CEO 89-10 -- April 13, 1989

CONFLICT OF INTEREST

CITY EMPLOYEE MARKETING LIST

OF CITY EMPLOYEES TO SALESPEOPLE

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(8), Florida Statutes, were a computer programmer employed by a city to market a list of city employees, and their addresses and phone numbers, to various companies which are interested in this information for the purpose of obtaining sales leads. Any information disclosed by the employee would be limited to official public records. Also, Section 112.313(7)(a), Florida Statutes, will not be violated unless the subject employee establishes contractual relationships with business entities which are doing business with the city. CEO's 88-2 and 79-47 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were a computer programmer employed by a city to market a list of city employees, and their addresses and phone numbers, to various companies which are interested in obtaining this information for the purpose of obtaining sales leads?

Your question is answered in the negative, subject to the restriction noted below.

In your letter of inquiry you advise that . . . is employed by the City of Pinellas Park as a Computer Programmer in the Data Processing Department. You further advise that he proposes to secure an electronic copy of files which contain the names, addresses, and telephone numbers of all City employees, to rearrange this data into a useable form on his own time using his personal computer, and to market this information through direct personal contact to companies interested in obtaining a mailing list of City employees.

Investment brokers and insurance carriers in particular have expressed an interest in securing the names, addresses, and telephone numbers of City employees for the purpose of obtaining sales leads. While the City does not solicit or encourage such requests, as a matter of policy the City provides records which have been generated for City business upon written request to the City Clerk. Although the City does not produce a computer print-out of employee names, addresses, or telephone numbers, the City's Automated Personnel System contains individual personnel records stored in a central computer which could be copied on a magnetic tape or disk in complying with a request for this information.

The Code of Ethics provides in relevant part:

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.[Section 112.313(8), Florida Statutes (1987).]

We are of the opinion that this provision does not apply to the situation you have described as any information disclosed by the computer programmer would be limited to official public records. See CEO 88-2, in which we advised that no conflict existed under Section 112.313(8) where the information used by a public employee in the production of a manuscript for a publishing company was limited to official public records. We note that Section 119.01(1), Florida Statutes, provides that "[i]t is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person." See, AGO 075-175 which advised that a public employee was a "person" within the meaning of the Public Records Law and, as such, possessed the same right of inspection as any other person. Section 119.011(1), Florida Statutes, defines "public records" as

all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, mad or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Information stored on a computer is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet. Seigle v. Barry, 422 So.2d 63 (Fla. 4th DCA 1982). See, also, AGO 85-3 which advised that a public agency, in the absence of any statute providing for confidentiality of such records or exempting such information from disclosure, had a mandatory duty to permit inspection of computer tapes from which the names and addresses of subscribers to the agency's publication could be obtained and to furnish copies of such records upon request. The law does not require that a person show a legitimate purpose as a condition of access to public records, and the use to which a person intends to put the information is irrelevant. See, Davis v. McMillan, 38 So. 666 (Fla. 1905), and Warden v. Bennet, 340 So.2d 997 (Fla. 2d DCA 1976), which held that the president and trustees of a college were obligated by the Public Records Act to furnish a labor organizer with records containing the names and addresses of college employees.

In CEO 79-47 we advised that Section 112.313(8) was violated where a public employee privately provided analysis and interpretation of data compiled by his agency to a foreign government, stating that the uniqueness of his position afforded him direct access to the data, direct experience in interpreting it, and direct knowledge of an existing market for such analysis and interpretation. However, no facts have been presented in the current situation which would indicate that a similar conflict would exist.

The Code of Ethics also provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.[Section 112.313(7)(a), Florida Statutes (1987).]

The first part of this provision prohibits a public employee from having contractual relationships with business entities which are doing business with his agency. Thus, the subject employee would be prohibited from marketing the list to businesses which are doing business with the City.

This provision also prohibits a public employee from having any employment or contractual relationship which would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which would impede the full and faithful discharge of his public duties. We found that the employee in CEO 79-47 also had a conflict under this portion of Section 112.313(7)(a) as he was in a position to benefit privately from a situation in which his agency could participate officially, thereby diverting agency-related business to himself for private gain. The present situation also differs from this scenario. We note that the production of public records is not a revenue-generating operation. Section 119.07(1)(a) states that the custodian of a public record must furnish a copy of the record upon payment of actual cost of duplication of the record. The phrase "actual cost of duplication" means the cost of materials and supplies used to duplicate the record but does not include the labor cost or overhead cost associated with such duplication, except that an agency is authorized to levy a special service charge in the event that the nature or volume of public records requested is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance. See, Section 119.07(1)(b), Florida Statutes. Also, the City would have no duty to provide a mailing list comprised of the names, addresses, and telephone numbers of City employees to an interested business. See, Seigle v. Barry, supra, where the court adopted the rule that access to computerized records shall be given through the use of programs currently in use by the public official responsible for maintaining the records, although access by the use of a specially designed program prepared by or at the expense of the applicant may be permitted in the discretion of the public official but is not required except under special circumstances.

Accordingly, we find that no prohibited conflict of interest would be created were the Computer Programmer to market a list of City employees, and their addresses and phone numbers, to various companies which are interested in obtaining this information as long as those companies are not doing business with the City.