Beat Police Departments at their own game! Public Record Request Fundamentals
First and foremost, this is not legal advice. It is my opinion and experience while gathering records. I am not an attorney.
RULE 1: Never File a complaint THEN ask for records! REMEMBER THIS! They'll lock your records up in an investigation exemption
Agencies will do what is in their power to either swiftly provide you the record, or make it harder for you to get. There are ways to combat their denials without having to sue. Sometimes there is a requirement to sue. Florida only allows attorney fees to be recovered as part of the settlement if the city is found "at fault" or in violation of not providing the record. The reciprocal is true for them also; except they will bill you an outrageous amount of money to defend and protect the record they are denying.
After all, the records are incoming forms, data, emails, reports, and other things that the public should be able to see. The stuff they DON'T want you to see is what is damaging to them and they will protect those records if they can. You would imagine that anything should be able to be inspected, but it is NOT! There is a 375 page manual that gives the clerks what they can and can't do. Use it to your advantage and arm yourself with knowledge.
Axon Audit Trail
Company who supplies Tasers, Body camera, and restraint devices
EXIF Data for body camera
Software for Internal and external communication complaints that don't make it to IA
Software for complaint tracking
What can be requested
Anything and everything can be requested and you may be provided something that otherwise wouldn't be released if an uneducated record holder has it in their possession. So even though it's exempt, don't hesitate to ask for it. Here are several types of records I receive and ask for. Below is a short list of items that can be requested. There are many more that are capable of being requested but this should give you an idea. You literally can ask for anything but it is up to the clerk to check to see if they can legally withhold it for any exemption. Remember there's no statutory penalty for releasing an exempted record. I will go over exempted records later. The following are releasable record examples:
-Personal cell phone (work-related)
-Work cell phone video
-In car camera (police/fire)
-Red Light Camera
-Other non-security cam
-Crash Scene / Crime Scene (closed investigation)
-Personal cell phone (work-related)
-Work cell phone video
-In-car camera stills (police/fire)
-Stills from court
-Red Light Camera stills
-Other non-security cam stills
-Any photograph not exempt from FL Statute
-Copies of Citations
-IA completed files
-911 Call logs
-Officer audio recordings
-Security camera audio
-Non Emergency Lines
-Evidence containing audio
-Phone Recordings including 911 calls
Beat The System!
Government may try to prohibit your request, delay it, and then not even fulfill it. The following is the best practice when doing a request. Keep it short, sweet, get one item fulfilled and then request another. This will allow for free fulfillment and faster reply. There are several other things you can do to get them to comply faster and provide more information. Remember, at the other end of the computer, phone or desk is a person who will like you or hate you. The first line of the 119.01 FSS states "It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency." This is similar to the Bill of Rights. In fact, the public records are listed in the Constitution of Florida Section 24.
Eric McDonough who runs True Homestead and Facebook page has been a huge inspiration at learning about public records. Doc Justice as he is known has several lawsuits and some pending, one in which he just won out of the south Florida area. He has lost some cases but as crafty as he is those cases he lost in helps his future cases by rulings of judges. I'd hate to play chess with this guy. We'll do an interview with him in the future. You must see his work! Go give him a follow.
Basics of your request
· Submit in writing (keep description concise)
· Request receipt confirmation (accountability)
· Phone call follow-up and get name of call taker (if no reply)
· Request one item at a time (this triggers a fast response)
· Once first request fulfilled submit another (second items will come slower)
· Request for previously released items (body cameras, reports, etc.) These have already been redacted for someone else
· Build a rapport with the record holder
· Ask to be put on the media list for release
Tips to get it fast and free!
One way to prevent you from a record is to charge you a lot of money for it. These costs can be justified if you ask for a ton of records. Most departments in Florida provide a set amount of time they are willing to provide records for free.
That's why I mention using a short and sweet method. This will allow for free fulfillment and faster reply.
Slamming 20 requests into one email will have them tally up the total time to get ALL of your records While I do not believe this is legal, since each record may only take 5-10 minutes to get, they combine the total request into time and bill you for that. The bill should be for the lowest paid person who can handle those requests. Most of the time it is $15-30/hr. Doing one single request will get it done quicker and they usually fulfill it pretty fast. But don't trust them!
If you get a bill, you can combat the fee in several ways. Question the cost, submit a second request for the hourly rate of the person they are citing is preparing it, request the cost of materials such as DVD, Thumb Drive etc. Public records is not a profit generating service. Florida statutes 119.07 (4)3 Cover fees, specifically states for copies "For all other copies, the actual cost of duplication of the public record." Speaking of DVD's specifically a copy of an existing record copied to DVD shall only be the cost of the disc itself. You will find several agencies in violation already charging no charge for the review of a 5 minute body camera but charging $10.00 for the DVD. This is a violation of the statute. The 100 Pack of Verbatim DVD is $24.99 or $0.25 each.
Law Suits for 119 statute violations is not difficult, but difficult.
The attorney can not share the attorney fees with you but they can share a settlement with you. If you do find an attorney that will sue, try your hardest for a settlement so that your time and effort will be compensated by the settlement otherwise the attorney will retain the costs of his work with the courts awarding of the fees.
A writ of mandamus must be filled to get attorney costs.
A person who has been denied the right to inspect or copy public records may bring a civil action against the agency. In almost all cases, a person should bring this civil action by filing a petition for a writ of mandamus in circuit court. This is an extraordinary writ that commands a government official or entity to perform an act. In cases involving the requested production of public records, the writ of mandamus would command the custodian of the requested records within the state agency to turn over the requested records. If a writ is issued, the court may also award reasonable costs and attorneys’ fees to the petitioner.
In order to get attorney fees awarded you must prove:
The agency unlawfully refused a record to be inspected copied or provided and the person initiating the lawsuit provided written notice to the custodian of public records 5 days before filing the suit.
This goes back to the fundamentals - use e-mail, a written letter or their form to submit your record. While the forms and written requests are not required, it is if you're going to sue. In order to sue you must give the records custodian that written notice. Do it, don't argue that you don't have to put records requests in writing. It fortifies your case and shows a paper trail.
Mediation is part of the process that is an informal program with the office of the attorney general. It's an alternative to the courts involvement. If you are set on getting the record then mediation is your next option. Please note the mediator can provide a recommendation but the agency can ignore that recommendation all together. You can reach that division at Open Government Mediation or call (850) 245-0140.
I am currently in the process of initiating a lawsuit with the City of Sanford. I wanted to see body camera footage of an incident that was involving The Armed Fisherman and his open carry activism. There were 5-6 officers on scene and I wanted to see the shortest one which was around 7-8 minutes long. Not expecting to be denied the video without first paying a $150.00 fee to begin the work. This fee is claimed to be a deposit to begin the redaction. I am extremely familiar with their redaction software as you all know with my law enforcement background. The clerk handling the request, Alisha, stood by their policy. In fact, provided me a policy and procedure to take these $150.00 fees for body camera requests. I felt they were unreasonable, calling her and explaining with the human element behind it and they still have not provided the body camera footage. I have an attorney representing me in this. I just want to view these videos. They are in public, and with real time redacting as you view there should not be any cost according to the cities 15 minute free policy.
I will update this post as I determine more information is beneficial. Here's the form she had provided to me. This form establishes pattern of practice of what I believe is a violation of Florida Statute §119. This is a special fee for the record and is excessive to me preventing me from obtaining an otherwise record that almost ALL law enforcement have provided at no charge or the actual cost of duplicating it. I have asked for an estimate but as of 8/20/2021 have not recevied the estimate.
You can see more about the City of Sanfords records here: https://www.sanfordfl.gov/departments/police-department/police-records. Remember this is not legal advice. If you'd like to help support the cause visit the support page