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Chief Financial Officer Jeff Atwater The Department of Financial Services Florida Sunshine Law & Public Records Requirements Automobile Insurance Fraud.

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Presentation on theme: "Chief Financial Officer Jeff Atwater The Department of Financial Services Florida Sunshine Law & Public Records Requirements Automobile Insurance Fraud."— Presentation transcript:

1 Chief Financial Officer Jeff Atwater The Department of Financial Services Florida Sunshine Law & Public Records Requirements Automobile Insurance Fraud Task Force Meeting August 7, 2012

2 Parts of and Bases for Open Government TWO PARTS: TWO BASES: Access to Public Meetings Reasonable Notice of a Public Meeting Required Right to Attend a Public Meeting Access to Public Records Right to inspect a public record Right to copy a public record Statutory Basis: Chapter 119, F.S. Section , F.S. Constitutional Basis: Article I, s. 24(a), State Constitution Article I, s. 24(b), State Constitution.

3 Public Meetings Three Basic Requirements for Public Meetings Reasonable notice of a meeting is required. Meetings must be open to the public. Minutes of the public meeting must be taken.

4 Public Meetings What is a Public Meeting? Meetings of state or local collegial bodies “... at which official acts are to be taken…” Florida courts expanded to include any gathering, whether formal or informal, of two or more members of the same board or commission to discuss some issue on which foreseeable action will be taken by the board or commission. Hough v. Stembridge, 278 So.2d 288 (Fla. 3d DCA 1973) Article I, s. 24(b), State Constitution includes meetings “...at which public business of such body is to be transacted or discussed....”

5 PUBLIC MEETINGS Telephones: The use of a telephone does not remove covered discussions from the requirements of the law. State v. Childers, No MMC; MMB (Escambia Co. Ct. June 5, 2003), per curiam affirmed, 886 So.2d 229 (Fla. 1 st DCA 2004); Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So.3d, 755, 764 (Fla. 2010); City of Miami Beach v. Berns, 245 So.2d 38 (Fla. 1971) Written Communications: Letters, s, texting, chat, social media, are covered. AGO-89-39; AGO Conduct Outside of State: Covered. S (3)(c), F.S.

6 PUBLIC MEETINGS Use of staff or a nonboard member to act as liaison between, or to conduct de facto meeting of, board members are subject to meeting requirements. Blackford v. School Board of Orange County, 375 So.2d 578 (Fla. 5 th DCA 1979) Decision-making authority delegated to a single individual is subject to meeting requirements. IDS Properties, Inc. v. Town of Palm Beach, 279 So.2d 353, 359 (Fla. 4 th DCA 1973); News- Press Publishing Company, Inc. v. Carlson, 410 So.2d 546, (Fla. 2d DCA 1982); AGO 10-15; AGO Information gathering or “fact-finding” delegated to individual or group generally not subject to meeting requirements. AGO 95-06

7 PUBLIC MEETINGS Exemptions Meetings are presumed open unless a statutory exemption applies. ONLY the Legislature may create exemptions. Security Exemption, s , F.S. Litigation Exemption, s (8), F.S. If denied access to a meeting, the person denied may demand the statutory citation authorizing closure.

8 PUBLIC MEETINGS Cure Meetings No resolution, rule, regulation, or formal action shall be considered binding except as taken at an open meeting. Section , F.S. Action taken in violation of the Sunshine Law is void ab initio. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) Action can be cured when the offending agency takes “independent final action in the sunshine.” Tolar v. School Board of Liberty County, 398 So. 2d 427, 429 (Fla. 1981)

9 PUBLIC MEETINGS Sanctions An unintentional violation: non-criminal infraction punishable by a fine up to $500. Section (3)(a), F.S. A knowing violation: 2d degree misdemeanor punishable by a fine of not more than $500 and/or a jail term of not more than 60 days. Section (3)(b), F.S. Suspension or removal from office. Section (1), F.S. Attorney’s fees and court costs. Sections (4) and (5), F.S.

10 PUBLIC RECORDS Statutory right to inspect or copy a public record at reasonable time, under reasonable conditions, under supervision by custodian of records. Section (1), F.S. Constitutional right of access to records made or received in connection with official business of a public body, officer, employee or person acting on their behalf. Article I, s. 24(a), State Constitution

11 PUBLIC RECORDS What is a public record? “... all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” Section (11), F.S. Any material prepared in connection with official agency business which is intended to “perpetuate, communicate, or formalize” knowledge of some type. Shevin v. Byron, Harless, Schaffer, Reid and Assoc., 379 So. 2d 633, 640 (Fla. 1980)

12 PUBLIC RECORDS Section (5): Defines “custodian of public records” as the person who is responsible for “maintaining the office having public records... “ Section (1)(b): Authorizes the custodian to designate another to permit inspection and copying; requires disclosure of designee’s identity. Section (1)(a): “Every person” who has custody of a public record shall permit the record to be inspected and copied by any person... at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.”

13 PUBLIC RECORDS Requests must be: Acknowledged promptly and in good faith. Section (1)(c), F.S. Responded to in a reasonable time, i.e., the time it takes to locate a record, review it for exempt information, and provide a copy to the requestor. Section (1)(a), F.S., and Tribune Company v. Cannella, 458 So.2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct (1985)

14 PUBLIC RECORDS An agency may not impose a rule or condition on the right of access that operates to restrict or circumvent that right. AGO Absent specific statutory authority, an agency may not require requester to: Make request in writing; Dade Aviation Consultants v. Knight Ridder, Inc., 800 So.2d 302 (Fla. 3d DCA 2002); Identity himself or herself; Bevan v. Wanicka, 505 So. 2d 1116 (Fla. 2d DCA 1987) ; or State the reason for or interest in the request. AGOs and 91-76; Curry v State, 811 So.2d 736, 742 (Fla. 4 th DCA 2002).

15 PUBLIC RECORDS An agency must provide a copy of a public record in the format requested if the record is maintained in that form. Section (2)(f), F.S. If the record is not in the format requested, an agency has the option of converting the record and charging a special service charge. Section (4), F.S. Everyone has a right to public records in “some meaningful form.” Seigle v. Barry, 422 So. 2d 63, 66 (Fla. 4 th DCA 1982), review denied, 421 So. 2d 988 (Fla. 1983)

16 PUBLIC RECORDS Exemptions ONLY the Legislature can create an exemption to the right of access. Records are presumed open unless there is a specific statutory exemption. If a record contains both exempt and non-exempt information, the keeper of the record must redact (delete) that which is exempt and provide access to the remainder. Section (1)(d), F.S. If agency determines record is exempt, agency must state basis and must put in writing if requester asks. Section (1)(e)&(f), F.S.

17 PUBLIC RECORDS Fees An agency must “furnish a copy... of the (requested) record upon payment of the fee prescribed by law.” Section (4), F.S. If there is no statutorily-prescribed fee, then fees authorized chapter 119. F.S., apply. 15 cents a page for paper copies + an additional 5 cents for a two-sided copy. Section (4)(a)1. and 2., F.S. The actual cost of duplication for large size or non-paper copies. Section (4)(a)3., F.S. The cost of materials and supplies used to duplicate the record; does NOT include labor or overhead. Section (1), F.S.

18 PUBLIC RECORDS Special Service Charge Authorized: A reasonable fee for the extensive use of agency resources — personnel, information technology, or both. Fee must be Reasonable; and Based on actual costs incurred. An agency may not ordinarily charge for the cost to review records for exempt information but extensive use fee may be imposed IF extensive use of agency resources required. AG ; Florida Institutional Legal Services v. Florida Department of Corrections, 579 So. 2d 267, 269 (Fla. 1 st DCA), review denied, 592 So. 2d 680 (Fla. 1991)

19 PUBLIC RECORDS A knowing violation of section (1), F.S., is a 1 st degree misdemeanor punishable by a fine of up to $1,000 and a jail term not exceeding one year. Section (1)(b), F.S. A violation of any provision of chapter Unintentional: non-criminal and punishable by a fine not exceeding $500. Section (1)(a), F.S. Intentional: 1 st degree misdemeanor, punishable by a fine of up to $1,000 and a jail term not exceeding one year. Section (2), F.S. Suspension or removal from office. Section (1), F.S. Attorney’s fees and court costs. Section , F.S.

20 Public Records Records Retention Section , F.S. Division of Library and Information Services of Department of State required to adopt rules to: Establish retention schedules Disposal process for public records. (850)

21 Open Government Help Office of the Attorney General of Florida Link: C0C8A B006A54E2 C0C8A B006A54E2 Sunshine Manual Link:


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