April Flashcards
What are the two general sets of circumstances when records belonging to a private entity must be produced as public records?
- When a public entity contracts with a private entity to provide goods or services to facilitate the agency’s performance of its duties AND the “totality of factors” indicates a significant level of involvement by the public agency.
- When a public entity delegates a statutorily authorized function to a private entity.
“[W]hen a public entity delegates a statutorily authorized function to a private entity, the records generated by the private entity’s performance of that duty become public records.” Weekly Planet, Inc. v. Hillsborough County Aviation Authority, 829 So. 2d 970, 974 (Fla. 2d DCA 2002).
What are the 9 totalities?
Per K, facilitates LG + Totality [CFRs Totally Decide Property Benefits.]
or performs LG’s statutory authority.
Totality:
1. Created.
- Financial interest of govt in entity.
- Funds, level of.
- Funds, conmingling.
- Function, performing govt. function.
- Extent Regulated/controlled.
- takes place on public Property.
- integral part of LG’s Decision making.
- for whose Benefit does private function.
True or False:
New Public Records Act exemptions must be reauthorized every five years or expire.
True:
S. 119.15, F.S.
When can LG charge for labor in responding to PR?
What are cost for 81/2 x 14?
Double sided?
What if have to put on CD, what can LG charge?
What can LG charge for high volume? What are the 3 things we know?
Labor only for maps/aerials.
15 cents + 5 cents for double sided.
Charge for CD only, NO LABOR.
“Special Charge” for “extensive use of IT or clerical resources.
1) In addition to the actual cost of duplication,
2) Reasonable and based on the cost incurred
3) For EXTENSIVE use of IT or clerical resources.
How long do PR exemptions last? What is the exception?
5 years.
Trade secrets is a permanent exemption.
What cannot be included in “Special Charge,” i.e. the charge extensive use of IT or clerical?
Benefits. Base salary only.
What are the options if an agency refuses to produce public records ford inspection and copying?
- Voluntary mediation- Section 16.60, Florida Statutes, establishes the open government mediation
program as a voluntary alternative for resolution of public access disputes. - Civil action
a. A person who has been denied the right to inspect and/or copy public records under the Public Records Act may bring a civil action against the agency to enforce the terms of Ch. 119, Florida Statutes.
Before filing a lawsuit, the petitioner must have furnished a public records request to the agency. Villarreal v. State, 687 So. 2d 256 (Fla. 1st DCA 1996), reviewm enied, 694 So. 2d 741 (Fla. 1997), cert. denied, 118 S.Ct. 316 (1997) (improper to order agency to produce records before it has had an opportunity to comply).
Section 119.11(1), Florida Statutes, mandates that actions brought under Ch. 119 are entitled to an immediate hearing and take priority over other pending cases.
See, Matos v. Office of the State Attorney for the 17th Judicial Circuit, 80 So. 3d 1149 (Fla. 4th DCA 2012) (“[a]n immediate hearing does not mean one scheduled within a reasonable time, but means what the statute says: immediate”).
Generally, mandamus is the appropriate remedy to enforce compliance with the Public Records Act. See Chandler v. City of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA 2014). See also, Weeks v. Golden, 764 So. 2d 633 (Fla. 1st DCA 2000). If the requestor’s petition presents a prima facie claim for relief, an order to show cause should be issued so that the claim may receive further consideration on the merits. Gay v. State, 697 So. 2d 179 (Fla. 1st DCA 1997). However, it has been recognized that injunctive relief may be available upon
an appropriate showing for a violation of Chapter 119, Florida Statutes. See, Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989). And see, Areizaga v. Board of County Commissioners of Hillsborough County, 935 So. 2d 640 (Fla. 2d DCA 2006) (circuit courts may not refer extraordinary writs to mediation; thus, trial judge should not have ordered mediation of petition for writ of mandamus seeking production of public records).
b. In camera inspection
Section 119.07(1)(g), Florida Statutes, provides that in any case in which an exemption to the public inspection requirements in section 119.07(1), Florida Statutes, is alleged to exist pursuant to section 119.071(1)(d) or (f), (2)(d), (e), or (f), or (4)(c), Florida Statutes, the public record or part of the record in question shall be submitted to the trial court for an in camera examination.
c. Mootness
In Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA 1996), the court noted that “[p]roduction of the records after the [public records] lawsuit was filed did not moot the issues raised in the complaint.”
d. Stay
If the person seeking public records prevails in the trial court, the public agency must comply with the court’s judgment within 48 hours unless otherwise provided by the trial court or such determination is stayed within that period by the appellate court. Section 119.11(2), Florida Statutes. An automatic stay shall exist for 48 hours after the filing of the notice of appeal for public records and public meeting cases. Rule 9.310(b)(2), Florida Rules of Appellate Procedure.
e. Section 119.12, Florida Statutes, provides that if a civil action is filed against an agency to enforce the provisions of this chapter and the court determines that the agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award against the agency responsible the reasonable costs of enforcement including reasonable attorney’s fees.
3. Criminal penalties
In addition to judicial remedies, section 119.10(1)(b), Florida Statutes, provides that a public officer who knowingly violates the provisions of section 119.07(1), Florida Statutes, is subject to suspension and removal or impeachment and is guilty of a misdemeanor of the first degree, punishable by possible criminal penalties of one year in prison, or $1,000 fine, or both. See, State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001).
Section 119.10(1)(a), Florida Statutes, provides that a violation of any provision of Chapter 119, Florida Statutes, by a public official is a noncriminal infraction,
punishable by fine not exceeding $500. A state attorney may prosecute suits charging public officials with violations of the Public Records Act, including those violations which may result in a finding of guilt for a noncriminal infraction. Op. Att’y Gen. Fla. 91-38 (1991).
Does the unauthorized disclosure by a council member of information discussed during a “shade meeting” pursuant to s. 286.011(8), F.S., violate the Sunshine Law or have other legal consequences?
No, but:
The actions of the council member do not appear to fall under the proscriptions of s. 286.011(3), F.S., providing criminal penalties for violations of the Sunshine Law. Other possible provisions which could apply include s. 112.313(8) [disclosure of inside information] or s. 839.26 [misuse of confidential information] or s. 112.51, F.S. [authorizing suspension or removal from office for certain actions].
Informal Opinion to Robert Pritt, City of
Naples Attorney, issued November 26, 2014
Reveal Answer How well did you know this? 1Not At All 2 3 4
May four members of the board travel out
of state to conduct interviews of investment
consultants and their teams without violating the
Sunshine Law if they provide notice of the trip, set
up live interactive audio/visual feeds and refrain
from expressing impressions, taking votes or other
formal action?
No:
Informal Opinion to Robert Sugarman, Attorney
for Board of Trustees for City of Boca Raton Police
and Firefighters Retirement System, dated August
5, 2015
- May the Mayor of the City of Belle Isle (“Mayor”), who is a non-voting member of the Council, but who has veto power over ordinances and resolutions adopted by the Council, presides over all Council meetings, and has the right to participate in discussions regarding matters pending before the Council, privately meet with an individual Council member to discuss matters that foreseeably may come before the Council?
- May the Mayor, who is an ex officio, non-voting member of several municipal advisory boards and committees created by ordinance, resolution, or policy of the Council, meet privately with other members of those collegial bodies to discuss matters that foreseeably may come before those bodies?
No:
The Mayor is a non-voting member of the Council and a non-voting ex officio member of various municipal advisory bodies created by ordinance, resolution, or policy of the Council. Each of these collegial bodies is subject to the requirements of section 286.011(1), Florida Statutes, the Government in the Sunshine Law (“Sunshine Law”). Accordingly, the Mayor, when meeting with other members of these bodies on the subject of any business that may foreseeably come before the body in question, must do so in accordance with the requirements of section 286.011(1), that is, in a meeting (1) that is open to the public, (2) that has been called on reasonable public notice, and (3) the minutes of which are promptly recorded and open to public inspection. This precludes private communications with any member on the subject of any business that may foreseeably come before the body in question.
This office has previously addressed a mayor’s responsibilities under the Sunshine Law while serving on a city council or board. The focus has been the nature of the relationship between the mayor and the collegial body (in this case, the City Council and the advisory boards), and the extent to which the mayor contributes to the decision-making process.6
Clearly, discussions between a mayor and council members on issues that foreseeably could come before the council must be held in accordance with the Sunshine Law where the mayor is designated by charter as a full member of the council.7 Likewise, where an ex officio non-voting member of a council “is involved in decision-making . . . as a participant in meetings,” 8 conversations between the non-voting member and voting members of the council must be held in accordance with the Sunshine Law. Where a mayor has not been designated a council member but is still authorized to contribute to the decision-making process – such as through the ability to vote in order to break a tie vote of the council – this office has considered the mayor’s discussions with council members to be subject to the Sunshine Law.9
On the other hand, where a mayor is not a member of the council or board, has no voting authority, and otherwise does not contribute to the decision-making process, this office has opined that conversations between a mayor and a council member are generally not subject to the Sunshine Law.10 This principle is subject to the some exceptions. For example, an individual who is not a board member may still be subject to the Sunshine Law if he or she has been delegated authority by a board member to act on behalf of the board, or is serving as liaison in order to communicate between two board members.11
The Mayor as a Non-voting Member of the Council
Pursuant to the city charter for the City of Belle Isle, the Mayor “shall be a non-voting member of the city council” and “shall preside over all council meetings and shall have the right to take part in discussion[s] but may not vote.” The Mayor is required to “serve as presiding officer at any scheduled or specially held city council meeting,” and must approve or disapprove ordinances and resolutions adopted by the city council.
Here, the Mayor’s membership on the council alone is sufficient to subject discussions or meetings he has with members of the council to the Sunshine Law. The nature of the Mayor’s overall relationship to the council reinforces the conclusion that discussions by the Mayor with fellow council members of issues that could foreseeably come before the council are subject to the Sunshine Law. As a member of the council, the Mayor is required to preside over each city council meeting and has the right to take part in council discussions – in fact he “is an active participant in council discussions.”
An ex officio non-voting member of a council is subject to the Sunshine Law when authorized to participate in meetings and to influence the decision-making process of the council. Op. Att’y Gen. Fla. 2005-18 (2005).
“Since, pursuant to the [city charter], the mayor has or may have a voice in decision making by voting in case of a tie, I am of the view that the mayor is subject to the [Sunshine Law] when discussing matters which could come before the entire board and possibly involve him directly, through his power to break ties.” Op. Att’y Gen. Fla. 75-210 (1975)
True or False:
A candidate who is unopposed is not considered to be a member-elect subject to the Government in the Sunshine law until the election has been held.
True:
Attorney General Opinion 98-60
Informal AGO August 12, 2016
True or False:
There are no public records or open meeting exemptions for 911 or E911 communication systems.
False:
Chapter 20-13, Laws of Florida, amending ss. 119.071(3) and 286.0113, F.S. Creates a public records exemption for building plans, blueprints, schematic drawings, and diagrams, including draft formats, depicting the structural elements of 911 or E911 communication infrastructure used to provide 911 and E911 communications systems owned and operated by an agency. Also establishes an exemption for geographical maps indicating the actual or proposed locations of these systems.
–AND–
Creates an exemption for portions of meetings that would reveal exempt information, provided that the meetings must be recorded.
True or False:
Boards or commissions created by the Constitution which prescribes the manner of the exercise of their constitutional powers are not subject to s. 286.011, F.S., when carrying out such constitutionally prescribed duties.
True: - GOTCHA!
Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977)
(judicial nominating commissions are not subject to s. 286.011, F.S.).
Cf. In re Advisory Opinion of the Governor, 334 So. 2d 561 (Fla. 1976) (clemency power does not exist by virtue of legislative enactment; rather Constitution sufficiently prescribes rules for the manner of exercise of the power); and
AGO 77-65 (Ch. 120, F.S., inapplicable to Constitution Revision Commission
established by Art. XI, s. 2, Fla. Const.). Compare Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980), holding that the Parole Commission [now known as the Florida Commission on Offender Review, see s. 1, Ch. 14-191, Laws of Florida] which Art. IV, s. 8(c), Fla. Const., recognizes may be created by law, is subject to s. 286.011, F.S
However, Art. I, s. 24, Fla. Const., establishes a constitutional right of access to meetings of any collegial public body of the executive branch of state government by providing that such meetings must be open and noticed to the public unless exempted by the Legislature pursuant to Art. I, s. 24, Fla. Const., or specifically closed by the Constitution.
Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977). Article V, s. 11(d), Fla. Const., however, requires that EXCEPT FOR DELIBERATIONS, the proceedings of a JUDICIAL NOMINATING COMMISSION and its records are open to the public. While the deliberations of a commission are closed, such a limitation appears to be applicable to that point in the proceedings when the commissioners are weighing and examining the reasons for and against a choice. Inf. Op. to Russell, August 2, 1991.
True or False:
The failure to identify information furnished to a public agency as putatively exempt from public disclosure effectively destroys any confidential character it might otherwise have enjoyed as a trade secret under Fla. Stat. chs. 688.002(4)(b), 812.081(1)(c)
True:
It is the vendor’s responsibility to timely mark confidential information as trade secret. A conversation with a government employee is not enough to prevent the information from being made available to anyone who makes a public records request.
Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781, 785 (Fla. 1st DCA 2003).
True or False:
The Sunshine Law is not applicable to investigative inquiries of public boards or commissions.
False, as a general statement:
Unless there is a statutory exemption, the Sunshine Law is applicable to investigative inquiries of public boards or commissions. The fact that a meeting concerns alleged violations of laws or regulations does not remove it from the scope of the law. AGO 74-84; and Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973).
A number of statutory exemptions to the Sunshine Law have been enacted to close meetings of some agencies (usually state agencies) when those agencies are making investigatory determinations. For example, s. 112.324(2)(c)(d) and (e), F.S., provides that any proceeding related to a complaint, referral, or preliminary investigation conducted by the Commission on Ethics or other specified entities is exempt from open meetings requirements until the complaint
is dismissed as legally insufficient, the alleged violator requests in writing that the proceedings be made public, the Commission on Ethics determines that it will not investigate a referral, or until the Commission or other specified entity determines whether probable cause exists to believe that a violation has occurred. Compare ss. 455.225(4) and 456.073(4), F.S. (meetings of probable cause panels of the Department of Business and Professional Regulation and Department of Health exempt from Sunshine Law until 10 days after probable cause is found to exist or until
confidentiality is waived by subject of investigation).
