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Cypen & Cypen
SEPTEMBER 12, 2003

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

In Times Publishing Co. v. City of Clearwater, 830 So.2d 844 (Fla. 2d DCA 2002), the Second District Court of Appeal certified to the Florida Supreme Court a question of great public importance, which the latter rephrased as follows: “Whether all e-mails transmitted or received by public employees of a government agency are public records pursuant to Section 119.011(1), Florida Statutes (2000), and Article I, Section 24(A) of the Florida Constitution by virtue of their placement on a government-owned computer system?” As rephrased, the Florida high court answered the question in the negative. The case arose when a Times Publishing Company reporter requested that the City of Clearwater provide copies of all e-mails either sent from or received by two City employees over the City’s computer network. Following City procedures, the employees reviewed their e-mails and sorted them into two categories, personal and public. The City copied the public e-mails and provided them to Times Publishing, which filed suit, asserting that it was entitled to all e-mails generated by and stored on City computers. The trial court denied relief, and the Second District Court of Appeal affirmed, concluding that “private” or “personal” e-mails fall outside the current definition of public records because they are neither “made or received pursuant to law or ordinance” nor “created or received ‘in connection with official business’ of the City or ‘in connection with the transaction of official business’ by the City.” The Supreme Court noted its decision 115 years ago, long before the legislature had ever enacted the first public records statute, that public records are connected to official business and discharge of official duties. Twenty years later, in 1909, the legislature enacted Florida’s first public records statute, continuing to apply the “discharge of duty” analysis. However, it was not until 1967 that the Florida Legislature first defined “public records” as those “made or received pursuant to law or ordinance in connection with the transaction of official business by any agency.” To date, that definition has remained essentially unchanged, the most significant addition being 1995's amendment to include “data processing software” and information regardless of “means of transmission.” Thus, electronic documents stored in a computer can be public records if they are “made or received pursuant to law or ordinance in connection with the transaction of official business.” In short, the Supreme Court sided with the Second District’s conclusion that private or personal e-mails simply fall outside the current definition of public records. The Court disagreed with Times Publishing’s argument that placement of e-mails on the City’s computer network automatically makes them public records. The Court also disagreed with the Attorney General that creation of an e-mail “header” makes all e-mails, regardless of their content or intended purpose, public records. Finally, the Court agreed with the City that its “Computer Resources Use Policy,” which states that City computer resources are its property and that users have no expectation of privacy, cannot be construed as expanding the constitutional or statutory definition of public records to include personal documents; although the policy may prevent employees from asserting a privacy right to contest disclosure, it cannot alter the statutory definition of public records. State of Florida v. City of Clearwater, Case No. S. SC02-1694 & SC02-1753 (Fla. September 11, 2003).

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