OPEN GOVERNMENT OVERVIEW: Patricia R. Gleason Special Counsel for Open Government Attorney General Ashley Moody

SUNSHINE LAW Florida’s Government in the Sunshine Law provides a right of access to governmental proceedings at both the state and local levels. In the absence of statutory exemption, it applies to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action.

Scope of the Sunshine Law Board members may not engage in private discussions with each other about board business, either in person or by telephoning, emailing, texting or any other type of electronic communication (i.e. Facebook, blogs).

Scope of the Sunshine Law While an individual board member is not prohibited from discussing board business with staff or a onboard member, these individuals may not be used as a liaison to communicate information between board members. For example, a board member cannot ask staff to poll the other board members to determine their views on a board issue.

Scope of the Sunshine Law There are three basic requirements: 1) Meetings of public boards or commissions must be open to the public 2) Reasonable notice of such meetings must be provided; and 3) Minutes of the meetings must be prepared and open to public inspection.

Scope of the Sunshine Law The Sunshine Law applies to advisory boards created pursuant to law or ordinance or otherwise established by public agencies or officials.

Scope of the Sunshine Law Staff meetings are not normally subject to the Sunshine Law. However, staff committees may be subject to the Sunshine Law if they are deemed to be part of the “decision making process” as opposed to traditional staff functions like factfinding or information gathering.

Scope of the Sunshine Law Only the Legislature may create an exemption from the Sunshine Law (by a two-thirds vote). Exemptions are strictly construed. An exemption from the Public Records Law does not allow a board to close a meeting. Instead, a specific exemption from the Sunshine Law is required.

Board meetings While boards may adopt reasonable rules and policies to ensure orderly conduct of meetings, the Sunshine law does not allow boards to ban nondisruptive videotaping, tape recording, or photography at public meetings.

Board meetings Section 286.0114, F.S., provides, subject to listed exceptions, that boards must allow an opportunity for the public to be heard before the board takes official action on a proposition. The statute does not prohibit boards from “maintaining orderly conduct or proper decorum in a public meeting.”

Penalties Civil action Criminal penalties Suspension or removal from office

Review Questions 1. Two members of the county commission are talking to each other at a football game. A reporter is with the commissioners and able to hear the entire conversation. The commissioners: A. Have not violated the Sunshine Law because even if they were discussing county business, the meeting was public because a newspaper reporter was present. B. Have violated the Sunshine Law if they were talking about matters that foreseeably could come before the commission for action or discussion. C. Have violated the Sunshine Law if they were talking about commission matters that have been placed on the agenda for a vote. D. Both B and C are correct.

Review Questions 2. A county commissioner from County A, county commissioner from County B, Tax Collector from County A and County B, and a city commissioner want to meet to discuss proposed legislation that could affect all these entities. Which statement is correct? A. The meeting should be open to the public because the county commissioners and the city commissioner are subject to the Sunshine Law. B. The meeting is not subject to the Sunshine Law. C. The meeting is subject to the Sunshine Law because all of these officials are elected to office. D. The meeting is subject to the Sunshine Law because the legislation could relate to the duties of these entities.

Review Questions 3. Two county commissioners would like to meet at a restaurant with the Tax Collector to discuss possible improvements to the courthouse where the Tax Collector offices are located. Although there is no pending agenda item relating to these improvements, the commissioners have addressed this issue at past meetings and would like to seek input from the Tax Collector before proceeding further. Which statement is correct? A. The Sunshine Law does not apply to the meeting because it is an informal discussion between two commissioners, as evidenced by the fact that it is being held at a restaurant rather than the commission chambers. B. The Sunshine Law applies to the meeting and therefore, the commissioners should provide public notice of the meeting, allow the public to attend, and keep minutes. C. Because the Sunshine Law applies, the commissioners should not hold the meeting at the restaurant and instead should have the discussion at an open noticed meeting of the commission held at the commission chambers. D. The Sunshine Law does not apply because only two commissioners will be there and the issues are not scheduled for a vote.

PUBLIC RECORDS LAW Florida’s Public Records Act, Chapter 119, Florida Statutes, provides a right of access to records of state and local governments as well as to private entities acting on their behalf. If material falls within the definition of “public record” it must be disclosed to the public unless there is a statutory exemption.

The term “public records” means: All “documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material, regardless of the physical form, characteristics, or means of transmission” (includes electronic communications like text messages, emails, Facebook posts). Made or received pursuant to law or ordinance or in connection with the transaction of official business By any agency [including a private entity acting ‘on behalf of’ a public agency] Which are used to perpetuate, communicate, or formalize knowledge.

Providing Public Records Public records cannot be withheld at the request of the sender A requestor is not required to show a “legitimate” or “noncommercial interest” as a condition of access A request cannot be denied because it is “overbroad” Unless authorized by another statute, an agency may not require that public records requests be in writing or require the requestor to identify himself or herself

Providing Public Records The Public Records Act does not contain a specific time limit (such as 24 hours or 10 days). The Florida Supreme Court has stated that the only delay in producing records permitted under the statute is the reasonable time allowed the custodian to retrieve the record and redact those portions of the record the custodian asserts are exempt.

Statutory Exemptions Difference between exempt and confidential records AGO 17-05 (release of exempt home address information to code enforcement board) Section 197.3225(1), F.S. (tax payer email addresses obtained for sending notices are exempt) Section 119.071(5)(a), F.S.(social security numbers are confidential; may only be released as provided in statute)

Fees Chapter 119 authorizes the custodian to charge a fee of up to 15 cents per one-sided copy for copies that are 14 inches by 81/2 inches or less. An additional 5 cents may be charged for two- sided copies. For other copies, the charge is the actual cost of duplication of the record. Actual cost of duplication means the cost of the material and supplies used to duplicate the record but does not include labor or overhead cost.

Fees In addition to the actual cost of duplication, an agency may impose a reasonable service charge for the actual cost of extensive labor and information technology required due to the large volume of a request.

Retention All public records must be retained in accordance with retention schedules approved by the Department of State Even exempt records must be retained.

Penalties for noncompliance Criminal penalties Civil action Attorney’s fees

Review Questions 1. A city manager is rewriting the city public records policy and has asked for suggestions for improving the current policy. Which suggestion is consistent with the public records law: A. In order to ensure the most efficient utilization of staff, the agency should establish a specific two hour period during the day, such as 2pm to 4pm during which the public may request public records. B. In order to ensure that records are properly processed, the agency should develop a public records database for the agency records custodian to use in recording public records requests and responses. C. In order to ensure that records are properly processed, the agency should develop a written form that the public must use when requesting public records. D. All of the above are consistent with the public records law.

Review Questions 2. Walmart executives have contacted the City of Tallahassee and said that they might locate a store on the FSU campus. However, before the executives will talk to the City they insist that the City enter into an agreement that if Walmart locates in Tallahassee, all city records pertaining to Walmart will not be kept at City Hall but instead will be scanned and stored in a digital database maintained by Walmart and accessible only through use of a password. Which statement is correct? A. The City should not enter into the agreement unless it receives assurances from Walmart that they will provide the password to anyone who asks for it as long as the requester has a legitimate need for the records. B. The City should not enter into the agreement until it receives assurances from Walmart that Walmart will also maintain hard copies of the digital records. C. The City should not enter into the agreement unless it receives assurances that FSU will also be allowed access to the Walmart records. D. The City should not enter into the agreement.

Review Questions 3. A city clerk has received over 150 public records requests over the past year from John Jones. Each of the requests asks for city records relating to Jones’ ex-wife who is a city employee. Which option is available to the clerk? A. Because Jones is so rude, the clerk could ban him from city hall and instead require him to make his requests in writing or over the telephone. B. Because Jones has asked for an extraordinary number of records, the clerk can require him to specify the particular records that he wants. C. Because Jones has made numerous public records requests which all relate to his ex-wife, he can be charged with stalking. D. None of the above.

Additional Resources Office of Attorney General Ashley Moody website: http://www.myfloridalegal.com First Amendment Foundation website: http://www.floridafaf.org