TO DELETEThe
unPost
The story matters.
Monday, August 27, 2007
To: Lilian Hatfield, City of Miami Beach City Clerk's Office, or authorized agent,
I am writing to request the personnel file of City of Miami Beach employee Thomas
Velazquez, Building Director.
This request also includes any data compiled by staff requested by city commissioners as
a result of review of that data, including but not limited to information describing public
or non-public complaints and/or reprimands.
Reminder to applicable records custodian: information regarding grievance records are
indeed public record (please see attached Attorney General opinion).
This request is pursuant to the Public Records Act, Chapter 119 of the Florida Statutes.
This request includes copies of every document related to the matter, regardless of the
format in which the information is stored. Reminder to applicable records custodian:
information stored on a computer is as much a public record as a written page in a book
or information stored in a filing cabinet.
If you refuse to provide this information, Chapter 119 requires you advise me in writing
and indicate the applicable exemption to the Public Records Act. Also, please state with
particularity the reasons for your decision, as required by Section 119.07(2)(a). If the
exemption you are claiming only applies to a portion of the records, please delete that
portion and provide photocopies of the remainder of the records, according to Section
119.07(2)(a).
I agree to pay the actual cost of duplication as defined in Section 119.07(1)(a). However,
if you anticipate that in order to satisfy this request, "extensive use" of information
teclu7ology resources or extensive clerical or supervisory assistance as defined in Section
119.07(1)(b) will be required, please provide a written estimate and justification.
I request these records be available as soon as possible. If you have any questions or need
more information in order to expedite this request, please call me at 305-405-7364, or cell
phone number 786-444-9045. If I don't hear from you or your office, I will follow up
with you on Wednesday, August 29, 2007.
Sincerely,
Angie Hargot
Editorial Administrator
The Miami SunPost
angie@miamisunpost.com
305-405-7364
1688 Meridian Avenue, suite 404, Miami Beach, F133139. 305-538-9700. F 305-538-
6077.
........................................................................
Above referenced Attorney General Opinion provided to Mr. Dennis E. Lyles
Fort Lauderdale City Attorney in 1994 [EXCERPT]:
For purposes of this opinion, I will assume that the maintenance of the separate files
would be for the purpose of removing such documents from public access. Additionally,
your reference to "counselling slips" will be assumed to mean a form of written direction
to an employee as to job performance and not a docLUnent related to psychological or
medical evaluation.
The general Wile regarding persomlel records of public employees is the same as for other
public records. That is, unless the Legislature has expressly exempted an agency's
persomlel records from disclosure or authorized an agency or public entity to limit access
to such records, persomlel records of public employees are subject to public inspection
under section 119.07(1), Florida Statutes.[1] Moreover, a public agency may not remove
or delete material or information from a public record in the absence of express statutory
authorization.[2] As this office determined in Attorney General Opinion 73-51, an agency
is not authorized to maintain its persomlel records of its employees under two headings,
one open and one confidential, absent statutory authorization.
Section 119.07(1)(a), Florida Statutes, in pertinent part, provides:
"Every person who has custody of a public record shall permit the record to be inspected
and examined by any person desiring to do so, at any reasonable time, under reasonable
conditions, and under supervision by the custodian of the public record or his designee."
The term "[p]ublic records" encompasses "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 coiulection with
the transaction of official business by any agency."[3] This office has consistently found
that employee personnel records are public records within the meaning of Chapter 119,
Florida Statutes.[4]
Relative to persomlel records, this office has concluded that a public body and a private
group cannot by agreement adopt or make an exemption from Chapter 119, Florida
Statute.[5] This conclusion was supported in Mills v. Doy1e,[6] wherein the Fourth
District Court of Appeal found that grievance records of teachers employed by a county
school board were public records subject to disclosure, even though the collective
bargaining contract between the teachers' association and the school board classified such
records as confidential. As the court stated, "[T]o allow the elimination of public records
from the mandate of Chapter 119 by private contract would sound the death 1a7e11 of the
Act."[7]
Additionally, the judiciary has refused to deny access to persoiuiel records of public
employees based on claims that the release of such information may prove embarrassing
or unpleasant for the employee. As noted by the Supreme Court of Florida in Ne~~~s-Press
PzrbJishrng Conz~a~y v. Wisher: [8]
"No policy of the state protects a public employee from the embarrassment which results
from his or her public employer's discussion or action on the employee's failure to
perform his or her duties properly."[9]
The Legislature has authorized the maintenance of separate files for certain employees.
Section 119.07(3)(x), Florida Statutes, authorizes the maintenance of separate files
containing information relating to the medical condition or medical status of state
employees or water management district employees if that information is not relevant to
the capacity of the employee to perform lus or her duties. The statute specifically states
that "[i]nformation which is exempt shall include, but is not limited tq information
relating to workers' compensation, insurance benefits, and retirement or disability
benefits."
Clearly, the Legislature recognizes the need to segregate medical information from other
information in personnel files of state and water management employees. No such
authority exists for municipal employees with regard to records of disciplinary action.
Accordingly, it is my opiiuon that absent statutory authority granted by the Legislature,
the city may not validly enter into a collective bargaining agreement that removes
information or material from an employee's personnel file and maintain such documents
in a separate disciplinary file. [ 10]
Sincerely,
Robert A. Butterworth
Attorney General