State v. City of Clearwater

• Decision Date: 11 September 2003
• Docket Number: No. SC02-1753., No. SC02-1694
• Citation: 154 Fla 2003,863 So.2d 149
• Parties: STATE of Florida, Petitioner, v. CITY OF CLEARWATER, Respondent. Times Publishing Company, Petitioner, v. City of Clearwater, Respondent.
• Court: Florida Supreme Court

863 So.2d 149

154 Fla 2003

STATE of Florida, Petitioner, v. CITY OF CLEARWATER, Respondent.

Times Publishing Company, Petitioner, v. City of Clearwater, Respondent.

Nos. SC02-1694, SC02-1753.

Supreme Court of Florida.

September 11, 2003.

Christopher M. Kise, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, Florida; and David F. Chester, Assistant Attorney General, on behalf of Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, for Petitioner, State of Florida.

Pamela K. Akin, City Attorney, and Leslie K. Dougall Sides, Assistant City Attorney, Clearwater, Florida, for Respondent, City of Clearwater.

Carole Sanzeri, Senior Assistant County Attorney, and Michael A. Zas, Senior Assistant County Attorney, Clearwater, Florida, Amicus Curiae, Pinellas County on behalf of Florida Association of County Attorneys.

George K. Rahdert, Alison M. Steele, Penelope T. Bryan, and Thomas E. Reynolds of Rahdert, Steele, Bryan & Bole, P.A., St. Petersburg, Florida, for Petitioners, Times Publishing Company.

PARIENTE, J.

We have for review a decision of the Second District Court of Appeal, which certified the following question of great public importance:

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 IF THE AGENCY HAS A WRITTEN POLICY THAT INFORMS THE EMPLOYEES THAT THE AGENCY MAINTAINS A RIGHT TO CUSTODY, CONTROL AND INSPECTION OF E-MAILS?

Times Publishing Co. v. City of Clearwater, 830 So.2d 844, 848-49 (Fla. 2d DCA 2002). We have jurisdiction, see art. V, § 3(b)(4), Fla. Const, and rephrase the certified question 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.

For the reasons stated below, we answer the rephrased question in the negative and approve the Second District's decision.

FACTS

The facts of this case are straightforward. In October 2000, 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 between October 1, 1999, and October 6, 2000. Pursuant to the City's procedures, the employees reviewed their e-mails and sorted them into two categories, personal and public. No one else reviewed the e-mails deemed by the employees to be personal. The City copied the public e-mails and provided them to Times Publishing.

Times Publishing filed an action in the circuit court to obtain the e-mails the employees had designated as private. Times Publishing asserted that it was entitled to all the e-mails generated by and stored on the City's computers. The circuit court granted Times Publishing's request for a temporary injunction and ordered the City to "make every reasonable effort to retrieve, preserve and secure from destruction" all e-mails sent or received by the employees in question between October 1, 1999, and October 6, 2000.

After a final hearing at which three of the City's employees testified, the trial court issued a detailed and thorough order denying Times Publishing's request for a writ of mandamus and permanent injunctive relief. The Second District affirmed the trial court's order without prejudice to Times Publishing seeking an in camera review of the disputed e-mails. See Times Publishing, 830 So.2d at 848

. The Second District concluded 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." Id. at 847. Because its decision affects how every state agency and municipality maintains its electronic records and the public's access to those records, the Second District certified the question of great public importance to this Court. See id. at 848-49.¹

ANALYSIS

This case involves the narrow legal issue of whether personal e-mails are considered public records by virtue of their placement on a government-owned computer system.² "The determination of what constitutes a public record is a question of law entitled to de novo review." Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So.2d 1008, 1013 (Fla.2003).

Times Publishing argues that the placement of e-mails on the City's computer system makes the e-mails public records, regardless of their content or intended purpose. The State contends that the headers created by e-mails when they are sent are akin to phone records or mail logs, which the State asserts are clearly public records. We conclude that both of these arguments are without merit.

Access to public records is currently guaranteed by article I, section 24 of the Florida Constitution, and chapter 119 Florida Statutes (2002). Article I, section 24 provides in pertinent part:

(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive and judicial branches of government....

(Emphasis supplied.) Chapter 119 defines public records as

all 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 by any agency.

§ 119.011(1), Fla. Stat. (2002) (emphasis supplied). Thus, both article I, section 24 and chapter 119 specify that public records are those records that are in some way connected to "official business."

A review of the history of Florida's public records law indicates that the connection between public records and official business was established well before the Legislature enacted the first public records statute. In Bell v. Kendrick, 25 Fla. 778, 6 So. 868 (1889), this Court considered whether evidence of a certificate of a deed was admissible in an action for ejectment when the deed was lost and had never been recorded. The Court noted that records kept by persons in public office are generally admissible, and explained:

[W]henever a written record of the transactions of a public officer is a convenient and appropriate mode of discharging the duties of his office, it is not only his right, but his duty, to keep that written memorial, ... and, when kept, it becomes a public document—a public record—belonging to the office, and not to the officer.

Id. at 869 (emphasis supplied). The Court concluded that because "[i]t was clearly the duty of the register of state lands to keep in his office a register of sales and conveyances of land," a certified transcript of these entries was admissible as evidence of the execution of the conveyance. Id. at 870.

Twenty years after Bell, the Legislature enacted Florida's first public records statute, which mandated that "all State, county and municipal records" be open "for a personal inspection of any citizen of Florida, and those in charge of such records shall not refuse this privilege to any citizen." Ch. 5942, Laws of Fla. (1909). The statute did not provide a definition of public records and this Court continued to apply the "discharge of duty" analysis established in Bell. See Amos v. Gunn, 84 Fla. 285, 94 So. 615, 634 (1922) ("A public record is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done.").

In 1967 the Legislature first defined the term "public records":

"Public Records" shall mean all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Ch. 67-125, § 1(a) at 254, Laws of Fla. (emphasis supplied). This definition, codified in section 119.011(1), has remained essentially unchanged. The most significant change to section 119.011(1) occurred in 1995 when the Legislature amended the definition of "public records" to include "data processing software" and information regardless of "means of transmission." See ch. 95-296, § 6 at 2727, Laws of Fla. Thus, electronic documents stored in a computer can be public records provided they are "made or received pursuant to law or ordinance or in connection with the transaction of official business." § 119.011(1), Fla. Stat. (2002).

"In construing a statute, we look first to the statute's plain meaning." Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996). Based on the plain language of section 119.011(1), we agree with the Second District's conclusion that "private" or "personal" e-mails "simply fall[] outside the current definition of public records." Times Publishing, 830 So.2d at 847. As the Second District explained:

Such e-mail is not "made or received pursuant to law or ordinance." Likewise, such e-mail by definition is not created or received "in connection with the official business" of the City or "in connection with the transaction of official business" by the City. Although

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