or are in the possession of (a public agency) are confidential and exempt (such information) may be disclosed to 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
5. Sensitive Security Information There is no general sensitive security information exemption and the broad nature of such information makes legislature not inclined to enact. Federal implementation would give impetus that would help states. Not all sensitive information fits neatly into one of the Florida exemption categories.
V. Specific Situations and Public Records Impact/Response
A. Crop-duster pilots DL records of licensed crop-duster pilots and pesticide handlers.
B. American Media (Star, Globe, National Enquirer publisher) Office Building in Boca Raton Building Anthrax caused focus on biological responses
C. The three foreign students on Alligator Alley. Information leading to detention developed in Georgia. Florida investigators doing work, creating reports. Released reports not impacting the Georgia criminal investigation. E.g. Video showing that driver did not bust through toll plaza as was initially reported by toll worker.
D. Pre-War Interviews of Iraqi Citizens in Florida. Done at FBI s request. Done jointly. Most of substantive information went in FBI s 302 s, in recognition of Florida s public records status for state reports.
E. FDLE RDSTF agents co-located at FBI s JTTF. FBI procedure prohibits them from documenting activities in state system to assure they don t fall under Florida s public records.
F. Domestic Security Oversight Board Meets routinely. Meetings would normally be Sunshine meetings, which would chill ability to discuss items of substance. Using F.S. 281.301 (See II B, above), since each meeting has on agenda a discussion of security plans.
G. Shuttle Columbia launch (Israeli astronaut) security plans.
H. Joint Immigration Initiative Memorandum of Understanding. Federal/State agreement.
I. Attempts to discern resource commitments for security at events. E.g. Free Trade Area of the Americas (FTAA) meeting in November in Miami. (Estimated 30,000 to 100,000 demonstrators anticipated to attend and be active.)
J. Distribution of Personal Protection Suits To Law Enforcement. Attempts to get listing of how many suits have been distributed to this or that agency.
VI. Interaction Between Florida and Other States In Cooperative Ventures
A. Development of databases involving sharing of information between states requires careful coordination.
B. Other states must deal with reality of Florida s Public Records Law
1. Florida s reputation as open records state raises legitimate concerns within other states working with Florida on cooperative ventures
2. Non-Florida agencies can provide information and documents on restricted basis and prevent them from falling under Florida public records laws
a. Florida challenge is to assure the restriction follows the documents and information as it is distributed to Florida agencies.
i. User agreements
ii. Training
iii. Labels and reminders when possible
iv. Generally, other state information is not public
3. Legitimate mutual concern that information that is not public in another state would somehow become public in Florida
a. Vendors or others may bypass originating state and seek from Florida
b. Value of confidentiality could be lost or significantly compromised
4. Requires careful coordination and resolution of concerns.
C. Must deal with reality of other state laws
1. Different approaches to interpreting the same provision
a. e.g. Drivers Privacy Protection Act (DPPA)
i. Logging of dissemination required or optional?
ii. Resolution affects the operation of multistate database and requirements imposed on those using.
2. Unique requirements of state law in another state affects how and to what extent that state can participate in a multi-state endeavor.
3. Lawyer issues such as which state s law will control if a case or controversy arises
a. Not just a matter of stating in an agreement
b. Who defends? If liability attaches, who s on the hook?
VII. Wrap Up Considerations and Suggestions
A. Review your jurisdiction s public records status. If there are gaps protection, consider seeking legislative changes before the lapse becomes a hot issue.
1. Assess the breach in domestic security the gap may have already promoted. Has the information already slipped out?
2. Cat out of the bag once sensitive information hits the internet, various programs cache the information. Internet searches may reveal the information even if a mistake is detected and the information is pulled from the source web site.
B. Operate in a way that recognizes public records reality
1. Emails among domestic security entities might carry a tag such as this:
Florida has a very open public records law. Most written communications to or from state officials regarding state business are public records available to the public or media upon request. Your email communications may be subject to public disclosure.
C. Be aware of what your exemptions truly allow and do not allow. Avoid heaping assumption upon inference to make an exemption do more than it truly does. Educate your officers and personnel. Put end to myths about record disclosure.
D. Remind your state and local officers that working with Feds may not change the rules. What might not be public if done by federal officer or agent could be public when done by state or local officer or agent even if part of a joint federal/state/local effort.
E. Be careful about E mails---they re public records, too! (Phones still are good communication tools and don t leave a record.)
F. Stay alert to public records issues
1. Legislative summaries when laws were first passed.
2. References in communications to affected persons.
3. Personnel changes often result in loss of institutional awareness of exemptions and restrictions.
4. Some simply don t care and assume no one will ever seek the information, so they don t act to protect it.
5. Result: State same thing over and over; answer same questions or concerns again and again; hope awareness remains appropriate and effective.
6. Constantly test yourself: Does this need to be documented? Must it be to the degree I propose? What if this became public?
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