FOREWORD

Florida has the most expansive open government laws in the country. Open government law has proceeded on three different, but related, tracks: statutory public records, statutory public meetings, and judicial access decisional law. Florida public records law is codified at Fla. Stat. §§ 119.01 to 119.15 (1995). The open meeting statute is commonly called the Florida Sunshine Law, and is codified at Fla. Stat. §§ 286.011 to 286.012 (1991). Both open government statutes have been broadly construed by the judiciary and the Florida attorney general’s office, and reflect a comprehensive policy of open government. Access to judicial records and proceedings has similarly been broadly granted by Florida courts.

Open Records

The Florida Public Records Law unequivocally states, “it is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.” Fla. Stat. § 119.01(1) (1995). The statute expansively defines “public record” to include all “documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of 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.” Fla. Stat. § 119.011(1) (1995). With equal breadth, the law defines “agency” as “any state, county district, authority, or municipal officer, department division, board, bureau, commission, or other separate unit of government created or established by law . . . and any other public or private agency, partnership, corporation, or business entity acting on behalf of any public agency.” Fla. Stat. § 119.001(2) (1995).

A “public record” of an agency is subject to a broad legislated public right of inspection. Section 119.07(1)(a) provides that “[e]very person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian’s designee. The custodian shall furnish a copy or a certified copy of the record upon payment of the pree prescribed by law. . . .”

The Florida Supreme Court has held that only statutory exemptions from the inspections provision of Chapter 119 may be recognized, Wait v. Fla. Power & Light, 372 So. 2d 420 (Fla. 1979); although courts must give effect to competing constitutional rights where inspection would otherwise compromise them. Fla. Freedom Newspapers v. McCrary, 497 So. 2d 652 (Fla. 1st DCA 1986).

The exact number of statutory exemptions to the open records law is difficult to assess but estimates exceed 200; 13 Fla. St. U. L. Rev. 705 (1985). In response to criticisms that Florida’s public records law has been undermined by the many exemptions, the Florida Legislature enacted the Open Government Sunset Review Act of 1995. Fla. Stat. §  119.15. This “Sunset” law provides for the periodic repeal of all exemptions, and mandates periodic review of the specific criteria which should be considered when reviewing the exemptions. Unless the legislative review demonstrates a compelling interest in retaining a particular exemption, and the legislature reenacts the exemption, it is automatically repealed.

The 1995 Sunshine Review Act incorporates the provisions of Section 119.15 as the criteria by which legislators should review Sunshine Law exemptions. Fla. Stat. §  286.0111. Under the 1995 Act, an exemption must fit within one of three categories of identifiable public purposes, and must be seen as compelling enough to override the strong presumption of openness articulated in Fla. Stat. §  119.15(2).

Since the Sunshine Review Act, the legislature has exhibited a resolve to streamline exemptions, allowing confidentiality only to the extent necessary to protect important competing values.

Open Meetings

Florida’s Government in the Sunshine Law, passed in 1967, requires that all meetings of any state, county, or municipal board or commission be open to the public, and mandates that any official action taken at the closed meeting not be binding. Fla. Stat. § 286.011 (1995). “Meeting is construed broadly, and is not confined to “formal” assemblages at which a ritualistic vote takes place. Times Publ’g Co. v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969). The legislature intended to make open the entire decision-making process by the enactment of the Sunshine Law.

Exemptions to the Sunshine Law are not nearly as numerous as exemptions to the public records law. The Sunshine Review Act also applies to the open meeting statute; thus, exemptions to open meeting requirements are reviewed in the same manner as discussed above in reference to open records exemptions.  Fla. Stat. § 286.0111 (1995).