2013_sunshine_seminars_-_powerpoint_presentation.pdf

7/27/2019 2013_sunshine_seminars_-_powerpoint_presentation.pdf

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The First Amendment Foundation

2013

Sunshine Seminar


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Floridas

Open Meetings LawArticle I, s. 24(b), Fla. Con.

Section 286.011, F.S.


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FLORIDAS CONSTITUTIONAccess to Government Meetings

Article I, section 24(b)

All meetings of any collegial body of the executive branch

of state government or of any . . . county, municipality,school district, or special district, at which official acts areto be taken or at which public business . . . is to betransacted or discussed, shall be open and noticed to

the public . . .


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Florida Legislature

Note that the Florida Legislature is not subject tothe meetings provision in Article I, section 24(b),

of Floridas Constitution.

However, the Legislature is bound by therequirements of Article III, s. 4(e), Fla. Con.,

which says thatpre-arrangedmeetings betweenmore than 2 members of the Legislature must bereasonably open to the public.


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Florida Courts

Florida courts are not bound by the meetingsrequirements in Article I, section 24(b), Fla. Con.

However, Amendments I and VI of the U.S.

Constitution guarantee open judicialproceedings, and although a court has theinherent power to control its proceedings, thereis a strong presumption of openness in both

criminal and civil proceedings. In each case acourt must balance the interests of the partiesagainst those of the public.


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FLORIDAS SUNSHINE LAWSection 286.011, F.S.

Three Requirements

1. Meetings of public agencies must be open tothe public;

2. Reasonable notice of such meetings must be

given; and

3. Minutes must be taken.


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What is a meeting?

Generally, the Sunshine Law applies to anygathering, whether formal or informal, oftwo or more members of the same boardor commission to discuss some issue onwhich foreseeable action will be taken by

the board or commission. Hough v. Stembridge, 278So.2d 288 (Fla. 3d DCA 1973)


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question

Two members of the City Commission areannoyed by Mr. Smith, a self-appointedwatch dog, who is extremely critical, it

seems, of everything the city commissiondoes.

The two commissioners arrange aconference call with the city manager todiscuss what action the commission mighttake to address the Smith problem.

Is this a violation of the Sunshine Law?


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What is a meeting?

Evasive Devices

The Sunshine Law applies, generally, todeliberations and discussions between two or moremembers of the board an any issue on whichforeseeable action might be taken, and the use of atelephone to conduct such discussions does notremove the conversations from the requirements ofthe law. State v. Childers, No. 02-21939-MMC; 02-21940-MMB

(Escambia Co. Ct. June 5, 2003),per curiam affd., 886 So.2d 229 (1

st

DCA2004)

Similarly, members of a public board cant usecomputers to conduct private discussions amongthemselves about board business. AGO 89-39


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question

Mr. Smith and Reporter Rick want to attend ameeting of an advisory committee formed by theCity Commission to make recommendations

about possible reductions to city staff. Theadvisory committee is comprised of the CityManager, the City personnel director, and fiveprivate citizens active in City government.

Can Mr. Smith and Rick attend the

meeting?


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What is a meeting?

Who is Covered by the Sunshine Law?

All public agencies in the state: state agencies,local governments, school boards, and special

districts. Advisory boards and committees.

Private companies doing business on behalf of agovernment agency.

One person acting on behalf of a board orcommission.

Members- and Officers-elect.


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What is a meeting?


Advisory boards or committees created pursuant to law orordinance or otherwise established by public agencies

are subject to the Sunshine Law even though theirrecommendations are not binding. Town of Palm Beach v.Gradison, 296 So.2d 473 (Fla. 1974)

Staff meetings are not generally subject to the SunshineLaw. School Board of Duval County v. Florida Publishing Company, 670

So.2d 99, 101 (Fla. 1st DCA 1996)

Butstaff should refrain from polling board members onspecific issues which will come before the board forconsideration. AGO 75-59


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What is a meeting?


The sunshine law applies to meetings between aboard member and an individual who is nota board

member when that individual is being used as aliaison between, or to conduct a de facto meeting of,board members. AGO 74-47

A single member of a board or commission will be

subject to the sunshine law ifthat one person hasbeen delegated the authority to act on behalf of the

entire board or commission. AGOs 74-294; 75-41; and 10-15


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What is a meeting?

Who is Covered by the Sunshine Law?Members-elect of boards or commissions are subject

to the sunshine law at the point election results are

certified. Hough v. Stembridge, 287 So.2d 288 (Fla. 3d DCA 1973) andSection 286.011, F.S.

The sunshine law applies to transition teams

appointed by a member- or officer-elect for thepurpose of making recommendations. Inf. Op to Lamar,August 2, 1993


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question

After a rather contentious city commission meetingat which potential cuts to city staff are discussed,Mr. Smith decides to go to his favorite bar to

nurse a horrible headache. When he gets there,he sees three city commissioners sitting at atable talking. Mr. Smith takes a seat close to thecommissioners and hears them planning a golf

outing for the following Saturday.Are the city commissioners violating the

Sunshine Law?


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What is a meeting?

When the Sunshine Law does notapply:

When a committee has been established for the solepurpose of fact-finding gathering information and

reporting the facts the Sunshine Law will notapply.Cape Publications, Inc. v. City of Palm Bay, 473 So.2d 222(Fla. 5th DCA 1985)

However, thefact-finding exception

applies onlytoadvisory committees and notto boards with

ultimate decision-making authority. Finch v. SeminoleCounty School Board, 995 So. 2d 1068 (Fla. 5th DCA 2008)


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What is a meeting?


Community or political forums sponsored by a privateorganization are notsubject to the sunshine law

even though two or more members of the sameboard or commission are in attendance anddiscussing issues that may come before them intheir official capacity. AGOs 92-05 and 94-62

The sunshine law will apply, however, if the membersof the board or commission discuss such issuesamong themselves.


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What is a meeting?


The Sunshine Law does notapply to socialgatherings attended by two or moremembers of the same board orcommission provided that public business

is not discussed. AGO 92-79


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question

The city commission is holding a specialmeeting to discuss possible staff layoffsand has notified Reporter Rick about the

upcoming meeting.

By informing Reporter Rick, has thecommission satisfied the Sunshine Laws

notice requirements?


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Procedural Requirements

1. Notice

Must be sufficient so as to inform; and

Must be reasonable in terms of

Content

Timing

Placement

NOTE: Other statutes, codes or ordinances may imposedifferent notice requirements and possibly morestringent than those required by s. 286.011.


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The type of notice that must be given is variable,depending on the facts of the situation and the boardinvolved. In each case, an agency must give notice atsuch time and in such a manner as will enable the media

and the general public to attend the meeting. AGOs 04-44,80-78, and 73-170.

The purpose of the notice requirement is to apprise thepublic of the pendency of matters that might affect their

rights, afford them the opportunity to appear and presenttheir views, and afford them a reasonable time to makean appearance if they wish. Rhea v. City of Gainesville, 574 So.2d 221, 222 (Fla. 1st DCA 1991)


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question

Mr. Smith wants to speak at the citycommission meeting about the possiblestaff reductions, but the commission has a

policy prohibiting public participation.

Does Mr. Smith have a right to speak?


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2. Public Participation

The Florida Supreme Court has said that

government boards and commissions shouldnot be allowed to deprive the public of theinalienable right to be present and to beheard at all deliberations wherein decisionsaffecting the public are being made.Board ofPublic Instruction of Broward County v. Doran, 224 So. 2d 693, 699 (Fla.1969)


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However, the courts have not ruled on the extent to whichthe sunshine law requires a governmental entity topermit the public to speak at public meetings.

And in recent cases, Florida courts have found thatalthough the public has a right to attend public meetings,the right to speak is not absolute.

Keesler v. Comm. Maritime Park Assoc., Inc., 32 So. 2d 659 (Fla. 1st DCA2010), review denied, 47 So. 3d 1289 (2010)

Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), reviewdenied, 47 So. 3d 1288 (2010)

Kennedy v. St. Johns River Water Management District, No. 2009-0441-CA(Fla. 7th Cir. Ct. September 27, 2010),per curiam affirmed, No. 5D10-3656(Fla. 5th DCA October 25, 2011)


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The 2013 Legislature, however, passed CS/SB 50,requiring boards and commissions to provide the publicwith a reasonable opportunity to be heard on

propositions before the board or commission. The right

to speak doesnt have to be at the same meeting atwhich the proposition will be considered, but it mustoccur within reasonable proximity to the meeting atwhich official action will be taken. The new law, s.

286.0114, F.S., which takes effect October 1, 2013,allows for the adoption of reasonable rules requiringorderly conduct and the orderly progression of ameeting, and contains a few minor exceptions.


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question

Mr. Smith starts criticizing a member of thecity commission during the time set asidefor public testimony, but the commission

has a policy that says everyone gets tospeak so long as the speaker doesn'tcriticize the members of the board.

Does Mr. Smith have a right to criticize theboard member?


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Reasonable RulesIf a government agency elects to allow public

participation, the agency can adopt reasonable ruleswhich require orderly behavior and allow for theorderly progression of public meetings. AGOs 04-53 and91-53

However, the use of non-disruptive recording devices,

whether cameras or tape recorders, cannot bebanned. Pinellas County School Board v. Suncam, Inc. 829 So. 2d 989(Fla. 2d DCA 2002)


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question

The committee formed to make arecommendation to the city commissionabout the staff reductions is meeting in

Mrs. Browns kitchen.

Is that okay?

Can Reporter Rick and Mr. Smith attend themeeting?


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3. Location

A government agency -

Cannot hold a meeting at any facility whichdiscriminates based on age, race, etc.; Cannot unreasonably restrict public access;

and

Must hold meetings in a facility of sufficient sizeso as to accommodate the anticipated turnout.

2013 Sunshine Manual at pp. 40 - 42


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4. Inaudible Discussions

A violation of the sunshine law may occur if board

members discuss board business in a mannernot generally audible to the public attending themeeting. Although such a meeting is notclandestine, it nonetheless violates the letter

and spirit of the law. Rackleff v. Bishop, No. 89-235 (Fla. 2dCir. Ct. March 5, 1990)


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5. Voting

Board members may use written ballots to cast a voteifthe votes are made openly at a public meeting,

the name of the person who voted and his or herselection are written on ballot, and the ballots aremaintained and made available for publicinspection. AGO 73-344

A member of a state, county, or municipal board whois present at a meeting cannot abstain from votingunless there is, or appears to be, a possible conflictof interest under the Code of Ethics for Public

Officers and Employees. Section 286.012, F.S.


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question

The city commission is meeting to discussthe possible firing of ten city staffers. Mr.Smith sees the commissioners sitting in

the conference room and opens the door.The city manager says Mr. Smith cantattend the meeting because of thesensitive

nature of the discussion.

Can they keep Mr. Smith out?


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Exemptions

Presumption of Openness: All meetingsbetween two or more members of the sameboard or commission are open to the publicunless there is a specificstatutory exemption.

Only the Legislature can create an exemption toour constitutional right of access. Art. I, s. 24(c), Fla. Con.

If denied access to a meeting, the person deniedmay demand the statutory citation authorizingclosure.


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Litigation ExemptionSection 286.011(8) , F.S.

1. Applies topendinglitigation to which the public agencyispresentlya party;

2. Agency attorney must notify the agency at a publicmeeting;

3. Attendance is strictly limited;4. Subject matter is limited to discussion of settlement

negotiations or strategy sessions related to litigationexpenditures;

5. Action is prohibited;6. The meeting must be recorded by a court reporter; and

7. A transcript of the meeting becomes a public record atthe conclusion of the litigation.


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Security ExemptionSection 286.0113, F.S.

Allows closure of portions of government meetingswhich would reveal a security system plan.

A security system plan includes all records,information, photographs, audio and visualpresentations, schematic diagrams, surveys,recommendations, or consultations . . . relatingto the physical security of the facility or revealingsecurity systems . . . Section 119.071(2), F.S.


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Competitive Solicitation ExemptionSection 286.0113(2), F.S.

Those portions of a meeting at which a1) negotiation with a vendor is conducted pursuant

to a competitive solicitation;2) vendor makes an oral presentation as part of a

competitive solicitation; or3) vendor answers questions a part of a competitive

solicitation are exempt, as are portions of team meetings atwhich negotiation strategies are discussed are exempt.Sections 286.0113(2)(b) & (c)

Competitive solicitation means the process of requestingand receiving sealed bids, proposals or replies inaccordance with the terms of a competitive process,

regardless of the method of procurement.Section85.0113(3)(a)1.


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question

The city commissions attorney informs thecommission that it may have been aviolation of the Sunshine Law to refuse Mr.

Smith the right to attend the meeting heldto discuss potential layoffs. Mr. Smith hassaid hes going to sue to overturn the

commissions decision to fire the ten

staffers.

What can the city commission do?


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Cure Meetings

No resolution, rule, regulation, or formal actionshall be considered binding except as taken atan open meeting. Section 286.011, F.S.

Action taken in violation of the Sunshine Law isvoid ab initio. Town of Palm Beach v. Gradison, 296 So. 2d 473(Fla. 1974)

Action but notviolations - can be cured when

the offending agency takes independent finalaction in the sunshine. Tolar v. School Board of LibertyCounty, 398 So. 2d 427, 429 (Fla. 1981)


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Sanctions

An unintentional violation: non-criminal infractionpunishable by a fine up to $500. Section 286.011(3)(a), F.S.

A knowing violation: 2d degree misdemeanor punishable

by a fine of not more than $500 and/or a jail term of notmore than 60 days. Section 286.011(3)(b), F.S.

Suspension or removal from office. Section 112.52(1), F.S.

Attorneys fees and court costs. Sections 286.011(4) and (5),F.S.


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Floridas

Public Records Law

Article I, s. 24(a), Fla.Con.

Chapter 119, F.S.


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FLORIDAS CONSTITUTIONAccess to Government Records

Article I, section 24(a)

Every person has the right to inspect or copy any public

record made or received in connection with the official

business of any public body, officer, or employee of thestate, or persons acting on their behalfThis section

specifically includes the legislative, executive, andjudicial branches of government; . . . counties,

municipalities, and districts; and each constitutionalofficer, board, and commission . . .


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Access to Government

Records

State Agencies & Local Government

Chapter 119, Florida Statutes

The Florida LegislatureSection 11.0431, Florida Statutes

Florida Courts

Rule 2.420, Florida Rules of Judicial

Administration


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question

Mr. Smith requests a copy of a personnel fileover the telephone and says hell be inlater that week to pick up the records

requested. When he arrives at thepersonnel office, hes told he has to makethe request to the city clerk.

Does Mr. Smith have to make his request fora personnel record at the city clerks

office?


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Whos Responsible?

Section 119.07(1)(a): Every person who has custody ofa public record shall permit the record to be inspectedand copied by any person . . . at any reasonable time,under reasonable conditions, and under supervision by

the custodian of the public records.

Section 119.011(5): Defines custodian of publicrecords as the person who is responsible formaintaining the office having public records . . . .

Section 119.07(1)(b): Authorizes the custodian todesignate another to permit inspection and copying;requires disclosure of designee s identity.


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Whos Responsible?

NOTE: Section 119.011(5), F.S., defines custodianof public records as the person who is responsibleformaintaining the office having publicrecords . . . .

The Florida courts have concluded that the statutoryreference to the records custodian does not alter theduty of disclosure imposed by s. 119.07(1) uponevery personwho has custody of a public record.

Puls v. City of Port St. Lucie 678 So.2d 514 (Fla. 4th DCA 1996)


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Whos Responsible?

Section 119.011(2), F.S., defines agency as any state,

county, district, authority, . . . division, board, bureau,commission, . . . And any other public or private agency,person, partnership, corporation, or business entity acting

on behalf ofany public agency.Theres a new provision in the law, s. 119.0701, which

stipulates that all public agency contracts for servicescontain a provision requiring the contractor to comply with

the public records law and to provide the public with accessto public records under the same terms and conditionsand the same cost as the public agency. The contractingagency is responsible for ensuring that its contractorscomply with the new requirements.


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Who Can RequestPublic Records?

The word person is defined to include individuals, firms,associations, joint []ventures, partnerships, estates,trusts, . . . corporations, and all other groups orcombinations. Section 1.01(3), F.S.

The law provides any member of the public access topublic records, whether he or she be the mostoutstanding civic citizen or the most heinous criminal.

Church of Scientology Flag Service Org., Inc v. Wood, No. 97-688CI-07 (Fla.6th Cir. Ct. Feb. 27, 1997)


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Who Can RequestPublic Records?

The motivation of the person seeking the records does notimpact the persons right [of access] under the PublicRecords Act. Curry v. State, 811 So.2d 736, 742 (Fla. 4th DCA 2002)

A persons motive in seeking public records is irrelevant.Timoney v. City of Miami Civilian Investigative Panel, 917 So.2d 885, 886n.3

(Fla. 3rd DCA 2005)

The fact that a person seeking access to public records

wishes to use them in a commercial enterprise does notalter his or her rights under Floridas public recordslaw.Microdecisions, Inc. v. Skinner, 889 So.2d 871, 875 (Fla. 2nd DCA2004)


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question

A staff member recorded yesterdays staffmeeting which, incidentally, was notsubject to the sunshine law. This morning,

Reporter Rick makes a public recordrequest for a copy of the tape recording.

Can he have a copy of the recording?


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What is a Public Record?

The term public record means all documents, papers,letters, maps, books, tapes, photographs, films, soundrecordings, data processing software, or other material,regardless of the physical form, characteristics, ormeans of transmission, made or received pursuant tolaw or ordinance or in connection with the transaction ofofficial business by any agency.Section 119.011(11), F.S.

And includes any materialprepared in connection with

official agency business which is intended to perpetuate,communicate, or formalize knowledge of some type.Shevin v. Byron, Harless, Schaffer, Reid and Assoc., 379 So. 2d

633, 640 (Fla. 1980)


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The Attorney General has also said that the placement ofmaterial on an agencys Facebook page presumablywould be in connection with the transaction of officialbusiness and thus subject to the public records law, and

that the agency is under an obligation to follow retentionschedules established by law. AGO 09-19

And although neither the AGO nor the courts have directlyaddressed the issue of tweets as a public record, we can

safely assume that such records, ifintended to

perpetuate, communicate, or formalize knowledgerelated to official agency business are subject to therequirements of the public records law.


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question

Reporter Rick calls the citys personnel office andwants to know how many city employees make over$35,000/year. The personnel director declines toanswer Ricks question. He then says look, Im ondeadline and I want a list of all your employeesmaking over $35,000/year within the hour.

Does the personnel director have to comply withthe Ricks request?


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What is a public record?

Requests for Information

Floridas public records law requires an agency toprovide access to public records. But an agency is

notrequired to provide information from thoserecords. AGO 92-38

Floridas public records law provides a right of accessto inspect and copy an agencys existingpublic

records; it does not mandate that an agency createnew records in order to accommodate a request forinformation from the agency. Wooten v. Cook, 590 So.2d 1039(Fla. 1st DCA 1991)


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question

Mr. Smith is very interested in the history ofthe citys parks and makes a public recordrequest for all records related to park

projects approved between 1960 and 1965.Hes told the records have been destroyed.

Very annoyed, he threatens to sue the city.

Can he prevail?


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Record Retention RequirementsSection 119.021(2)(a), F.S., requires the Division of Library

and Information Services (DOS) to adopt rulesestablishing retention schedules and a disposal processfor public records.

Section 257.36(6), F.S., says that public records can bedestroyed or otherwise disposed ofonly in accordancewith retention schedules established by the division.

Division of Library & Information Services

State Records Center

850/[email protected]

http://dlis.dos.state.fl.us/RecordsManagers
mailto:[email protected]://dlis.dos.state.fl.us/RecordsManagershttp://dlis.dos.state.fl.us/RecordsManagersmailto:[email protected]


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question

After being sent back to the personnel office, Mr.Smith is told that he has to fill out a form in orderto obtain the record requested, and that city

policy says he has to wait 72 hours to get therequested records.

Can his request be denied if Mr. Smithrefuses to fill out the form?

Does Mr. Smith have to wait 72 hours to gethis records?


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Reasonable Conditions

Agency Imposed RestrictionsAn agency may not impose a rule or condition on the right

of access that operates to restrict or circumvent thatright. AGO 75-50

Absent specific statutory authority, an agency cannotrequire: that requests for records be made in writing; orDade Aviation Consultants v. Knight Ridder, Inc., 800 So.2d 302 (Fla. 3d

DCA 2002)

that a requestor provide identity or the reason for therequest.AGOs 92-38 and 91-76


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Prompt Response v. Reasonable Production

Section 119.07(1)(c), F.S., requires that requests toinspect or copy public records be acknowledged

promptlyand in good faith.This is separate from the reasonable productionrequirement in s. 119.07(1)(a). The Florida SupremeCourt has said that reasonable means the time it

takes to locate a record, review it for exemptinformation, and provide a copy to the requestor.Tribune Company v. Cannella, 458 So.2d 1075, 1078 (Fla. 1984)

Reasonable Conditions


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question

The city tells Mr. Smith it will take 4 hours ofstaff time to compile the requested recordsand gives him a cost estimate of $250.

Mr. Smith is asked to pay the estimatedfees before staff starts making copies.

Does Mr. Smith have to pay the estimatedcost in advance of getting his copies?


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Fees & Costs

The custodian of public records must furnish a copy ora certified copy of the [requested] record upon

payment of the fee prescribed by law. Section 119.07(4),F.S.

Authorized Fees 15 a page for paper copies up to 8 x 14 inches,

plus an additional 5 for two-sided copies.or

The actual cost of duplication for large size paper ornon-paper copies. Section 119.07(4)(a), F.S.


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Fees & Costs

Actual cost of duplication means the cost of the materialand supplies actually used to duplicate the public record.Labor and overhead costs are specifically excludedandsuch costs cant be passed on to the requestor. Section

119.011(1), F.S.

Other Authorized Fees

Fees prescribed by statute. Section 119.07(4), F.S.

$1.00 per copy for certified copies of public records.

Section 119.07(4)(b), F.S.

Charges for county maps or aerial photographs suppliedby county constitutional officers can include reasonablelabor and overhead costs associated with duplication.Section 119.07(4)(c),F.S.


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question

According to the breakdown of fees providedMr. Smith, the city has also included acharge of $50/hour for 4 hours of staff time

needed to find the records Mr. Smith hasrequested, to review those records forexempt information, and to make copies.

Can the city charge Mr. Smith for staff time?


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Fees & Costs

Extensive UseSection 119.07(4)(d), F.S., allows an agency to charge a

reasonable fee for the extensive use of agencyresources personnel, information technology, or both

in addition to the actual cost of duplication.

Such fees must be reasonable and based on actual costsincurred. Section 119.07(4)(d), F.S.

Automatic application is prohibited. AGO 90-07

Agencies should have :

a definition ofextensive use and

a justification for the definition. 2013 Sunshine Manual at p.163.


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Fees & Costs

Fees for Those Who Make Their Own Copies

If a requestor makes his own copies or provides the

materials and supplies necessary to duplicate therecord, the custodian cant charge copy fees butmaycharge a supervisory service charge ifsupervision requires an extensive use of agency

resources. AGO 82-23


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question

Mr. Smith changes his mind and says he simplywants to inspect the records requested. The citydetermines the records have been archived and

are stored in an off-site facility. A staffer meetsMr. Smith at the facility and supervises him forthe four hours it takes to inspect the records.The agency then asks Mr. Smith to pay $200 for

supervisory time -- $50/hour for 4 hours of stafftime.

Okay?

Fees & Costs


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Fees & Costs

Inspection of Public Records

Generally, an agency cant charge for the mereinspection of public records. AGO 75-50

However, an agency may charge a reasonable feebased on actual labor costs for clerical personnelwho are required, due to the nature or volume of arequest, to safeguard such records from loss or

destruction during the inspection. AGO 00-11


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question

Mr. Smith decides he doesn'tt wantphotocopies and he doesnt want to

inspect, he wants the records in an

electronic format. He learns that therecord is maintained in Excel, and asks forthe records in their native electronic format.

Does the agency have to give Mr. Smith therequested records in Excel?


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Electronic Records

Electronic Format

An agency must provide a copy of a public record inthe format requested ifthe record is maintained inthat form. Section 119.01(f), F.S.

If the record is not in the format requested, an agencyhas the option of converting the record and charging

a fee pursuant to s 119.07(4). F.S.

Everyone has a right to public records in somemeaningful form. Seigle v. Barry, 422 So. 2d 63, 66 (Fla. 4th DCA1982)


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Electronic Records

.PDF v. Requested Electronic Format

Although neither the Attorney General nor the courtshave directly addressed the issue of providing a .pdfin lieu of the requested format, there is an AttorneyGeneral Opinion, AGO 91-61, which is analogous.

In this opinion, the Attorney General opined that if anagency is asked for a copy of an electronic record,

the agency must provide a copy of the record in itsoriginal formata typed transcript does not satisfythe requirements of s. 119.07(1), F.S.


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Presumption of Openness

All records are presumed open and subject todisclosure unless there is a specificstatutoryexemption. Art. I, s. 24(a), Fla. Con

Only the Legislature can create an exemption to ourconstitutional right of access. Art. I, s. 24(c), Fla. Con.

Courts cannot judicially create any exceptions, orexclusions to Floridas Public Records Act. Board ofCounty Commissioners of Palm Beach County v. D.B.,784 So. 2d 585, 591(Fla. 4th DCA 2001)

.


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question

Mr. Smith is getting testy and when the citydenies his request, he demands to knowwhy.

Does the city have to tell him?What if Mr. Smith demands that the agency

put the denial in writing.

Does the city have to comply with TestySmiths demand?


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Exemptions

Burden of ProofThe public records law is to be liberally construed in favor

of open government, and exemptions from disclosureare to be narrowly construed so they are limited to their

stated purpose. Krischer v. DAmato, 674 So.2d 909, 911 (Fla. 4thDCA 1996)

An agency claiming an exemption bears the burden ofproving the right to an exemption. Woolling v. Lamar, 764 So.2d

765, 768 (Fla. 5th

DCA 2000)If an agency denies a request public records in whole or in

part, the agency must put the denial in writing andprovide the exact statutory citation authorizing the denialif asked to do so by the requestor. Section 119.07(1)(f), F.S.


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question

Testy Smith is told that he cant have one ofthe records hes requested because itcontains both exempt and non-exempt

information.Can the city deny Mr. Smiths requestbecause the record requested contains

information that is exempt from publicdisclosure?


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Exemptions

Redacting Exempt InformationIf a record contains both exempt and non-exempt

information, the keeper of the record must redact(delete) that which is exempt and provide access to the

remainder. Section 119.07(1)(d), F.S.

An agency may not ordinarily charge for the cost to reviewrecords for exempt information. AG0 84-81

However, an extensive use fee maybe imposed ifreview

and redaction require an extensive use of agencyresources. Florida Institutional Legal Services v. Florida Department ofCorrections, 579 So. 2d 267, 269 (Fla. 1st DCA 1991), review denied, 592So. 2d 680 (Fla. 1991)


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Exemptions

Exempt v. Confidential and Exempt

If information is exempt from public disclosure, thecustodial agency mayallowaccess to suchinformation. Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5thDCA), review denied, 589 So. 2d 289 (Fla. 1991)and2013 SunshineManual at p. 158.

Information that is confidential and exempt cannot be

releasedexcept as specified by the exemption.WFTV, Inc. v. School Board of Seminole County, 874 So.2d 48 (Fla. 5th DCA

2004) , review denied, 892 So. 2d 1015 (Fla. 2004) and2013 SunshineManual at p. 158.


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Other Restrictions

Effect of Federal Law

Access to records subject to public disclosure underFlorida law can be denied only when there is anabsolute conflictbetween state and federal lawrelating to confidentiality of such records.

If a federal statute requires particular records to beclosed and the state is clearly subject to the

provisions of the statute, the state must keep therecords confidential. State ex. Rel. Cummer v. Pace, 159 So. 679(Fla. 1935)


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Sanctions

A knowingviolation of section 119.07(1), F.S., is a 1stdegree misdemeanor punishable by a fine of up to$1,000 and a jail term not exceeding one year Section119.10(1)(b), F.S.

A violation ofanyprovision of chapter 119 -

Unintentional: non-criminal and punishable by a finenot exceeding $500 Section 119.10(1)(a), F.S.

Intentional: 1st degree misdemeanor, punishable by afine of up to $1,000 and a jail term not exceeding one

year. Section 119.10(2), F.S. Suspension or removal from office. Section 112.52(1), F.S.

Attorneys fees and court costs. Section 119.12, F.S.

N d H l ?


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First Amendment Foundation

Call (800) 337-3518 or (850) 222-3518

E-mail [email protected]

Open Government Mediation Program

Call (850) 245-0179

E-mail [email protected]

Need Help?
mailto:[email protected]:[email protected]

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