Transcript entity created pursuant to law

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 32034
Telephone: 904-261-1833; Facsimile: 904-212-0350
Email: [email protected]
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 286.011, 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
286.011 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 74-294.
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 01-21 – 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. 119.07(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. 112.52(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 rediscussed 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
Email Notices
Section 668.6076, Florida Statutes, requires the
following if public entity emails or website.
“Under Florida Law, e-mail addresses are public
records. If you do not want your e-mail 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. 119.011(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. 119.07(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 850-245-0140;
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 $500.00
Intention violation is 1st 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 32301
Phone: 850-224-4555; Fax 850-224-0435
www.floridafaf.org
E-manuals Available!
Florida Attorney General’s Website
http://myfloridalegal.com/pages.nsf/Main/314BA231F89C0C8
A8525791B006A54E2