Overview of the Sunshine and Public Records Laws*
Patricia R.
Gleason
I. GOVERNMENT IN THE SUNSHINE LAW
A. WHAT IS
THE SCOPE OF THE SUNSHINE LAW?
Florida's Government in the
Sunshine Law, commonly referred to as the Sunshine Law, provides a right of
access to governmental proceedings at both the state and local levels. The law is equally applicable to elected and
appointed boards and has been applied 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. There are three
basic requirements of section 286.011, Florida Statutes:
(1) meetings of public boards or
commissions must be
open to the public;
(2) reasonable notice of such meetings
must be given; and
(3) minutes of the meetings must be
taken.
A
right of access to meetings of collegial public bodies is also recognized in
the Florida Constitution. Article I,
section 24, Florida Constitution, was approved by the voters in the November
1992 general election and became effective July 1, 1993. Virtually all collegial public bodies are
covered by the open meetings mandate of the open government constitutional
amendment with the exception of the judiciary and the state Legislature which
has its own constitutional provision requiring access. The only exceptions are those established by
law or by the Constitution.
B. WHAT
AGENCIES ARE COVERED BY THE SUNSHINE LAW?
1. Are all public agencies subject to the
Sunshine Law?
The
Government in the Sunshine Law applies to "any board or commission of any
state agency or authority or of any agency or authority of any county,
municipal corporation, or political subdivision." The statute thus applies to public collegial bodies within this state, at
the local as well as state level. City of Miami Beach v.
Berns, 245
So. 2d 38 (Fla. 1971). It is equally applicable to elected and
appointed boards or commissions. Op. Att'y Gen. Fla. 73-223
(1973). The judiciary and the Legislature are not
subject to the Sunshine Law. See, Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992);
Op. Att'y Gen. Fla. 83-97
(1983).
Federal
agencies, i.e., agencies created
under federal law, operating within the state do not come within the purview of
the state Sunshine Law. Op. Att'y Gen. Fla. 71-191
(1971). Cf.,
Inf. Op. to Markham, September 10, 1996 (technical oversight committee established by state
agencies as part of settlement agreement in federal lawsuit subject to Sunshine
Law).
Boards
or commissions created by law or by a public agency are clearly subject to the
provisions of section 286.011, Florida Statutes. A public officer may be an "agency"
for purposes of creating a board or commission subject to section 286.011, Florida
Statutes. For example,
in Krause v. Reno, 366 So. 2d
1244
(* Portions highlighted in bold
are new additions to the outline for 2002.)
(Fla.
3d DCA 1979), the court held that a city manager was an "agency" for
purposes of section 286.011, Florida Statutes.
Therefore, when he utilized an advisory group to assist him in screening
applications and making recommendations for the position of chief of police, he
created a "board" to which
the Sunshine Law was applicable.
2. Are advisory boards
which make recommendations or committees established for fact-finding only
subject to the Sunshine Law?
a. Publicly created
advisory boards which make recommendations
Advisory boards whose powers are
limited to making recommendations to a public agency and which possess no
authority to bind that agency in any way are subject to the Sunshine Law. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). See
also, Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (Sunshine Law applies
to a university's search and screening committee). And see, Lyon v. Lake County, 765 So.
2d 785 (Fla. 5th DCA 2000) (Sunshine Law applies to site plan
review committee created by county commission to serve in an advisory capacity
to the county manager).
b. Fact-finding committees
A limited exception to the
applicability of the Sunshine Law to advisory committees has been recognized
for committees established for fact-finding only. When a committee has been established
strictly for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities
of that committee are not subject to section 286.011, Florida Statutes. Cape
Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th
DCA 1985).
3. Are private organizations providing services to public
agencies subject to the Sunshine Law?
This office has recognized that
private organizations which are not state or local governmental agencies or
subject to the control of the Legislature and which do not serve in an advisory
capacity to state or local governmental agencies, are generally not subject to
section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 83-1
(1983). Thus, the Sunshine Law would not generally
apply to meetings of a homeowners' association.
Inf. Op. to Fasano, June 7, 1996.
Thus, a private corporation which performs
services for a public agency and receives compensation for such services
pursuant to a contract or otherwise, is not by virtue of this relationship
alone necessarily subject to the Sunshine Law unless the public agency's
governmental or legislative functions have been delegated to it. McCoy
Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980) (airlines are not by
virtue of their lease with the aviation authority public representatives
subject to the Sunshine Law).
However, although private
organizations are generally not subject to the Sunshine Law, open meetings
requirements can apply if the public entity has delegated "the performance
of its public purpose" to the private entity. Memorial
Hospital-West Volusia, Inc v. News-Journal Corporation, 729 So. 2d 373, 383 (Fla. 1999). In Memorial,
the Supreme Court held that a private nonprofit corporation which entered into
a lease with a public hospital authority to operate a hospital was subject to
the open meetings requirements found in the Sunshine Law and those contained in
article I, section 24(b) of the Florida
Constitution.
Similarly, this office has concluded
that if a county commission dissolves its cultural affairs council and
designates a nonprofit organization to fulfill that role for the county, the
nonprofit organization would be subject to the Sunshine Law. Op. Att'y Gen. Fla. 98-49
(1998). And see,
Op. Att'y Gen. Fla. 99-53 (1999) (architectural review committee of a
homeowners' association is subject to the Sunshine Law where the committee,
pursuant to county ordinance, must review and approve applications for county
building permits) and Op. Att'y Gen. Fla. 00-08 (2000) (meetings of the Lee
County Fire Commissioner's Forum, a nonprofit entity created by fire districts as
a vehicle for networking and discussion of common concerns, would be subject to
the Sunshine Law if the Forum operates as a collegial body for incipient
decision making).
4. Does
the Sunshine Law apply to staff?
Meetings of staff of boards or
commissions covered by the Sunshine Law are not ordinarily subject to section
286.011, Florida Statutes. Occidental Chemical Company v. Mayo, 351
So. 2d 336 (Fla. 1977), disapproved in part on other grounds,
Citizens v. Beard, 613 So. 2d 403 (Fla. 1992). And see,
Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), in which the
court concluded that the Sunshine Law did not apply to informal meetings of staff where the meetings
were "merely informational;" where none of the individuals attending
the meetings had any decision-making authority during the meetings; and where
no formal action was taken or could have been taken at the meetings. Knox v. District School Board of Brevard, 27
F.L.W. D1017 (Fla. 5th DCA May 3, 2002) ("A sunshine violation does not occur when a
governmental executive uses staff for a fact-finding and advisory function in
fulfilling his or her duties").
However, when a staff member ceases
to function in a staff capacity and is appointed to a committee which is
delegated authority normally within the public board or commission, the staff
member loses his or her identity as staff while working on the committee and
the Sunshine Law is applicable to the committee. It is the nature of the act performed, not
the makeup of the committee or the proximity of the act to the final decision,
which determines whether a committee composed of staff is subject to the
Sunshine Law. Wood v. Marston, 442 So. 2d 934 (Fla. 1983). And see, Evergreen the Tree Treasurers of
Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526 (Fla. 2d DCA 2002) (when
public officials delegate their fact-finding duties and decision-making
authority to a committee of staff members, those individuals no longer function
as staff members but "stand in the shoes of such public officials"
insofar as the Sunshine Law is concerned).
For example, in Wood v. Marston, supra,
the Court concluded that a committee composed of staff which was created for
the purpose of screening applications and making recommendations for the
position of a law school dean was subject to section 286.011, Florida Statutes,
since the committee members performed a decision-making function outside of
their normal staff activities. By screening
applicants and deciding which applicants to reject from further consideration,
the committee performed a policy-based, decision-making function delegated to
it by the president of the university.
In a more recent
case, Silver Express Company v.
Miami-Dade Community College, 691 So. 2d 1099 (Fla. 3d DCA 1997),
the district court determined that a committee (composed of staff and one
outside person) that was created by a college purchasing director to assist and
advise her in evaluating contract proposals was subject to the Sunshine Law. According to the court, the committee's job
was to weed through the various proposals, to determine which were acceptable
and to rank them accordingly. This
function was sufficient to bring the committee within the scope of the Sunshine
Law because "governmental
advisory committees which have offered up structured recommendations such as
here involved -- at least those recommendations which eliminate opportunities
for alternative choices by the final authority, or which rank applications for
the final authority -- have been determined to be agencies governed by the
Sunshine Law." 691 So. 2d at 1101. And see, Inf. Op. to Lewis, March 15, 1999 (panels established by state commission to create
requests for proposals and evaluate vendor responses are subject to the
Sunshine Law).
5. Does the Sunshine Law apply to members of public boards who
also serve as administrative officers or employees?
There may be occasions in which
members of public boards also serve as administrative officers or
employees. The Sunshine Law is not
applicable to discussions of those individuals when serving as administrative
officers or employees, provided such discussions do not relate to matters which
will come before the public board on which they serve. Thus, a board member who also serves as an
employee of an agency may meet with another board member on issues relating to
his duties as an employee provided
such discussions do not relate to matters that will come before the board for
action. See, Op. Att'y Gen. Fla. 92-79 (1992).
C. WHAT IS A MEETING SUBJECT TO THE
SUNSHINE LAW?
1. Number of board members required to be
present
The Sunshine Law extends to the
discussions and deliberations as well as the formal action taken by a public
board or commission. There is no
requirement that a quorum be present for a meeting of members of a public board
or commission to be subject to section 286.011, Florida Statutes. Instead, the law is applicable to any gathering, whether formal or casual,
of two or more members of the same board or commission to discuss some matter
on which foreseeable action will be
taken by the public board or commission.
Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973).
2. Circumstances in which the Sunshine Law may apply to a
single individual or where two board members are not physically present
The Sunshine Law applies to public
boards and commissions, i.e.,
collegial bodies. As discussed supra, section 286.011, Florida
Statutes, applies to meetings of "two or more members" of the same board
or commission when discussing some matter which will foreseeably come before
the board or commission.
Therefore, section 286.011, Florida
Statutes, would not ordinarily apply to an individual member of a public board
or commission or to public officials who are not board or commission
members. See, Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th
DCA 1988) (requisite to application of the sunshine law is a meeting between
two or more public officials); City of
Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354
(Fla. 4th DCA 1989); Mitchell v. School
Board of Leon County, 335 So. 2d 354
(Fla. 1st DCA 1976).
Certain factual situations, however,
have arisen where, in order to assure public access to the decision-making
processes of public boards or commissions, it has been necessary to conclude
that the presence of two individuals of the same board or commission is not
necessary to trigger application of section 286.011, Florida Statutes. As stated by the Supreme Court, the Sunshine
Law is to be construed "so as to frustrate all evasive devices." Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974).
a. Written correspondence between board members
The
use of a written report by one commissioner to inform other commissioners of a
subject which will be discussed at a public meeting is not a violation of the
Sunshine Law if prior to the meeting there is no interaction related to the
report among the commissioners. In such
cases, the report, which is subject to disclosure under the Public Records Act,
is not being used as a substitute for action at a public meeting as there is no
interaction among the commissioners prior to the meeting. Op. Att'y Gen. Fla. 89-23
(1989).
If,
however, the report is circulated among board members for comments with such
comments being provided to other members, there is interaction among the board
members which is subject to section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 90-3
(1990). See also, Op. Att'y Gen. Fla. 96-35 (1996), stating
that a school board member may prepare and circulate an informational
memorandum or position paper to other board members; however, the use of a
memorandum to solicit comment from other board members or the circulation of
responsive memoranda by other board members would violate the Sunshine Law.
b. Telephone
conversations and meetings
As
discussed previously, the Sunshine Law applies to the deliberations and
discussions between two or more members of a board or commission on some matter
which foreseeably will come before that board or commission for action. The use of a telephone to conduct such
discussions does not remove the conversation from the requirements of section
286.011, Florida Statutes. Therefore,
members of a board seeking to discuss board business or conduct a meeting of
the board by telephone should ensure that the requirements of the Sunshine Law
have been satisfied by providing notice and access to the public.
A
related issue is whether a board is authorized
to conduct its meetings through the use of a telephone conference call or other
type of communications technology. In
Op. Att'y Gen. Fla. 98-28 (1998), this office concluded that section
120.54(5)(b)2., Florida Statutes, authorizes state agencies to conduct meetings via electronic means provided
that the board complies with uniform rules of procedure adopted by the state
Administration Commission. These rules
contain notice requirements and procedures for providing points of access for
the public. See, Rule 28-109, Florida Administrative Code.
As
to local boards, this office has noted that the authorization in section
120.54(5)(b)2., to conduct meetings entirely through
the use of communications media technology applies only to state agencies. Op. Att'y Gen. Fla. 98-28
(1998). Thus, since section 230.17, Florida Statutes,
requires a district school board to hold its meetings at a "public place
in the county," a quorum of the board must be physically present at the
meeting of the school board. However, as
long as a quorum of the board is physically present at the meeting site, the
board may use electronic media technology to allow a physically absent member
of the board to attend the meeting. Id. Compliance
with the requirements of section 286.011, Florida Statutes, "would involve
providing notice and access to the public at such meetings through the use of
such devices as a speaker telephone that would allow the absent member to
participate in discussions, to be heard by the other board members and the
public and to hear discussions taking place during the meeting." Op. Att'y Gen. Fla. 94-55
(1994).
c. Use
of computers
The
use of computers to conduct public business is becoming increasingly
commonplace. While there is no provision
generally prohibiting the use of computers to carry out public business, their
use by members of a public board or commission to communicate among themselves
on issues pending before the board, is subject to the
Sunshine Law. Op.
Att'y Gen. Fla. 89-39
(1989). See
also, Op. Att'y Gen. Fla. 96-34 (1996)
("E-mail" is a public record).
Airport authority members may conduct
informal discussions and workshops over the Internet, provided proper notice is
given, and interactive access by members of the public is provided. Op. Att'y Gen. Fla. 01-66 (2001). Such interactive access must include not only
public access via the Internet but also designated places within the authority
boundaries where the airport authority makes computers with Internet access
available to members of the public who may not otherwise have Internet
access. Id. For meetings, however, where a
quorum is necessary for action to be taken, physical presence of the members
making up the quorum would be required in the absence of a statute providing
otherwise. Id. Internet access to such
meetings, however, may still be offered to provide greater public access. Id.
However, the use of an electronic bulletin
board to discuss matters over an extended period of days or weeks, which does
not permit the public to participate online, violates the Sunshine Law by
circumventing the notice and access provisions of that law. Op. Att'y Gen. Fla. 02-32 (2002).
d. Delegation
of authority to single individual
If
a member of a public board is authorized only to explore various contract
proposals with the applicant selected for the position of executive director,
with such proposals being related back to the governing body for consideration,
the discussions between the board member and the applicant are not subject to
the Sunshine Law. Op.
Att'y Gen. Fla. 93-78
(1993). If, however, the board member has been
delegated the authority to reject certain options from further consideration by
the entire board, the board member is performing a decision-making function
that must be conducted in the sunshine. And see, Leach-Wells v. City of Bradenton, 734 So.
2d 1168 (Fla. 2d DCA 1999) (committee charged with evaluating proposals
violated the Sunshine Law when the city clerk unilaterally tallied the results
of the committee members' individual written evaluations and ranked them; the
court held that the "short-listing was formal action that was required to
be taken at a public meeting"). Compare, Lee County v. Pierpont, 693 So. 2d 994 (Fla. 2d DCA
1997) (authorization to county attorney to make settlement offers to landowners
not to exceed appraised value plus 20%, rather than a specific dollar amount,
did not violate the Sunshine Law).
It
must be recognized, however, that the applicability of the Sunshine Law relates
to the discussions of a single individual who has been delegated
decision-making authority on behalf of a board or commission. If the individual, rather than the board, is
vested by law, charter or ordinance with the authority to take action, such discussions
are not subject to section 286.011, Florida Statutes. See,
City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th
DCA 1989).
e. Use
of nonmembers as liaisons between board members
The
Sunshine Law is applicable to meetings between a board member and an individual
who is not a member of the board when that individual is being used as a
liaison between, or to conduct a de facto meeting of, board members. For example, in Blackford v. School Board of Orange County,
375 So. 2d 578 (Fla. 5th DCA 1979), the court held that a series of
scheduled successive meetings between the school superintendent and individual
members of the school board were subject to the Sunshine Law. While normally meetings between the school
superintendent and an individual school board member would not be subject to
section 286.011, Florida Statutes, these meetings were held in "rapid-fire
succession" in order to avoid a public airing of a controversial
redistricting problem. They amounted to
a de facto meeting of the school board in violation of section 286.011, Florida
Statutes.
Not
all decisions taken by staff, however, need to be made or approved by a
board. Thus, the district court
concluded in Florida Parole and Probation
Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA
1978), that the decision to appeal made by legal counsel to a public board
after discussions between the legal staff and individual members of the
commission was not subject to the Sunshine Law.
D. WHAT
TYPES OF DISCUSSIONS ARE COVERED BY THE SUNSHINE LAW?
1. Investigative meetings or meetings to
consider confidential material
The
Sunshine Law is applicable to investigative inquiries of public boards or
commissions. The fact that a meeting
concerns alleged violations of laws or regulations does not remove it from the
scope of the law. Op.
Att'y Gen. Fla. 74-84
(1974); Canney v. Board of Public
Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973). The Florida Supreme Court has stated that in
the absence of a statute exempting a meeting in which privileged material is
discussed, section 286.011, Florida Statutes, should
be construed as containing no exceptions.
City of Miami Beach v.
Berns, 245
So. 2d 38 (Fla. 1971).
Section
119.07(5), Florida Statutes, provides that an exemption from section 119.07,
Florida Statutes, "does not imply an exemption from or exception to
section 286.011, Florida Statutes. The
exemption from or exception to section 286.011, Florida Statutes, must be
expressly provided." Thus, exceptions
to or exemptions from Chapter 119, Florida Statutes, do not by implication
allow a public agency to close a meeting in which exempted material is to be
discussed in the absence of a specific exemption or exception to section
286.011, Florida Statutes. Accord, Op. Att'y Gen. Fla. 95-65
(1995) (district case review committee); Op. Att'y Gen. Fla. 93-41
(1993) (county criminal justice commission); Op. Att'y Gen. Fla. 91-88
(1991) (pension board); and Op. Att'y Gen. Fla. 91-75
(1991) (school board).
2. Legal matters
In
the absence of legislative exemption, discussions between a public board and
its attorney are subject to section 286.011, Florida Statutes. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (section 90.502, Florida Statutes,
which provides for the confidentiality of attorney-client communications under
the Florida Evidence Code, does not create an exemption for attorney-client
communications at public meetings). Cf., section 90.502(6), Florida
Statutes, stating that a discussion or activity that is not a meeting for
purposes of the Sunshine Law shall not be construed to waive the
attorney-client privilege).
There
are statutory exemptions, however, which apply to some discussions of pending
litigation between a public board and its attorney.
a. Attorney-client
discussions
Section
286.011(8), Florida Statutes, provides:
Notwithstanding the
provisions of subsection (1), any board or commission of any state agency or
authority or any agency or authority of any county, municipal corporation, or
political subdivision, and the chief administrative or executive officer of the
governmental entity, may meet in private with the entity's attorney to discuss
pending litigation to which the entity is presently a party before a court or
administrative agency, provided that the
following conditions are met:
(a) The entity's attorney
shall advise the entity at a public meeting that he or she desires advice
concerning the litigation.
(b) The subject matter of
the meeting shall be confined to settlement negotiations or strategy sessions
related to litigation expenditures.
(c) The entire session
shall be recorded by a certified court reporter. The reporter shall record the times of
commencement and termination of the session, all discussion and proceedings,
the names of all persons present at any time, and the names of all persons
speaking. No portion of the session
shall be off the record. The court
reporter's notes shall be fully transcribed and filed with the entity's clerk
within a reasonable time after the meeting.
(d) The entity shall give
reasonable public notice of the time and date of the attorney-client session
and the names of persons who will be attending the session. The session shall commence at an open meeting
at which the persons chairing the meeting shall announce the commencement and
estimated length of the attorney-client session and the names of the persons
attending. At the conclusion of the
attorney-client session, the meeting shall be reopened and the person chairing
the meeting shall announce the termination of the session.
(e) The transcript shall be
made part of the public record upon conclusion of the litigation. (e.s.)
(1) Is section 286.011(8), Florida Statutes, to be liberally
or strictly construed?
It
has been held that the Legislature intended a strict construction of section
286.011(8), Florida Statutes. City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995); School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99
(Fla. 1st DCA 1996).
(2) Who
may call an attorney-client meeting?
While section 286.011(8), Florida Statutes, does not specify who calls
the closed attorney-client meeting, it requires as one of the conditions that
must be met that the governmental entity's attorney "shall advise the
entity at a public meeting that he or she desires advice concerning the
litigation." Thus, one of the
conditions that must be met prior to holding a closed attorney-client meeting
is that the city attorney must indicate to the city council at a public meeting
that he or she wishes the advice of the city council regarding the pending
litigation to which the city is presently a party before a court or
administrative agency. Inf. Op. to Vock,
July 11, 2001.
(3) Who
may attend?
Only
those persons listed in the statutory exemption, i.e., the entity, the entity's attorney, the chief administrative
officer of the entity, and the court reporter are authorized to attend a closed
attorney-client session. Other staff
members or consultants are not allowed to be present. School Board of Duval County v. Florida Publishing Company. And
see, Zorc v.
City of Vero Beach, 722
So. 2d 891, 898 (Fla. 4th DCA 1998) (rejecting city's argument that charter
provision requiring that city clerk attend all council meetings authorized
clerk to attend closed attorney-client meeting); and Op. Att'y Gen. Fla. 01-10 (2001) (clerk of court not authorized to
attend).
However,
because the entity's attorney is permitted to attend the closed session, if the
school board hires outside counsel to represent it in pending litigation, both
the school board attorney and the litigation attorney may attend a closed
session. Op. Att'y Gen. Fla. 98-06
(1998). And
see, Zorc v. City of Vero Beach (attendance of Special
Counsel authorized).
(4) Is substantial compliance with the
conditions established in the statute adequate?
In City of Dunnellon v. Aran, supra, the court said that a city
council's failure to announce the names of the lawyers participating in a
closed attorney-client session violated the Sunshine Law. The court rejected the city's claim that when
the mayor announced that attorneys hired by the city would attend the session
[but did not give the names of the individuals], his "substantial compliance"
was sufficient to satisfy the statute. Cf., Zorc v. City of Vero Beach, at 901, noting that
deviation from the agenda at an attorney-client session is not authorized;
while such deviation is permissible if a public
meeting has been properly noticed, "there is no case law affording the
same latitude to deviations in closed door meetings."
(5) What kinds of matters may be discussed
at the attorney-client session?
Section
286.011(8) states that the subject matter of the meeting shall be confined to
settlement negotiations or strategy sessions related to litigation
expenditures. Section 286.011(8)(b), Florida Statutes. If a board goes beyond the
"strict parameters of settlement negotiations and strategy sessions
related to litigation expenditures" and takes "decisive action,"
a violation of the Sunshine Law results.
Zorc v. City of Vero Beach, at 900. And see, Op. Att'y Gen. Fla. 99-37 (1999) (closed-meeting exemption may be used
only when the attorney for a governmental entity seeks advice on settlement
negotiations or strategy relating to litigation expenditures; such meetings
should not be used to finalize action or discuss matters outside these two
narrowly prescribed areas).
The
legislative history of the exemption indicates that it was intended to apply
only to discussions, rather than final action, relating to settlement
negotiations or litigation expenditures.
See, Staff of Fla. H.R. Comm.
on Gov't Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact
Statement 2 (Fla. State Archives), noting at p. 3: "No final decisions on litigation
matters can be voted on during these private, attorney-client strategy
meetings. The decision to settle a case,
for a certain amount of money, under certain conditions is a decision which
must be voted upon in a public meeting."
Thus,
"[t]he settlement of a case is exactly that type of final decision
contemplated by the drafters of section 286.011(8) which must be voted upon in
the sunshine." Zorc v. City of Vero Beach, at 901. See also, Freeman v. Times Publishing
Company, 696 So. 2d 427 (Fla. 2d DCA 1997) (discussion of methods or
options to achieve continuing compliance with a long-standing federal
desegregation mandate [such as whether to modify the boundaries of a school
zone to achieve racial balance] must be held in the Sunshine).
Compare, Brown v. City of Lauderhill, 654 So. 2d 302, 303 (Fla.
4th DCA 1995) (closed-door session between city attorney and board to discuss
claims for attorney's fees, authorized).
(6) When is an agency a "party to
pending litigation" for purposes of the exemption?
In Brown v. City of Lauderhill, supra, the court said it could
"discern no rational basis for concluding that a city is not a 'party' to
pending litigation in which it is the real party in interest." And
see, Zorc v. City of Vero Beach, at
900 (city was
presently a party to ongoing litigation by virtue of its already pending claims
in bankruptcy proceedings).
Although
the Brown decision established that
the exemption could be used by a city that was a real party in interest on a
claim involved in pending litigation,
that decision does not mean that an agency may meet in executive session with
its attorney where there is only the threat
of litigation. See, Op. Att'y Gen. Fla. 98-21 (1998) (section
286.011[8] exemption "does not apply when no lawsuit has been filed even
though the parties involved believe litigation is inevitable").
(7) When is litigation "concluded"
for purposes of section 286.011(8)(e)?
Litigation
that is ongoing but temporarily suspended pursuant to a stipulation for
settlement has not been concluded for purposes of section 286.011(8), and a
transcript of meetings held between the city and its attorney to discuss such
litigation may be kept confidential until conclusion of the litigation. Op. Att'y Gen. Fla. 94-64
(1994). And see,
Op. Att'y Gen. Fla. 94-33 (1994), concluding that to give effect to the purpose
of section 286.011(8), a public agency may maintain the confidentiality of a
record of a strategy or settlement meeting between a public agency and its
attorney until the suit is dismissed with prejudice or the applicable statute
of limitations has run. Cf., Op. Att'y Gen. Fla. 96-75 (1996) (disclosure of
medical records to a city council during a closed-door meeting under section
286.011[8], Florida Statutes, does not affect the requirement that the
transcript of such a meeting be made a part of the public record at the
conclusion of the litigation).
b. Risk
management
Section
768.28(15)(c), Florida Statutes, states that portions of meetings and
proceedings relating solely to the evaluation of claims or to offers of
compromise of claims filed with a risk management program of the state, its
agencies and subdivisions, are exempt from section 286.011, Florida
Statutes. The minutes of such meetings
and proceedings are also exempt from public disclosure until the termination of
the litigation and settlement of all claims arising out of the same incident. Section 768.28(15)(d),
Florida Statutes. And see, Op. Att'y Gen. Fla. 00-20
(2000), noting application of the exemption to a risk management meeting
conducted by a district school board and attended by risk management personnel
that relates solely to the evaluation of a tort claim filed with the risk
management program or that relates solely to an offer of compromise of a tort
claim filed with the risk management program.
The exemption is not applicable to meetings held prior to the filing of
a tort claim with the risk management program.
Op. Att'y Gen. Fla. 92-82
(1992).
3. Personnel matters
Meetings
of a public board or commission at which personnel matters are discussed are
not exempt from the provisions of section 286.011, Florida Statutes, in the
absence of a specific statutory exemption.
Times Publishing
Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v.
Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985).
a. Collective
bargaining discussions
A
limited exemption from section 286.011, Florida Statutes, exists for
discussions between the chief executive officer of the public employer and the
legislative body of the public employer relative to collective bargaining. Section 447.605(1), Florida Statutes. Cf.,
Op. Att'y Gen. Fla. 99-27 (1999), noting that a committee (composed of the city
manager and various city managerial employees) formed by the city manager to
represent the city in labor negotiations qualifies as the "chief executive
officer" and thus may participate in closed executive sessions conducted
pursuant to this section.
The
above exemption applies only when there are actual and impending collective
bargaining negotiations. City of Fort Myers v. News-Press
Publishing Company, Inc., 514 So. 2d 408 (Fla. 2d DCA 1987). It does not apply to other nonexempt topics
which may be discussed during the course of the same meeting. Op. Att'y Gen. Fla. 85-99
(1985). Moreover, the collective bargaining
negotiations between the chief executive officer and a bargaining agent are not
exempt and, pursuant to section 447.605(2), Florida Statutes, must be conducted
in the Sunshine.
b. Complaint
review boards, disciplinary hearings, and grievance committees
A
complaint review board of a city police department is subject to the Government
in the Sunshine Law. Barfield v. City of West Palm Beach, No. 94-2141-AC (Fla. 15th Cir. Ct. May 6, 1994). Accord, Op. Att'y Gen. Fla. 78-105
(1978) (police complaint review board) and Op. Att'y Gen. Fla. 80-27
(1980) (sheriff civil service board). Similarly, a
meeting of a municipal housing authority commission to conduct an employee
termination hearing is subject to the Sunshine Law. Op. Att'y Gen. Fla. 92-65
(1992).
The
Sunshine Law applies to board discussions concerning grievances and other
personnel matters. Op.
Att'y Gen. Fla. 76-102
(1976). A staff grievance committee created to make
nonbinding recommendations to a county administrator regarding disposition of
employee grievances is also subject to section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 84-70
(1984). And see, Palm Beach County Classroom Teacher's
Association v. School Board of Palm Beach County, 411 So.
2d 1375 (Fla. 4th DCA 1982), in which the court affirmed the
lower court's refusal to issue a temporary injunction to exclude a newspaper
reporter from a grievance hearing.
A collective bargaining agreement cannot be used "to circumvent the
requirements of public meetings" in section 286.011, Florida Statutes. Id., at 1376.
Where,
however, a mayor as chief executive officer, rather than the city council, is
responsible under the city charter for disciplining city employees, meetings
between the mayor and a city employee concerning discipline of the employee are
not subject to the Sunshine Law. City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354
(Fla. 4th DCA 1989).
c. Interviews
The
Sunshine Law applies to meetings of a board of county commissioners when
interviewing applicants for county positions appointed by the board, when
conducting job evaluations of county employees answering to and serving at the
pleasure of the board, and when conducting employment termination interviews of
county employees who serve at the pleasure of the board. Op. Att'y Gen. Fla. 89-37
(1989).
d. Screening
advisory committees
In Wood v. Marston, 442
So. 2d 934 (Fla. 1983), a committee composed of staff which was created
for the purpose of screening applications for the position of a law school dean
and making recommendations to the faculty senate was held to be subject to
section 286.011, Florida Statutes, since the committee performed a
decision-making function outside of their normal staff activities. By screening applicants and deciding which
applicants to reject from further consideration, the committee performed a
policy-based, decision-making function delegated to it by the president of the
university.
A
selection committee appointed to screen applications, and rank selected
applicants for submission to the city council was determined to be subject to
the Sunshine Law even though the city council was not bound by the committee's
rankings. Op. Att'y Gen. Fla. 80-20
(1980). Accord, Op. Att'y Gen. Fla. 80-51
(1980). However, if the sole function of the
screening committee is simply to gather information for the decision-maker,
rather than to accept or reject applicants, the committee's activities are
outside the Sunshine Law. See, Cape Publications, Inc. v. City
of Palm Bay, 473 So. 2d 222 (Fla. 5th
DCA 1985); Knox v. District School Board of Brevard, 27 F.L.W. D1017 (Fla. 5th DCA May
3, 2002).
4. Quasi-judicial proceedings
The
Florida Supreme Court has stated that there is no exception to the Sunshine Law
which would allow closed-door hearings or deliberations when a board or
commission is acting in a "quasi-judicial" capacity. Canney
v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973).
5. Real property negotiations
In
the absence of a statutory exemption, the negotiations by a public board or
commission for the sale or purchase of property must be conducted in the
sunshine. See, City of Miami Beach v. Berns, 245 So. 2d
38 (Fla. 1971). In addition, if the authority of the public
board or commission to acquire or lease property has been delegated to a single
member, that member is subject to section 286.011, Florida Statutes, and is
prohibited from negotiating the acquisition or lease of the property in
secret. Op. Att'y Gen. Fla. 74-294
(1974).
E. DOES
THE SUNSHINE LAW APPLY TO:
1. Members-elect or candidates
Members-elect
of boards or commissions are subject to the Sunshine Law. See,
Hough v. Stembridge, 278 So. 2d 288, 289 (Fla. 3d DCA 1973). The Sunshine Law does not apply to candidates
for office, unless the candidate is an incumbent seeking reelection. Op. Att'y Gen. Fla. 92-05
(1992).
2. Members of different
boards
The
Sunshine Law does not apply to a meeting between individuals who are members of
different boards unless one or more of the individuals has been delegated the
authority to act on behalf of his board.
Rowe v. Pinellas Sports Authority,
461 So. 2d 72 (Fla. 1984). Accord, Inf. Op. to McClash, April 29, 1992 (Sunshine Law generally not
applicable to county commissioner meeting with individual member of
metropolitan planning organization).
3. A mayor and a member of the city
council
If
the mayor is a member of the council or has a voice in decision-making through
the power to break tie votes, meetings between the mayor and a member of the
city council to discuss some matter which will come before the city council are
subject to the Sunshine Law. Ops. Att'y Gen. Fla. 83-70
(1983) and 75-210 (1975).
Where,
however, the mayor is not a member of
the city council and does not possess any power to vote even in the case of a
tie vote but only possesses the power to veto legislation, then the mayor may
privately meet with an individual member of the city council without violating
the Sunshine Law, provided he or she is not acting as a liaison between members
and neither the mayor nor the council member has been delegated the authority
to act on behalf of the council. Ops. Att'y Gen. Fla. 90-26
(1990) and 85-36 (1985).
4. A board member and his or her alternate
Since
the alternate is authorized to act only in the absence of a board or commission
member, there is no meeting of two individuals who exercise independent
decision-making authority at the meeting.
There is, in effect, only one decision-making official present. Therefore, a meeting between a board member
and his or her alternate is not subject to the Sunshine Law. Op. Att'y Gen. Fla. 88-45
(1988).
5. Community forums sponsored by private
organizations
A
"Candidates' Night" sponsored by a private organization at which
candidates for public office, including several incumbent city council members,
will speak about their political philosophies, trends, and issues facing the
city, is not subject to the Sunshine Law unless the council members discuss
issues coming before the council among themselves. Op. Att'y Gen. Fla. 92-5
(1992).
Similarly,
in Op. Att'y Gen. Fla. 94-62 (1994), this office concluded that the Sunshine
Law does not apply to a political forum sponsored by a private civic club
during which county commissioners express their position on matters that may
foreseeably come before the commission, so long as the commissioners avoid
discussions among themselves on these issues.
However, caution should be exercised to avoid situations in which
private political or community forums may be used to circumvent the statute's
requirements. Id. See,
Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) (Sunshine Law is to
be construed "so as to frustrate all evasive devices").
` 6. Board
members attending meetings of another public board
In
Op. Att'y Gen. Fla. 98-14 (1998), this office was asked whether members of a
metropolitan planning organization (MPO) who also serve as city council members
must separately notice a MPO meeting when they plan to discuss MPO matters at
an advertised city council meeting. The
opinion concluded that separate notice of the MPO meeting was not required as
long as the agenda of the city council mentioned that MPO business would be
discussed. See also, Op. Att'y Gen. Fla. 00-68 (2000) (Sunshine Law does not prohibit
city commissioners from attending other city board meetings and commenting on
agenda items that may subsequently come before the commission for final action;
however, city commissioners attending such meetings may not discuss those
issues among themselves).
7. Social events
Members
of a public board or commission are not prohibited under the Sunshine Law from
meeting together socially, provided that matters which may come before the
board or commission are not discussed at such gatherings. Thus, there is no per se violation of the Sunshine Law for a husband and wife to
serve on the same public board or commission so long as they do not discuss
board business without complying with the requirements of section 286.011,
Florida Statutes. Op.
Att'y Gen. Fla. 89-6
(1989).
F. WHAT
ARE THE NOTICE AND PROCEDURAL REQUIREMENTS OF THE SUNSHINE LAW?
1. What kind of notice of the meeting must
be given?
a. Reasonable notice required
A
key element of the Sunshine Law is the requirement that boards subject to the
law provide "reasonable notice" of all meetings. See, section 286.011(1),
Florida Statutes. Although section
286.011 did not contain an express notice requirement until 1995, many court
decisions had stated prior to the statutory amendment that in order for a
public meeting to be in essence "public," reasonable notice of the
meeting must be given. Hough v. Stembridge, 278 So. 2d 288, 291 (Fla. 3d DCA 1973). Accord, Yarbrough v. Young,
462 So. 2d 515, 517 (Fla. 1st DCA 1985). Notice is required even though meetings of
the board are "of general knowledge" and are not conducted in a
closed door manner. TSI Southeast, Inc. v. Royals, 588 So. 2d 309
(Fla. 1st DCA 1991).
The
type of notice that must be given is variable, however, depending on the facts
of the situation and the board involved.
In some instances, posting of the notice in an area set aside for that
purpose may be sufficient; in others, publication in a local newspaper may be
necessary. In each case, however, an
agency must give notice at such time and in such a manner as will enable
interested members of the public to attend the meeting. Ops. Att'y Gen. Fla. 73-170
(1973) and 80-78 (1980). Cf., Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (where county
attorney provided citizen with "personal due notice" of a committee
meeting and its function, it would be "unjust to reward" the citizen
by concluding that a meeting lacked adequate notice because the newspaper
advertisement failed to correctly name the committee).
b. Notice requirements when quorum not
present or when meeting adjourned to a later date
Reasonable
public notice is required for all meetings subject to the Sunshine Law. Thus, notice is required for meetings between
members of a public board even though a quorum is not present. Ops. Att'y Gen. Fla. 71-346
(1971) and 90-56 (1990). If a meeting is to be adjourned
and reconvened later to complete the business from the agenda of the adjourned
meeting, the second meeting should also be noticed. Op. Att'y Gen. Fla. 90-56
(1990).
c. Effect of notice requirements imposed by other statutes,
codes or ordinances
The
Sunshine Law only requires that reasonable public notice be given. As stated above, the type of notice required
is variable and will depend upon the circumstances. A public agency, however, may be subject to
additional notice requirements imposed by other statutes, charter or code. In such cases, the requirements of that
statute, charter, or code must be strictly observed. Inf. Op. to Michael Mattimore, February 6, 1996.
For
example, a board or commission subject to Chapter 120, Florida Statutes, the
Administrative Procedure Act, must comply with the notice requirements of that
act. See, e.g.,
section 120.525, Florida Statutes.
d. Notice requirements when board acting
as quasi-judicial body or taking action affecting individual rights
Section
286.0105, Florida Statutes, requires:
Each board, commission, or
agency of this state or of any political subdivision thereof shall include in
the notice of any meeting or hearing, if notice of the meeting or hearing is
required, of such board, commission, or agency, conspicuously on such notice,
the advice that, if a person decides to appeal any decision made by the board,
agency, or commission with respect to any matter considered at such meeting or
hearing, he or she will need a record of the proceedings, and that, for such
purpose, he or she may need to ensure that a verbatim record of the proceedings
is made, which record includes the testimony and evidence upon which the appeal
is to be based.
Where a public board or commission acts as a
quasi-judicial body or takes official action on matters that affect individual
rights of citizens, in contrast with the rights of the public at large, the
board or commission is subject to the requirements of section 286.0105, Florida
Statutes. Op. Att'y Gen. Fla. 81-06
(1981).
2. Does the Sunshine Law require that an
agenda be made available prior to board meetings or restrict the board from taking
action on matters not on the agenda?
This
office recommends publication of an agenda, if available, in the notice of the
meeting; if an agenda is not available, subject matter summations might be
used. Particularly if the item is
controversial or one of critical public concern, this office advises that the
public board or commission postpone taking any action
on the issue until it has been noticed.
Inf. Op. to Evans, June 7, 1989.
The
Sunshine Law, however, does not mandate that an agency provide notice of each
item to be discussed via a published agenda.
Such a specific requirement has been rejected by the courts because it
could effectively preclude access to meetings by members of the general public
who wish to bring specific issues before a governmental body. See,
Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). And see,
Yarbrough v. Young, 462 So. 2d 515 (Fla. 1st DCA 1985) (posted agenda unnecessary;
public body not required to postpone meeting due to inaccurate press report
which was not part of the public body's official notice efforts). Accord, Law and Information Services v. City of Riviera Beach, 670 So. 2d 1014, 1016 (Fla. 4th DCA
1996) ("[W]hether to impose a requirement that restricts every relevant
commission or board from considering matters not on an agenda is a policy
decision to be made by the legislature.").
See, Inf. Op. to Mattimore, February 6, 1996 (notice of each item to be discussed at public
meeting is not required under section 286.011, Florida Statutes, although other
statutes, codes, or rules, such as Chapter 120, Florida Statutes, may impose
such a requirement).
3. Does the Sunshine Law limit where
meetings of a public board or commission may be held?
a. Out-of-town
meetings
The
courts have recognized that the mere fact that a meeting is held in a public
room does not make it public within the meaning of the Sunshine Law. Bigelow
v. Howze, 291 So. 2d 645, 647-648 (Fla. 2d DCA 1974). For a meeting to be "public," the
public must be given advance notice and provided with a reasonable opportunity
to attend. Id. Accordingly, a school board workshop held
outside county limits over 100 miles away from the board's headquarters
violated the Sunshine Law where the only advantage to the board resulting from
the out-of-town gathering (elimination of travel time and expense due to the
fact that the board members were attending a conference at the site) did not
outweigh the interests of the public in having a reasonable opportunity to
attend. Rhea v. School Board of Alachua County, 636 So. 2d 1383 (Fla. 1st
DCA 1994).
b. Meetings
at facilities that discriminate or unreasonably restrict access prohibited
Section
286.011, Florida Statutes, prohibits boards or commissions subject to its
provisions from holding their meetings at any facility which discriminates on
the basis of sex, age, race, creed, color, origin, or economic status, or which
operates in such a manner as to unreasonably restrict public access to such a
facility. Section
286.011(6), Florida Statutes. Thus, a police pension board should not hold
its meetings in a facility where the public has limited access and where there
may be a "chilling" effect on the public's willingness to attend by
requiring the public to provide identification, to leave the such
identification while attending the meeting and to request permission before
entering the room where the meeting is held.
Op. Att'y Gen. Fla. 96-55
(1996).
c. Inspection trips
Members
of a public board or commission are not prohibited under the Sunshine Law from
conducting inspection trips. However, if
discussions relating to the business of the board will occur between board
members during an inspection trip, then the requirements of section 286.011,
Florida Statutes, must be. Op. Att'y Gen. Fla. 76-141
(1976). And see, Op. Att'y Gen. Fla. 02-24
(2002) (two or more members of an advisory group created by a city code to make
recommendations to the city council or planning commission on proposed
development may conduct vegetation surveys without subjecting themselves to the
notice and minutes requirements of the Sunshine Law, provided that they do not
discuss among themselves any recommendations the committee may make to the
council or planning commission, or comments on the proposed development that
the committee may make to city officials.)
4. Can restrictions be placed on the
public's attendance at, or participation in, a public meeting?
a. Exclusion
of certain members of the public
The term "open to the public" as
used in the Sunshine Law means open to all
who choose to attend. Op.
Att'y Gen. Fla. 99-53
(1999). A board's request that certain members of the
public "voluntarily" leave the room during portions of a public
meeting is not authorized. For example, in Port Everglades Authority v. International
Longshoremen's Association, Local 1922-1, 652 So. 2d 1169 (Fla. 4th DCA 1995), the appellate
court affirmed a lower court ruling finding that a meeting of a procurement
committee in which the chairman asked each presenter "as a courtesy"
to leave the meeting room while the committee considered competing
presentations violated the Sunshine Law.
Staff of a public agency clearly are members of the public
as well as employees of the agency; they cannot, therefore, be excluded from
public meetings. Op. Att'y Gen. Fla. 79-01
(1979). Section 286.011, Florida Statutes, however,
does not preclude the reasonable application of ordinary personnel policies,
for example, the requirement that annual leave be used to attend meetings, provided
that such policies do not frustrate or subvert the purpose of the Sunshine
Law).
Id.
b. Cameras and tape recorders
Reasonable
rules and policies which ensure the orderly conduct of a public meeting and
which require orderly behavior on the part of those persons attending a public
meeting may be adopted by the board or commission. A rule or policy which prohibits the use of
nondisruptive or silent tape recording devices, however, is unreasonable and
arbitrary and is, therefore, invalid. Op. Att'y Gen. Fla. 77-122
(1977). A city, therefore, may not prohibit a citizen
from video taping the meetings of a city council through the use of
nondisruptive video recording devices. Op. Att'y Gen. Fla. 91-28
(1991). Nor may an agency adopt a policy that allows
videotaping by the general public and the media, but bars filming for
commercial purposes. Suncam, Inc. v. Worrall, No. CI97-3385 (Fla. 9th Cir.
Ct. May 9, 1997).
c. Public's
right to participate in a meeting
In
providing an opportunity for public participation, this office is of the view
that reasonable rules and policies, which ensure the orderly conduct of a
public meeting and which require orderly behavior on the part of those persons
attending, may be adopted by a public board.
For example, a rule which limits the amount of time an individual may
address the board could be adopted provided that the time limit does not
unreasonably restrict the public's right of access. But see, Evergreen the Tree Treasurers of
Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526 (Fla. 2d DCA 2002)
(county development review committee took quasi-judicial action when it
approved a development; committee violated the Sunshine Law when it did not
allow public participation prior to making its decision).
Although
not directly considering the Sunshine Law, the court in Jones v. Heyman, 888 F.2d 1328, 1333 (11th Cir. 1989), recognized
that "to deny the presiding officer the authority to regulate irrelevant
debate and disruptive behavior at a public meeting -- would cause such meetings
to drag on interminably, and deny others the opportunity to voice their
opinions." Thus the court concluded
that a mayor's actions in attempting to confine the speaker to the agenda item
in the city commission meeting and having the speaker removed when the speaker
appeared to become disruptive constituted a reasonable time, place and manner
regulation and did not violate the speaker's First Amendment rights.
G. WHAT ARE THE CONSEQUENCES IF A PUBLIC
BOARD OR COMMISSION FAILS TO COMPLY WITH THE SUNSHINE LAW?
1. Criminal penalties
Any
member of a board or commission or of any state agency or authority of a
county, municipal corporation, or political subdivision who knowingly violates the Sunshine Law is
guilty of a misdemeanor of the second degree.
Section 286.011(3)(b), Florida Statutes. Conduct which occurs outside the state which
constitutes a knowing violation of the Sunshine Law is a second degree
misdemeanor. Section 286.011(3)(c), Florida Statutes. Such violations are prosecuted in the county
in which the board or commission normally conducts its official business. Section 910.16, Florida Statutes. The
criminal penalties apply to members of advisory councils subject to the Sunshine
Law as well as to members of elected or appointed boards. Op. Att'y Gen. Fla. 01-84 (2001) (school advisory council members).
2. Removal from office
When
a method for removal from office is not otherwise provided by the Constitution
or by law, the Governor may suspend an elected or appointed public officer who
is indicted or informed against for any misdemeanor arising directly out of his
official duties. Section
112.52, Florida Statutes. If convicted, the officer may be removed from
office by executive order of the Governor.
A person who pleads guilty or nolo contendere or who is found guilty is,
for purposes of section 112.52, Florida Statutes, deemed to have been
convicted, notwithstanding the suspension of sentence or the withholding of adjudication. Cf.,
section 112.51, Florida Statutes, and article IV, section 7, Florida
Constitution.
3. Noncriminal infractions
Section
286.011(3)(a), Florida Statutes, imposes noncriminal
penalties for violations of the Sunshine Law by providing that any public
official violating the provisions of the Sunshine Law is guilty of a
noncriminal infraction, punishable by a fine not exceeding $500. The state attorney may pursue actions on
behalf of the state against public officials for violations of section 286.011,
Florida Statutes, which result in a finding of guilt for a noncriminal
infraction. Op. Att'y Gen. Fla. 91-38
(1991).
4. Attorney's fees
Reasonable
attorney's fees will be assessed against a board or commission found to have
violated section 286.011, Florida Statutes.
Such fees may be assessed against the individual members of the board
except in those cases where the board sought, and took, the advice of its attorney, such fees may not be assessed against the
individual members of the board. Section 286.011(4), Florida Statutes.
Section
286.011(4) also authorizes an award of appellate fees if a person successfully
appeals a trial court order denying access.
School Board of Alachua County v. Rhea, 661 So. 2d 331 (Fla. 1st DCA
1995), review denied, 670 So. 2d 939 (Fla. 1996). However, this statute
"does not supersede the appellate rules, nor does
it authorize the trial court to make an initial award of appellate attorney's
fees." Id., at 332. Thus, a
person prevailing on appeal must file an appropriate motion in the appellate
court in order to receive appellate attorney's fees.
5. Civil actions for injunctive or
declaratory relief
Section
286.011(2), Florida Statutes, states that the circuit courts have jurisdiction
to issue injunctions upon application by any citizen of this state. The burden of prevailing in such actions has
been significantly eased by the judiciary in sunshine cases. While normally irreparable injury must be
proved by the plaintiff before an injunction may be issued, in Sunshine Law
cases the mere showing that the law
has been violated constitutes "irreparable public injury." Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Times Publishing Company v. Williams,
222 So.
2d 470 (Fla. 2d DCA 1969), disapproved in
part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985).
Although
a court cannot issue a blanket order enjoining any violation of the Sunshine
Law on a showing that it was violated in particular respects, a court may
enjoin a future violation that bears some resemblance to the past
violation. Port Everglades Authority v. International Longshoremen's
Association, Local 1922-1, 652 So. 2d 1169, 1173 (Fla. 4th DCA 1995). The future conduct must be "specified,
with such reasonable definiteness and certainty that the defendant could
readily know what it must refrain from doing without speculation and
conjecture." Id., quoting
from Board of Public Instruction v. Doran,
224 So. 2d 693, 699 (Fla. 1969).
6. Validity of action taken in violation
of the Sunshine Law and subsequent corrective action
Section
286.011, Florida Statutes, provides that no resolution, rule, regulation or
formal action shall be considered binding except as taken or made at an open
meeting.
Recognizing
that the Sunshine Law should be construed so as to frustrate all evasive
devices, the courts have held that action taken in violation of the law was
void ab initio. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974), cert. denied, 307 So. 2d 448 (Fla. 1974); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979)
(resolutions made during meetings held in violation of section 286.011, Florida
Statutes, had to be re-examined and re-discussed in open public meetings); and TSI Southeast, Inc. v. Royals, 588 So.
2d 309 (Fla. 1st DCA 1991) (contract for sale and purchase of real property
voided because board failed to properly notice the meeting under section
286.011, Florida Statutes).
Where,
however, a public board or commission does not merely perfunctorily ratify or
ceremoniously accept at a later open meeting those decisions which were made at
an earlier secret meeting but rather takes "independent final action in
the sunshine," the decision of the board or commission will not be
disturbed. Tolar v. School Board of Liberty County, 398 So. 2d 427, 429 (Fla. 1981). Cf.,
Zorc v. City of Vero Beach, 722
So. 2d 891, 903 (Fla. 4th DCA 1998) (meeting did not cure the Sunshine defect
because it was not a "full, open public hearing convened for the purpose
of enabling the public to express its views and participate in the
decision-making process").
II. PUBLIC
RECORDS
A. WHAT
IS A PUBLIC RECORD WHICH IS OPEN TO INSPECTION?
1. What
materials are public records?
Section
119.011(1), Florida Statutes, defines "public records" to include:
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, made or received pursuant to law or ordinance or in
connection with the transaction of official business by any agency.
The
Florida Supreme Court has interpreted this definition to encompass all
materials made or received by an agency in connection with official business
which are used to perpetuate, communicate or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379
So. 2d 633, 640 (Fla. 1980). All such materials, regardless of whether
they are in final form, are open for public inspection unless the Legislature
has exempted them from disclosure. Wait v. Florida Power & Light Company,
372 So. 2d 420 (Fla. 1979).
2. When are notes or nonfinal drafts of
agency proposals subject to Chapter 119, Florida Statutes?
There
is no "unfinished business" exception to the public inspection and
copying requirements of Chapter 119, Florida Statutes. If the purpose of a document prepared in
connection with the official business of a public agency is to perpetuate,
communicate, or formalize knowledge,
then it is a public record regardless of whether it is in final form or the
ultimate product of an agency. Shevin v. Byron, Harless,
Schaffer, Reid and Associates, Inc., 379 So. 2d
633 (Fla. 1980). See
also, Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976) (working
papers used in preparing a college budget were public records).
Accordingly,
any agency document, however prepared, if circulated for review, comment or
information, is a public record regardless of whether it is an official
expression of policy or marked "preliminary" or "working
draft" or similar label. Examples
of such materials would include interoffice memoranda, preliminary drafts of
agency rules or proposals which have been submitted for review to anyone within
or outside the agency, and working drafts of reports which have been furnished
to a supervisor for review or approval.
In
each of these cases, the fact that the records are part of a preliminary
process does not detract from their essential character as public records. See,
Times Publishing Co. v. City of St. Petersburg, 558 So. 2d 487, 494 (Fla.
2d DCA 1990) (while the mere preparation
of documents for submission to a public body does not create public records,
the documents can become public records when exhibited to public officials and
revised as part of a bargaining process); and
Op. Att'y Gen. Fla. 91-26 (1991) (minutes of city council meetings are
public records once minutes have been prepared by clerk even though minutes
have not yet been sent to city council members and have not been officially
approved by the city council). It
follows then that such records are subject to disclosure unless the Legislature
has specifically exempted the documents from inspection or has otherwise
expressly acted to make the records confidential. See,
for example, section 119.07(3)(l), Florida Statutes,
providing a limited work product exemption for agency attorneys.
It
is important to emphasize, however, that a nonfinal document need not be
communicated to anyone in order to constitute a public record. So called "personal" notes are
public records if they are intended to perpetuate or formalize knowledge of
some type. Stated another way, notes
which are prepared for filing or otherwise intended as final evidence of
knowledge obtained in the transaction of official business constitute
public records. See, e.g., Church of
Scientology Flag Service Org., Inc. v. Wood, No. 97-688CI-07 (Fla. 6th Cir.
Ct. February 27, 1997) (drafts and notes of an autopsy performed by the medical
examiner are public records); and Florida
Sugar Cane League v. Florida Department of Environmental Regulation, No.
91-4218 (Fla. 2d Cir. Ct. June 5, 1992), stating that handwritten notes of
agency staff, "utilized to communicate and formulate knowledge within [the
agency], are public records subject to no exemption;" and Inf. Op. to
McLean, dated December 31, 1998 (handwritten notes prepared by a council member
regarding research on a matter under discussion by the council and used as a
reference in discussing the member's position are public records).
Accordingly,
it is only those uncirculated materials which are merely preliminary or
precursors to future documents, and which are not in
and of themselves intended to serve as final evidence of the knowledge to be
recorded, which fall outside the definitional scope of public records. Examples of such preliminary material cited
by the Byron, Harless Court include notes to be used in preparing some other
documentary material, tapes or notes taken by a secretary as dictation, and
(uncirculated) rough drafts. See also, State v. Kokal, 562 So. 2d 324, 327 (Fla.
1990), noting that "not all trial preparation materials [of agency
attorneys] are public records" and that a state attorney was not required
to disclose certain trial preparation documents which were described as
preliminary guides intended to aid the attorneys when they later formalized the
knowledge. Accord, Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988),
holding that preliminary handwritten notes prepared by agency attorneys and
intended only for the attorneys' own personal use are not public records.
B. WHAT AGENCIES ARE SUBJECT TO THE PUBLIC
RECORDS ACT?
Section
119.011(2), Florida Statutes, defines "agency" to include:
any state, county, district,
authority, or municipal officer, department, division, board, bureau,
commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the
Public Service Commission, and the Office of Public Counsel, and any other
public or private agency, person, partnership, corporation, or business entity
acting on behalf of any public agency.
Article
I, section 24, Florida Constitution, establishes a constitutional right of
access to any public record made or received in connection with the official
business of any public body, officer, or employee of the state, or persons
acting on their behalf, except those records exempted by law pursuant to
Article I, section 24, Florida Constitution, or specifically made confidential
by the Constitution. This right of
access to public records applies to the legislative, executive, and judicial
branches of government; counties, municipalities, and districts; and each
constitutional officer, board, and commission, or entity created pursuant to
law or by the Constitution. However, although a right of access
exists under the Constitution to all three branches of government, the Public Records
Act, as a legislative enactment, does not apply to the Legislature or the
judiciary. See, Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992).
1. Advisory boards
The
definition of "agency" for purposes of Chapter 119, Florida Statutes,
is not limited to governmental entities.
A "public or private agency, person, partnership, corporation, or
business entity acting on behalf of any public agency" is also subject to
the requirements of the Public Records Act.
See also, Article I, section
24, Florida Constitution, providing that the constitutional right of access to
public records extends to "any public body, officer, or employee of the
state, or persons acting on their behalf...."
(e.s.)
2. Private organizations
A
more complex question is posed when a private corporation or entity, not
otherwise connected with government, provides services for a governmental
body. The term "agency" as
used in the Public Records Act includes private entities "acting on behalf
of any public agency." Section 119.011(2), Florida Statutes.
The
Florida Supreme Court has stated that this broad definition of
"agency" ensures that a public agency cannot avoid disclosure by
contractually delegating to a private entity that which would otherwise be an
agency responsibility. News and Sun-Sentinel Company
v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). Cf.,
Booksmart Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc.,
718 So. 2d 227, 229 at n.4 (Fla. 3d DCA 1998), review denied, 729 So. 2d 389 (Fla. 1999) (private company
operating college bookstores was an "agency" as defined in section
119.011[2], Florida Statutes, "notwithstanding the language in its
contract with the universities that purports to deny any agency relationship").
a. Receipt of public funds by private
entity not dispositive
There
is no single factor which is controlling on the question of when a private
corporation becomes subject to the Public Records Act. For example, a private corporation does not
act "on behalf of" a public agency merely by entering into a contract
to provide professional services to the agency.
News and
Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc.,
supra.
Similarly,
the receipt of public funds, standing alone, is not dispositive of the
organization's status for purposes of Chapter 119, Florida Statutes. See,
Sarasota Herald-Tribune Company v. Community Health Corporation, Inc., 582 So. 2d
730 (Fla. 2d DCA 1991), in which the court noted that the mere provision of
public funds to the private organization is not an important factor in this
analysis, although the provision of a substantial share of the capitalization
of the organization is important.
See also, Times Publishing Company v. Acton, No. 99-8304 (Fla. 13th Cir. Ct.
November 5, 1999) (attorneys retained by individual county commissioners in a
criminal matter were not "acting on behalf of" a public agency so as
to become subject to the Public Records Act, even though the board of county
commissioners subsequently voted to pay the legal expenses in accordance with a
county policy providing for reimbursement of legal expenses to individual
county officers who successfully defend criminal charges filed against them
arising out of the performance of their official duties).
b. "Totality
of factors" test
Recognizing
that "the statute provides no clear criteria for determining when a
private entity is 'acting on behalf of' a public agency," the Supreme
Court adopted a "totality of factors" approach to use as a guide for
evaluating whether a private entity is subject to Chapter 119, Florida
Statutes. News and Sun-Sentinel Company v. Schwab,
Twitty & Hanser Architectural Group, Inc., supra at 1031. Accord, Memorial Hospital West-Volusia, Inc. v. News-Journal
Corporation, 729 So. 2d 373 (Fla. 1999)
(private entities should look to the factors announced in Schwab to determine their possible
agency status under Chapter 119 and under Article I, section 24 of the Florida
Constitution).
The
factors listed by the Supreme Court include the following:
1) the level of public funding;
2) commingling of
funds;
3) whether the
activity was conducted on publicly-owned property;
4) whether
services contracted for are an integral part of
the public agency's chosen decision-making process;
5) whether
the private entity is performing a governmental function or a function which
the public agency otherwise would perform;
6) the extent of
the public agency's involvement with, regulation of, or control over the
private entity;
7) whether the
private entity was created by the public agency;
8) whether
the public agency has a substantial financial interest in the private entity;
9) for whose
benefit the private entity is functioning.
c. Private
entities created pursuant to law or by public agencies
The
fact that a private entity is incorporated as a nonprofit corporation is not
dispositive as to its status under the Public Records Act. The issue is whether the entity is
"acting on behalf of" an agency.
This office has issued numerous opinions advising that if a nonprofit
entity is established by law, it is subject to Chapter 119 disclosure
requirements. See, Op. Att'y Gen. Fla. 94-32 (1994) (Florida Windstorm Joint Underwriting
Association, a private nonprofit association established pursuant to a plan
adopted by rule of the Department of Insurance in accordance with statutory
authorization).
d. Private
entities providing services to public agencies
As
stated previously, the mere fact that a private entity is under contract with,
or receiving funds from, a public agency is not sufficient, standing alone, to
bring that agency within the scope of the Public Records Act. See,
Stanfield v. Salvation Army, 695 So. 2d 501, 503 (Fla. 5th DCA 1997) (contract
between Salvation Army and county to provide services does not in and of itself
subject the organization to Chapter 119 disclosure requirements).
However,
there is a difference between a party contracting with a public agency to
provide services to the agency and a
contracting party which provides services in
place of the public body. News-Journal Corporation v.
Memorial Hospital-West Volusia, Inc.,
695 So. 2d 418 (Fla. 5th DCA 1997), approved, 729 So. 2d 373 (Fla. 1999).
Stated another way, business records of entities which merely provide
services for an agency to use (such as legal professional services, for
example) are probably not subject to the open government laws. Id. But, if the
entity contracts to relieve the public body from the operation of a public
obligation (such as operating a jail or providing fire protection) the open
government laws do apply. Id.
Thus, in Stanfield v.
Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997), the court ruled
that the Salvation Army was subject to the Public Records Act when it
completely assumed the responsibility to
provide misdemeanor probation services pursuant to a contract with Marion
County. And see, Putnam County Humane Society, Inc.
v. Woodward, 740 So. 2d
1238 (Fla. 5th DCA 1999) (where county humane society assumed governmental
function pursuant to statute to investigate acts of animal abuse and to seize
animals, society's records that were created and maintained pursuant to its
statutory authority are subject to the Public Records Act); Prison Health Services, Inc. v. Lakeland
Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla. 1999) (private prison
company under contract with sheriff to provide medical services for inmates at
county jail must release records relating to a settlement agreement with an
inmate because all of its records that would normally be subject to the Public
Records Act if in the possession of the public agency, are likewise covered by
that law, even though in the possession of the private corporation); and Dade
Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302 (Fla. 3d DCA
2001) (a consortium of private businesses created to manage a massive
renovation of an airport is an "agency" for purposes of the Public
Records Act because it was created for and had no purpose other than to work on
the airport contract; "when a private entity undertakes to provide a
service otherwise provided by the government, the entity is bound by the Act,
as the government would be").
If a private
organization contracting with a public agency is deemed to be an
"agency," the terms of Chapter 119, Florida Statutes, are applicable
to those materials made or received by the private organization in the course
of its contract with the public agency. See, Shevin
v. Byron, Harless, Schaffer, Reid and Associates, 379 So. 2d 633 (Fla.
1980) (private consultant retained to conduct confidential employment search
for city electric authority was an "agency" for purposes of Chapter
119, Florida Statutes; thus, letters, memoranda, resumes, and travel vouchers
made or received by consultant in connection with search were public records);
and Wallace v. Guzman, 687 So. 2d
1351, 1353 (Fla. 3d DCA 1997) (public official's assumption that financial
documents submitted to the agency's consultants, rather than to the agency's
staff, would be exempt from disclosure "clearly was wrong," citing to
Shevin v. Byron, Harless).
e. Private
company delegated authority to keep certain records
In Times Publishing Company
v. City of St. Petersburg, 558 So. 2d 487, 494 (Fla. 2d DCA
1990), a private entity (the White Sox baseball organization) refused to allow
access to draft lease documents and other records generated in connection with
negotiations between the White Sox and a city for use of a municipal
stadium. The court determined that both
the White Sox and the city improperly attempted to circumvent the Public
Records Act by agreeing to keep all negotiation documents confidential and in
the custody of the White Sox. However,
the plan to withhold the documents from public inspection failed. The court ruled that both the city and the
White Sox had violated Chapter 119, Florida Statutes. See
also, Wisner v. City of Tampa,
601 So. 2d 296 (Fla. 2d DCA 1992) (city may not allow
a private entity to maintain physical custody of public records [polygraph
chart used in police internal affairs investigation] "to circumvent the
public records chapter").
Thus,
if a public agency has delegated its responsibility to maintain records
necessary to perform its functions, such records will
be deemed accessible to the public. Op.
Att'y Gen. Fla. 98-54 (1998) (registration and disciplinary records stored in a
computer database maintained by a national securities association which are
used by the Department of Banking and Finance in licensing and regulating
securities dealers doing business in Florida are public records). See
also, Harold v. Orange County,
668 So. 2d 1010 (Fla. 5th DCA 1996) (where a county
hired a private company to be the construction manager on a renovation project
and delegated to the company the responsibility of maintaining records
necessary to show compliance with a "fairness in procurement
ordinance," the company's records for this purpose were public records).
C. WHAT KINDS
OF AGENCY RECORDS ARE SUBJECT TO THE PUBLIC RECORDS ACT?
1. Computer records
In
1982, the Fourth District Court of Appeal stated that information stored in a
public agency's computer "is as much a public record as a written page in
a book or a tabulation in a file stored in a filing
cabinet . . . ." Seigle v. Barry, 422 So. 2d 63, 65 (Fla.
4th DCA 1982), review denied, 431 So.
2d 988 (Fla. 1983). Thus, the Public Records Act includes
computer records as well as paper documents, tape recordings, and other more
tangible materials. See, e.g., Op. Att'y Gen. Fla. 98-54 (1998) (applications and
disciplinary reports maintained in a computer system operated by a national
securities dealers association which are received electronically by state
agency for use in licensing and regulating securities dealers doing business in
Florida are public records subject to Chapter 119); Op. Att'y Gen. Fla. 91-61
(1991) (computer data software disk is a public record); Op. Att'y Gen. Fla.
89-39 (1989) (information stored in computer utilized by county commissioners
to facilitate and conduct their official business is subject to Chapter 119,
Florida Statutes); and Op. Att'y Gen. Fla. 85-03 (1985) (computer tapes are
public records).
Thus,
computerized public records are governed by the same rule as written documents
and other public records -- the records are subject to public inspection unless
a statutory exemption exists which removes the records from disclosure. Cf.,
AGO 90-04, stating that a county official is not authorized to assign the
county's right to a public record (a computer program developed by a former
employee while he was working for the county) as part of a settlement of a
lawsuit against the county.
a. "E-Mail"
"E-mail"
messages made or received by agency employees in connection with official
business are public records and subject to disclosure in the absence of a
statutory exemption from public inspection.
Op. Att'y Gen. Fla. 96-34
(1996). Such messages are subject to the statutory
restrictions on destruction of public records, which require agencies to adopt
a schedule for the disposal of records no longer needed. Id. See, section 257.36(6), Florida
Statutes, stating that a public record may be destroyed only in accordance with
retention schedules established by the Division of Library and Information
Services of the Department of State. Id.
The nature of information -- that is, that
it is electronically generated and transferred -- has been determined not to
alter its character as a public record under the Public Records Act. Op. Att'y Gen. Fla. 01-20 (2001). Thus, the e-mail communication of factual
background information and position papers from one official to another is a
public record and should be retained in accordance with the retention schedule
for other records relating to performance of the agency's functions and
formulation of policy. Id.
There is no
exception from the Public Records Act for so-called "personal" e-mail
on agency-owned computers. Inf. Op. to
Harris, July 18, 2001. However, private email stored in government
computers does not automatically become a public record by virtue of that
storage. Times Publishing Company v. City of Clearwater, 27 F.L.W. D1073 (Fla. 2d DCA May
10, 2002).
b. Formatting
issues
Each
agency that maintains a public record in an electronic recordkeeping system
shall provide to any person, pursuant to Chapter 119, a copy of any public
record in that system which is not exempted by law from public disclosure. Section 119.083(5), Florida Statutes. An agency that maintains a public record in
an electronic recordkeeping system must provide a copy of the record in the
medium requested by the person making a Chapter 119 demand, if the agency
maintains the record in that medium, and the fee charged shall be in accordance
with Chapter 119, Florida Statutes. Id. Thus, a
custodian of public records must, if asked for a copy of a computer software
disk used by an agency, provide a copy of the disk in its original format; a
typed transcript would not satisfy the requirements of section 119.07(1),
Florida Statutes. Op.
Att'y Gen. Fla. 91-61
(1991).
However,
an agency is not generally required to reformat its records to meet a
requestor's particular needs. As stated
in Seigle v. Barry, the intent of Ch.
119, Florida Statutes, is "to make available to the public information
which is a matter of public record, in some meaningful form, not necessarily
that which the applicant prefers."
422 So. 2d at 66. Thus, this office concluded that a school
district was not required to furnish electronic public records in electronic
format other than the standard format routinely maintained by the
district. Op. Att'y Gen. Fla. 97-39
(1997).
Despite
the general rule, however, the Seigle
court recognized that an agency may be required to provide access through a
specially designed program prepared by or at the expense of the applicant
where:
(1) available
programs do not access all of the
public records stored in the computer's data banks; or
(2) the
information in the computer accessible by the use of available programs would
include exempt information necessitating a special program to delete such
exempt items; or
(3) for
any reason the form in which the information is proffered does not fairly and
meaningfully represent the records; or
(4) the
court determines other exceptional circumstances exist warranting this special
remedy. 422 So. 2d at
66- 67.
c. Remote access
Section
119.085, Florida Statutes, authorizes but does not require agencies to provide
remote electronic access to public records.
However, unless otherwise required by law, the custodian may charge a
fee for remote electronic access, granted under a contractual arrangement with
a user, which fee may include the direct and indirect costs of providing such
access. Fees for remote electronic
access provided to the general public must be in accordance with the provisions
of section 119.07(1), Florida Statutes.
Section 119.085 also requires that the
custodian provide safeguards to protect the contents of the public records from
unauthorized electronic access or alteration and to prevent the disclosure or
modification of those portions of the records which are exempt from disclosure. See,
Inf. Op. to Honorable Shirley Brown, July 21, 1993 (in providing remote
electronic access, Department of Highway Safety and Motor Vehicles is required
to provide certain safeguards, as required by section 320.05(2), Florida
Statutes, prior to release of public motor vehicle registration information).
2. Financial records
Many
agencies prepare or receive financial records as part of their official duties
and responsibilities. As with other
public records, these materials are generally open to inspection unless a
specific statutory exemption exists. See, Op. Att'y Gen. Fla. 96-96 (1996) (financial
information submitted by harbor pilots in support of a pilotage rate increase
application is not exempt from disclosure requirements).
a. Audit
reports
The
audit report prepared by the Auditor General is a public record when it has
been finalized. Section 11.45(4)(c), Florida Statutes. The audit workpapers and notes are not a
public record; however, those workpapers necessary to support the computations
in the final audit report may be made available by a majority vote of the
Legislative Auditing Committee after a public hearing showing proper
cause. Id. At the conclusion of the audit, the Auditor
General provides the head of the agency being audited with a list of the adverse
findings so that the agency head may explain or rebut them before the report is
finalized. Section 11.45(4)(d), Florida Statutes. This list of adverse audit findings is a
public record. Op.
Att'y Gen. Fla. 79-75
(1979).
The
audit report of an internal auditor prepared for or on behalf of a unit of
local government becomes a public record when the audit becomes final. Section 119.07(3)(y),
Florida Statutes.
The audit becomes final when the audit report is presented to the unit
of local government; until the audit becomes final, the audit workpapers and
notes related to such audit report are confidential. Id. Thus, a
draft audit report of a county legal department which was prepared by the clerk
of court, acting in her capacity as county auditor, did not become subject to
disclosure when the clerk submitted copies of her draft report to the county
administrator for review and response. Nicolai v. Baldwin, 715 So. 2d 1161 (Fla. 5th DCA
1998). Pursuant to section
119.07(3)(y), Florida Statutes, the report would
become "final," and hence subject to disclosure, when presented to
the county commission. Id.
b. Bids
Section
119.07(3)(m), Florida Statutes, provides an exemption for "sealed bids or
proposals received by an agency pursuant to invitations to bid or requests for
proposals" until such time as the agency provides notice of a decision or
intended decision pursuant to section 120.57(3)(a) or within 10 days after bid
or proposal opening, whichever is earlier.
c. Budgets
Budgets
and working papers used to prepare them are normally subject to
inspection. Bay County School Board v. Public Employees Relations Commission,
382 So. 2d 747 (Fla. 1st DCA 1980); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d
DCA 1976); City of Gainesville v. State ex. rel. International Association of Fire
Fighters Local No. 2157, 298 So. 2d 478 (Fla. 1st DCA 1974).
d. Personal financial records
In
the absence of statutory exemption, financial information prepared or received
by an agency is usually subject to Chapter 119, Florida Statutes. See,
Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997)
(personal income tax returns and financial statements submitted by public
officials as part of an application to organize a bank are subject to
disclosure).
There
are some specific exemptions, however, that are applicable to certain payment
records or information. Credit card
account numbers in the possession of a state agency, unit of local government,
or the judicial branch are confidential and exempt. Section 215.322(6), Florida Statutes. Bank account numbers, credit card numbers and
certain insurance information furnished by an individual pursuant to federal,
state, or local housing assistance programs are confidential. Section 119.07(3)(cc),
Florida Statutes. Bank
account numbers and debit, charge, and credit card numbers held by an agency
are also exempt from public disclosure. Section 119.07(3), Florida Statutes.
e. Security interests
Records
regarding ownership of, or security interests in, registered public obligations
are not open to inspection. Section 279.11, Florida Statutes.
f. Telephone bills
Records
of telephone calls made from agency telephones are subject to disclosure in the
absence of statutory exemption. See, Crespo v. Florida Entertainment
Direct Support Organization, No. 94-4674 (Fla. 11th Cir. Ct. April 10, 1995)
(telephone bills for calls made by agency official open to public
inspection). Accord, Gillum v. Times Publishing Company,
No. 91-2689-CA (Fla. 6th Cir. Ct. July 10, 1991). The telephone numbers contained in the school
district's records of calls made on school district telephones are public
records even when those calls may be personal and the employee pays or
reimburses the school district for the calls.
Op. Att'y Gen. Fla. 99-74
(1999).
g. Trade secrets
This
office has concluded that the fact that information constitutes a trade secret
under section 812.081 does not, in and of itself, remove it from the
requirements of the Public Records Act. Op. Att'y Gen. Fla. 92-43
(1992). Thus, an agency is under a duty to release
public records even though such records may constitute trade secrets when there
is no statute making the information confidential or exempt from disclosure
under Chapter 119, Florida Statutes. Op. Att'y Gen. Fla. 95-58
(1995). See also, Op. Att'y Gen. Fla. 97-87 (1997) (building
plans and building design calculations which are labeled "trade
secret" and filed with a local building department are not exempt from
disclosure).
In Seta Corporation of Boca, Inc. v. Office of
the Attorney General, 756 So. 2d 1093 (Fla. 4th DCA 2000), the Fourth
District upheld a trial court order requiring a corporation to produce
information to the state despite the corporation's contention that the documents
contained alleged trade secrets. The
appellate court noted that the lower tribunal "wisely provided in the
order requiring production that the state could not produce any of the
information it receives pursuant to a request under the public records law
without giving petitioner ten days notice to seek a court order." 756 So. 2d at 1094.
3. Investigation records of non law
enforcement agencies
In
the absence of a specific legislative exemption, investigative records made or
received by public agencies are open to public inspection pursuant to Chapter
119, Florida Statutes. State ex rel. Veale v. City
of Boca Raton, 353
So. 2d
1194 (Fla. 4th DCA 1977), cert. denied, 360
So. 2d 1247 (Fla. 1978). And
see, Caswell v. Manhattan Fire and
Marine Insurance Company, 399 F.2d 417 (5th Cir. 1968) (ordering that
certain investigative records of the State Insurance Commission be produced for
inspection under Chapter 119, Florida Statutes). Accord,
Op. Att'y Gen. Fla. 91-75 (1991) (documents containing information compiled by
school board employees during an investigation of school district departments
are open to inspection in the absence of statutory exemption); and Op. Att'y
Gen. Fla. 71-243 (1971) (inspection reports made or received by a school board in
connection with an official investigation constitute public records). Cf.,
Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973) (no
quasi-judicial exception to the Sunshine Law which would allow closed door
hearings or deliberations when a board or commission is acting in a
"quasi-judicial" capacity).
Section
119.07(3)(b) through (i), Florida Statutes, contains limited exemptions from
disclosure for specified law enforcement
records which, absent statutory authority, do not apply to investigations
conducted by agencies outside the criminal justice system. See,
Douglas v. Michel, 410 So. 2d 936, 939 (Fla. 5th DCA 1982), questions answered and approved, 464 So. 2d 545 (Fla. 1985) (exemption for
"information revealing surveillance techniques or procedures or
personnel" [now found at section 119.07(3)(d)]
does not apply to a hospital's personnel files). See
also, Op. Att'y Gen. Fla. 87-51 (1987), concluding that complaints from
employees of the Department of Labor and Employment Security relating to
departmental integrity and efficiency do not constitute criminal intelligence
information or criminal investigative information.
4. Litigation
records
a. Attorney-client communications
subject to Chapter 119, Florida Statutes
The
Public Records Act applies to communications between attorneys and governmental
agencies; there is no judicially created privilege which exempts these
documents from disclosure. Wait v. Florida Power & Light Company,
372 So. 2d 420 (Fla. 1979) (only the Legislature
and not the judiciary can exempt attorney-client communications from Chapter
119, Florida Statutes). See also, City of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218 (Fla. 1985) (although section 90.502, Florida Statutes,
of the Evidence Code establishes an attorney-client privilege for public and
private entities, this evidentiary statute does not remove communications
between an agency and its attorney from the open inspection requirements of
Chapter 119, Florida Statutes).
Moreover,
public disclosure of these documents does not violate the public agency's
constitutional rights of due process, effective assistance of counsel, freedom
of speech, or the Supreme Court's exclusive jurisdiction over The Florida Bar. City of North Miami v. Miami Herald Publishing Company, supra. Accord, Brevard County v. Nash, 468 So. 2d 240 (Fla. 5th DCA 1984); Edelstein v. Donner, 450 So. 2d
562 (Fla. 3d DCA 1984), approved, 471
So. 2d 26 (Fla. 1985).
b. Limited statutory work product
exemption
(1) Scope
of exemption
The
Supreme Court has ruled that the Legislature and not the judiciary has exclusive authority to exempt litigation records from
the scope of Chapter 119, Florida Statutes.
Wait v. Florida Power & Light
Company, 372 So. 2d 420 (Fla. 1979). With the enactment of section 119.07(3)(l), Florida Statutes, the Legislature has created a narrow
exemption for certain litigation work product of agency attorneys.
Note that this statutory exemption
applies to attorney work product that has reached the status of becoming a
public record; as discussed more extensively in the section relating to
"attorney notes," certain preliminary trial preparation materials,
such as handwritten notes for the personal use of the attorney, are not
considered to be within the definitional scope of the term "public
records" and, therefore, are outside the scope of Chapter 119, Florida
Statutes. See, Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998).
a. Attorney bills and payments
Only
those records which reflect a "mental impression, conclusion, litigation
strategy, or legal theory" are included within the parameters of the work
product exemption. Accordingly, in Op.
Att'y Gen. Fla. 85-89 (1985), this office concluded that a contract between a
county and a private law firm for legal counsel and documentation for invoices
submitted by such firm to the county do not fall within the work product
exemption. If the bills and invoices
contain some information exempted by section 119.07(3)(l)
-- i.e., "mental impression[s],
conclusion[s], litigation strateg[ies], or legal theor[ies]," -- the
exempt material may be deleted and the remainder disclosed. Id. However, information such as the hours worked
or the hourly wage clearly would not fall within the scope of the
exemption. Id.
Thus,
an agency which improperly "blocked out" most notations on invoices
prepared in connection with services rendered by and fees paid to attorneys
representing the agency, "improperly withheld" nonexempt material
when it failed to limit its redactions to those items "genuinely
reflecting its 'mental impression, conclusion, litigation strategy, or legal
theory.'" Smith & Williams, P.A. v. West Coast
Regional Water Supply Authority, 640
So. 2d 216 (Fla. 2d DCA 1994). And see,
Op. Att'y Gen. Fla. 00-07 (2000) (records of outside attorney fee bills
received by the county's risk management office for the defense of the county,
as well as its employees who are sued individually, for alleged civil rights
violations are public records subject to disclosure).
b. Investigations
Section
119.07(3)(l), Florida Statutes, does not create a
blanket exception to the Public Records Act for all attorney work product. Op. Att'y Gen. Fla. 91-75
(1991). The exemption is narrower than the work
product privilege recognized by the courts for private litigants. Op. Att'y Gen. Fla. 85-89
(1985). In order to qualify for the work product
exemption, the records must have been prepared exclusively for or in anticipation of litigation or adversarial
administrative proceedings; records prepared for other purposes may not be
converted into exempt material simply because they are also used in or related
to the litigation.
Moreover,
only those records which are prepared by or at the express direction of the agency attorney and reflect "a
mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency" are
exempt from disclosure until the conclusion of the proceedings. (e.s.) See,
City of North Miami v. Miami Herald Publishing Company, 468 So. 2d 218, 219 (Fla. 1985) (noting application
of exemption to "government agency, attorney-prepared litigation files
during the pendency of litigation"); and City of Miami Beach v. DeLapp, 472 So. 2d 543 (Fla.
3d DCA 1985) (opposing counsel not entitled to city's legal memoranda as such
material is exempt work product).
Compare, City of Orlando v. Desjardins, 493 So. 2d 1027, 1028 (Fla. 1986) (trial court must
examine city's litigation file in accident case and prohibit disclosure only of
those records reflecting mental impression, conclusion, litigation strategy or
legal theory of attorney or city).
Thus,
a circuit judge refused to apply the exemption to tapes, witness statements and
interview notes taken by police as part of an investigation of a drowning
accident at a city summer camp. Sun-Sentinel Company v. City
of Hallandale, No. 95-13528(05) (Fla.
17th Cir. Ct. October 11, 1995). The court, in the Sun-Sentinel case, also stated that the
section 768.28[15][b], Florida Statutes, exemption for
risk management files did not apply. See also, Op. Att'y Gen. Fla. 91-75
(1991) (work product exemption not applicable to documents generated or
received by school district investigators, acting at the direction of the
school board to conduct an investigation of certain school district
departments).
(2) Commencement
and termination of exemption
Unlike
the open meetings exemption in section 286.011(8), Florida Statutes, for
certain attorney-client discussions between a governmental agency and its
attorney, section 119.07(3)(l), Florida Statutes, is not limited to records
created for pending litigation or proceedings, but applies also to records
prepared "in anticipation of imminent civil or criminal litigation or
imminent adversarial administrative proceedings." See,
Op. Att'y Gen. Fla. 98-21 (1998), discussing the differences between the public
records work product exemption in section 119.07(3)(l), and the Sunshine Law
exemption in section 286.011.
But,
the exemption from disclosure provided by section 119.07(3)(l),
Florida Statutes, is temporary and
limited in duration. City of North Miami v. Miami Herald
Publishing Co., supra. The exemption exists only until the
"conclusion of the litigation or adversarial administrative
proceedings" even if other issues remain.
Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988).
For
example, if the state settles a claim against one company accused of conspiracy
to fix prices, the state has concluded the litigation against that
company. Thus, the records prepared in
anticipation of litigation against that company are no longer exempt from
disclosure even though the state has commenced litigation against the alleged
co-conspirator. State v. Coca-Cola Bottling Company of Miami, Inc., 582 So. 2d 1 (Fla. 4th DCA 1990). And see, Tribune Company v. Hardee Memorial Hospital,
No. CA-91-370 (Fla. 10th Cir. Ct. Aug. 19, 1991) (settlement agreement not
exempt as attorney work product even though another related case was pending,
and agency attorneys feared disclosure of their assessment of the merits of the
case and their litigation strategy). Cf., Prison Health Services, Inc. v.
Lakeland Ledger Publishing Company, 718 So. 2d 204 (Fla. 2d DCA 1998), review denied, 727 So. 2d 909 (Fla.
1999) (private prison company under contract with sheriff to provide medical
services for inmates at county jail must release records relating to a
settlement agreement with an inmate because all of its records that would
normally be subject to the Public Records Act if in the possession of the
public agency, are likewise covered by that law, even though in the possession
of the private corporation).
The
Legislature has, however, established specific exemptions which address
disclosure of some risk management files when other related claims remain. See,
e.g. section 768.28(15), Florida Statutes, providing an exemption for claim
files maintained by agencies pursuant to a risk management program for tort
liability until the termination of the litigation and settlement of all claims
arising out of the same incident. The
exemption afforded by section 768.28(15)(d), Florida Statutes, however, is
limited to tort claims for which the agency may be liable under section 768.28,
Florida Statutes, and does not apply to federal civil rights actions under 42
U.S.C. section 1983. Ops.
Att'y Gen. Fla. 00-20 and
00-07. And see,
Op. Att'y Gen. Fla. 92-82 (1992) (open meetings exemption provided by section
768.28, Florida Statutes, applies only to meetings held after a tort claim is
filed with the risk management program).
Regarding
draft settlements received by an agency in litigation, a circuit court has held
that draft settlement agreements furnished to
a state agency by a federal agency were public records despite the department's
agreement with the federal agency to keep such documents confidential. Florida
Sugar Cane League, Inc. v. Department of Environmental Regulation, No.
91-2108 (Fla. 2d Cir. Ct. Sept. 20, 1991), affirmed,
606 So. 2d 1267 (Fla. 1st DCA 1992). And
see, Florida Sugar Cane League, Inc.
v. Florida Department of Environmental Regulation, No. 91-4218 (Fla. 2d
Cir. Ct. June 5, 1992) (technical documents or data which were not prepared for
the purpose of carrying litigation forward but rather were jointly authored
among adversaries to promote settlement are not exempted as attorney work
product).
c. Attorney notes
Relying on its conclusion in Shevin v. Byron, Harless, Schaffer, Reid and
Associates, Inc., 379 So. 2d 633 (Fla. 1980), the Florida Supreme
Court has recognized that "not all trial preparation materials are public
records." State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990). In Kokal,
the Court approved the decision of the Fifth District in Orange County v. Florida Land Co., 450 So.
2d 341, 344 (Fla. 5th DCA), review denied, 458 So. 2d 273 (Fla. 1984), which described
certain documents as not within the term 'public records.'
Similarly, in Johnson v.
Butterworth, 713 So. 2d 985
(Fla. 1998), the Court ruled that "outlines, time lines, page
notations regarding information in the record, and other similar items" in
the case file, did not fall within the definition of public record, and thus
were not subject to disclosure. See also, Lopez v. State, 696 So. 2d
725 (Fla. 1997)
(handwritten notes dealing with trial strategy and cross examination of
witnesses, not public records); and Atkins
v. State, 663 So. 2d 624 (Fla. 1995)
(notes of state attorney's investigations and annotated photocopies of
decisional case law, not public records).
By
contrast, documents prepared to communicate, perpetuate, or formalize knowledge
constitute public records and are, therefore, subject to disclosure in the
absence of statutory exemption. See, Byron,
Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla.
1980), in which the Court noted that "[i]nter-office memoranda and
intra-office memoranda communicating information from one public employee to
another or merely prepared for filing, even though not a part of an agency's
later, formal public product, would nonetheless constitute public records
inasmuch as they supply the final evidence of knowledge obtained in connection
with the transaction of official business."
Thus,
in Orange County v. Florida Land Company,
supra, the court concluded that trial
preparation materials consisting of interoffice and intraoffice memoranda
communicating information from one public employee to another or merely
prepared for filing, even though not part of the agency's formal work product,
were public records. As public records,
such circulated trial preparation materials might be exempt from disclosure
pursuant to section 119.07(3)(l), Florida Statutes,
while the litigation is ongoing; however, once the case is over the materials
would be open to inspection.
5. Personnel
records
The
general rule with regard to personnel records is the same as for other public
records; unless the Legislature has expressly exempted an agency's personnel
records from disclosure or authorized the agency to adopt rules limiting access
to such records, personnel records are subject to public inspection under
section 119.07(1), Florida Statutes. Michel v. Douglas, 464 So. 2d 545 (Fla. 1985).
a. Privacy concerns
The
courts have rejected claims that constitutional privacy interests operate to
shield agency personnel records from disclosure. See,
Michel v. Douglas, 464 So. 2d 545, 546 (Fla. 1985), holding that the
state constitution "does not provide a right of privacy in public
records" and that a state or federal right of disclosural privacy does not
exist. Additionally, the judiciary has
refused to deny access to personnel records based on claims that the release of
such information could prove embarrassing or unpleasant for the employee. See,
News-Press Publishing Company, Inc. v.
Gadd, 388 So. 2d 276 (Fla. 2d DCA 1980), stating that a court is not free
to consider public policy questions regarding the relative significance of the
public's interest in disclosure and damage to an individual or institution
resulting from such disclosure.
b. Conditions for inspection of personnel
records
An
agency is not authorized to unilaterally impose special conditions for the
inspection of personnel records. An
automatic delay in the production of such records is invalid. Tribune
Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte
v. Tribune Company, 105 S.Ct. 2315 (1985) (automatic 48 hour delay
unauthorized by Chapter 119, Florida Statutes).
Absent
a statutory exemption for such records, a city may not agree to remove
counseling slips and written reprimands from an employee's personnel file and
maintain such documents in a separate disciplinary file. Op. Att'y Gen. Fla. 94-54
(1994). Similarly, an agency is not authorized to
"seal" disciplinary notices and thereby remove such notices from
disclosure under the Public Records Act.
Op. Att'y Gen. Fla. 94-75
(1994). Cf.,
section 69.081(8)(a), Florida Statutes, providing, subject
to limited exceptions, that any portion of an agreement or contract which has
the purpose or effect of concealing information relating to the settlement or
resolution of a claim against the state or its subdivisions is "void,
contrary to public policy, and may not be enforced."
c. Collective bargaining
A
collective bargaining agreement between a public employer and its employees may
not validly make the personnel records of public employees confidential or
exempt the same from the Public Records Act.
Op. Att'y Gen. Fla. 77-48
(1977). Thus, employee grievance records are
disclosable even though classified as confidential in a collective bargaining
contract because "to allow the elimination of public records from the
mandate of Chapter 119 by private contract would sound the death knell of the
Act."
Section
447.605(3), Florida Statutes, provides an exemption for "work products
developed by the public employer in preparation for negotiations, and during
negotiations." The exemption is limited and does not
remove budgetary or fiscal information from the purview of Chapter 119, Florida
Statutes. See, Bay County School Board v. Public Employees Relations Commission, 382 So. 2d 747, 749 (Fla.
1st DCA 1980), noting that "[r]ecords which are prepared for other
purposes do not, as a result of being used in negotiations, come within the
exemption of section 447.605(3)."
D. TO WHAT EXTENT MAY AN AGENCY REGULATE OR
LIMIT INSPECTION AND COPYING OF PUBLIC RECORDS?
1. May an agency impose its own restrictions
on access to or copying of public records?
Any
local enactment or policy which purports to dictate additional conditions or
restrictions on access to public records is of dubious validity since the
legislative scheme of the Public Records Act has preempted any local regulation
of this subject. See, Tribune Company v.
Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte
v. Tribune Company, 105 S.Ct. 2315, (1985).
2. What agency employees are responsible
for responding to public records requests?
Section
119.021, Florida Statutes, provides that the elected or appointed state,
county, or municipal officer charged with the responsibility of maintaining the
office having public records, or his or her designee, shall be the custodian of
the public records. However, this
statute does not alter the "duty of disclosure" imposed by section
119.07(1), Florida Statutes, upon
"[e]very person who has custody
of a public record." Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996). [Emphasis supplied by the court].
Thus,
the term "custodian" for purposes of the Public Records Act refers to
all agency personnel who have it within their power to release or communicate
public records. Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th
DCA 1998), citing to, Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991). But, "the mere fact that an employee of
a public agency temporarily possesses a document does not necessarily mean that
the person has custody as defined by section 119.07." Mintus,
supra, at 1361.
3. What individuals are authorized to
inspect and receive copies of public records?
Section
119.01, Florida Statutes, provides that "[i]t is the policy of this state
that all state, county, and municipal records shall be open for personal
inspection by any person." (e.s.) See,
Curry v. State, 811 So. 2d 736 (Fla. 4th DCA 2002) (defendant's conduct in making over 40 public records requests
concerning victim constituted a "legitimate purpose" within the
meaning of the aggravated stalking law "because the right to obtain the
records is established by statute and acknowledged in the state
constitution").
4. Must an individual show a "special
interest" or "legitimate interest" in public records before
being allowed to inspect or copy same?
No. Chapter 119, Florida Statutes, requires no
showing of purpose or "special interest" as a condition of access to
public records. See, State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905) (abstract companies
may copy documents from the clerk's office for their own use and sell copies to
the public for a profit); Booksmart
Enterprises, Inc. v. Barnes & Noble College Bookstores, Inc., 718 So.
2d 227, 228 at n.2
(Fla. 3d DCA 1998), review denied,
729 So. 2d 389 (Fla. 1999) ("Booksmart's
reason for wanting to view and copy the documents is irrelevant to the issue of
whether the documents are public records").
Note, however, that section 817.568,
Florida Statutes, provides criminal penalties for unauthorized use of personal
identification information for fraudulent or harassment purposes. And
see, section 817.569, Florida Statutes, providing penalties for criminal use of a public record or
public records information.
5. May an agency refuse to allow
inspection or copying of public records on the grounds that the request for
such records is "overbroad" or lacks particularity?
No. The custodian is not authorized to deny a
request to inspect and/or copy public records because of a lack of specifics in
the request. See, Lorei v. Smith, 464
So. 2d 1330, 1332 (Fla. 2d DCA 1985), review
denied, 475 So. 2d 695 (Fla. 1985), recognizing that the
"breadth of such right [to inspect] is virtually unfettered, save for the
statutory exemptions . . . ."
6. When
must an agency respond to a public records request?
The
Public Records Act does not contain a specific time limit (such as 24 hours or
10 days) for compliance with public records requests. The Florida Supreme Court has stated that the
only delay in producing records permitted under Chapter 119, Florida Statutes,
is the reasonable time allowed the custodian to retrieve the record and delete
those portions of the record the custodian asserts are exempt. Tribune
Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., Deperte
v. Tribune Company, 105 S.Ct. 2315 (1985).
A
municipal policy which provides for an automatic delay in the production of
public records is impermissible. Tribune Company v. Cannella, 458 So. 2d
1075 (Fla. 1984), appeal
dismissed sub nom., Deperte v.
Tribune Company, 105 S.Ct. 2315 (1985).
Thus, an agency is not authorized to delay inspection of personnel
records in order to allow the employee to be present during the inspection of
his records. Tribune Company v. Cannella, supra.
Similarly, this office has advised that a board of trustees of a police pension
fund may not delay release of its records until such time as the request is
submitted to the board for a vote. Op. Att'y Gen. Fla. 96-55
(1996).
An
agency's unreasonable and excessive delays in producing public records can
constitute an unlawful refusal to provide access to public records. Town of Manalapan v. Rechler, 674 So. 2d 789 (Fla. 4th DCA 1996), review
denied, 684 So. 2d 1353 (Fla. 1996). See also, State v. Webb, 786 So. 2d 602, 604 (Fla.
1st DCA 2001), in which the court held that it was error for a lower court
judge to vacate a misdemeanor conviction of a records custodian who had been
found guilty of willfully violating section 119.07 (1) (a), Florida Statutes,
based on her "dilatory" response to public records requests filed by
a citizen.
An
agency is not authorized to establish an arbitrary time period during which
records may or may not be inspected. Op. Att'y Gen. Fla. 81-12 (1981).
7. May an agency require that a request to
examine or copy public records be made in writing or require that the requestor
furnish background information to the custodian?
No. Nothing in Chapter 119, Florida Statutes, requires that a requesting party make a demand for
public records in person or in writing. See,
Dade Aviation Consultants v. Knight
Ridder, Inc., 800 So. 2d 302 (Fla. 3d DCA 2001)
("There is no requirement in the Public Records Act that requests for
records must be in writing"). If a public agency believes
that it is necessary to provide written documentation of a request for public
records, the agency may require that the custodian
complete an appropriate form or document; however, the person requesting the
records cannot be required to provide such documentation as a precondition to
the granting of the request to inspect or copy public records. See,
Sullivan v. City of New Port Richey,
No. 86-1129CA (Fla. 6th Cir. Ct. May 22, 1987), affirmed, 529 So. 2d 1124 (Fla. 2d DCA 1988), noting that a
demandant's failure to complete a city form required for access to documents
did not authorize the custodian to refuse to honor the request to inspect or
copy public records.
8. Is an agency required to give out
information from public records or to otherwise produce records in a particular
form as demanded by the requestor?
A
custodian is not required to give out information
from the records of his office. Op. Att'y Gen. Fla. 80-57
(1980). The Public Records Act does not require a town
to produce an employee, such as the financial officer, to answer questions
regarding the financial records of the town.
Op. Att'y Gen. Fla. 92-38
(1992). Nor is the clerk of court required to provide
an inmate with a list of documents from a case file which may be responsive to
some forthcoming request. Wootton v. Cook, 590 So. 2d 1039 (Fla. 1st DCA 1991).
9. May an agency refuse to comply with a
request to inspect or copy the agency's public records on the grounds that the
records are not in the physical possession of the custodian?
No.
An agency is not authorized to refuse to allow inspection of public records on
the grounds that the documents have been placed in the actual possession of an
agency or official other than the records custodian. See,
Tober v. Sanchez, 417 So. 2d 1053
(Fla. 3d DCA 1982), review denied sub
nom., Metropolitan Dade County
Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (official charged with
maintenance of records may not transfer actual physical custody of records to
county attorney and thereby avoid compliance with request for inspection under
Chapter 119, Florida Statutes).
10. May an agency refuse to allow access to
public records on the grounds that the records are also maintained by another
agency?
No. The fact that a particular record is also
maintained by another agency does not relieve the custodian of the obligation
to permit inspection and copying in the absence of an applicable statutory
exemption. Op. Att'y Gen. Fla. 86-69
(1986).
11. In the absence
of express legislative authorization, may an agency refuse to allow public
records made or received in the normal course of business to be inspected or
copied if requested to do so by the maker or sender of the document?
No. To allow the maker or sender of documents to
dictate the circumstances under which the documents are to be deemed
confidential would permit private parties as opposed to the Legislature to
determine which public records are subject to disclosure and which are not. Such a result would contravene the purpose
and terms of Chapter 119, Florida Statutes.
See, Browning v. Walton, 351 So. 2d
380 (Fla. 4th DCA 1977) (a city cannot refuse to allow inspection of records
containing the names and addresses of city employees who have filled out forms
requesting that the city maintain the confidentiality of all material in their
personnel files). Cf., Hill v. Prudential Ins. Co.
of America, 701 So. 2d 1218 (Fla. 1st
DCA 1997), review denied, 717 So. 2d
536 (Fla. 1998) (materials obtained by
state agency from anonymous sources during the course of its investigation of
an insurance company were public records and subject to disclosure in the
absence of statutory exemption, notwithstanding the company's contention that
the records were "stolen" or "misappropriated" privileged
documents that were delivered to the state without the company's permission).
Similarly,
it has been held that an agency "cannot bargain away its Public Records
Act duties with promises of confidentiality in settlement
agreements." The Tribune Company v. Hardee Memorial Hospital, No. CA-91-370 (Fla. 10th Cir.
Ct. Aug. 19, 1991), stating that a confidentiality
provision in a settlement agreement which resolved litigation against a public
hospital did not remove the document from the Public Records Act. Cf.,
section 69.081(8), Florida Statutes, part of the "Sunshine in Litigation
Act," providing, subject to certain exceptions, that any portion of an
agreement which conceals information relating to the settlement or resolution
of any claim or action against an agency is void, contrary to public policy,
and may not be enforced, and requiring that settlement records be maintained in
compliance with Chapter 119, Florida Statutes.
12. Must an agency state the basis for its
refusal to release an exempt record?
Yes. Section 119.07(2)(a),
Florida Statutes, states that a custodian of a public record who contends that
a record or part of a record is exempt from inspection must state the basis for
the exemption, including the statutory citation to the exemption. Additionally, upon request, the custodian
must state in writing and with particularity the reasons for the conclusion
that the record is exempt from inspection.
Id. See, Weeks v. Golden, 764
So. 2d 633 (Fla. 1st DCA 2000)(agency's response that it had provided all records
"with the exception of certain information relating to the victim"
deemed inadequate because the response "failed to identify with
specificity either the reasons why the
records were believed to be exempt, or the statutory basis for any
exemption"). Cf., City of St. Petersburg v. Romine, 719 So. 2d 19, 21 (Fla. 2d
DCA 1998), noting that the Public Records Act "may not be used in such a
way as to obtain information that the Legislature has declared must be exempt
from disclosure."
13. May an agency refuse to allow inspection
and copying of an entire public record on the grounds that a portion of the
record contains information which is exempt from disclosure?
No. Where a public record contains some
information which is exempt from disclosure, section 119.07(2)(a),
Florida Statutes, requires the custodian of that document to delete or excise
only that portion or portions of the record for which an exemption is asserted
and to provide the remainder of the record for examination. See,
Ocala Star Banner Corp. v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA 1994) (city may
redact confidential identifying information from police report but must produce
the rest for inspection). The fact that
an agency believes that it would be impractical or burdensome to redact
confidential information from its records does not excuse noncompliance with
the mandates of the Public Records Act. Op. Att'y Gen. Fla. 99-52
(1999). Cf. Weeks v. Golden, 798 So. 2d 848 (Fla. 1st DCA 2001) (statute providing confidentiality for
photographs which reveal the identity of
a sexual offense victim does not authorize the state attorney to withhold all
photographs of the victim; "[i]f
the legislature had intended to exempt all
photographs of victims of sexual offenses, it could have easily said so in
section 119.07[3][f]").
14. May an agency refuse to allow inspection
of public records because the agency believes disclosure could violate privacy
rights?
It
is well established in Florida that "neither a
custodian of records nor a person who is the subject of a record can claim a
constitutional right of privacy as a bar to requested inspection of a public
record which is in the hands of a government agency." Williams
v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991).
15. What is the liability of a custodian for
release of public records?
It
has been held that there is nothing in Chapter 119, Florida Statutes,
indicating an intent to give private citizens a right
to recovery for negligently maintaining and providing information from public
records. Friedberg v. Town of Longboat Key, 504 So. 2d
52 (Fla. 2d DCA 1987).
However,
a custodian is not protected against tort liability resulting from that person intentionally communicating public
records or their contents to someone outside the agency which is responsible
for the records unless the person inspecting the records has made a bona fide
request to inspect the records or the communication is necessary to the
agency's transaction of its official business.
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991).
E. WHAT IS
THE LEGAL EFFECT OF STATUTORY EXEMPTIONS FROM DISCLOSURE?
1. Creation
of exemptions
"Courts
cannot judicially create any exceptions, or exclusions to Florida's Public Records
Act." Board of County Commissioners of Palm Beach County v. D.B., 784 So. 2d 585, 591 (Fla. 4th DCA
2001). Accord, Wait v. Florida Power and
Light Company,
372 So. 2d 420, 425 (Fla. 1979) (Public Records Act
"excludes any judicially created privilege of confidentiality;" only
the Legislature may exempt records from public disclosure).
Article
I, section 24(c), Florida Constitution, authorizes the Legislature to enact general laws creating exemptions provided that
such laws "shall state with specificity the public necessity justifying
the exemption and shall be no broader than necessary to accomplish the stated
purpose of the law." See, Memorial Hospital-West Volusia v.
News-Journal Corporation, 729 So. 2d 373, 380 (Fla. 1999), in which the
Court refused to "imply" an exemption from open records requirements,
stating "we believe that an exemption from public records access is
available only after the legislature has followed the express procedure
provided in Article I, section 24(c) of the Florida Constitution."
2. Exemptions are strictly construed
The
Public Records Act is to be liberally construed in favor of open government,
and exemptions from disclosure are to be narrowly construed so they are limited
to their stated purpose. Krischer v. D'Amato, 674 So. 2d 909 (Fla. 4th DCA 1996); Seminole County v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988). And
see, Halifax Hospital Medical Center v. News-Journal Corporation, 724 So. 2d 567 (Fla. 1999) (1995 exemption to the Sunshine Law
for certain hospital board meetings ruled unconstitutional because it did not
meet the constitutional standard for exemptions set forth in article I, section
24[b] and [c], Florida Constitution).
An
agency claiming an exemption from disclosure bears the burden of proving the
right to an exemption. See, Florida Freedom
Newspapers, Inc. v. Dempsey, 478 So. 2d 1128 (Fla. 1st DCA 1985).
Access to public records is a substantive
right. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation,
784 So. 2d 438 (Fla. 2001). Thus, a statute affecting that right is
presumptively prospective and there must be a clear legislative intent for the
statute to apply retroactively. Id.
3. Release or transfer of confidential or
exempt records
It
is important to note that there is a difference between those records the
Legislature has determined to be exempt from the mandatory public inspection
requirements of section 119.07(1), Florida Statutes, and those which are exempt
and confidential. If the
Legislature makes certain information confidential, with no provision for its
release such that its confidential status will be
maintained, such information may not be released to anyone other than to the
persons or entities designated in the statute.
See, Op. Att'y Gen. Fla. 89-12
(1989) (Department of Business and
Professional Regulation prohibited from releasing patient records or
information identifying a patient by name to law enforcement agency or other
regulatory agency).
On
the other hand, if the records are not made confidential but are simply exempt
from the mandatory disclosure requirements in section 119.07(1), Florida
Statutes, the agency is not prohibited from disclosing the documents in all
circumstances. See, Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla.
1991), in which the court observed that pursuant to section 119.07(3)(d),
Florida Statutes, [now section 119.07(3)(b), Florida Statutes] "active
criminal investigative information" was exempt from the requirement that
public records be made available for public inspection. However, as stated by the court, "the
exemption does not prohibit the
showing of such information." 575
So. 2d at 686.
In City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995), the court stated
that when a criminal justice agency transfers exempt information to another
criminal justice agency, the information retains its exempt status. And see,
Ragsdale v. State, 720 So. 2d 203, 206 (Fla. 1998) ("the focus in determining whether a document has lost its
status as a public record must be on the policy behind the exemption and not on
the simple fact that the information has changed agency hands").
F. TO WHAT EXTENT DOES FEDERAL LAW PREEMPT
STATE LAW REGARDING PUBLIC INSPECTION OF RECORDS?
The
general rule is that records which would otherwise be public under state law
are unavailable for public inspection only when there is an absolute conflict
between federal and state law relating to confidentiality of records. If a federal statute requires particular
records to be closed and the state is clearly subject to the provisions of such
statute, then pursuant to the Supremacy Clause of the United States
Constitution, Article VI, section 2, United States Constitution, the state must
keep the records confidential. State ex rel. Cummer v. Pace,
159 So. 679 (Fla. 1935);
Ops. Att'y Gen. Fla. 90-102
(1990), 85-3 (1985), 81-101 (1981), 80-31 (1980), 74-372 (1974), and 73-278
(1973).
In
a more recent decision, an appellate court ruled that tenant records of a
public housing authority are not exempt, by reason of the Federal Privacy Act,
from disclosure otherwise required by the Florida Public Records Act. Housing Authority of the City of Daytona Beach v. Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994). And
see, Wallace v. Guzman, 687 So. 2d 1531 (Fla.
3d DCA 1997) (exemptions from
disclosure in Federal Freedom of Information Act apply to documents in the
custody of federal agencies; the Act is not applicable to state agencies).
G. WHAT FEES MAY LAWFULLY BE IMPOSED FOR
INSPECTING AND COPYING PUBLIC RECORDS
1. When may an agency charge a fee for the
mere inspection of public records?
As noted in Op. Att'y Gen. Fla. 85-03 (1985), providing
access to public records is a statutory duty imposed by the Legislature upon
all record custodians and should not be considered a profit-making or
revenue-generating operation. Thus,
public information must be open for inspection without charge unless otherwise
expressly provided by law. See, State
ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905).
Section
119.07(1)(b), Florida Statutes, authorizes the
imposition of a special service charge when the nature or volume of public
records to be inspected is such as to require extensive use of information
technology resources, or extensive clerical or supervisory assistance, or
both. The charge must be reasonable and
based on the labor or computer costs actually incurred by the agency. Thus, an agency may adopt a policy imposing a
reasonable special service charge based on the actual labor cost (base hourly
salary) for personnel who are required, due to the nature or volume of a public
records request, to safeguard such records from loss or destruction during
their inspection. Op.
Att'y Gen. Fla. 00-11
(2000). In doing so, however, the county's policy
should reflect no more than the actual cost of the personnel's time and be
sensitive to accommodating the request in such a way as to ensure unfettered
access while safeguarding the records. Id.
2. Is an agency required to provide copies
of public records if asked, or may the agency allow inspection only?
Section 119.07(1), Florida Statutes, provides
that the custodian shall furnish a copy or a certified copy of a public record
upon payment of the fee prescribed by law.
See, Fuller v. State ex rel. O'Donnell, 17 So. 2d 607 (Fla. 1944) ("The
best-reasoned authority in this country holds that the right to inspect public
records carries with it the right to make copies.")
3. What fees my be
charged for copies?
Chapter 119 does not prohibit agencies from
providing informational copies of public records without charge. Op. Att'y Gen. Fla. 90-81
(1990). An agency may, however, charge a fee for
copies provided that the amount of the fee does not exceed that authorized by
Chapter 119, Florida Statutes, or established elsewhere in the statutes for a
particular record. See, Roesch v. State, 633 So. 2d 1, 3 (Fla. 1993) (indigent inmate
not entitled to receive copies of public records free of charge nor to have
original state attorney files mailed to him in prison; prisoners are "in
the same position as anyone else seeking public records who cannot pay"
the required costs).
If
no fee is prescribed elsewhere in the statutes, section 119.07(1)(a), Florida
Statutes, authorizes the custodian to
charge a fee of up to 15 cents per one-sided copy for copies that are 14 inches
by 8 ½ inches or less. An agency may
charge no more than an additional 5 cents for each two-sided duplicated copy. A charge of up to $1.00 per copy may be
assessed for a certified copy of a public record.
For
other copies, the charge is limited to the actual cost of duplication of the
record. Section 119.07(1)(a), Florida Statutes. The phrase "actual cost of
duplication" is defined to mean "the cost of the material and
supplies used to duplicate the record, but it does not include the labor cost
and overhead cost associated with such duplication." Id. An
exception, however, exists for copies of county maps or aerial photographs
supplied by county constitutional officers which may include a reasonable
charge for the labor and overhead associated with their duplication. Id. And see, the discussion on the special
service charge.
4. May an agency charge for travel costs,
search fees, development costs and other incidental costs?
With the exception of county maps or aerial
photographs supplied by county constitutional officers, section 119.07(1)(a), Florida Statutes, does not authorize the addition of
overhead costs such as utilities or other office expenses to the charge for
public records. Op.
Att'y Gen. Fla. 99-41
(1999). Thus, an agency may not charge for travel
time and retrieval costs for public records stored off-premises. Op. Att'y Gen. Fla. 90-07
(1990). And see, Op. Att'y Gen. Fla. 02-37 (2002) (although an agency may contract
with a private company to provide information also obtainable through the
agency, it may not abdicate its duty to provide such records for inspection and
copying by requiring those seeking public records to do so only through its
designee and then paying whatever fee that company may establish for its
services.)
Similarly,
an agency may not charge fees designed to recoup the original cost of
developing or producing the records. Op.
Att'y Gen. Fla. 88-23 (1988) (state attorney not authorized to impose a charge
to recover part of costs incurred in production of a training program; the fee
to obtain a copy of the videotape of such program is limited to the actual cost
of duplication of the tape). And see, State, Department of Health
and Rehabilitative Services v. Southpointe Pharmacy, 636 So.
2d 1377, 1382 (Fla. 1st DCA 1994) (once a transcript of an administrative
hearing is filed with the agency, the transcript becomes a public record
regardless of who ordered the transcript or paid for the transcription; the
agency can charge neither the parties nor the public a fee that exceeds the
charges authorized in section 119.07[1], Florida Statutes).
5. When may an agency charge a special
service charge for extensive use of clerical or supervisory labor or extensive
information technology resources?
Section 119.07(1)(b),
Florida Statutes, states that if the nature or volume of public records to be
inspected or copied requires the extensive use of information technology
resources or extensive clerical or supervisory assistance, or both, the agency
may charge a reasonable service charge based on the cost actually incurred by
the agency for such extensive use of information technology resources or
personnel. Cf., Cone & Graham, Inc. v. State, No. 97-4047 (Fla. 2d Cir. Ct.
October 7, 1997) (an agency's decision to "archive" older e-mail
messages on tapes so that they could not be retrieved or printed without a
systems programmer was analogous to an agency's decision to store records
off-premises in that the agency rather than the requestor must bear the costs
for retrieving the records and reviewing them for exemptions).
Moreover,
the statute mandates that the special service charge be
"reasonable." See, Carden v. Chief of Police, 696 So.
2d 772, 773 (Fla. 2d DCA 1996), stating that an "excessive charge"
under section 119.07(1)(b), Florida Statutes,
"could well serve to inhibit the pursuit of rights conferred by the Public
Records Act."
Section
119.07(1)(b), Florida Statutes, does not contain a
definition of the term "extensive."
In 1991, a divided First District Court of Appeal upheld a hearing
officer's order rejecting an inmate challenge to a Department of Corrections
(DOC) rule that defined "extensive" for purposes of the special
service charge. Florida Institutional
Legal Services, Inc. v. Florida Department of Corrections, 579 So. 2d 267 (Fla. 1st DCA), review denied, 592 So. 2d 680 (Fla. 1991). The agency rule defined "extensive"
to mean that it would take more than 15 minutes to locate, review for
confidential information, copy and refile the requested material. Judge Zehmer dissented, saying that the rule
was inconsistent with legislative intent and exceeded the agency's delegated
authority under section 119.07 (1)(b), Florida
Statutes.
In
light of the lack of clear direction in the statute as to the meaning of the
term "extensive" and the possible limited application of the Institutional Legal Services case, it
may be prudent for agencies to define "extensive" in a manner that is
consistent with the purpose and intent of the Public Records Act and that does
not constitute an unreasonable infringement upon the public's statutory and
constitutional right of access to public records.
An
agency is not ordinarily authorized to charge for the cost to review records
for statutorily exempt material. Op. Att'y Gen. Fla. 84-81
(1984). However, the special service charge may be
imposed for this work if the volume of records and the number of potential
exemptions make review and redaction of the records a time-consuming task.
See, Florida Institutional
Legal Services v. Florida Department of Corrections, 579 So. 2d
at 269. And see, Herskovitz v. Leon
County, No. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), noting that "it
would not be unreasonable in these types of cases [involving many documents and
several different exemptions] to charge a reasonable special fee for the
supervisory personnel necessary to properly review the materials for possible
application of exemptions."
In State v. Gudinas, No.
CR 94-7132 (Fla. 9th Cir. Ct. June 1, 1999), the court approved an agency's
charge for providing copies in response to a large public records request based
on the clerk's base rate of pay, excluding benefits. The court also concluded that an agency could
charge only a clerical rate for the time spent making copies, even if due to
staff shortages, a more highly paid person actually did the work.
H. WHAT ARE THE OPTIONS IF AN AGENCY
REFUSES TO PRODUCE PUBLIC RECORDS FOR INSPECTION AND COPYING?
1. Mediation
Several
years ago, Attorney General Butterworth established an informal voluntary
mediation program within the Office of the Attorney General to resolve open
government disputes. In 1995, this
program was codified in section 16.60, Florida Statutes. For more information about the voluntary
mediation program, please contact the Office of the Attorney General at the
following address: Office of the
Attorney General, PL01, The Capitol, Tallahassee, Florida, 32399-1050; telephone (850) 245-0157.
2. Civil action
a. Remedies
Any
person denied the right of inspection and/or copying under Chapter 119, Florida
Statutes, may institute a civil action in circuit court against an agency which
has violated the provisions of Chapter 119, Florida Statutes, in order to
compel compliance with that law. Pursuant to section 119.11(1), Florida
Statutes, such actions, when filed, are entitled to an immediate hearing and
take priority over other pending cases.
Generally,
mandamus is the appropriate remedy to enforce compliance with the public
records act. Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA), review dismissed, 605 So. 2d 1266 (Fla. 1992). However, it has been held that mandamus is
not appropriate when the language of an exemption statute requires an exercise
of discretion. See, Shea v. Cochran, 680
So. 2d 628 (Fla. 4th DCA 1996) (mandamus was an inappropriate remedy where
sheriff provided a specific reason for refusing to comply with a public records
request by claiming the records were part of an active criminal investigation).
Mandamus
is a "one time order by the court to force public officials to perform
their legally designated employment duties." Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996). Thus, a trial court erred when it retained
continuing jurisdiction to oversee enforcement of a writ of mandamus granted in
a public records case. Id. However, it
has been recognized that injunctive relief may be available upon an appropriate
showing for a violation of Chapter 119, Florida Statutes. See,
Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989).
b. Procedural
issues
(1) In camera inspection
Section
119.07(2)(b), Florida Statutes, provides that in any case in which an exemption
to the public inspection requirements in section 119.07(1), Florida Statutes,
is alleged to exist pursuant to paragraphs (c), (d), (e), (k), (l), or (o) of
section 119.07(3), Florida Statutes, the public record or part of the record in
question shall be submitted to the trial court for an in camera examination.
Section 119.07(2)(b),
Florida Statutes, provides that if an exemption is alleged under paragraph (b)
of section 119.07(3), Florida Statutes (the exemption for active criminal
investigation or intelligence information), an inspection is discretionary with
court. However, in Tribune Company v. Public Records, 493 So. 2d 484 (Fla. 2d DCA
1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d
327 (Fla. 1987), the court stated that notwithstanding the
trial court's discretion to provide an in
camera examination if a section 119.07(3)(b),
Florida Statutes, exemption is asserted, it is always the better practice to
conduct such an inspection in cases where an exception to the Public Records
Act is in dispute. According to the
court, inspection lends credence to the decision of the trial court, helps
dispel public suspicion, and provides a much better basis for appellate review.
Similarly, in Woolling v. Lamar, 764 So. 2d 765, 768-769 (Fla. 5th DCA 2000), review denied, 786 So. 2d 1186 (Fla.
2001), the Fifth District concluded that because the state attorney presented
"no evidence to meet its burden that the records are exempt" under
section 119.07(3)(b), Florida Statutes, an "in
camera inspection by the lower court is therefore required so that the trial
judge will have a factual basis to decide if the records are exempt under [that
statute]." And see, Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000), in which the
First District said: "We fail to see how the trial court can [determine
whether an agency is entitled to a claimed exemption] without examining the
records."
(2)
Mootness
In Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), the court noted that "[p]roduction of the records after the
[public records] lawsuit was filed did not moot the issues raised in the
complaint." The court remanded the
case for an evidentiary hearing on the issue of whether, under the facts of the
case, there was an unlawful refusal of access to public records. See also, Mazer v. Orange County, Florida, 811 So.
2d 857 (Fla. 5th DCA 2002) ("the fact that the
requested documents were produced in the instant case after the action was
commenced, but prior to final adjudication of the issue by the trial court, does
not render the case moot or preclude consideration of [the petitioner's]
entitlement to fees under the statute"). Compare, Jacksonville Television,
Inc. v. Shorstein, 608 So. 2d 592 (Fla. 1st DCA 1992) (where public records lawsuit was
determined to be moot because records were delivered to television station
prior to entry of writ of mandamus, appellate court would not issue an
"advisory opinion" as to whether trial court's voluntary conclusion
that agency acted properly by initially withholding the records was correct).
(3) Stay
If
the person seeking public records prevails in the trial court, the public
agency must comply with the court's judgment within 48 hours unless otherwise
provided by the trial court or such determination is stayed within that period
by the appellate court. Section 119.11(2), Florida Statutes. An automatic stay shall exist for 48 hours
after the filing of the notice of appeal for public records and public meeting
cases. Rule 9.310(b)(2),
Florida Rules of Appellate Procedure.
(4) Attorney's
fees
Section
119.12(1), Florida Statutes, provides that if a civil action is filed against
an agency to enforce the provisions of this chapter and the court determines
that the agency unlawfully refused to permit a public record to be inspected,
examined, or copied, the court shall assess and award against the agency
responsible the reasonable costs of enforcement including reasonable attorney's
fees. See, Florida Department of
Law Enforcement v. Ortega, 508 So. 2d 493 (Fla. 3d DCA
1987).
Attorney's
fees are recoverable even where access is denied on a good faith but mistaken
belief that the documents are exempt from disclosure. News and Sun-Sentinel Company v. Palm Beach County, 517 So. 2d 743
(Fla. 4th DCA 1987); Times Publishing
Company v. City of St. Petersburg, 558 So. 2d 487
(Fla. 2d DCA 1990). And see, Weeks v. Golden, 798 So. 2d 848 (Fla. 1st DCA 2001)(where prison inmate made public records
request and state attorney offered no reason for failing to respond to request,
trial judge erred in refusing to award costs to inmate).
Attorney's
fees may also be awarded for a successful appeal of a denial of access. Downs v. Austin, 559 So. 2d
246 (Fla. 1st DCA 1990). However,
in order to obtain appellate fees, a motion must be filed in the appellate
court. Id.
c. Criminal
penalties
In
addition to judicial remedies, section 119.02, Florida Statutes, provides that
a public officer who knowingly violates the provisions of section 119.07(1),
Florida Statutes, is subject to suspension and removal or impeachment and is
guilty of a misdemeanor of the first degree, punishable by possible criminal
penalties of one year in prison, or $1,000 fine, or both. See,
State v. Webb, 786 So. 2d 602 (Fla. 1st DCA
2001).
Section 119.10, Florida Statutes, provides
that a violation of any provision of Chapter 119, Florida Statutes, by a public
official is a noncriminal infraction, punishable by fine not exceeding
$500. A state attorney may prosecute
suits charging public officials with violations of the Public Records Act,
including those violations which may result in a finding of guilt for a
noncriminal infraction. Op. Att'y Gen. Fla. 91-38
(1991).
I. HOW LONG
MUST AN AGENCY RETAIN A PUBLIC RECORD?
1. Delivery of records to successor
Section
119.05, Florida Statutes, provides that whoever has custody of public records
shall deliver such records to his successor at the expiration of his term of
office or, if there is no successor, to the records and information management
program of the Division of Library and Information Services of the Department
of State. See, Maxwell v. Pine Gas
Corporation, 195 So. 2d 602 (Fla. 4th DCA 1967) (state, county, and
municipal records are not the personal property of a public officer); Op. Att'y
Gen. Fla. 75-282 (1975) (all public records regardless of usefulness or
relevancy must be turned over to the custodian's successor in office or to the
appropriate division in the Department of State; documents statutorily exempt
from public inspection are also included within the records which must be
delivered).
2. Retention and disposal of records
Pursuant
to section 257.36(6), Florida Statutes, "[a] public record may be
destroyed or otherwise disposed of only in accordance with retention schedules
established by the [Division of Library and Information Services of the
Department of State]."
This
statutory mandate applies to exempt records as well as those subject to public
inspection. See, Ops. Att'y Gen. Fla. 94-75
(1994), 87-48 (1987) and 81-12 (1981).
Questions regarding record destruction schedules should be referred to
the Department of State, Bureau of Archives and Records Management at
(850)487-2180.
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