Experts can not determine if report on Pensacola fire chiefs is exempt without seeing it

May 3, 2016

Mayor Ashton Hayward has determined the Beggs & Lane report on the investigation of the city’s fire chief and deputy fire chief is exempt from the state’s public records law.

Inweekly sought the help of the First Amendment Foundation to see if the mayor was correctly interpreting the law, and we got back a “solid” maybe. It’s how the report is worded that determines whether it is exempt or not.

On Friday, April 29, the mayor’s office issued a statement that the mayor had the report. However, it would not be made available to the public immediately:

The public shall have access to the report after a course of action is decided upon and the affected employees, if any, are notified in writing pursuant to Florida Statutes 119.071 (2)(k).

So we looked up Florida Statutes 119.071 (2)(k):

A complaint of misconduct filed with an agency against an agency employee and all information obtained pursuant to an investigation by the agency of the complaint of misconduct is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the investigation ceases to be active, or until the agency provides written notice to the employee who is the subject of the complaint, either personally or by mail, that the agency has either:

a. Concluded the investigation with a finding not to proceed with disciplinary action or file charges; or
b. Concluded the investigation with a finding to proceed with disciplinary action or file charges.

The word “or” gave us hope. If the investigation had ceased, then the report was not exempt. Therefore, we made a record request of the city stating that since Beggs & Lane had completed its investigation, its report should be made public. We argued that Hayward’s decision was independent of the report.

Barbara Peterson, FAF president, wasn’t too keen on our argument. She wrote:

This exemption is odd and I haven’t really focused on it before.

If you look at the exemption for active criminal investigative information and the definition of “active” in s. 119.011(3)(d), the duration of the exemption is pretty clear. However, s. 119.071(2)(k) says the investigative records of complaints are subject to disclosure once the investigation “ceases to be active” – does that mean once the investigation is complete? What’s throwing me off is the “or” — once the investigation ceases to be active OR written notice has been provided to the employee — and it’s odd that there’s no language regarding whichever event occurs first. And the Sunshine Manual doesn’t really say much about the exemption (which is relatively new).

I think that the phrase “ceases to be active” means the investigation has been dropped, which means that if the investigation is complete and now the governing body must decide on a course of action, then the investigative record remains exempt until the employees are notified of what action, if any, will be taken against them. So if the mayor gets the report in order to make a decision about the action to be taken, then I don’t think you can separate the report from the decision and the report remains exempt until the mayor makes the decision and the employees are notified.

However, she said that she would ask “one or two of my sounding boards” for their thoughts.

Michael Barfield, a paralegal with Law Office of Andrea Flynn Mogensen, P.A. in Sarasota offered Peterson his thoughts:

Not sure I agree with your analysis. It’s identical to the exemption in s. 112.533(2)(a), which was construed by the Fourth DCA in the following two cases: Neumann v. Palm Beach County Police Benevolent Ass’n, 763 So. 2d 1181 (Fla. 4th DCA 2000); and Palm Beach County Police Benevolent Ass’n v. Neumann, 796 So. 2d 1278(Fla. 4th DCA 2001).

It may depend on the language of the report. If it concludes that the investigation is complete and recommends discipline, then I think it’s not exempt under the earlier Neumann case. If it is a tentative finding that is subject to further investigation, then it remains exempt under the rationale of the second Neumann decision.

The wording is the key…which we won’t see until Hayward makes a decision on the fate of the fire chiefs.

Hayward has had the report for four days. He told the PNJ that he began reading it yesterday with City Attorney Lysia Bowling, but had not finished it.

He told PNJ reporter Will Isern, “You don’t want to make any ad hoc decision, you want to make an intelligent decision and that’s what we’re going to do.”

So we wait.

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