OPEN GOVERNMENT OVERVIEW:
FCCC Fall Conference: October 8, 2015
Patricia R. Gleason
Special Counsel for Open Government
Attorney General Pam Bondi
SUNSHINE LAW
Florida’s Government in the Sunshine Law
provides a right of access to
governmental proceedings at both the
state and local levels. In the absence of
statutory exemption, it applies to any
gathering of two or more members of the
same board to discuss some matter
which will foreseeably come before that
board for action.
Scope of the Sunshine Law
Board members may not engage in private
discussions with each other about board
business, either in person or by
telephoning, emailing, texting or any other
type of electronic communication (i.e
Facebook, blogs).
Scope of the Sunshine Law
While an individual board member is not
prohibited from discussing board business
with staff or a nonboard member, these
individuals may not be used as a liaison to
communicate information between board
members. For example, a board member
cannot ask staff to poll the other board
members to determine their views on a
board issue.
SCOPE OF THE SUNSHINE LAW
There are three basic requirements:
1) Meetings of public boards or
commissions must be open to the public
2) Reasonable notice of such meetings
must be provided; and
3) Minutes of the meetings must be
prepared and open to public
inspection.
SCOPE OF THE SUNSHINE LAW
The Sunshine Law applies to advisory
boards created pursuant to law or
ordinance or otherwise established by
public agencies or officials.
Scope of the Sunshine Law
Staff meetings are not normally subject to
the Sunshine Law.
However, staff committees may be subject
to the Sunshine Law if they are deemed
to be part of the “decision making
process” as opposed to traditional staff
functions like factfinding or information
gathering.
Scope of the Sunshine Law
Only the Legislature may create an
exemption from the Sunshine Law (by a
two-thirds vote).
An exemption from the Public Records
Law does not allow a board to close a
meeting. Instead, a specific exemption
from the Sunshine Law is required.
Board meetings
While boards may adopt reasonable rules
and policies to ensure orderly conduct of
meetings, the Sunshine law does not allow
boards to ban nondisruptive videotaping,
tape recording, or photography at public
meetings.
Board meetings
Section 286.0114, F.S., provides, subject to
listed exceptions, that boards must allow
an opportunity for the public to be heard
before the board takes official action on a
proposition. The statute does not
prohibit boards from “maintaining orderly
conduct or proper decorum in a public
meeting.”
Penalties
Civil action
◦ Action taken in violation of the Sunshine Law
may be invalidated.
Criminal penalties
Suspension or removal from office
Hot topics
A summary of recent cases and Attorney
General Opinions relating to the Sunshine Law
1. Ribaya v. Board of Trustees of City Pension Fund
for Firefighters and Police Officers in City of Tampa,
162 So. 3d 348 (Fla. 2d DCA 2015)—individual
barred from public meetings
2. Brown v. Denton, 152 So. 3d 8 (Fla. 1st DCA
2014), pet. for review filed, No. 14-2490 (Fla.
December 29, 2014)– Use of federal mediation
to “thwart” Sunshine Law
Hot Topics, continued
State v. Dorworth, No. 14-5841 (Fla. Orange
County Ct. October 21, 2014), affirmed, No. 14-
AP-48 (Fla. 9th Cir. Ct. August 19, 2015)—
Validity of misdemeanor charge filed against
lobbyist allegedly acting as “liaison” between
board members
Inf. Op. to Board of Trustees, January 27, 2009—
Requirement that minutes of Sunshine Law
meetings be “promptly recorded”
Inf. to Pritt, November 26, 2014—Consequences
for unauthorized disclosure of matters discussed
during a shade meeting.
PUBLIC RECORDS LAW
Florida’s Public Records Act, Chapter 119,
Florida Statutes, provides a right of access
to records of state and local governments
as well as to private entities acting on
their behalf.
If material falls within the definition of
“public record” it must be disclosed to
the public unless there is a statutory
exemption.
Rule 2.420: Public Access to and
Protection of Judicial Records
Scope of the Rule: “court records” and
“administrative records” of the judicial
branch
Confidential judicial branch records
Denial of access for administrative
records
Public access to judicial branch records-
procedures for requests
The term “public records” means:
a) All “documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material, regardless of the physical form, characteristics, or means of transmission” (includes electronic communications like text messages, emails).
b) Made or received pursuant to law or ordinance or in connection with the transaction of official business
c) By any agency [including a private entity acting ‘on behalf of’ a public agency]
d) Which are used to perpetuate, communicate, or formalize knowledge
PROVIDING PUBLIC RECORDS IN
ACCORDANCE WITH Ch. 119
a) Public records cannot be withheld at the request of the sender
b) A requestor is not required to show a “legitimate” or “noncommercial interest” as a condition of access
c) A request cannot be denied because it is “overbroad”
Compare: Rule 2.420, stating that requests for judicial branch records “shall provide sufficient specificity to enable the custodian to identify the requested records. The reason for the request is not required to be disclosed.
Written requests
Unless authorized by another statute, an agency may
not require that public records requests be in writing or
require the requestor to identify himself or herself
Compare: Rule 2.420 stating that requests for records
of the judicial branch “must be in writing and directed
to the custodian.” In a commentary to the decision
adopting the Rule, the Court noted that the “writing
requirement is not intended to disadvantage any person
who may have difficulty writing a request; if any difficulty
exists, the custodian should aid the requestor in
reducing the request to writing.”
Time for Production
The Public Records Act does not contain
a specific time limit (such as 24 hours or
10 days).
The Florida Supreme Court has stated
that the only delay in producing records
permitted under the statute is the
reasonable time allowed the custodian to
retrieve the record and delete those
portions of the record the custodian
asserts are exempt.
PROVIDING PUBLIC RECORDS
An agency is not required to comply with
a “standing” request for records that may
be created in the future.
An agency is not required to answer
questions about the public records (other
than information on how to obtain them,
like the cost)
Providing Public Records
An agency is not required to reformat its
records in response to a public records
request. Similarly, in a commentary to
Rule 2.420, the Supreme Court noted
that the custodian “is required to provide
access to or copies of records but is not
required either to provide information
from the records or create new records
in response to a request.”
Providing Public Records
The Public Records Act states that an
agency must provide a copy of the record
in the medium requested if the agency
maintains the record in that medium.
Rule 2.420 states that the “custodian shall
determine the form in which the record
is provided.”
Providing Public Records
Section 119.07(1)(e), F.S., states that the
custodian who contends that a record or
part of a record is exempt must state the
basis for the exemption, including the
statutory citation. Upon request, the
custodian must state in writing and with
particularity the reasons for the
conclusion that the record is exempt.
Providing Public Records
Compare: Rule 2.420 states that the
custodian shall determine whether the
requested records are subject to the rule,
whether there are any exemptions, and
the form in which the record is provided.
If the request is denied, the custodian
shall state in writing the basis for the
denial.
Fees-Ch. 119
Chapter 119 authorizes the custodian to charge
a fee of up to 15 cents per one-sided copy for
copies that are 14 inches by 81/2 inches or less.
An additional 5 cents may be charged for two-
sided copies. For other copies, the charge is the
actual cost of duplication of the record. Actual
cost of duplication means the cost of the
material and supplies used to duplicate the
record but does not include labor or overhead
cost.
Fees-Ch. 119
In addition to the actual cost of
duplication, an agency may impose a
reasonable service charge for the actual
cost of extensive labor and information
technology required due to the large
volume of a request.
Fees-Rule 2.420
Compare: Rule 2.420 states that “[f]ees
for copies of records . . . in the judicial
branch of government, except for copies
of court records, shall be the same as
those provided in section 119.07, F.S.”
Fees to obtain copies of court records
are established in s. 28.24, F.S.
Retention
All public records encompassed by Chapter 119, F.S. must be retained in accordance with retention schedules approved by the Department of State
Even exempt records must be retained.
Retention of court records - Rule 2.430
Retention of judicial branch administrative
records – Rule 2.440
Penalties for noncompliance
a) Criminal penalties
b) Civil action
c) Attorney’s fees
Hot topics
A summary of recent decisions relating to
public records issues
Bennett v. Clerk of Court, Citrus County, 150 So. 3d
277 (Fla. 5th DCA 2014)—When are indigents
authorized to obtain free copies of records
Brown v. State, 152 So. 3d 739 (Fla. 4th DCA
2014)—Statement in response to records
request that records “would have been
destroyed” 7 years after mandate per office
policy
Hot topics, continued
In re: Amendments to Rule 2.420, 153 So. 3d 896
(Fla. 2014). Electronic access; modified definition
of “custodian.”
Lake Shore Hospital Authority v. Lilker, 168
So. 2d 332 (Fla. 1st DCA 2015). Inspection of
records restricted to 1 hour per day.
Jacobs Keeley, PLLC v. Chief Judge, 40 F.L.W. D1409
(Fla. 4th DCA June 17, 2015). Access to records
relating to reassignment of cases.
Hot topics, continued
Organize Now, Inc. v. Jacobs, No. 14-0100800 (Fla.
9th Cir. Ct. November 23, 2014)--Public records
status of IP addresses
Central Florida Regional Transportation Authority v.
Post-Newsweek Stations, Orlando, Inc. 157 So. 3d
401 (Fla. 5th DCA 2015)—Surveillance tapes on
city bus
Morris Publishing Group v. State, 154 So. 3d 528
(Fla. 1st DCA 2015)—Authority of agency to
require deposit prior to redaction and
production of records
Additional resources
Attorney General Bondi website:
www.myfloridalegal.com
Pat Gleason contact information:
[email protected] 850-
245-0140
Florida First Amendment Foundation
website: Floridafaf.org