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:

pat.gleason@myfloridalegal.com 850-

245-0140

Florida First Amendment Foundation

website: Floridafaf.org