Open Government Guide
Richard J. Ovelmen
100 S.E. Second Street, Suite 4300
Miami, Florida 33131-2113
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.
The Florida Public Records Law unequivocally states, “[i]t is the policy of this state that all state, county, and municipal records are open for a personal inspection and copying by any person.” Fla. Stat. § 119.01(1) (2005). The statute expansively defines “[p]ublic records” 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(12) (2008). With equal breadth, the law defines “[a]gency” 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. § 119.011(2) (2008).
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 records.”
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.
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 (2012). “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, 473–74 (Fla. 2d DCA 1969), overruled in part, on other grounds, Neu v. Miami Herald Pub’g Co., 462 So. 2d 821 (Fla. 1985). 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 (2012).Compare
A. Who can request records?
1. Status of requester
Fla. Stat. § 119.01(1) (2005) provides that “[i]t is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person.” Person includes “individuals, children, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.” Fla. Stat. § 1.01(3) (2014). There is no distinction between citizens and non-citizens as far as access to public records is concerned, and a former citizenship requirement was deleted from law in 1975. Cf. Op. Att’y Gen. Fla. 75-175 (1975).Compare
2. Purpose of request
Florida does not require requesters to demonstrate a special or legitimate interest in a document in order to secure the right of inspection under Chapter 119. Thus, mere curiosity or even blatant commercial interest do not vest in either the courts or the records custodian discretion to deny inspection. See, e.g., State ex rel. Davidson v. Couch, 156 So. 297 (Fla. 1934) (one does not have to be a taxpayer or have a “special interest” in public documents to inspect them); Bevan v. Wanicka, 505 So. 2d 116 (Fla. 2d DCA 1987) (public records law does not condition inspection on requirement that person disclose background information about himself); Lorei v. Smith, 464 So. 2d 1330 (Fla. 2d DCA), review denied, 475 So. 2d 695 (Fla. 1985) (purpose of request for access is immaterial and breadth of right to access is virtually unfettered); News-Press Publg. Co. Inc. v. Gadd, 388 So. 2d 276 (Fla. 2d DCA 1980), appeal after remand, 412 So. 2d 894, review denied, 419 So. 2d 1197; Warden v. Bennett, 340 So. 2d 977, 979 (Fla. 2d DCA 1976); State ex rel. Cummer v. Pace, 159 So. 679 (Fla. 1935).Compare
3. Use of records
The use to which a person intends to put the documents once copies are received similarly is irrelevant in determining whether a person has a right of access under Chapter 119. State ex rel. Davidson, 156 So. at 299; see also State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905).Compare
B. Whose records are and are not subject to the act
Article I, section 24(a) of the Florida Constitution specifically includes the legislative, executive, and judicial branches of government within the scope of “the right to inspect or copy any public record made or received in connection with the official business of any public officer, or employee of the state, or persons acting on their behalf . . . .” Because Chapter 119 applies to “state, county, and municipal records,” “plaintiffs cannot compel under Chapter 119 records created and maintained by a Special Deputy United States Marshal.” Am. Civil Liberties Union of Fla., Inc. v. City of Sarasota, 2015 WL 82250, at *3 (M.D. Fla. Jan. 6, 2015).Compare
1. Executive branch
Public records subject to public inspection generally include executive records. Amos v. Gunn, 94 So. 615 (Fla. 1922). The public records law expressly provides “that the public has a right to have access to executive branch governmental meetings and records. . . .” Fla. Stat. § 119.15(2) (1995). The public records law applies to executive personnel and bodies at all governmental levels. See Fla. Stat. § 119.011(2) (1995) (defining agency); see also Op Att’y Gen. Fla. 87-141 (1987) (copies of documents received by the mayor of a municipality in his official capacity are public records).
However, in addition to specified statutory exemptions, there are limited non-statutory limitations on the right of access to executive branch records concerning constitutionally confidential functions. For example, where the Parole and Probation Commission is directed by the Governor, pursuant to the Rules of Executive Clemency, to investigate, report and make recommendations regarding an application for clemency and is acting on behalf of the executive under the constitutionally derived pardon power rather than the commission’s own statutory parole authority, the materials gathered in the course of carrying out the executive directive may not be subject to the legislative mandate of Chapter 119. Such procedures fall within the ambit of the clemency power which is vested solely in the executive pursuant to Fla. Const. art. IV, sec. 8. Op. Att’y Gen. Fla. 86-50 (1986).
The Florida legislature has created several statutory exemptions relating to specified records of the executive branch. See, e.g., Fla. Stat. § 27.151(1) (1995) (exempting an executive order and related reports assigning or exchanging state attorneys).Compare
2. Legislative bodies
Unless the legislature promulgates a contrary legislative rule, the public records law applies to records made or received in connection with official business by legislators. See Op. Att’y Gen. Fla. 75-282 (1975) (in the absence of a House or Senate rule to the contrary, Chapter 119 applies to legislative records); Op. Att’y Gen. Fla. 72-416 (1972) (the Legislature may provide by rule for the confidentiality of a report of a special master appointed by the Senate to conduct a suspension hearing until such time as the Senate meets to debate the suspension).
In addition, various statutory exemptions apply to legislative records. See Fla. Stat. § 15.07 (1995) (exempting the journal of the executive session of the Senate from disclosure except upon order of the Senate itself or some court of competent jurisdiction); Fla. Stat. § 11.26(1)(2) (1996) (legislative employees forbidden from revealing the contents of any requests for services made by member of legislature).Compare
Under the doctrine of separation of powers, the Supreme Court is vested with the power to adopt rules for practice and procedure in all courts. Fla. Const. art. V, § 2(a). In general, therefore, challenges to the scope and limitations of judicial discretion in ordering records to be sealed following filing do not arise under Chapter 119 nor under Judicial Rule of Administration 2.420, but through constitutional guarantees relating to open and public judicial proceedings, and freedom of the press. See, e.g., Times Publ’g v. Ake, 660 So. 2d 255 (Fla. 1995); In re Amendments to Rule of Judicial Admin. 2.051—Public Access to Judicial Records, 651 So. 2d 1185 (Fla. 1995); Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992); Barron v. Fla. Freedom Newspapers, 531 So. 2d 113 (Fla. 1988); Petition of Post-Newsweek Stations, Fla. Inc., 370 So. 2d 764 (Fla. 1979); English v. McCrary, 348 So. 2d 293 (Fla. 1977); State ex rel. Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904 (Fla. 1976); State ex rel. Times Publ’g Co. v. Patterson, 451 So. 2d 888 (Fla. 2d DCA 1984); Palm Beach Newspapers Inc. v. Nourse, 413 So. 2d 467 (Fla. 4th DCA 1982); Miami Herald Publ’g Co. v. Lewis, 383 So. 2d 236 (Fla. 4th DCA 1980); Sentinel Star Co. v. Booth, 372 So. 2d 100 (Fla. 2d DCA 1979); Tallahassee Democrat. Inc. v. Willis, 370 So. 2d 867 (Fla. 1st DCA 1979); Miami Herald Publ’g Co. v. Collazo, 329 So. 2d 333 (Fla. 3d DCA 1976), cert. denied, 342 So. 2d 1100 (Fla. 1977).
There is a strong presumption of openness in all criminal and civil judicial proceedings. See Barron v. Fla. Freedom Newspapers, 531 So. 2d 113 (Fla. 1988). In State v. Bundy, 455 So. 2d 330 (Fla. 1984), the Supreme Court articulated a three part test which must be met by the party seeking to seal a court record in a criminal proceeding: (1) that closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) that no alternative measure is available, other than a change of venue, to protect the defendant’s right to a fair trial; and (3) that closure would be effective in protecting the rights of the accused without being broader than necessary to accomplish this purpose. The burden is on the party seeking closure. See, e.g., Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000); Fla. Freedom Newspapers Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988). Compare Ocala Star-Banner v. State, 697 So. 2d 1317 (Fla. 5th DCA 1997) (newspaper’s motion to access sealed public health records denied because newspaper failed to demonstrate good cause to unseal records). The media has a right to be heard and present evidence at a closure hearing. See WESH Television Inc. v. Freeman, 691 So. 2d 532 (Fla. 5th DCA 1997).
In Barron v. Florida Freedom Newspapers, 531 So. 2d 113, 118 (Fla. 1988), the Florida Supreme Court held that closure of court proceedings or records should occur only when necessary (a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed. Furthermore, before entering a closure order, the trial court shall determine that no reasonable alternative is available to accomplish the desired result, and, if none exists, the trial court must use the least restrictive closure necessary to accomplish its purpose. Id.
Grand Jury documents are made confidential pursuant to section 905.24, Fla. Stat. (1995). Buchanan v. Miami Herald Publ’g Co., 206 So. 2d 465 (Fla. 3d DCA 1968), aff’d, 230 So. 2d 9 (Fla. 1969) (proceedings before a grand jury are “absolutely privileged”). Accordingly, communications addressed to that body during the regular performance of its duties are not subject to Chapter 119. However, the name of a grand jury foreperson may be released to the public and may not be redacted from the record after it is released. Op. Att’y Gen., 99-09 (1999).Compare
4. Nongovernmental bodies
The public records law may apply to nongovernmental bodies, such as charitable organizations or firms contracting with the government, which receive public funds or benefits. The relevant inquiry is whether such nongovernmental body is “acting on behalf of any public agency.” Fla. Stat. § 119.011(2) (1995); B & S Utils., Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17, 22-23 (Fla. 1st DCA 2008) (holding that private engineering firm’s records regarding projects on which it worked as “the de facto city engineer are public records” and thus subject to disclosure under chapter 119 because the city delegated a governmental function to the private firm). However, application of Chapter 119 to agencies receiving public funds is limited and this factor alone is not dispositive. Sarasota Herald-Tribune Co. v. Community Health Corp., 582 So. 2d 730 (Fla. 2d DCA 1991). Courts look to the “totality of factors” which indicate a significant level of involvement by the public agency. For example, application to firms only partially funded by such funds may be limited to materials made or received by the private agency in the course of its contract with the agency. New York Times Co. v. PHH Mental Health Servs. Inc., 616 So. 2d 27 (Fla. 1993) (totality of factors analysis involves consideration of (1) Creation (did the public agency plan any part in the creation of the private entity; (2) Funding (has the public agency provided substantial funds, capital or credit to the private entity; (3) Regulation (does the public agency regulate or otherwise control the private entity’s professional activity or judgment; (4) Decision-making Process (does the private entity play an integral part in the public agency’s decision-making process; (5) Government Function (is the private entity exercising a governmental function, and (6) Goals (is the goal of the private entity to help the public agency and the citizens served by the agency)); Mem’l Hosp.-West Inc. v. News-Journal Corp., 729 So. 2d 373 (Fla. 1999), reh’g denied, (records of private organization operating public hospital under lease agreement with hospital taxing authority is subject to disclosure statutes); Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) (agency may not transfer records to attorney to avoid disclosure requirements); Putnam Cty. Humane Soc’y Inc. v. Woodward, 740 So. 2d 1238 (Fla. 5th DCA 1999) (humane society is an agency of the state authorized under enabling statutes to conduct animal abuse investigations and is subject to public records laws); Stanfield v. Salvation Army, 740 So. 2d 1238 (Fla. 5th DCA 1999) (records of private company made public when company provided services in place of county); Prison Health Servs. Inc. v. Lakeland Ledger Publ’g Co., 718 So. 2d 204 (Fla. 2d DCA 1998), reh’g denied, 727 So. 2d 912 (provider of prisoner health care under contract with county sheriff is required to comply with records request); Harold v. Orange Cty., 668 So. 2d 1010 (Fla. 5th DCA 1996) (records of construction manager which it was “required to compile, maintain, and disclose to the County pursuant to its contract with the County” were public records); News & Sun Sentinel Co. v. Schwab, et al., 596 So. 2d 1029 (Fla. 1992) (architecture firm not acting on behalf of agency by merely providing professional services); Cape Coral Med. Ctr. Inc. v. News-Press Publ’g Co. Inc., 390 So. 2d 1216 (Fla. 2d DCA 1980) (non-profit private lessee of governmental lessor is subject to Chapter 119); Fritz v. Norflor Constr. Co., 386 So. 2d 899 (Fla. 2d DCA 1980) (an engineering corporation is an “agency” within the meaning of section 119.011, requiring the disclosure of public records, insofar as the corporation performs services for the city). Compare Parsons & Whittemore Inc. v. Metro. Dade Cty., 429 So. 2d 343 (Fla. 3d DCA 1983) (merely by acting as a “Turn Key” with a governmental agency a corporation does not act “on behalf of” the agency within the meaning of section 119 during construction of the facility); News-Press Publ’g Co. v. Kaune, 511 So. 2d 1023 (Fla. 2d DCA 1987) (physician performing physical examination under contract with fire department is not an “agency,” and reports relating to department personnel are not subject to disclosure); Campus Commc’ns Inc. v. Shands Teaching Hosp. & Clinics Inc., 512 So. 2d 999 (Fla. 1st DCA 1987) (teaching hospital not a public agency or authority). Application of the “totality of factors” tests, requires a review of the statutory authority under which the entity purports to act (i.e., what function is the entity performing).
If public funds are expended by an agency in payment of dues or membership contributions to any person, corporation, foundation, trust, association, group or organization, then the records pertaining to such agency are subject to section 119.07. Op. Att’y Gen. Fla. 74-35 (1974). Even where public funds are not spent on membership dues in non-governmental groups, if an official’s membership in such group is “in connection with the transaction of official business by an agency,” then the records of the group will be subject to inspection. Fla. Stat. § 119(1)(2) (1995). News & Sun-Sentinel Co. v. Modesitt, 466 So. 2d 1164 (Fla. 1st DCA), pet. for review denied, 476 So. 2d 674 (Fla. 1985) (records relating to the use of funds of a group of private citizens in organizing and conducting foreign mission tours were not public records where the Commissioner of Agriculture merely acted as custodian of the funds and did not use the funds for any of the Commissioner’s official, quasi-official, or political activities).Compare
5. Multi-state or regional bodies
There is no Florida law addressing the applicability of Chapter 119 to multistate or regional bodies. To the extent that there is no choice of law, it could be argued that such bodies are subject to the open record provision, if such a body “acts on behalf” of a Florida public agency within the meaning of Chapter 119.Compare
6. Advisory boards and commissions, quasi-governmental entities
In response to State ex rel. Tindel v. Sharp, 300 So. 2d 750 (Fla. 1st DCA 1974), cert. denied, 310 So. 2d 745 (Fla. 1975), which held that a screening committee, hired to screen school superintendent applications, was an “independent contractor” and therefore not within the scope of Chapter 119, the Legislature amended the definition of “agency” found at section 119.011(2) to include “any other public or private agency, person, partnership, corporation or business entity acting on behalf of any public agency.” (emphasis added). Under the revised definition of agency, records of advisory bodies, agents, or independent contractors, public or private, may be subject to Chapter 119 depending on the totality of the factors analysis noted above. Op. Att’y Gen. Fla. 91-99 (1991) (private nonprofit corporation, leasing hospital facilities of public hospital, requires management records of hospital to be public records); Op. Att’y Gen. Fla. 89-52 (1985) (public records status dependent upon the powers and duties imposed upon non-for-profit corporation under lease agreement); Op. Att’y Gen. Fla. 92-037 (1992) (Tampa Bay Performing Arts Center found subject to Chapter 119, because Trustees were government officials, it utilized city property and performed a government function); Op. Att’y Gen. Fla. 92-53 (1992) (Ringling Brothers Museum of Art Foundation was a private entity acting on behalf of public agency; thus records relating to foundation’s activities were public records); Times Publ’g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990) (White Sox baseball organization subject to Chapter 119 for lease documents and other records relating to negotiations for use of municipal stadium); Shevin v. Byron, Harless, Schaffer, Reid & Ass’ns Inc., 379 So. 2d 633 (Fla. 1980) (applying Chapter 119 to a consultant hired by electric authority); Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) (groups, public or private, which act in any advisory capacity to a public board or commission are subject to the Sunshine Law); Schwartzman v. Merritt Island Volunteer Fire Dep’t, 352 So. 2d 1230 (Fla. 4th DCA 1977) (because it acts on behalf of a public agency a volunteer fire department is an agency and its records are public records).Compare
C. What records are and are not subject to the act?
1. What kinds of records are covered?
Only “[p]ublic records” are covered by Chapter 119, but Section 119.011(12) broadly 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 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.
The Florida Supreme Court, in Shevin v. Byron, Harless, Schaffer, Reid & Associates Inc., 379 So. 2d 633, 640 (1980), construed the foregoing definition of public records to include “any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” See also Booksmart Enters. Inc. v. Barnes & Noble Coll. Bookstores, Inc., 718 So. 2d 227 (Fla. 3d DCA 1998), reh’g denied, review denied, 729 So. 2d 389 (book forms supplied by on-campus bookstore and completed by university instructors for university business purposes are public records); Hill v. Prudential Ins. Co. of Am., 701 So. 2d 1218 (Fla. 1st DCA 1997) (documents related to state conducted investigation of insurance statute violations are public records). To be contrasted with “public records” are those materials prepared as drafts or notes which “constitute mere precursors of governmental ‘records’ and are not, in themselves, intended as final evidence of the knowledge to be recorded.” Shevin, 379 So. 2d at 640. As examples of those materials which would not be public records, the Byron, Harless Court referred to rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Thus, under the particular facts presented in the case, the court determined that the handwritten notes of a consultant’s impressions made during or shortly after interviews were not public records.
The Byron, Harless Court did not, however, create a blanket exception to the public records law for any document labeled as a “draft” or “notes” or otherwise designated as other than a final copy. The Court noted:
Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency’s later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.
Id. at 640; see also Nicolai v. Baldwin, 715 So. 2d 1161 (Fla. 5th DCA 1998) (internal auditor’s report draft delivered to County Administrator does not subject the report to disclosure as the draft was not a final report and it was not delivered to a “unit of government”); Times Publ’g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990); Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996) (attorney’s “handwritten notes were either not public records or were exempt”); Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988) (order restricting inspection of state attorney’s file for change which had been roll-pressed was overbroad because it prohibited disclosure of interoffice memoranda which communicated information between public employees; preliminary notes prepared by agency attorneys and intended for attorney’s own personal use not public records).
Thus, if the purpose of the document is to perpetuate, communicate, or formalize knowledge, it is a public record notwithstanding that it is not in final form or the ultimate product of the public official or agency. See, e.g., Miami Herald Media Co. v. Sarnoff, 971 So. 2d 915, 917-18 (Fla. 3d DCA 2007) (holding that memorandum created by city commissioner was public record subject to disclosure because commissioner was an agency for purposes of chapter 119, the memorandum discussed a meeting that the commissioner attended in his official capacity, the meeting pertained to official city business, it perpetuated his final knowledge of the meeting and contained factual information about the meeting, as opposed to his mental impressions); Orange Cty.. v. Fla. Land Co., 450 So. 2d 341 (Fla. 5th DCA), petition for review denied, 458 So. 2d 273 (Fla. 1984) (draft notes prepared by public agency’s attorneys for their own personal use are not public records but the trial preparation materials in the nature of inter-office and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not part of the agency’s formal public conduct, are public records subject to disclosure; see, however, the new exemption for public attorney work product § 119.07(3)(b)(n)); Times Publ’g Co. v. City of Clearwater, 830 So. 2d 844 (Fla. 2d DCA 2002) (personal e-mail sent from or received by city employees using government owned computers fall outside the definition of public record); State v. Kokal, 562 So. 2d 324 (Fla. 1990) (not all trial preparation materials of agency attorneys are public records; state attorney not required to disclose certain trial preparation documents described as preliminary guides intended to aid attorneys); Hillsborough Cty.. Aviation Auth. v. Azzarelli Constr. Co., 436 So. 2d 153 (Fla. 2d DCA 1983) (rejection of claim that when a public body is engaged in litigation, the pleadings and evidence presented in court constitute the formal agency statement on the subject matter and all else is merely preliminary or preparatory and therefore not a Chapter 119 public record); Bay Cty.. Sch. Bd. v. Pub. Emps. Relations Comm’n, 382 So. 2d 747 (Fla. 1st DCA 1980) (school board budget work sheets are materials prepared in connection with official agency business and tend to perpetuate, communicate or formalize knowledge of some type and thus are public records); Justice Coal. v. First Dist. Court of Appeal Nominating Comm’n, 823 So. 2d 185 (Fla. 1st DCA 2002) (notes created by members of Nominating Commission while interviewing judicial candidates were not public records); State ex rel. Copeland v. Cartwright, 38 Fla. Supp. 6 (17th Cir. Broward Co. 1971), aff’d, 282 So. 2d 45 (Fla. 4th DCA 1973) (site plan review prepared for a public building project, even though it was a preliminary working paper, must be open for public inspection). Cf. State v. Buenoano, 707 So. 2d 714 (Fla. 1998) (to prevent the chill of sharing information between the federal and state governments, federal records, designated by the federal government to not be public records and mistakenly sent by State Attorney to trial court, are not public records) . All records received by a public agency are open to public inspection, regardless of the expectations of the source of the material, unless exempted by statute or constitutional provisions; Gadd v. News-Press Publ’g Co., 412 So. 2d 894 (Fla. 2d DCA 1982) (records of a utilization review committee of a county hospital are not exempt from Chapter 119, although the information may come from sources who expect or have been promised confidentiality); Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981) (disclosure of grievance records of a public school teacher could not be avoided notwithstanding a provision of a bargaining agreement with the teachers’ association mandating that such matter be kept confidential); Browning v. Walton, 351 So. 2d 380 (Fla. 4th DCA 1977) (city could not refuse disclosure of employee names on basis of a “self-imposed” exemption).Compare
2. What physical form of records are covered
The issue of access to public records maintained on a computer was addressed by the Fourth District Court of Appeal in Seigle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982), petition for review denied, 431 So. 2d 988 (Fla. 1983). The court adopted the rule that access to computerized records shall be given through the use of programs currently in use by the public official responsible for maintaining the public records. The Florida Legislature later amended Section 119.011(1) to expressly include software and computer data, regardless of the means of transmission. See also Op. Att’y. Gen. Fla. 96-34 (1996) (official business-related e-mails sent or received by employees of government office are public records). Furthermore, the Seigle court found that all of the information in a computer, not merely that which a particular program accesses, should be available for inspection and copying. See also Op. Att’y Gen. Fla. 85-3 (1985) (Games & Fresh Water Commission has duty to permit inspection of public records, including information on computer tapes). The Legislature later amended Section 119.07(3)(b)(q) to exempt computer software obtained under a licensing agreement.
The Seigle court also found that access by use of a specially designed program prepared by or at the expense of the person requesting the information may be permitted in the discretion of the custodian of the records. If, however, the custodian refuses to permit access in this manner, the court may permit access where:
1) the available programs do not access all of the public records stored in the computer’s data banks;
2) the information in the computer accessible by use of the available programs would include exempt information which would necessitate a special program to delete such exempt items;
3) for such reasons the form in which the information is proffered does not fairly and meaningfully represent the records; or
4) the court determines that other exceptional circumstances exist warranting this special remedy.
Examples of other materials which have been found to constitute public records:
Telephone records of calls made from agency telephones. Gillum v. Times Publ’g Co., No. 91-2689 CA (6th Cir. Dade County July, 1991); Op. Att’y. Gen. Fla. 99-74 (1999).
Videotaped training film prepared by state attorney’s office. Op. Att’y Gen. Fla. 88-23.
Email messages made or received by agency employees in connection with official business. Op. Att’y Gen. Fla. 96-34 (1996).Compare
3. Are certain records available for inspection but not copying?
The statutory right of inspection of public records includes the right to make copies. Fla. Stat. § 119.07(1)(a) (2007). See Wait v. Fla. Power & Light Co., 372 So. 2d 420, 425 (Fla. 1979); Winter v. Playa del Sol Inc., 353 So. 2d 598 (Fla. 4th DCA 1977); Fuller v. State ex. rel. O’Donnell, 17 So. 2d 607 (Fla. 1944). An exception to the right of duplication applies where an agency has a copyrighted work in its possession, in which case the public has access to such works but no right to have such works reproduced. Yeste v. Miami Herald Publ’g Co., 451 So. 2d 491 (Fla. 3d DCA 1984); Op. Att’y Gen. Fla. 82-63 (1982).Compare
4. Telephone call logs
In certain instances, whether telephone numbers, call logs, or records of telephone conversations are public records turns on whether the calls were private or personal. For example, purely personal telephone calls made by defendants in jail who were awaiting trial were not public records because the calls were not connected to official business of the county sheriff’s office. Bent v. State, 46 So. 3d 1047 (Fla. 4th DCA 2010). Similarly, private calls of staff employees of the House of Representatives were not public records that should have been disclosed. Media Gen. Operation, Inc. v. Feeney, 849 So. 2d 3 (Fla. 1st DCA 2003). However, telephone numbers listed in a school district’s call records that detailed calls made through school district telephones were public records, even if the calls were purely personal and paid for by the employee. Op. Att’y Gen. Fla. 99-74 (1999).Compare
5. Electronic records
a. Can the requester choose a format for receiving records?
Generally, access to computerized records is provided through the use of programs currently in use by the public official responsible for maintaining the public records. See Seigle v. Barry, 422 So. 2d 63, 66 (Fla. 4th DCA 1982); see also Tampa Television, Inc. v. Clay Cty.. Sch. Bd., 1993 WL 204090, at *2-3 (Fla. Cir. Ct. Feb. 11, 1993) (applying Seigle and stating that “[w]hile the public records act does not require [an agency] to compile lists or make special reports solely for [a requestor’s] benefit,” public records should be provided where they are “easily available” to the agency and “could have been produced at a minimum of time or expense”). An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium. Fla. Stat. § 119.01(2)(f). An agency has discretion to furnish electronic records in a format other than the format routinely used by the agency, but in that case the cost of converting the information shall be borne by the requester pursuant to section § 119.07(4). See also Op. Att’y Gen. Fla. 97-39 (1997) (“[A] school district is not required to furnish its electronic public records in an electronic format other than the standard format routinely maintained by the district. However, if the district elects to provide such records in a different format, the costs of converting the information shall be borne by the requestor pursuant to section 119.07(1)(b) . . . . .); Op. Att’y Gen. Fla. 06-30 (2006) (“[A] municipality may respond to a public records request requiring the production of thousands of pages of documents by composing a static webpage where the responsive public documents are posted for viewing if the requesting party agrees to pay the administrative costs, in lieu of copying the documents at a much greater cost.”).Compare
b. Can the requester obtain a customized search of computer databases to fit particular needs
As explained above, access to computerized records is generally provided through the use of programs used by the agency. Access by the use of a specially designed program prepared by or at the expense of the applicant may be permitted in the discretion of the agency. See Seigle, 422 So. 2d at 66. If the agency refuses to permit access in this manner, the circuit court may permit such access where: (a) available programs do not access all of the public records stored in the computer’s data banks; or the information in the computer accessible by the use of available programs would include exempt information necessitating a special program to delete such exempt items; or (3) for any reason the format in which the information is proffered does not fairly and meaningfully represent the records; or (4) the court determines other exceptional circumstances exist warranting this special remedy. Id. at 66-67.Compare
c. Does the existence of information in electronic format affect its openness?
The existence of information in electronic format does not affect its openness. See Fla. Stat. § 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. . .”) (emphasis added); Seigle, 422 So. 2d at 65 (“information stored on a computer is as much a public record as a written page in a book or a tabulation in a file stored in a cabinet”).Compare
d. Online dissemination
An agency has discretion to provide access to public records by remote electronic means. See Fla. Stat. § 119.085. Fees for remote electronic access must be in accordance with § 119.07(2)(c). If an agency chooses to provide remote access, the custodian must provide safeguards to protect the contents of public records from unauthorized remote electronic access or alteration and to prevent the disclosure or modification of those portions of public records which by general or special law are exempt from § 119.07(2)(b). Id.
The Attorney General has approved a municipality’s creation of a static website containing documents sought through a records request, as well the municipality’s demand for reimbursement from the requestor of the funds expended in creating the website, which cost substantially less than the fee for copying the requested documents. Op. Att’y Gen. Fla. 06-30 (2006).Compare
6. How is email treated?
E-mail is treated no differently than other public records. See Op. Att’y Gen. Fla. 96-34 (1996) (official business-related e-mail sent or received by agency employees is a public record); see also Op. Att’y Gen. Fla. 08-07 (2008) (“e-mail messages made or received by agency employees or officials in connection with official business are public records and are subject to disclosure in the absence of an exemption”); Op. Att’y Gen. Fla. 05-12 (2005) (opining that city was precluded from requiring use of a code in order for citizens to view e-mail correspondence of the city’s police and human resources departments; use of such a code is of questionable validity because it purports to dictate an additional restriction or condition on access to public records). Further, the fact that an e-mail is sent to an “undisclosed or blind recipient” does not remove such an e-mail from the realm of public records subject to disclosure. Op. Att’y Gen. Fla. 07-14 (2007) (“e-mails sent by city commissioners in connection with the transaction with official business that are intended to communicate, perpetuate or formalize knowledge of some type are public records even though such e-mails contain undisclosed or blind recipients and their e-mail addresses and are subject to disclosure in the absence of a statutory exemption”).
In fact, Fla. Stat. § 668.6076 requires any agency or legislative entity that operates a website and uses e-mail to post the following statement on its website: “Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing.” Fla. Stat. § 668.6076 (2006).
Public matters on government e-mail or government hardware would accordingly be subject to the public records laws. However, private or personal e-mails contained on a government computer system are not public records. In State v. City of Clearwater, 863 So. 2d 149, 151 (Fla. 2003), the Florida Supreme Court considered whether “personal e-mails are considered public records by virtue of their placement on a government-owned computer system.” The Court ruled that private or personal e-mails are not public records. See id. at 153. The Court explained that the mere placement of such e-mails on government computers cannot make them public records; rather, “the e-mails must have been prepared ‘in connection with official agency business’ and be ‘intended to perpetuate, communicate, or formalize knowledge of some type.’” Id. at 154 (quoting Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980)). Under the holding of City of Clearwater, it follows that private or personal emails sent from a personal email account through a personal computer are not public records. Butler v. City of Hallandale Beach, 68 So. 3d 278 (Fla. 4th DCA 2011) (email sent by the Hallandale Beach Mayor to select personal friends and supporters, and which was not in connection with any municipal duty, was not a public record.).Compare
7. How are text messages and instant messages treated?
This issue does not appear to have been formally addressed by the Florida courts, legislature, or Attorney General’s Office. In 2009, however, the Florida Attorney General Office’s announced that it would treat Blackberry PIN and text messages as public records and that it was creating a “Sunshine Technology Team” to consider the open government requirements relating to electronic communications. The Office made clear, however, that its policy was not a legal determination or formal opinion. See, e.g., Attorney General Bill McCollum News Release, Sept. 19, 2009; Attorney General Bill McCollum News Release, Oct. 14, 2009 (available at http://www.myfloridalegal.com).Compare
8. How are social media postings treated?
A city council member is subject to the public records provisions of Chapter 119 when the member “is publicly posting comments relating to city business” or his or her public duties on privately owned and operated websites or blogs. Op. Att’y Gen. Fla. 08-07 (2008). “The individual council members who create the public documents through the posted comments and emails would be responsible for ensuring that the information is maintained in accordance with the Public Records Law and the policies and retention schedule adopted by the city.” Id.
The Attorney General has also determined that the placement of material on a city’s Facebook page “would presumably be in furtherance of” a municipal purpose and “in connection with the transaction of official business.” Op. Att’y Gen. Fla. 09-19 (2009). Such material would presumably be subject to the public records provisions of Chapter 119, but the determination would have to be made based on the definition of “public record” in section 119.11 on a case-by-case basis. Id. Whether the Facebook pages of any persons who are “friends” with the City constitute public records “would depend on whether the page and the information contained therein was made or received in connection of the transaction of official business by or on behalf of a public agency.” Id.Compare
9. Computer software
An agency’s software is a public record. See Fla. Stat. § 119.011(12). However, data processing software obtained by an agency under a licensing agreement which prohibits its disclosure and which software is a trade secret, as defined in Fla. Stat. § 812.081(c), and agency-produced data processing software which is sensitive are exempt. See Fla. Stat. §§ 119.07(2)(a), (b).
File metadata has not been addressed.Compare
D. Fee provisions or practices
1. Levels or limitations on fees
Permissible fees for copying are limited to the actual costs of duplication, unless fees are prescribed by law, or, if a fee is not prescribed by law, not more than 15 cents for copies not larger than 14 inches by 8 1/2 inches. Fla. Stat. § 119.07(4)(a) (2007); see also State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905) (a charge may not be levied simply because a person exerts his right to inspect and copy public records); Carden v. Chief of Police, City of Clewiston Police Dep’t, 696 So. 2d 772 (Fla. 2d. DCA 1996) (special service charges for researching and copying public records must not be unreasonable or excessive); WFTV Inc. v. Wilken, 675 So. 2d. 674 (Fla. 4th DCA 1996) ($1 per copy fee permitted under statutory schedule); Op. Att’y Gen. Fla. Op. 85-3 (providing access to public records is a statutory duty imposed upon all record custodians and should not be considered a revenue-generating operation). Section 119.07(1)(a) defines “actual cost of duplication” to mean “the cost of materials and supplies used to duplicate the record, but it does not include the labor costs or overhead costs associated with such duplication.”
A fee in the form of a special service charge is permitted for inspection and copying where the nature of the public records is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency. Fla. Stat. § 119.07(4)(d) (2007). The public records law incorporates the definition of “information technology resources” from Fla. Stat. section 282.303(9) (1995), which includes data processing hardware and software and services, supplies, personnel, facility resources, maintenance and training, or other related resources. Such fee must be reasonable and based on actual costs incurred by the agency. Fla. Stat. § 119.07(4)(a)(3) (2007); see also Op. Att’y Gen. Fla. 86-69 (1986) (charges for extensive use of information technology or extensive supervisory assistance may not be routinely imposed, and in the absence of such extensive use of information, technology resources or supervisory assistance, a municipal police department may charge only the actual costs of duplication for furnishing copies of accident reports); Op. Att’y Gen. Fla. 84-81 (1984) (imposition of a service charge for inspection of records is not justified merely because a record contains exempted material; rather, extensive supervisory assistance must be involved). Fees for copies of judicial records are not controlled by Chapter 119. WFTV v. Wilken, 375 So. 2d 674 (Fla. 4th DCA 1996).Compare
2. Particular fee specifications or provisions
Such items as “search or exploration” fees, employee time fees, fees imposed for ordinary wear and tear on machinery and the like may not be charged and collected by record custodians as a condition of inspection in the absence of specific statutory authorization. Compare Fla. Stat. §§ 15.09, 15.091, 28.24, 382.025 (1991) (imposing fees for searching certain public records); Bd. of Cty. Comm’rs of Highlands Cty. v. Colby, 976 So. 2d 31, 37 (Fla. 2d DCA 2008) (holding that service charge formula used to calculate fee for requests to inspect and/or copy public records that involve extensive research can include employee’s salary and benefits).
Record custodians must furnish copies of records, certified or otherwise, upon the payment of the actual cost of the duplication in the event specific fees are not prescribed by law. Fla. Stat. § 119.07(4) (2007). Even criminal defendants seeking postconviction relief are required to pay for copies of documents to be used in the preparation of motions for postconviction relief. Clowders v. State, 960 So. 2d 840, 841 (Fla. 3d DCA 2007) (holding that indigent criminal defendant was required to pay State for copies of documents to be used in preparation of motion for postconviction relief because, even though an “indigent prisoner may obtain free copies for plenary appeal, there is no such provision to obtain them afterward” and sections 119.07(1)(a) and (4) require payment for copies); Woodfaulk v. State, 935 So. 2d 1225, 1227 (Fla. 5th DCA 2006) (same).
Computer Access. The public records law provides that a custodian of public records may provide access to public records by electronic means and “the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect cost of providing such access. Fees for remote electronic access provided to the general public shall be in accordance with the provisions of this section.” Fla. Stat. §§ 119.07(2)(a), (c) (2007). As with other public records, in the absence of statutory authorization, a charge may not be imposed for the mere inspection of public records. See Op. Att’y Gen. Fla. 84-3 (1984); Op. Att’y Gen. Fla. 76-34 (1976). However, an agency may charge a reasonable special service charge for the use of information technology resources based on the cost incurred for extensive use of information technology resources or extensive use of clerical and supervisory assistance.
Further, if a records request is voluminous of complex in nature and requires extensive information technology resources or extensive clerical or supervisory assistance by agency personnel, in addition to the actual costs of duplication, an agency can charge a special service charge, as long as it is reasonable and based on the cost actually incurred for the resources expended. Fla. Stat. § 119.07(4)(d) (2007).Compare
3. Provisions for fee waivers
4. Requirements or prohibitions regarding advance payment
In Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31, 37 (Fla. 2d DCA 2008), the court held that a county can require a deposit prior to beginning research into a public records request as long as “it is reasonable and based on the labor cost that is actually incurred by or attributable to the County.” See also Lozman v. City of Riviera Beach, 995 So. 2d 1027, 1028 (Fla. 4th DCA 2008) (discussing Colby and holding that section 119.07(4) does not require adoption of a formal policy of requiring advance deposit).Compare
5. Have agencies imposed prohibitive fees to discourage requesters?
Chapter 119 seeks to facilitate access to public records. Accordingly, permissible fees for copying are limited to the actual costs of duplication, unless fees are prescribed by law, or, if a fee is not prescribed by law, not more than 15 cents for copies not larger than 14 inches by 8 1/2 inches. Fla. Stat. § 119.07(4)(a) (2007); see also State ex rel. Davis v. McMillan, 38 So. 666 (Fla. 1905) (a charge may not be levied simply because a person exerts his right to inspect and copy public records).Compare
6. How are fees for electronic records determined?
The public records law states that a custodian of public records may provide access to public records by electronic means and “the custodian may charge a fee for remote electronic access, granted under a contractual arrangement with a user, which fee may include the direct and indirect cost of providing such access. Fees for remote electronic access provided to the general public shall be in accordance with the provisions of this section.” Fla. Stat. §§ 119.07(2)(a), (c) (2007).Compare
E. Who enforces the act?
Florida courts have not addressed the issue of who may sue to enforce rights under Chapter 119.Compare
1. Attorney General's role
The Florida Legislature has created a Voluntary Mediation Program within the Attorney General’s Office to mediate disputes involving access to public records. See Fla. Stat. § 16.60 (2012). The Attorney General’s Office is required to employ mediators to mediate such disputes, recommend to the Legislature needed legislating regarding access to public records, and assist the Department of State in preparing training seminars record public records access. See Fla. Stat. § 16.60(3).Compare
2. Availability of an ombudsman
The Florida Legislature has created a Voluntary Mediation Program within the Attorney General’s Office to mediate disputes involving access to public records. See Fla. Stat. § 16.60 (2012).Compare
3. Commission or agency enforcement
In 2007, the Governor created the Office of Open Government, intended to ensure compliance with the state’s open government and public records laws. Fla. Exec. Order No. 07-01 (2007). The Order directed each agency to designate a person to act as the agency’s “public records/open government contact person,” who would be responsible for complying with open government and public records requests. See id.Compare
F. Are there sanctions for noncompliance?
The primary remedy available when a successful action is brought pursuant to Chapter 119 is a writ of mandamus requiring the agency to open its records for inspection. Fla. Stat. § 119.11(1) (1995); see also Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996). No other sanctions are addressed.Compare
G. Record-holder obligations
1. Processing records requests
Fla. Stat. § 119.07(1)(c) (2007) requires prompt acknowledgement of a request and a prompt good faith response: “A custodian of public records … must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith.” Only under limited circumstances can a records custodian delay making public records available. For example, § 119.07(1)(c) permits a delay for the records custodian to determine if the requested records exist. An unjustifiable delay, however, still results in a violation of the Public Records Act.Compare
2. Proactive disclosure requirements
There do not appear to be any proactive disclosure requirements for public records codified within Chapter 119.Compare
3. Records retention requirements
Section 119.021 describes the custodial, maintenance, preservation, and retention obligations for public records. “[P]ublic records should be kept in the buildings in which they are ordinarily used” and “a custodian of public records of vital, permanent, or archival records shall keep them in fireproof and waterproof safes, vaults, or rooms fitted with noncombustible materials and in such arrangement as to be easily accessible for convenient use.” Fla. Stat. §§ 119.021(1)(a), (b) (2015). The Division of Library and Information Services of the Department of State is tasked with establishing retention schedules and disposal procedures for public records with which each agency must comply. Fla. Stat. §§ 119.021(2)(a)-(b) (2015). “Each public official shall systematically dispose of records no longer needed, subject to the consent of the records and information management program of the division in accordance with s. 257.36.” Fla. Stat. § 119.021(d) (2015).Compare
II. Exemptions and other legal limitations
A. Exemptions in the open records statute
1. Character of exemptions
Generally, every person has the right to inspect records created or received in relation to official business of State legislative, executive, or judicial branches. However, the legislature may specifically exempt certain records from public access. The legislature must include in the exemption law the “public necessity justifying the exemption” and construct the restriction so that it “shall be no broader than necessary to accomplish the stated purpose of the law.” Art. I, § 24(c), Fla. Const.; see also Halifax Hosp. Med. Ctr. v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (exemption under section 286.011, Fla. Stat. (1995), which denied public access to transcripts generated at a public hospital board meeting, held to be overly broad and unconstitutional on its face).
Exemptions from the inspection provisions of Chapter 119 must be specifically provided for by statute. Wait v. Fla. Power & Light Co., 372 So. 2d 420 (Fla. 1979); see also Greater Orlando Aviation Auth. v. Nejame, LaFay, Jancha, Vara, Barker, 4 So. 3d 41, 43 (Fla. 5th DCA 2009) (“Courts are not authorized to create exemptions from disclosure or to read into laws exemptions not clearly created by Congress or by the State Legislature.”) (quoting Housing Auth. of Daytona Beach v. Gomillion, 639 So. 2d 117, 121 (Fla. 5th DCA 1994)); Miami Herald Publ’g Co. v. City of N. Miami, 452 So. 2d 572 (Fla. 3d DCA 1984), approved, 468 So. 2d 218 (only public records provided by statute to be confidential or which are expressly exempt by general or special law from disclosure under the public records law are exempt); Douglas v. Michel, 410 So. 2d 936 (Fla. 5th DCA 1982), answering certified questions, 464 So. 2d 545 (Fla. 1985); News-Press Publ’g Co. v. Gadd, 388 So. 2d 226 (Fla. 2d DCA 1980) (all documents falling within the scope of the public records law are subject to disclosure unless specifically exempt by statute; court may not consider public policy questions regarding relative significance of public interest in disclosure and damage resulting from such disclosure).
Provisions exempting specified categories of records from the requirements of Section 119.07(1) do not specify whether such exemptions are mandatory or discretionary. However, the public records law is to be liberally construed in favor of open government, and exemptions are to be construed narrowly so they are limited to their stated purpose. See City of Petersburg v. Romine ex rel. Dillinger, 719 So. 2d 19 (Fla. 2d DCA 1998), reh’g denied; Christy v. Palm Beach Cty.. Sheriff’s Office, 698 So. 2d 1365 (Fla. 4th DCA 1997); Gillim v. Tribune Co., 503 So. 2d 327 (Fla. 1987); Seminole Cty.. v. Wood, 512 So. 2d 1000 (Fla. 5th DCA 1987); Tribune Co. v. Pub. Records, 493 So. 2d 480 (Fla. 2d DCA 1986), review denied; Bludworth v. Palm Beach Newspapers Inc., 476 So. 2d 775 (Fla. 4th DCA 1985), review denied, 488 So. 2d 67 (Fla. 1986); Miami Herald Publ’g Co. v. City of N. Miami, 452 So. 2d 572 (Fla. 3d DCA 1984), approved, 468 So. 2d 218 (Fla. 1985). There is a difference between records which are exempt from inspection and those which are made confidential by statute. Op. Att’y Gen. Fla. 89-12; Op. Att’y Gen. Fla. 85-62. If records are simply exempt, an agency is not prohibited from disclosing records in all circumstances. Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA), review denied, 589 So. 2d 289 (Fla. 1991).
Where the purpose of an exemption is to protect an individual or a class of individuals, and the statutory language includes the term “shall,” the exemption is likely to be regarded as mandatory. However, in light of the presumption of openness of public records, a custodian may have discretion to make available otherwise exempt records where the reason for the exemption is not present and it is in the interest of the public that the records be made available.
Pursuant to Section 119.07(1)(d), when an exemption applies to a requested record, the person who has custody is to “redact that portion of the record to which an exemption is asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.”Compare
2. Discussion of each exemption
Between 200 to 600 statutory exceptions exist to the public records law, making discussion of each one impractical. The difficulty in identifying exemptions is partially because the enactment of exemptions has occurred over many years, often as part of larger bills. Also, because the term “exemption” had no statutory definition, no uniform language was used when exemptions were created.
Exemptions concerning categories of records of particular interest to reporters are discussed at III below. Additionally, a code section regulating a particular activity is likely to contain the provision, if any, concerning disclosure requirements relating to such activity.
With the passage of the Open Government in the Sunshine Review Act in 1984, exemptions created in the future will be easier to identify. The exemption must specifically state the section from which it is exempt (i.e., § 119.07(d)-(f) or § 286.011). Fla. Stat. § 119.15(4)(a) (2012).
The Open Government Review Act serves as a statutory review mechanism whereby the legislature periodically determines, pursuant to specified criteria, whether the public policy underlying a particular exemption continues to exist. Exemptions which are not renewed in the year scheduled for review are automatically repealed. Fla. Stat. § 119.15 (2012).
B. Other statutory exclusions
Non-Statutory Privacy Rights. No Florida constitutional right of privacy creates an exemption from Chapter 119. The 1980 Florida constitutional amendment to Article 1, sec. 23, creates a right of privacy but provides:
Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meeting as provided by law (emphasis supplied).
The privacy amendment does not constrain public access to information in the public domain pursuant to the public records law or Sunshine Laws. Forsberg v. Housing Auth., 455 So. 2d 373 (Fla. 1984); Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981).
While there is no Florida constitutional privacy exemption from the public records law, the question of a federal constitutional right of disclosural privacy has not been definitely answered. See Paul v. Davis, 424 U.S. 693, reh’g denied, 425 U.S. 985 (1976) (no federal constitutional privacy interest exists in relation to state dissemination of nonconviction arrest data); Fadio v. Coon, 633 F.2d 1172, 1175 n.3 (5th Cir. 1981) (referring to Wait, and stating that “it is clear that the legislature cannot authorize by statute an unconstitutional invasion of privacy”); Roberts v. News-Press Publ’g Co., 409 So. 2d 1089 (Fla. 2d DCA 1982), petition for review denied, 418 So. 2d 1280 (Fla. 1982) (there may be a federal constitutional right of disclosural privacy for employees in regard to personnel files); Op. Att’y Gen. Fla. 77-125 (1977) (discussing Paul v. Davis).Compare
C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure
Courts may not create common law or public policy exemptions to the Act. However, when application of the Act to specific records would violate a constitutional right, the Courts must construe that statute to permit an exemption. Fla. Freedom Newspapers v. McCrary, 497 So. 2d 462 (Fla. 1st DCA 1987).Compare
D. Are segregable portions of records containing exempt material available?
To the extent a valid exemption has been asserted and applies to part of a public record, Chapter 119 allows that portion of the record to be redacted. Fla. Stat. § 119.07(1)(d). The remainder of the record must be produced for inspection and copying. Id. The person who has custody of the public record shall state the basis for the exemption he or she contends applies to all or part of the record, including the statutory citation. Fla. Stat. § 119.07(1)(e).Compare
III. Record categories - open or closed
A. Autopsy and coroners reports
Generally, autopsy reports made by a district examiner are subject to Chapter 119 (Public Records Law). See Op. Att’y Gen. Fla. 78-23 (1978) (autopsy reports made by a district medical examiner pursuant to Fla. Stat. § 406 (1991) are public records and should be held open to inspection by the public). Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991) (still photographs and videotapes taken by the police of an autopsy are public records). But see, Palm Beach Newspapers v. Telizzese, 6 Fla. Supp. 2d 8 (Fla. 15th Cir. 1984) (there was no compelling reason to continue to withhold an autopsy report from the public where release of the report no longer posed a threat to a continuing investigation, and section 406.17 operated to repeal a special law which created an exception to the public records law in providing that records prepared by the Palm Beach County medical examiner were confidential). Cf. Yeste v. Miami Herald Publ’g, 451 So. 2d 491 (Fla. 3d DCA 1984), rev. denied, 461 So. 2d 115 (Fla. 1984) (section 382.008(6) makes the medical certification of the cause of death in death certificate when no autopsy was performed by a medical examiner confidential by implication and therefore exempt from public inspection and copying pursuant to section 119.07(3)(a)).
However, in 2001, the state legislature exempted from the disclosure requirements of section 119.07(1) and section 24(a), Art. I, photographs or video or audio recordings of an autopsy in the possession of a medical examiner or any person assisting the medical examiner who may have possession of the photograph, video, or audio recording. H.B. No 1083, 2001 Fla. Sess. Law Serv. Ch. 2001-1 (H.B. 1083) (West). The surviving spouse or, if no surviving spouse, the surviving parent(s), or if no surviving spouse or parent, an adult child may access the autopsy records, and a court may grant any person access to such materials upon a showing of good cause. Id. The Florida Seventh Circuit Court applied the exemption in Earnhardt v. Volusia Cty., Office of Med. Exam’r, No. 2001-30373-CICI, (Fla. 7th Cir. 2001), to withhold from the media and interested individuals access to autopsy photographs of famed race car driver Dale Earnhardt. On appeal, the court held that the exemption was not unconstitutionally overbroad. Campus Commc’ns Inc. v. Earnhardt, 821 So. 2d 388 (Fla. 5th DCA 2002).Compare
B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)
C. Bank records
To the extent that bank records are records of a “public agency” and are not within a statutory exemption, they are subject to the disclosure requirements. Cf. Op. Att’y Gen. Fla. 73-167 (1973) (records maintained by the abandoned property section of the Dept. of Banking and Finance are subject to inspection). See Fla. Stat. § 517.2015(2003) (exempting records obtained pursuant to an investigation by the Department of Banking and Finance until completion of the investigation); Fla. Stat. § 17.076(5) (2006) (exempting all direct deposit records under program established by the Department of Banking and Finance made prior to October 1, 1986, and with respect to subsequent records, the names of authorized institutions and the account numbers of the beneficiaries).Compare
Information pertaining to budgets is generally subject to public disclosure under Chapter 119. For example, the Act requires a City to make proposals relating to the budget for a City’s fire department public. City of Gainesville v. State ex. rel. Int’l Ass’n of Fire Fighters, Local No. 2157, 298 So. 2d 478, 479 (Fla. 1st DCA 1974); see also B & S Utils., Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17, 21-23 (Fla. 1st DCA 2008) (where engineering firm that was hired as a contractor had responsibilities that included budget, funding, and financing tasks that “could shape the City’s budget,” the records were subject to Chapter 119); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976) (working papers used by a college to prepare its budget, in addition to records with the names and addresses of college employees, were public records that were not exempt from disclosure). And, although Section 447.605(3), Florida Statutes, exempts “[a]ll work products developed by the public employer in preparation for negotiations, and during negotiations … from” section 119.07(1), budget work sheets that were prepared to develop a school board’s budget were not exempt from the Act because they subsequently used in collective bargaining. Bay Cty. Sch. Bd. v. Pub. Emps. Relations Comm’n, 382 So. 2d 747 (Fla. 1st DCA 1980).Compare
E. Business records, financial data, trade secrets
Unless statutorily exempt, business records and financial data are subject to disclosure under Chapter 119.
Trade Secrets. Trade secrets are exempt from inspection. Sepro Corp. v. Fla. Dep’t of Envtl. Prot., 839 So. 2d 781 (Fla. 1st DCA 2003); Fla. Stat. § 815.045; see also Freedom of Information Act, 5 U.S.C. § 552(b)(4) (exempting trade secrets from disclosure); Fla. Stat. § 337.14(1) (1997) (exempting financial statements submitted to the Department of Transportation from inspection by the Department of Professional Regulation, Board of Accountancy); Fla. Stat. §§ 119.07(2)(b) and 815.04(3)(a)(2014) (exempting data processing software obtained by an agency under a licensing agreement where such software is a trade secret, as defined in Fla. Stat. § 812.081 (1996), and exempting sensitive agency-produced data processing software); Fla. Stat. § 112.21(1) and 112.215(7) (1996) (exempting records identifying participants, and their personal account activities, in tax-sheltered annuities, custodial accounts, or deferred compensation plans, established by any government entity); Fla. Stat. § 403.111 (1996) (exempting information relating to secret processes and methods of manufacture or production).
Lists of subscribers and purchasers and a seller’s contracts, reports, and communications with suppliers and vendors constituted trade secrets and were exempt from disclosure as public records, but that customer complaints and responses were not. James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A. v. Rodale, Inc., 41 So. 3d 386 (Fla. 1st DCA 2010).
Attorney Work Product. In City of North Miami v. Miami Herald Publishing Co., 468 So. 2d 218 (Fla. 1985), the Supreme Court concluded that written communications between lawyers and governmental attorneys are not exempt from Chapter 119. See also, Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998); Neu v. Miami Herald Publ’g Co., 462 So. 2d 821 (Fla. 1985). However, the Legislature then amended the Public Records Law in Section 119.07(3)(k)(1) to exempt public attorney work product. It provides that records prepared by or at the express direction of an agency’s attorney, which reflect a mental impression, conclusion, litigation strategy or legal theory of the attorney or agency, and which were prepared exclusively for civil or criminal litigation or adversarial administrative proceedings, or in anticipation of imminent litigation or proceedings, are exempt from disclosure until the conclusion of the litigation or proceedings. Evans v. State, 995 So. 2d 933, 941-42 (Fla. 2008) (holding that criminal defendant was not entitled to letter from State Attorney to witness because letter contained State Attorney’s mental impression about claims raised in post-conviction motion for relief and was created exclusively for post-conviction evidentiary hearing “as contemplated in section 119.071(1)(d)1, Florida Statutes (2007)”); Kearse v. State, 696 So. 2d 976, 988-89 (Fla. 2007) (holding that letter containing Assistant State Attorney’s mental impression about case “clearly fits within the exemption [under 119.071(1)(d)1] of attorney work product prepared with regard to the ongoing postconviction proceedings”); Lopez v. State, 696 So. 2d 725 (Fla. 1997) (handwritten notes concerning defendant’s case were exempted from disclosure to defendant). But see Lightbourne v. McCollum, 969 So. 2d 326, 333-34 (Fla. 2007) (holding that memoranda prepared by agency attorney were not entitled to exemption from public records requests under section 119.071(1)(d)1 because they contained factual information, instead of mental impressions and litigation strategy, and were not prepared for litigation purposes).
In addition, in Wagner v. Orange County, 960 So. 2d 785, 791-92 (Fla. 5th DCA 2007), the court held that the section 119.071(1)(d) exemption from public record disclosure of documents prepared for litigation extends to post-judgment collection efforts, including claim bills, and prevents a plaintiff from acquiring the litigation file of a private firm hired to defend county.Compare
F. Contracts, proposals and bids
Fla. Stat. section 119.07(3)(m) (2007) provides that sealed bids or proposals received by an agency pursuant to invitations to bid or requests for proposals are exempt from disclosure until such time as the bids or proposals are opened. However, submissions which are not technically “bids” may be subject to inspection. See Op. Att’y Gen. Fla. 74-245 (1974) (developer’s plan submitted to flood control district for review and recommendation is a public record subject to inspection).Compare
G. Collective bargaining records
Work products by a public employer made in preparation for and during negotiations are exempt from the Public Records Law, Chapter 119, Fla. Stat. § 447.605(3) (1997). In addition, discussions between a chief executive officer and the legislative body or public employer relative to collective bargaining are exempt from disclosure requirements of the public records law. Fla. Stat. § 447.605(1) (1997). However, proposals and counter proposals presented during the course of collective bargaining are subject to Public Records Law section 119.07(1). Compare Inf. Op. Att’y Gen. Fla. to Dr. Gus Sakkis (July 7, 1969) (the Legislature did not intend section 447.605(3) to exempt budgetary or fiscal information from the purview of section 119) with Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976) (ordering working papers used in preparing a college budget produced for inspection by a labor organizer).Compare
H. Economic development records
Florida Statute 288.075 provides certain exemptions from the disclosure requirements of Chapter 119 for the records of economic development agencies.Compare
I. Election Records
Election records which are not statutorily exempt from Chapter 119 are subject to inspection. Cf. Sentinel Commc’ns Inc. v. Anderson, No. 01-48 CA-SW, 2001 WL 688528 (Fla. Cir. Ct. Jan. 19, 2001) (writ of mandamus issued to compel Supervisor of Elections to mechanically separate for plaintiff newspaper undervotes and overvotes cast on ballots); Op. Att’y Gen. Fla. 75-17 (1975) (lists of names and addresses of persons requesting absentee ballots are available for inspection); Op. Att’y Gen. Fla. 74-284 (1974) (poll list kept by the election board at the poll place on the day of election is not available to the public until transmission of the poll list and registration books to the supervisor of elections).
Several statutory provisions exist which limit access to election records. For example, investigations of complaints filed with the Division of Elections or the Florida Elections Commission, along with relevant reports and recommendations are exempt from Chapter 119 until disposition of such complaint. Fla. Stat. § 106.25(6) (2013). See Op. Att’y Gen. Fla. 77-46 (1977). And, unused and unvoted punch cards from the 2000 presidential election were not public records. Rogers v. Hood, 906 So. 2d 1220 (Fla. 1st DCA 2005).
Although citizens may examine the registration books, copying of such books is prohibited. Fla. Stat. § 98.211 (1995). Information regarding requests for absentee ballots is exempt from disclosure. Fla. Stat.§. 101.62(3) (2014). When ballots are produced for inspection, no person other than the supervisor of elections or his employees may touch the ballots. Fla. Stat. § 119.07(1)(c) (1991).Compare
J. Emergency Medical Services records
Section 401.30(4) of the Florida Statutes provides that “[r]ecords of emergency calls which contain patient examination or treatment information are confidential and exempt from the provisions of s. 119.07(1) and may not be disclosed without the consent of the person to whom they pertain, but appropriate limited disclosure may be made without such consent:
(a) To the person’s guardian, to the next of kin if the person is deceased, or to a parent if the person is a minor;
(b) To hospital personnel for use in conjunction with the treatment of the patient;
(c) To the department;
(d) To the service medical director;
(e) For use in a critical incident stress debriefing. Any such discussions during a critical incident stress debriefing shall be considered privileged communication under s. 90.503;
(f) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records, to the patient or his or her legal representative; or
(g) To a local trauma agency or a regional trauma agency, or a panel or committee assembled by such an agency to assist the agency in performing quality assurance activities in accordance with a plan approved under s. 395.401. Records obtained under this paragraph are confidential and exempt from s. 119.07(1) and s. 24(a) Art. I of the State Constitution.
This subsection does not prohibit the department or a licensee from providing information to any law enforcement agency or any other regulatory agency responsible for the regulation or supervision of emergency medical services and personnel.” Fla. Stat. § 401.30(4) (1999).
An entity subject to Chapter 119 can ensure proper patient consent, including requiring a notarized signature, prior to disclosing records of emergency calls that contain patient, and other, confidential information though section 401.30(4) does not require notarization. Lee Cty. v. State Farm Mut. Auto. Ins. Co., 634 So. 2d 250, 250-51 (Fla. 2d DCA 1994).Compare
K. Gun permits
Florida law places significant limits the disclosure of firearm ownership records. In 2006, the Florida Legislature enacted section 790.0601 (2014), Florida Statutes, which outlines a public records exemption for concealed weapons. Under section 790.0601, personal identifying information of an individual who has applied for or received a license to carry a concealed weapon or firearm is confidential and exempt from disclosure under section 119.07, Florida Statutes, and Article I, section 24(a) of the Florida Constitution, which give every person the right to inspect and copy public records. Disclosure of such information is permitted, however, when (a) the applicant or licensee has given his or her express written consent, (b) a court orders disclosure upon a showing of good cause, or (c) a law enforcement agency requests disclosure in connection with the performance of its lawful duties. § 790.0601(3), Fla. Stat.
Florida law also prohibits the state from maintaining a list, record, or registry of privately-owned firearms or law-abiding firearm owners. See § 790.335(2), Fla. Stat. (2009); see also § 790.065(4), Fla. Stat. (2013) (prohibiting the state from maintaining records of the names of approved firearm purchasers or transferees or records of firearm transactions and deeming criminal record checks created by the Department of Law Enforcement confidential, exempt from the provisions of § 119.07(1), Fla. Stat., and barred from disclosure). Section 790.335, which was enacted in 2004 and amended in 2006, explains the legislative intent underlying the statute: such records are not tools for law enforcement or for fighting terrorism, but rather can become instruments of profiling, harassment, or abuse of law-abiding citizens who choose to exercise their right under the Second Amendment of the United States Constitution to keep and bear arms. § 790.335(1)(a), Fla. Stat. Florida law does, however, set forth several exceptions permitting disclosure. Section 790.335(3) allows, for example, the keeping of records of firearms used in the commission of a crime, records relating to persons convicted of a crime, and records of firearms reported stolen. Additionally, both section 790.335(3)(d) and section 790.065(4)(b) permit the maintenance of records pursuant to federal law.Compare
L. Homeland security and anti-terrorism measures
Any information revealing surveillance techniques or procedures or personnel is exempt. “Security system plans” are also exempt. Such plans include all“[r]ecords, information, photographs, audio and visual presentations, schematic diagrams, surveys, recommendations, or consultations or portions thereof relating directly to the physical security of the facility or revealing security systems; threat assessments conducted by any agency or any private entity; threat response plans; [e]mergency evacuation plans; [s]heltering arrangements; or [m]anuals for security personnel, emergency equipment, or security training.” Building plans and blueprints of buildings, recreational facilities, entertainment venues and more are exempt if held by a government agency. Fla. Stat. § 119.071(3)(a)(1)(a-f).Compare
M. Hospital reports
Public hospital records are subject to disclosure absent statutory examination. Op. Att’y Gen. Fla. 97-49 (1997) (records relating to the operation of hospital are subject to Chapter 119); Tribune Co. v. Hardee Mem’l Hosp., Case No. CA-91-370 (10th Cir. Hardee Cty., August 1991) (settlement agreement entered in lawsuit against hospital alleging hospital swapped babies was public record subject to disclosure despite confidentiality provision in agreement). However, many statutory exemptions limit public access to hospital records. See Fla. Stat. § 395.0193(6) (records of peer review committees and governing boards of hospitals which relate to disciplinary proceedings against staff); Fla. Stat. § 456.057(7)(a) (2013) (records of diagnosis, treatment and examination may not be released without written authorization of the patient); Fla. Stat. § 394.459(9) (2005) (community mental health facility established under the Florida Mental Health Act is prohibited from releasing any part of a patient’s clinical record, including the patient’s name, address, or other identifying information. Such records are exempt from section 119.07(1), and may only be released to the patient, guardian, or law enforcement agencies which must maintain confidentiality record.
Records of pregnancy termination are also privileged information and deemed to be confidential records, except upon court order. Such information may not pass from the hospital and may lawfully be released only when authorized by a court of competent jurisdiction. Fla. Stat. § 390.0112 (2013).
In addition, the following public hospital records are exempt from section 119.07(1): Preferred provider organization contracts, health maintenance organization contracts, documents revealing a hospital’s plans for marketing hospital services which are or may be reasonably expected to be provided by the hospital’s competitors, and documents that reveal trade secrets as defined in section 668.022. Fla. Stat. §§ 395.3035(2)(a)-(d) (2004).Compare
N. Personnel records
The Florida Supreme Court in Douglas v. Michel, 464 So. 2d 545 (Fla. 1985) held there is no state or federal constitutional right of disclosural privacy in hospital personnel records in the context of the public records law. However, medical records have been held to be exempt from disclosure. See Lewis v. Schreiber, 611 So. 2d 531 (Fla. 4th DCA 1992) (salary information subject to inspection); Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633 (Fla. 1980) (resumes subject to inspection); News-Press Publ’g Co. v. Kaune, 511 So. 2d 1023 (Fla. 2d DCA 1987) (reports of physical examinations of fire fighters performed pursuant to contract with city not subject to disclosure under public records law); Fla. Stat. § 112.08(70) (exempting all medical records relating to employees enrolled in a group insurance plan). Accord Gadd v. News-Press Publ’g Co., 412 So. 2d 894 (Fla. 2d DCA 1982) (a newspaper is entitled under Chapter 119 to inspect the personnel files of present and past medical staff physicians of a public hospital); Clark v. Walton, 351 So. 2d 353 (Fla. 4th DCA 1977) (city clerk obligated by the public records law to furnish union organizer with names and addresses of all city employees); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976) (labor organization is entitled to obtain records containing names and address of employees of public college); Beaulieu v. Bd. of Trs. of Univ. of W. Fla., 2007 WL 2900332, at *8 (N.D. Fla. Oct. 2, 2007) (holding that a party cannot demand the destruction of public records contained in their personnel file which are open to disclosure).
Law Enforcement Personnel Records. Access to certain personnel records of law enforcement officers is more restricted than access to the records of other public employees. For example, complaints filed against law enforcement officers or correctional offices with a law enforcement agency or correctional agency and information obtained pursuant to the agency’s investigation are confidential until the conclusion of the internal investigation or until the investigation ceases to be active without a finding relating to probable cause. Fla. Stat. § 112.533(2) (1995). Similarly, in Fraternal Order of Police v. Rutherford, 51 So. 3d 485 (Fla. 1st DCA 2011) , internal investigations of the Jacksonville Sheriff’s Office’s Response to Resistance Board, conducted when an officer uses force, were deemed subject to the confidentiality provisions of sections Fla. Stat. §§ 112.532(4)(b) and 112.533(2)(a), which are exemptions from the public’s general right to access public records and meetings under Article I, § 24 of the Florida Constitution and Fla. Stat. § 119.01(1). These confidentiality provisions apply only during the period of the investigation and do no prohibit public access, but merely delay it until the investigation is completed or abandoned. See also AXA Equitable Life Ins. Co. v. Sands, 2006 WL 5217762 at *1 (N.D. Fla. Oct. 2, 2006) (expressing that under Chapter 119 the defendant could depose the state medical examiner as soon as the current criminal investigation is concluded).
However, Florida courts have distinguished the acquisition of public documents under Chapter 119 with a party’s discovery rights to access materials through judicially-created rules of procedure. See Reiser v. Wachovia Corp., 2007 WL 1696033 at *2 (M.D. Fla June 12, 2007) (citing Wait v. Fla. Power & Light Co., 372 So. 2d 420, 425 (Fla. 1979); B.B. v. Dep’t of Child & Family Servs., 731 So. 2d 30, 34 (Fla. 4th Dist. Ct. App. 1999); see also Dekaurentos v. Peguero, 47 So. 3d 879 (Fla. 3d DCA 2010) (Fla. Stat. § 119.071(4)(b) does not exempt police officers’ pre-employment psychological evaluations from disclosure in discovery in a wrongful death action because the statute does not create a privilege that would insulate medical records from discovery in litigation).
Furthermore, the home address, telephone numbers and photographs of active or former law enforcement personnel, their spouses and children, as well as the places of employment of spouses and children and the names and location of schools attended by their children are closed. Fla. Stat. § 119.071(4)(d)(2) (2015).
Public School Employee Records. Access to certain public-school system employee personnel files is statutorily limited. For example, complaints and any material relating to the investigation of a complaint against an employee are confidential until the conclusion of the preliminary investigation or until the preliminary investigation ceases to be active. Fla. Stat. §§ 1012.31(3)(a)1. (2004); 1012.796(4) (2010). In addition, employee evaluations are confidential until the end of the school year immediately following the school year during which the evaluation was made. Fla. Stat. § 1012.31(3)(a)2. (2004). However, the “value added” measurement, which denotes the difference in the number a student actually received on the FCAT from what the score student was projected to receive, which is only part of a teacher’s annual evaluation, is not exempt from disclosure. Morris Publ’g Grp., LLC v. Fla. Dep’t of Educ., 133 So. 3d 957, 960-61 (Fla. 1st DCA 2014). Payroll deduction records of a school employee are confidential, as are an employee’s medical records. Fla. Stat. §§ 1012.31(3)(a)4.-5. (2004).
Personnel files of faculty and administrators of institutions of higher learning are exempt from inspection. Fla. Stat. § 240.253. Records reflecting evaluations of performance may be viewed only by the employee and university officials. Cantanese v. Ceros-Livingston, 599 So. 2d 1021 (Fla. 4th DCA), review denied, 613 So. 2d 2 (Fla. 1992). The statute allows regulations of the Board of Regents to prescribe the content and custody of limited access records which an institution in the state university system may maintain on its employees. Such records are limited to information reflecting evaluations of employee performance and are open for inspection only by the employee and by officials of the university who are responsible for supervision of the employee. See Tallahassee Democrat v. Fla. Bd. of Regents, 314 So. 2d 164 (Fla. 1st DCA 1975); Op. Att’y Gen. Fla. 73-212A (1973). The Legislature again amended this section to permit each university to prescribe the content and custody of limited access records which that university may maintain on its employees. Fla. Stat. § 1012.91 (2003). Such records are also limited to information reflecting evaluations of employee performance.Compare
In Fla. Power & Light Co. v. Fla. Pub. Serv. Comm’n, 31 So. 3d 860 (Fla. 1st DCA 2010), certain compensation information of Florida Power & Light employees was deemed confidential and exempt from public disclosure in connection with ratemaking proceedings pursuant to Fla. Stat. §§ 119.07(1) and 366.093(2).Compare
2. Disciplinary records
Personnel records, including any disciplinary records in an agency employee’s personnel file, are subject to public inspection pursuant to the provisions of Chapter 119. Op. Att’y Gen. Fla. 94-75 (Sept. 7, 1994); see Op. Att’y Gen. Fla. 05-23 (Apr. 5, 2005).Compare
Applications for public employment fall within the purview of Chapter 119 and are thus subject to public inspection and examination. Op. Att’y Gen. Fla. 77-48 (May 19, 1977).Compare
4. Personally identifying information
United States Census Bureau Information. Fla Stat. § 119.071(1)(g)(1) formerly provided that: “United States Census Bureau address information, which includes maps showing structure location points, agency records verifying addresses, and agency records identifying address errors or omissions, held by an agency pursuant to the Local Update of Census Addresses Program, Title 13, United States Code, Pub. L. No. 103-430, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.” However, this section has since been repealed.
Social Security Numbers. Fla Stat. § 119.071(5)(a)(5) provides that: “Social security numbers held by an agency are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.” However, the statute contains a number of exceptions which allow for disclosure. Fla. Stat. § 119.071(5)(a)6.a.-h. (2007).
Bank Account Information. Fla Stat. § 119.071(5)(b) provides that: “Bank account numbers and debit, charge, and credit card numbers held by an agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.”
Government-Sponsored Activities for Children. Fla Stat. § 119.071(5)(c)(2) provides that: “Information that would identify or help locate a child who participates in a government-sponsored program is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.” Information that would locate the parent or guardian of a child who participates in a government-sponsored recreation program is also exempt. See Fla Stat. § 119.071(5)(c)(3).
Record Supplied to Telecommunication Companies. Fla Stat. § 119.071(5)(d) provides that: “All records supplied by a telecommunications company, as defined by s. 364.02, to an agency which contain the name, address, and telephone number of subscribers are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.”
Ridesharing Arrangements. Fla Stat. § 119.071(5)(e) provides that: “Any information provided to an agency for the purpose of forming ridesharing arrangements, which information reveals the identity of an individual who has provided his or her name for ridesharing, as defined in s. 341.031, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.”
Provided Medical History Records and Information Relating to Health or Property Insurance. Fla Stat. § 119.071(5)(f) provides that: “Medical history records and information related to health or property insurance provided to the Department of Economic Opportunity, the Florida Housing Finance Corporation, a county, a municipality, or a local housing finance agency by an applicant for or a participant in a federal, state, or local housing assistance program are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.”
Boimetric Identification Information. Fla Stat. § 119.071(5)(g)(1) provides that: “Biometric identification information held by an agency before, on, or after the effective date of this exemption is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.” Biometric information includes any record of friction ridge detail, fingerprints, palm prints, and footprints. See id.
Paratransit Services. Fla Stat. § 119.071(5)(h)(1) provides that: Personal identifying information of an applicant for or a recipient of paratransit services which is held by an agency is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.Compare
5. Expense reports
Expense records are generally subject to Chapter 119 and are not exempt from disclosure. See Palm Beach Cmty. Coll. Found., Inc. v. WFTV, Inc., 611 So. 2d 588, 589-90 (Fla. 4th DCA 1993) (expense reports that did not identify donors were not exempt from disclosure under Florida Statute section 240.331(3) on annual audits, which provides, in pertinent part, that “[t]he identity of donors who desire to remain anonymous shall be protected, and that anonymity shall be maintained in the auditor’s report. All records of the organization, other than the information necessary for the annual report required by s. 240.311(3)(h)6. And the auditor’s report and supplemental data requested by the board of trustees and the Auditor General, shall be confidential and exempt from the provisions of s. 119.07(1).”); Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302 (Fla. 3d DCA 2001) (expense records pertaining to lobbyist payments and other non-reimbursable expenses constituted public records, subject to disclosure).Compare
O. Police records
1. Accident reports
As a general rule, accident reports are subject to Public Records Law (Chapter 119) disclosure requirements. However, police accident records often encompass exempt information, such as confessions or investigatory data, discussed at 4. below, thus the portions of reports containing such information will be exempt from public records disclosure.Compare
2. Police blotter
Police blotters are subject to public inspection.Compare
3. 911 tapes
To the extent that records of 911 tapes are not otherwise statutorily exempt from the mandates of the Public Records Law (Chapter 119) (i.e., confessions, etc.), they are subject to public inspection.Compare
4. Investigatory records
The Legislature has exempted from public inspection certain criminal intelligence and investigative records and files. Fla. Stat. § 119.071(2) (2015). See Fla. Stat. § 119.011(3)(a), (b) and (c), (2008) (defining criminal intelligence and investigative information). See also, Rose v. D’Allessandro, 380 So. 2d 419 (Fla. 1980) (complaints and affidavits received by a state attorney in discharge of his investigatory duties are subject to terms of statute relating to criminal investigative and intelligence information). The exemption includes criminal intelligence or investigative information received by a Florida criminal justice agency from a non-Florida criminal justice agency on a confidential or similarly restricted basis. Fla. Stat. § 119.071(2)(b) (2015). The purpose of the intelligence/investigative information exemptions is to prevent premature disclosure of information when such disclosure could impede an ongoing investigation or allow a suspect to avoid apprehension or escape detection. See Tribune Co. v. Public Records, 493 So. 2d 480 (Fla. 2d DCA 1986), review denied, 503 So. 2d 327; Tribune Co. v. Cannella, 438 So. 2d 516 (Fla. 2d DCA 1983), rev’d on other grounds, 458 So. 2d 1075 (Fla. 1984), app. dismissed, 105 S. Ct. 2315 (1985).
The police investigative/intelligence records exemption only applies when such records are active. Fla. Stat. § 119.071(2)(c) (2015). Intelligence information is considered active "as long as it is related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities." Fla. Stat. § 119.011(3)(d)(1) (2008). Investigative information is considered active "as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future." Fla. Stat. § 119.011(3)(d)(2) (2008). See generally, Christy v. Palm Beach County Sheriff's Office, 698 So. 2d 1365 (thirteen years old arrest record which was not pertinent to pending prosecution was not exempt); Tribune Co. v. Cannella, 438 So. 2d 516 (information filed before the investigative process begins cannot be criminal investigative information, nor can such information be criminal investigative information, nor can such information be criminal intelligence information which is information collected in an effort to anticipate criminal activity). See also Op. Att’y Gen. Fla. 96-05 (1996) (criminal investigation of police officer is not exempt from public records disclosure requirements unless the record is deemed “active”). Cf. Fla. Freedom Newspapers Inc. v. Dempsey, 478 So. 2d 1128 (Fla. 1st DCA 1985) (there is no fixed time limit for naming suspects or making arrests other than the applicable statute of limitations).
Criminal intelligence/investigative information is considered to be “active” while such information is directly related to pending prosecutions or appeals. Fla. Stat. § 119.011(3)(d); see also Tal-Mason v. Satz, 614 So. 2d 1134 (Fla. 4th DCA), rev. denied (Fla. 1993); News-Press Publ’g Co. Inc. v. Sapp, 464 So. 2d 1335 (Fla. 2d DCA 1985); Wells v. Sarasota Herald Tribune Co., 546 So. 2d 1105 (Fla. 2d DCA 1989); Tribune Co. v. Public Records, 493 So. 2d 480, (actions for post-conviction relief after a conviction has been affirmed on direct appeal are not pending appeals for purposes of section 119.011(3)(d)(2)); cf. Satz v. Gore Newspaper Co., 395 So. 2d 1274 (Fla. 4th DCA 1981) (a state attorney’s files on a civil matter which had been concluded contained criminal investigative information where testimony showed such information was and could be used to prevent and monitor possible criminal activity). Once the conviction and sentence have become final, the exemption no longer applies. State v. Kokal, 562 So. 2d 324 (Fla. 1990); City of Avon Park v. Florida, 117 So. 3d 470 (Fla. 2d DCA 2013) (report of investigator for state attorneys’ office, which contained mental impressions, was no longer exempt when investigation and criminal proceedings concluded because no charges were filed against parties in the report). See McDougall v. Culver, 3 So. 3d 391 (Fla. 2d DCA 2009) (the Sheriff’s Office’s internal affairs investigation procedures did not violate the Sunshine Law by failing to make memoranda relating to the investigations public until after the investigations were concluded). However, although an alleged incident of domestic violence is exempt from disclosure because it is related to an active, ongoing criminal investigation, some information that pertains to “time, date, location, and nature of a reported crime,” is not exempt from disclosure. Barfield v. City of Tallahassee, 171 So. 3d 239 (Fla. 1st DCA 2015) (citing Fla. Stat. § 119.011(3)(c)1).
Records disclosed to a criminal defendant are not exempt as investigative or intelligence information. Fla. Stat. § 119.011(3)(c)(5) (1995). See Satz v. Blankenship, 407 So. 2d 396 (Fla. 4th DCA 1981), cert. denied, 413 So. 2d 877 (Fla. 1982) (newspaper reporter was entitled to access to tape recordings concerning a defendant in a criminal prosecution where the recording had been disclosed to the criminal defendant); City of Miami v. Post-Newsweek Stations Fla. Inc., 837 So. 2d 1002 (Fla. 3rd DCA 2002) (photograph of mayor's wife taken after alleged domestic assault and statement made to police were exempt where defendant had not made a discovery request for the documents); Bludworth v. Palm Beach Newspapers Inc., 476 So. 2d 775 (Fla. 4th DCA), cert. denied, 488 So. 2d 67 (Fla. 1985) (documents given or required by law or agency rule to be given to a person arrested are disclosable to the public). But see Fla. Newspapers Inc. v. McCrary, 13 F.L.W. 92 (Fla. 1988) (Supreme Court holds the trial court may temporarily seal materials given in discovery upon proper showing embodying the 3-part test set forth in State v. Bundy); City of Miami v. Metropolitan Dade Cty., 745 F. Supp. 683 (S.D. Fla. 1990) (public records law not applicable to actions of U.S. Attorney; U.S. Attorney’s release of photographs to defendants during pretrial discovery in pending federal prosecution did not subject photographs to disclosure).
See Rameses, Inc. v. Demings, 29 So. 3d 418, 423 (Fla. 5th DCA 2010) (holding that “disclosure to a criminal defendant during discovery of unredacted versions of undercover police surveillance recordings does not destroy, in a public records context, the exemptions contained in section 119.071 for information relating to the identity of undercover law enforcement personnel” and court could later order that “faces of the undercover officers be obscured prior to release of the surveillance recordings”).Compare
5. Arrest records
The following information relating to arrest records is not considered to be criminal intelligence/investigative information and is available for inspection:
a. the name, sex, age and address of a person arrested;
b. the time, date and location of the incident and of the arrest;
c. the crime charge;
d. documents given or required by law or agency rule to be given to the person arrested;
e. information and indictments except as provided in Fla. Stat. secs. 905.26 119.011(3)(c) (1995).
Juvenile Records. Juvenile records traditionally have been treated differently from other records within the criminal justice system. The Florida Juvenile Justice Act exempts most information pertaining to juveniles obtained by any judge, employee of the court, authorized agent of the Department of Health and Rehabilitative Services, the Department of Corrections, or any law enforcement agent in the discharge of their official duties from Chapter 119, and prohibits disclosure of such information to anyone not specifically authorized to receive such information. Fla. Stat. § 985.04(2)(a) (2014). However, Fla. Stat. § 39.045(9) (1995) authorizes a law enforcement agency to release for publication the records of a child taken into custody under certain limited circumstances, such as where the juvenile has been taken into custody for a violation of law which would be a felony if committed by an adult.Compare
6. Compilations of criminal histories
Criminal histories, like other non-exempt public records, are subject to the statutory disclosure requirements of the Public Records Law, Chapter 119. See, Op. Att’y Gen. Fla. 77-125 (1977) (Florida's Public Records Law applies to criminal history information compiled and maintained by the Florida department of criminal law enforcement). However, courts have the power to seal or expunge records containing criminal history information under statutorily specified circumstances. Fla. Stat. § 943.058 (1991). See State v. Herstik, 475 So. 2d 1268 (Fla. 4th DCA 1985); Walker v. State, 493 So. 2d 488 (Fla. DCA 1986), cert. denied, 503 So. 2d 328; Op. Att’y Gen. Fla. 75-29 (1975); Op. Att’y Gen. Fla. 76-70 (1976).
A circuit court may order criminal history records to be expunged only upon a specific finding of unusual circumstances requiring the exercise of the extraordinary equitable powers of the court, and upon a finding that the following criteria have been met:
a) The person who is the subject of the record has never previously been adjudicated guilty of a criminal offense or comparable ordinance violation;
b) The person who is the subject of the record has not been adjudicated guilty of any of the charges stemming from the arrest or alleged criminal activity to which the records expunction petition pertains;
c) The person who is the subject of the record has not secured a prior records expunction or sealing . . . . Fla. Stat. §§. 943.058(2) and 943.058(3) (1995).Compare
The name, sex, age and address of the victim of a crime is open to public inspection under the Public Records Law. Fla. Stat. § 119.011(3)(c)(2) (2008), but other information concerning victims, such as the victim's telephone number or address or personal assets, is exempt, Fla. Stat. § 119.03(3)(s); Op. Att’y Gen. Fla. 96-82 (1996). And, criminal intelligence or investigative information revealing the identity of a victim of sexual battery or child abuse, and criminal intelligence or investigative information revealing personal assets of a crime victim which were not involved in the crime are not open records. Fla. Stat. § 119.07(3)(f) and (i) (1995).Compare
Information revealing the “substance of a confession” of a person arrested or of witness lists exchanged pursuant to the provisions of Fla. R. Crim. P. 3.220 is not subject to the disclosure requirements until such time as the charge is finally determined by adjudication, dismissal or other disposition. Fla. Stat. § 119.071(2)(e) (2015). Portions of the initial complaint and arrest report in a criminal case file which are not part of the "substance of a confession" or, in other words, the material parts of a statement made by a person charged with the commission of a crime in which that person acknowledges guilt of the essential elements of the act or acts constituting guilt of the essential elements of the act or acts constituting the entire criminal offense, are not exempt from section 119.07(1)(a). Op. Att’y Gen. Fla. 84-33 (1984).Compare
9. Confidential informants
Information revealing the identity of confidential informants or sources is exempt from the provisions of Chapter 119. Fla. Stat. § 119.07(3)(c) (2008). See City of St. Petersburg v. Rommie ex rel. Dillinger, 719 So. 2d (Fla. 2d. DCA 1998) (after in camera inspection of records and disclosure of informant's identity in the trial court, access to records was granted); Salcines v. Tampa Television, 454 So. 2d 639 (Fla. 2d DCA 1984) (the exemption provided by section 119.07(3)(c), protects from the disclosure requirement information revealing the identity of confidential informants or sources regardless of whether the informants or sources are no longer active or any have, through other sources, been identified as such); John Doe v. State of Fla., 901 So. 2d 881 (Fla. 4th DCA 2005) (prohibiting state from releasing unredacted documents that might identify petitioner as source in criminal investigation).Compare
10. Police techniques
See Miami-Dade Cty. v. Prof’l Law Enforcement Ass’n, 997 So. 2d (Fla. 3d DCA 2009) (aviation unit of county police department required to make public personal flight logs of department pilots, which are created as part of their administrative duties and is the official business of the department’s aviation unit, as public records under Fla. Stat. § 119.011(11)).
Information revealing police surveillance techniques, procedures or personnel, and information revealing undercover personnel of any criminal justice agency is not subject to public inspection. Fla. Stat. § 119.071(2)(d) (2015).Compare
Mug shots are subject to public inspection unless they are exempt criminal intelligence information or are otherwise exempt. Fla. Stat. § 119.071(2)(b).Compare
12. Sex offender records
Certain sex offender records are considered public records, and thus are open to inspection and copying by the public. Fla. Stat. § 944.606; Op. Att’y Gen. Fla. 93-32 (1993); see Op. Att’y Gen. Fla. 97-09 (1997).Compare
13. Emergency medical services records
Rescue reports containing medical information that are prepared by an emergency medical technician are public records subject to public inspection under Chapter 119. Op. Att’y Gen. Fla. 80-21 (Mar. 13, 1980). However, records of emergency calls that contain examination and treatment information, and that are maintained in accordance with Florida Statute 401.30, are confidential and exempt from Chapter 119. Op. Att’y Gen. Fla. 09-30 (2009); see Op. Att’y Gen. Fla. 86-97 (1986).Compare
14. Police video (i.e., “body camera footage”)
P. Prison, parole and probation reports
Recordings of telephone calls made from jail are not public records pursuant to Fla. Stat. § 119.011(12). Bent v. State, 46 So. 3d 1047 (Fla. 4th DCA 2010).
The Florida legislature has provided that "[t]he Department of Corrections shall adopt rules to prevent disclosure of confidential records or information to unauthorized persons.” Fla. Stat. § 945.10(4) (2014). Similarly, the Department may promulgate rules it deems expedient in the performance of its duties limiting access to information it collects and places in its permanent records concerning every person who may become subject to parole, probation, or pardon and communication of sentence. Fla. Stat. § 945.10 (2014); Fla Stat. § 945.25; Blackburn v. State, 261 So. 2d 861 (Fla. 3d DCA 1972) (report by probation and parole commission is for judicial use and is not a public document). See also Op. Att’y Gen. Fla. 74-247 (1974).Compare
Q. Professional licensing records
Professional licensing and employment records, including grievance records, are generally available for public inspection. See, e.g., Michael v. Douglas, 464 So. 2d 545 (Fla. 1985) (a tax-supported hospital’s employee records are not exempt from Chapter 119); Gadd v. news-Press Publ’g Co.. Inc., 412 So. 2d 894 (Fla. 2d DCA 1982) (hospital personnel files of physicians, as well as minutes and documents pertaining to the hospital’s utilization review committee were not exempt from public inspection); Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA 1981) (grievance records of teachers are public records). However, a few statutory exemptions from the act exist, namely while investigations in connection with disciplinary proceedings are pending. Fla. Stat. § 455.225(10) (2000) (“The complaint and all information obtained pursuant to the investigation by the department are confidential and exempt from s. 119.07(1) until 10 days after probable cause has been found to exist by the probable cause panel or by the department, or until the regulated professional or subject of the investigation waives his or her privilege of confidentiality, whichever occurs first. However, this exemption does not apply to actions against unlicensed persons pursuant to s. 455.228 or the applicable practice act. Upon completion of the investigation and pursuant to a written request by the subject, the department shall provide the subject an opportunity to inspect the investigative file or, at the subject's expense, forward to the subject a copy of the investigative file. The subject may file a written response to the information contained in the investigative file. Such response must be filed within 20 days, unless an extension of time has been granted by the department. This subsection does not prohibit the department from providing such information to any law enforcement agency or to any other regulatory agency.”); Fla. Stat. § 472.033(10) (2009) (same with respect to land surveying and mapping); Fla. Stat. § 456.073(10) (2008) (same, for health professions and additionally providing that the subject of the disciplinary proceedings receive expert reports and occupations).
Moreover, “[e]xemption from disclosure under section 119.07(1) does not also exempt a public record from discovery in administrative proceedings. See Dep’t of Prof’l Reg. v. Spiva, 478 So. 2d 382, 383 (Fla. 1st DCA 1985) (unsuccessful applicant for a position as state pilot for the Port of Miami was entitled under discovery rules to exam grade reports for successful applicants where the requested reports were exempt from section 119.07(1) but were relevant and material to the applicant's administrative challenge).” Dep’t of Health v. Poss, 45 So. 3d 510 (Fla. 1st DCA 2010).Compare
R. Public utility records
Records kept in connection with a publicly owned and operated utility are public records and thus subject to section 119.01. See Op. Att’y Gen. Fla. 74-35 (1974) (addressing the applicability of Chapter 119 to a city owned electrical utility system). Furthermore, there is no exception to the law in cases where the city is acting in a proprietary capacity. Id.; State ex. rel. Cummer v. Pace, 159 So. 2d 679 (Fla. 1967). However, in light of recent legislation, this rule is now of limited efficacy. The Public Service Commission now has reasonable access to all public utility records and upon request of the public utility, any records received by the Commission shown to be proprietary confidential business information will be kept confidential and exempt from Fla. Stat. §§ 119.07(1), 366.093(1) (1995).
In addition, in any proceeding before the Public Service Commission, the Commission may issue protective orders protecting a public utility from discovery of proprietary confidential business information, upon a showing that such protection is necessary. However, if the Commission determines that discovery of proprietary confidential business information is necessary to protect the public interest, the Commission must enter an order limiting such discovery in the manner provided for in Rule 1.280 of the Florida Rules of Civil Procedure, and such proprietary confidential business information will be exempt from Fla. Stat. §§ 119.07(1), 366.093(2) (1995).Compare
S. Real estate appraisals, negotiations
No right of public inspection of appraisals, other reports relating to value, offers, and counter offers exists in any case in which an agency seeks to acquire real property by purchase or through the power of eminent domain. Fla. Stat. §§ 125.355 (counties); 166.045 (municipalities); 1013.14 (school boards). The exception expires upon the execution of a valid option contract or the conditional acceptance by the agency of a written offer to sell. Id.
Sections 125.355(1) and 166.045(1) (1996) of the Florida Statutes provide for the temporary confidentiality of certain records pertaining to the purchase of real property by countries and municipalities, respectively, until an option contract is signed, or if there is no option contract, 30 days before a contract is considered for approval by the governing body. See Poole v. Port Orange, 33 So. 3d 739, 740-41 (Fla. 5th DCA 2010).Compare
4. Deeds, liens, foreclosures, title history
5. Zoning records
T. School and university records
1. Athletic records
There is no Florida authority specifically relating to access to records of athletic programs or organizations. However, in National Collegiate Athletic Ass’n v. Associated Press, 18 So. 3d 1207 (Fla. 1st DCA 2009), a transcript of a hearing before the NCAA’s Committee on Infractions involving a state public agency, Florida State University, and an appellate response by the Committee were deemed public records under section 119 and were not exempt from disclosure under federal or state law.Compare
2. Trustee records
There is no Florida authority specifically relating to trustee records.Compare
3. Student records
Access to student records is limited by Fla. Stat. § 1002.221(1) (2014), which provides every student a right of privacy with respect to educational records relating to such student. See, e.g., Fla. State Univ. v. Hatton, 672 So. 2d 576 (Fla. 1st DCA 1996) (disciplinary investigation records which contained “identifying information about the subject student and other students who were accomplices, witnesses and victims” exempt); Rhea v. Dist. Bd. of Trs. of Santa Fe College, 109 So. 3d 851, 855-858 (Fla. 1st DCA 2013) (email sent by a student discussing a teacher’s classroom mannerisms and unorthodox teaching style was an education record that the teacher could not obtain unredacted); Op. Att’y Gen. Fla. 81-78 (1981) (prohibiting the public schools from releasing the lists of daily truants to law enforcement agencies without the written consent of the student or parent or guardian of the student); Op. Att’y Gen. Fla. 85-50 (1985) (prohibiting the disclosure or release of records of students enrolled in programs under the Federal Job Training Partnership Act without the written consent of a student's parent or guardian, or the student). Note, however, that a student and/or his parents has the statutory right of access to all records held by a public agency which relate to the student. Fla. Stat. § 1002.22 (2014). Other statutes also exempt particular student records. See, e.g., Fla. Stat. § 1006.52 (public postsecondary institutions).Compare
U. State guard records
The Act does not contain a specific exemption for these records.Compare
V. Tax records
The tax collector has the affirmative duty to make available the public records of his office but does not have to provide this information in person, by telephone, or in writing but must simply allow inspection and copying. Op. Att’y Gen. Fla. 080-57 (1980). Tax records possessed by a county housing finance authority are also public records that are not exempt from public disclosure. Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997). However, certain tax assessors’ records do not constitute public records under the Act. For example, preliminary materials such as detailed worksheets, temporary records, maps, plats, cards and memoranda or writings, which are used to prepare a final tax assessment, are not public records. Op. Att’y Gen. Fla. 072-323 (1972); Op. Att’y Gen. Fla. 061-102 (1961). However, county tax rolls and tax collector records are subject to inspection. Op. Att’y Gen. Fla. 058-272 (1958); Op. Att’y Gen. Fla. 080-57 (1980).Compare
W. Vital Statistics
1. Birth certificates
Birth records are considered exempt and may be open only as provided by law. Fla. Stat. § 382.025(1) (2012). Adoption records are also exempt from disclosure under section 63.162(2) (2012). Records identifying the natural parent, adoptive parent or adopted child may only be disclosed where authorized in writing by the natural parent, adoptive parent, or adoptive child over the age of 18, or, upon order of the court. § 63.162(4). The cause of death section of death and fetal death certificates and parentage, marital status, and medical information of fetal death records are confidential and exempt from disclosure. Such records are open to public inspection only as provided in section 382.008(6) (2017). In Veste v. Miami Herald Publ’g Co., 451 So. 2d 491 (Fla. 3d DCA 1984), petition for review denied, 461 So. 2d 115 (Fla. 1984), the court held that the medical certification of the cause of death in the death certificate is confidential.Compare
2. Marriage and divorce
Certified copies of all marriage certificates may be obtained by any person on request. Fla. Stat. § 382.025(2)(a).Compare
3. Death certificates
Certified copies of death certificates excluding the confidential cause of death portion may be obtained by any person on request. Fla. Stat. § 382.025(4).Compare
4. Infectious disease and health epidemics
Fla. Stat. § 384.29 provides that: “All information and records held by the department or its authorized representatives relating to known or suspected cases of sexually transmissible diseases are strictly confidential and exempt from the provisions of s. 119.07(1).”Compare
IV. Procedure for obtaining records
A. How to start
1. Who receives a request?
Section 119.07(1)(a) states that “[e]very person who has custody of a public record shall permit the record to be inspected. . . .” Thus, a request to inspect or copy public records should be made to the “custodian” of such records.
The custodian is defined to be “[t]he elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his designee. . . .” See Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996) (custodian designates mode of disclosure); Mintus v. City of West Palm Beach, 711 So. 2d 1359 (Fla. 4th DCA 1998) (police officer who temporarily possessed a document for a hearing was not the custodian of the document); Tober v. Sanchez, 417 So. 2d 1053 (Fla. 3d DCA 1982), petition for review denied, Metro. Dade Cty. Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (director of county transit agency, as officer charged by law with the responsibility of maintaining the office, was the “custodian” of accident reports emanating from separate agency bus accidents); Inf. Op. Att’y Gen. Fla. to Mr. Larry Haag (June 6, 1985).Compare
2. Does the law cover oral requests?
A request for copies of records which is sufficient to identify records desired must be honored by the custodian, whether the request is in writing, over the telephone, or made in person, provided that the required fees are paid. However, the custodian is not required to give out information from the records when requested by telephone, in writing, or in inspection and copying prescribed in section 119.01. Cf. Op. Att’y Gen. Fla. 80-57 (1980) (request for records sufficient to identify the records may be oral or written). Agency regulations may require requests to be in writing, if the requirement is reasonable.Compare
3. Contents of a written request
A written request for records need not contain a detailed description of such records, so long as the request is sufficient to identify the records. See State ex rel. Cummer v. Pace, 159 So. 679 (Fla. 1935) (citizen seeking inspection of city records is not required to specify specific book of account or record that he desires to inspect). Fees for inspecting and copy public records are covered by the Statute and do not need to be addressed in a party’s written request.Compare
B. How long to wait
1. Statutory, regulatory or court-set time limits for agency response
No set time limit exists for agency response to a request to inspect or copy public records. The only delay permitted in the release of requested records is limited to a reasonable time to allow the custodian of the records to retrieve the records and delete those portions exempt from disclosure. Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed, 471 U.S. 1096 (1985); Michael v. Douglas, 464 So. 2d 545 (Fla. 1985) (24 hour delay held to violate Chapter 119); see also Op. Att’y Gen. Fla. 81-12 (1981) (city may not require an examinee to exercise his right to inspect his own examination during a designated or restricted time frame); cf. Roberts v. News-Press Publ’g Co., 409 So. 2d 1089 (Fla. 2d DCA 1982) (rule allowing employee whose record is requested 24-hour notice and the right to be present at inspection is reasonable).Compare
2. Informal telephone inquiry as to status
Although a telephone inquiry as to status of a records request is both permitted and desirable, citing the mandatory attorneys’ fees provisions of Fla. Stat. section 119.12 (2017) is often the most effective method of encouraging a prompt response to a request.Compare
3. Is delay recognized as a denial for appeal purposes?
An “unreasonable” delay in providing access to records to a person who has requested the opportunity to inspect or copy the records of an agency may be treated as a denial for purposes of judicial relief. Cf. Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984).Compare
4. Any other recourse to encourage a response
Citing the mandatory attorneys’ fees provisions of Fla. Stat. section 119.12 (2017) is often the most effective method of encouraging a prompt response to a request.Compare
C. Administrative appeal
There are no state requirements or options for administrative appeals.Compare
1. Time limit
2. To whom is an appeal directed?
3. Fee issues
4. Contents of appeal letter
5. Waiting for a response
6. Subsequent remedies
D. Court action
1. Who may sue?
Florida courts have not addressed the issue of who may sue to enforce rights under Chapter 119. However, as discussed supra, the statute provides “any person” with the right of access to public records, and thus standing to sue.Compare
Actions filed to enforce provisions of Chapter 119 are set for immediate hearing, giving the case priority over other pending cases. Fla. Stat. § 119.11(1) (1995); Rule 2.420(l), Public Access to and protecting Public Judicial Branch Records, Fla. R. Jud. Admin. (review of denial of access to judicial records shall be “expedited”); Reeves v. Orange Cty. Sheriff’s Office, 110 So. 3d 975 (Fla. 5th DCA 2013) (“We agree that Appellant is entitled to an accelerated hearing.”).Compare
3. Pro se
The primary means of enforcing the provisions of Chapter 119 is to file an application for a writ of mandamus in circuit court. Although an individual is privileged to proceed pro se, it is not advisable to do so since a familiarity with applicable substantive and procedural law is necessary.Compare
4. Issues the court will address
Florida trial and appellate courts may, and have, addressed on numerous occasions the issue of whether access to public records has been wrongfully denied. See, e.g., Warden v. Bennett, 340 So. 2d 978 (Fla. 2d DCA 1976); Johnson v. Jarvis, 74 So. 3d 168, 171 (Fla. 1st DCA 2011) (“The reasonableness of the appellee’s policy itself is not the subject of the inquiry. Rather, the inquiry centers on whether the application of the policy resulted in an unjustified delay that amounted to an unlawful refusal to comply with chapter 119.”).Compare
b. Fees for records
Florida courts have jurisdiction to determine the propriety of fees levied by public agencies for inspection and copies of public records. See, e.g., Davis v. McMillan, 38 So. 666 (Fla. 1905). There is no unlawful delay or denial of access under the Act when an entity subject to the Act requires a deposit from the records requestor prior to reviewing and redacting the requested recordings for confidential information when there were two review processes in place. Morris Publ’g Grp., LLC v. State, 154 So. 3d 528 (Fla. 1st DCA 2015). Section 119.07 provides a fee schedule for a copy of public records when a fee is not prescribed by law as follows: “[u]p to 15 cents per one-sided copy for duplicated copies of not more than 14 inches by 8 ½ inches; [n]o more than an additional 5 cents for each two-sided copy; and [f]or all other copies, the actual cost of duplication of the public record.” Fla. Stat. § 119.07 (4)(a)1.-3. (2007). For a certified copy of a record, an agency can charge up to $1 per copy. Fla. Stat. § 119.07 (4)(c) (2007).Compare
Florida courts have addressed the issue of whether delayed access to public records is tantamount to an unlawful denial of access. Tribune v. Cannella, 458 So. 2d 1075 (Fla. 1983).Compare
d. Patterns for future access (declaratory judgment)
Florida trial courts have jurisdiction to render a declaratory judgment determining the rights and obligations of parties under Chapter 119. See Fla. Stat. § 86.011 (1991). Cf. Roberts v. News-Press Pub. Co., 409 So. 2d 1089, 1092; State ex. rel. Haft v. Adams, 238 So. 2d 843 (Fla. 1970).Compare
5. Pleading format
The extraordinary writ of mandamus is used to gain judicial access to public records. The writ of mandamus should allege that the defendants are custodians of the public records sought and that the defendants refused to produce such records for inspection. See Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996) (“mandamus was an appropriate remedy to compel the timely production of public records request under Chapter 119.”); Donner v. Edelstein, 415 So. 2d 830 (Fla. 3d DCA 1982). This conforms to the general rule that to show entitlement to the extraordinary writ of mandamus, a petitioner must demonstrate a clear legal right on his part, an indisputable legal duty on the part of the respondents and that no other adequate remedy exists. See, e.g., Clay Cty. Educ. Ass’n v. Clay Cty. Sch. Bd., 144 So. 3d 708, 709 (Fla. 1st DCA 2014); State ex rel. Eichenbaum v. Cochron, 114 So. 2d 797 (Fla. 1959); Poole v. City of Port Orange, 33 So. 3d 739 (Fla. 5th DCA 2010). “The statute contemplates a complaint, counterclaim or cross-claim,” and the filing of a motion for accelerated hearing alone does not “substitute for the filing of a complaint for enforcement of the public records law.” Claudio v. Clerk of Circuit Court, Volusia Cty., 128 So. 3d 830, 832 (Fla. 5th DCA 2013) (citing Fla. Stat. § 119.11(4)).Compare
6. Time limit for filing suit
Chapter 119 does not specify a time limit for filing suit to enforce the provisions therein. For causes of action not governed by a statute, the statute of limitations is generally four years. Fla. Stat. § 95.11(3)(p) (2017).Compare
7. What court
The public records act authorizes suits for injunction in circuit court in lieu of administrative remedy. See State ex. rel. Dep’t of Gen. Servs. v. Willis, 344 So. 2d 580, 588 (Fla. 1st DCA 1977); Daniels v. Bryson, 548 So. 2d 679 (Fla. 3rd DCA 1989) (injunctive relief appropriate where pattern of non-compliance with public records law together with showing of likelihood of future violation).Compare
8. Judicial remedies available
The primary remedy available when a successful action is brought pursuant to Chapter 119 is a writ of mandamus requiring the agency to open its records for inspection. Fla. Stat. § 119.11(1) (1995); Town of Manalapan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA 1996) (“[M]andamus was an appropriate remedy to compel the timely production of public records request under Chapter 119.”); Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992), review denied, 605 So. 2d 1266 (Fla. 1992); Rule 2.051(b), Public Access to Public Judicial Records, Fla. R. Jud. Admin. (review of denial of access to judicial records shall be by mandamus). Cf. State ex rel. Davidson v. Couch, 155 So. 153 (Fla. 1934); Fla. Soc’y of Newspaper Editors Inc. v. Fla. Pub. Serv. Comm’n, 543 So. 2d 1262 (Fla. 1st DCA 1989). Mandamus is inappropriate, however, for enforcement of future violations. Town of Manalapan, 674 So. 2d at 790 (“trial court’s order retaining jurisdiction for reenforcement, however, was inappropriate. Mandamus is a one time order . . . .”). When the cause of action is properly pled, the trial court must conduct an immediate evidentiary hearing to resolve the issues pertaining to the requested records. Clay Cty. Educ. Ass’n v. Clay Cty. Sch. Bd., 144 So. 3d 708, 709 (Fla. 1st DCA 2014). This can include the trial court conducting an in-camera inspection to determine if requested records are exempt from disclosure and whether redaction of certain information from the records is feasible. Holley v. Bradford Cty. Sheriff’s Dep’t, 171 So. 3d 805 (Fla. 5th DCA 2015).Compare
9. Litigation expenses
Reasonable costs and attorneys’ fees “shall” be recovered from an agency where an action is filed against the agency to enforce provisions of Chapter 119, and the court determines that the agency unlawfully refused permission to inspect, examine or copy a public record at both trial and appellate levels. Fla. Stat. § 119.12(1) (2017).Compare
a. Attorney fees
Prior to 1984, a prevailing party was entitled to attorneys’ fees only when an agency’s refusal to allow access to records was “unreasonable.” WFSH of Niceville v. City of Niceville, 422 So. 2d 980 (Fla. 1st DCA 1982) (city justifiably withheld election records until court order was obtained where the city was incorrectly advised to do so); Douglas v. Michel, 410 So. 2d 936 (refusal must be unreasonable to recover costs and attorney fees under Chapter 119). However, the attorney fee provision authorizes attorney fees and costs whenever the court finds that the agency unlawfully refused access, Fla. Stat. § 119.12(1)(a) (2017). See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 510 F. Supp. 2d 691, 737 (M.D. Fla. 2007) (finding that to receive attorney’s fees the action filed must be to enforce the provisions of Chapter 119 and the delay in producing the documents must constitute an unlawful refusal to provide access to the requested public records); See also B & S Utils., Inc. v. Baskerville-Donovan, Inc., 988 So. 2d 17, 23 (Fla. 1st DCA 2008) (holding that private engineering firm acting as agent for governmental entity was not liable for plaintiff’s attorneys’ fees incurred in bringing suit based on engineering firm’s denial of records because plaintiff failed to prove that denial was not done in good faith belief that engineering firm was not an agency of the governmental entity given that agency status of engineering firm was questionable); Office of State Attorney v. Gonzalez, 953 So. 2d 759, 764 (Fla. 2d DCA 2007) (holding that State Attorney’s office was liable for attorneys’ fees incurred in filing suit to obtain public records, even though failure to produce public records was allegedly due to mistake, and refusing to “engraft upon the statute an additional obligation for a plaintiff to make repeated requests before filing suit to enforce public records rights”) (citing cases); News on Sun-Sentinel Co. v. Palm Beach Cty., 517 So. 2d 743 (Fla. 4th DCA 1987) (attorneys’ fees awardable even when access was denied in good faith mistaken belief that documents were exempt from disclosure); Harold v. Orange Cty., 668 So. 2d 1010, 1012 (Fla. 5th DCA 1996) (refusing to assess attorneys’ fees against private party “acting on behalf of” agency, based on “good faith — even if incorrect — refusal to disclose records”); Fla. Dep’t Law Enf. v. Ortega, 508 So. 2d 493 (Fla. 3d DCA 1987); Wisner v. City of Tampa, 601 So. 2d 296 (Fla. 2d DCA 1992); News-Press Pub. Co. v. Gadd, 432 So. 2d 689 (question of whether award of attorneys’ fees was justified is decided by trial court as a question of fact); Downs v. Austin, 559 So. 2d 246 (Fla. 1st DCA 1990) (attorneys’ fees awardable for successful appeal of a denial of access); Times Publ’g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990) (same); WFTV Inc. v. Robbins, 625 So. 3d 941 (Fla. 4th DCA 1993) (order denying fees for non-intentional violation of Chapter 119, reversed); Barfield v. Town of Eatonville, 675 So. 2d 223 (Fla. 5th DCA 1996) (attorneys’ fees and costs awarded to plaintiff when defendant disclosed documents only after legal intervention; defendant’s unreasonable delay in disclosing documents to plaintiff constitutes an “unlawful refusal” which entitles plaintiff to attorneys’ fees); Weeks v. Golden, 764 So. 2d 633 (State Attorney must produce a legally acceptable excuse for failing to disclose public records to avoid paying plaintiff’s attorneys’ fees).
While a prevailing party is entitled to attorneys’ fees when access is unlawfully withheld, “[d]elay in providing access cannot in itself create liability for attorney’s fees under the Public Records laws.” Irwin v. Miami-Dade Cty. Pub. Schs., 2009 WL 465066, at *5 (S.D. Fla. Feb. 24, 2009) (citing Office of State Attorney v. Gonzalez, 953 So. 2d 759, 765 (Fla. 2d DCA 2007)). A delay “does not in and of itself create liability under section 119.12.” Siegmeister v. Johnson, 240 So. 3d 70, 73 (Fla. 1st DCA 2018). “Reasonable delay is allowed.” Id. Where the delays are not justified, the Public Records Act holds officials accountable for attorneys’ fees. Id.Compare
b. Court and litigation costs
Reasonable costs are recoverable by a prevailing plaintiff as described above.Compare
A public officer violating any provision of Chapter 119 may be fined up to $500. Fla. Stat. § 119.10(1)(a) (2004).Compare
11. Other penalties
A willing and knowing infraction of Chapter 119 is punishable as a first-degree misdemeanor, which is punishable by up to one-year imprisonment and/or a fine up to $1,000. Fla. Stat. §§ 119.10(2)(a), 775.082(4)(a), 775.083(1)(d) (1995).Compare
12. Settlement, pros and cons
Settlement is neither likely nor advisable.Compare
E. Appealing initial court decisions
1. Appeal routes
Appeal of a circuit court decision where rights under Chapter 119 are at issue are governed by the same rules of appellate procedure that govern other actions in Florida. An appeal from a circuit court decision relating to Chapter 119 would be to the appropriate District Court of Appeal. See Fla. R. App. P. 9.030(b).Compare
2. Time limits for filing appeals
The notice of appeal must be filed with the clerk of the circuit court within thirty days after entry of judgment or rendition of the order to be reviewed. Fla. R. App. P. 9.110(b).Compare
3. Contact of interested amici
Because court decisions on open records issues may have far-reaching consequences, press groups and others may have an interest in filing a friend-of-the-court brief in behalf of you request for open records. The Reporters Committee for Freedom of the Press frequently files friend-of-the-court briefs for open records issues being considered at the highest appeal level in the state.Compare
F. Addressing government suits against disclosure
I. Statute - basic application
A. Who may attend?
The Florida law opens government meetings to the public, with no restrictions on who may attend. Under the Sunshine Law, a meeting is either fully open or fully closed; there are no intermediate categories. Zorc v. City of Vero Beach, 722 So. 2d 891, 901 (Fla. 4th DCA 1998).
While there are no restrictions on who may attend open meetings, there is no public right to speak at the meetings. Herrin v. City of Deltona, 121 So. 3d 1094 (Fla. 5th DCA 2013) (“[T]he statute does not mention the right to be heard or participate. The phrase ‘open to the public’ most reasonably means that meetings must be properly noticed and reasonably accessible to the public, not that the public has the right to be heard at such meetings.”); Keesler v. Cmty. Mar. Park Assocs., 32 So. 3d 659 (Fla. 1st DCA 2010).Compare
B. What governments are subject to the law?
The Government in the Sunshine Act subjects “[a]ll meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision . . .” to its requirements. Fla. Stat. § 286.011(1); see also City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971) (open meeting concept is applicable so as to bind every “board or commission” of the state, or of any county or political subdivision over which it has dominion or control); Times Publ’g Co. v. Williams, 245 So. 2d 470, 473 (Fla. 2d DCA 1971) (same). Florida’s Constitution provides that “any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed.” Fla. Const. Art. I, § 24(b).Compare
State agencies and authorities are subject to the Sunshine Act. See section re “What governments are subject to the law?” above.Compare
County agencies and authorities are subject to the Sunshine Act. See section re “What governments are subject to the law?” above. In addition, the Sunshine Law has been specifically applied to the actions of county school boards. See Finch v. Seminole Cty. Sch. Bd., 995 So. 2d 1068, 1071 (Fla. 5th DCA 2008) (citing Knox v. Dist. Sch. Bd. of Brevard, 821 So. 2d 311 (Fla. 5th DCA 2002); Mitchell v. Sch. Bd. of Leon Cty., 335 So. 2d 354 (Fla. 1st DCA 1976)).Compare
3. Local or municipal
Local and municipal agencies and authorities are subject to the Sunshine Act. See section re “What governments are subject to the law?” above.Compare
C. What bodies are covered by the law?
1. Executive branch agencies
Because no chief executives at any governmental level constitute a “board or commission,” they are not subject to the requirements of section 286.011. For example, the Governor is not subject to the Sunshine Law when discharging his constitutional duties as chief executive officer. On the other hand, the law is applicable to the Governor and Cabinet when sitting as a board created by the Legislature, such as the State Board of Education or the Department of Natural Resources. In these circumstances, a board created by the legislature is subject to legislative “dominion and control.” See Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980) (application of the Sunshine Law to the parole commission does not violate separation of powers or infringe upon the clemency power of the executive branch). Similarly, the Sunshine Act does not apply to a mayor acting in his capacity as chief executive. A mayor is subject to the Act only when sitting as a member of a board or commission of a state agency. See Op. Att’y Gen. Fla. 83-70 (1983) (if decision to authorize corrective work on a beautification project falls within the administrative functions of the mayor and would not come before the city council for further action, discussions between individual member of the city council and the mayor would not be subject to the Act; if decision to authorize such work would come before the city council and could require the mayor to exercise his power to break tie votes, the mayor should not confer privately with a member of the city council regarding such matters).
The principles discussed thus far also apply to the office of city manager and other executive offices. Cf., Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (once city manager utilizes an advisory group to assist in making recommendations for position of chief of police, he, although a chief executive officer, has created a “board” to which the Act applies). See also Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (committee appointed by president of university to solicit and screen applications for deanship is a “board or commission”; thus closing of meetings to the public is improper); Op. Att’y Gen. Fla. 74-47 (1974) (city manager, who was the chief executive officer of a local governmental body, was not subject to the Sunshine Law so long as he did not act as “liaison” for board of directors or attempt to act in place of board members). Compare Bennett v. Warden, 333 So. 2d 97 (Fla. 3d DCA 1976) (president of a junior college was neither a “board” nor “commission” and meetings held by him with a fact-finding group are not subject to the Sunshine Law); Cape Publ’ns Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985) (distinguishing Krause, and holding that where city charter places sole responsibility for selection of police chief in city manager, committee formed to assist in fact-finding and given no decision-making function is not subject to the Sunshine Law).
The function of the judicial nominating commission is executive in nature, and thus it is not subject to the Act. Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (function of judicial nominating commission is executive in nature and mandate comes from the Florida Constitution and not from the Legislature, Governor or judiciary; thus, the commission is not subject to the Sunshine Law). Cf. Judicial Nominating Comm. v. Graham, 424 So. 2d 10 (Fla. 1982) (nominating commissions are part of the executive branch). Note, however, that Fla. Const. art. V, sec. 11 currently provides that the proceedings of the commissions and their records, but not their deliberations, shall be open to the public.
“If an individual is not already a member of a board or commission governed by the Sunshine Law, nothing about working on economic development projects or receiving proprietary information converts him or her into one.” Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So. 3d 755 (Fla. 2010).Compare
a. What officials are covered?
b. Are certain executive functions covered?
c. Are only certain agencies subject to the act?
2. Legislative bodies
In 1982 a lawsuit was filed in circuit court on behalf of 16 Florida newspapers against the House Speaker and the Senate President seeking a declaratory judgment as to whether the public may be excluded from legislative committee meetings. Petitioners claimed that private legislative meetings violate the federal and state constitutions, and state laws (including section 286.011), and the Legislature’s own rules. The order on the defendants’ motion to dismiss stated that the plaintiffs were entitled to a ruling under Chapter 86 as to the allegations of the complaint relating to the First Amendment of the United States Constitution, the corresponding provisions of the Florida Constitution, and Fla. Stat § 11.142.; however, the remaining provisions of law cited by the plaintiff, including section 286.011, were not applicable under the circumstances alleged in the complaint. See Miami Herald Publ’g Co. v. Moffitt, Case No. 82-84 (2d Cir. Leon Co., filed February 28, 1983).
The case was ultimately decided in Moffitt v. Willis, 459 So. 2d 1018 (Fla. 1984). In Moffitt, the Supreme Court granted the Legislative leaders’ petition to dismiss the civil action pending in the lower court on the basis that the circuit court lacked jurisdiction over the subject matter under the constitutional doctrine of separation of powers. The court held that the circuit court does not have jurisdiction to determine and declare the meaning and the application of the rules and procedures of the Senate and House of Representatives, which, the court noted, was a purely legislative prerogative. Thus, the Supreme Court did not address the merits of the case and did not directly reach the question of the applicability of section 286.011 to the Legislature.
However, in 1993, the Legislature amended the State Constitution expanding public records and meeting law to the Legislature and stating that “meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.” Art. I, sec. 24(b), Fla. Const. (1993).Compare
Provisions of section 286.011 do not apply to the judicial branch of government. See Fla. Const. art. V, sec. 2(a). See also, Op. Att’y Gen. Fla. 83-97 (1983) (discussing the applicability of section 286.011 to the judicial branch). However, the Florida courts have recognized a broad right of public access on non-statutory grounds. Barron v. Fla. Freedom Newspapers Inc., 531 So. 2d 113 (Fla. 1988) (there is a strong presumption of public access to all trials). Compare Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1982) (discussing the inherent power of courts to grant public access); Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904 (Fla. 1977) (public should generally have unrestricted access to all judicial proceedings, but court has inherent power to control proceedings before it); Cf. Gore v. State, 573 So. 2d 87 (Fla. 3d DCA 1991) (trial court could properly refuse to exclude electronic media from courtroom even where defendant presented evidence that media’s presence would adversely affect his ability to testify).
Since grand juries have been characterized as an “arm of the judicial branch of government,” and Fla. Stat. section 905.24 specifically states that grand jury proceedings are secret, grand jury proceedings do not fall within the ambit of the Sunshine Law. Op. Att’y Gen. Fla. 73-177 (1973). Hearings on certain grand jury procedural meetings are also closed. In Re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988).Compare
4. Nongovernmental bodies receiving public funds or benefits
The statutory definition of “agency” includes “any other public or private agency, partnership, corporation or business entity acting on behalf of the State.” However, private organizations receiving state and/or federal funds may not fall under the Sunshine Law merely because of the receipt of public money. See News & Sun Sentinel Company v. Schwab, 596 So. 2d 1029 (Fla. 1992); Quintana v. Cmty. P’ship for Homeless Inc., 651 So. 2d 1287 (Fla. 3d DCA 1995) (non-profit not subject to Sunshine Law); Op. Att’y Gen. Fla. 78-161 (1978) (receipt of public funds by private non-profit corporation under contract with district mental health board, does not, standing alone, subject corporation to section 286.011); Op. Att’y Gen. Fla. 74-22 (1974); see also Op. Att’y Gen. Fla. 76-194 (1976) (Orlando-Orange County Industrial Board is not subject to the Sunshine Law, notwithstanding the receipt of contributions from governmental agencies).Compare
5. Nongovernmental groups whose members include governmental officials
Meetings of non-governmental groups whose members include public officials generally may not be subject to the requirements of the Sunshine Act. Op. Att’y Gen. Fla. 76-194 (1976) (ex-officio membership of single county commissioner and city councilman on board of directors of non-governmental organization which receives public funds does not require board meetings to be open; however, use of such meetings as a device to avoid public meetings requirements, such as the discussion of matters which will be brought before a public board or commission may trigger application of the Sunshine Act). See Op. Att’y Gen. Fla. 83-70 (1983) (city council member sitting on board of trustee of a non-profit corporation must excuse himself from meetings of the board or hold the board meetings in the sunshine in instances when the board discusses some matter which would be brought before the city council for action.)Compare
6. Multi-state or regional bodies
Neither the courts nor the attorney general have issued a statement on the application of section 286.011 to multistate or regional bodies.Compare
7. Advisory boards and commissions, quasi-governmental entities
An ad hoc advisory board, whose powers are limited to making recommendations to a public agency, possessing no authority to bind the agency in any way whatsoever, is nevertheless subject to the Sunshine Law. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); accord, Spillis, Candela & Partners Inc. v. Centrust Sav. Bank, 535 So. 2d 694 (Fla. 3d DCA 1988); see also IDS Props. v. Town of Palm Beach, 279 So. 2d 353 (Fla. 4th DCA 1973) (there is no “government by delegation” exception to the Sunshine Law; therefore, public agencies may not conduct the public’s business in secret through the use of an “alter ego”).
Advisory boards appointed to make recommendations are subject to dictates of the Sunshine Law. Krause v. Reno, 366 So. 2d 1244; Silver Express Co. v. Dist. Bd. of Tr. of Miami-Dade Cmty. Coll., 691 So. 2d 1099 (Fla. 3d DCA 1997) (committee appointed by college’s purchasing director to consider proposals to provide flight training services was subject to the Sunshine Law, where committee’s function was to weed through various proposals and to determine which were acceptable); Ruff v. Sch. Bd., 426 So. 2d 1015 (Fla. 2d DCA 1983) (Sunshine Law applies to an organizational meeting of a county school board sex education policy task force); News-Press Publ’g Co. v. Carlson, 410 So. 2d 546 (Fla. 2d DCA 1982) (meetings of an ad hoc internal budget committee of a county hospital are subject to the Sunshine Law); Wood v. Marston, 442 So. 2d 934 (search-and-screen committee appointed by the University of Florida president to solicit and screen applications for deanship is a “board or commission” within provisions of Sunshine Law; reasoning that the committee performs a policy-based, decision-making function in deciding which applicants to reject from further consideration. See also Dore v. Sliger, No. 90-1850 (2d Cir. Leon Co., July 11, 1990) (faculty of university law school prohibited from conducting secret ballots on personnel hiring matters). But see Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976) (fact-finding advisory committee appointed by a university president to advise him on employee working conditions is not subject to section 286.011; relying on the committee’s fact-finding nature and remoteness from the decision making process); Cape Publ’ns Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985) (a committee formed for fact-finding, and not given any decision-making function is not subject to section 286-911); Op. Att’y Gen. Fla. 81-51 (1981) (meetings of a bid evaluation team or contract negotiation team of the Department of Health and Rehabilitative Services are not subject to the Sunshine Law when the teams consist solely of departmental staff and have no power to bind the department).
Quasi-judicial hearings, authorized by and at the direction of a board or commission are required to be held in public. See Canney v. Bd. of Pub. Instruction, 278 So. 2d 260 (Fla. 1973) (there is no “quasi-judicial” exception under the Sunshine Law allowing closed hearings during the deliberative process); Occidental Chem. Co. v. Mayo, 351 So. 2d 336, 341 n.7 (Fla. 1977). But see State of Fla. Dep’t of Pollution Control v. State Career Serv. Comm’n, 320 So. 2d 846 (Fla. 1st DCA 1975) (deliberations of Career Service Commission are exempt from the Sunshine Laws as such proceedings are “quasi-judicial” deliberations); see also section re “Executive branch agencies” above.Compare
8. Other bodies to which governmental or public functions are delegated
When public officials delegate de facto authority to act on their behalf in preparation of plans on which foreseeable action will be taken, persons delegated that authority stand in the shoes of the public officials insofar as application of Sunshine Law is concerned. News Press Pub. Co. Inc. v. Carlson, 410 So. 2d 546 (Fla. 2d DCA 1982).
The issue of whether such authority has been delegated often arises with regard to staff meetings. Meetings of staff of public boards or commissions are not ordinarily subject to section 286.011. Inf. Op. Att’y Gen. Fla. to Mr. William Candler (December 17, 1974); accord Occidental Chemical Co. v. Mayo, 351 So. 2d 336; Op. Att’y Gen. Fla. 81-51 (1981) (meetings of staff to evaluate proposed service bids and to negotiate proposed contracts with the winning bidder are not subject to the Sunshine Law); see also Godheim v. City of Tampa, 426 So. 2d 1084 (Fla. 2d DCA 1983) (negotiation meetings conducted by city staff members with two competing vendors were not subject to the Sunshine Law).
However, when a member of the staff ceases to function in his capacity as a staff-member of the board or commission, and is appointed to a committee which is delegated authority normally within the governing body, he loses his identity as staff while operating on that committee and is accordingly included within the Sunshine Law. News Press Publ’g Co. v. Carlson, 410 So. 2d 546 (formalized budget committee of a hospital district responsible for preparing a budget and submitting it to the district’s governing board for approval is required to meet in the sunshine); see also Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (section 286.011 applies to a staff search committee for a law school dean since the committee performs a decision-making function in screening applicants).
In Memorial Hospital-West Volusia Inc. v. News-Journal Corp., 729 So. 2d 373 (Fla. 1999) (Memorial I), the court held that, absent a statutory exclusion, private not-for-profit corporations to which operation of public hospital facilities have been transferred are acting on behalf of a state agency in performing and carrying out obligations under their agreement and, therefore, must comply with open records and meetings laws. Further, the exclusion that was created for records and meetings of corporations that lease public hospitals if certain conditions are met could not be applied retroactively. Mem’l Hosp.-West Volusia Inc. v. News-Journal Corp., 784 So. 2d 438 (Fla. 2001) (Memorial II).Compare
9. Appointed as well as elected bodies
The Sunshine Law is applicable equally to elected and appointed bodies. Op. Att’y Gen. Fla. 73-223 (1973).Compare
D. What constitutes a meeting subject to the law
1. Number that must be present
Ordinarily section 286.011 applies to “two or more members” of a board or commission. See Deerfield Publ’g Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988) (requisite to application of the Sunshine Law is a meeting of two or more public officials); City of Sunrise v. News & Sun Sentinel Co., 542 So. 2d 1354 (Fla. 4th DCA 1989); Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973); City of Miami Beach v. Berns, 245 So. 2d at 41. See also Fla. STOP Inc. v. Goodrum, No. 80-3775 (Fla. 10th Cir. Ct. Polk County, 1980), aff’d, 415 So. 2d 1372 (Fla. 2d DCA 1982) (section 286.011 is not applicable to a single member of a housing authority appointed to gather information about sites for the authority). However, in order to assure public access to decision-making processes of boards and commissions, and in order to prevent circumvention of the statute, the presence of two governmental representatives might not always be necessary in order for a violation of the law to occur. See Op. Att’y Gen. Fla. 74-294 (1974) (a single member of a board with delegated authority to act on behalf of the board cannot negotiate for lease in secret); cf. Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) (“[t]he statute should be construed so as to frustrate all evasive devices”).Compare
a. Must a minimum number be present to constitute a "meeting"?
In general, “two or more members” is required. See section re “What constitutes a meeting subject to the law” above.Compare
b. What effect does absence of a quorum have?
There is no requirement that a quorum be present for a meeting of members of a public board or commission to be subject to Fla. Stat. § 286.011.Compare
2. Nature of business subject to the law
a. "Information gathering" and "fact-finding" sessions
The attorney general has opined that “information gathering” or “fact finding” sessions of a public board or commission are subject to the Sunshine Act. See Op. Att’y Gen. Fla. 74-273 (1974) (“fact-finding” discussions between two or more city council members and a planning firm, are subject to the Sunshine Law). However, two Florida appellate courts have concluded that where decision-making authority is not specifically delegated and board or committee members merely serve an advisory or fact-finding role, the Sunshine Law does not apply. Molina v. City of Miami, 837 So. 2d 462 (Fla. 3d DCA 2003); Knox v. Dist. Sch. Bd. of Brevard, 821 So. 2d 311 (Fla. 5th DCA 2002).
The Sunshine Law also applies to investigative inquiries of public bodies. Op. Att’y Gen. Fla. 74-84 (1974). The fact that a meeting concerns alleged violations of laws or regulations does not remove it from the scope of the law. Canney v. Bd. of Pub. Instruction, 278 So. 2d 260 (Fla. 1973). Moreover, under the holding of Berns, the fact that privileged or confidential information may or will be discussed during the course of the meeting does not serve to exempt such meeting from the scope of the Sunshine Law.Compare
b. Deliberation toward decisions
The Sunshine Law may extend to discussions and deliberations as well as to formal action taken by a public body. Accordingly, the law is applicable to any gathering where the members deal with some matter on which foreseeable action will be taken by a board or commission of a state, county, or municipal agency. Bd. of Pub. Instruction v. Doran, 224 So. 2d 693, 699 (Fla. 1969) (public has inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made); Times Publ’g Co. v. Williams, 222 So. 2d 470, 473 (Fla. 2d DCA 1969) (it is the entire decision-making process that the legislature intended to affect by the enactment of the statute before us; every step in the decision-making process, including the decision itself, is a necessary preliminary to formal action).
Even gatherings such as luncheon meetings, inspection trips, bus tours, retreats, social functions, phone calls, and written memoranda may be held violative of the Sunshine Law if attendant members of a public board deal with a matter on which foreseeable action may be taken. Accordingly, the Attorney General’s office discourages “luncheon meetings” of public boards whenever possible. See Op. Att’y Gen. Fla. 71-159 (1971); Finch v. Seminole Cty. Sch. Bd., 995 So. 2d 1068, 1072-73 ((Fla. 5th DCA 2008) (conduct of fact-finding bus tour taken by school board members constituted violation of Sunshine Law, due to the fact board had decision-making authority, was gathered in a confined space, and had opportunity to make decisions outside of public scrutiny, but violation was cured by full, open, and independent public hearings).
Telephone conversations between members of a public body subject to the Sunshine Law do not constitute illegal meetings per se. However, if such conversations are held to discuss public business in a place inaccessible to members of the public and press for the specific purpose of avoiding public scrutiny, section 286.011 will apply. Op. Att’y Gen. Fla. 71-32 (1971); see also Op. Att’y Gen. Fla. 75-59 (1975).
The use of memoranda to conduct city business may violate the Sunshine Act. For example, if a city commissioner initiated a memorandum reflecting his or her thoughts on a given subject with writing space appended for other members to concur or disapprove, and then placed the memorandum in an agreed upon receptacle for gathering the signatures at completion, the substance of the memorandum would become an official action. This procedure was said to violate the Sunshine Law despite the absence of a “meeting” between two or more members. Inf. Op. Att’y Gen. Fla. to John J. Blair (June 29, 1973). It is permissible for a school board member to prepare and circulate an informational memorandum or position paper to other board members, however, responsive memoranda or comments may not be solicited or supplied in circumvention of the open meetings requirement of section 286.011, Florida Statutes. Op. Att’y Gen. Fla. 96-35, (May 17, 1996).
Similarly, city managers and other executive administrative officers who serve public bodies should refrain from contacting each member of the public body that they serve in order to ascertain the member’s vote on a particular matter pending before such body. See Op. Att’y Gen. Fla. 75-59 (1975). See also Blackford v. Sch. Bd., 375 So. 2d 578 (Fla. 5th DCA 1979) (scheduled successive meeting between the school superintendent and individual members of the school board were subject to the Sunshine Law and amounted to de facto meetings of the board in violation of section 286.011). But see Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So. 3d 755 (Fla. 2010) (informational briefings for individual members of Board of County Commissioner did not violate the Sunshine Law.).Compare
3. Electronic meetings
a. Conference calls and video/Internet conferencing
Telephone conversations between members of a public body subject to the Sunshine Law do not constitute illegal meetings per se. However, if such conversations are held to discuss public business in a place inaccessible to members of the public and press for the specific purpose of avoiding public scrutiny, section 286.011 will apply. Op. Att’y Gen. Fla. 71-32 (1971); see also Op. Att’y Gen. Fla. 75-59(1975).Compare
E-mail is subject to the Sunshine Law if the communication is used to conduct public business. A January 2009 Final Report by the Commission on Open Government Reform stated that “the use of private computers and personal e-mail accounts to conduct public business does not alter the public’s right of access to the public records maintained by those computers or transmitted by such accounts.” However, an e-mail from one council member to another is not subject to the Sunshine Law where it merely communicates factual information and does not result in the exchange of council members’ comments or responses on subjects requiring council action. Op. Att’y Gen. 2001-20 (2001).
In Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So. 3d 755 (Fla. 2010), the Florida Supreme Court ruled that the City of Sarasota did not violate the Sunshine Law in connection with e‑mail discussions that took place during bond validation efforts. Any violations of the Sunshine Law committed in e-mail discussions were cured by the holding of public meetings.Compare
c. Text messages
While no formal decision has been made, the Office of the Attorney General issued an Informal Advisory Opinion on June 03, 2009 suggesting that text messages that are some way connected to “official business” would be subject to disclosure. The opinion further stated that it is well settled “that no means should be used to circumvent or evade the requirements of the Public Records Law.” However, officially the office declined to render a formal opinion regarding text messages sent or received during workshops or official meetings.Compare
d. Instant messaging
Not addressed. But see section re “Text messages” above.Compare
e. Social media and online discussion boards
The use of an “online bulletin board” for discussion of issues that may come before a water management district basin board has been considered in an Advisory Legal Opinion by the Florida Attorney General. Op. Att’y Gen. Fla. 02-32 (2002); see also Op. Att’y Gen. Fla. 08-07 (2008) (“The use of a website blog or message board to solicit comment from other members of the board or commission by their responses on matters that would come before the board would trigger the requirements of the Sunshine Law . . . [and] amount to a discussion of public business . . . without appropriate notice, public input, or statutorily required recording of the minutes of the meeting.”). The bulletin board discussions addressed occurred “over an extended period of days or weeks.” Op. Att’y Gen. Fla. 02-32 (2002). “In the absence of any proximity in time between the discussions of the basic board members and the public’s ability to participate in these discussions,” such discussions were a violation of Fla. Stat. section 286.011. Id.; see Informal Op. Att’y Gen. Fla. (Mar. 23, 2006) (discussing Op. Att’y Gen. Fla. 02-32 in regards to town’s proposal to conduct public meetings via an electronic discussion board).
The Attorney General has advised, however, that the use of electronic media to conduct workshops and informal meetings was acceptable where the meetings were noticed and conducted a certain time and the public was afforded an opportunity to participate during the meeting. Op. Att’y Gen. Fla. 01-66 (2001). The Attorney General has indicated that “[a]ccess must be available not only to those members of the public possessing a computer with internet access, but also to those who may not have access to the Internet. Op. Att’y Gen. Fla. 08-65 (2008). Computers with internet access must be made available to the public in designated places within the entity’s jurisdictional boundaries. See id.; Op. Att’y Gen. Fla. 01-66 (2001). Operating assistance must also be provided. Op. Att’y Gen. Fla. 08-65 (2008). The text of such online discussions would be public records, and minutes must be promptly prepared and recorded. See id.Compare
E. Categories of meetings subject to the law
1. Regular meetings
There is no specified definition for a “regular” meeting. The Sunshine Law extends to formal action taken by a board or commission as well as less formal the discussions and deliberations. There is no requirement that a quorum be present for a meeting of members of a public board or commission to be subject to Fla. Stat. § 286.011. Rather, the law is applicable to any gathering, whether formal or casual, of two or more members of the same board or commission to discuss some matter on which foreseeable action will be taken by the public board or commission. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973); see also City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); Bd. of Public Instruction of Broward Cty. v. Doran, 224 So. 2d 693 (Fla. 1969).Compare
The Sunshine Law requires that boards subject to the law provide “reasonable notice” of all meetings. See Fla. Stat. § 286.011(1) (1995).
Although prior to 1995, section 286.011 did not specifically require a public board to give public notice of a governmental meeting, the courts have long interpreted the statute to mandate reasonable notice as a practical matter. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). Furthermore, Florida’s Constitution requires that public meetings be “noticed to the public.” Art. 1, sec. 24(b). The time frame for giving notice is a “reasonable” time standard. See Op. Att’y Gen. Fla. 73-170 (1973) (reasonable public notice is variable, but must always afford a reasonable time for interested persons to appear); Op. Att’y Gen. Fla. 72-400 (1972) (directing regulatory boards of the Department of Professional and Occupational Regulation to give reasonable and ample notice to public and press of all meetings); Op. Att’y Gen. Fla. 80-78 (1980) (reasonable notice mandatory despite lack of specific statutory requirements). Accord Yarbrough v. Young, 462 So. 2d 515, 517 (Fla. 1st DCA 1985). See Rhea v. City of Gainesville, 574 So. 2d 221 (Fla. 1st DCA 1991) (complaint alleging notice given to media no later than 1:35 P.M. of special meeting at 3:00 P.M. was not sufficient notice stated a sufficient cause of action that Sunshine Law had been violated).
The Florida Attorney General suggests the use of press releases and/or phone calls to the wire services and other media as a highly effective means of notice. On matters of critical public concern such as rezoning, budgeting, taxation, and appointment of public offices, advertising in local newspapers of general circulation is appropriate. Any board or commission subject to Chapter 120, the Administrative Procedure Act, must consider the Act in conjunction with section 286.011 whenever a notice question arises. See Fla. Parole & Probation Comm’n v. Baranks, 407 So. 2d 1086 (Fla. 1st DCA 1982) (notice of meeting published in the Fla. Admin. Weekly is sufficient public notice under section 298.011); Op. Att’y Gen., 99-53 (1999) (meetings of a homeowners’ association architectural review committee to review and approve applications for county building permits must be noticed and open to the public at large and not merely to association members).
Proper posting of notice will depend on the facts and circumstances of each case. In each circumstance, the agency must give notice at such time and in such a manner as to enable the general public (and the media) to attend the meeting. See Ops. Att’y Gen. Fla. 04-44 (2004), 80-78 (1980), and 73-170 (1973); see also Rhea v. City of Gainesville, 574 So. 2d 221, 222 (Fla. 1st DCA 1991). In some cases, the posting of the notice in a designated area may be sufficient. In other cases, newspaper publication may be necessary.
Notice should contain an agenda; however, if no agenda is available, subject summations might be used. A specific requirement that each item discussed by a public agency be noticed by a published prior agenda was rejected in Hough v. Stembridge, because it would effectively preclude access to meetings by members of the general public who wish to address specific issues. See also, Law & Information Services v. City of Rivera Beach, 670 So. 2d 1014 (Fla. 4th DCA 1996) (to impose a requirement restricting every relevant commission or board from considering matters not on an agenda is a policy decision to be made by the Legislature); Yarbrough v. Young, 462 So. 2d 515 (posted agenda unnecessary; public body not required to postpone meetings due to inaccurate press release not part of official notice); Op. Att’y Gen. Fla. 75-305 (1975) (Sunshine Law does not require each item of business to be placed on agenda as a precondition to board consideration at a properly noticed meeting).
Notice should also contain the time and place of the meetings. See Law & Information Servs. Inc. v. City of Riviera Beach, (under Sunshine Law, public is entitled to notice of when and where governmental meeting is to be held, and that when held, such meetings are to be conducted openly). The only statutory informational notice requirement is advice that if the person decides to appeal a board decision, he may need to ensure that a verbatim record of the proceedings is made. Fla. Stat. § 286.0105 (1991). See Op. Att’y Gen. Fla. 81-6 (1981).
A showing that section 286.011 has been violated constitutes irreparable public injury, thus voiding, pursuant to Fla. Stat. section 286.001(1) any action taken at the meetings. See Port Everglades Auth. v. Int’l Longshoremen’s Ass’n, 652 So. 2d 1169 (Fla. 4th DCA 1995) (“[T]he principle that a Sunshine Law violation renders void a resulting official action does not depend on a finding of intent to violate the law or resulting prejudice. Once the violation is established, prejudice is presumed.”); Town of Palm Beach v. Gradison, 396 So. 2d 473 (Fla. 1974) (absence of notice of a meeting to the public or press is a potential violation of law); Op. Att’y Gen. Fla. 74-273 (1974). If a meeting held without notice is held to be a violation of the Sunshine Law, public officials who attended such a meeting may be subject to the fines or criminal penalties imposed by section 286.011 See discussion below relating to such penalties at “Fines."Compare
Section 286.011 specifically requires the minutes of a meeting of any board or commission to be promptly recorded and open to public inspection. Sound or tape recordings may be used to record all of the proceedings before a public body, however written minutes of such meetings must be promptly recorded for public inspection as required by section 286.011. See also Op. Att’y Gen. Fla. 75-45 (1975); Op. Att’y Gen. Fla. 74-294 (1974); Grapski v. City of Alachua, 31 So. 3d 193, 198-200 (Fla. 1st DCA 2010) (stating that minutes must be available for public inspection and declaring City’s approval of certain minutes null and void as a result of its failure to open the minutes to public inspection in a timely and reasonable manner in violation of Fla. Stat. section 286.022(2)).
The term “minutes” in § 286.011, Fla. Stat., contemplates a brief summary or series of brief notes or memoranda reflecting the events of the meeting. See Op. Att’y Gen. Fla. 82-47 (1982).Compare
2. Special or emergency meetings
The Sunshine Law does not prescribe particular rules for special or emergency meetings. Such meetings must therefore comply with the general requirements of the Sunshine Law. See section re “Categories of meetings subject to the law” above.Compare
b. Notice requirements
3. Closed meetings or executive sessions
In 1993, the Legislature created a narrow exception to the Sunshine Law permitting a governmental entity, its chief executive and attorney to meet in private if the entity is a party to pending litigation and the attorney desires advice concerning settlement negotiations or strategy. Fla. Stat. § 286.011(8).Compare
b. Notice requirements
The agency must give “reasonable public notice of the time and date of the attorney-client session and the names of the persons who will be attending the session.” Fla. Stat. § 286.011(8)(d). See Part E above.Compare
The entire session must be recorded by a certified court reporter. The reporter must record the times of commencement and termination of the session, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. No portion of the session can be off the record. The court reporter’s notes must be fully transcribed and filed with the entity’s clerk within a reasonable time after the meeting. Fla. Stat. § 286.011 (8)(c). The transcript of the session is made public upon conclusion of the litigation. Fla. Stat. § 286.011(8)(e).Compare
d. Requirement to meet in public before closing meeting
The session must commence at an open meeting at which the person chairing the meeting must announce the commencement and estimated length of the session and the names of the persons attending. Fla. Stat. § 286.011(8)(d). At the conclusion of the session, the meeting shall be reopened and the person chairing the meeting must announce the termination of the session. Id.Compare
e. Requirement to state statutory authority for closing meetings before closure
The entity’s attorney must advise the entity at a public meeting that he or she desires advice concerning pending litigation. Fla. Stat. § 286.011(8)(a).Compare
f. Tape recording requirements
There are no tape recording requirements. However, as described above, the entire session must be transcribed by a court reporter.Compare
F. Recording/broadcast of meetings
Although the Sunshine Law does not explicitly allow for the video recording of public meetings, refusal to allow such recording violates the “statute’s spirit, intent, and purpose” if the recording is non-disruptive. Pinellas Cty. Sch. Bd. v. Suncam, Inc., 829 So. 2d 989 (Fla. 2d DCA 2002).Compare
1. Sound recordings allowed
Members of the public attending a meeting open pursuant to section 286.011 may make a sound recording of such meeting. See Op. Att’y Gen. Fla. 77-122 (1977) (any rule prohibiting the use of silent or non-disruptive tape recording devices is unreasonable and arbitrary and is, accordingly, invalid, thus fire control district may not prohibit a citizen from tape recording public meetings).Compare
2. Photographic recordings allowed
Reasonable rules and policies which ensure orderly conduct of a public meeting and require orderly behavior on the part of those persons attending may be adopted by any public agency whose meetings come within the purview of the Sunshine Law. As for the use of cameras by newsmen and other individuals, so long as their presence is not disruptive of the conduct of the meeting, they should be, and traditionally are, allowed since they aid in making an accurate report to members of the public who could not be present at that particular meeting. Government-in-the-Sunshine Manual p. 26 (1988).Compare
G. Access to meeting materials, reports and agendas
H. Are there sanctions for noncompliance?
For violations of the open meetings law, officials are guilty of a non-criminal infraction, which is punishable by a fine of less than $500. Public officials who knowingly violate the open meetings law by attending a meeting held in violation of the law are guilty of a misdemeanor. Plaintiffs may recover attorneys’ fees against a public body. Fla. Stat. § 286.011(3-7) (2012).Compare
II. Exemptions and other legal limitations
A. Exemptions in the open meetings statute
Because the Sunshine Law is enacted for the public benefit, it should be construed liberally to give effect to its public purposes, and its exemption should be narrowly construed. Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998). In addition, Florida’s Constitution, Art. I, sec. 24 (c), a self-executing provision, requires that each exemption statute specify the public necessity justifying it and is no broader than necessary to accomplish the stated purpose of the law. See Halifax Hosp. Med. Ctr. v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (striking down Fla. Stat. section 395.3035(4), which exempts portions of public hospital board meetings during which strategic plans are discussed, under this constitutional provision as being facially overbroad because it did not define “strategic plan” or limit the exemption to critically confidential portions of strategic meetings).Compare
1. Character of exemptions
Exemptions to the Sunshine Law are specific rather than general in that all exemptions must be provided for by statute. The Sunshine Law itself contains no general provision for closure in the “public interest.” An exemption from Fla. Stat. section 119.07(1) does not imply an exemption from or exception to section 286.011. Such an exception to or exemption from section 286.011 must be expressly provided. Fla. Stat. section 119.07(5). See discussion below at II.B. for other statutes which provide for the closure of certain meetings and II.C., Court Mandated Exclusions, infra.
Neither the courts nor the Legislature have addressed whether exemptions are mandatory; thus, this issue will depend on the language of the particular statutory exemption. Most of the exemptions seem to be mandatory in that they state that a meeting “shall” be exempt from the provisions of section 286.011. See, e.g., Fla. Stat. §§ 112.324(1), 240.209(2) (2014). Other exemptions are triggered when a person within the class of individuals sought to be protected requests that the meeting be closed.Compare
2. Description of each exemption
- Exempt Proceedings. The basic statutory exemptions include: Fla. Stat. § 112.324(6) (2014) (exempting certain proceedings of the Commission on Ethics concerning complaints of statutory violations of section 112 by public officers and employees); Fla. Stat. § 286.011(8) (2012) (providing exception for certain attorney-client meetings of governmental entities; see, infra, II.B.4); Fla. Stat. § 106.25(5) (2013) (exempting certain proceedings of elections commission); Fla. Stat. § 240.209(2) (1995) (exempting the search committee activities for the selection of a Board of Regents Chancellor up to the point of transmitting the list of nominees); Fla. Stat. § 447.205(10) (2011) (exempting the deliberation of the Public Employees Relations Commission); and Fla. Stat. § 402.165(8)(a) (2006) (exempting all matters before the Human Rights Advocacy Committees concerning abuse or deprivation of rights of an individual client or group of clients of the department subject to the protections of the section); Fla. Stat. § 395.3036 (2012) (exempting meetings of the governing boards of private corporations that lease public hospitals or other public health care facilities).
- Federal Programs. Section 286.011 (Sunshine Law) may be inapplicable to local officials when they are serving on executive committees of public bodies such as community action agencies created by and subject to federal law. Op. Att’y Gen. Fla. 71-191 (1971). See also, Op. Att’y Gen. Fla. 84-16 (1984). But see, Freeman v. Time Publ’g Co., 969 So. 2d 427 (Fla. 2d DCA 1997) (school board enjoined from holding closed-door meetings to discuss issues relating to continuing compliance with federal desegregation program).
- Trade Secrets. Any information relating to secret processes, methods of manufacture or production which may be required, ascertained, or discovered by inspection or investigation, shall not be disclosed in public hearings. Fla. Stat. § 403.111 (1996).
- Litigation. Section 286.011 (Sunshine Law) is applicable to meetings between a governmental agency and its attorney when such meetings are held to discuss proposed or pending litigation. See Neu v. Miami Herald Publ’g Co., 462 So. 2d 821 (Fla. 1985) (Sunshine Law applies to meetings between city council and a city attorney held for purpose of discussing settlement of litigation; legislative regulation of such communications does not usurp constitutional authority of the Supreme Court to regulate the practice of law, and is not at odds with the Code of Professional Responsibility’s provision for attorney-client confidentiality). Accord, City of Miami Beach v. Berns, 245 So. 2d at 40-41 (citing Doran, and holding city council cannot hold informal executive sessions from which the public is excluded to discuss pending litigation); Bd. of Pub. Instruction of Broward Cty. v. Doran, 224 So. 2d at 699 (whether Fla. Stat. sec 286.011 should authorize secret meetings for privileged matter is the concern of the Florida Legislature and unless the Legislature amends the statute, it should be construed as containing no exceptions).
Consultation with Attorneys; Consultants. In 1993, the Legislature created a narrow exception permitting a governmental entity, its chief executive and attorney to meet in private if the entity is a party to pending litigation and the attorney desires advice concerning settlement negotiations or strategy. Fla. Stat. § 286.011(8). Staff of Fla. H.R. Comm. On Gov’t Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement 2 (Fla. State Archives) (hereinafter “Final Staff Analysis”); Sch. Bd. of Duval Cty. v. Fla. Publ’g Co., 670 So. 2d 99 (Fla. 1st DCA 1996). “[T]he exemption is limited to discussions involving the actual settlement of presently pending litigation.” Anderson v. City of St. Pete Beach, 161 So. 3d 548, 552 (Fla. 2d DCA 2014) (seven shade meetings, which also covered a wide range of topics that were not connected to the pending litigation or litigation costs, such as readopting the comprehensive plan, violated the Sunshine Law, and subsequent public action could not cure the violation). This subsection of the Sunshine Law requires that: (a) the “attorney advise the entity at a public meeting that he desires advice concerning litigation”; (b) the subject matter of the meeting “be confined to settlement negotiations or strategy sessions related to litigation expenditures”; (c) the entire session be “recorded by a certified court reporter” making record of the time, all discussions and proceedings, the names of all persons present, and the names of all persons speaking; (d) the entity give “reasonable public notice of the attorney client session and the name of persons who will be attending the session” which must take place during an open meeting; and (e) the transcript “be made part of the public record upon conclusion of the litigation.” 286.011(8). It is important to note that this provision does “not create a blanket exception to the open meeting requirement for all meetings between a public board or commission and its attorney” but rather outlines an exception that is “narrower than the attorney-client communications exception recognized for private litigants.” Op. Att’y Gen Fla. 95-06, 4 (1995); see also City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995) (“the legislature intended that a strict construction be applied”); Sch. Bd. of Duval Cty., 670 So. 2d 99 (inclusion of consultants to discuss settlement negotiations is prohibited); Freeman, 969 So. 2d 427(school board permitted to close meeting to discuss strategies related to litigation expenditures but must discuss compliance with desegregation mandate in the open); Zorc v. City of Vero Beach, 722 So. 2d 891, (only those person listed in the statutory exemption are authorized to attend closed attorney-client session; attendance of city clerk, deputy clerk, airport director, public works director, and city engineer was improper). However, when counsel takes formal action beyond the scope of mere strategy, an open meeting is required. Id.
- Labor negotiations. Meetings relating to collective bargaining must be open unless statutorily exempt. Cf. State ex rel. Crago v. Hunter, No. 75-515 (Fla. 19th Cir. Ct. 1975) (school board must conduct collective bargaining negotiations so that a person of reasonable experience and average intelligence can comprehend what is transpiring; this does not include conducting public bargaining sessions through written proposals and references which were not available to the public and representatives of the media present at such bargaining sessions).
Under the Public Employee Collective Bargaining Act, all discussions between the chief executive officer of a public employer and the legislative body of a public employer relative to collective bargaining are exempt from the Sunshine Law. Fla. Stat. § 447.605(1) (1997). In addition, all discussion between the Department of Administration and the Governor, and between the Department and the Administration Commission, or between any of their respective representatives, relative to collective bargaining are exempt from the provision of Fla. Stat. § 286.011; § 110.201(4) (1995). See Op. Att’y Gen. Fla. 85-99 (1985) (a duly appointed labor negotiating committee or its chairman, of a municipality having no city administrator, city manager, or other chief executive officer, comes within the definition of “chief executive officer of the public employer” for purposes of section 447.605(1)).
The section 447.605 exemption applies only in the context of actual and impending collective bargaining negotiations and does not apply to other, non-exempt topics discussed during the course of the same meeting. See City of Fort Meyers v. News-Press Publ’g Co., 514 So. 2d 408 (Fla. 2d DCA 1987) (section 286.011 applies to bargaining process after impasse in bargaining has been declared). In addition, pursuant to § 447.605(2), collective bargaining negotiations between a chief executive officer and a bargaining agent are not exempt from section 286.011. See generally Op. Att’y Gen. Fla. 75-48 (1975) (the exemption does not allow private discussions of a proposed “mini-PERC ordinance” or discussion regarding the stance that a public body intends to adopt in regard to unionization and/or collective bargaining). See also, Inf. Op. Att’y Gen. Fla. to Don Slesnick (January 12, 1977) (the exemption at section 447. 605(1) applies to meetings between a public employer and its negotiator to discuss whether or not to accept a special master’s recommendation); News-Press Publ’g Co. v. City of Fort Myers, No. 85-6733CA (Fla. 20th Cir. Ct. June 3, 1986) (legislature has divided Sunshine Law policy on collective bargaining for public employees in two: when the public employee is meeting with its own side and when it is meeting with the other side; in the former situation, it is required to comply with the law). The Sunshine Law applied to federal mediation, in which collective bargaining occurred, resulting in changes to pension benefits, without public notice of the sessions or publication of a transcript of the proceedings, when a non-party to the federal litigation acted as the union’s bargaining agent. Brown v. Denton, 152 So. 3d 8 (Fla. 1st DCA 2014).
- Students Discipline. If a student or his guardian wishes to challenge material found in the student’s records, hearings held pursuant to the challenge may be exempt from, the requirements of Fla. Stat. § 286.011. See also, Marston v. Gainesville Sun Publ’g Co., 341 So. 2d 783 (Fla. 1st DCA 1976) (exempting meetings of the Honor Court at the University of Florida from section 286.011, on the ground that such body considers privileged or confidential documents, i.e., student disciplinary records).
- Attorney Discipline. The grievance committee meetings of the Florida Bar are private. Preventing the public from attending such meetings does not violate section 286.011. Fla. Bar v. Comm., 2005 WL 2509186 (Fla. 2005).
B. Any other statutory requirements for closed or open meetings
See section re “Exemptions in the open meetings statute” above.Compare
C. Court mandated opening, closing
The judiciary has no constitutional or statutory authority to create general “public interest” exemptions to the open meetings requirement. Neu v. Miami Herald Pub. Co., 462 So. 2d 821 (Fla. 1985). See Bd. of Pub. Instruction v. Doran, 224 So. 2d 693 (1969); City of Miami Beach v. Berns, 245 So. 2d 38. The Neu opinion was rendered in the context of governmental meetings with agency attorneys, and it overrules Times Pub’g Co. v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969); cf. Wait v. Fla. Power & Light Co., 372 So. 2d 420 (Fla. 1979) (courts may not create exemptions to Public Records Law).Compare
III. Meeting categories - open or closed
A. Adjudications by administrative bodies
There is no provision relating to the application of the Sunshine Act to administrative bodies. The application of the Act to such bodies probably will depend on whether the administrative body in question acts as an arm of the legislature, or the executive branch and is an agency as defined by the statute. See discussion above at “What governments are subject to the law” and “What bodies are covered by the law?”Compare
1. Deliberations closed, but not fact-finding
See discussion above. There is no provision relating to the application of the Sunshine Act to administrative bodies. The application of the Act to such bodies probably will depend on whether the administrative body in question acts as an arm of the legislature, or the executive branch and is an agency as defined by the statute. See discussion above at “What governments are subject to the law” and “What bodies are covered by the law?”.Compare
2. Only certain adjudications closed, i.e. under certain statutes
See discussion above. There is no provision relating to the application of the Sunshine Act to administrative bodies. The application of the Act to such bodies probably will depend on whether the administrative body in question acts as an arm of the legislature, or the executive branch and is an agency as defined by the statute. See discussion above at “What governments are subject to the law” and “What bodies are covered by the law?”.Compare
B. Budget sessions
Because there is no statutory exemption from section 286.011 for budget sessions of a public agency, such sessions presumably fall within the purview of the Sunshine Act. See News-press Co. v. Carlson, 410 So. 2d 546 (Fla. 2d DCA 1982). Workshop sessions are subject to the Sunshine Law. See, e.g., Sch. Bd. of Alachua Cty., 661 So. 2d 331 (Fla. 1st DCA 1995).Compare
C. Business and industry relations
Because there is no statutory exemption from section 286.011 for governmental meetings relating to business and industry relations, such meetings must be held in accordance with the Sunshine Act.Compare
D. Federal programs
See discussion above at II.A.2.Compare
E. Financial data of public bodies
Because there is no statutory exemption from section 286.011 for meetings of a public board or commission at which financial data of public bodies is discussed, such meetings must be held in accordance with the Sunshine Act.Compare
F. Financial data, trade secrets, or proprietary data of private corporations and individuals
See discussion above at II.A.3.Compare
G. Gifts, trusts and honorary degrees
There is no Florida law governing the relationship between the open meetings requirement of section 286.011 and gifts, trusts, and honorary degrees.Compare
H. Grand jury testimony by public employees
Grand jury proceedings are exempt from the Sunshine Law by virtue of their characterization as an arm of the judicial branch of government. See Fla. Stat. § 905.24 (1993) (grand jury proceedings are secret). There are no judicial decisions or attorney general opinions suggesting that this general exemption does not apply where a public employee testifies before a grand jury.Compare
I. Licensing examinations
The application of open government laws to licensee examinations is addressed in the context of public records, rather than open meetings, presumably because most examinations are written and not oral. Pursuant to Fla. Stat. § 119.07(3)(a) (2007), questions and answer sheets of examinations administered by governmental agencies for purposes of licensure, certification or employment are exempt from the public records requirements.Compare
J. Litigation, pending litigation or other attorney-client privileges
See discussion above at II.A.4.Compare
K. Negotiations and collective bargaining of public employees
See discussion above at II.A.5.Compare
1. Any sessions regarding collective bargaining
2. Only those between the public employees and the public body
L. Parole board meetings, or meetings involving parole board decisions
The Parole and Probation Commission is subject to the Sunshine Law. Turner v. Wainwright, 379 So. 2d 148, aff’d, 389 So. 2d 1181 (Fla. 1980) (the application of section 286.011 to meetings of the parole commission held to revoke paroles did not violate clemency prerogatives of the executive branch). Compare Fla. Stat. § 947.06 (2010), which appears to require that such meetings be open to the public.Compare
M. Patients, discussions on individual patients
There is no relevant statutory exemption from section 286.011 for discussions relating to patients; rather, open government provisions relating to patients are stated in terms of exemptions to the public records law. See Fla. Stat. § 395.3025(4) (2014) (patient records have a privileged and confidential status. . . .).Compare
N. Personnel matters
1. Interviews for public employment
There is no statutory exemption for interviews for public employment, nor have there been any judicial or attorney general decisions rendered on this issue.Compare
2. Disciplinary matters, performance or ethics of public employees
Meetings of a public board or commission which relate to the discipline of a public employee must be open to the public pursuant to section 286.011. See Times Publ’g Co. v. Williams, 222 So. 2d at 474 (hearings relating to charges of misconduct of a public employee may not be exempt from Sunshine Law based on public or privacy rights of the employee); Op. Att’y Gen. Fla. 77-132 (1977) (county personnel council may not deliberate in private prior to deciding whether or not to take disciplinary action against an employee); Op. Att’y Gen. Fla. 79-1 (1979) (section 286.011 prohibits the governing body of a municipal housing authority from excluding the executive director and other members of the authority’s staff from a public meeting in which the board discusses personnel matters, regardless of whether members of the news media are in attendance or whether any other members of the public are present).
However, the legislature may provide for statutory exemptions for disciplinary hearings of certain personnel. Tribune Co. v. Sch. Bd. of Hillsborough County, 367 So. 2d 627 (Fla. 1979) (a special act giving a teacher the option of an open or closed hearing during a disciplinary proceeding is a valid legislative exception to section 286.011); see also, Fla. Stat. § 395.0115 (1991) (exempting proceedings of committees and governing bodies of hospitals or ambulatory surgical centers licensed in accordance with Ch. 895 which relate to disciplinary actions).Compare
3. Dismissal, considering dismissal of public employees
A panel that meets to deliberate on the subject of an employee’s discipline or termination is a “board” or “commission” within the meaning of the Sunshine Act, Fla. Stat. § 286.011(1), where “the panel exercises decision-making authority”; and it is a violation of the Sunshine Act for such a panel to conduct close-door deliberations regarding whether to terminate an employee. Drascott v. Palm Beach Cty.., 877 So. 2d 8, 12, 14 (Fla. 4th DCA 2004); see also Deininger v. Palm Beach Cty.., 922 So. 2d 1102, 1102-03 (Fla. 4th DCA 2006) (reversing order denying certification of a class claim for violation of Fla. Stat. § 286.011(1) consisting of county employees who were terminated or disciplined by a panel that deliberated in private). However, where a panel does not exercise decision-making authority (e.g., a panel that makes a recommendation on the record to an official that makes the ultimate decision to terminate), the panel is not a “board” or “commission” subject to the Act, and thus its deliberations may be behind closed doors. Jordan v. Jenne, 938 So. 2d 526, 530 (Fla. 4th DCA 2006).Compare
O. Real estate negotiations
Negotiations for the sale or purchase of real property must be conducted openly. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). See also, Op. Att’y Gen. Fla. 74-294 (1974) (single member to whom authority to acquire land is delegated cannot negotiate for such acquisitions in secret); Zorc. v. Jordan, 765 So. 2d 768 (Fla. 4th DCA 2000) (city commission’s action in voting to pay one of its commission members an allegedly unreasonable appraisal value for land acquired by the city violates the Sunshine Law because the decision was made in a non-public meeting). Although there are statutory exemptions relating to public records of certain public real estate transactions, such provisions specifically state that “nothing in this section shall be interpreted as providing an exemption from or exception to sec. 286.011.” See Fla. Stat. §§ 125.355, 166.045, and 235.054 (1995).Compare
P. Security, national and/or state, of buildings, personnel or other
There is no statutory, judicial or attorney general authority relating to the application of section 286.011 to meetings at which security is addressed.Compare
Q. Students, discussions on individual students
See discussion above at II.A.6.Compare
IV. Procedure for asserting right of access
A. When to challenge
A challenge may be made any time a present dispute exists. See Askew v. City of Ocala, 348 So. 2d 308 (Fla. 1977) (declaratory relief not appropriate where plaintiff seeks judicial advice different from that advanced by the Attorney General and/or the state attorney).Compare
1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?
Although section 286.011 does not provide specifically for an expedited procedure for reviewing a request to attend an upcoming meeting, the statute does give the circuit courts jurisdiction to issue injunctions to enforce the purposes of the section. Fla. Stat. § 286.011(2), (2012).Compare
2. When barred from attending
A member of the public would bring an action pursuant to section 286.011 if the individual was improperly barred from a meeting, if proper notice of the meeting was not given, if the individual wanted to set aside a decision made in an improperly closed meeting, or when a ruling on future meetings is sought.Compare
3. To set aside decision
Under § 286.011, Fla. Stat., no resolution, rule, regulation or formal action shall be considered binding except as taken or made at an open meeting. Accordingly, courts have held that action taken in violation of the law is void ab initio. See, e.g., Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Blackford v. Sch. Bd. of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979); Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997); TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991); Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010). A proceeding to set aside action that was not taken or made at an open meeting would necessarily occur after the meeting. To be valid, resolutions made during meetings held in violation of section 286.011 must be re-examined and re-discussed in open public meetings. See Blackford, 375 So. 2d 578.Compare
4. For ruling on future meetings
Future violations may be enjoined by the court so long as one violation has been found and it appears either: (1) that future violation will bear a resemblance to the past violation; or (2) that the danger of future violations can be anticipated from the course of conduct in the past. See Board of Public Instruction of Broward County v. Doran, 224, So. 2d 693 (Fla. 1969); Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (trial court's permanent injunction affirmed); see also Leach-Wells v. City of Bradenton, 734 So. 2d 1168, 1170 n.1 (Fla. 2d DCA 1999) (noting that, had a citizen appealed the trial court's denial of temporary injunction, appellate court “would have had the opportunity to . . . direct that the City be enjoined from entering into a final contract with the developer until after such time as the ranking of the proposals could be accomplished in compliance with the Sunshine Law.”)Compare
B. How to start
1. Where to ask for ruling
One must seek review in the courts. See discussion, below at “Applicable Time Limits.” There are no time limits within the statutory framework of section 286.011 for a challenge under the Sunshine Act.Compare
a. Administrative forum
b. State attorney general
1. Applicable time limits
2. Contents of request
3. How long should you wait for a response?
2. Applicable time limits
There are no time limits within the statutory framework of section 286.011 for a challenge under the Sunshine Act.Compare
3. Contents of request for ruling
A complaint alleging violation of the Sunshine Law must allege by name or sufficient description the identity of the public official with whom the defendant public official has violated the Sunshine Law. Deerfield Beach Publ’g, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988).Compare
4. How long should you wait for a response
There are no time limits within the statutory framework of section 286.011 for a challenge under the Sunshine Act.Compare
5. Are subsequent or concurrent measures (formal or informal) available?
C. Court review of administrative decision
1. Who may sue?
While the Sunshine Act gives the “public” access to meetings of public boards or commissions, the act provides that only a “citizen of this state” may bring an action for improper denial of access to a meeting of a public board or commission. Fla. Stat. § 286.011(2) (2012). Additionally, an individual who suing under the Sunshine Law to enforce a public right is not required to first pursue an administrative remedy. Silver Express Co. v. Dist. Bd. of Tr. of Miami-Dade Cmty. Coll., 691 So. 2d 1099 (Fla. 3d DCA 1997).Compare
2. Will the court give priority to the pleading?
There is no authority addressing whether pleadings are to be given priority.Compare
3. Pro se possibility, advisability
In order to enforce the provisions of the Florida Sunshine Law, resort must be made to the courts. There is no simplified, or expedited procedure for persons seeking redress under the Act. Thus, while an individual may be permitted to proceed pro se, it is not advisable to do so, since a familiarity with procedural and substantive law is required.Compare
4. What issues will the court address?
a. Open the meeting
If such relief is warranted, Florida courts will provide injunctive relief requiring that a meeting of a board or commission of a public agency be opened up to the public. See, e.g., Marston v. Wood, 444 So. 2d 1141.
Florida courts have also ordered open records of improperly closed meetings. See, e.g., Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 729 So. 2d 373 (Fla. 1999).Compare
b. Invalidate the decision
Florida courts are authorized to invalidate actions taken at meetings held in violation of the Sunshine Law. Fla. Stat. § 286.011(4) (1995). See Silver Express Co. v. Dist. Bd. of Tr. of Miami-Dade Cmty. Coll., 691 So. 2d 1099 (Fla. 3d DCA 1997) (committee’s violation of Sunshine Law when it held closed meeting to evaluate proposals was irreparable public injury, warranting temporary injunction prohibiting college and successful bidder from entering into two-year contract based on findings of the committee). But see Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998) (full and open hearing will cure defect arising from a Sunshine Law violation); Leach-Wells v. City of Bradenton, 734 So. 2d 1168 (Fla. 2d DCA 1999) (city violated Sunshine Law when it failed to hold a public meeting before taking the formal action of short-listing the firms responding to a request for proposals; however, controversy is moot because acts that plaintiff sought to enjoin had already been committed).Compare
c. Order future meetings open
Florida courts have issued declaratory judgments ordering that future meetings of a board or commission of a public agency be open to the public. See, e.g., Marston v. Wood, 442 So. 2d 934 (Fla. 1983).Compare
5. Pleading format
There is no special pleading format to enforce the Florida Sunshine Law.Compare
6. Time limit for filing suit
There is no statutory time limit for filing suit against a board, commission, or a member thereof who has held or intends to hold a meeting in violation of the Sunshine Act.Compare
7. What court
Actions to enforce the provisions of section 286.011 should be filed in circuit court. See Fla. Stat. §. 286.011(2) (2012).Compare
8. Judicial remedies available
The public meeting statute (Sunshine Law) specifically provides for injunctive relief for persons wrongfully denied access to a meeting of a public board or commission. Courts may also render declaratory judgments under the Sunshine Law.Compare
9. Availability of court costs and attorney's fees
Whenever a citizen has filed an action to enforce the provisions of section 286.011, or to invalidate actions taken at a meeting in violation thereof, and the court determines that such a violation was committed, it must assess reasonable attorney fees against the defendant(s). Fla. Stat. § 286.011(4) (2012). See, e.g., Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 784 So. 2d 438 (Fla. 2001); Indian River Cty. Hosp. Dist. v. Indian River Mem’l Hosp., Inc., 766 So. 2d 233 (Fla. 4th DCA 2000). Attorney fees may also be assessed against a plaintiff who sues under section 286.011 and fails to present facts which create a justifiable issue. Cf. Bland v. Jackson Cty., 514 So. 2d 1115 (Fla. 1st DCA 1987). There is no comparable provision for assessment of court costs. Section 286.011(4) does not relieve a litigant from full compliance with the Rules of Appellate Procedure. Sch. Bd. of Alachua Cty., 661 So. 2d 331 (Fla. 1st DCA 1995).Compare
A public officer subject to section 286.011 who violates a provision therein is guilty of a non-criminal infraction, punishable by a fine up to $500. Fla. Stat. section 286.011(3)(a) (2012).Compare
11. Other penalties
A public officer who knowingly violates section 286.011 by attending a meeting not in accordance with section 286.011 is guilty of a second-degree misdemeanor, which is punishable by up to one-year imprisonment and/or a fine up to $1,000. Fla. Stat. §§ 286.011(3)(b), 775.082(4)(a), 775.083(1)(d) (1995). A party is not eligible to receive monetary damages under the Sunshine Law. Sinclair v. Town of Yankeetown, 2008 WL 660089 at *4 (N.D. Fla. Mar. 7, 2008).Compare
D. Appealing initial court decisions
1. Appeal routes
The appeal route for challenging a decision made under the Florida Sunshine Law is the same as the appeal route for other civil actions. Fla. R. App. P. 9.Compare
2. Time limits for filing appeals
As in the appeal of other actions, an appeal from a circuit court decision relating to section 186.011 must be made to the proper District court within thirty days of the circuit court decision.Compare
3. Contact of interested amici
Because court decisions on open records issues may have far-reaching consequences, press groups and others may have an interest in filing a friend-of-the-court brief on behalf of your request for open records. The Reporters Committee for Freedom of the Press frequently files friend-of-the-court briefs for open records issues being considered at the highest appeal level in the state.Compare
V. Asserting a right to comment
A. Is there a right to participate in public meetings?
The Florida Supreme Court has recognized public participation in open meetings is important. See, e.g., Bd. of Public Instruction of Broward Cty. v. Doan, 224 So. 2d 693, 699 (Fla. 1969) (“[S]pecified boards and commissions . . . should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.”); Town of Palm Beach v. Gradison, 296 So. 2d 473, 475 (Fla. 1974) (explaining that public meeting is “a marketplace of ideas, so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the [public body].”). While the right to participate is not particularly well-defined, the Florida Code expressly provides that members of the public have a right to participate, subject to control by the decision-making body, in quasi-judicial proceedings on local government land use matters. Fla. Stat. § 286.0115(2)(b). The Florida Supreme Court has, however, held that there may be no right to participate in public meetings regarding certain types of executive functions which have traditionally been conducted without public input. See Wood v. Marston, 442 So. 2d 934, 941 (Fla. 1983); see also Keesler v. Maritime Park Assoc., Inc., 32 So. 3d 659 (Fla. 1st 2010) (the Sunshine Law gives Appellants the right to be present but not to speak at CMP—a nonprofit in charge of developing a parcel of public property—meetings.); Herrin v. Cty. of Deltona, 121 So. 3d 1094 (5th DCA 2013) (Sunshine Law did not require city commission to allow representative of citizen’s alliance group to speak at commission meeting.).Compare
B. Must a commenter give notice of intentions to comment?
There is no requirement that a commenter give notice of intentions to comment where the commenter has a right to comment.Compare
C. Can a public body limit comment?
As noted above, the Florida Supreme Court has indicated that there may be no right to comment where committees are carrying out certain executive functions which have traditionally been conducted without public input. Where there is a right to comment, it seems clear that the public body has the right to adopt reasonable rules and policies to ensure the orderly conduct of public meetings. See, e.g., Fla. Stat. § 286.0115(2)(b); see also Jones v. Heyman, 888 F.2d 1328, 1333 (11th Cir. 1989) (“[T]o deny the presiding officer the authority to regulate irrelevant debate and disruptive behavior at a public meeting — would cause such meetings to drag on interminably, and deny others the opportunity to voice their opinions.”).Compare
D. How can a participant assert rights to comment?
There is no authority prescribing the manner in which a participant can assert rights to comment.Compare
E. Are there sanctions for unapproved comment?
The Sunshine Law does not prescribe sanctions for unapproved comment.Compare