FAF Letter to City of Tallahassee RE: Security Exemption

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December 27, 2017

Mr. Lewis B. Shelley, Esq., City Attorney
City of Tallahassee
300 S. Adams Street
Tallahassee, FL 32301

Dear Mr. Shelley:

The First Amendment Foundation has received a copy of a public record request made to the City by Mr. Stephen Leverette on November 20.  In that request, Mr. Leverette requested copies of all “Extra Patrol/House/Business Checks” filed between a specified period of time for five separate addresses within city limits.

The City’s director of records management, Mr. Matt Lutz, denied the request via email on November 22, claiming that the requested records are exempt from disclosure pursuant to ss. 119.071(3)(a)2. and s. 281.301, F.S.  In explaining the cited exemptions, Mr. Lutz stated that the exemptions protect both the physical security of one’s location and/or information concerning any security systems or practices in effect at one’s location.”  [emphasis added]

Mr. Lutz went on to explain that releasing the requested records “would permit anyone intending to do harm to obtain information via the Public Records Act which could be used to carry out criminal activity.”

Both exemptions cited by Mr. Lutz protect security systems for any property owned or leased by a government agency as well as the security systems for privately owned or leased property in the possession of a government agency.  The exemptions are, however, slightly different.

Section 281.301, F.S., was first enacted in 1987 and exempts “information relating to” security systems, “including all records, information photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations relating directly to or revealing such systems or information . . .”

Section 119.071(3)(a)2., F.S., was created during Special Session 2001-C, one of the special legislative sessions called immediately following the terrorist attacks of 9/11.  It provides an exemption for “security system plans.”  The exemption expands the definition found in the original exemption to also include threat assessments; threat response plans; emergency evacuation plans, sheltering arrangements; and security manuals.

There was an attempt by the Legislature to expand s. 281.301 during Special Session 2001-B   The bill, SB 62-B, failed to pass, but the statement of public necessity contained language identical to that found in SB 16-C, which created s. 119.071(3)(a)2. This language explains the purpose of the security system plans exemption:

To coordinate the response of the public sector and the private sector in an emergency, such as an act of terrorism, public agencies must be able to review security-system plans for public and private property. If the information in security system plans is available for inspection and copying, terrorists could use this information to hamper or disable emergency-response preparedness, thereby increasing injuries and fatalities. [CS for SB 62-B, pages 2-3 and CS for SB 16-C, page 3. (emphasis added)]

It’s well established in Florida that exemptions to the Public Records Act are to be strictly construed and narrowly applied; application of exemptions are limited to their stated purpose.  See, e.g., National Collegiate Athletic Association v. Associated Press, 18 So. 3d 1201 (Fla. 1st DCA  2009), review denied, 37 So. 3d 848 (Fla. 2010); Kricscher v. D’Amato, 674 So. 2d 909 (Fla. 4th DCA 1996); Seminole County v. Wood, 512 So. 2d 1000, (Fla. 5th DCA 1987); and Tribune Company v. Public Records, 493 So. 2d 480 (Fla. 2nd DCA 1986)

The exemptions cited by Mr. Lutz in denying Mr. Leverette’s public record request clearly are intended to protect the physical security of both government and private property and not the physical location of the property.  A request by a city resident or business owner for extra patrols is not, under the plain meaning of the terms, either a “security system” or a “security system plan.”  To conclude otherwise strains credulity.  Additionally, Mr. Leverette provided the addresses in his public record request; asserting that the requested records could not be released because of the need to protect the location of the property is nonsensical.

Finally, section 119.01(1), F.S., unequivocally states that “all state, county, and municipal records are open for personal inspection and copying by any person.” [emphasis added]  A person’s motive in seeking access to public records is immaterial and an agency cannot deny a public record request based on a suspicion that the request may be for an improper purpose. [Curry v. State, 811 So. 2d 736 (Fla. 4th DCA 2002); Inf. Op to Cook, May 27, 2011]  If Mr. Lutz was concerned about the possible criminal use of the requested records, he should have informed law enforcement rather than deny the request based on an assumption.

We ask that you review the November 20 request, Mr. Shelley, and either assert a proper, applicable exemption or provide Mr. Leverette with copies of the requested records.

Sincerely,
Barbara A. Petersen, President

 

cc:        The Honorable Andrew Gillum, Mayor, City of Tallahassee
James O. Cooke IV, Treasurer-Clerk, City of Tallahassee
First Amendment Foundation Board of Trustees

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[VIEW 1/12/18 PDF RESPONSE FROM THE CITY OF TALLAHASSEE]

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