520
ANNUAL REPORT OF THE ATTORNEY GENERAL
to above did not involve special district funds. However, the transfers there
approved were permanent transfers; whereas, the transfer here in question is
temporary only, to be repaid during the current fiscal year. As noted above,
the county commissioners could have entered into the subject contracts and
have budgeted funds therefor in their capacity as such officials rather than in
a special-district capacity; and it seems to me to be in accord with logic and
reason to hold that the county may borrow from its own general fund for
a period not to exceed the current fiscal year in order to carry out an urgent
county purpose,· as an alternative to borrowing the funds from a public or
private agency on behalf of the district, and, presumably, paying interest on
the loan. The time that will elapse between now and the end of the fiscal
year should be ample for the county commissioners to arrange financing for
the construction contracts in question and to repay the money into the county's
general or capital outlay funds.
While the answer to your question is not free from doubt, I am inclined
to the view that, in light of the statutory authority of the county and the
decisions approving the use of county funds for water and sewer district purposes referred to above, your question should be answered in the affirmative.
071-376-November 23, 1971
PUBLIC RECORDS
REPORT OF ADVISORY BODY APPOINTED BY
.
UNIVERSITY PRESIDENT
To: Rivers Buford, Jr., General Counsel, Florida Board of Education, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attomey General
QUESTION:
Is a written report of an advisory body submitted to the president of a university at his request containing recommendations affecting the internal operation of the university a public record within the
meaning of Ch. 119, F. S.?
SUMMARY:
An unofficial report not required by law or necessary for carrying
out an official duty but made solely for the convenience of the public
official is not a public record within the purview of §1l9.011, F, S.
Section 119.011, F. S., relates to the public records of "any agency" and
defines "agency" as foHows:
(2) "Agency" shaH mean any state, county or municipal officer,
department, division, board, bureau, commission or other separate
unit of government created or established by law.
There is some question as to whether a university president should be
deemed to be a state "officer" within the purview of this law. As noted in
State ex rel. HoHoway v. Sheats, Fla. 1919, 83 So. 508, "the term 'office' embraces the idea of tenure, duration, and duties in exercising some portion of
the sovereign power, conferred or defined by law and not by contract." A
university president has no statutory tenure or compensation, nor are his duties
defined by law. He is appointed and may be removed by the Board of Hegents up~n the recommendation of the chanceHor of the state university system. Section 240.042(2)(d), F. S. However, the board may delegate to ". . .
heads of the several institutions and agencies under its jurisdiction such of its
powers as it deems expedient and proper," Section 240,042(1), id. And it may
ANNUAL REPORT OF THE ATTORNEY GENERAL
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be that the courts would hold that, in carrying out such delegated powers and
duties, he acts as a state "officer."
Assuming arguendo that the university president may be deemed to be a
state officer within the purview of §1l9.011, supra, it does not necessarily follow that the written report in question is a "public record," as defined therein.
As noted in AGO 071-243, the statutory definition of "public records" made
by §1l9.011, supra, to include documents and other memoranda "made or received pursuant to law or ordinance" is merely a restatement of the judicial
interpretation of the term "public records" made in such decisions as Amos
v. Gunn, Fla. 1922, 94 So. 615, 634, in which it was said that a public record
".. , . is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial
and evidence of something written, said or done...."
It was held in AGO 071-243, supra, that inspection reports made at the
request of a district school board in connection with its duty to investigate
a school building collapse were "public records" since they appear to have
been required in connection with the discharge by the board of its legal duty
to investigate such collapse. On the other hand, in a letter to Mr. N. H. Boutih,
dated Apr. 30, 1971, in holding that a tax assessor's "parcel cards" were not
public records, I reaffirmed the rulings of my predecessors in office that memoranda in the nature of a "work product" made by public officers for their
own convenience, even at pvblic expense, are not public records unless made
so by statute. I am advised that the advisory group appointed by the university
president to assist him in reviewing the structure and operation of a department of the university had no official status; it was simply an ad hoc committee selected by the president for his own convenience in what was, apparently, the exercise of his administrative authority in this respect. And it
seems clear that it was not a document "made or received pursuant to law
or ordinance" within the purview of §119.011, supra.
Nor can it be said to have been made or received "in connection with
the transaction of official business by any agency." In AGO 071-243, supra,
it was indicated that this statutory definition may have been intended to include more than the document that "memorializes" or evidences a business
transaction, such as a deed or mortgage or contract. However, as noted above,
this office is committed to the rule that memoranda and unofficial office reports made solely for the benefit of the public official involved that are in
the nature of a "work product" are not public records. In light of the fact
that the "work product" exception to the public records law is so firmly established, I have the view that a legislative intent to change the law in this
respect should be expressly declared and not inferred.
Thus, unless and until this question should be judicially or legislatively
clarified, your question should be answered in the negative.
071-377-November 30, 1971
TAXATION
ASSESSOR'S C01\IPENSAnON-ASSESSING PROPERTY FOR
MUNICIPALITIES
To: E. F. Schnurbusch, Martin County Tax Assessor, Stuart
Prepared by: W. E. Bishop, Jr., Assistant Attorney General
QUESTIONS:
1. Must the county tax assessor's compensation "for the value of
service performed" in assessing property for municipalities under
§§I67.433-167.439, F. S., be based on the amount of all taxes assessed
excluding errors as in §I92.091, F. S.?
i: