ADMITTING PUBLIC RECORDS INTO EVIDENCE AT TRIAL

Under Florida law, government records are often admissible both as business records and public records, but it is generally easier to obtain admission as a public record. An evidentiary proponent may easily authenticate public records by requesting the state supply the record under seal. It also is not necessary to show the state created the public records at or near the time of the memorialized matter, and therefore it is much easier to admit into evidence than business records. By contrast, authenticating a business record requires either: (1) a record custodian to testify under oath, (2) stipulation of the parties that the document is a business record, or (3) through a declaration by a person with knowledge that the record (a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters; (b) was kept in the course of the regularly conduct activity; and (c) was made as a regular practice in the course of the regular conducted activity.

In Florida, admission of public records is governed by Florida Statutes § 90.803(8), which references two types of public records. The first type includes records setting forth the “activities of the office,” while the second type includes records setting forth matters observed pursuant to a duty imposed by law as to matters which there was a duty to report.

Regarding the first type of public records, the Supreme Court of Florida in Yisreal v. State of Florida, 993 So.3d 952 (Fla. 2008), explained that the purpose of the “activities of the office” exception is to allow public records prepared for purposes independent of specific litigation and does not need to be based on personal knowledge. Yisreal held that the letter at issue was not an “activities of the office” based public record because the letter was drafted as a gratuitous hearsay letter for the purpose of litigation, rather than a document creating and maintaining Crime and Time Reports, which was the relevant activity of the office.

To become admissible under the second type of public record exception, i.e., matters observed pursuant to a duty imposed by law as to matters which there was a duty to report, the following three elements must be shown: (1) the source of the information must have personal knowledge of the information recorded, as the phrase “matters observed” implies, (2) the source must have had a legal duty to both observe and report the information, and (3) the record in question must be one that the public agency or office is required by law to prepare. Yisreal held that the second type of public record exception was not met because the individual that created the letter did not allege she had personal knowledge, and the Department of Corrections did not have a legal duty to create a litigation-specific letter.

Compared to business records, public records are far easier to admit into evidence because there is no requirement of personal knowledge. Unlike the business record, this can be accomplished with very minimal planning in advance of trial.

The Mavrick Law Firm represents businesses in commercial litigation, labor/employment law, and real property litigation. This article is not a substitute for legal advice tailored to a particular situation. The Mavrick Law Firm can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.