Every year about mid March, Florida celebrates Sunshine Week. For decades, Florida has been the envy of the other 49 states for our long-established state statutes protecting public access to records and meetings. While our position as a leader in open government is slipping with exemptions and Legislative efforts to limit public access, Florida remains the Sunshine State on public meetings and records.
What is the Sunshine Law? It is a combination of state laws that provide the right of access to governmental proceedings at both the state and local levels. The Florida Open Meetings Law (FL Stat. Sec. 286) covers public meetings. Florida Public Records Law (FL Stat. Sec. 119) covers public records. Together they are known as the Sunshine Law.
Any time two or more members of the same board discuss any matter that may come before that board, that conversation must be open to the public, given reasonable public notice and minutes recorded. Sunshine Law demands it.
I didn’t say “meeting” because the law applies any time two members of a board have a discussion. They run into each other at the gym – they cannot legally discuss any topic that may come before their board. Or if the meeting has been adjourned, they can’t linger in the hallway or parking lot after a meeting discussing something that was on that day’s agenda. They can’t text each other, or comment on each other’s Facebook page or call each other on their personal cell phones. They can discuss any topic they choose to their heart’s content with non-board members, but not other board members. And those non-board members are not allowed to carry messages from one board member to another. That’s called daisy chaining and is illegal. Members of all public boards, whether elected, appointed or volunteer, are urged to limit their discussion of any possible agenda item topic with other board members to publicly noticed meetings.
The Florida Legislature, while covered by the Sunshine Law, is allowed to set their own rules, so the sun doesn’t shine as bright in the Capitol as it does for local governmental bodies.
The Florida Supreme Court defined public records as all materials created or received in connection with official business. Records are not limited to paper documents. Audiotape, CD, MP3, DVD, film or sound recordings are pubic records, subject to inspection unless a statutory exemption applies. We’ll come back to exemptions in a minute.
Texts, voicemails and phone records to and from elected officials about the board’s business are public records also. Both their public and personal devices are subject to search by the records custodian of that board if a records request is submitted. The one requesting the record does not get to examine personal devices, but the records custodian is required by state law to do so to check for and retrieve any public records. The records custodian is not allowed to accept an elected official’s statement that their personal device has no public business on it. Some agencies do a great job of archiving all communication by elected officials on public business; some do not.
Does this all sound intrusive? If so, take a few minutes and imagine that a couple of elected officials are interested in having their board buy a piece of over-priced equipment from a company they are silent partners in. Without the Open Records law, they might get away with profiting from their position on the board.
Or imagine a complex issue comes before a board for the first time. A quick vote is taken and it passes unanimously. Or maybe a manager is fired for undisclosed reasons and a new one hired, all with minimal discussion or explanation. That would make you suspect that there had been some conversation between board members prior to that meeting on the topic of firing the manager, wouldn’t it? These are the reasons the Public Records law exist.
While it is often the press that relies on the Sunshine Law, it is in the service of informing the public. Members of the public can access the exact same meetings and records that the media does. In fact the Sunshine Law does not refer to the media at all, it refers to the “public.”
This public access does not always work seamlessly. There are annual attacks on the Sunshine Law by the State Legislature. They have succeeded in adding 1,119 exemptions to the Sunshine laws already and have another 59 in the works this session.
The cost of requested records can be used to effectively block access to them. The state provides guidance on how much a government entity may charge for records but abuses of the “reasonable service charge” are frequent within our state.
Sunshine Law exists to allow everyone to oversee their government. That right to attend meetings and see records is a key piece of oversight we all have over our government.
We should all be vigilant that our right to open government is not nibbled away by one exemption after another.