Florida Statute Chapter 192 (2019)GOVERNMENT -IN -THE -SUNSHINE -MANUAL
compiles raw police data and then provides informational reports to law enforcement. The release
of the exempt information to the corporation for this purpose would not cause such records to
lose their exempt status. AGO 96-36.
However, while the courts have recognized that active criminal investigative information
may be forwarded from one criminal justice agency to another without jeopardizing its exempt
status, "[t]here is no statutory exemption from disclosure of an `ongoing federal prosecution."'
Woolling v. Lamar, 764 So. 2d 765, 768 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186
(Fla. 2001). In Woolling, the court held that a state attorney bore the burden of establishing
that state attorney files in a nolle grossed case which were furnished to the federal government for
prosecution of a defendant constituted active criminal investigative information; the fact that the
federal government was actively prosecuting the case was not sufficient, standing alone, to justify
imposition of the exemption.
Moreover, the exemption for active criminal intelligence and investigative information
does not exempt other public records from disclosure simply because they are transferred to a
law enforcement agency. See, e.g., Tribune Company v. Cannella, 438 So. 2d 516, 523 (Fla. 2d
DCA 1983), reversed on other grounds, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom.,
Deperte v. Tribune Company, 105 S.Ct. 2315 (1985) (assistant state attorney could not withdraw
public records from public scrutiny by asserting that he "compiled" the records simply because
he subpoenaed them; thus, law enforcement personnel records compiled and maintained by the
employing agency prior to a criminal investigation did not constitute criminal intelligence or
criminal investigative information); and State Attorney's Office of the Seventeenth judicial Circuit
v. Cable News Network, Inc., 251 So. 3d 205 (Fla. 4th DCA 2018) (surveillance video footage
created by a school district before a criminal investigation began did not constitute "criminal
investigative information" within the meaning of s. 119.011 [3]b] because it was not compiled by
a criminal justice agency in the course of conducting a criminal investigation). And see New Times,
Inc. v. Ross, No. 92-5795 CIV 25 (Fla. 11th Cir. Ct. March 17, 1992) (papers in a closed civil
forfeiture file which subsequently became part of a criminal investigation were open to inspection
as the materials could not be considered criminal investigative information because the file was
closed prior to the commencement of the criminal investigation).
Thus, public records maintained and compiled by the Office of the Capital Collateral
Representative cannot be transformed into active criminal investigative information by merely
transferring the records to the Florida Department of Law Enforcement (FDLE). AGO 88-25.
Accord Inf. Op. to Slye, August 5, 1993, concluding that the contents of an investigative report
compiled by a state agency inspector general in carrying out his or her duty to determine program
compliance are not converted into criminal intelligence information merely because FDLE also
conducts an investigation or because such report or a copy thereof has been transferred to that
department. And see Sun -Sentinel, Inc. v. Florida Department of Children and Families, 815 So.
2d 793 (Fla. 3d DCA 2002).
Similarly, in AGO 92-78, the Attorney General's Office concluded that otherwise
disclosable public records of a housing authority are not removed from public scrutiny merely
because the records have been subpoenaed by and transferred to the state attorney's office. Inf.
Op. to Theobald, November 16, 2006, stating that while an individual would be prohibited from
obtaining records from the internal investigation file pursuant to s. 112.533(2), F.S., while the
investigation is active, public records such as overtime slips created prior to the investigation and
maintained in the law enforcement officer's personnel file would not become confidential simply
because copies of such records are being used in the investigation.
However, the exemption for active criminal investigative information may not be subverted
by making a public records request for all public records gathered by a law enforcement agency
in the course of an ongoing investigation; to permit such requests would negate the purpose of
the exemption. AGO 01-75.
103
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
In addition, a request made by a law enforcement agency to inspect or copy a public
record that is in the custody of another agency and the custodian's response to the request,
and any information that would identify whether a law enforcement agency has requested or
received that public record are exempt from disclosure requirements, during the period in which
the information constitutes active criminal investigative or intelligence information. Section
119.071(2)(c)2.a., F.S. The law enforcement agency that made the request must give notice
to the custodial agency when the criminal intelligence information or criminal investigative
information is no longer active, so that the custodian's response to the request and information
that would identify the public record requested are available to the public. Section 119.071(2)
(c)2.b., F.S.
Thus, while agency records are not exempt merely because they have been submitted to
FDLE, s. 119.071(2)(c)2.a., F.S., exempts FDLE's request to inspect or copy records, as well as
the agency's response, or any information that would identify the public record that was requested
by FDLE or provided by the agency during the period in which the information constitutes
criminal intelligence or criminal investigative information that is active. AGO 06-04. Although
a request may be made for the agency's records, such a request may not be phrased, or responded
to, in terms of a request for the specific documents asked for and received by FDLE during the
course of any active criminal investigation. Id. Cf. Inf. Op. to Theobald, November 16, 2006,
stating that while the records in a personnel department were subject to disclosure, the personnel
department was precluded from identifying which of its records had been gathered by a law
enforcement agency in the course of its active internal investigation.
(10) Records containing both active criminal investigative information and non-exempt
information
The fact that a crime or incident report may contain some active criminal investigative
or intelligence information does not mean that the entire report is exempt from disclosure.
Section 119.07(1)(d), F.S., requires the custodian of the document to redact only that portion
of the record for which an exemption is asserted and to provide the remainder of the record for
inspection and copying. See, e.g., City of Riviera Beach v. Barfield, 642 So. 2d 1135, 1137 (Fla.
4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995), in which the court held that a city
was authorized to withhold exempt active criminal investigative records but "must comply with
the disclosure requirements of sections 119.07(2) [now s. 119.07(1)(d)] and 119.011(3)(c) by
making partial disclosure of certain non-exempt information contained in the records including,
inter alia, the date, time and location of the incident."
(11) Criminal investigative or intelligence information received from other states or the
federal government
Pursuant to s. 119.071(2)(b), F.S., criminal intelligence or investigative information
received by a Florida criminal justice agency from a non -Florida criminal justice agency on a
confidential or similarly restricted basis is exempt from disclosure. See State v. Wright, 803 So.
2d 793 (Fla. 4th DCA 2001), review denied, 823 So. 2d 125 (Fla. 2002) (state not required
to disclose criminal histories of civilian witnesses which it obtained from the Federal Bureau
of Investigation). The purpose of this statute is to "encourage cooperation between non -state
and state criminal justice agencies." State v. Buenoano, 707 So. 2d 714, 717 (Fla. 1998). Thus,
confidential documents furnished to a state attorney by the federal government remained exempt
from public inspection even though the documents inadvertently had been given to the defendant
and placed in the court record in violation of the conditions of the federal loan agreement. Id.
(12) Criminal investigative or intelligence information received prior to January 25, 1979
Criminal intelligence or investigative information obtained by a criminal justice agency
prior to January 25, 1979, is exempt from disclosure. Section 119.071(2) (a), F.S. See Satz v. Gore
Newspapers Company, 395 So. 2d 1274, 1275 (Fla. 4th DCA 1981) ("All criminal intelligence
and criminal investigative information received by a criminal justice agency prior to January 25,
104
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
1979, is specifically exempt from the requirements of public disclosure.").
b. "Baker Act" reports prepared by law enforcement officers
Part I, Ch. 394, F.S., is the "Baker Act," Florida's mental health act. The Baker Act provides
for the voluntary or involuntary examination and treatment of mentally ill persons. Pursuant to
s. 394.463(2)(a)2., F.S., a law enforcement officer must take a person who appears to meet the
statutory criteria for involuntary examination into custody and deliver that person, or have that
person delivered, to the nearest receiving facility for examination.
Section 394.463(2)(a)2., F.S., requires the officer to "execute a written report detailing the
circumstances under which the person was taken into custody, and the report shall be made a part
of the patient's clinical record." A patient's clinical record is confidential. Section 394.4615(1),
F.S. Thus, the report prepared by the officer pursuant to this statute is part of the patient's clinical
record and is confidential. Cf. Lake v. State, 193 So. 3d 932 (Fla. 4th DCA 2016) (Legislature
has not made records of a sexually violent predator confidential in the same way as the clinical
records of a Baker Act patient).
However, in AGO 93-51, the Attorney General's Office advised that a separate written
incident or event report prepared after a specific crime has been committed which contains
information given during the initial reporting of the crime, is filed with the law enforcement
agency as a record of that event, and is not made a part of the patient's clinical record, is not
confidential pursuant to Ch. 394, F.S. The opinion noted that the incident report in question
was not the confidential law enforcement report required by s. 394.463(2)(a)2., but was a separate
written incident or event report prepared by a deputy sheriff for filing with the sheriffs office as
an independent record of the deputy's actions.
C. Body camera recordings
A body camera recording is confidential and exempt from public disclosure when taken
inside a private residence, inside a health care, mental health care, or social services facility, or in
a place that a reasonable person would expect to be private. Section 119.071(2)(1)2., F.S. The
term "body camera" is defined to mean a "portable electronic recording device that is worn on a
law enforcement officer's body and that records audio and video data in the course of the officer
performing his or her official duties and responsibilities." Section 119.071(2) (1) La., F.S.
A law enforcement agency may disclose the recording in furtherance of its official duties
and responsibilities or to another governmental agency in furtherance of that agency's duties and
responsibilities. Section 119.071(2)(1)3., F.S.
The recording must be disclosed to certain individuals as set forth in the statute,
including the person recorded, or pursuant to court order. Section 119.071(2)(1)4., F.S. And
see s. 943.1718(2)(d), F.S. However, the exemption does not supersede any other public records
exemption that existed before or is created after the effective date of the exemption. Those
portions of a recording which are protected from disclosure by another public records exemption
shall continue to be exempt or confidential and exempt. Section 119.071(2)(1)7., F.S.
A law enforcement agency must retain a body camera recording for at least 90 days.
Section 119.071(2)(1)5., F.S. The exemption applies retroactively. Section 119.071(2)(1)6., F.S.
d. Confessions
Section 119.071(2) (e), F.S., exempts from disclosure any information revealing the
substance of a confession by a person arrested until such time as the case is finally determined by
adjudication, dismissal, or other final disposition. See Times Publishing Co. v. Patterson, 451 So.
2d 888 (Fla. 2d DCA 1984) (trial court order permitting state attorney or defendant to designate
affidavits, depositions or other papers which contained "statements or substance of statements"
105
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
to be sealed was overbroad because the order was not limited to those statements revealing the
substance of a "confession").
In AGO 84-33, the Attorney General's Office advised that only such portions of the
complaint and arrest report in a criminal case file which reveal the "substance of a confession,"
i.e., the material parts of a statement made by a person charged with the commission of a crime
in which that person acknowledges guilt of the essential elements of the act or acts constituting
the entire criminal offense, are exempt from public disclosure. But see Times Publishing Company
v. State, 827 So. 2d 1040, 1042 (Fla. 2d DCA 2002), in which the appellate court held that a trial
judge's order sealing portions of records of police interviews with the defendant did not constitute
a departure from the essential requirements of law; however, portions of the interview transcript
and tape which did not "directly relate to [the defendant's] participation in the crimes" did not
contain the substance of a confession pursuant to s. 119.071(2) (e), F.S., and must be released.
e. Confidential informants
Section 119.071(2)(f), F.S., exempts information disclosing the identity of confidential
informants or sources. This exemption applies regardless of whether the informants or sources
are still active or may have, through other sources, been identified as such. Christy v. Palm
Beach County Sheriffs Office, 698 So. 2d 1365, 1368 (Fla. 4th DCA 1997); Salcines v. Tampa
Television, 454 So. 2d 639 (Fla. 2d DCA 1984); and Rameses, Inc. v. Demings, 29 So. 3d 418
(Fla. 5th DCA 2010). And see State v. Natson, 661 So. 2d 926 (Fla. 4th DCA 1995) (private
citizen who provided police with tip information which led to defendant's arrest may be afforded
confidential informant status). Cf. Doe v. State, 901 So. 2d 881 (Fla. 4th DCA 2005) (where
citizen provided information to state attorney's office which led to a criminal investigation and
was justified in inferring or had a reasonable expectation that he would be treated as a confidential
source, the citizen is entitled to have his identifying information redacted from the closed file,
even though there was no express assurance of confidentiality by the state attorney's office); State
v. Bartholomew, No. 08-5656CFIOA (Fla. 17th Cir. Ct., August 7, 2009) (even if Crimestoppers
Council of Broward County were an agency for purposes of Ch. 119, F.S., information relating
to the identity of informants and persons from whom they received information would be
confidential under s. 119.071 [2] [f], ES.).
However, in Ocala Star Banner Corporation v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA
1994), the court held that a police department should not have refused to release an entire police
report on the ground that the report contained some information identifying a confidential
informant. According to the court, "[w]ithout much difficulty the name of the informant, [and]
the sex of the informant (which might assist in determining the identity) ... can be taken out
of the report and the remainder turned over to [the newspaper] ." Id. at 1197. Accord Christy v.
Palm Beach County Sheriffs Office, 698 So. 2d at 1368. And see Holley v. Bradford County Sheriffs
Department, 171 So. 3d 805 (Fla. 1st DCA 2015) (trial court must conduct an in camera
inspection of the records to determine whether they could be redacted to remove information
identifying confidential informants). Cf. Althouse v. Palm Beach County Sheriffs Office, 92 So. 3d
899 (Fla. 4th DCA 2012), disapproved on other grounds, Board of Trustees, Jacksonville Police &
Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) (agency conceded that its initial response
denying public records request for "rules, regulations, operating procedures and policies regarding
the recruitment and use of confidential informants" was "incorrect"; records were subsequently
produced after portions were redacted pursuant to s. 119.071 [2] [d], ES.).
Moreover, in City of St. Petersburg v. Romine ex rel. Dillinger, 719 So. 2d 19, 21 (Fla. 2d
DCA 1998), the court ruled that information regarding payments to a confidential informant
(who had been previously identified as a confidential informant during a criminal trial) is subject
to disclosure as long as the records are sufficiently redacted to conceal the specific cases on which
the informant worked. The court acknowledged that the Public Records Act may not be used
in such a way as to obtain information that the Legislature has declared must be exempt from
disclosure, but said that "this is not a situation where someone has alleged that they know or
106
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
suspect the identity of a confidential informant and the production of records involving that
informant would confirm the person's information or suspicion." Id.
Section 943.082(1), F.S., authorizes the Florida Department of Law Enforcement, in
collaboration with the Department of Legal Affairs, to competitively procure a mobile suspicious
activity reporting tool that allows students and the community to relay information anonymously
concerning unsafe, potentially harmful, dangerous, violent or criminal activities, or the threat of
these activities, to appropriate public safety agencies and school officials. The identity of the
reporting party received through the reporting tool and held by the department, law enforcement
agencies, or school officials is confidential. Section 943.082(6), F.S.
f. Criminal history information
(1) Criminal history information generally
Except where specific exemptions apply, criminal history information is a public record.
AGO 77-125; Inf. Op. to Lymn, June 1, 1990. And see AGO 97-09 (a law enforcement agency
may, without a request, release nonexempt information contained in its public records relating
to sexual offenders; the agency's authority to release such information is not limited to those
offenders who are designated as "sexual predators").
Section 943.046, F.S., states:
(1) Any state or local law enforcement agency may release to the public any criminal
history information and other information regarding a criminal offender, including, but
not limited to, public notification by the agency of the information, unless the information
is confidential and exempt [from disclosure]. However, this section does not contravene
any provision of s. 943.053 which relates to the method by which an agency or individual
may obtain a copy of an offender's criminal history record.
(2) A state or local law enforcement agency and its personnel are immune from civil
liability for the release of criminal history information or other information regarding a
criminal offender, as provided by this section.
Section 943.053(2), F.S., referenced in the above statute, provides restrictions on the
dissemination of criminal justice information obtained from federal criminal justice information
systems and other states by stating that such information shall not be disseminated in a manner
inconsistent with the laws, regulations, or rules of the originating agency. Thus, criminal history
record information shared with a public school district by the Federal Bureau of Investigation
retains its character as a federal record to which only limited access is provided by federal law and
is not subject to public inspection. AGO 99-01.
Section 943.053(3)(a), F.S., states that criminal history information compiled by the
Criminal Justice Information Program of the Florida Department of Law Enforcement from
intrastate sources shall be provided to law enforcement agencies free of charge and to persons in
the private sector upon payment of fees as provided in the subsection. And see page 110 relating
to dissemination of criminal history information relating to juveniles.
(2) Sealed and expunged records
Access to criminal history records sealed or expunged by court order in accordance with s.
943.059 or s. 943.0585, F.S., is strictly limited. See, e.g., Alvarez v. Reno, 587 So. 2d 664 (Fla. 3d
DCA 199 1) (Goderich, J., specially concurring) (state attorney report and any other information
revealing the existence or contents of sealed records is not a public record and cannot, under any
circumstances, be disclosed to the public).
A law enforcement agency that has been ordered to expunge criminal history information or
records should physically destroy or obliterate information consisting of identifiable descriptions
107
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
and notations of arrest, detentions, indictments, informations, or other formal criminal charges
and the disposition of those charges. AGO 02-68. However, criminal intelligence information
and criminal investigative information do not fall within the purview of s. 943.0585, F.S. Id.
And see AGO 00-16 (only those records maintained to formalize the petitioner's arrest, detention,
indictment, information, or other formal criminal charge and the disposition thereof would be
subject to expungement under s. 943.0585).
There are exceptions allowing disclosure of information relating to the existence of an
expunged criminal history record to specified entities for their respective licensing and employment
purposes, and to criminal justice agencies for their respective criminal justice purposes. Section
943.0585(4), F.S. Similar provisions exist relative to disclosure of sealed criminal history records.
Section 943.059(4), F.S. And see s. 943.0583(10)(a), F.S. (expunged criminal history record
of human trafficking victim). A records custodian who has received information relating to
the existence of an expunged or sealed criminal history record is prohibited from disclosing the
existence of such record. AGO 94-49.
g. Fingerprint records
Biometric identification information is exempt from s. 119.07(1), F.S. Section 119.071(5)
(g), F.S. The term "biometric identification information" means any record of friction ridge
detail, fingerprints, palm prints, and footprints. Id.
h. Forensic behavioral health evaluations
A forensic behavioral health evaluation filed with the court pursuant to Ch. 916, F.S.
(mentally deficient and mentally ill defendants) is confidential and exempt. Section 916.1065 (1),
F.S.
i. Juvenile offender records
(1) Confidentiality and authorized disclosure
Juvenile offender records traditionally have been considered confidential and treated
differently from other records in the criminal justice system. With limited exceptions, s.
985.04(1)(a), F.S., provides, in relevant part, that:
Except as provided in subsections (2), (3), (6), and (7) and s.
943.053, all information obtained under this chapter in the
discharge of official duty by any judge, any employee of the court,
any authorized agent of the department [of Juvenile Justice],
the Florida Commission on Offender Review, the Department
of Corrections, the juvenile justice circuit boards, any law
enforcement agent, or any licensed professional or licensed
community agency representative participating in the assessment
or treatment of a juvenile is confidential and exempt [from public
disclosure]. This exemption applies to information obtained
before, on, or after the effective date of this exemption. (e.$).
Section 985.04(1)(b), F.S., states that the confidential and exempt information may be
disclosed only to the authorized personnel of the court, the department and its designees, the
Department of Corrections, the Florida Commission on Offender Review, law enforcement
agents, school superintendents and their designees, any licensed professional or licensed
community agency representative participating in the assessment or treatment of a juvenile, and
others entitled under this chapter to receive that information, or upon court order. Cf. AGO
96-65 (subject of juvenile offense records may authorize access to such records to others [such as
a potential employer] by means of a release).
Similarly, s. 985.04(7)(a), F.S., limits access to records in the custody of the Department
of Juvenile Justice. With the exception of specified persons and agencies, juvenile records in the
•'
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
custody of that agency "may be inspected only upon order of the Secretary of Juvenile Justice
or his or her authorized agent by persons who have sufficient reason and upon such conditions
for their use and disposition as the secretary or his or her authorized agent deems proper." If a
juvenile prosecuted as an adult is transferred to serve his or her sentence in the custody of the
Department of Juvenile Justice, the department's records relating to that juvenile are not open to
public inspection. New York Times Company v. Florida Department of juvenile Justice, No. 03 -46 -
CA, 2003 WL 22723464 (Fla. 2d Cir. Ct. March 20, 2003).
Thus, as a general rule, access to records of juvenile offenders is limited. See, e.g., Inf. Op.
to Galbraith, April 8, 1992 (city's risk manager and attorney representing city in unrelated civil
lawsuit not among those authorized to have access); and Inf. Op. to Wierzbicki, April 7, 1992
(domestic violence center not among those authorized to receive juvenile information). And
see AGO 07-19 (confidentiality provisions preclude public release of the names and addresses
of the parents of juvenile arrested for a misdemeanor). And see s. 985.045 (2), F.S., providing,
with limited exceptions, for confidentiality of juvenile court records. Cf. AGO 97-28 (juvenile
confidentiality requirements do not apply to court records of a case in which a juvenile is
prosecuted as an adult, regardless of the sanctions ultimately imposed in the case).
Confidential photographs of juveniles taken in accordance with s. 985.11, ES, "may
be shown by a law enforcement officer to any victim or witness of a crime for the purpose of
identifying the person who committed such crime." Section 985.11(1)(b), F.S. This statute
authorizes a law enforcement officer to use photographs of juvenile offenders in a photographic
lineup for the purpose of identifying the perpetrator of a crime, regardless of whether those
juvenile offenders are suspects in the crime under investigation. AGO 96-80. Cf. Barfield v.
Orange County, Florida, No. CI92-5913 (Fla. 9th Cir. Ct. August 4, 1992) (denying petitioner's
request to inspect gang intelligence files compiled by the sheriffs office).
(2) Exceptions to confidentiality
(a) Child traffic violators
All records of child traffic violations shall be kept in the full name of the violator and shall
be open to inspection and publication in the same manner as adult traffic violations. Section
985.11(3), F.S.
(b) Felony arrests and adult system transfers
Until October 1, 1994, law enforcement agencies generally could release only the name
and address of juveniles 16 and older who had been charged with or convicted of certain crimes.
In 1994, the juvenile confidentiality laws were modified to eliminate the age restriction and
provide enhanced disclosure. Section 985.04(2), F.S., was amended again in 2016 and now
provides:
Notwithstanding any other provisions of this chapter, the name, photograph, address, and
crime or arrest report of a child:
(a) Taken into custody by a law enforcement officer for a violation of law which, if
committed by an adult, would be a felony;
(b) Charged with a violation of law which, if committed by an adult, would be a felony;
(c) Found to have committed an offense which, if committed by an adult, would be a
felony; or
(d) Transferred to adult court pursuant to part X of Chapter 985, are not considered
confidential and exempt from s. 119.07(1) solely because of the child's age.
The Attorney General's Office has stated that the expanded disclosure provisions originally
enacted in 1994 apply only to juvenile records created after October 1, 1994, the effective
109
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
date of the 1994 amendments to the juvenile confidentiality laws. AGO 95-19. Confidential
information on juveniles arrested prior to October 1, 1994, is available by court order upon a
showing of good cause. Id. See G. G. v. Florida Department of Law Enforcement, 97 So. 3d 268,
274 (Fla. 1st DCA 2012) ("it is clear that only the arrest records of those juveniles who the
legislature has designated in section 985.04[2] have lost their confidential status and are available
to the public ...."). See also the discussion below regarding the dissemination of criminal history
information relating to juveniles.
A public records custodian may choose not to electronically publish on the custodian's
website the arrest or booking photographs of a child which are not confidential and exempt under
this section or otherwise restricted from publication by law; however, this subparagraph does not
restrict public access to records as provided by s. 119.07, F.S. Section 985.04(2)(a)2., F.S.
(c) Mandatory notification to schools
Section 985.04(4)(b), F.S., provides that when the state attorney charges a juvenile with
a felony or a delinquent act that would be a felony if committed by an adult, the state attorney
must notify the superintendent of the juvenile's school that the juvenile has been charged with
such felony or delinquent act. A similar directive applies to a law enforcement agency that takes
a juvenile into custody for an offense that would have been a felony if committed by an adult,
or a crime of violence. Section 985.04(4)(a), F.S. And see s. 1006.08 (2), F.S. (notification by
court to school superintendent); and s. 985.04(4)(c), F.S. (notification by school superintendent
to certain school personnel). Cf. s. 985.04(4)(d), F.S. (notification by Department of Juvenile
justice of the presence of a juvenile sex offender in the care and custody or under the jurisdiction
and supervision of the department).
(d) Criminal history information relating to juveniles
Section 943.053(3)(01., F.S., provides that criminal history information relating to
juveniles, including information that is confidential pursuant to s. 943.053(3)(b), F.S., shall be
available to:
(a) A criminal justice agency for criminal justice purposes on a priority basis and free of
charge;
(b) The person to whom the record relates, or his or her attorney;
(c) The parent, guardian, or legal custodian of the person to whom the record relates,
provided such person has not reached the age of majority, been emancipated by a court, or
been legally married; or
(d) An agency or entity specified in s. 943.0585(4) or s. 943.059(4), F.S., for the purpose
specified therein, and any person within such agency or entity who has direct responsibility
for employment, access authorization, or licensure decisions.
(e) Victim access
Section 985.036(1), F.S., allows the victim, the victim's parent or guardian, their lawful
representatives, and, in a homicide case, the next of kin, to have access to information and
proceedings in a juvenile case, provided that such rights do not interfere with the constitutional
rights of the juvenile offender. Those entitled to access "may not reveal to any outside party any
confidential information obtained under this subsection regarding a case involving a juvenile
offense, except as is reasonably necessary to pursue legal remedies." Id. And see s. 960.001 (8),
F.S., authorizing similar disclosures to victims.
In addition, s. 985.04(3), F.S., states that a "law enforcement agency may release a copy of
the juvenile offense report to the victim of the offense." Cf. Harvard v. Village of Palm Springs, 98
So. 3d 645 (Fla. 4th DCA 2012), noting that the authorization in s. 985.04(3), F.S., is permissive
not mandatory; thus, a local government was not required to produce a juvenile offense report to
110
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
the victim's mother.
j. M for vehicle records
(1) Automated license plate recognition system records
Images and data containing or providing personal identifying information obtained
through use of an automated license plate recognition system are confidential and exempt.
Section 316.0777, F.S.
(2) Crash reports
Motor vehicle crash reports are confidential for a period of 60 days after the report is
filed. Section 316.066(2)(a), F.S. However, such reports may be made immediately available
to the parties involved in the crash, their legal representatives, their insurance companies and
agents, prosecutorial authorities, law enforcement agencies, the Department of Transportation,
county traffic operations, victim services programs, and certain print and broadcast media as
described in the exemption. Section 316.066(2)(b), F.S. Nevertheless, certain "free newspapers
of general circulation," as specified in the exemption, may not have access to the home, cellular,
employment, or other telephone number or the home or employment address of any of the
parties involved with the crash if the newspaper requests ten or more crash reports within a 24
hour period before the 60 day period has ended. Section 316.066(2)(f), ES.
The owner of a vehicle involved in a crash is among those authorized to receive a copy
of the crash report immediately. AGO 01-59. In addition, the statute provides that any local,
state, or federal agency that is authorized to have access to crash reports by any provision of
law shall be granted such access in the furtherance of the agency's statutory duties. Section
316.066(2)(c), F.S. Cf. AGO 06-11 (fire department that is requesting crash reports in order
to seek reimbursement from the at -fault driver does not fall within the scope of this provision
authorizing immediate access to the reports).
"As a condition precedent to accessing a crash report within 60 days after the date the report
is filed, a person must present a valid driver's license or other photographic identification, proof
of status or identification that demonstrates his or her qualifications to access that information,
and file a written sworn statement with the state or local agency in possession of the information
stating that information from a crash report made confidential and exempt by this section will
not be used for any commercial solicitation of accident victims, or knowingly disclosed to any
third party for the purpose of such solicitation, during the period of time that the information
remains confidential and exempt." Section 316.066(2)(d), F.S.
The written statement must be completed and sworn to by the requesting party for each
individual crash report that is being requested within 60 days after the report is filed. Id. Reports
may be released without the sworn statement to third -party vendors under contract with one
or more insurers, but only if the conditions set forth in the statute are stated in the contract.
Id. Third-degree felony penalties are established for knowing unauthorized disclosure or use of
confidential information in violation of this statute. See s. 316.066(3)(b), (c), and (d), F.S., for
more information.
(3) Department of Highway Safety and Motor Vehicles motor vehicle records
Section 119.0712(2)(b), F.S., provides that personal information, including highly
restricted personal information as defined in 18 U.S.C. s. 2725, contained in a motor vehicle
record is confidential pursuant to the federal Driver's Privacy Protection Act of 1994, 18 U.S.C.
ss. 2721 et seq (DPPA). Such information may be released only as authorized by that act. The
term "motor vehicle record" is defined to mean any record that pertains to a motor vehicle
operator's permit, motor vehicle title, motor vehicle registration, or identification card issued
by the Department of Highway Safety and Motor Vehicles (DHSMV). Section 119.0712(2)
(a), F.S. And see s. 119.0712(2)(d)1. and 2., F.S., providing that emergency contact information
111
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
contained in a motor vehicle record is confidential.
E-mail addresses collected by DHSMV pursuant to cited statutes [motor vehicle record and
driver license transactions] are exempt from public disclosure requirements. Section 119.0712(2)
(c), F.S.
(4) Law enforcement agency records
The Attorney General's Office has stated that while DHSMV motor vehicle records are
confidential in the hands of a law enforcement agency, to the extent information is taken from
DHSMV records and used in preparing other records of the law enforcement agency or its agent,
the confidentiality requirements of s. 119.0712(2)(b), F.S., do not reach those records created by
subsequent users. Thus, a driver's license number that is included in a law enforcement officer's
report is not confidential or exempt from disclosure and copying. AGO 10-10.
Similarly, DPPA does not prohibit a city from disclosing to a newspaper, in response to
a public -records request, the violation notices the city sent to vehicle owners based on images
captured by red-light cameras. City of Tallahassee v. Federated Publications, Inc., No. 4:1 1cv395-
RH/CAS (N.D. Fla. August 9, 2012). Cf. s. 316.0777, F.S. (2014).
k. Pawnbroker records
All records relating to pawnbroker transactions delivered to appropriate law enforcement
officials pursuant s. 539.001, F.S., the Florida Pawnbroking Act, are confidential and exempt
from disclosure and may be used only for official law enforcement purposes. Section 539.003,
F.S. However, law enforcement officials are not prohibited from disclosing the name and address
of the pawnbroker, the name and address of the conveying customer, or a description of the
pawned property to the alleged owner of pawned property. Id. And see AGO 01-51.
1. Polygraph records
The Attorney General's Office is not aware of any statutory provision barring access to
otherwise public records, simply because the records are in the form of polygraph charts. See,
e.g., Wisner v. City of Tampa Police Department, 601 So. 2d 296 (Fla. 2d DCA 1992) (polygraph
materials resulting from polygraph examination that citizen took in connection with a closed
internal affairs investigation were public records); and Downs v. Austin, 522 So. 2d 931 (Fla.
1st DCA 1988) (because state had already publicly disclosed the results of polygraph tests
administered to defendant's accomplice, the tests were not exempt criminal investigative or
intelligence information and were subject to disclosure to the defendant).
However, the s. 119.071(1)(a), F.S., exemption for questions and answers used in
employment examinations applies to questions and answers contained in pre-employment
polygraph examinations. Rush v. High Springs, 82 So. 3d 1108 (Fla. 1st DCA 2012). This
exemption applies to examination questions and answers but does not include the "impressions
and grading of the responses" by the examiners. See Dickerson v. Hayes, 543 So. 2d 836, 837 (Fla.
1st DCA 1989). See also Gillum v. Times Publishing Company, No. 91 -2689 -CA (Fla. 6th Cir.
Ct. July 10, 1991) (newspaper entitled to access to employment polygraph records "to the extent
such records consist of polygraph machine graph strips and examiners' test results, including the
bottom portion of the machine graph denoted `Findings and Comments' or similar designation";
however, agency could redact "any examinee's actual answers to questions or summaries thereof").
M. Prison and inmate records
In the absence of statutory exemption, prison and inmate records are subject to disclosure
under the Public Records Act. Cf. Williams v. State, 741 So. 2d 1248 (Fla. 2d DCA 1999)
(order imposing offender's habitual offender sentence and documents showing his qualifying
convictions, subject to disclosure under Ch. 119).
112
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
Subject to limited exceptions, s. 945.10, F.S., states that the following records and
information held by the Department of Corrections are confidential and exempt from public
inspection: mental health, medical (including HIV tests) or substance abuse records of inmates
or offenders; preplea, pretrial intervention, presentence or postsentence investigative records;
information regarding a person in the federal witness protection program; confidential or exempt
Parole Commission records; information which if released would jeopardize someone's safety;
information concerning a victim's statement and identity; information which identifies an
executioner; and records that are otherwise confidential or exempt by law. See Correll v. State,
184 So. 3d 478 (Fla. 2015), in which the Court summarized prior precedent upholding the
constitutionality of s. 945. 10, F.S., and again rejected claims that an inmate has the right to know
the identity of execution team members. See also Roberts v. Singletary, No. 96-603 (Fla. 2d Cir.
Ct. July 28, 1997) (portions of the Department of Corrections Execution Procedures Manual
containing "highly sensitive security information" not subject to disclosure). Cf. s. 951.27,
F.S. (limited disclosure of infectious disease test results, including HIV testing pursuant to s.
775.0877, F.S., of inmates in county and municipal detention facilities).
The Public Records Act applies to a private corporation which has contracted to operate
and maintain the county jail. Times Publishing Company v. Corrections Corporation ofAmerica,
No. 91-429 CA 01 (Fla. 5th Cir. Ct. December 4, 1991), per curiam affirmed, 611 So. 2d 532
(Fla. 5th DCA 1993). See also Prison Health Services, Inc. v. Lakeland Ledger Publishing Company,
718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (records of
private company under contract with sheriff to provide health care to jail inmates are subject to
Ch. 119 just as if they were maintained by a public agency).
n. Resource inventories and emergency response plans
Section 119.071(2)(d), F.S., exempts "[a]ny comprehensive inventory of state and local law
enforcement resources compiled pursuant to part I, chapter 23, and any comprehensive policies
or plans compiled by a criminal justice agency pertaining to the mobilization, deployment, or
tactical operations involved in responding to emergencies, as defined in s. 252.34 ...." See
Timoney v. City of Miami Civilian Investigative Panel, 917 So. 2d 885 (Fla. 3d DCA 2005), in
which the court held that a city police department's Operational Plan prepared in response to
intelligence reports warning of possible violence surrounding an economic summit remained
exempt from disclosure after the summit ended. The court found that the city planned to use
portions of the Plan for future events and the "language of [the exemption] leads us to believe that
the legislature intended to keep such security information exempt after an immediate emergency
passes." Id. at 887. And see s. 119.071(3) (a)1., F.S., which includes "emergency evacuation
plans" and "sheltering arrangements" within the definition of a "security or firesafety system plan"
that is confidential and exempt from public disclosure.
o. Surveillance techniques, procedures or personnel
Information revealing surveillance techniques, procedures or personnel is exempt from
public inspection pursuant to s. 119.071(2) (d), F.S. See Rameses, Inc. v. Demings, 29 So. 3d
418 (Fla. 5th DCA 2010) (disclosure to criminal defendant of unredacted undercover police
surveillance recordings does not destroy exemption in s. 119.071 [2] [d], F.S.; therefore, sheriff is
only required to provide redacted recording in response to a public records request); and State
v. Bee Line Entertainment Partners Ltd., No. CIO 00-5358, 28 Med.L.Rptr. 2592 (Fla. 9th Cir.
Ct. October 25, 2000) (videotapes created with hidden camera by law enforcement investigation
showing result of investigative activity but that do not reveal confidential surveillance methods
must be released once investigation is no longer active). And see Althouse v. Palm Beach County
Sheriffs Office, 92 So. 3d 899 (Fla. 4th DCA 2012), disapproved on othergrounds, Board of Trustees,
Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016) noting that the agency
had conceded that its initial response denying Althouse's request for "rules, regulations, operating
procedures and policies regarding the recruitment and use of confidential informants" was
"incorrect" and that the agency had subsequently produced the records after redacting portions
113
GOVERNMENT -IN -THE -SUNSHINE -MANUAL
pursuant to s. 119.071(2)(d), F.S.
p. Undercover personnel
Section 119.071(4)(c), F.S., provides that any information revealing undercover personnel
of any criminal justice agency is exempt from public disclosure. But see Ocala Star Banner
Corporation v. McGhee, 643 So. 2d 1196, 1197 (Fla. 5th DCA 1994)(police department should
not have refused to release an entire police report containing some information that could lead
to an undercover person's identity, when, without much difficulty, the name or initials and
identification numbers of the undercover officer and that officer's supervisor could be taken out
of the report and the remainder released). Accord Christy V. Palm Beach County Sheriffs Office, 698
So. 2d 1365 (Fla. 4th DCA 1997).
Information regarding law enforcement officers who are assigned to undercover duty and
whose names appear on personnel rosters or other lists of all law enforcement officers of the city
without regard to whether the record reveals the nature of their duties may constitute "[a]ny
information revealing undercover personnel of any criminal justice agency[.]" AGO 15-02. The
Legislature's determination that such information is exempt from public inspection, rather than
confidential, conditions the release of exempt information upon a determination by the custodian
that there is a statutory or substantial policy need for disclosure. Id.
For information on the identity of safe -school officers appointed pursuant to s. 1006.12,
F.S., please refer to the discussion on page 148.
+ Victim information
Although s. 119.071(2)(c), F.S., exempts active criminal investigative information from
disclosure, the "name, sex, age, and address of ... the victim of a crime, except as provided in
s. 119.071(2) (h) or (o)," are specifically excluded from the definition of criminal investigative
or intelligence information. See s. 119.011(3)(c)2., F.S. Accordingly, victim information is
considered to be public record in the absence of a statutory exemption. Cf. Palm Beach County
Sheriffs Office v. Sun -Sentinel Company, LLC, 226 So. 3d 969 (Fla. 4th DCA 2017) (s. 119.071 [2]
[m], F.S., providing an exemption for the identity of homicide witnesses for 2 years after the date
on which the murder is observed by the witness shields the identity of witnesses to a highway
shooting who became victims when the perpetrator shot at their vehicle). A discussion of the
exemptions which apply to crime victims generally, and those which apply to the victims of
certain crimes, follows. Also see page xv re: Marsy's Law.
(1) Amount of stolen property
Pursuant to s. 119.071(2) (i), F.S., criminal intelligence or investigative information that
reveals the personal assets of a crime victim, which were not involved in the crime, is exempt
from disclosure. However, this exemption does not apply to information relating to the amount
of property stolen during the commission of a crime. AGO 82-30. Note, however, that s.
119.071(2)(j) I., F.S., provides that victims of certain crimes may file a written request to exempt
information revealing their "personal assets."
(2) Commercial solicitation of victims
Section 119.105, F.S., provides that police reports are public records except as otherwise
made exempt or confidential and that every person is allowed to examine nonexempt or
nonconfidential police reports. However, a person who comes into possession of exempt or
confidential information in police reports may not use that information for commercial
solicitation of the victims or relatives of the victims and may not knowingly disclose such
information to a third party for the purpose of such solicitation during the period of time that
information remains exempt or confidential. Id. The statute "does not prohibit the publication
of such information to the general public by any news media legally entitled to possess that
information or the use of such information for any other data collection or analysis purposes by
114