Embed Size (px)
DESCRIPTION
FOIA suit Becker v UCF
Citation preview
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA
JOHN M. BECKER, Petitioner, v. CASE NO.: 2013-CA-5265-O 2013-WR-0000034-A-O THE UNIVERSITY OF CENTRAL FLORIDA BOARD OF TRUSTEES, an agency of the State of Florida, Respondent. ________________________________________/
EMERGENCY MOTION FOR TEMPORARY INJUNCTION TO PRESERVE EVIDENCE TO ALLOW INSPECTION OF PUBLIC RECORDS
AND ENJOIN RESPONDENT FROM FAILING TO ARCHIVE PUBLIC RECORDS Petitioner, through undersigned counsel, and pursuant to Rule 1.610, Fla. R. Civ. P.
(2013), moves for emergency relief to require Respondent to preserve evidence to allow for the
inspection of public records, to enjoin Respondent from failing to archive public records as
required by state law, and in support thereof would state as follows:
1. On March 8, 2013, Petitioner made a public records request for certain records in
the possession of UCF and Professor Wright relating to the publication of NFSS in the Journal.
See Exhibit 1, attached hereto.
2. Petitioner’s records request specifically requested emails messages originating
from the UCF email address of [email protected].
3. Respondent produced no records from the [email protected] email address.
4. After this litigation was filed, Respondent produced other records that had been
requested, but still refused to produce records in the [email protected] email account.
5. On or about July 16, 2013, counsel for Respondent advised that the
[email protected] email account had not been archived or backed up prior to November 2012, and
that the only records that exist within that email account are from that period going forward.
6. Pursuant to written policy number 2-100.2, adopted on May 20, 2009, it is the
policy of UCF that all employees will comply with Florida's public records law and state
retention schedules for public records. See Exhibit 2, attached hereto.
7. UCF also adopted written policy number 4-001 on November 2, 2004, which
provides that any person employed by the university in any capacity is subject to the retention
requirements for electronic mail. See Exhibit 3, attached hereto.
8. Section 257.36(5) and (6), Fla. Stat. also require Respondent to comply with state
law provisions relating to the back up and preservation of electronic records.
9. Section 257.14, Fla. Stat., provides that the Division of Library and Information
Services of the Florida Department of State (“Division”) has the authority to adopt
administrative rules to implement the provisions of chapter 257. The Division has adopted
numerous rules. As pertinent here, Rule 1B-26.003, F.A.C., requires that “[a]gencies shall back
up electronic records on a regular basis to safeguard against the loss of information due to
equipment malfunctions, human error, or other disaster. Agencies shall maintain backup
electronic recording media created for disaster recovery purposes, and all preservation duplicates
of permanent or long-term records, in an off-site storage facility, with constant temperature
(below 68 degrees Fahrenheit) and relative humidity (20 to 30 percent) controls.”
10. Petitioner has a constitutional and statutory right under both Art. I, § 24(a) and
§119.07, Fla. Stat., to inspect and copy public records.
2
11. Respondent has a statutory duty to retain and archive electronic records in its
possession.
12. Respondent failed to comply with its statutory duty and, through neglect, failed to
regularly archive and back up electronic records.
13. Unless this Court takes immediate action to require Respondent to locate and
preserve all public records, Petitioner’s constitutional and statutory right to inspect and copy
public records will forever be lost. Moreover, Petitioner and the public will be irreparably
injured by the spoliation of evidence and destruction of public records. Indeed, substantial
evidence and public records may have already been lost.
14. Because public records have already been potentially destroyed because they were
not archived, Petitioner seeks the entry of an Order requiring the Clerk to take possession of all
computer(s) utilized by Respondent that accessed the [email protected] email account.
Notwithstanding the fact that an email may have been deleted through a software program or not
routinely archived, it is possible for a forensic computer technician to recover the deleted emails.
See Peskoff v. Faber, 240 F.R.D. 26, 28-29 (D.D.C. 2007) (describing the multiple methods by
which emails can be forensically recovered).
15. Continued use of such computer(s) risks the permanent loss of public records that
could be recovered through forensic methods. As explained in United States v. Moreland, 665
F.3d 137 (5th Cir. 2011):
When a computer user views a webpage, the computer automatically stores a copy of that webpage in a folder known as the cache. Ty E. Howard, Don't Cache Out Your Case: Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1229–30 (2004). The copy is retained in a file called a temporary internet file. When the user revisits that webpage, the computer can load the page more quickly by retrieving the version stored in the cache. Id. at 1230. The computer automatically deletes
3
temporary internet files when the cache—which has limited storage space—becomes full. Once full, the computer begins to delete the files on a “first in, first out” basis. Note, Child Pornography, The Internet, and the Challenge of Updating Statutory Terms, 122 Harv. L.Rev. 2206, 2212 (2009). Users also may manually delete files from the cache, or use commercial software to remove the files. Id. Deleted files are not wholly removed from the computer. A deleted file is marked as unallocated file space, which allows that file to be overwritten by new files. See Michele C.S. Lange & Kristin M. Nimsger, Electronic Evidence and Discovery: What Every Lawyer Should Know Now 208–09, 235–36 (2d ed.2009). A computer's deleted files make up what is known, in this case, as the disk slack space. A knowledgeable forensic investigator may use forensic software to search for, recall, and view the contents of the unallocated file space. This process is known as “restoring” a deleted, but not yet overwritten, file. It requires sophisticated expertise and special software to restore a deleted file. See, e.g., id. at 78, 231, 235–36 & fig. 5.8; Howard, supra, at 1234 n. 22 (citing Joan E. Feldman, The Basics of Computer Forensics, 12 Practical Litig. 17, 19–20 (2001); and Richard Hardy & Susan Kreston, “Computers are like Filing Cabinets ...”: Using Analogy to Explain Computer Forensics, 15 Nat'l Ctr. for Prosecution of Child Abuse Update Newsl. No. 9 (Nat'l Dist. Attorneys Ass'n, Alexandria, Va.), 2002).
665 F.3d at 142-43.
16. Given the admissions relating to the non-retention of public records and non-
compliance with both state law and University policy, it is both necessary and appropriate for the
Court to enter an Order preserving any evidence and public records that might be retrieved from
computer(s) in order to allow the parties the opportunity to recover the non-archived emails. The
computer(s) that accessed the [email protected] account should be immediately preserved given
that their continued use could result in the permanent deletion of public records.
17. The granting of the requested relief furthers a substantial public interest.
Petitioner has a likelihood of prevailing on the merits in that the law clearly requires public
officials to maintain public records under §§ 119.021 and 257.36, Fla. Stat. Additionally, the
evidence shows a substantial likelihood of success on the merits in that it is clear that evidence
4
and public records have not been archived as required by law. Even when a records custodian
contends that a requested record in its possession is not a public record, it is still required by §
119.07(1)(h) and (i) to preserve such records until a court of competent jurisdiction has made a
final determination that the record is or is not a public record. Those statutory provisions
provide that:
(h) Even if an assertion is made by the custodian of public records that a requested record is not a public record subject to public inspection or copying under this subsection, the requested record shall, nevertheless, not be disposed of for a period of 30 days after the date on which a written request to inspect or copy the record was served on or otherwise made to the custodian of public records by the person seeking access to the record. If a civil action is instituted within the 30-day period to enforce the provisions of this section with respect to the requested record, the custodian of public records may not dispose of the record except by order of a court of competent jurisdiction after notice to all affected parties. (i) The absence of a civil action instituted for the purpose stated in paragraph (g) does not relieve the custodian of public records of the duty to maintain the record as a public record if the record is in fact a public record subject to public inspection and copying under this subsection and does not otherwise excuse or exonerate the custodian of public records from any unauthorized or unlawful disposition of such record.
§ 119.07(1)(h) and (i), Fla. Stat.
18. Respondent has been placed on notice of the alleged violations of the Public
Record Act by being served with this motion. Respondent discovered the failure to archive
University emails, but has failed to act to forensically recover the computer or prevent further
deletion of those records by continued use of the computer. Further notice should not be
required before the Court grants emergency relief because additional public records may be
destroyed before this Court can schedule a hearing with notice to all affected parties.
19. This Court has jurisdiction to compel a custodian of public records to make such
records available for inspection under § 119.07, Fla. Stat., and its power to issue a writ of
5
mandamus under Art V, § 5(b), Fla. Const., and Rule 1.630, Fla. R. Civ. P. (2012). See Radford
v. Brock, 914 So. 2d 1066 (Fla. 2d DCA 2005). Petitioner has a clear legal right to the
performance of the act requested (inspection of public records), and no other adequate remedy at
law. This Court also has jurisdiction to enter a temporary injunction under Rule 1.610, Fla. R.
Civ. P. (2012), to prevent the irreparable injury that would be caused to the public if additional
public records are destroyed through non-archival.
20. No bond should be required for the entry of the requested Order. It is the duty of
public agencies, and those acting on behalf of public agencies, to provide access to public
records. Timoney v. City of Miami Civilian Investigative Panel, 917 So. 2d 885, 886 (Fla. 3d
DCA 2005). Petitioner should not be required to post a bond to exercise his right to inspect
public records. For that matter, Petitioner should not be obligated to incur expense to
forensically recover public records that were deleted in violation of state law, as well as the
University’s express written policy governing retention of such records. If a citizen were
obligated to pay such expenses merely to exercise his right to inspect public records, it would
frustrate the express purpose behind the statute.
21. Petitioner has retained the undersigned counsel for the purpose of bringing this
motion and seeking injunctive, declaratory, mandamus, and emergency relief before the Court.
Petitioner is entitled to an award of attorney’s fees and costs pursuant to § 119.12, Fla. Stat.
WHEREFORE, Petitioner respectfully prays this Honorable Court grant the following
relief:
A. Hold an accelerated and immediate emergency hearing pursuant to § 119.11, Fla.
Stat.;
6
B. Enter an Order requiring Respondent to identify all computer(s), laptop(s), or
other electronic device(s) which accessed the [email protected] email account and to turn those
devices over to the custody of the Clerk of Court for safekeeping pending further order of the
Court relating to forensic recovery of deleted or non-archived records.
C. Enter an Order prohibiting any additional deletion, destruction or non-archival of
any electronic records and e-mail communications;
D. Entering an Order reserving jurisdiction to determine attorneys fees and costs; and
E. Such further relief as the Court deems necessary.
Respectfully submitted,
/s/ Andrea Flynn Mogensen___________________ ANDREA FLYNN MOGENSEN, Esquire The Law Office of Andrea Flynn Mogensen, P.A. 200 South Washington Boulevard, Suite 7 Sarasota FL 34236 Telephone: 941.955.1066 Florida Bar No. 0549681 [email protected] (Primary) [email protected] (Secondary)
VICTOR LEE CHAPMAN Florida Bar No. 407429 Barrett, Chapman & Ruta, P.A. 18 Wall Street Orlando, FL 32801 (407) 839-6227 [email protected] (Primary) [email protected] (Secondary)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 26th day of July, 2013, I electronically filed the
foregoing with the Clerk of Court by using the eFiling Portal. I further certify that a true and correct copy of the foregoing has been served via email to the following:
7
Richard E. Mitchell, Esquire GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, FL 32801 [email protected] [email protected]
/s/ Andrea Flynn Mogensen___________________ ANDREA FLYNN MOGENSEN, Esquire
8
University of Central Florida Office of General Counsel 4000 Central Florida Blvd. Millican Hall, Rm. 360 Orlando, FL 32816-0015 [email protected] Friday, March 8, 2013 Re: Freedom of Information Act Request To Whom it May Concern: I am John Becker, an investigative journalist (http://is.gd/nc2WXn), blogger, and contributor to the Huffington Post, The Advocate, the Bilerico Project, and Back 2 Stonewall. The following is a public records request under the Freedom of Information Act. It is made as part of my research and news gathering for an upcoming story. I request that copies of the following documents be provided to me as soon as possible:
1. Dr. Mark Regnerus (University of Texas Austin) All communication -- whether hard copy printed information residing in the physical premiss of the University of Central Florida, or digital information residing on the computers/servers of the University of Central Florida on e-mail, including but not limited to messages originating from the following UCF email addresses: [email protected]; [email protected]; [email protected]. This request further includes communication on computer chat programs or voice mail messages between Dr. Mark Regnerus and anyone affiliated with the University of Central Florida, relative to the research paper New Family Structures Study (NFSS), including but not limited to the submission of said paper, the peer review of said paper, and the audit of the peer review of said paper. E-mail addresses to include but not limited to: [email protected]
2. Dr. Darren Sherkat (Southern Illinois University) All communication -- whether hard copy printed information residing in the physical premiss of the University of Central Florida, or digital information residing on the computers/servers of the University of Central Florida on e-mail, including but not limited to messages originating from the following UCF email addresses: [email protected]; [email protected]; [email protected]. This request further includes communication on computer chat programs or voice mail messages between Dr. Darren Sherkat and anyone affiliated with the University of Central Florida, relative to the research paper New Family Structures Study (NFSS), including but not limited to the submission of said paper, the peer review of said paper, and the audit of the peer review of said paper. E-mail addresses to include but not limited to: [email protected]; [email protected]
3. Dr. W. Bradford Wilcox (University of Virginia; National Marriage Project) All communication -- whether hard copy printed information residing in the physical premiss of the University of Central Florida, or digital information residing on the computers/servers of the University of Central Florida on e-mail, including but not limited to messages originating from the following UCF email addresses: [email protected]; [email protected]; [email protected]. This request further includes communication on computer chat programs or voice mail messages between Dr. W. Bradford Wilcox and anyone affiliated with the University of Central Florida, relative to the research paper New Family Structures Study (NFSS), including but not limited to the submission of said paper, the peer review of said paper, and the audit of the peer review of said paper. E-mail addresses to include but not limited to: [email protected]
4. Dr. Paul R. Amato (Pennsylvania State University, AKA Penn State) All communication -- whether hard copy printed information residing in the physical premiss of the University of Central Florida, or digital information residing on the computers/servers of the University of Central Florida on e-mail, including but not limited to messages originating from the following UCF email addresses: [email protected]; [email protected]; [email protected]. This request further includes communication on computer chat programs or voice mail messages between Dr. Paul R. Amato and anyone affiliated with the University of Central Florida, relative to the research paper New Family Structures Study (NFSS), including but not limited to the submission of said paper, the peer review of said paper, and the audit of the peer review of said paper. E-mail addresses to include but not limited to: [email protected]
5. Dr. David J. Eggebeen (Pennsylvania State University, AKA Penn State) All communication -- whether hard copy printed information residing in the physical premiss of the University of Central Florida, or digital information residing on the computers/servers of the University of Central Florida on e-mail, including but not limited to messages originating from the following UCF email addresses: [email protected]; [email protected]; [email protected]. This request further includes communication on computer chat programs or voice mail messages between Dr. David J. Eggebeen and anyone affiliated with the University of Central Florida, relative to the research paper New Family Structures Study (NFSS), including but not limited to the submission of said paper, the peer review of said paper, and the audit of the peer review of said paper. E-mail addresses to include but not limited to: [email protected]
6. Dr. Cynthia Osborne (University of Texas Austin) All communication -- whether hard copy printed information residing in the physical premiss of the University of Central Florida, or digital information residing on the computers/servers of the University of Central Florida on e-mail, including but not limited to messages originating from the following UCF email addresses: [email protected]; [email protected]; [email protected]. This request further includes communication on computer chat programs or voice mail messages between Dr. Cynthia Osborne and anyone affiliated with the University of Central Florida, relative to the research paper New Family Structures Study (NFSS),
including but not limited to the submission of said paper, the peer review of said paper, and the audit of the peer review of said paper. E-mail addresses to include but not limited to: [email protected]
7. Dr. James D. Wright (University of Central Florida) All communication by or to Dr. James D. Wright or the Journal of Social Science Research, whether hard copy printed information residing in the physical premiss of the University of Central Florida, or digital information residing on the computers of the University of Central Florida on e-mail, including but not limited to [email protected]; [email protected]; [email protected]. This request further includes communication on computer chat programs or voice mail relative to the research paper New Family Structures Study (NFSS), including but not limited to the submission of said paper, the peer review of said paper, the audit of the peer review of said paper, external and internal to the University of Central Florida, public relations and press requests related to the Journal of Social Science Research’s publication of said paper. It also includes communications between James D Wright or the Journal of Social Science Research and employees or representatives of the publisher of the Journal of Social Science Research, Elsivier (who has corporate headquarters in the Netherlands), relative to the New Family Structures Study (NFSS) paper. E-mail addresses to include but not limited to: [email protected]; [email protected]
8. Maria Gualtieri (or any other names by which she is known) – Univ. of Central Florida All communication by or to Maria Gualtieri, whether hard copy printed information residing in the physical premiss of the University of Central Florida, or digital information residing on the computers of the University of Central Florida on e-mail, including but not limited to [email protected]; [email protected]; [email protected]. This request further includes communication on computer chat programs or voice mail relative to the research paper New Family Structures Study (NFSS), including but not limited to the submission of said paper, the peer review of said paper, and the audit of the peer review of said paper. It also includes communications between Maria Gualtieri or the Journal of Social Science Research and employees or representatives of the publisher of the Journal of Social Science Research, Elsivier (who has corporate headquarters in the Netherlands), relative to the New Family Structures Study (NFSS) paper. E-mail addresses to include but not limited to: [email protected]; [email protected]
Thank you for your prompt attention to my request. Sincerely, John M. Becker Investigative Journalist 1191 North Ave No. 405 Burlington, VT 05408-2795 920.265.6023 [email protected]
2-100.2 Florida Public Records Act—Scope and Compliance 1
SUBJECT: Effective Date: Policy Number:
Florida Public Records Act–Scope and Compliance
5-20-09 2-100.2
Supersedes: Page Of
2-100.1
7-13-05
1 4
Responsible Authority:
Vice President and General Counsel
APPLICABILITY/ACCOUNTABILITY: This policy applies to all employees of the University of Central Florida. DEFINITIONS: Public Records. Florida's public records law, Chapter 119 of the Florida Statutes, defines public records as: All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material, regardless of physical form, or characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. POLICY STATEMENT: It is the policy of the University of Central Florida that all employees will comply with Florida's public records law and state retention schedules for public records. All documents and other written materials that are made or received pursuant to law or that are made or received in the transaction of official university business are public records which, regardless of form, are open for public inspection unless the legislature has specifically exempted them from disclosure. Most documents, including e-mail messages, created or received by University of Central Florida employees in connection with official business are public records. Employees may not delete public records in their possession or control except in accordance with the record retention schedules applicable to UCF as a state university. Unless a public record is exempt by statute from disclosure pursuant to the public records statute, it must be produced to any person upon request. Before documents are released pursuant to a public
2-100.2 Florida Public Records Act—Scope and Compliance 2
records request, any exempt documents or exempt information contained within documents must be removed. All public records must be retained for a period of time that varies depending on the nature of the documents. Retention periods for public records can be found in the university's general records and the state and local agencies’ retention schedules (see Related Information for links to these schedules). http://dlis.dos.state.fl.us/barm/genschedules/gs05.pdf . It is acceptable to retain in paper form documents that were originally sent in electronic form and vice versa. For example, employees may archive electronic mail messages for retention purposes or they may print mail messages to be filed and retained. Similarly, files may be scanned into an electronic database and the original paper files discarded.
PROCEDURES: Receiving a Public Records Request: Any department or office may be the recipient of a public records request. If the request seeks information that is in the possession or custody of the department or office receiving the request, then that department or office should accept the request and proceed to respond to it in accordance with the instructions below. If the department or office receiving the request is not the custodian of the records requested, then the request (or, if feasible, the requestor) should be forwarded to the appropriate department or office in possession or custody of the requested records. If the request seeks records held by multiple offices, any office which holds at least some of the records requested should receive the request and forward appropriate portions of the request to other departments or offices as needed. The department should send a copy of the public records request to the Office of the General Counsel to provide guidance in determining what records are exempt from disclosure. Format for a Public Records Request: There is no particular format for a public records request. Public records requests may be made in writing or orally. A department receiving a request for public records may ask that the requestor put his or her request in writing for the sake of clarity, but may not require it. A person does not have to prove a "legitimate" need for a public record to be entitled to inspect it. Responding to a Public Records Request: The university must respond to a public records request within a reasonable period of time after receiving the request. What constitutes a reasonable period of time depends upon the circumstances surrounding the request, including the nature of the request, the size of the request, the likely quantity of records to be produced, whether extensive use of information technology resources or clerical services are required, and the timing of the request (i.e., whether holidays intervene).
2-100.2 Florida Public Records Act—Scope and Compliance 3
All public records requests seeking university statistical data (such as student enrollment figures or lists of employees) or demographic data should be forwarded to Office of Institutional Research, 12424 Research Parkway, Suite 215, Orlando, FL 32826-3269, (407-823-5061). All media requests should be referred to the Department of News and Information, University of Central Florida, 12443 Research Parkway, Suite 301, Orlando, FL 32826-0091, (407) 823-5007. These departments will coordinate the response to the request with the requestor and the appropriate department or unit in which the records are maintained. All other requests should be handled by the department(s) or office(s) in possession or custody of the requested records. Any department or office may seek assistance from the Office of the General Counsel to determine how to respond to a request. Where records are requested from multiple departments or offices in one request, the request may be divided amongst those departments or offices or the Office of the General Counsel may intervene to coordinate the response to the request. The department chair or administrative supervisor of the department or unit in which the records are maintained is responsible for appointing one or more persons to gather the requested documents, and, if asked, make copies for the requestor. When the response to the request is being coordinated by another office, such as Institutional Research or the Department of News and Information, they may either arrange a time for inspection of the documents or provide copies of the documents to the requestor. Public Record Exemptions: State and federal laws exempt certain types of public records, or portions thereof, from disclosure under the public records law. Exemptions that frequently apply to University of Central Florida records include but are not limited to:
a. academic evaluations of faculty b. student records pursuant to the federal and state Buckley Amendments, also known as the FERPA exemption c. social security numbers d. certain types of research records e. most direct support organization records f. personally identifiable medical information g. most benefit enrollment information h. bank and other financial information (e.g., credit card data) i. personal information regarding law enforcement officers or their families Documents that are exempt from the public records law will not be produced. Documents that are public records but contain exempt information will be produced after removing the exempt information, unless the exempt information in the document is so extensive that removal is not feasible. The determination of which documents or information are exempt from the public records law will be made by the Office of General Counsel.
2-100.2 Florida Public Records Act—Scope and Compliance 4
Payment for Public Records Requests: If the person making the records has requested copies of the documents, the university may charge the requestor 15 cents per one-sided copy or 20 cents per two-sided copy. In addition, if retrieving or copying the public records requires extensive use of information technology resources or clerical and/or supervisory assistance, the university may assess a reasonable service charge based on the university's actual incurred costs. Reimbursement for these charges may be made to the department or unit that incurred the charge. For purposes of this policy, extensive use means at least one hour’s worth of time (whether in response to a single request or multiple requests received in a one-month period of time). An estimate of the charges will be given to the requestor prior to responding to the request. All charges will be collected before producing the requested documents.
RELATED INFORMATION: Family Educational Right to Privacy Act (FERPA) General records retention schedule for state and local agencies: http://dlis.dos.state.fl.us/barm/genschedules/GS1-SL.pdf http://dlis.dos.state.fl.us/barm/genschedules/gs05.pdf . General records retention schedule for colleges and universities: http://dlis.dos.state.fl.us/barm/genschedules/gs05.pdf
INITIATING AUTHORITY: Vice President and General Counsel
SUBJECT: Effective Date: Policy Number: Retention Requirements for Electronic Mail 11-2-04 4-001
Supersedes: Page Of
1 3 Responsible Authority: Computer Services & Telecommunications
GENERAL POLICY: The intent of this policy is to assist employees in using electronic messages while complying with Florida’s Public Records Law, Chapter 119, Florida Statutes. The policy is not meant to limit or discourage the use of email for conducting business. Rather, the intent is to establish a framework for the proper use of email as an official business tool. APPLICABILITY/ACCOUNTABILITY: This policy on retention of electronic mail is applicable to all university employees and administrative units in the conduct of their official duties. BACKGROUND INFORMATION: UCF recognizes the prevalence of email as a way of doing business and guides the retention of it to conform to applicable laws. Email messages must be retained and are open for public inspection. However, not all official email is a public record. It is important for employees to understand the distinction so that they can satisfy the legal requirements. POLICY STATEMENT: Florida's public records law offers a challenge to the use of email because often email is exceptionally informal and efficient. Official email, whether public or transitory, should be deleted only after it has been retained for the correct period of time as determined by the retention schedule. Ultimate responsibility for complying with the public records law is the individual employee’s. DEFINITIONS: Public Records. Florida's public records law, Chapter 119 of the Florida Statutes, defines public records as: All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material, regardless of physical form, or characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. All documents
4-001 Retention Requirements for Electronic Mail 2
and other written materials that are made or received pursuant to law or that are made or received in the transaction of official university business are public records which, regardless of form, are open for public inspection unless the legislature has specifically exempted them from disclosure. Electronic mail messages, if they meet these criteria, qualify as public records. Transitory Messages. Transitory messages are created primarily for informal or short-lived communication, as opposed to public records, which perpetuate or formalize knowledge. Transitory messages do not set policy, establish guidelines or procedures, certify a transaction, serve as a receipt, or the like. The informal, time-limited nature of transitory messages can be compared to communications during a telephone conversation or in an office hallway. Transitory messages generally include, but are not limited to voice mail, self-sticking notes, and email messages with short-lived or no administrative value. Copy of Record. By generally accepted practice, the sender’s copy of a document is designated as the copy of record. It is this copy to which the record retention requirements apply. All other copies are regarded as duplicates and they can be disposed of when they have lost administrative value. However, email messages received from outside agencies or from the public are regarded as copies of record; and if their content qualifies them as public records, they must be retained. Additionally, administrative approvals received from within the UCF community are considered the copy of record. Employee. Any person employed by the university in any capacity. PROCEDURES:
1. Computer Services & Telecommunications provides centralized email services in support of the teaching, research, and public service mission of the university, as well as the administrative functions that support this mission.
2. Employees must retain email that qualifies as public record. Retention periods for official
records, including those in email form, can be found in the university's general records schedule. This is available from the Records Management Liaison, Millican Hall Room 308 (407-823-1823). It incorporates items from the General Records Schedule for State & Local Government Records (GS1), the University/Community College Records (GS5), and other University of Central Florida retention schedules.
3. Administrative offices are required each year to file records disposition requests with the
Records Management Office for obsolete public records that they wish to destroy
4. Other records, as outlined in Florida Administrative Code, Rule 1B-24.010(3), may be disposed of without filling out a records disposition request. For example, both duplicates
4-001 Retention Requirements for Electronic Mail 3
and master copies of all transitory messages may be disposed of when they are obsolete, superseded, or have lost their administrative value.
In practice, public records with a three-year retention period must be retained for a fourth year. The effective longer retention period results from the state's records audit that occurs in the fourth year.
RELATED INFORMATION: Email archiving tutorial: http://support.mail.ucf.edu/manuals.html Records retention schedule and related information: http://dlis.dos.state.fl.us/barm/genschedules/GS1-SL-2006_RevSept2007.doc Policy 2-100 Florida Public Records Act—Scope and Compliance: http://policies.ucf.edu/documents/2-100.1FloridaPublicRecordsAct--ScopeandComplianceF.pdf INITIATING AUTHORITY: Provost and Executive Vice President
