HomeMy WebLinkAbout06-08-2009 Florida Attorney General Opinion and City of Ft. Lauderdale Attorney Memorandum, Regarding Public Official's Use of FacebookBROWN, GARGANESE, WEISS & UAGRESTA, P.A.
Attorneys at Law
Debra S. Babb-Nutcher" Offices in Orlando,
Joseph E. Blitch Ft. Lauderdale & Tampa
Usher L. Brown'
Suzanne D'Agresta"
Anthony A. Garganese"
William E. Reischmann, Jr.
J.W. Taylor
Jeffrey S. Weiss
'Board Certified Civil Trial Lawyer
'Board Certified City, County & Local Government Law
Board Certified Appellate Practice
June 8, 2009
Via Hand Delivery
John F. Bush, Mayor and
Members of City Commission
City of Winter Springs
1126 E. State Road 434
Winter Springs, FL 32708
Tara L. Barrett
Vivian P. Cocotas
Robin Gibson Drage
Gregg A. Johnson
Katherine W. Latorre'
Bridgette M. Miller
Alfred Truesdell
Lynn M. Vouis
Gary M. Glassman
Erin J. O'Leary'
Amy J. Pitsch
Catherine D. Reischmann'
Of Counsel
RE: Florida Attorney General Opinion and City of Ft. Lauderdale Attorney
Memorandum Regarding Public Official's Use of Facebook
Dear Mayor and Commissioners:
Attached for your consideration is a recent Florida Attorney General Opinion regarding a
public official's use of a Facebook page. Also attached is a copy of an insightful memorandum
prepared by the City Attorney of the City of Ft. Lauderdale regarding the Florida Attorney General's
Facebook Opinion.
If you have any questions, please do not hesitate to contact me.
Sinc ly,
Antho y Garganese
City Attorney
AAG/jel
attachment
cc: Kevin Smith, City Manager (w/ attachment)
Andrea Lcrenzo-Luaces, City Clerk (w/ attachment)
111 N. Orange Ave, Suite 2000 • P.O. Box 2873 •Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 - Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979
Website: www.orlandolaw.net - Email: firm@orlandolaw.net
Advisory Legal Opinion - Records, municipal facebook page
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Today is April 27, 2009
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GENERAL AL,FLORIDA
Bill McCollum
Advisory Legal Opinion - AGO 2009-19
Number: AGO 2009-19
Date: April 23, 2009
Subject: Records, municipal facebook page
Mr. Samuel S. Goren
Coral Springs City Attorney
9551 West Sample Road
Coral Springs, Florida 33065
Print Version
RE: MUNICIPALITIES -RECORDS -GOVERNMENT IN THE SUNSHINE LAW-INTERNET-public
record implications for city's Facebook page. s. 119.011(12), Fla. Stat.; Art.
I, s. 23, Fla. Const.
Dear Mr. Goren:
IOn behalf of the Coral Springs City Commission, you ask the following
questions:
1. If the city chooses to maintain a Facebook page, would all contents of the
city's page, including information about the city's "friends" and their
pictures, and the friend's respective Facebook pages, be subject to the Public
Records Law, Chapter 119, Florida Statutes?
Keep up with our latest
news and consumer
2. If Question One is answered in the affirmative, is the city obligated to
information:
follow a public records retention schedule as set forth in the State of
Florida General Records Schedule GSI for State and Local Government Agencies?
3. If Question One is answered in the affirmative, is Florida's Right of
Privacy, as guaranteed in Article I, section 23, Florida Constitution
implicated by the inclusion of information about the city's "friends" and the
ewsletter
respective link to the friends' Facebook pages linked to the city's page?
9• Would communications on the city's Facebook page regarding city business be
JRSSfeed
subject to Florida's Government in the Sunshine Law, section 286.011, Florida
udio Msg
Statutes?
witter
In sum:
Fraud Hotline
1. Since the city is authorized to exercise powers for a municipal purpose,
1-866-966-7226
the creation of a Facebook page must be for a municipal, not private purpose.
The placement of material on the city's page would presumably be in
Contactus
furtherance of such purpose and in connection with the transaction of official
business and thus subject to the provisions of Chapter 119, Florida Statutes.
In any given instance, however, the determination would have to be made based
upon the definition of "public record" contained in section 119.11, Florida
Statutes. Similarly, whether the Facebook page of the friends would also be
subject to the Public Records Law, Chapter 119, Florida Statutes, would depend
on whether the page and information contained therein was made or received in
connection of the transaction of official business by or on behalf of a public
agency.
2. The city is under an obligation to follow the public records retention
schedules established by law.
3. While Article I, section 23, Florida Constitution, may be implicated in
determining what information may be collected by the city, the constitutional
provision expressly states that "[t]his section shall not be construed to
limit the public's right of access to public records and meetings as provided
by law." Thus, to the extent that information on the city's Facebook page
constitutes a public record within the meaning of Chapter 119, Florida
Statutes, Article I, section 23, Florida Constitution, is not implicated.
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Advisory Legal Opinion - Records, municipal facebook page
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4. Communications on the city's Facebook page regarding city business by city
commissioners may be subject to Florida's Government in the Sunshine Law,
section 286.011, Florida Statutes. Thus, members of a city board or commission
must not engage on the city's Facebook page in an exchange or discussion of
matters that foreseeably will come before the board or commission for official
action.
You state that Facebook is a social networking website maintained by
privately -owned Facebook, Inc., which allows users to create profiles that
include personal interests and pictures. According to your letter, Facebook
allows users to build networks of "friends" which allows such friends, once
they have been added to the user's profile, to appear on the user's profile.
Facebook also contains interactive features, including instant messaging and
"Wall" which allows friends to post messages and attachments which may be
viewed by anyone who may view the user's profile.
As you have not provided this office with a specific fact situation, my
comments must be general in nature.
Question One
Section 166.021(1), Florida Statutes, sets forth the authority of
municipalities, stating:
"As provided in s. 2(b), Art. VIII of the State Constitution, municipalities
shall have the governmental, corporate, and proprietary powers to enable them
to conduct municipal government, perform municipal functions, and render
municipal services, and may exercise any power for municipal purposes, except
when expressly prohibited by law." (e.s.)
The Florida Supreme Court has stated that this constitutional provision
"expressly grants to every municipality in this state authority to conduct
municipal government, perform municipal functions, and render municipal
services.11[1] The only limitation on the power of municipalities under this
constitutional section is that such power must be exercised for a valid
municipal purpose.[2] The determination of what constitutes a valid municipal
purpose for the expenditure of public funds is one that must be made by the
city commission and cannot be delegated to this office.[3] In making this
determination, the commission must make appropriate legislative findings.
Accordingly, the city would appear to have the authority to establish a
Facebook page under its home rule powers provided the establishment of such a
page is for a valid municipal purpose and the city commission has made the
appropriate legislative findings. You have not advised this office as to the
nature of the information that will be contained on the city's page. Section
119.011(12), Florida Statutes, however, defines "Public records" for purposes
of Chapter 119, Florida Statutes, to include
"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."
the Florida Supreme Court has interpreted this definition to encompass all
materials made or received by an agency in connection with official business
which are used to perpetuate, communicate, or formalize knowledge.[4] It is
the nature of the record created rather than the means by which it is created
which determines whether it is a public record.[5] The placement of
information on the city's Facebook page would appear to communicate knowledge.
thus, the determination in any given instance as to whether information
:onstitutes a public record will depend on whether such information was made
)r received in connection with the transaction of official business by the
:ity.
ks noted above, you have not advised this office as to what will be placed on
:he Facebook page. Inasmuch as the page must be established for a municipal
)urpose and in the absence of specific information as to the material placed
)n the city's Facebook page, this office presumes that the information
)ontained on the page would be made or received in connection with the
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Advisory Legal Opinion - Records, municipal facebook page
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official business of the city. I recognize that the Florida Supreme Court
ruled that private e-mail stored in government computers does not
automatically become a public record by virtue of that storage:
"Just as an agency cannot circumvent the Public Records Act by allowing a
private entity to maintain physical custody of documents that fall within the
definition of "public records,". . . private documents cannot be deemed public
records solely by virtue of their placement on an agency -owned computer."[6]
Therefore, there may be material placed on the city's Facebook page that is
personal and does not relate to the transaction of official business. However,
as noted above, the creation of a Facebook page must be for a municipal, not
private, purpose. Accordingly, the placement of material on the city's page
would presumably be in furtherance of such purpose and in connection with the
transaction of official business and thus subject to the provisions of Chapter
119, Florida Statutes. In any given instance, however, the determination would
have to be made based upon the definition of "public record" contained in
section 119.11, Florida Statutes, as defined by the courts.
You also inquire whether the Facebook page of the friends would also be
subject to the Public Records Law, Chapter 119, Florida Statutes. You do not
indicate who these "friends" of the city may be. In the absence of more
information, this office cannot categorically conclude that the Facebook pages
of such "friends" would be subject to Chapter 119; rather such a determination
would depend on whether the information contained on such pages was made or
received in connection of the transaction of official business by or on behalf
of a public agency such as the city. In light of the above, the city, should
it establish a Facebook page, may wish to post a warning regarding the
application and implications of the Public Records Law.[7]
Question Two
Section 119.021(2)(a), Florida Statutes, requires the Division of Library and
Information Services (division) of the Department of State to adopt rules
establishing retention schedules and a disposal process for public records.
Each agency must comply with these rules.[8] The division shall establish a
time period for the retention or disposal of each series of records.[9]
Section 257.36(6), Florida Statutes, provides that a "public record may be
destroyed or otherwise disposed of only in accordance with retention schedules
established by the division." This office in Attorney General Opinion 96-34,
recognizing that the definition of "public records" is comprehensive and
encompasses all such material regardless of its physical form or
characteristics, stated that electronic public records such as e-mail messages
are subject to the statutory limitations on destruction of public records.
More recently, this office stated in Attorney General 08-07 that the public
records on a website maintained by a city council member that related to the
transaction of city business would appear to be subject to the city's policies
and retention schedule regarding city records.
The General Records Schedule GS1-SL for State and Local Government Agencies
states that "[a]11 Florida public agencies are eligible to use the GS1-SL,
which provides retention periods for the most common administrative records
such as routine correspondence and personnel, payroll, financial, and legal
records."[10] Thus, to the extent that the information on the city's Facebook
page constitutes a public record, the city is under an obligation to follow
:he public records retention schedules established by law.
)uestions relating to the applicability of a retention schedule or retention
A a specific record, however, should be referred to the Division of Library
and Information Services in the Department of State.
)uestion Three
krticle I, section 23, Florida Constitution, provides:
'Every natural person has the right to be let alone and free from governmental
.ntrusion into the person's private life except as otherwise provided herein.
'his section shall not be construed to limit the public's right of access to
>ublic records and meetings as provided by law."
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Advisory Legal Opinion - Records, municipal facebook page
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Therefore, while the Florida Constitution recognizes a right of privacy for
Florida citizens in Article I, section 23, Florida Constitution, it also
states that "[t]his section shall not be construed to limit the public's right
of access to public records and meetings as provided by law." The Florida
courts have determined that no federal or state right of privacy prevents
access to public records.[11] It is the Legislature that has balanced the
private versus public rights by creating the various exemptions from public
disclosure.[12] Thus, in Florida, "neither a custodian of records nor a person
who is the subject of a record can claim a constitutional right of privacy as
a bar to requested inspection of a public record which is in the hands of a
government agency."[13]
While Article I, section 23, Florida Constitution, may be implicated in
determining
what information may be collected by the city,[14] to the extent that
information on the city's Facebook page constitutes a public record within the
meaning of Chapter 119, Florida Statutes, Article I, section 23, Florida
Constitution, is not implicated. As noted supra, the city may wish to post a
notice on its Facebook page regarding the Public Records Law.
Question Four
Section 286.011, Florida Statutes, the Government in the Sunshine Law, has
three basic requirements:
"(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."
The law applies 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.[15] The
law extends to the discussions and deliberations as well as the formal action
taken by a public board or commission, with 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.
While the Sunshine Law generally applies to meetings of "two or more" members
of the same board or commission,[16] the Florida Supreme Court has stated that
the Sunshine Law is to be construed "so as to frustrate all evasive
devices."[17] Thus, the courts and this office have found that there are
instances where the physical presence of two or more members is not necessary
in order to find the Sunshine Law applicable. Thus, this office has stated
that members of a public board may not use computers to conduct a private
discussion among themselves about board business.[18]
In Attorney General Opinion 08-07, this office concluded that the use of a
website blog or message board to solicit comment from other members of the
board or commission by their response on matters that would come before the
ooard would trigger the requirements of the Sunshine Law. As stated therein:
"While there is no statutory prohibition against a city council member posting
:omments on a privately maintained electronic bulletin board or blog, .
nembers of the board or commission must not engage in an exchange or
iiscussion of matters that foreseeably will come before the board or
:ommission for official action. The use of such an electronic means of posting
Dne's comments and the inherent availability of other participants or
,ontributors to act as liaisons would create an environment that could easily
)ecome a forum for members of a board or commission to discuss official issues
vhich should most appropriately be conducted at a public meeting in compliance
with the Government in the Sunshine Law. It would be incumbent upon the
:ommission members to avoid any action that could be construed as an attempt
:o evade the requirements of the law."
Such concerns would appear to be equally applicable to the issue at hand.
chile there would not appear to be a prohibition against a board or commission
amber posting comments on the city's Facebook page,[19] members of the board
>r commission must not engage in an exchange or discussion of matters that
:oreseeably will come before the board or commission for official action.
,ccordingly, communications on the city's Facebook page regarding city
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business may be subject to Florida's Government in the Sunshine Law, section
286.011, Florida Statutes.
Sincerely,
Bill McCollum
Attorney General
BM/tjw
----------------------------------------------------
(1) State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978).
[2] Id. And see Ops. Att'y Gen. Fla. 83-06 (1983) and 72-198(1972) for the
proposition that a municipality's home rule power is tempered by the basic
Proposition that municipal funds may be used only for a municipal purpose. See
also Art. VII, S. 10, Fla. Const. (municipality prohibited from lending or
using its taxing power or credit to aid private parties).
[3] See, e.g., Ops. Att'y Gen. Fla. 88-52 (1988), 86-87 (1986), 84-76 (1984),
and 83-05 (1983) (legislative determination and findings as to the purpose and
the benefits accruing to the county from the program could not be delegated to
the Attorney General, nor could the Attorney General undertake to make such
legislative findings on behalf of the county).
(4] Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d
633, 640 (Fla. 1980).
(5] See Op. Att'y Gen. Fla. 08-07 stating that an email created by a public
official in connection with the transaction of official business is a public
record whether it is created on a publicly or privately owned computer and
concluding that the posting of comments relating to city business by a city
commissioner on a web page which he maintains would be subject to the Public
Records Law.
61 State v. City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003).
[7] Cf. s. 668.6076, Fla. Stat., requiring any agency as defined in s.
L19.011, Fla. Stat., or legislative entity that operates a website and uses
electronic mail to post the following statement in a conspicuous location on
Lts website:
"Under Florida law, e-mail addresses are public records. If you do not want
lour e-mail address released in response to a public records request, do not
send electronic mail to this entity. Instead, contact this office by phone or
Ln writing."
[8] Section 119.021(2)(b), Fla. Stat. And see s. 119.021(2)(c), Fla. Stat.,
)roviding that public officials must "systematically dispose" of records no
Longer needed, subject to the consent of the division in accordance with s.
?57.36, Fla. Stat.
;9] Id.
101 The general retention schedules, including GS1-SL, are available at:
Lttp._/ dlis.dos.state.fl_us/recordsjggvt/g_en records schedules_cfm.
11] See, e.g., Michel v. Douglas, 464 So. 2d 545 (Fla. 1985) (no federal or
state right of privacy prevents access to public records); Forsberg v. Housing
Wthority of Miami Beach, 455 So. 2d 373 (Fla. 1984); Shevin v. Byron,
carless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633 (Fla. 1980) (no
ederal or state disclosural right of privacy prevents a member of the public
rom seeing public records); Mills v. Doyle, 407 So. 2d 348 (Fla. 4th DCA
981).
12] Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997). Cf. Berkeley v.
'isen, 699 So. 2d 789 (Fla. 4th DCA 1997) (although Art. I, s. 23, Fla.
onst., recognizes that the right of privacy shall not be construed to limit
he public's right of access to public records, there is a statutory exemption
rom Florida's public records disclosure where the Department of Banking and
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(Financing is investigating or has concluded its investigation of a securities
customer's complaint).
[131 Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991),
review denied, 589 So. 2d 289 (Fla. 1991), appeal after remand, 619 So. 2d 983
(Fla. 5th DCA 1993).
[141 Cf. Thomas v. Smith, 882 So. 2d 1037 (Fla. 2d DCA 2004), in which the
appellant taxpayers had filed a timely application for ad valorem tax
exemption, but refused to make the required disclosure of their social
security numbers. Their application was denied based on their refusal to make
the required disclosure. Appellants argued that the required disclosure of
their social security number in order to claim the exemption violated, among
others, Art. I, s. 23, Fla. Const. The district court concluded that the lower
court erred in concluding that the taxpayers had no legitimate expectation of
privacy in their social security numbers; rather the court should first have
determined whether the taxpayers had a legitimate expectation of privacy in
their social security numbers without regard to other considerations such as
the necessity to submit an application in order to obtain the benefit of the
homestead tax exemption. The district court therefore remanded the case for
further proceedings on this claim.
[151 See, e.g., Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973). And
see City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); Board of Public
Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969); and
Wolfson v. State, 344 So. 2d 611 (Fla. 2d DCA 1977).
[161 Hough v. Stembridge, supra. And see City of Sunrise v. News and Sun -
Sentinel Company, 542 So. 2d 1354 (Fla. 4th DCA 1989); 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); and Mitchell v. School Board of Leon County, 335 So. 2d 354 (Fla.
1st DCA 1976).
(17) See, e.g., Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla.
1974); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th
DCA 1979).
[181 Op. Att'y Gen. Fla. 89-39 (1989). Compare 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 and must
ce maintained by the records custodian for public inspection and copying).
[191 Cf. Op. Att'y Gen. Fla. 07-35 (2007), concluding that members of a
2ommission may exchange documents that they wish other members of the
:ommission to consider on matters coming before the commission for official
action, provided there is no response from, or interaction related to such
9ocuments among, the commissioners prior to the public meeting. It was noted,
iowever, that if the commissioners intended to exchange individual position
Rapers on the same subject, this office would express the same concerns as
iiscussed in Attorney General Opinion 01-21. In that opinion, this office was
asked whether the preparation and distribution of individual position
statements on the same subject by several city council members to all other
:ouncil members would constitute an interaction or exchange by the council
:hat would be subject to the requirements of the Government in the Sunshine
yaw. This office determined that such a practice would violate the Sunshine
yaw to the extent that any such communication is a response to another council
lember's statement.
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Memorandum
No. 09-0524
To: Mayor John P. "Jack" Seiler
Vice -Mayor Bruce G. Roberts
Commissioner Charlotte E. Rodstrom
Commissioner Bobby B. DuBose
Commissioner Romney Rogers
From: Harry A. Stewart, City Attorney
Date: May 14, 2009
City Attorney's Office
Re: Update on the Law — Facebook Pages and Websites
The Florida Attorney General's Office recently released Attorney General's Opinion
(AGO) 09-19 dealing with the creation of municipal Facebook pages and the
implications this would have under Florida's Public Records and Sunshine laws.
Facebook is a social networking website on which users create profiles, interact with
one another in real-time and are able to build networks of "friends". The analysis
contained below is also applicable to participation by the City or individual public officers
in websites and blogs generally. We felt it important to share this with you as the advent
of new technologies, and the desire to participate in them, bring about new issues
relative to our duties under Florida law.
Public Records Law
Section 119.011(12), Florida Statutes, defines "public records" to include:
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.
The AG opined that a municipality may create a Facebook page if it finds there is a valid
municipal purpose. The Opinion, relying on the Florida Supreme Court's interpretation of
a public record encompassing all material made or received by an agency in connection
with official business and used to perpetuate, communicate, or formalize knowledge,
went on to say that indeed information on a municipality's Facebook page would most
likely constitute a public record under the law — but such determination would need to be
made based on the information posted on the site.
May 14, 2009
Page 2
As for the "friends" that are part of this site, whether or not the content of their postings
and their pages are deemed public records would also be a determination based upon
whether or not the information contained therein was made or received by an agency in
connection with official business. Because of the likelihood that such information would
be deemed public record, the AG suggests posting a warning on a municipality's
Facebook page regarding the implication of public records law on the material posted
and shared by "friends".
Public records law also imposes a duty of disclosure and retention upon every person
who has custody of a public record. Custody has been described as having "supervision
and control over the document or hav[ing] legal responsibility for its care, keeping or
guardianship." (AGO 08-07).
Maintaining such a Facebook site, indicating that the City is aware of and has approved
the content, places responsibility on the City to ensure the records are maintained in
accordance with public records law as well as the General Retention Schedule GS1-SL
for State and Local Government (providing retention periods for administrative records).
Though the AG's Opinion asserts information contained on the Facebook site and
deemed a public record would have to be retained in accordance with the GS1-SL
schedule, as this is a new technology in the eyes of the law, it is wholly unclear what the
applicable time period for retention would be as the GS1-SL does not specifically
address website content. Indeed, the recommended retention periods could vary based
on the content.
There exists an ancillary, though important issue, of whether or not the City even has
the technological capability to retain the content of the Facebook site. The City does not
have ownership, control or affiliation with this site and research would need to be done
to determine if City retention is even possible technologically and financially. See also:
AGO 08-07, in which the AG opined that an individual council member who created
posted comments and emails on a website for which the council member served as
webmaster was responsible for ensuring that the information was maintained in
accordance with both public records law and the policies and retention schedule of the
City where the City had no ownership, control or affiliation with the website.
Sunshine Law
Florida's Sunshine Law applies to a formal or informal gathering of two or more
members of a public board or commission to discuss some matter on which foreseeable
action will be taken by the board or commission. The three basic requirements set forth
in Section 286.011, F.S. are (1) meetings of public boards or commissions must be
open to the public, (2) reasonable notice of such meetings must
May 14, 2009
Page 3
be given and (3) minutes of the meeting must be taken promptly and recorded. The AG
notes that though the Sunshine Law does ordinarily apply to meetings of two or more
members, because the Florida Supreme Court has stated the law is to be construed "so
as to frustrate all evasive devices", the physical presence of two persons is not always
necessary. See also: AGO 89-39, in which the AG opined that private discussions via
email between board members about board business is prohibited under the Sunshine
Law. That Opinion analogized the use of such private email discussions to private
telephone conversations or the exchange of written memoranda between two or more
members on topics to come before the board— all of which conduct is regulated and
prohibited by the Sunshine Law. See also: AGO 08-07, in which the AG's office
concluded that use of a website blog or message board to solicit comments from other
members of the board or commission by their responses on issues that would come
before the board triggers the Sunshine Law.
The AG warns that "while there would not appear to be a prohibition against a board or
commission member posting comments on the city's Facebook page, members of the
board or commission must not engage in an exchange or discussion of matters that
foreseeably will come before the board or commission for official action." (AGO 09-19).
Engaging in an exchange of ideas or discussion on such matters is a slippery slope —
and comments made on the site by one member in reaction to the letters, emails or
personal postings of another member may be broadly construed as such an exchange
or discussion and thus constitute a violation of the Sunshine Law. See also: AGO 01-
21, in which the AG noted that although the preparation and distribution of individual city
council members' "position statements" is technically in and of itself not a violation of the
Sunshine Law, to the extent the position statement is a response (or construed as a
response) to another members' statement, it violates the Sunshine Law and thus is
problematic and strongly discouraged. The AG concluded that the best practice is for
each member to discuss his or her position in the context of an open meeting.
Similar concerns regarding record retention and Sunshine Law violations would abound
in the undertaking of a personal website by a Commissioner if information on the site fell
within the definition of "public records" as defined in Florida Statutes and caselaw.
Conclusions
It is a simple fact that the state of the law is lagging woefully behind the state of the art in
communications technology. This presents unique challenges in following the intent and
the letter of these laws regulating public meetings and communications of local
government.
For this reason, this office discourages the City's participation in a Facebook page or
any similar interactive communication technology. The current City website is not
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May 14, 2009
Page 4
interactive and offers the ability to post information for the public. Facebook pages or
websites for individual Commissioners are also discouraged. If individual
Commissioners wish to have their own website, they should be used for informational
purposes only or to solicit constituent opinions, however care should be taken to avoid
posting position statements held by Commissioners on issues that may come before the
Commission. It should also be noted that even on personal websites, retention
schedules for public records must be followed.
It is also crucial to note that the exchange of opinions and discussions between
Commissioners on material that may foreseeably come before the Commission via
email (as well as via telephone or written memoranda) is to be avoided at all costs
because such conduct is a clear violation of the Sunshine law carrying serious
penalties.
HAS/NCS/kcb
cc: George Gretsas, City Manager
John Herbst, City Auditor
Jonda K. Joseph, City Clerk
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