BIENNIAL REPORT OF THE ATTORNEY GENERAL3!':}3

Transcription

1 BIENNIAL REPORT OF THE ATTORNEY GENERAL3!':}3 :l ~ f be exercised by him or his deputies either individually or in conjunction with any other state or local official charged with similar responsibilities ( , F. S.). The foregoing sections of the Florida Statutes provide ample authority for the chief of a municipal fire department to enforce the Florida fire prevention code. Question 2 is answered in the affirmative. AS TO QUESTION 3: : Although the state fire marshal 'and his deputies are given the authority to serve summonses, make arrests, carry firearms and make searches and seizures, in the same manner as the sheriff or his deputies ( , F. S.), there is no provision in Ch. 633 which authorizes constables and sheriffs or deputy sheriffs to conduct the hearings and investigations authorized by said chapter. I believe that although sheriffs, deputy sheriffs and constables do not.have a specific duty to enforce the provisions of the Florida fire prevention code, violations of which are misdemeanors under the provisions of , F. S., such officers would be authorized as general peace officers of the county to make arrests and cause prosecution to be entered mider said section where violations of the Florida fire prevention code came to their attention.. Question 3 is answered accordingly. AS TO QUESTION 4: Examination of Ch. 633, F. S., fails to reveal any provision whereby persons other than the state fire marshal, his deputies or employees designated by him for such purposes, the chiefs of fire departments and the mayors of municipalities having no organized fire department, may bring action under said chapter. Thus, the power of enforcement of the Florida fire prevention code appears to lie solely within the jurisdiction of the state fire marshal's office, chiefs of fire departments, mayors of municipalities having no organized fire departments, and as pointed out in the answer to question 3, sheriffs, deputy sheriffs and constables. Of course, private persons discovering violations of the Florida fire prevention code would, as in connection with other crimes, be authorized to present an affidavit upon which a judicial'. officer might issue. an arrest warrant for the violator~ Private persons, having no duty to enforce the. Florida fire prevention code, might be subject to actions of trespass if. they attempt to conduct investigations on the property of others. It is therefore suggested that violations of said code, sought to be prosecuted by private persons, should be brought to the attention of a judicial officer or other officer empowered to enforce the Florida fire prevention code. Question 4 is answered accordingly November 30, 1959 BANKS AND BANIHNG RELEASE OF NAMES OF CREDIT UNION'S SHAREHOLDERS. AND SHARES OWNED, ETC.-CR. 657; , , , , AND , F. S. To:. Ray E. Green, State Comptroller, Tallahassee QUESTIONS: 1. May the state comptroller release a credit union's

2 394 BIENNIAL REPORT OF THE ATTORNEY GENERAL list of shareholders and the amount of shares held by each? 2. If the answer to question 1 is in the negative, then may the credit union or the bonding company bonding the officers and employees of the credit union, release such lists? Credit unions are creatures of Ch. 657, F. S., which chapter is administered by the state comptroller. Persons desiring to : organize a credit union must apply to the state comptroller for permission to organize such a union. The application certificate must be executed in duplicate, furnishing the information required by , F. S., to which reference is made, including the name and location of the union, the names and addresses of subscribers and number of shares subscribed by each subscriber, the par value of such shares, together with a copy of the by-laws proposed. If the application and the information therein contained, with other information furnished, show that it complies.with the requirement of the statutes, then a credit union may be organized ( ,F~ S.). Such a certificate of organization may be amended ( , F. S.). The membership of such credit unions consists of its subscribers and others who may elect to become members and,vho qualify for membership ( , F. S.). However, there is no requirement that a list of such subsequent members be filed with the state comptroller so as to become a public record so as to be within the purview of 1l9.01, F. S., hereinafter mentioned. Under , F. S., "credit unions shall be under the supervision of the state comptroller. They shall report to him at least annually on or before the 31st day of January on blanks supplied by the said comptroller for that purpose. Additional reports may be required. For failure to file when due, unless excused for cause, the credit union shall pay the treasurer of the state five dollars for each day of its delinquency. If the said comptroller determines that the credit union is violating the provisions of this chapter, or is insolvent, the said comptroller may serve notice on the credit union of his intention to revoke the certificate of approval. If, for a period of fifteen days after said notice, said violation continues, the said comptroller may revoke said certificate and take possession of the business and property of said credit union, and maintain possession until such time as he shall permit it to continue business, or its affairs are finally liquidated, in the same manner as state banks are liquidated. He may take similar action if said report remains in arrears more than fifteen days." Also, under said section it is provided: "Credit unions shall be examined at least annually by the said comptroller or his agent except that if a credit union has assets of less than twenty-five thousand dollars, he may accept the audit of a practicing public accountant in place of such examination." (Emphasis supplied.) Whenever the state comptroller finds that a credit union is violating the provisions of Ch. 657, F. S., or is insolvent, in any of the manners aforesaid, it becomes his official duty to take steps to correct such violation and prevent insolvency, if insolvency may be avoided. Where violations of criminal laws are disclosed by the audit the state attorney should be advised and furnished material information relative to such violations..

3 BIENNIAL REPORT OF THE ATTORNEY GENERAL 395 r o r e Under , F. S., "all state, county and municipal records shall at all times be open for a personal inspection of any citizen of Florida, and those in charge of such records shall not refuse this privilege to any citizen." "What is a public record is a question of law. 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" (Amos v. Gunn, 84 Fla. 285, 94 So. 615, text 634). The mere fact that a document is deposited or filed in a public office, or with a public officer, even though necessarily so deposited, or is in custody of a public officer, does not make it a public record. Nor is every memorandum made by a public officer a public record; papers or memoranda in the possession of public officers which are not required by law to be kept by them as public records, are not public records, and re ports of private individuals to government officials, even pursuant to statute, correspondence of officials relating to private affairs, although in connection with public business, and memoranda of public officers made for their own convenience, even if made at public expense, are not public records unless made so by statute._ Whether or not records are strictly public records is often declared by statute. In the absence of statute, the nature and purpose of the record and possibly custom and usage, must be the guides in determining the class to which it belongs (76 C. J. S. 113, 1). If the state comptroller has a list of the credit union's shareholders and the amount of shares held by them, doubtless they are memoranda taken from the books and records of the union in connection with an audit of its business made for the purpose of determining its solvency and whether the applicable statutes have been violated. Such memoranda are not required by the statutes and do not usually constitute a public record. There is nothing in Ch. 657, F. S., which indicates that a list of the credit union's shareholders and the amount of shares held by them must be filed with the state comptroller and kept by him as a public record open to public inspection. The list of shareholders, and the amounts of credit union shares held by them, is a list of individuals and their property and property rights. This raises a question of right of privacy of such shareholders. "'The right of privacy,' as the term is employed with respect to the determination of whether a cause of action in damages exists for an unwarranted invasion of such right... may be defined as the right of an individual to be let alone, or to live a life of seclusion, or to be free from unwarranted publicity, or to be free from unwarranted interference by the public about matters with which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual's private life which would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities." (77 C. J. S , 1). The right of privacy has been recognized and enforced by the supreme court of this state (Cason v. Baskin, 155 Fla. 198, 20 So. 2d 243, 168 A. L. R. 430, and 159 Fla. 31, 30 So. 2d 635). Generally, upon the question of the right of privacy, see annotations in 138 A. L. R , 168 A. L. R , and 14 A. L. R. 2d The right of privacy is not an absolute right and is subject to limitations, such as the dissemination of news and news events

4 396 BIENNIAL REPORT OF THE ATTORNEY GENERAL under certain conditions. It protects only the ordinary sensibilties of an individual and not supersensitiveness. It has been said that generally the right does not exist with respect to the dissemination of news and news events, or educational information, and does not prohibit the communcation of any matter, even though in its nature private, when the publication is made under circumstances which would render it a privileged comunication according to the rule with respect to slander and libel (77 C. J. S , 2). However, this authority further states that "in any event, the right of privacy must be recognized and enforced without curtailment of constitutional guarantees." Although it may be that a newspaper publication of a list of the shareholders and the amount of shares held by each in a credit union may have news value, there exists the question of whether the furnishing of such information to the publisher of a newspaper by a state official might not constitute a violation of the right of privacy of some, if not all, of such shareholders; this is a question that only the court in each particular case can determine. This office in opinions of March 22, 1957 (057-82, A. G. O. 88) and of May 9, 1958 ( , A. G. O. 680) considered the right of the comptroller to reveal information concerning correspondence, reports, letters, records, and the like, obtained, received or used in connection with the enforcement of the small loan and sales and use tax statutes, wherein it was held that such information was not public records and was in the nature of state secrets which should not be revealed. Much of the information obtained by the comptroller in his investigations concerning credit unions is of the same general nature. If a list of credit union members and their number or value of shares in the credit union may be obtained and handed over to the press by the comptroller, the question immediately arises as to why the same rule should not apply to bank stockholders, bank depositors, members of building and loan associations or any other corporation or agency whose books and records are liable to inspection by the state comptroller. We do not think that the statutes and laws of this state would permit such disclosures without the consent of the interested parties. These authorities and observations require a negative answer to question 1 unless and until a court of competent jurisdiction shall hold otherwise. However, we see no objection to your allowing public inspection by, or furnishing information to citizens of the state covering any of the organizational records relating to a credit union since they are public records. These are the items referred to in , F. S., which include the names and addresses of subscribers to the original certificate of a credit union and all other original organization documents and amendments thereto. The record of the names and addresses of the members of the board of directors and committees and officers which are filed with the comptroller pursuant to , F. S., are also public records and may be disclosed to citizens. The answer to question 2 is in the affirmative insofar as the credit union is concerned. However, whether the bond company bonding the officers may release the list of shareholders is a question which only the bonding company, on advice of its counsel, can properly answer. Actually, this question involves a matter of pri-

5 IlIENNIAL REPORT OF THE ATTORNEY G:E:NERAL 397 ; I vate consent rather than a subject of state concern. Nevertheless, I see no legal objection to the credit union releasing the list if it will do so December 4, 1959 MUNICIPAL COURTS JURISDICTION TO TRY PERSONS ACCUSED OF VIOLATING PROVISIONS OF FLORIDA MODEL TRAFFIC ORDINANCE, CH. 186, F. S.-PROCEDURES AND , F. S. To: Raymond A. Doumar, Municipal Court Judge, Fort Lauderdale QUESTIONS: 1. Can the municipal court acquire jurisdiction over the subject matter of an offense where the complaint is in the form of a citation which is not sworn to by the arresting officer? 2. Does a person against whom an unsworn citation has been filed in the municipal court waive his right to a formal sworn complaint against him by the entry of a plea of guilty or not guilty to such citation? Generally, the phrase "jurisdiction of the subject matter" has reference to the power of a court to hear and determine a particular cause. Although this phrase may have sometimes been extended to situations where the jurisdiction of the court has not been properly invoked by appropriate pleadings prepared and filed in accordance with law, such an application is not proper (Malone v. Meres, 109 So. 677; 8 Fla. Jur. Courts, 97; Bohlinger v. Higginbotham, Fla., 70 So. 2d 911). In view of the above, it would appear that whether the municipal court had jurisdiction over the.subject matter of an offense would depend upon the provisions of the constitution of Florida, Florida Statutes, and the municipal ordinances of the municipality where the particular municipal court is located, applicable to said court, rather than upon the form of the citation or complaint filed in.such court. It is well settled that a municipal court has authority to try only causes which arise under municipal ordinances which have been duly adopted by the municipality where the court is located pursuant to authority granted such municipality under either Florida Statutes or a special act of the legislature. Your letter indicates that you are primarily concerned with the jurisdiction of the municipal court to try persons accused of violating the provisions of the Florida model traffic ordinance (Ch. 186, F. S.)... If the city of Fort Lauderdale has adopted the Florida model traffic ordinance as an ordinance of that city, and has provided either in the ordinance adopting the Florida model traffic ordinance. or some other general ordinance dealing with the powers of the municipal court that violations of the Florida model traffic ordinance shall be prosecuted in the municipal court, then such court would have jurisdiction over the subject matter of violations of said ordinance. The jurisdiction of a particular court over the subject matter of a particular cause remains at rest until called into action by a r.