The Florida Bar
|Overview of the Sunshine and Public Records Laws - Part 1|
Patricia R. Gleason
I. Government In The Sunshine Law
B. What Agencies Are Covered By The Sunshine Law?
C. What Is A Meeting Subject To The Sunshine Law?
D. What Types Of Discussions Are Covered By The Sunshine Law?
E. Does The Sunshine Law Apply To:
F. What Are The Notice And Procedural Requirements Of The Sunshine Law?
G. What Are The Consequences If A Public Board Or Commission Fails To Comply With The Sunshine Law?
B. What Agencies Are Subject To The Public Records Act?
C. What Kinds Of Agency Records Are Subject To The Public Records Act?
D. To What Extent May An Agency Regulate Or Limit Inspection And Copying Of Public Records?
E. What Is The Legal Effect Of Statutory Exemptions From Disclosure?
F. To What Extent Does Federal Law Preempt State Law Regarding Public Inspection Of Records?
G. What Fees May Lawfully Be Imposed For Inspecting And Copying Public Records?
H. What Are The Options If An Agency Refuses To Produce Public Records For Inspection And Copying?
I. How Long Must An Agency Retain A Public Record?
A. WHAT IS THE SCOPE OF THE SUNSHINE LAW?
Florida's Government in the Sunshine Law, commonly referred to as the Sunshine Law, provides a right of access to governmental proceedings of public boards or commissions at both the state and local levels. The law is equally applicable to elected and appointed boards and has been applied to any gathering of two or more members of the same board to discuss some matter which will foreseeably come before that board for action. There are three basic requirements of section 286.011, Florida Statutes:
(1) meetings of public boards or commissions must be
open to the public;
(2) reasonable notice of such meetings must be given; and
(3) minutes of the meetings must be taken and promptly recorded.
A right of access to meetings of collegial public bodies is also recognized in the Florida Constitution. Article I, section 24, Florida Constitution, was approved by the voters in the November 1992 general election and became effective July 1, 1993. Virtually all collegial public bodies are covered by the open meetings mandate of the open government constitutional amendment with the exception of the judiciary and the state Legislature which has its own constitutional provision requiring access. The only exceptions are those established by law or by the Constitution.
B. WHAT AGENCIES ARE COVERED BY THE SUNSHINE LAW?
1. Are all public agencies subject to the Sunshine Law?
The Government in the Sunshine Law applies to "any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision." The statute thus applies to public collegial bodies within this state, at the local as well as state level. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). It is equally applicable to elected and appointed boards or commissions. Op. Att'y Gen. Fla. 73-223 (1973).
The judiciary and the Legislature are not subject to the Sunshine Law. See, Locke v. Hawkes, 595 So. 2d 32 (Fla. 1992); Op. Att'y Gen. Fla. 83-97 (1983).
Note: 2013-2014 additions are marked in bold text.
Federal agencies, i.e., agencies created under federal law, operating within the state do not come within the purview of the state Sunshine Law. Op. Att'y Gen. Fla. 71-191 (1971). Cf., Inf. Op. to Markham, September 10, 1996 (technical oversight committee established by state agencies as part of settlement agreement in federal lawsuit subject to Sunshine Law).
2. Are advisory boards which make recommendations or committees established for fact-finding only subject to the Sunshine Law?
a. Publicly created advisory boards which make recommendations
Advisory boards created pursuant to law or ordinance or otherwise established by public agencies may be subject to the Sunshine Law, even though their recommendations are not binding upon the agencies that create them. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). See also, Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (Sunshine Law applies to a university's search and screening committee). And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law applies to site plan review committee created by county commission to serve in an advisory capacity to the county manager).
b. Fact-finding committees
A limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for advisory committees established for fact-finding only. “[A] committee is not subject to the Sunshine Law if the committee has only been delegated information-gathering or fact-finding authority and only conducts such activities.” Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010). And see, Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985).
However, when a committee has been delegated a decision-making function (i.e., sorting through options and making recommendations to the governmental body), in addition to fact-finding, the Sunshine Law applies. Inf. Op. to Randolph, June 10, 2010. Moreover, the ‘fact-finding exception’ does not apply to boards, like school boards, that have the “ultimate decision-making authority”; thus the school board could not take a fact-finding tour without compliance with the Sunshine Law. Finch v. Seminole County School Board, 995 So. 2d 1068 (Fla. 5th DCA 2008). See Citizens for Sunshine, Inc. v. School Board of Martin County, 125 So. 3d 184 (Fla. 4th DCA 2013) (three members of school board violated Sunshine Law when they visited an adult education center without providing reasonable notice).
3. Are private organizations providing services to public agencies subject to the Sunshine Law?
“Generally . . . the Government in the Sunshine Law does not apply to private organizations providing services to a state or local government, unless the private entity has been created by a public entity, there has been a delegation of the public entity’s governmental functions, or the private organization plays an integral part in the decision-making process of the public entity.” Op. Att’y Gen. Fla. 07-27 (2007). Thus, the Sunshine Law would not ordinarily apply to meetings of a homeowners' association. Inf. Op. to Fasano, June 7, 1996. Compare, Op. Att’y Gen. Fla. 07-44 (2007) (property owners association subject to open government laws when it is acting on behalf of a municipal services taxing unit).
A private corporation which performs services for a public agency and receives compensation for such services pursuant to a contract or otherwise, is not by virtue of this relationship alone necessarily subject to the Sunshine Law unless the public agency's governmental or legislative functions have been delegated to it. McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980) (airlines are not by virtue of their lease with the aviation authority public representatives subject to the Sunshine Law).
However, although private organizations are generally not subject to the Sunshine Law, open meetings requirements can apply if the public entity has delegated "the performance of its public purpose" to the private entity. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373, 383 (Fla. 1999). Thus, a not-for-profit corporation that contracted with a city to carry out affordable housing responsibilities and also reviewed and screened applicant files is an agency for purposes of the Sunshine Law. Op. Att’y Gen. Fla. 08-66 (2008).
Similarly, the Sunshine Law applies to a private economic development council when there has been a delegation of the county commission’s authority to conduct public business such as carrying out the terms of the county’s strategic economic development plan. Op. Att’y Gen. Fla. 10-30 (2010). See also, Op. Att’y Gen. Fla. 11-01(2011) (Biscayne Park Foundation, a charitable foundation created by the Village of Biscayne Park to serve as ‘the Village’s fundraising arm,’ subject to the Sunshine Law); and Op. Att’y Gen. Fla. 10-44 (2010) (Sunshine Law applies to nonprofit corporation [Solar and Energy Loan Fund of St. Lucie County, Inc.] delegated authority to carry out the terms of the county’s green economic development plan). Compare, Inf. Op. to Gaetz and Coley, December 17, 2009, concluding that the open government laws did not apply to Florida’s Great Northwest, Inc., a private not-for-profit corporation, since no delegation of a public agency’s governmental function was apparent and the corporation did not appear to play an integral part in the decision-making process of a public agency.
4. Does the Sunshine Law apply to staff?
Meetings of staff of boards or commissions covered by the Sunshine Law are not ordinarily subject to section 286.011, Florida Statutes. Occidental Chemical Company v. Mayo, 351 So. 2d 336 (Fla. 1977), disapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Fla. 1992). Thus, a state agency did not violate the Sunshine Law when agency employees conducted an investigation into a licensee's alleged failure to follow state law, and an assistant director made the decision to file a complaint. Baker v. Florida Department of Agriculture and Consumer Services, 937 So. 2d 1161 (Fla. 4th DCA 2006).
Similarly, in Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 766 (Fla. 2010), the Supreme Court ruled that a deputy county administrator delegated authority to negotiate with a baseball team considering a move to the area for spring training, did not violate the Sunshine Law when he consulted with county staff because the administrator’s “so-called negotiations team only served an informational role.” And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), in which the court concluded that the Sunshine Law did not apply to informal meetings of staff where the meetings were "merely informational;" where none of the individuals attending the meetings had any decision-making authority during the meetings; and where no formal action was taken or could have been taken at the meetings; Knox v. District School Board of Brevard, 821 So. 2d 311, 315 (Fla. 5th DCA 2002) ("A sunshine violation does not occur when a governmental executive uses staff for a fact-finding and advisory function in fulfilling his or her duties").
However, when a staff member ceases to function in a staff capacity and is appointed to a committee which is given “a policy-based decision-making function,” the staff member loses his or her identity as staff while working on the committee and the Sunshine Law applies to the committee. It is the nature of the act performed, not the makeup of the committee or the proximity of the act to the final decision, which determines whether a committee composed of staff is subject to the Sunshine Law. Wood v. Marston, 442 So. 2d 934 (Fla. 1983). And see, Evergreen the Tree Treasurers of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526 (Fla. 2d DCA 2002) (when public officials delegate their fact-finding duties and decision-making authority to a committee of staff members, those individuals no longer function as staff members but "stand in the shoes of such public officials" insofar as the Sunshine Law is concerned).
For example, in Wood v. Marston, supra, the Court concluded that a committee composed of staff which was created for the purpose of screening applications and making recommendations for the position of a law school dean was subject to section 286.011, Florida Statutes, since the committee members performed a decision-making function outside of their normal staff activities. By screening applicants and deciding which applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university.
Similarly, in Silver Express Company v. Miami-Dade Community College, 691 So. 2d 1099 (Fla. 3d DCA 1997), the district court determined that a committee (composed of staff and one outside person) that was created by a college purchasing director to assist and advise her in evaluating contract proposals was subject to the Sunshine Law. According to the court, the committee's job was to weed through the various proposals, to determine which were acceptable and to rank them accordingly. This function was sufficient to bring the committee within the scope of the Sunshine Law because “[g]overnmental advisory committees which have offered up structured recommendations such as here involved -- at least those recommendations which eliminate opportunities for alternative choices by the final authority, or which rank applications for the final authority -- have been determined to be agencies governed by the Sunshine Law." 691 So. 2d at 1101. And see, Op. Att'y Gen. Fla. 05-06 (2005) (city development review committee composed of several city officials and representatives of various city departments to review and approve development applications, is subject to the Sunshine Law); and Op. Att’y Gen. Fla. 07-54 (2007), concluding that while post-termination hearings held before the city manager are not subject to the Sunshine Law, hearings held before a three member panel appointed by the city manager pursuant to the city personnel policy should be held in the Sunshine.
In making the determination as to whether a staff committee has “decision-making authority” so as to bring the group within the scope of the Sunshine Law, a key factor may be whether the committee deliberates with the person who makes the final decision. For example, the Fourth District held that deliberations of a pre-termination panel composed of the department head, personnel director and equal opportunity director should have been held in the Sunshine. Dascott v. Palm Beach County, 877 So. 2d 8 (Fla. 4th DCA 2004). Compare, McDougall v. Culver, 3 So. 3d 391, 394 (Fla. 2d DCA 2009) (circulation of memoranda by senior officials in sheriff’s office which contained findings and recommendations in connection with an internal affairs investigation did not constitute a “meeting” for purposes of the Sunshine Law because the sheriff alone made the final decision on discipline; “the senior officials provided only a recommendation to the Sheriff but they did not deliberate with him nor did they have decision-making authority.”); Jordan v. Jenne, 938 So. 2d 526, 530 (Fla. 4th DCA 2006) (“Because the [group] provided only a recommendation to the inspector general and did not deliberate with the inspector general, the ultimate authority on termination, we conclude that the [group] does not exercise decision-making authority so as to constitute a ‘board’ or commission within the meaning of section 286.011, and as a result, its meetings are not subject to the Sunshine Act”); and Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 763 (Fla. 2010) (county administrator’s consultations with staff did not violate the Sunshine Law because the individuals served “an informational role;” “[t]his is not a situation where the [administrator] and the individuals he consulted made joint decisions”).
5. Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees?
Occasionally, members of public boards also serve as administrative officers or employees. The Sunshine Law is not applicable to discussions of those individuals when serving as administrative officers or employees, provided such discussions do not relate to matters which will come before the public board on which they serve. Thus, a board member who also serves as an employee of an agency may meet with another board member on issues relating to his or her duties as an employee provided such discussions do not relate to matters that will come before the board for action. See, Ops. Att'y Gen. Fla. 93-41 (1993) and 11-04 (2011). Cf. section 286.01141, Florida Statutes (2013), providing an exemption for portions of meetings of local advisory criminal justice commissions.
C. WHAT IS A MEETING SUBJECT TO THE SUNSHINE LAW?
1. Number of board members required to be present
The Sunshine Law extends to the discussions and deliberations as well as the formal action taken by a public board or commission. There is no requirement that a quorum be present for a meeting of members of a public board or commission to be subject to section 286.011, Florida Statutes. Instead, 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).
Thus, two members of a civil service board violated the Sunshine Law when they held a private discussion of a pending employment appeal during a recess of the board meeting. Citizens for Sunshine, Inc. v. City of Sarasota, No. 2010CA4387NC (Fla. 12th Cir. Ct. February 27, 2012). Compare Op. Att'y Gen. Fla. 04-58 (2004) ("coincidental unscheduled meeting of two or more county commissioners to discuss emergency issues with staff" during a declared state of emergency not subject to s. 286.011 if the issues do not require action by the county commission).
2. Circumstances in which the Sunshine Law may apply to a single individual or where two board members are not physically present
The Sunshine Law applies to public boards and commissions, i.e., collegial bodies. As discussed supra, section 286.011, Florida Statutes, applies to meetings of "two or more members" of the same board or commission when discussing some matter which will foreseeably come before the board or commission.
Therefore, section 286.011, Florida Statutes, would not ordinarily apply to an individual member of a public board or commission or to public officials who are not board or commission members. See, Deerfield Beach Publishing, Inc. v. Robb, 530 So. 2d 510 (Fla. 4th DCA 1988) (requisite to application of the sunshine law is a meeting between two or more public officials); City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989); Mitchell v. School Board of Leon County, 335 So. 2d 354 (Fla. 1st DCA 1976); and Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755 (Fla. 2010) (private one-on-one informational briefings between individual county commissioners and staff did not violate the Sunshine Law).
Certain factual situations, however, have arisen where, in order to assure public access to the decision-making processes of public boards or commissions, it has been necessary to conclude that the presence of two individuals of the same board or commission is not necessary to trigger application of section 286.011, Florida Statutes. As stated by the Supreme Court, the Sunshine Law is to be construed "so as to frustrate all evasive devices." Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974).
a. Written correspondence between board members
A city commissioner may, outside a public meeting, send documents that the commissioner wishes other members of the commission to consider on matters coming before the commission for official action, provided that there is no response from, or interaction related to such documents among, the commissioners prior to the public meeting. Op. Att’y Gen. Fla. 07-35 (2007). In such cases, the records, which are subject to disclosure under the Public Records Act, are not being used as a substitute for action at a public meeting as there is no interaction among the commissioners prior to the meeting. Op. Att'y Gen. Fla. 89-23 (1989).
If, however, a report is circulated among board members for comments with such comments being provided to other members, there is interaction among the board members which is subject to section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 90-3 (1990). Accordingly, while a school board member may prepare and circulate an informational memorandum or position paper to other board members, the use of a memorandum to solicit comment from other board members or the circulation of responsive memoranda by other board members would violate the Sunshine Law. Op. Att'y Gen. Fla. 96-35 (1996).
b. Meetings conducted over the telephone or using electronic media technology
(1) Discussions conducted via telephones, email, text messaging or other electronic means are not exempted from the Sunshine Law.
As discussed previously, the Sunshine Law applies to discussions between two or more members of a board or commission on some matter which foreseeably will come before that board or commission for action. The use of a telephone to conduct such discussions does not remove the conversation from the requirements of section 286.011, Florida Statutes. See, State v. Childers, No. 02-21939-MMC; 02-21940-MMB (Escambia Co. Ct. June 5, 2003), per curiam affirmed, 886 So. 2d 229 (Fla. 1st DCA 2004) (telephone conversation during which two county commissioners and the supervisor of elections discussed redistricting violated the Sunshine Law).
Similarly, board members may not use computers to conduct private discussions among themselves about board business. Op. Att'y Gen. Fla. 89-39 (1989). Thus, while a city commissioner is not prohibited from posting comments on the city’s Facebook page, commissioners “must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action.” Op. Att’y Gen. Fla. 09-19 (2009). Cf., Inf. Op. to Galaydick, October 15, 1995, advising that school board members may share a laptop computer even though the hard drive of the computer contains information reflecting the ideas of an individual member as long as the computer is not being used as a means of communication between members; and Op. Att’y Gen. Fla. 01-20 (2001) (a one-way e-mail communication from one city council member to another, when it does not result in the exchange of council members’ comments or responses on subjects requiring council action, does not constitute a meeting subject to the Sunshine Law; however, such e-mail communications are public records).
(2) Authority of boards to conduct public meetings via electronic media technology (e.g. telephone or video conferencing).
A related issue is whether a board is authorized to conduct public meetings via electronic media technology (e.g., telephone or video conferencing). The answer to this question depends upon whether the board is a state or local government agency.
In Op. Att'y Gen. Fla. 98-28 (1998), the Attorney General’s Office concluded that section 120.54(5)(b)2., Florida Statutes, authorizes state agencies to conduct meetings via electronic means provided that the board complies with uniform rules of procedure adopted by the state Administration Commission. These rules contain notice requirements and procedures for providing points of access for the public. See, Rule 28-109, Florida Administrative Code.
As to local boards, the Attorney General's Office advised that the authorization in section 120.54(5)(b)2., Florida Statutes, to conduct meetings entirely through the use of communications media technology applies only to state agencies. Op. Att'y Gen. Fla. 98-28 (1998). Thus, since section 1001.372(2)(b), Florida Statutes, requires a district school board to hold its meetings at a "public place in the county," a quorum of the board must be physically present at the meeting of the school board. Id.
However, if a quorum of a local board is physically present at the public meeting site, "the participation of an absent member by telephone conference or other interactive electronic technology is permissible when such absence is due to extraordinary circumstances such as illness[;] . . . [w]hether the absence of a member due to a scheduling conflict constitutes such a circumstance is a determination that must be made in the good judgment of the board." Op. Att'y Gen. Fla. 03-41 (2003).
For example, if a quorum of a local board is physically present at the public meeting site, a board may allow a member with health problems to participate and vote in board meetings through the use of such devices as a speaker telephone that allow the absent member to participate in discussions, to be heard by other board members and the public, and to hear discussions taking place during the meeting. Op. Att’y Gen. Fla. 94-55 (1994). See also, Op. Att'y Gen. Fla. 02-82 (2002) (physically-disabled members of a city advisory committee participating and voting by electronic means).
However, the use of electronic media technology does not satisfy quorum requirements necessary for official action to be taken by local boards. Op. Att’y Gen. Fla. 06-20 (2006). “[W]here a quorum is necessary for action to be taken, physical presence of the members making up the quorum is required in the absence of a statute requiring otherwise.” Op. Att’y Gen. Fla. 09-56 (2009). Accordingly, a city may not adopt an ordinance allowing members of a city board to appear by electronic means to constitute a quorum. Op. Att’y Gen. Fla. 10-34 (2010).
The physical presence of a quorum has not been required, however, where electronic media technology (such as video conferencing and digital audio) is used to allow public access and participation at workshop meetings where no formal action will be taken. Thus, the Attorney General’s Office concluded that local boards may use electronic media technology to conduct informal discussions and workshops over the Internet, provided that proper notice is given, and interactive access by members of the public is provided. Op. Att’y Gen. Fla. 01-66 (2001). See also Op. Att’y Gen. Fla. 06-20 (2006).
However, the use of an electronic bulletin board to discuss matters over an extended period of days or weeks violates the Sunshine Law by circumventing the notice and access provisions of that law. Op. Att'y Gen. Fla. 02-32 (2002). Compare, Op. Att’y Gen. Fla. 08-65 (2008) (city advisory boards may conduct workshops lasting no more than two hours using an on-line bulletin board if proper notice is given and interactive access to members of the public is provided and the city ensures that operating-type assistance is available where the computers for the public are located).
c. Delegation of authority to single individual
If a member of a public board is authorized only to explore various contract proposals with the applicant selected for the position of executive director, with such proposals being related back to the governing body for consideration, the discussions between the board member and the applicant are not subject to the Sunshine Law. Op. Att'y Gen. Fla. 93-78 (1993). If, however, the board member has been delegated the authority to reject certain options from further consideration by the entire board, the board member is performing a decision-making function that must be conducted in the sunshine. Ops. Att’y Gen. Fla. 95-06 (1995) and Op. Att’y Gen. Fla. 93-78 (1993). And see, News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 547-548 (Fla. 2d DCA 1982) (when public officials delegate de facto authority to act on their behalf in the formulation, preparation, and promulgation of plans upon which foreseeable action will be taken by the public officials, then delegates stand in the shoes of such public officials insofar as the Sunshine Law is concerned). Compare, Lee County v. Pierpont, 693 So. 2d 994 (Fla. 2d DCA 1997) (authorization to county attorney to make settlement offers to landowners not to exceed appraised value plus 20%, rather than a specific dollar amount, did not violate the Sunshine Law).
Thus, while the Sunshine Law would not ordinarily apply to an individual member of a public board or commission or to public officials who are not board or commission members, the Sunshine law does apply when there has been a delegation of a board’s decision-making authority. Op. Att’y Gen. Fla. 10-15 (2010).
It must be recognized, however, that the applicability of the Sunshine Law relates to the discussions of a single individual who has been delegated decision-making authority on behalf of a board or commission. If the individual, rather than the board, is vested by law, charter or ordinance with the authority to take action, such discussions are not subject to section 286.011, Florida Statutes. See, City of Sunrise v. News and Sun-Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989). Cf. Op. Att’y Gen. Fla. 13-14 (2013) (where contract terms regarding the police chief’s employment have been discussed and approved at a public city commission meeting, Sunshine Law does not require that the written employment contract drafted by the town attorney as directed by the commission be subsequently presented to, considered and approved by the commission at a Sunshine Law compliant meeting).
d. Use of nonmembers as liaisons between board members or to conduct a “de facto” meeting of board members
The Sunshine Law is applicable to meetings between a board member and an individual who is not a member of the board when that individual is being used as a liaison between, or to conduct a de facto meeting of, board members. For example, in Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979), the court held that a series of scheduled successive meetings between the school superintendent and individual members of the school board were subject to the Sunshine Law. While normally meetings between the school superintendent and an individual school board member would not be subject to section 286.011, Florida Statutes, these meetings were held in "rapid-fire succession" in order to avoid a public airing of a controversial redistricting problem. They amounted to a de facto meeting of the school board in violation of section 286.011, Florida Statutes.
Not all decisions taken by staff, however, need to be made or approved by a board. Thus, the district court concluded in Florida Parole and Probation Commission v. Thomas, 364 So. 2d 480 (Fla. 1st DCA 1978), that the decision to appeal made by legal counsel to a public board after discussions between the legal staff and individual members of the commission was not subject to the Sunshine Law.
D. WHAT TYPES OF DISCUSSIONS ARE COVERED BY THE SUNSHINE LAW?
1. Investigative meetings or meetings to consider confidential material
The Sunshine Law is applicable to investigative inquiries of public boards or commissions. The fact that a meeting concerns alleged violations of laws or regulations does not remove it from the scope of the law. Op. Att'y Gen. Fla. 74-84 (1974); Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973). The Florida Supreme Court has stated that in the absence of a statute exempting a meeting in which privileged material is discussed, section 286.011, Florida Statutes, should be construed as containing no exceptions. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971).
Section 119.07(7), Florida Statutes, provides that an exemption from section 119.07, Florida Statutes, "does not imply an exemption from s. 286.011. The exemption from s. 286.011 must be expressly provided." Thus, exemptions from the Public Records Act, do not by implication allow a public agency to close a meeting in which exempted material is to be discussed in the absence of a specific exemption from the Sunshine Law. See, Ops. Att'y Gen. Fla. 10-04 (2010) (school board discussing confidential student records) and 91-88 (1991) (pension board). Cf. Op. Att’y Gen. Fla. 12-20 (2012) (county board designated as “appropriate local official” authorized by statute to receive and investigate whistle-blower complaints must comply with the Sunshine Law, and must also “protect the confidential information it is considering at a meeting and must not disclose the name of the whistle-blower unless one of the specific circumstances listed in the [whistle-blower law] is present”).
2. Legal matters
In the absence of legislative exemption, discussions between a public board and its attorney are subject to section 286.011, Florida Statutes. Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (section 90.502, Florida Statutes, which provides for the confidentiality of attorney-client communications under the Florida Evidence Code, does not create an exemption for attorney-client communications at public meetings). Cf., section 90.502(6), Florida Statutes, stating that a discussion or activity that is not a meeting for purposes of the Sunshine Law shall not be construed to waive the attorney-client privilege.
There are statutory exemptions, however, which apply to some discussions of pending litigation between a public board and its attorney.
a. Settlement negotiations or strategy sessions related to litigation expenditures
Section 286.011(8), Florida Statutes, provides:
Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity's attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met:
(a) The entity's attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.
(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.
(c) The entire session shall be recorded by a certified court reporter. The reporter shall 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 shall be off the record. The court reporter's notes shall be fully transcribed and filed with the entity's clerk within a reasonable time after the meeting.
(d) The entity shall give reasonable public notice of the time and date of the attorney-client session and the names of persons who will be attending the session. The session shall commence at an open meeting at which the persons chairing the meeting shall announce the commencement and estimated length of the attorney-client session and the names of the persons attending. At the conclusion of the attorney-client session, the meeting shall be reopened and the person chairing the meeting shall announce the termination of the session.
(e) The transcript shall be made part of the public record upon conclusion of the litigation. (e.s.)
(1) Is section 286.011(8), Florida Statutes, to be liberally or strictly construed?
It has been held that the Legislature intended a strict construction of section 286.011(8), Florida Statutes. City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995); School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99 (Fla. 1st DCA 1996).
(2) Who may call an attorney-client meeting?
While section 286.011(8), Florida Statutes, does not specify who calls the closed attorney-client meeting, it requires as one of the conditions that must be met that the governmental entity's attorney "shall advise the entity at a public meeting that he or she desires advice concerning the litigation."
The requirement that the board's attorney advise the board at a public meeting that he or she desires advice concerning litigation, is not satisfied by a previously published notice of the closed session. Op. Att'y Gen. Fla. 04-35 (2004). Rather, such an announcement must be made at a public meeting of the board. Id. Cf., Op. Att’y Gen. Fla. 07-31 (2007) (a board attorney’s request for a section 286.011, Florida Statutes, meeting may be made at a special meeting of the board provided that the special meeting at which the request is made is open to the public, reasonable notice has been given, and minutes are taken).
(3) Who may attend?
Only those persons listed in the statutory exemption, i.e., the entity, the entity's attorney, the chief administrative officer of the entity, and the court reporter are authorized to attend a closed attorney-client session. Other staff members or consultants are not allowed to be present. School Board of Duval County v. Florida Publishing Company. And see, Zorc v. City of Vero Beach, 722 So. 2d 891, 898 (Fla. 4th DCA 1998), review denied, 735 So. 2d 1284 (Fla. 1999) (rejecting city's argument that charter provision requiring that city clerk attend all council meetings authorized clerk to attend closed attorney-client meeting); Op. Att’y Gen. Fla. 09-52 (2009) (attorneys representing superintendent of schools in an administrative action where the school board is a named party not authorized to meet privately with school board); and Op. Att'y Gen. Fla. 01-10 (2001) (clerk of court not authorized to attend).
However, because the entity's attorney is permitted to attend the closed session, if the school board hires outside counsel to represent it in pending litigation, both the school board attorney and the litigation attorney may attend a closed session. Op. Att'y Gen. Fla. 98-06 (1998). And see, Zorc v. City of Vero Beach (attendance of Special Counsel authorized). And, a qualified interpreter may attend to interpret for hearing impaired board members without violating the Sunshine Law. Op. Att’y Gen. Fla. 08-42 (2008).
(4) Is substantial compliance with the conditions established in the statute adequate?
In City of Dunnellon v. Aran, supra, the court said that a city council's failure to announce the names of the lawyers participating in a closed attorney-client session violated the Sunshine Law. The court rejected the city's claim that when the mayor announced that attorneys hired by the city would attend the session [but did not give the names of the individuals], his "substantial compliance" was sufficient to satisfy the statute. Cf., Zorc v. City of Vero Beach, at 901, noting that deviation from the agenda at an attorney-client session is not authorized; while such deviation is permissible if a public meeting has been properly noticed, "there is no case law affording the same latitude to deviations in closed door meetings."
(5) What kinds of matters may be discussed at the attorney-client session?
Section 286.011(8) states that the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. Section 286.011(8)(b), Florida Statutes.
Moreover, section 286.011(8), Florida Statutes, “simply provides a governmental entity’s attorney an opportunity to receive necessary direction and information from the government entity. No final decisions on litigation matters can be voted on during these private, attorney-client strategy meetings. The decision to settle a case, for a certain amount of money, under certain conditions is a decision which must be voted upon in a public meeting.” School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99, 100 (Fla. 1st DCA 1996), quoting Staff of Fla.H.R.Comm. on Government Operations, CS/HB 491 (1993) Final Bill Analysis & Economic Impact Statement at 3. If a board goes beyond the "strict parameters of settlement negotiations and strategy sessions related to litigation expenditures" and takes "decisive action," a violation of the Sunshine Law results. Zorc v. City of Vero Beach, at 900. And see, Op. Att'y Gen. Fla. 99-37 (1999).
Thus, "[t]he settlement of a case is exactly that type of final decision contemplated by the drafters of section 286.011(8) which must be voted upon in the sunshine." Zorc v. City of Vero Beach, at 901. Accord, Op. Att’y Gen. Fla. 08-17 (2008) (“any action to approve a settlement or litigation expenditures must be voted on in a public meeting”). See also, Freeman v. Times Publishing Company, 696 So. 2d 427 (Fla. 2d DCA 1997) (discussion of methods or options to achieve continuing compliance with a long-standing federal desegregation mandate [such as whether to modify the boundaries of a school zone to achieve racial balance] must be held in the Sunshine). Compare, Bruckner v. City of Dania Beach, 823 So. 2d 167, 172 (Fla. 4th DCA 2002) (closed city commission meeting to discuss various options to settle a lawsuit involving a challenge to a city resolution, including modification of the resolution, authorized because the commission "neither voted, took official action to amend the resolution, nor did it formally decide to settle the litigation"); and Brown v. City of Lauderhill, 654 So. 2d 302, 303 (Fla. 4th DCA 1995) (closed-door session between city attorney and board to discuss claims for attorney's fees, authorized).
(6) When is an agency a "party to pending litigation" for purposes of the exemption?
In Brown v. City of Lauderhill, supra, the court said it could "discern no rational basis for concluding that a city is not a 'party' to pending litigation in which it is the real party in interest." Accord, Op. Att’y Gen. 09-15 (2009) (where city is a “real party in interest” of a pending lawsuit, it may conduct a closed attorney-client session even though it is not a named party to the litigation at the time of the meeting). And see, Zorc v. City of Vero Beach, at 900 (city was presently a party to ongoing litigation by virtue of its already pending claims in bankruptcy proceedings).
Although the Brown decision established that the exemption could be used by a city that was a real party in interest on a claim involved in pending litigation, that decision does not mean that an agency may meet in executive session with its attorney where there is only the threat of litigation. See, Op. Att'y Gen. Fla. 98-21 (1998) (section 286.011 exemption "does not apply when no lawsuit has been filed even though the parties involved believe litigation is inevitable"). And see, Ops. Att’y Gen. Fla. 09-25 (2009) (town council that has received a pre-suit notice under the Bert J. Harris Act is not a party to pending litigation and, therefore, may not conduct a closed meeting to discuss settlement negotiations), 06-03 (2006) (closed attorney-client session may not be held to discuss settlement negotiations on an issue that is the subject of mediation conducted pursuant to a partnership agreement between the agency and others) and 13-17 (2013) (exemption may not be used to conduct a closed meeting during a mandatory arbitration proceeding, when there is no pending legal proceeding in a court or before an administrative agency).
Accordingly, discussions between the city attorney and the city commission relating to settlement of a conflict under the Florida Governmental Conflict Resolution Act would not come within the scope of the exemption because “[n]othing in section 286.011(8), Florida Statutes, extends the coverage of the exemption to discussions of mediated disputes or to issues arising through the conflict resolution procedure whether or not litigation has been filed.” Op. Att’y Gen. Fla. 09-14 (2009).
(7) When is litigation "concluded" for purposes of section 286.011(8)(e)?
Section 286.011(8)(e), Florida Statutes, provides that transcripts of closed meetings “shall be made part of the public record upon conclusion of the litigation.” The exemption does not continue for “derivative claims” made in separate, subsequent litigation. Op. Att’y Gen. Fla. 13-13 (2013).
However, litigation that is ongoing but temporarily suspended pursuant to a stipulation for settlement has not been concluded for purposes of section 286.011(8), and a transcript of meetings held between the city and its attorney to discuss such litigation may be kept confidential until conclusion of the litigation. Op. Att'y Gen. Fla. 94-64 (1994). And see, Op. Att'y Gen. Fla. 94-33 (1994), concluding that to give effect to the purpose of section 286.011(8), a public agency may maintain the confidentiality of a record of a strategy or settlement meeting between a public agency and its attorney until the suit is dismissed with prejudice or the applicable statute of limitations has run. And see Inf. Op. to Boutsis, December 13, 2012, noting that the exemption continues through the appeals segment of the litigation.
The release by the city council of attorney-client transcripts from meetings held pursuant to section 286.011(8), Florida Statutes, prior to the “conclusion of litigation” would not constitute a violation of that statutory provision, but would represent a waiver of the limited exemption afforded to government agencies and their attorneys to discuss pending litigation issues. Op. Att’y Gen. Fla. 13-21 (2013).
b. Risk management
Section 768.28(16)(c), Florida Statutes, states that portions of meetings and proceedings relating solely to the evaluation of claims or to offers of compromise of claims filed with a risk management program of the state, its agencies and subdivisions, are exempt from the Sunshine Law.
This exemption is limited and applies only to tort claims for which the agency may be liable under section 768.28, Florida Statutes. Op. Att'y Gen. Fla. 04-35 (2004). The exemption is not applicable to meetings held prior to the filing of a tort claim with the risk management program. Op. Att'y Gen. Fla. 92-82 (1992). Moreover, a meeting of a city's risk management committee is exempt from the Sunshine Law only when the meeting relates solely to the evaluation of a tort claim filed with the risk management program or relates solely to an offer of compromise of a tort claim filed with the risk management program. Op. Att'y Gen. Fla. 04-35 (2004).
Unlike section 286.011(8), Florida Statutes, however, section 768.28(16), Florida Statutes, does not specify the personnel who are authorized to attend the meeting. See, Op. Att'y Gen. Fla. 00-20 (2000), advising that personnel of the school district who are involved in the risk management aspect of the tort claim being litigated or settled may attend such meetings without jeopardizing the confidentiality provisions of the statute.
3. Personnel matters
Meetings of a public board or commission at which personnel matters are discussed are not exempt from the provisions of section 286.011, Florida Statutes, in the absence of a specific statutory exemption. Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). And see, Op. Att’y Gen. Fla. 10-14 (2010) (collegial board created by board of directors of a charter school to oversee personnel decisions of the school is subject to the Sunshine Law).
a. Collective bargaining discussions
A limited exemption from section 286.011, Florida Statutes, exists for discussions between the chief executive officer of the public employer and the legislative body of the public employer relative to collective bargaining. Section 447.605(1), Florida Statutes. Cf., Op. Att'y Gen. Fla. 99-27 (1999), noting that a committee (composed of the city manager and various city managerial employees) formed by the city manager to represent the city in labor negotiations qualifies as the "chief executive officer" and thus may participate in closed executive sessions conducted pursuant to this section.
Section 447.605(1), Florida Statutes, does not directly address the dissemination of information that may be obtained at a closed labor negotiation meeting, but there is clear legislative intent that matters discussed during such meetings are not to be open to public disclosure. Op. Att'y Gen. Fla. 03-09 (2003).
The section 447.605(1) exemption applies only when there are actual and impending collective bargaining negotiations. City of Fort Myers v. News-Press Publishing Company, Inc., 514 So. 2d 408 (Fla. 2d DCA 1987). It does not apply to other nonexempt topics which may be discussed during the course of the same meeting. Op. Att'y Gen. Fla. 85-99 (1985). Moreover, the collective bargaining negotiations between the chief executive officer and a bargaining agent are not exempt and, pursuant to section 447.605(2), Florida Statutes, must be conducted in the Sunshine.
Section 447.605, Florida Statutes, does not directly address the dissemination of information that may be obtained at a closed labor negotiation meeting, but there is clear legislative intent that matters discussed during such meetings are not to be open to public disclosure. Op. Att'y Gen. Fla. 03-09 (2003).
b. Disciplinary hearings and grievance committees
A meeting of a municipal housing authority commission to conduct an employee termination hearing is subject to the Sunshine Law. Op. Att'y Gen. Fla. 92-65 (1992). Similarly, in Dascott v. Palm Beach County, 877 So. 2d 8 (Fla. 4th DCA 2004), the court held that deliberations of pre-termination panel composed of the department head, personnel director and equal opportunity director should have been held in the Sunshine. And see Citizens for Sunshine Inc. v. City of Sarasota, No. 2010CA4387NC (Fla. 12th Cir. Ct. February 27, 2012) (two members of a civil service board violated the Sunshine Law when they held a private discussion about a pending employment termination appeal during a recess).
However, the Sunshine Law does not apply to a professional standards committee responsible for reviewing charges against a sheriff's deputy and making recommendations to the inspector general as to whether the charges should be sustained, dismissed, or whether the case should be deferred for more information. Jordan v. Jenne, 938 So. 2d 526 (Fla. 4th DCA 2006). And see, Op. Att’y Gen. Fla. 07-54 (2007), concluding that while post-termination hearings held before the city manager are not required to be open, hearings held before a three member panel appointed by the city manager pursuant to the city personnel policy should be held in the Sunshine. Accord, Op. Att’y Gen. Fla. 10-14 (2010) (while a single officer, accomplishing his or her official duties and responsibilities may not be subject to the Sunshine Law while discharging those duties, the creation of a board or commission to accomplish these duties or the delegation of responsibility to a collegial body may implicate the Sunshine Law).
The Sunshine Law applies to board discussions concerning grievances and other personnel matters. Op. Att'y Gen. Fla. 76-102 (1976). A staff grievance committee created to make nonbinding recommendations to a county administrator regarding disposition of employee grievances is also subject to section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 84-70 (1984). And see, Palm Beach County Classroom Teacher's Association v. School Board of Palm Beach County, 411 So. 2d 1375 (Fla. 4th DCA 1982), in which the court affirmed the lower court's refusal to issue a temporary injunction to exclude a newspaper reporter from a grievance hearing. A collective bargaining agreement cannot be used "to circumvent the requirements of public meetings" in section 286.011, Florida Statutes. Id. at 1376.
The Sunshine Law applies to meetings of a board of county commissioners when interviewing applicants for county positions appointed by the board, when conducting job evaluations of county employees answering to and serving at the pleasure of the board, and when conducting employment termination interviews of county employees who serve at the pleasure of the board. Op. Att'y Gen. Fla. 89-37 (1989).
d. Screening advisory committees
In Wood v. Marston, 442 So. 2d 934 (Fla. 1983), a committee composed of staff which was created for the purpose of screening applications for the position of a law school dean and making recommendations to the faculty senate was held to be subject to section 286.011, Florida Statutes, since the committee performed a decision-making function outside of their normal staff activities. By screening applicants and deciding which applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university.
However, if the sole function of the screening committee is simply to gather information for the decision-maker, rather than to accept or reject applicants, the committee's activities are outside the Sunshine Law. See, Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985); Knox v. District School Board of Brevard, 821 So. 2d 311 (Fla. 5th DCA 2002).
4. Quasi-judicial proceedings
The Florida Supreme Court has stated that there is no exception to the Sunshine Law which would allow closed-door hearings or deliberations when a board or commission is acting in a "quasi-judicial" capacity. Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973).
5. Purchasing committees
A committee appointed by a public college’s purchasing director to consider proposals submitted by contractors was held to be subject to the Sunshine Law because its function was to “weed through the various proposals, to determine which were acceptable and to rank them accordingly.” Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099, 1100 (Fla. 3d DCA 1997). And see Leach-Wells v. City of Bradenton, 734 So. 2d 1168, 1171 (Fla. 2d DCA 1999) (selection committee created by city council to evaluate proposals violated the Sunshine Law when the city clerk unilaterally ranked the proposals based on the committee members’ individual written evaluations; the court held that “the short-listing was formal action that was required to be taken at a public meeting”). See now section 286.0113(2)(b)1. and 2., Florida Statutes, providing a limited exception from the Sunshine Law for certain activities conducted pursuant to a competitive solicitation). Cf. section 255.0518, Florida Statutes (sealed bids received pursuant to a competitive solicitation for construction or repairs on a public building or public work must be opened at a public meeting conducted in compliance with section 286.011, Florida Statutes).
6. Real property negotiations
In the absence of a statutory exemption, the negotiations by a public board or commission for the sale or purchase of property must be conducted in the sunshine. See, City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). In addition, if the authority of the public board or commission to acquire or lease property has been delegated to a single member, that member is subject to section 286.011, Florida Statutes, and is prohibited from negotiating the acquisition or lease of the property in secret. Op. Att'y Gen. Fla. 74-294 (1974).
E. DOES THE SUNSHINE LAW APPLY TO:
1. Members-elect or candidates
Section 286.011, Florida Statutes, applies to meetings of public boards or commissions “including meetings with or attended by any person elected to such board or commission, but who has not yet taken office . . . .” Thus, members-elect are subject to the Sunshine Law in the same manner as board members who are currently in office. See also, Hough v. Stembridge, 278 So. 2d 288, 289 (Fla. 3d DCA 1973). The Sunshine Law does not apply to candidates for office, unless the candidate is an incumbent seeking reelection. Op. Att'y Gen. Fla. 92-05 (1992).
2. Members of different boards
The Sunshine Law does not apply to a meeting between individuals who are members of different boards unless one or more of the individuals has been delegated the authority to act on behalf of his board. Rowe v. Pinellas Sports Authority, 461 So. 2d 72 (Fla. 1984). Accord, Inf. Op. to McClash, April 29, 1992 (Sunshine Law generally not applicable to county commissioner meeting with individual member of metropolitan planning organization).
3. A mayor and a member of the city council
If the mayor is a member of the council or has a voice in decision-making through the power to break tie votes, meetings between the mayor and a member of the city council to discuss some matter which will come before the city council are subject to the Sunshine Law. Ops. Att'y Gen. Fla. 83-70 (1983) and 75-210 (1975).
Where, however, the mayor is not a member of the city council and does not possess any power to vote even in the case of a tie vote but only possesses the power to veto legislation, then the mayor may privately meet with an individual member of the city council without violating the Sunshine Law, provided he or she is not acting as a liaison between members and neither the mayor nor the council member has been delegated the authority to act on behalf of the council. Ops. Att'y Gen. Fla. 90-26 (1990) and 85-36 (1985). And see, Inf. Op. to Cassady, April 7, 2005 (meeting between a mayor and a council member to discuss prospective employees).
4. A board member and his or her alternate
Since the alternate is authorized to act only in the absence of a board or commission member, there is no meeting of two individuals who exercise independent decision-making authority at the meeting. There is, in effect, only one decision-making official present. Therefore, a meeting between a board member and his or her alternate is not subject to the Sunshine Law. Op. Att'y Gen. Fla. 88-45 (1988).
5. Ex officio board members
An ex officio board member is subject to the Sunshine Law regardless of whether he or she is serving in a voting or non-voting capacity. Op. Att'y Gen. Fla. 05-18 (2005).
6. Community forums sponsored by private organizations
A "Candidates' Night" sponsored by a private organization at which candidates for public office, including several incumbent city council members, will speak about their political philosophies, trends, and issues facing the city, is not subject to the Sunshine Law unless the council members discuss issues coming before the council among themselves. Op. Att'y Gen. Fla. 92-5 (1992).
Similarly, in Op. Att'y Gen. Fla. 94-62 (1994), the Attorney General’s Office concluded that the Sunshine Law does not apply to a political forum sponsored by a private civic club during which county commissioners express their position on matters that may foreseeably come before the commission, so long as the commissioners avoid discussions among themselves on these issues.
However, caution should be exercised to avoid situations in which private political or community forums may be used to circumvent the statute's requirements. Id. See, Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) (Sunshine Law is to be construed "so as to frustrate all evasive devices"). For example, in State v. Foster, 12 F.L.W. Supp. 1194a (Fla. Broward Co. Ct. September 26, 2005), the court rejected the argument that a private breakfast meeting at which the sheriff spoke and city commissioners individually questioned the sheriff but did not direct comments or questions to each other, did not violate the Sunshine Law. The court denied the commissioners' motion for summary judgment and held that a discussion is subject to the Sunshine Law where there is a common facilitator who is receiving comments from each commissioner in front of other commissioners. Similarly, a public forum that is hosted by a city council member with other council members invited to attend and discuss matters which may foreseeably come before the city council for action is subject to the Sunshine Law. Inf. Op. to Jove, January 12, 2009.
7. Board members attending meetings of another public board
The Attorney General has advised that county commissioners who are also members of a regional planning council may take part in council meetings and express their opinions without violating the Sunshine Law. Op. Att’y Gen. Fla. 07-13 (2007). “However, these officials should not discuss or debate these issues with one another outside the Sunshine as either county commissioners or as regional planning council members.” Id. See also, Op. Att'y Gen. Fla. 00-68 (2000) (Sunshine Law does not prohibit city commissioners from attending other city board meetings and commenting on agenda items that may subsequently come before the commission for final action; however, city commissioners attending such meetings may not discuss those issues among themselves).
8. Social events
Members of a public board or commission are not prohibited under the Sunshine Law from meeting together socially, provided that matters which may come before the board or commission are not discussed at such gatherings. Op. Att'y Gen. Fla. 92-79 (1992). Thus, there is no per se violation of the Sunshine Law for a husband and wife to serve on the same public board or commission so long as they do not discuss board business without complying with the requirements of section 286.011, Florida Statutes. Op. Att'y Gen. Fla. 89-6 (1989).
F. WHAT ARE THE NOTICE AND PROCEDURAL REQUIREMENTS OF THE SUNSHINE LAW?
1. What kind of notice of the meeting must be given?
a. Reasonable notice required
A key element of the Sunshine Law is the requirement that boards subject to the law provide "reasonable notice" of all meetings. See, section 286.011(1), Florida Statutes. Although section 286.011 did not contain an express notice requirement until 1995, many court decisions had stated prior to the statutory amendment that in order for a public meeting to be in essence "public," reasonable notice of the meeting must be given. Hough v. Stembridge, 278 So. 2d 288, 291 (Fla. 3d DCA 1973). Accord, Yarbrough v. Young, 462 So. 2d 515, 517 (Fla. 1st DCA 1985). Notice is required even though meetings of the board are "of general knowledge" and are not conducted in a closed door manner. TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991). And see, Baynard v. City of Chiefland, No. 38-2002-CA-00078 (Fla. 8th Cir. Ct. July 8, 2003) (reasonable notice required even if subject of meeting is "relatively unimportant").
The type of notice that must be given is variable, however, depending on the facts of the situation and the board involved. In some instances, posting of the notice in an area set aside for that purpose may be sufficient; in others, publication in a local newspaper may be necessary. In each case, however, an agency must give notice at such time and in such a manner as will enable interested members of the public to attend the meeting. Ops. Att'y Gen. Fla. 04-44 (2004) and 80-78 (1980). Cf., Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (where county attorney provided citizen with "personal due notice" of a committee meeting and its function, it would be "unjust to reward" the citizen by concluding that a meeting lacked adequate notice because the newspaper advertisement failed to correctly name the committee); and Lozman v. City of Riviera Beach, No. 502008CA027882 (Fla. 15th Cir. Ct. December 8, 2010), per curiam affirmed, 79 So. 3d 36 (Fla. 4th DCA 2012) (no violation of Sunshine Law where notice of special meeting held on Monday September 15 was posted at city hall and faxed to the media on Friday September 12, and members of the public [including the media] attended the meeting).
b. Notice requirements when quorum not present or when meeting adjourned to a later date
Reasonable public notice is required for all meetings subject to the Sunshine Law. Thus, notice is required for meetings between members of a public board even though a quorum is not present. Ops. Att'y Gen. Fla. 71-346 (1971) and 90-56 (1990). If a meeting is to be adjourned and reconvened later to complete the business from the agenda of the adjourned meeting, the second meeting should also be noticed. Op. Att'y Gen. Fla. 90-56 (1990).
c. Effect of notice requirements imposed by other statutes, codes or ordinances
The Sunshine Law only requires that reasonable public notice be given. As stated above, the type of notice required is variable and will depend upon the circumstances. A public agency, however, may be subject to additional notice requirements imposed by other statutes, charter or code. In such cases, the requirements of that statute, charter, or code must be strictly observed. Inf. Op. to Michael Mattimore, February 6, 1996.
For example, a board or commission subject to Chapter 120, Florida Statutes, the Administrative Procedure Act, must comply with the notice requirements of that act. See, e.g., section 120.525, Florida Statutes.
d. Notice requirements when board acting as quasi-judicial body or taking action affecting individual rights
Section 286.0105, Florida Statutes, requires:
Each board, commission, or agency of this state or of any political subdivision thereof shall include in the notice of any meeting or hearing, if notice of the meeting or hearing is required, of such board, commission, or agency, conspicuously on such notice, the advice that, if a person decides to appeal any decision made by the board, agency, or commission with respect to any matter considered at such meeting or hearing, he or she will need a record of the proceedings, and that, for such purpose, he or she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based.
Where a public board or commission acts as a quasi-judicial body or takes official action on matters that affect individual rights of citizens, in contrast with the rights of the public at large, the board or commission is subject to the requirements of section 286.0105, Florida Statutes. Op. Att'y Gen. Fla. 81-06 (1981).
2. Does the Sunshine Law require that an agenda be made available prior to board meetings or restrict the board from taking action on matters not on the agenda?
The Sunshine Law does not mandate that an agency provide notice of each item to be discussed via a published agenda. Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). And see, Yarbrough v. Young, 462 So. 2d 515 (Fla. 1st DCA 1985) (posted agenda unnecessary); and Law and Information Services, Inc. v. City of Riviera Beach, 670 So. 2d 1014, 1016 (Fla. 4th DCA 1996) ("[W]hether to impose a requirement that restricts every relevant commission or board from considering matters not on an agenda is a policy decision to be made by the legislature"). See, Inf. Op. to Mattimore, February 6, 1996 (notice of each item to be discussed at public meeting is not required under section 286.011, Florida Statutes, although other statutes, codes, or rules, such as Chapter 120, Florida Statutes, may impose such a requirement).
Thus, while Florida courts have recognized that notice of public meetings is a mandatory requirement of the Government in the Sunshine Law, the preparation of an agenda that reflects every issue that may come before the governmental entity at a noticed meeting is not. Op. Att'y Gen. Fla. 03-53 (2003). Therefore, the Sunshine Law does not prohibit a city commission from adding additional items to the agenda at a regularly noticed meeting and taking formal action on the added items. Id. And see, Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (Sunshine Law does not prohibit use of consent agenda procedure). However, the Attorney General's Office has advised a commission to "postpone formal action on controversial matters coming before the board at a meeting where the public has not been given notice that such an issue will be discussed." Op. Att’y Gen. Fla. 03-53 (2003).
3. Does the Sunshine Law limit where meetings of a public board or commission may be held?
a. Out-of-town meetings
The courts have recognized that the mere fact that a meeting is held in a public room does not make it public within the meaning of the Sunshine Law. Bigelow v. Howze, 291 So. 2d 645, 647-648 (Fla. 2d DCA 1974). For a meeting to be "public," the public must be given advance notice and provided with a reasonable opportunity to attend. Id. Accordingly, a school board workshop held outside county limits over 100 miles away from the board's headquarters violated the Sunshine Law where the only advantage to the board resulting from the out-of-town gathering (elimination of travel time and expense due to the fact that the board members were attending a conference at the site) did not outweigh the interests of the public in having a reasonable opportunity to attend. Rhea v. School Board of Alachua County, 636 So. 2d 1383 (Fla. 1st DCA 1994). And see, Ops. Att'y Gen. Fla. 08-01 (2008) and 03-03 (2003) (municipality may not hold commission meetings at facilities outside its boundaries). See now section 166.0213, Florida Statutes (governing body of municipality with 500 or fewer residents may hold meetings within 5 miles of the exterior jurisdictional boundary of the municipality at such time and place as may be prescribed by ordinance or resolution).
b. Meetings at facilities that discriminate or unreasonably restrict access prohibited
Section 286.011, Florida Statutes, prohibits boards or commissions subject to its provisions from holding their meetings at any facility which discriminates on the basis of sex, age, race, creed, color, origin, or economic status, or which operates in such a manner as to unreasonably restrict public access to such a facility. Section 286.011(6), Florida Statutes. Thus, a police pension board should not hold its meetings in a facility where the public has limited access and where there may be a "chilling" effect on the public's willingness to attend by requiring the public to provide identification, to leave the such identification while attending the meeting and to request permission before entering the room where the meeting is held. Op. Att'y Gen. Fla. 96-55 (1996). The Attorney General’s Office has also expressed concerns about holding a public meeting in a private home in light of the possible “chilling effect” on the public’s willingness to attend. See, Inf. Op. to Galloway, August 21, 2008.
If a huge public turnout is expected for a particular issue and the largest available public meeting room cannot accommodate all of those who are expected to attend, the use of video technology (e.g. a television screen outside the meeting room) may be appropriate. See Kennedy v. St. Johns River Water Management District, No. 2009-0441-CA (Fla. 7th Cir. Ct. September 27, 2010), per curiam affirmed, 84 So. 3d 331 (Fla. 5th DCA 2011) (even though not all members of the public were able to enter the meeting room, board did not violate the Sunshine Law when it held a meeting at the board’s usual meeting place and in the largest available room; the court noted, however, that the board set up a computer with external speakers so that those who were not able to enter the meeting room could view and hear the proceedings).
c. Inspection or fact-finding trips
The Sunshine Law does not prohibit advisory boards from conducting inspection trips provided that the board members do not discuss matters which may come before the board for official action. See, Bigelow v. Howse, 291 So. 2d 645 (Fla. 2d DCA 1974). See also, Op. Att'y Gen. Fla. 02-24 (2002) (two or more members of an advisory group created by a city code to make recommendations to the city council or planning commission on proposed development may conduct vegetation surveys without subjecting themselves to the notice and minutes requirements of the Sunshine Law, provided that they do not discuss among themselves any recommendations the committee may make to the council or planning commission, or comments on the proposed development that the committee may make to city officials).
However, the exception to the Sunshine Law for “fact-finding” missions does not apply to boards with the “ultimate decision-making authority.” See, Finch v. Seminole County School Board, 995 So. 2d 1068, 1073 (Fla. 5th DCA 2008), in which the court held that a school board violated the Sunshine Law when board members, together with several school officials and two members of the media, took a bus tour of neighborhoods affected by a proposed rezoning even though there was no open discussion regarding the rezoning; no one either discussed or expressed a preference for any plan; and no decisions were made. Since the board was the ultimate decision-making body, the bus tour constituted a violation of the Sunshine Law.
4. Can restrictions be placed on the public's attendance at, or participation in, a public meeting?
a. Exclusion of certain members of the public
The term "open to the public" as used in the Sunshine Law means open to all who choose to attend. Op. Att'y Gen. Fla. 99-53 (1999). A board's request that certain members of the public "voluntarily" leave the room during portions of a public meeting is not authorized. See Port Everglades Authority v. International Longshoremen's Association, Local 1922-1, 652 So. 2d 1169 (Fla. 4th DCA 1995).
Staff of a public agency clearly are members of the public as well as employees of the agency; they cannot, therefore, be excluded from public meetings. Op. Att'y Gen. Fla. 79-01 (1979). Section 286.011, Florida Statutes, however, does not preclude the reasonable application of ordinary personnel policies, for example, the requirement that annual leave be used to attend meetings, provided that such policies do not frustrate or subvert the purpose of the Sunshine Law. Id.
b. Cameras and tape recorders
Reasonable rules and policies which ensure the orderly conduct of a public meeting and which require orderly behavior on the part of those persons attending a public meeting may be adopted by the board or commission. However, a board may not ban videotaping of an otherwise public meeting. Pinellas County School Board v. Suncam, Inc., 829 So. 2d 989 (Fla. 2d DCA 2002). Similarly, a rule or policy that prohibits nondisruptive or silent tape recording devices at public meetings is invalid. Op. Att'y Gen. Fla. 77-122 (1977).
A city may not require persons wishing to attend public meetings to provide identification as a condition of attendance. Op. Att'y Gen. Fla. 05-13 (2005). This is not to say that an agency may not impose certain security measures on members of the public entering a public building, such as requiring the public to go through metal detectors. Id.
d. Public comment
Prior to the adoption of section 286.0114, Florida Statutes (2013), Florida courts had determined that section 286.011, Florida Statutes, establishes a right to attend public board meetings, but does not provide a right to be heard. See Herrin v. City of Deltona, 121 So. 3d 1094, 1097 (Fla. 5th DCA 2013) (phrase “open to the public” as used in the Sunshine Law 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”). See also Keesler v. Community Maritime Park Associates, 32 So. 3d 659 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1289 (Fla. 2010); and Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010).
However, as noted in the Herrin case, section 286.0114, Florida Statutes (2013), effective October 1, 2013, now mandates, subject to specified exceptions, that the public be given "a reasonable opportunity to be heard on a proposition before a board or commission.” The opportunity to be heard does not have to occur at the same meeting at which the board or commission takes official action if the “opportunity occurs at a meeting that is during the decisionmaking process and is within reasonable proximity in time before the meeting at which the board or commission takes the official action.” Section 286.0114(2), Florida Statutes.
Boards are not prohibited from “maintaining orderly conduct or proper decorum in a public meeting.” In addition, boards are authorized to adopt specified rules or policies governing the opportunity to be heard i.e., time limits for speakers; procedures for designating a representative of a group or faction to address the board rather than all members of the group or faction; forms to indicate a speaker’s position on a matter; and designation of a specified period of time for public comment. Section 286.0114(4), Florida Statutes.
While section 286.0114(6), Florida Statutes, authorizes a circuit court to issue injunctions for the purpose of enforcing the statute, section 286.0114(8), Florida Statutes, states that an action taken by a board or commission which is found to be in violation of section 286.0114, Florida Statutes, is not void as a result of that violation.
5. Must written minutes be kept of all sunshine meetings?
Section 286.011(2), Florida Statutes, specifically requires that minutes of a meeting of a public board or commission be promptly recorded and open to public inspection. Thus, a city violated the Sunshine Law when it failed to provide public access to minutes until after they had been approved by the city commission. Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010).
The minutes required to be kept for "workshop" meetings are no different than those required for any other meeting of a public board or commission. Op. Att'y Gen. Fla. 08-65 (2008). And see, Lozman v. City of Riviera Beach, No. 502007CA007552XXXXMBAN (Fla. 15th Cir. Ct. June 9, 2009), per curiam affirmed, 46 So. 3d 573 (Fla. 4th DCA 2010) (minutes required to be kept for city council agenda review meetings).
While tape recorders may be used to record the proceedings before a public body, written minutes of the meeting must also be taken and promptly recorded. See, Op. Att’y Gen. Fla. 75-45 (1975). Similarly, while a board may archive the full text of all workshop discussions conducted on the Internet, written minutes of these workshops must also be prepared and promptly recorded. Op. Att’y Gen. Fla. 08-65 (2008).
Draft minutes of a board meeting may be circulated to individual board members for corrections and studying prior to approval by the board, so long as any changes, corrections, or deletions are discussed and adopted during the public meeting when the board adopts the minutes. Op. Att'y Gen. Fla. 02-51 (2002).
6. In addition to minutes, does the Sunshine Law also require that meetings be transcribed or tape recorded?
Minutes of Sunshine Law meetings need not be verbatim transcripts of the meetings; rather the use of the term "minutes" in section 286.011, Florida Statutes, contemplates a brief summary or series of brief notes or memoranda reflecting the events of the meeting. Op. Att'y Gen. Fla. 82-47 (1982). However, an agency is not prohibited from using a written transcript of the meeting as the minutes, if it chooses to do so. Inf. Op. to Fulwider, June 14, 1993.
There is no requirement that tape recordings be made by the public board or commission at each public meeting. However, once made, such recordings are public records and their retention is governed by the Public Records Act and the schedules established by the Division of Library and Information Services of the Department of State. Op. Att'y Gen. Fla. 86-21 (1986).
7. May members of a public board vote by written or secret ballot?
Board members are not prohibited from using written ballots to cast a vote as long as the votes are made openly at a public meeting, the name of the person who voted and his or her selection are written on the ballot, and the ballots are maintained and made available for public inspection in accordance with the Public Records Act. Op. Att'y Gen. Fla. 73-344 (1973).
By contrast, a secret ballot violates the Sunshine Law. See, Op. Att'y Gen. Fla. 73-264 (1973) (members of a personnel board may not vote by secret ballot during a hearing concerning a public employee). Accord, Ops. Att'y Gen. Fla. 72-326 (1972) and 71-32 (1971) (board may not use secret ballots to elect the chairman and other officers of the board).
G. WHAT ARE THE CONSEQUENCES IF A PUBLIC BOARD OR COMMISSION FAILS TO COMPLY WITH THE SUNSHINE LAW?
1. Criminal penalties
Any member of a board or commission or of any state agency or authority of a county, municipal corporation, or political subdivision who knowingly violates the Sunshine Law is guilty of a misdemeanor of the second degree. Section 286.011(3)(b), Florida Statutes. Conduct which occurs outside the state which constitutes a knowing violation of the Sunshine Law is a second degree misdemeanor. Section 286.011(3)(c), Florida Statutes. Such violations are prosecuted in the county in which the board or commission normally conducts its official business. Section 910.16, Florida Statutes. The criminal penalties apply to members of advisory councils subject to the Sunshine Law as well as to members of elected or appointed boards. Op. Att'y Gen. Fla. 01-84 (2001) (school advisory council members).
2. Removal from office
When a method for removal from office is not otherwise provided by the Constitution or by law, the Governor may suspend an elected or appointed public officer who is indicted or informed against for any misdemeanor arising directly out of his official duties. Section 112.52, Florida Statutes. If convicted, the officer may be removed from office by executive order of the Governor. A person who pleads guilty or nolo contendere or who is found guilty is, for purposes of section 112.52, Florida Statutes, deemed to have been convicted, notwithstanding the suspension of sentence or the withholding of adjudication. Cf., section 112.51, Florida Statutes, and article IV, section 7, Florida Constitution.
3. Noncriminal infractions
Section 286.011(3)(a), Florida Statutes, imposes noncriminal penalties for violations of the Sunshine Law by providing that any public official violating the provisions of the Sunshine Law is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. The state attorney may pursue actions on behalf of the state against public officials for violations of section 286.011, Florida Statutes, which result in a finding of guilt for a noncriminal infraction. State v. Foster, 12 F.L.W. Supp. 1194a (Fla. Broward Co. Ct. September 26, 2005). Accord, Op. Att'y Gen. Fla. 91-38 (1991).
4. Attorney's fees
Reasonable attorney's fees will be assessed against a board or commission found to have violated section 286.011, Florida Statutes. Such fees may be assessed against the individual members of the board except in those cases where the board sought, and took, the advice of its attorney, such fees may not be assessed against the individual members of the board. Section 286.011(4), Florida Statutes.
Section 286.011(4) also authorizes an award of appellate fees if a person successfully appeals a trial court order denying access. See, School Board of Alachua County v. Rhea, 661 So. 2d 331 (Fla. 1st DCA 1995), review denied, 670 So. 2d 939 (Fla. 1996).
5. Civil actions for injunctive or declaratory relief
Section 286.011(2), Florida Statutes, states that the circuit courts have jurisdiction to issue injunctions upon application by any citizen of this state. The burden of prevailing in such actions has been significantly eased by the judiciary in sunshine cases. While normally irreparable injury must be proved by the plaintiff before an injunction may be issued, in Sunshine Law cases the mere showing that the law has been violated constitutes "irreparable public injury." Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Times Publishing Company v. Williams, 222 So. 2d 470 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). And see, Lozman v. City of Riviera Beach, No. 502007CA007552XXXXMBAN (Fla. 15th Cir. Ct. June 9, 2009) per curiam affirmed, 46 So. 3d 573 (Fla. 4th DCA 2010) (injunctive relief to enjoin city from future violations of the Sunshine Law due to a failure to record minutes of certain meetings is “appropriate” in light of City’s past conduct and consistent refusal to record minutes even after being advised to do so by the City Attorney and also because the City “has continuously taken the legal position that local governments are not required by the Sunshine Law to record minutes.”).
Although a court cannot issue a blanket order enjoining any violation of the Sunshine Law on a showing that it was violated in particular respects, a court may enjoin a future violation that bears some resemblance to the past violation. Port Everglades Authority v. International Longshoremen's Association, Local 1922-1, 652 So. 2d 1169, 1173 (Fla. 4th DCA 1995). The future conduct must be "specified, with such reasonable definiteness and certainty that the defendant could readily know what it must refrain from doing without speculation and conjecture." Id., quoting from Board of Public Instruction v. Doran, 224 So. 2d 693, 699 (Fla. 1969).
6. Validity of action taken in violation of the Sunshine Law and subsequent corrective action
Section 286.011, Florida Statutes, provides that no resolution, rule, regulation or formal action shall be considered binding except as taken or made at an open meeting. “Therefore, where officials have violated section 286.011, the official action is void ab initio.” Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010). And see, Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979) (resolutions made during meetings held in violation of section 286.011, Florida Statutes, had to be re-examined and re-discussed in open public meetings); and TSI Southeast, Inc. v. Royals, 588 So. 2d 309 (Fla. 1st DCA 1991) (contract for sale and purchase of real property voided because board failed to properly notice the meeting under section 286.011, Florida Statutes).
Where, however, a public board or commission does not merely perfunctorily ratify or ceremoniously accept at a later open meeting those decisions which were made at an earlier secret meeting but rather takes "independent final action in the sunshine," the decision of the board or commission will not be disturbed. Tolar v. School Board of Liberty County, 398 So. 2d 427, 429 (Fla. 1981). See, Finch v. Seminole County School Board, 995 So. 2d 1068, 1073 (Fla. 5th DCA 2008) (school board remedied inadvertent violation of the Sunshine Law when it subsequently held full, open and independent public hearings prior to adopting a rezoning plan) and Sarasota Citizens for Responsible Government v. City of Sarasota, supra (any possible violations that occurred when county commissioners circulated e-mails among each other were cured by subsequent public meetings). Cf., Zorc v. City of Vero Beach, 722 So. 2d 891, 903 (Fla. 4th DCA 1998) (meeting did not cure the Sunshine defect because it was not a "full, open public hearing convened for the purpose of enabling the public to express its views and participate in the decision-making process"); Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), review denied, 47 So. 3d 1288 (Fla. 2010) (city could have cured Sunshine Law violation by reconsidering the matter, but did not; accordingly, action taken in violation of the law was void) and Bert Fish Foundation v. Southeast Volusia Hospital District, No. 2010-20801-CINS (Fla. 7th Cir. Ct. February 24, 2011) (series of public meetings did not “cure” Sunshine Law violations that resulted from 21 closed door meetings over 16 months; “[t]here was so much darkness for so long, that a giant infusion of sunshine might have been too little or too late”). Cf. Op. Att’y Gen. Fla. 12-31 (2012) (audit committee’s statutorily prescribed function to create a request for proposals may not be delegated to a subordinate entity; the committee may not, therefore, ratify a defective request for proposals which was created and issued by the county’s financial officer contrary to legal requirements).
“The only remedies available pursuant to the Sunshine Act are a declaration of the wrongful action as void and reasonable attorney’s fees.” Dascott v. Palm Beach County, 988 So. 2d 47, 49 (Fla. 4th DCA 2008), review denied, 6 So. 3d 51 (Fla. 2009). Accordingly, an employee who prevailed in a lawsuit alleging that her termination violated the Sunshine Law “may not recover the equitable relief of back pay because money damages are not a remedy provided for by the Act.” Id.
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.