Shining a Light on Sunshine and Public Records Laws
December 18, 2024
DISCLAIMER
The information provided in this presentation does not, and is not intended to, constitute legal advice; it is for general informational purposes only. Information in this presentation may quickly become outdated. Viewers of this presentation should contact their attorney to obtain advice with respect to any particular matter. No one should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel. Only your attorney can provide assurance that the information contained in this presentation, as well as the reader's interpretation of that information, is appropriate to any particular situation.
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OVERVIEW – PUBLIC RECORDS
Introduction
What Are Public Records?
Who is Subject to Public Records Law?
Maintenance and Retention
Responding to a Request
Violations of Public Records Law
INTRODUCTION – PUBLIC RECORDS
Florida Constitution, Article I, Section 24:
(a) Every person has the right to inspect or copy 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 with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.
INTRODUCTION – PUBLIC RECORDS
Chapter 119, Florida Statutes:
• Section 119.01(2): It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.
• Section 119.07: Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.
WHAT ARE PUBLIC RECORDS?
Section 119.011(12):
“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, made or received pursuant to law or ordinance or in the connection with the transaction of official business by any agency.”
WHAT ARE PUBLIC RECORDS?
Anything that is:
• (1) Made or received pursuant to law or ordinance or in connection with the transaction of official agency business; and
• (2) Intended to perpetuate, communicate, or formalize knowledge.
Determined based on the content of the record
Specific examples:
• Preliminary drafts
• Notes for personal use
• Electronic records
• Attorney-client communications
WHO IS SUBJECT TO PUBLIC RECORDS LAW?
Section 119.011(2):
“Agency” is defined broadly 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.”
WHO IS SUBJECT TO PUBLIC RECORDS LAW?
When does a private entity, not otherwise connected with government, become subject to public records law?
• Contracting with a public agency is not dispositive.
• Receiving public funds is not dispositive.
• Courts rely on two general sets of circumstances to determine whether a private entity is “acting on behalf of” a public agency and must produce records:
Totality of Factors Test
Delegation of Functions Test
WHO IS SUBJECT TO PUBLIC RECORDS LAW?
Are any public entities exempt from complying with public records law?
• The Judiciary
• The Florida Bar
• Grand Juries
• The Legislature
MAINTENANCE AND RETENTION
Records must be kept where they are ordinarily used.
Retention schedules are established by Department of State.
Destruction must be documented.
Public officers must transfer records before leaving office.
RESPONDING TO A REQUEST
Section 119.07(1)(a):
Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of public records.
RESPONDING TO A REQUEST
Form of Request:
• Requestor is not required to provide a reason for the request.
• May not require request to be made in writing.
• May not require requestor to identify himself or herself.
Form of Agency’s Response:
• Not required to reformat records or create records.
• Not required to respond to information requests or conduct research.
• Not required to respond to standing requests.
• Must provide records in medium requested if maintained in that medium.
• Cannot defer response to another agency.
RESPONDING TO A REQUEST
Timeliness of Response
• No specific time limit to provide records.
• Must promptly acknowledge request.
• Must respond in good faith.
• Unjustified delay constitutes unlawful refusal to provide records.
Cost of Response
• Can charge for extensive use of agency resources.
• Charge must be based on actual cost incurred by agency.
• Not required to charge lowest hourly rate.
RESPONDING TO A REQUEST
Exemptions
• Created by Florida or federal law only.
• Narrowly construed.
• Agency must notify the requestor and identify basis for exemption.
• Agency is not required to release.
• Examples include: personal information of high-risk employees, security systems information and blueprints, social security numbers, attorney work product, and mediation communications.
Confidential
Information
• Included in the Florida Constitution.
• Agency is prohibited from release.
VIOLATIONS OF PUBLIC RECORDS LAW
Civil Actions to Enforce Public Records Law
• Prerequisites to Filing Suit
• Available Remedies
• Expedited Hearing
• Records Produced after Lawsuit is Filed
• Cost Recovery
Violations Assessed Against Individual Custodians
• Noncriminal Infractions and Fines
• Misdemeanor and Felony Charges
OVERVIEW – SUNSHINE LAW
Introduction
What does Sunshine Law require?
Who is covered by Sunshine Law?
When does Sunshine Law apply?
Are there exceptions?
INTRODUCTION – SUNSHINE LAW
Section 286.011, Florida Statutes
Sunshine law gives the public access to meetings of any public governing body.
This includes ALL meeting where official acts are to be taken or public business is transacted/discussed.
REQUIREMENTS OF THE SUNSHINE LAW
Reasonable notice of meetings
Open to the public with a reasonable opportunity to be heard.
• Cannot hold meetings at inaccessible or exclusive facilities.
Minutes (these become public records)
WHO IS SUBJECT TO SUNSHINE LAW?
Advisory Boards and Committees created by public agencies
Members-elect who have not yet taken office
Ex officio board members
Governor and cabinet members when they are performing functions arising under Florida Statutes, not the Constitution.
APPLICATION OF THE SUNSHINE LAW
Applies to formal OR casual discussions between two or more members about a matter which will foreseeably come before them for a vote.
Applies to in-person meetings, telephone calls, e-mail, text messages, and social media exchanges.
Does NOT apply to:
• Discussions with staff or attorney(s). However, be mindful of using them as a conduit.
• Discussions with alternates.
SUNSHINE LAW EXCEPTIONS
Certain investigative meetings
• For example, preliminary investigation by Commission on Ethics and probable cause panels for certain agencies
Litigation meetings
• Otherwise known as “executive sessions” or “shade meetings”
• Specific requirements for these meetings
Collective bargaining strategy discussions
HOT TOPICS/RECENT CASE LAW
Text Messages
• Raydient LLC v. Nassau County, Florida, No. 2019-CA-000054 (Fla. 4th Cir. Ct. August 24, 2021)
• City of Sunny Isles Beach v. Gatto, 338 So. 3d 1045 (Fla. 3d DCA 2022)
• Bear v. Escambia County Board of County Commissioners, 2022 WL 602266 (N.D. Fla. 2022).
Email Systems and Security Measures
• Bracci v. School Board of Lee County, No. 20-CA-5205 (Fla. Cir. Ct. 2021).