Tomassetti & Prince Florida Court Clerks and Comptrollers

The Florida Clerks & Comptrollers New Clerk Orientation Florida's Public Records and Open Meetings Laws Presented by Teresa L. Prince, Partner Tomassetti & Prince Contact Information: 406 Ash Street, Fernandina Beach, FL Telephone: ; Facsimile:

Source of Right of Access to Records and Meetings Access to Records Article 1, Section 24(a), Florida Constitution, provides every person the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf. Specifically included are (i) the legislative, executive and judicial branches of government, (ii) counties, municipalities and districts and (iii) each constitutional officer, board and commission or entity created pursuant to law or the Constitution.

Source of Right of Access to Records and Meetings Access to Government Meetings Article 1, Section 24(b), Florida Constitution, provides that all meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business is to be transacted or discussed, shall be open and noticed to the public, except with respect to meetings exempted pursuant to this section or specifically closed by the Constitution.

Source of Right of Access to Records and Meetings Access to Government Meetings Florida’s Sunshine Law: Section , Florida Statutes requires that: Meetings of public boards are open to public at all times Reasonable notice of meetings must be given to the public Minutes of meetings must be taken and promptly recorded

Test for Boards Subject to Sunshine Access to Government Meetings Which entities are included as a pubic board or agency? The test as to whether the meetings of particular boards, councils, commissions, or similar entities are subject to s has been judicially determined to be whether the board or council or other entity is subject to the dominion and control of the Legislature. City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971); Times Publishing Company v. Williams, 222 So.2d 470 (2 D.C.A.Fla., 1969).

Meetings Defined What is a meeting? Generally, a meeting requires a meeting of two or more members from the same board. Meeting with only 1 board member - there would need to exist delegation of decision-making to the single member of that group who will attend, before the Sunshine Law could apply. AGO Where foreseeable action will be taken by board or commission.

Meetings Defined Communications between Board Members May send information to each other IF there is no interaction between members related to the information Non violation: Member prepares and circulates information memorandum or position paper. (AGO – this practice is problematic and should be discouraged) Violation: Information elicits response/comment Violation: Memo circulated to group and once members approve or disapprove it becomes official action of group.

Meetings Defined Communications between Board Members Discussions via Telephone, Computers and other Electronic Media Members may not discuss issues via telephone Members may not post on Facebook page or other web page

Meetings Defined Communications between Board Members Discussions via Telephone, Computers and other Electronic Media Only those records made confidential or exempt from disclosure by law are exempt from the disclosure provisions of s (1), F.S. Therefore, the information in the computer, if made or received pursuant to the transaction of official business and intended to perpetuate, communicate or formalize knowledge of some type, is a public record. Accordingly, such information, in the absence of a specific statute exempting the information or providing for its confidentiality, would be subject to disclosure. In addition, to the extent that such computers are used to communicate between board members on matters coming before the board for action, such discussions would be subject to the requirements of the Government in the Sunshine Law.

Who is Covered? Advisory Committees appointed by Board or single public official. – The actual function of the committee must be scrutinized Staff, in limited instances. – When a member of the staff ceases to function in his capacity as staff and performs a decision-making function, he/she loses his/her identity as staff while working on the committee and is, accordingly, included within the operation of the Sunshine Law.

Who is Covered? Private Agencies Created Pursuant to Law or by Pubic Agencies Private Agencies Providing Services to Public Agencies

Notice What kind of Notice must be given? – Must be reasonable – Required even if quorum is not going to be present

Notice What is Reasonable? – Notice at such time and in such manner as to enable the general public to attend the meeting. – Discuss AGO suggested notice guidelines When Where How

Meeting Location Public Access Key Element Meeting space sufficient size for public to attend Discussions should be audible All persons who chose to attend allowed

Public Participation Two cases pending regarding public’s right to attend public meetings, but analyzing whether the Sunshine law gives the public the right to speak at the meetings.

When Does the Sunshine Law not Apply? Social Gatherings – as long as public business that could come before the board is not discussed Specific Statutory Exemption

When Does the Sunshine Law not Apply? Specific Statutory Exemption 2011 Specific Amendment for Bid Process

What happens if you Violate the Sunshine Law? Any public officer who violates any provision of this section is guilty of a noncriminal infraction, punishable by fine not exceeding $500. A knowing violation by public officer is 2d degree misdemeanor punishable by fine not exceeding $500 and/or a jail term of not more than 60 days. Removal from office (F.S (1)). Action of the Board outside Sunshine non binding.

Can Violations be Cured? Independent, final action completely in the Sunshine. Matters must be re-examined and re- discussed in open, public meetings.

Florida’s Public Records Law Chapter 119, Florida Statutes provides that providing records for public access is the duty of each public agency.

Florida’s Public Records Law “Agency” means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

Florida’s Public Records Law Provisions for Electronic Records: Automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law.

Florida’s Public Records Law Notices Section , Florida Statutes, requires the following if public entity s or website. “Under Florida Law, addresses are public records. If you do not want your address released in response to a public records request, do not sent electronic mail to this entity. Instead, contact this office in phone or in writing.”

Florida’s Public Records Law Policy and Procedures Adopting a Policy for processing records request offers guidelines to inform clerk staff about implementation of the Public Records Law and provides uniformity for fees charged related to records requests.

Florida’s Public Records Law Policy and Procedures Clerk employees should not provide analysis of records, compile charts, or prepare documentary evidence in response to records request.

Florida’s Public Records Law Policy and Procedures Clerk not required to produce or compile records in a manner different from the manner in which a record is routinely maintained.

Florida’s Public Records Law Public Record Defined per F.S (12) “all documents, papers, letters, maps, books, tapes, photographs, films, sound recording, data processing software, or other material, regardless of physical form, characteristic, or means of transmission, made or received in pursuant to law or ordinance or in connection with the official business of any agency.

Fees for Public Records An agency must furnish a copy of the records upon payment of the fee prescribed by law..15 cents per page, plus additional.05 cents per two sided copy. Actual costs of duplication if larger. Any statutory prescribed fees.

Fees for Public Records For other copies, the charge is limited to actual cost of duplication. “Actual Cost of Duplication” defined to mean: Costs of material and supplies used to duplicate, but not overhead costs associated with duplication. Extensive Use Fee is allowed per F.S (4)(d)

Fees for Public Records Requiring a Deposit Do you have a right to get paid?

Court and Official Record Fees Court Record: Certified Copy$2.00 Copies, ltr size$1.00/pg Copies, any size larger$5.00/pg

Response Time A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed.

Requirements for Response Please state you name and address for the record…. Can you require anything of individual before providing a response? Do they even have to know what they want?

Exemption If claiming exemption, person claiming exemption must cite source of exemption. Upon request, must provide source for exemption in writing.

Options for Denial of Access AGO informal mediation program: Phone ; website: http//myfloridalegal.com Person denied right of access may bring civil action

Sanctions for Denial Non criminal and punishable by a fine not exceeding $ Intention violation is 1 st degree misdemeanor, punishable by fine up to $1,000 and a jail term not exceeding one year Suspension from Office

Resource Materials Government in the Sunshine Manual The First Amendment Foundation 336 East College Avenue, Suite 101 Tallahassee, Florida Phone: ; Fax E-manuals Available! Florida Attorney General’s Website A B006A54E2