Loading...
HomeMy WebLinkAbout2010 11 17 Other - Sunshine Law and Public Records Bicycle And Pedestrian Advisory Committee Meeting November 17, 2010 The attached document "Sunshine Law and Public Records was presented and discussed by Attorney Kimberly Romano Kopp, Brown, Garganese, Weiss & D'Agresta, P.A. • B D BROWN, GARGANESE, WEISS & D'AGRESTA P.A Attorneys at Law 111 N. Orange Ave., Suite 2000 P.O. Box 2873 Orlando, Florida 32802 -2873 Phone (407) 425 -9566 Kimberly Romano Kopp Fax (407) 425 - 9596 kkopp@orlandolaw.aet SUNSHINE LAW AND PUBLIC RECORDS Presented by Kimberly Romano Kopp, Winter Springs Assistant City Attorney kkopp©orlandolaw.net GOVERNMENT IN THE SUNSHINE A. Scope of the Sunshine Law — § 286.011, Florida Statutes 1. The Sunshine Law provides a right of access to governmental proceedings at both the state and local levels and requires that: a. Meetings of public boards or commissions must be open to the public; b. Reasonable notice of such meetings must be given; and c. Minutes of the meetings must be taken. 2. The Sunshine Law is applicable to both elected and appointed boards. 3. The general rule is that the Sunshine Law is applicable to any gathering of two (2) or more members of the same board to discuss some matter which will foreseeably come before that board for action. 4. Upon application by any citizen of Florida, the circuit courts have jurisdiction to issue injunctions to enforce the Sunshine Law. B. Agencies Covered by the Sunshine Law 1. Sunshine Law applies to any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision. 2. Advisory boards created pursuant to law or ordinance or otherwise established by public agencies are subject to the Sunshine Law, even though their recommendations are not binding upon the entities that create them. 3. Exception: fact finding committees. Committees established for fact - finding purposes only are not subject to the Sunshine Law, i.e., information gathering and reporting only. 4. Generally, meetings between members of county or municipal staff are not subject Ft. Lauderdale (954) 670 -1979 • Kissimmee (321) 402 -0144 • Cocoa (866) 425 -9566 Website: www.orlandolaw.net • Email: firm @orlandolaw.net E' ■ November 17, 2010 Page 2 to the Sunshine Law. However, if a certain group of staff are delegated the authority to make recommendations to a board or committee which itself is in the Sunshine, that staff group may also be subject to the Sunshine Law. 5. The legal authority on whether the Sunshine Law applies to any given board provides that the focus should be on the nature of the act being performed, not on the composition of the members performing it or on the formality with which they act. C. Public Meetings 1. Sunshine Law applicable 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. 2. No requirement that a quorum be present for a meeting of members of a public board or commission to be subject to the Sunshine Law. D. Discussions 1. Sunshine Law applies to discussions and deliberations, as well as to the formal action taken by a public board or commission. 2. Workshop meetings, executive work sessions, and conference sessions all fall under the Sunshine Law requirements. E. Written Correspondence Between Board Members 1. The use of a written document by one board member to inform other board members of a subject which will be discussed at a public meeting is not a violation of the Sunshine Law as long as there is no interaction, whether written or verbal, related to the document among the board members. 2. If, however, the written document is circulated among board members for comments with the comments being provided to other members, there is interaction among the board members and such communication would violate the Sunshine Law. 3. If you desire to circulate written information to fellow board members, the preferred practice is to give the recording secretary of the board the written document to circulate. F. Telephone Conversations and Meetings 1. Discussions between board members regarding board business through use of a telephone are not removed from the requirements of the Sunshine Law. G. Notice and Procedural Requirements 1. All meetings must be preceded by "reasonable notice" to the public and should generally include the time, date, and location of the meeting, as well as the general subject matter to be addressed. 2. What constitutes "reasonable notice" will vary depending on the circumstances. 3. It is recommended, although not required, that an agenda be provided addressing the subject matter to be discussed at public meetings. If no agenda is provided, a general summation of the subject -matter will suffice. • • November 17, 2010 Page 3 4. Pursuant to section 286. 012, Florida Statutes, members of state, county or municipal boards who are present at a meeting may not abstain from voting unless there is, or appears to be, a possible conflict of interest. 5. County, municipal, or other local public officers may abstain from voting due to a conflict of interest where he or she is called to vote on any measure which affects his or her special private gain or loss (almost always a financial gain or loss). 6. Written minutes of each public meeting must be kept and immediately made available for public inspection. Tape recording of meetings is not required; however, if recorded, the same must be made available for public inspection. H. Consequences for Failure to Comply 1. Criminal: Any member of a public body subject to the Sunshine Law who knowingly violates the Sunshine Law is guilty of a misdemeanor in the second degree, punishable by a term of imprisonment not to exceed 60 days and /or a fine up to $500. 2. Noncriminal: Any public officer who violates the Sunshine Law may be found guilty of a noncriminal infraction, punishable by a fine not exceeding $500. The state attorney may pursue such actions on behalf of the state. 3. No resolution, rule, or formal action shall be considered binding except as taken or made at an open meeting. 4. Courts have found actions taken in violation of the Sunshine Law to be invalid, regardless of intent. 5. However, an initial violation of the Sunshine Law may be cured by a full, open hearing reexamining and readdressing the issue with an independent final action taken in the "sunshine." 11. PUBLIC RECORDS A. What is a Public Record? 1. Section 119, 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. 2. 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. 3. As technology advances, the means by which agencies communicate, manage, and store information will take on different forms, as will the definition of "public records." B. What Agencies are Subject to the Public Records Act? 1. Any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law is subject to the Chapter 119 public records disclosure requirements. • November 17, 2010 • Page 4 2. The definition of "agency" for purposes of Chapter 119, Florida Statutes, is not limited to governmental entities. Much like the types of agencies subject to the Sunshine Law requirements, advisory boards and private entities acting on behalf of governmental bodies are also subject to public records disclosure. C. What Kind of Agency Records are Subject to the Act? 1. As a general rule, all state, county, and municipal records shall be open to the public for general inspection, unless a specific statutory exemption exists. See section 119.01, Florida Statutes. 2. Computer records, election records, financial records, investigation records of non law enforcement agencies, certain litigation records and personnel records are all subject to public inspection. 3. Section 119.071, Florida Statutes, provides an extensive list of exceptions to the general disclosure requirement exempting records from public inspection. 4. Social security numbers may be redacted from documents that are otherwise required to be disclosed, but a document may not be withheld from public inspection based solely on the fact that a social security number is contained within the document.