2017-30124 ResolutionRESOLUTION NO. 2017 - 30124
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, REPEALING THE CITY'S 2005 PUBLIC RECORDS
POLICY AND ADOPTING IN ITS PLACE THE CITY OF MIAMI BEACH'S 2017
PUBLIC RECORDS PROCESSING POLICY, APPLICABLE TO CITY
ELECTED AND APPOINTED OFFICIALS AND CITY EMPLOYEES.
WHEREAS, consistent with the City of Miami Beach's long- standing commitment to
transparency in government, and for purposes of ensuring compliance with Florida's Public
Records Law (Florida Statutes, Chapter 119), in 2005 the City of Miami Beach adopted its
"Public Records /Request Policy," setting forth therein mandatory duties of City personnel
relative to the City's public records and corresponding rights of the public to disclosure thereof;
and
WHEREAS, the City Attorney and the City Clerk have reviewed the City's 2005 Policy in
order to ensure the City's compliance with recent judicial and Florida Attorney General opinions;
and
WHEREAS, as a result of such review, and in light of recent judicial decisions confirming
the applicability of the Public Records law to certain electronic records of government personnel
(including text messaging as well as emails), the City Attorney and City Clerk have
recommended repeal of the City's 2005 Policy and concurrent adoption of the attached 2017
Public Records Processing Policy, providing updated /greater detail of the procedures attendant
to City personnel's retention of public records (including those related to electronic
communications), as well as processes related to the City's response to document requests.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH that having considered the above, it hereby
accepts the above recommendations of the City Attorney and City Clerk and thus adopts the
attached "City of Miami Beach 2017 Public Records Processing Policy Applicable to City
Elected and Appointed Officials and City Employees," and further repeals the City's Public
Records Policy adopted in 2005.
PASSED and ADOPTED this (3 day of l)ec ' to
ATTEST:
, 2017.
1 2— z l h r `, B °, l 1.0 „., Gelber, Mayor
k. '
ING0R1' URATGp'
•
,, APPROVED AS TO
1q° °,. Qc FORM & LANGUAGE
°°°' �` & FOR EXECUTION
, -.t, e. 3
T:WGENDA\2017 \12 - December \City Clerk\2017 - Publi'd r = Resolution and Policy.docx it f V `�
City Attorney
Date `
Rafael E. Granado, City Clerk
CITY OF MIAMI BEACH 2017 PUBLIC RECORDS PROCESSING POLICY
APPLICABLE TO CITY ELECTED AND APPOINTED OFFICIALS
AND CITY EMPLOYEES. 2
This document reflects the City of Miami Beach's policy pertaining to the processing of public
records requests by the following City personnel: elected and appointed officials of the City as
well as all City employees.
GENERAL POLICY STATEMENT: "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 the custodian's designee." Florida Statute, Chapter 119.07(1)(a).
I. POLICY:
A. General Provisions:
Public records shall be inspected and examined by any person desiring to do so, at any
reasonable time under reasonable conditions, and under departmental-supervision.
It is the policy of the City of Miami Beach that all public records shall be open for personal
inspection by any person. Florida Statutes, Chapter 119, Sections 1 19.07 and 119.071 address
exemptions to Public Records Access, which exemptions must be specifically noted when
claiming an exemption in response to a public records request.
Public Records Requests must be responded to in a timely manner.. The Florida Supreme Court
has stated that the only delay in producing records permitted under Florida Statute Chapter 119
'is the limited reasonable time allowed the custodian to retrieve the record and delete those
portions of the record the custodian asserts are exempt."
Each City Department shall assign a "Records Custodian" and a backup "Records Custodian" to
interface with the Office of the City Clerk and coordinate the departmental retrieval of Public
Records, If a departmental Records Custodian is not assigned it will be assumed that the
Department Director and Assistant Department Director will assume the role.
Requests received for Police information shall be forwarded to the Police Department.
Requests received from any of the collective bargaining units shall be forwarded to the Office of
Labor Relations in the Human Resources Department.
B. Electronic Records:
Electronic communications to or from municipal personnel are covered by the Public Records
law, just like communications on paper. Accordingly, e- mails, tweets, texts 3 , Facebook4
2 Revised as of December 2017,
3 In determining the applicable retention period, keep in mind that text messages created primarily to
communicate information of short -term value may fall under the "Transitory Messages" record.
series. (City Department Record Custodians: See, General Records Schedule GS1 -SL for State and Local
Government Agencies). The term "transitory" refers to short -term value based upon the content and
Page 1108 of 1320
messages, Blackberry Pins, SMS communications (text messaging), MMS communications
(multimedia content), instant messaging and any other electronic communications sent or
received by City personnel (regardless of whether on a City or private computer/cellphone/other
electronic device) in connection with the transaction of official business, are public records and
must be disclosed upon request, subject to applicable statutory exemptions, and are further
subject to the statutory restrictions on retention and destruction of public records, See, Florida
Statute section 257.36(6), which specifically requires that a public record may be destroyed or
otherwise disposed of only in accordance with retention schedules established by the [State]
Division of Library and Information Services (Division) of the Department of State'.
It is the nature of the record created rather than the means by which it is created which
determines whether it is a public record. Thus, an electronic record created by City personnel in
connection with the transaction of official business is a public record whether it is created on a
publicly or privately owned computer/cellphone/other electronic device.
In order to ensure that the City's records contain all public records6, City personnel must,
immediately after that public record's creation, transmit to their City email account copies of
such public record, whether stemming from their private computer/cellphone/other electronic
device.
purpose of the message, not the format or technology used to transmit it. Accordingly, transitory
messages are those "created primarily to communicate information of short-term value" and that are "not
intended to formalize or perpetuate knowledge and do not set policy, establish guidelines or procedures,
certify a transaction, or become a receipt." Examples include interoffice communications such as meeting
reminders, announcements of office events, and copies of formal agency announcements. (See General
Records Schedule GS/-SL for State and Local Government Agencies, V., Electronic Records, Electronic
Communication and Transitory Messages.) The retention requirement for transitory messages is "retain
until obsolete, superseded or administrative value is lost."
4 Note: The Attorney General has specifically held that material on the City's Facebook page Is
presumably in connection with the transaction of official business and is thus subject to the Public
Records Law (although in any given instance, the determination would have to be confirmed by the Office
of the City Attorney),
6 The Department of State has recognized that retention periods for text messages and other electronic
messages or communications "are determined by the content, nature, and purpose of the records, and
are set based on their legal, fiscal, administrative, and historical values, regardless of the format In which
they reside or the method by which they are transmitted." In other words, It is the content of the electronic
communication that determines how long it is retained, not the technology that is used to send the
message.
6 Electronic public records are subject to statutory restrictions on retention and destruction of public
records. See, Florida Statute section 267.36(6), which specifically requires that a public record may be
destroyed or otherwise disposed of only in accordance with retention schedules established by the [State]
Division of Library and Information Services (Division) of the Department of State.
Page 1109 of 1320
II. PROCEDURE:
A. General Provisions:
1. A requestor can make a public records request to any City of Miami Beach personnel
in writing, by telephone, by electronic communication, or in person.
E- mail: 1
To request a public record via email, the requestor may send an email to
researchrequestAmiamibeachfi ,gov
• Mail:
To request public records by mail, the requestor may send the request to City of
Miami Beach, Office of the City Clerk, Attention: Public Records Request, 1700
Convention Center Drive, 1st Floor, Miami Beach, FL 33139.
• Telephone:
To request public records via telephone, the requestor may call the Office of the
City Clerk at 305.673.7411, The requestor may also contact the applicable
Department directly.
• In Person:
To request public records in person, the requestor may visit the Office of the City
Clerk, located at City of Miami Beach City Hall, 1700 Convention Center Drive,
1st Floor, Miami Beach, FL 33139. The requestor may also request public records
in person from the City Department serving as records custodian of documents
sought
2. City personnel receiving public records requests shall forward a completed Public
Records Request Form to the Office of the City Clerk (along with a copy of any
written public records request) either electronically to
researchrequest(a miam.beachfl.goy or in person. The transmittal of the completed
Request Form to the Office of the City Clerk is for tracking purposes only. The City
Department serving as records custodian of the requested records is responsible for
responding to the request.
3. Upon receipt of a public records request, the Office of the City Clerk will assign each
request a number, and shall e -mail the request to the specific City Department's
Record Custodian. All future correspondence regarding the request should reference
the subject records request number assigned by the Clerk's Office.
4. The Office of the City Clerk will maintain a log for all research requests with the
following information: date request made; requestor's name, telephone number, fax
number and email, documents requested, name of City personnel that the records
request is assigned to and completed by, results of research, and status.
Page 1110 of 1320
5. The Department's Record Custodian will notify the requestor of the estimated time to
process the request and related costs (see, III "Cost Calculations" below) in advance
of producing the records,
• It is important to make sure that the requestor is kept informed regarding the
status of the research request. The City is not permitted to require full payment in
advance of commencing production of records, but may request a deposit prior to
such commencement when dealing with records requests that involve "extensive
use of information technology resources or extensive clerical or supervisory
assistance by personnel of the agency involved, or both."
• Once the City has accumulated the records, the requestor must provide payment
in full before the City is required to produce the records. The City may also bill for
any shortfall between any deposit that has been paid by the requestor and the
actual cost of copying the public records when the copies have been made and
the requesting party subsequently advises that the records are no longer sought.
B, Cit -Personnel Duties re: Public Records Re.uests for emails /texts /other electronic
communications:
Public records requests which seek inspection of City personnel's private emails /texts and /or
other electronic communications require close examination in order to determine which such
electronic communications are available for public inspection as having been "made or received
in the course of official City business ". In addition to the statutory exemptions from public
disclosure, records or portions of records which are "private" or "personal" and which were not
"made or received pursuant to law or ordinance" nor "created or received in connection with
official business" of the City are not subject to disclosure. State of Florida v. City of Clearwater,
863 So. 2d 149 (Fla. 2003), and Media General Operation, Inc. v. Feeney, 849 So. 2d 3 (Fla. 1st
DCA 2003), rev. den. 857 So. 2d 196 (Fla. 2003).
• In those instances in which a public records request has been made for City personnel's
email /text /other electronic communication on a City :electronic device, that subject City
personnel shall review his /her emails /texts /electronic communications in order to
determine which are "public records" and which are "personal" or "exempt" information,
with subsequent review by that personnel's Department Head (and in the event any such
"personal" or "exempt" information is that of the Department Head, said material must be
subsequently reviewed by the City Manager's designee) in order to verify that said
material is not subject to public disclosure.
• Public records requests seeking City personnel's private emails /texts /other electronic
communications from his /her private electronic device will require each City
personnel to review such emails /texts /other electronic communications and produce
within a "reasonable time" any emails /texts /other electronic communications that
constitute a "public record" (subject to allowable statutory exemptions) -such City
personnel is encouraged to confer with the City Attorney pertaining to issues of
compliance with the State's Public Records Law, Florida Statutes Chapter 119, and
must, upon completion of document review, transmit to the City server those
email /texts /other electronic communications that have been determined to constitute a
public record.
Page 1111 of 1320
C. Miscellaneous Related Cit Personnel Duties:
1. The City may refuse to produce additional records if the fees for a previous request for
records have not been paid by the requestor, See Lozman v. City of Riviera Beach, 995
so. 2d 1027 (Fla, 4th DCA 2008). Should this situation arise, the Office of the City
Attorney must be consulted prior to the City Department's relaying such position to the
req uestor.
2. The City must provide a copy of the requested record in the medium requested if the
City maintains the record in that medium, The City is not required to furnish public
records in a format other than the standard format routinely maintained by the City. If the
City chooses to provide records in a requested format that is different than the standard
format used by it, the requestor is responsible for the actual costs of converting or
reformatting the information (in which situation, the City Department handling the records
request should prior to reformatting the information, communicate with the requestor and
obtain confirmation that he /she will assume such additional reformatting fees and
charges).
3. Each City Department's Record Custodian will advise the Office of the City Clerk once a
request has been completed, upon which event the Office of the City Clerk will update
the Request Log and closeout the request as having been completed.
III. COST CALCULATIONS:
A. Copies costs;
Copies to be charged (if total exceeds $1.00):
• .15 cents per one -sided copy for duplicated copies of not more than 14 inches by 8 %
inches;
• An additional .05 cents for each two -sided copy;
• For all other copies, the actual cost of duplication of the public record;
• $1 per copy for a certified copy of a public record;
• Utilities, office expenses, travel time and storage retrieval fees for public records stored off -
premises shall not be included.
B. S'.ecial Service Char•e in addition to co •y costs):
The City shall, pursuant to statutory authorization set forth below, charge a "special service
charge" for "extensive use of information technology resources or extensive clerical or
supervisory assistance by personnel of the agency involved, or both" pertaining to records
requests of 1/2 hour8 or more;
• Pursuant to Florida State Statute 119.07: "If the nature or volume of public records
requested to be inspected or copied pursuant to this subsection is such as to require
extensive use of information technology resources or extensive clerical or supervisory
See, i.e., City of Miami Beach Resolution 2006-26361 (adopted and incorporated by reference herein).
8 See, City of Miami Beach Resolution 2010 - 27497.
Page 1112 of 1320
assistance by personnel of the agency involved, or both, the agency may charge, in addition
to the actual cost of duplication, a special service charge, which shall be reasonable and
shall be based on the cost incurred for such extensive use of information technology
resources or the labor cost of the personnel providing the service that is actually incurred by
the agency or attributable to the agency for the clerical and supervisory assistance required,
or both ".
o For the purpose of public records requests made to the City of Miami Beach, the term
"extensive" shall be defined as labor of 1/2 hour or more which will be charged at the flat
rate of the employee's base salary and employee benefits (fringe benefits not included)
whose normal scope of duties include performing the function, even if an employee at a
higher pay level actually did the work. A higher rate may be charged for requests that
involve complex documents containing various exempt or confidential information -- usually
this will involve documents that have to be reviewed by staff from the Office of the City
Attorney who possess the knowledge necessary to make decisions with respect to potential
exemptions, in which situation the cost assessment shall be calculated in consultation with
such personnel.
Questions regarding any portion of this Policy should be directed to the Office of the City Clerk
at 305.673/411 or the Office of the City Attorney at 305.673.7470.
Reviewed by:
0, (
Raul J. Aguila, City At orney
Reviewed
Rafael/E. Granado, City Clerk
Jim '' y L. Mor les, City Manager
Date:
Date: 2. 2. o
Date: I Z
T,\AGPNDA\2017 \12 - December \City Clerk \2017 - Public Records - Resolution and Policy.docx
Page 1113 of 1320
MAW\
BEAC
Resolutions R7 H
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J. Aguila, City Attorney and Rafael E. Granado, City Clerk
DATE: December 13, 2017
SUBJECT A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, REPEALING THE CITY'S 2005 PUBLIC RECORDS
POLICY AND ADOPTING IN ITS PLACE THE CITY OF MIAMI BEACH'S 2017
PUBLIC RECORDS PROCESSING POLICY, APPLICABLE TO CITY ELECTED
AND APPOINTED OFFICIALS AND CITY EMPLOYEES.
ANALYSIS
Pursuant to the City Attorney and City Clerk's ongoing review of issues related to the City of Miami
Beach's compliance with the State's Public Records Law, the City's Public Records Policy has been
analyzed in order to ensure conformity with relevant judicial and Florida Attorney General opinions
issued since its adoption in 2005.
As a result of such review, and in particular light of recent judicial decisions confirming the
applicability of the Public Records law to certain electronic records of government personnel
(including text messaging as well as emails), the City Attorney and City Clerk recommend repeal of
the City's 2005 Policy and adoption of the attached 2017 Policy as more reflective of existing
compliance with the State's Public Records Law by its updated /greater detail of the procedures
attendant to City personnel's retention of public records (including those related to electronic
communications) and processes related to the City's response to document requests.
Legislative Tracking
Office of the City Attorney /Office of the City Clerk
ATTACHMENTS:
Description
CI Resolution and Policy
Page 1106 of 1320