Doing What is Right Part III: A Completed HR Report from 6-24-2019 is NOT a Public Record?

How long must an employee suffer and be punished for making a valid, sustained complaint against a supervisory employee?

As I have chronicled in Part I and Part II of this series--there appears to be an issue percolating around an Escambia County employee that filed a harassment complaint against his supervisor.

Ever since his complaint was filed--it appears as if he has been stymied, stigmatized, and deprived of due process rights as mandated in county policy and relevant collective bargaining agreements.

I was contacted by this individual in November after this employee tried over and over to get resolution on his situation utilizing his chain of command with no success--for nearly 6 MONTHS!.

Nobody was listening.

I listened, and I am listening.

I have received a copy of the five page HR investigation summary of this employee's harassment claim against his supervisor.  The report corroborates what this employee claims.  This report was completed, and recommendations were made for resolution, on June 24th of this year.

But then the report was shelved.  Nobody did anything with it, and the employee asked over and over and over for a copy.  He asked over and over and over to get back to his job.  He was stymied.  Nothing was given to him for five months.  Meanwhile, he was prevented from working shifts he traditionally has worked and this has had the net effect of reducing his income by 15-18% over what he has earned in the past.

So upon my receipt of the report, I immediately thought I would publish it--after all, it was inactive and nothing was being done on it.  Jim Little of the PNJ saw part I on my blog and made a public records request for the 5-page report.  So I asked our attorney if it was a public record releasable on my blog and also to the PNJ.

Here is what I asked of our attorney:

"As you know, Jim Little from the PNJ has made a public request of me for the email string below as well as the embedded photographs within what I am forwarding to you in this email—which includes the first five pages of an HR document from June (?) of this year apparently.  Because I want to comply and I always do comply with the state public records statutes—please supply the specific statutory exemption that applies and which precludes me from sending the below string specifically--- to include the photographs embedded-- to Jim Little in answer to his public records request.  Please be specific. 

As you and I discussed, I know this does not comport specifically with county policy—but that in and of itself


 does not make this exempt, does it? 

Also, I know you expressed concern about XXXXXXX, however there is no PPII (personally Identifiable Information) nor names of XXXXXXXXXXX in the pictures below so far as I can tell."

Here was the relevant portion of the response I received:

"The HR investigation report, which doesn’t appear to have the attachments with it, is technically exempt as an agency investigation into misconduct pursuant to section 119.071(2)(k), Fla. Stat. until the investigation ceases to be active or is concluded.  By County policy, to be considered concluded, the findings of the investigation would be discussed by HR with the parties involved AND then the Administrator determines what will be done or how to implement any findings, should she choose to implement anything.  I understand that HR intends to meet with the relevant parties this afternoon.  I don’t know exactly the timeline for the Administrator’s determination but note that she is at FAC.  I am aware that the investigation was released to XXXXXXXXXXX  and I am aware that the document is dated some months ago.  The full explanation about why it was in HR so long, I am not sure about, but these two issues would not appear to change the exemption analysis since HR doesn’t appear to consider the matter inactive or concluded.  That said, it does appear it is now heading to resolution and the exemption would appear to be lifted imminently."

To Which I Responded:

"This report was concluded on June 24^th. 

And then nothing was done with it until early November when it was finally provided to XXXXXXXXXX. 

It was shelved for nearly 5 months with no action taken on it.   Is that not the definition of “until the investigation ceases to be active?” 

If this is not the case here, how long specifically would such a document have to sit on the shelf and not be worked before it was no longer exempt under 119.071(2)(k), FL Stat.? –Or put a different way, what amount of time specifically would it take for a document like this in an investigation like this to be “shelved” and not worked before it would be a document subject to release? 

The issue seems to be that if there is not some time definition that is clear on this, any agency could easily thwart the law by “shelving” difficult, confusing, opaque, or just plain messy “investigations”—and never release them in response to records requests.  Is this not true?  Are we not supposed to read these exemptions in the most narrow way, providing maximum deference to the right of the people to receive these records?

Please advise."

Which drew the following response:

"I don’t know why it was there so long and it is true that if the intent was to do nothing with it, I would say it was inactive and thus concluded.  However, HR is intending to meet with the relevant parties, so they are now not acting as though it is concluded.  Jeff, if they meet with them today and then if Admin says they are done, then it is a moot point and the exemption is definitely lifted."