A Guide to Florida's Government-in-the-Sunshine Laws: Open Meetings & Public Records
Summarized from The Government-in-the-Sunshine Manual, 2000 Edition (Prepared by the Office of the Attorney General of Florida).
Note: The following material provides the reader with only a general idea of what Florida's Open Meetings and Public Records laws are about. It was prepared to give members of the public and government boards and commissions a passing familiarity with their requirements. The actual Open Meetings and Public Records laws are complex. Many complications, nuances, and most of the exceptions are not covered here. Also, information relating to courts, the Legislature, and law enforcement, and information concerning children and medical records, though covered in the Manual, is not included in this summary.
Section 286.011, FLA. Statutes
Florida's Government-in-the-Sunshine Law applies when two or more members of the same elected or appointed public board or commission meet to discuss or take action on any matter which may foreseeably come before them in their official capacity. The Sunshine Law requires that: (1) meetings be open to the public; (2) notice be given; and (3) minutes be taken.
APPLICATION
Who else is covered? Members-elect of boards or commissions are also subject to the Sunshine Law. Private entities doing business on behalf of a public agency may also be subject to the law.
Who is not covered? Staff meetings are not ordinarily subject to the Sunshine Law.
What types of meetings are covered? The Sunshine Law applies to all functions of covered agencies, boards, and commissions,
whether formal or informal, which relate to their affairs and duties. The Sunshine Law also applies when an individual has been delegated the authority to act on behalf of or make recommendations to a public entity.
However, when an individual has only been delegated the authority to gather information, the Sunshine Law does not apply. The Sunshine Law prohibits meetings between a member of a public body and an individual who is not a member when that individual is being used as a liaison between, or to conduct a de facto meeting of, other members of the public entity.
What types of meetings are not covered? The Sunshine Law does not apply to a meeting between individuals who are members of different boards unless one or more of them have been delegated the authority to act on behalf of his or her board. If an official is not a member of the board or commission and does not possess any power to vote, the official may meet privately with an individual member.
There is no violation of the Sunshine Law for a board member to express views or voting intentions on upcoming issues to a reporter. Members of a public board or commission are not prohibited from meeting together socially under the Sunshine Law, as long as matters which may come before them in their official capacity are not discussed.
What forms of communication are covered? Members of a board discussing board business or holding a meeting by telephone must ensure that the requirements of the Sunshine Law have been satisfied by providing notice and access to the public. If a memorandum reflecting the views of a board member is circulated among board members with each indicating his or her approval, disapproval, or comments, there is a violation of the Sunshine Law. The use of a written report simply to inform is not a violation of the Law as long as there is no reply or interchange of information. The use of computers by members of a public board or commission to communicate among themselves is subject to the Sunshine Law.
What subjects are covered? There is no exception to the Sunshine Law allowing closed-door hearings when a board or commission is acting in a "quasi-judicial" capacity. Discussions between a public board and its attorney are generally subject to the Sunshine Law. However, a public board and its attorney may meet in a closed session to discuss settlement negotiations or strategy concerning pending litigation to which the public board is a party.
Numerous limiting conditions apply to such meetings, including transcription requirements, topic limitations, notice and procedural requirements, and release of the transcript upon completion of the litigation. Meetings at which personnel matters are discussed are not exempt. Negotiations by a public body for the sale or purchase of real property must be conducted in the Sunshine.
The Sunshine Law is applicable to investigative inquiries of public agencies, and the fact that a meeting concerns alleged violations of law or regulations does not remove it from the scope of the Law. Sunshine Law policy on collective bargaining for public employees is divided into two parts: when the public employer is meeting with its own side, it is exempt from the Sunshine Law; when the public employer is meeting with the other side, it is required to comply with the Law.
What are the requirements for voting? A board may not use secret ballots. Each members present must cast a vote either for or against each proposal, but it is not necessary to take a roll call vote to reflect each member's specific vote. The minutes must report voting results either by recording the vote of each individual member or counting the votes and reporting the totals. No member of any governmental board or commission who is present at any meeting at which a decision, ruling, or other official act is to be taken or adopted must abstain from voting. A vote must be recorded or counted for each member present, except when a member has, or appears to have, any conflict of interest.
REQUIREMENTS
Where may meetings be held? Public boards or commissions are prohibited from holding their meetings at any facility which discriminates on the basis of sex, age, race, color, national origin, creed, religion, or economic status, or which operates in a manner that
unreasonably restricts public access. Public agencies should take reasonable steps to ensure that meeting facilities will accommodate the anticipated turnout. Public meetings should be held within reasonable proximity to the jurisdiction of the public board or commission.
Can restrictions be placed on public attendance or participation? The public may not be deprived of the right to be present and to be heard at all deliberations where decisions affecting the public are being made.
However, the extent to which public participation must be allowed has not been determined. Reasonable rules and policies ensuring the orderly conduct of a public meeting and requiring orderly behavior of those in attendance may be adopted. A rule or policy prohibiting the use of nondisruptive cameras or silent tape recording devices is unreasonable and, therefore, invalid.
What kind of notice must be given? A written notice containing the time, place, and general subject of the meeting should be given. Notice should be published, posted, and/or circulated in a way meant to allow members of the public who may be interested to know about the meeting. If a meeting is to be adjourned and reconvened later to complete the business from the agenda of the adjourned meeting, the second meeting must also be noticed.
Must written minutes be kept of all public meetings? Yes. Minutes of a public meeting must be promptly recorded and open to public inspection. A written transcript of a meeting may be used as the minutes.
PENALTIES
What are the penalties for violations of the Sunshine Law? No resolution, rule, regulation, or formal action is binding unless it is promulgated at an open meeting. Any member of a board or commission or of any state or local agency or authority who knowingly violates the Sunshine Law is guilty of a misdemeanor of the second degree. If convicted, the officer or employee may be removed from office. Any public official who violates the provisions of the Sunshine Law is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. Reasonable attorney's fees and court costs will be assessed against a public agency violating the Sunshine Law.
What are the options if an agency refuses to produce public records? Mediation. For more information about the voluntary Public Records Mediation Program, please contact the Office of the Attorney General. Civil action. Any person denied the right to inspect and/or copy public records may file a civil action in circuit court against an agency to compel compliance with the Public Records Law. These actions are entitled to an immediate hearing and take priority over other cases. A public agency's unjustified delay in complying with a request until after litigation is filed amounts to an "unlawful refusal." While an action is pending, the custodian may not transfer custody, alter, or dispose of the record. If a civil action is filed against an agency and the court determines the agency unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall order the agency responsible to pay the costs of enforcing the law, including reasonable attorney's fees and court costs. Attorney's fee are recoverable even if access is denied on the mistaken belief that the requested records are exempt from disclosure. Criminal penalties. A public officer who knowingly violates the Public Records Law is guilty of a misdemeanor of the first degree, punishable by penalties of up to one year in prison, a $1,000 fine, or both, and is subject to suspension and removal. A violation is also a noncriminal infraction, punishable by a fine not exceeding $500.
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