Sunshine Laws Sunshine laws Open Meetings law Public Records Law

Sunshine LawsSunshine LawsSunshine lawsSunshine laws

Open Meetings lawPublic Records Law

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The Sunshine LawsThe Sunshine Laws F.S. Chapter 286, the “Open Meetings Law,” often

referred to as the “Sunshine Law” protects the public from “closed door” decision making and provides a right of access to governmental meetings.

F.S. Chapter 119, the “Public Records Law,” creates a right of access to records made or received in connection with official business of a public body

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Open MeetingsOpen Meetings

Chapter 286, Florida Statutes, applies to all meetings of any board or commission of any state agency with decision making authority

It requires: All meetings of the Board must be open meetings (public must

be given a reasonable opportunity to attend: considerations of accessibility, distance, chilling effect of meetings at meals)

Reasonable notice of Board meetings (generally, seven days published notice is Board practice)

Minutes of meetings must be promptly recorded and made available for inspection

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What Is IncludedWhat Is Included Includes any discussions or deliberations, formal or

casual, between two or more Board members about a matter on which the Board might foreseeably take action

Includes workshops, telephone conversations, e-mail communications, social and sports events, seeing each other at the grocery store

Generally, staff is not subject to Open Meetings law, but a staff member may not function as a go-between. In other words, you may meet individually with staff, but these meetings may not substitute for public meetings of the Board

Written Correspondence

The use of a written report by one Board member to inform other members 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 members. 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 response from or interaction among the commissioners prior to the meeting.

Florida Institute of Government, Florida’s Code of Ethics, Sunshine Law and Public Records Act

Computer Meetings

Board members may conduct informal discussions and workshops over the Internet, provided that proper notice is given, and interactive access by the public is provided. 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. In addition, for meetings 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.


Every Breath You Take, Every Move You Make

"Every thought, as well as every affirmative act, of a public official as it relates to and is within the scope of his official duties, is a matter of public concern; and it is the entire decision-making process that the legislature intended to affect by the enactment of the statute before us."


Do Not Be Fooled

An exemption from Chapter 119 (Public Records Law) does not imply an exemption from Chapter 286 (Open Meetings Law). There are exemptions allowing out of the Sunshine meetings with counsel (i.e. collective bargaining negotiations; settlement offers in litigation); however, they are narrow exemptions. Caution is advised.

Penalties

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. A person convicted of a second degree misdemeanor may be sentenced to a term of imprisonment not to exceed 60 days and/or fined up to $500.

Conduct which occurs outside the state which constitutes a knowing violation of the Sunshine Law is a second degree misdemeanor. Such violations are prosecuted in the county in which the board or commission normally conducts its official business.

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 or her official duties. If convicted, the officer may be removed from office by executive order of the Governor.

Noncriminal Infractions Section 286.011(3)(a), Florida Statutes, imposes noncriminal penalties for violations of the Sunshine Law by

providing that any public officer 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 such actions on behalf of the state.


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PUBLIC RECORDSPUBLIC RECORDS Definition

Florida Statutes Chapter 119 defines Public Records as:

all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material regardless of physical form or means of transmission made or received pursuant to law in connection with transaction of official business by the agency

Also A Constitutional Right

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.

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Public Records ExemptionsPublic Records Exemptions Information which is exempt from public

disclosure:

Employee’s Social Security numbers Employee’s Medical information Personnel information prior to 7/1/95 Academic evaluations of faculty Disciplinary records while discipline is in

process Student records under FERPA or Section

1002.22, F.S.

If In Doubt, Keep It

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.

Consult retention schedules prior to destruction


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Public RecordsPublic Records What do you do if you get a Public Records Request?

Contact the General Counsel’s office for guidance. Time to respond is “reasonable”- no delays

permitted Although only the custodian is charged with the

duty to maintain, any person having public records in their possession is obliged to disclose them upon request

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Sunshine Law ViolationsSunshine Law Violations

Penalties for violations range from fines to incarceration

Note that attorney's fees are recoverable against the agency even where access is denied on a good faith but mistaken belief that the documents are exempt from disclosure.

Resources

The Florida Attorney General oversees compliance with the Sunshine Laws. Visit www.myfloridalegal.com for a variety of information on the Sunshine Law, including FAQ's, searches, views, and downloads of the Sunshine Manual and related materials. Attorney General Toll Free Number: 1-866-966-7226

Much of this material is taken from the course offered by the Florida Institute of Government entitled Florida’s Code of Ethics, Sunshine Law and Public Records Act. Please Advise General Counsel if you would like to register for the full course.

Documents

Sunshine Laws Sunshine laws Open Meetings law Public Records Law