Below, the sad and unfortunate denouement to the local situation involving my friend and fellow HB civic activist Michael Butler, the beginning, middle and end of which you NEVER saw mentioned once on local Miami TV newscasts, or -surprise!- in the Miami Herald.
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2011
MICHAEL BUTLER,
Appellant,
v.
CITY OF HALLANDALE BEACH, a Florida Municipality,
Appellee.
No. 4D10-197
[July 20, 2011]
HAZOURI, J.
Michael Butler appeals from a final judgment in a declaratory action
filed b y Th e City of Hallandale Beach (th e City), which sought a
declaration that a list of recipients of a personal email sent by Hallandale
Beach Mayor, Joy Cooper, was not sent in connection with the discharge
of a n y municipal d u t y and, therefore, is not a public record under
Florida’s Public Records Law, Chapter 119, Florida Statutes (2009).
The email in question was sent b y Cooper from her personal email
account, using her personal computer, and was blind carbon copied to
friends and supporters. Th e email itself was very brief, and contained
three articles that Cooper wrote as a contributor to the South Florida
Sun Times (Times) as a n attachment. Cooper h a s been a weekly
columnist for the Times for more than four years. Th e three articles
included as an attachment to the email were: (1) a transcript of the 2009
State of the City Address; (2) a transcript of Part Two of the State of the
City Address; a n d (3) an article about tax questions raised at prior
commission meetings.
The trial court found that Cooper was under no obligation pursuant to
the statute or ordinance to notify her friends a n d supporters that a
column had been published, and further that the City played no role in
Cooper’s decision to send the email to friends. Therefore, Butler was not
entitled to the names and email addresses of the recipients of the email.
We agree and affirm.
----------------------
- 2 -
Public access to records and meetings of public officials is established
b y Article I, section 24(a) of the Florida Constitution, which states,
“[e]very person has the right to inspect or copy any public record made or
received in connection with the official business of any . . . officer, or
employee of the state . . . except with respect to records exempted
pursuant to this section or specifically made confidential b y this
Constitution.” Section 24(c) provides that the state legislature, by a twothirds vote of each house of the legislature, h a s th e power to enact
exemptions to section 24(a)’s disclosure requirements. Art. I, § 24(c), Fla.
Const.
Section 119.011(12) defines a “public record” as:
[A]ll documents, papers, letters, maps, books, tapes,
photographs, films, s o u n d 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 an agency.
§ 119.011(12), Fla. Stat. (2009). And section 119.011(2) defines “agency”
as:
[A]ny state, county, district, authority, or municipal officer,
department, division, board, bureau, commission, or other
separate unit of government created or established b y law
including, for the purposes of this chapter, the Commission
on Ethics, the Public Service Commission, and the Office of
Public Counsel, a n d any other public or private agency,
person, partnership, corporation, or business entity acting
on behalf of any public agency.
§ 119.011(2), Fla. Stat. (2009). Cooper qualifies as a n “agency” as set
forth in section 119.011(2), since the Mayor is a municipal officer acting
on behalf of the municipality and is thus subject to the directives of this
section.
“The determination of what constitutes a public record is a question of
law entitled to de novo review.” State v. City of Clearwater, 863 So. 2d
149, 151 (Fla. 2003) (quoting Media Gen. Convergence, Inc. v. Chief Judge
of the Thirteenth Judicial Circuit, 840 So. 2d 1008, 1013 (Fla. 2003)).
In City of Clearwater, the Florida Supreme Court analyzed the issue of
whether e-mails are considered public records. In that case, a reporter
------------------------------
- 3 -
requested that the city provide copies of all e-mails either sent from or
received by two city employees over the city’s computer network. Id. at
150. At issue was whether the e-mails, by virtue of the city’s possession
on their network, were public records. Id. at 151. The court concluded
that the definition of public records is limited to public information
related to records, and further defined the term “records” as those
materials that have b e e n prepared with the intent of perpetuating or
formalizing knowledge. Id. at 154 (quoting Shevin v. Byron, Harless,
Schaffer, Reid & Assocs., Inc., 379 So. 2d 633, 640 (Fla. 1980)). The
court emphasized that the mere placement of an e-mail on a government
network is not controlling in determining whether it is public record, but
rather, whether the e-mail is prepared in connection with the official
business of an agency and is “intended to perpetuate, communicate, or
formalize knowledge of some type.” Id. (quoting Shevin, 379 So. 2d at
640).
The court in City of Clearwater also emphasized that a common sense
approach should b e used in determining whether a communication is
public record, and further emphasized that “[t]h e determining factor is
the nature of the record, not its physical location.” Id. Just as the
supreme court concluded that the mere fact that the email was a product
of the City’s computer network did not automatically make it a public
record, the City concedes that the mere fact that Cooper’s email was sent
from her private email on her own personal computer is not the
determining factor as to whether the email was a public record. Once
again, it is whether the email was prepared in connection with official
agency business a n d in t e n d e d to perpetuate, communicate, and
formalize knowledge of some kind. See id.
The City played no role in Cooper’s decision to write articles for the
Times. Th e City played n o role in identifying the topics about which
Cooper chose to write and exercised no control over the content of the
articles. The City played no role in Cooper’s decision to distribute or not
to distribute her Times articles, or the means by which she chose to do
so. Th e City played n o role in deciding to whom Cooper chose to
distribute the copies of her articles; Cooper herself decided to distribute
the articles to select personal friends a n d supporters at her own
discretion. The email that Cooper sent was not intended to perpetuate,
communicate, or formalize the City’s business; it was simply to provide a
copy of the articles to Cooper’s friends and supporters. The email was
not made pursuant to law or in connection with the transaction of official
business by the City, or Cooper in her capacity as Mayor.
--------------
- 4 -
As previously noted, Chapter 119 is a legislative clarification of Article
I, section 24(a) of the Florida Constitution, which provides that “[e]very
person h a s th e right to inspect or copy a n y public record made or
received in connection with the official business of a n y public body,
officer, or employee of the state, or persons acting on their behalf.” The
articles h a d been previously published where anyone could inspect or
c o p y them a n d th e email forwarding copies of the articles was not
prepared in connection with the official business of the Mayor or the
City.
We, therefore, affirm the trial court’s determination that these articles,
the email, email addresses, and names of its recipients were not public
records under Chapter 119.
Affirmed.
WARNER, J., and MONACO, TOBY S., Associate Judge, concur.
* * *
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Patti Englander Henning, Judge; L.T. Case No. 09-
22405 03.
Edward F. Holodak of Edward F. Holodak, P.A., a n d Louis C.
Arslanian, Hollywood, for appellant.
Andrea Flynn Mogensen of The Law Office of Andrea Flynn Mogensen,
P.A., Sarasota, for Amicus Curiae First Amendment Foundation, Inc., a
not-for-profit corporation.
Daniel L. Abbott a n d Jamie A. Cole of Weiss, Serota, Helfman,
Pastoriza, Cole & Boniske, P.L., Fort Lauderdale, for appellee.
Not final until disposition of timely filed motion for rehearing
(1.41 MB)
