Florida began its tradition of openness in 1909 when the Legislature passed the first Public Records Law, Chapter 119 of the Florida Statutes. The Public Records Law provides that citizens shall have virtually unlimited access to records made or received by any public agency in the course of its official business, unless specifically exempted by the Legislature. Chapter 119 mandates that custodians of these records shall permit them to be inspected and examined by any person desiring to do so, at any reasonable time. Over the years, the definition of a public record has expanded. In addition to traditional written documents, tapes, photographs, films, sound recordings and computer records are also included.
• A message from the Florida Attorney General on the Florida’s Government in the Sunshine Law
• The Florida Press Association and Government in the Sunshine
The Sunshine Law is outlined in Chapter 286 of the Florida Statutes. It established a basic right of access to most meetings of boards, commissions and other governing bodies of state and local governmental agencies. Prior to 1990, there was a question as to whether the Sunshine Law covered the state Legislature, but in that year, the voters passed a constitutional amendment providing for open meetings in the Legislative branch of the state government. In 1992, Florida voters overwhelmingly approved the Public Records and Meetings constitutional amendment. This amendment constitutionalized the right of access to government information and specifically includes the legislative, executive and judicial branches of government.
•Chapter 286 of the Florida Statutes
In 1992, Florida voters overwhelmingly approved a constitutional amendment that allowed citizens improved access to government records. The constitutional amendment, Article 1, Section 24, specifically includes agencies of the legislative, executive and judicial branches of government and makes it more difficult for legislators to add exemptions to the law. Under the amendment, the legislative branch is authorized to adopt rules governing legislative records. The amendment requires the judicial branch to draft new rules providing access to administrative records. In addition, the constitutional amendment provides that exemptions may be enacted only if the Legislature can prove that a public necessity exists justifying the exemption. New exemptions must be no broader than necessary to accomplish the stated purpose of the law. In November 2002, 75 percent of the voters supported Amendment IV, which amended Florida’s constitutional Government in the Sunshine Amendment. Now, two-thirds of state senators and representatives, rather than just a majority, must vote to approve new exemptions to Florida’s Sunshine Laws.
The Sunshine Law, Chapter 286 of the Florida Statutes, requires that government decision-making take place in public. The Sunshine Law prohibits elected officials from meeting behind closed doors to decide matters that affect the citizens they represent in the absence of a specific exemption approved by the Legislature. The basic requirements of the law are that meetings of any public decision-making body must be open to the public, reasonable notice of such meetings must be given and minutes of the meeting must be taken.
•Florida Online Sunshine, the official Internet site of the Florida Legislature
The Sunshine Law applies not only to the obvious meetings of elected bodies, but also to appointed and advisory boards. Florida courts have stated that the entire decision-making process is subject to the Sunshine Law, and not just at official meetings to vote on final decisions or actions. The statute extends to discussions and deliberations as well as to formal action taken by a public body. Therefore, the law applies to any gathering where two or more members of a public board or commission discuss some matter on which foreseeable action will be taken by that board or commission. Public agencies may not circumvent the Sunshine Law by using an alter ego to conduct public business in secret. Anyone who carries messages about public business from one public official to another in an attempt to resolve an issue outside of the Sunshine violates the law. In addition, boards subject to the Sunshine Law must provide reasonable notice of all meetings.
The Sunshine Law applies to most state, county and municipal governmental bodies. Florida courts have ruled this includes all public boards, commissions and regional agencies under the “dominion and control” of the state Legislature, whether they are elected or appointed. The Sunshine Law applies to members-elect of boards or commissions as well. The law applies to private bodies as well, if governmental decision-making duties have been delegated to it by a body otherwise covered by the Sunshine Law. Government may not avoid the law by simply delegating its decision-making authority to another entity. When decision-making authority is delegated to staff members, staff members also become subject to the Sunshine Law when discussing these matters.
The Sunshine Law does not ordinarily apply to administrative proceedings or meetings of government staff when the function of staff members is to inform and advise the decision-making body. The law allows public bodies to meet with their attorneys in closed meetings to discuss pending litigation. The law provides specific conditions for these meetings. Courts have ruled that it is the types of action performed by the board or committee, and not its makeup that determines whether an advisory committee is subject to the law. For a list of state and local governmental bodies covered by the Sunshine law, see A Citizen’s Guide, page 6.
CASE IN POINT: In 2002, a Florida court found that a city did not violate the Florida Sunshine Law when it met with its attorneys behind closed doors to discuss settlement negotiations and strategy in connection with a lawsuit. Bruckner v. City of Dania Beach, CASE NO. 4D01-1749, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT, 823 So. 2d 167; 2002 Fla. App.
7. What types of advisory committees have the Florida courts found to be subject to the Sunshine Law?
The following are some of the advisory committees that the Florida courts have found subject to the Sunshine Law. See A Citizen’s Guide, page 6-7, for more information.
• Community advisory committees
• Architectural review committees of a homeowner’s association
• A public hospital advisory board
• A criminal justice commission created by county ordinance to make recommendations about criminal justice issues
• A municipal planning commission
• A committee appointed by a mayor to recommend legislation
• An ad hoc committee appointed to investigate charges against a local police chief
Advisory committees that are established solely for the purpose of fact-finding and reporting to public bodies are exempt from the Sunshine Law. The Sunshine Law does not apply to federal agencies within the state. In 1976, however, Congress passed the federal Sunshine Act, which requires about 60 federal agencies to meet in public. The Act generally applies to agencies subject to the Freedom of Information Act.
CASE IN POINT: In 2002 a Florida court found that employment interviews conducted by an advisory team of school principal candidates were not governed by the Florida Sunshine Law because the interview team simply had a fact-finding or advisory role.Knox v. Dist. Sch. Bd., CASE NO. 5D01-2384, COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 821 So. 2d 311; 2002 Fla. App.
State lawmakers have no power to require the governor or Cabinet members to meet in public when they are exercising their constitutional administrative duties or acting as a policy-making board related by the Legislature, such as the State Board of Education. For instance, the governor’s deliberations with Cabinet members about whether to grant a pardon or clemency are not covered by the Sunshine Law because they involve constitutional duties, not statutory duties.
The Sunshine Law does not specifically cover the Legislature. However, the Sunshine Amendment approved by voters in 1992 specifically includes the Legislature and states that “all meetings of the Legislature shall be open and noticed.”
The Sunshine Law covers “meetings” of public boards and commissions. That includes deliberations, discussions and workshops, as well as formal actions. Florida courts have ruled that whenever two or more members of a governmental body discuss matters on which foreseeable action could be taken by the body, that “meeting” is subject to the Sunshine Law. This would apply even if two members of a commission were having a casual dinner, and public business came up in the course of the conversation. Examples of activities covered by the law are listed in A Citizen’s Guide, page 9.
The Legislature has enacted more than 200 exemptions to the Sunshine Law, passing new exemptions almost every yet. Exemptions are listed in the Government-in-the-Sunshine Amendment, Section 24. Also see A Citizen’s Guide, page 10.
The Sunshine Law does not usually cover private organizations, but there are exceptions. If a governmental body delegates its functions to a private organization, its actions regarding the delegated duties are subject the Sunshine Law. Private organizations that play an integral part in a public body’s decision-making process by acting in an advisory capacity must comply with the Sunshine Law.
14. Is a private organization that receives public funds subject to the requirements of the Sunshine Law?
Public funding alone does not bring the private body under the requirements of the Sunshine Law. For example, a private hospital that receives Medicare or Medicaid funds would not be subject to the Sunshine Law for that reason alone, but one governed by a legislatively created body would be. A private corporation that is paid to perform services for a public agency but is not delegated any governmental or legislative duties, would similarly not be subject to the Sunshine Law.
CASE IN POINT: In 1997, the Florida Supreme Court found that a Volusia County hospital was subject to the Public Records Law even though it was under a lease agreement with a local agency. News-Journal Corp. v. Memorial Hospital-West Volusia, CASE NO. 96-2608, COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT, 695 So. 2d 418; 1997 Fla. App.
The Sunshine Law provides for recovery of attorney’s fees from governmental bodies if a court finds a violation. The law also permits a governmental body to recover attorney’s fees from an individual if a court rules a suit was frivolous or filed in bad faith.
• Attorney’s Fees Database, an index of cases in which attorney’s fees were awarded in FOI disputes in the state of Florida since 1981.