HomeMy WebLinkAbout2023 09 11 Regular 507 - Discussion on Sunshine and Public Records Laws, Private WebsitesREGULAR AGENDA ITEM 507
CITY COMMISSION AGENDA | SEPTEMBER 11, 2023 REGULAR MEETING
TITLE
Discussion on Sunshine and Public Records Laws, Private Websites
SUMMARY
Under New Business at the August 14, 2023 City Commission Regular Meeting,
Commissioner Matt Benton requested that a discussion be scheduled for a future
Commission Meeting related to Commissioner's use of private websites and social
media and associated public records responsibilities. Commissioner Benton entered
two items into the record at that time, an excerpt of the Government in the Sunshine
Manual and Attorney General Opinion 2008-07 (both attached to this item).
FUNDING SOURCE
RECOMMENDATION
276
GOVERNMENT-IN-THE-SUNSHINE-MANUAL
85
d. Social media postings
The Attorney General’s Office has stated that the placement of material on a city’s Facebook
page presumably would be in connection with the transaction of official business and thus subject
to Ch. 119, F.S., although in any given instance, the determination would have to be made based
upon the definition of “public record” contained in s. 119.011(12), F.S. AGO 09-19. To the
extent that the information on the city’s Facebook page constitutes a public record, the city is under
an obligation to follow the public records retention schedules established in accordance with s.
257.36(6), F.S. Id. And see AGO 08-07 (city council members who post comments and emails
relating to the transaction of city business on a privately owned and operated website “would be
responsible for ensuring that the information is maintained in accordance with the Public Records
Law”).
The determination as to whether a list or record of accounts which have been blocked from
posting to or accessing an elected official’s personal Twitter feed is a public record involves mixed
questions of law and fact which cannot be resolved by the Attorney General’s Office. Inf. Op.
to Shalley, June 1, 2016. However, “if the tweets the public official is sending are public records
[because they were sent in connection with the transaction of official business] then a list of blocked
accounts, prepared in connection with those public records ‘tweets,’ could well be determined by
a court to be a public record.” Id. Cf. Knight First Amendment Institute v. Trump, No. 18-1691
(2d Cir. July 9, 2019) (public official engaged in unconstitutional viewpoint discrimination by
blocking certain users from access to his Twitter account, which is otherwise open to the public at
large and “used for all manner of official duties,” because he disagreed with their speech)
e. Text messages
A public official or employee’s use of a private cell phone to conduct public business via text
messaging “can create an electronic written public record subject to disclosure” if the text message
is “prepared, owned, used, or retained . . . within the scope of his or her employment or agency.”
O’Boyle v. Town of Gulf Stream, 257 So. 3d 1036, 1040-1041 (Fla. 4th DCA 2018). Accord City of
Sunny Isles Beach v. Gatto, 338 So. 3d 1045 (Fla. 3d DCA 2022), noting that a “city commissioner’s
text messages may be a public record,” although a private communication by a municipal official
“falls outside the definition of public record.” For more information on personal records created
and or received by public officials on government or private devices, please see the discussion of that
topic on page 134.
In order to comply with the requirements of the Public Records Act, “the governmental
entity must proceed as it relates to text messaging no differently than it would when responding
to a request for written documents and other public records in the entity’s possession—such as
emails—by reviewing each record, determining if some or all are exempted from production, and
disclosing the unprotected records to the requester.” O’Boyle v. Town of Gulf Stream, at 1041. And
see the discussion on page 164 regarding the entity’s responsibility to conduct a reasonable search to
locate text messages that have been requested from the governmental entity, including those located
on private accounts or devices.
The retention periods for text messages and other electronic messages or communications “are
determined by the content, nature, and purpose of the records, and are set based on their legal, fiscal,
administrative, and historical values, regardless of the format in which they reside or the method by
which they are transmitted.” See General Records Schedule GS1-SL for State and Local Government
Agencies, Electronic Communications, available online at dos.myflorida.com/library-archives.
Stated another way, it is the content, nature and purpose of the electronic communication that
determines how long it is retained, not the technology that is used to send the message. See also
Inf. Op. to Browning, March 17, 2010, advising that the same[ retention] rules that apply to
e-mail should be considered for electronic communications including SMS communications (text
messaging), MMS communications (multimedia content), and instant messaging conducted by
government agencies.
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Sunshine and Public Records Laws, private website
Number:AGO 2008-07
Date:February 26, 2008
Subject:
Sunshine and Public Records Laws, private website
Mr. A. Kurt Ardaman
City Attorney
City of DeBary
1947 Lee Road
Winter Park, Florida 32789-1834
RE: PUBLIC RECORDS – GOVERNMENT IN THE SUNSHINE – MUNICIPALITIES –
COMPUTERS – WEBSITES – application of Sunshine Law and Public Records Law to city
council members posting comments on website operated by a council member. ss. 119.01,
119.011, and 286.011, Fla. Stat.
Dear Mr. Ardaman:
You ask substantially the following questions:
1. May a city council member serve as a webmaster (administrator) of a privately-owned and
operated internet website which serves as a forum for citizen discussion of local political issues,
including issues to be considered by the city council?
2. If so, then may the city council member/ webmaster contribute to the discussion by outlining
the member’s positions on city issues?
3. May another city council member contribute to the website by sending information through the
webmaster, as long as neither responds to the other?
4. May city council members post comments on the website in response to citizens comments or
questions relating to city business posted on the website?
5. If the city council member serves as the webmaster, would materials submitted to the website
be subject to the Public Records Law, Chapter 119, Florida Statutes?
6. Are materials submitted by a city council member to the website considered public records
under Chapter 119, Florida Statutes?
7. If the answers to Questions Five and Six are in the affirmative, what obligations does the
webmaster have to preserve such records and make them available for inspection and copying?
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8. What responsibilities would the City of DeBary have in maintaining the records referenced in
Questions Five and Six?
Due to the interrelated nature of your questions, they will be answered together.
You state that a newly elected city council member is a webmaster and regular contributor to an
internet website which serves as a public forum for citizen discussion and debate on issues likely
to come before the city commission for official action. The website is not affiliated with the city.
Another recently elected council member is a regular contributor to the website. You indicate that
the webmaster’s duties include screening submitted materials for vulgarity and offensive
comments, then posting the materials on the website. The webmaster uses an e-mail address
separate from the one used for official city business. Primarily, the city is unsure of Government
in the Sunshine Law implications for postings among city council members on issues upon which
foreseeable action will be taken by the city council.
Government in the Sunshine/Public Meetings
Section 286.011, Florida Statutes, has three 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.
The Government in the Sunshine 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.[1] 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,[2] the Florida Supreme Court has stated that the Sunshine Law is to be
construed "so as to frustrate all evasive devices."[3] 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.
For example, this office has concluded that the use of memoranda among members of a board
or commission to avoid a public meeting may be a violation of the Sunshine Law, even though
two members of the board or commission are not physically present. In such a situation, if a
memorandum reflecting the views of a board member is circulated among the other board
members with each indicating his or her approval or disapproval, upon completion of the
members signing off, the memorandum has the effect of becoming official action of the board in
violation of the Government in the Sunshine Law.[4]
This office, in Attorney General Opinion 07-35, concluded that members of a commission may
exchange documents that they wish other members of the commission to consider on matters
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coming before the commission for official action, provided there is no response from, or
interaction related to such documents among, the commissioners prior to the public meeting. It
was noted, however, that if the commissioners intended to exchange individual position papers
on the same subject, this office would express the same concerns as discussed 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 council members would constitute an interaction or exchange by the
council that would be subject to the requirements of the Government in the Sunshine Law. This
office determined that such a practice would violate the Sunshine Law to the extent that any
such communication is a response to another council member's statement. In Attorney General
Opinion 01-20, it was determined that an e-mail communication of factual background
information from one city council member to other council members that 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 Government in the Sunshine Law. [5]
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 board would
trigger the requirements of the Sunshine Law. Such action would amount to a discussion of
public business through the use of the electronic format without appropriate notice, public input,
or statutorily required recording of the minutes of the meeting. While as noted above, the mere
posting of a position does not implicate the Sunshine Law, it would appear that any subsequent
postings by other commission members on the subject of the initial posting could be construed
as a response which would be subject to the statute.
While there is no statutory prohibition against a city council member posting comments on a
privately maintained electronic bulletin board or blog, nor is there any statutory proscription
against a city council member serving as the webmaster of such a site, 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. The use of such an electronic means of
posting one’s comments and the inherent availability of other participants or contributors to act
as liaisons would create an environment that could easily become a forum for members of a
board or commission to discuss official issues which should most appropriately be conducted at
a public meeting in compliance with the Government in the Sunshine Law. It would be incumbent
upon the commission members to avoid any action that could be construed as an attempt to
evade the requirements of the law.
Public Records
It is the policy of this state that all state, county, and municipal records are open for personal
inspection and copying by any person.[6] Section 119.011(11), Florida Statutes, defines "[p]ublic
records" as
"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." (e.s.)
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"Agency" includes "any state, county, district, authority, or municipal officer, department, division,
board, bureau, commission, or other separate unit of government created or established by law .
. . and any other public or private agency, person, partnership, corporation, or business entity
acting on behalf of any public agency."[7]
Thus, a city council member clearly is subject to the provisions of Chapter 119, Florida Statutes,
when making or receiving public records in carrying out official business. This office has stated
that e-mail messages made or received by agency employees or officials in connection with
official business are public records and are subject to disclosure in the absence of an
exemption.[8] 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. Thus, 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. To the extent that the council member is publicly posting
comments relating to city business, this office cannot conclude that such postings are not made
in connection with the transaction of official business. Accordingly, I am of the opinion that such
postings would be subject to the requirements of the Public Records Law.
When considered with the discussion above, it would appear that the postings and emails of a
city council member relating to his public duties would be public records subject to the provisions
of Chapter 119, Florida Statutes.
Chapter 119, Florida Statutes, imposes various duties upon the custodian of a public record. For
example, section 119.07(1), Florida Statutes, provides:
"(1)(a) Every person who has custody of a public record shall permit the record to be inspected
and copied by any person desiring to do so, at any reasonable time, under reasonable
conditions, and under supervision by the custodian of the public records.
(b) A custodian of public records or a person having custody of public records may designate
another officer or employee of the agency to permit the inspection and copying of public records,
but must disclose the identity of the designee to the person requesting to inspect or copy public
records.
(c) 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.
(d) A person who has custody of a public record who asserts that an exemption applies to a part
of such record shall redact that portion of the record to which an exemption has been asserted
and validly applies, and such person shall produce the remainder of such record for inspection
and copying.
(e) If the person who has custody of a public record contends that all or part of the record is
exempt from inspection and copying, he or she shall state the basis of the exemption that he or
she contends is applicable to the record, including the statutory citation to an exemption created
or afforded by statute.
(f) If requested by the person seeking to inspect or copy the record, the custodian of public
records shall state in writing and with particularity the reasons for the conclusion that the record
is exempt or confidential.
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* * *
(h) Even if an assertion is made by the custodian of public records that a requested record is not
a public record subject to public inspection or copying under this subsection, the requested
record shall, nevertheless, not be disposed of for a period of 30 days after the date on which a
written request to inspect or copy the record was served on or otherwise made to the custodian
of public records by the person seeking access to the record. If a civil action is instituted within
the 30-day period to enforce the provisions of this section with respect to the requested record,
the custodian of public records may not dispose of the record except by order of a court of
competent jurisdiction after notice to all affected parties.
(i) The absence of a civil action instituted for the purpose stated in paragraph (g) does not relieve
the custodian of public records of the duty to maintain the record as a public record if the record
is in fact a public record subject to public inspection and copying under this subsection and does
not otherwise excuse or exonerate the custodian of public records from any unauthorized or
unlawful disposition of such record."[9] (e.s.)
Thus, Chapter 119, Florida Statutes, dictates the responsibilities of the custodian of public
records. "Custodian of public records" is defined as "the elected or appointed state, county, or
municipal officer charged with the responsibility of maintaining the office having public records,
or his or her designee."[10]
In Puls v. City of Port St. Lucie,[11] the Fourth District Court of Appeal considered who was
responsible for responding to a public records request. The court concluded that regardless of
whether or not the designated custodian was served with a records request, section
119.07(1)(a), Florida Statutes, imposes a duty of disclosure upon "every person who has
custody of a public record." The court subsequently clarified who is considered to have custody
of a public record in Mintus v. City of West Palm Beach,[12] finding that in order to have custody
of a public record, one must have supervision and control over the document or have legal
responsibility for its care, keeping, or guardianship.
Thus, the records custodian is the person designated by the agency head to perform the
responsibilities imposed by Chapter 119, Florida Statutes, as well as any other person who has
legal control over the records as discussed in Mintus.
In the instant situation, the public official with control over the records is the city council member
who creates and posts the comments on the website. Since the records are public records as
they are related to the transaction of city business, such records would appear to be subject to
the city’s policies and retention schedule regarding city records. While the webmaster
administering the website is a city council member, you have stated that the city has no
ownership, control, or affiliation with the website. Thus, it would appear that the individual council
members who create the public documents through the posted comments and emails would be
responsible for ensuring that the information is maintained in accordance with the Public
Records Law and the policies and retention schedule adopted by the city.
Sincerely,
282
Bill McCollum
Attorney General
BM/tals
______________________________________________________________________
[1] 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).
[2] 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).
[3] 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).
[4] See Inf. Op. to The Honorable John Blair, May 29, 1973. And see Ops. Att'y Gen. Fla. 90-03
(1990) (proposed contract may not be circulated among board members for comments to be
provided to other members, as this would be communication among the members on an issue
upon which the board will take official action subject to the Sunshine Law) and 93-90 (1993)
(board responsible for assessing the performance of its chief executive officer should conduct
the review and appraisal process in a proceeding open to the public, instead of using a review
procedure in which individual board members evaluate the CEO's performance and send their
individual written comments to the board chairman for compilation and subsequent discussion
with the chief executive officer).
[5] See also Ops. Att’y Gen. Fla. 96-35 (1996) (written memorandum sent by one school board
member to other school board members informing them that the individual member intended to
recommend certain action at a school board meeting did not violate
the Sunshine Law, where no response from other board members was solicited and no
discussion among the members concerning the memorandum occurred prior to the school board
meeting), 02-32 (2002), 01-66 (2001), and Inf. Ops. to The Honorable Jack Tanner, Chair, Lee
Soil and Water Conservation District, dated March 19, 2007, and Mr. Michael Ciocchetti,
Attorney for the Town of Ponce Inlet, dated March 23, 2006.
[6] Section 119.01(1), Fla. Stat. See also Art. I, s. 24(a), Fla. Const., representing this state's
constitutional pronouncement regarding access to public records, providing:
"Every person has the right to inspect or copy any public record made or received in connection
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with the official business of any public body, officer, or employee of the state, or persons acting
on their behalf, except with respect to records exempted pursuant to this section or specifically
made confidential by this Constitution. This section specifically includes the legislative,
executive, and judicial branches of government and each agency or department created
thereunder; counties, municipalities, and districts; and each constitutional officer, board, and
commission, or entity created pursuant to law or this Constitution."
[7] Section 119.011(2), Fla. Stat.
[8] See, e.g., Ops. Att'y Gen. Fla. 01-20 (2001) and 96-34 (1996). And see In re Amendments to
Rule of Judicial Administration 2.051--Public Access to Judicial Records, 651 So. 2d 1185, 1187
(Fla. 1995), in which the Florida Supreme Court noted:
"The fact that information made or received in connection with the official business of the judicial
branch can be made or received electronically does not change the constitutional and rule-
mandated obligation of judicial officials and employees to direct and channel such official
business information so that it can be properly recorded as a public record. The obligation is the
same whether the information is sent as a letter or memo by hard copy or as an e-mail
transmission. Official business e-mail transmissions must be treated just like any other type of
official communication received and filed by the judicial branch."
[9] Other provisions of section 119.07, Fla. Stat., impose duties relating to public records on the
custodian of public records. See, e.g., s. 119.07(2), Fla. Stat. (permitting remote electronic
access to public records); s. 119.07(3), Fla. Stat. (permitting photographing of public records); s.
119.07(4), Fla. Stat. (fees for copying or inspection of public records). And see s. 119.021(4),
Fla. Stat., providing:
"(4)(a) Whoever has custody of any public records shall deliver, at the expiration of his or her
term of office, to his or her successor or, if there be none, to the records and information
management program of the Division of Library and Information Services of the Department of
State, all public records kept or received by him or her in the transaction of official business.
(b) Whoever is entitled to custody of public records shall demand them from any person having
illegal possession of them, who must forthwith deliver the same to him or her. Any person
unlawfully possessing public records must within 10 days deliver such records to the lawful
custodian of public records unless just cause exists for failing to deliver such records."
[10] Section 119.011(5), Fla. Stat.
[11] 678 So. 2d 514 (Fla. 4th DCA 1996).
[12] 711 So. 2d 1359, 1361 (Fla. 4th DCA 1998).
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