Legislative Developments . . . Scope of "Shade" Meetings to be Expanded?

HB 825 would expand the scope of the exemption from the Sunshine Law found in Fla. Stat. sec. 286.011(8) for attorney-client sessions, commonly referred to as "shade" meetings. As in, not in the sunshine.

The bill would expressly define "pending litigation" to include "matters which are the subject of a notice given to a governmental entity pursuant to s. 768.28 and for which a lawsuit has not yet been filed, and matters about which the governmental entity is contemplating litigation." This definition would be a departure from current law, which interprets the phrase "pending litigation" to mean . . . well . . . pending litigation. As in, a pending case.

This change recognizes that an agency should be able to discuss threatened litigation with its attorneys in private, and a notice under s. 768.28 is the appropriate trigger for such a provision. When a potential plaintiff sends the required notice of intent to sue a government agency, there's no reason the agency shouldn't immediately be permitted to seek confidential legal advice of its own.

It also recognizes that an agency contemplating litigation should be able to seek private legal counsel in advance of filing suit. Again, it's hard to find anything wrong with that concept.

In fact, the proposed change seems to bring the attorney-client meetings exemption more closely into line with the attorney-client records exemption found in Ch.119, which incorporates the notion of "imminent" civil or administrative proceedings. Doing so addresses the unusual state of the current law, in which a record may be exempt under the attorney-client exemption in Ch. 119, but a meeting to discuss the same matter wouldn't be exempt under Ch. 286 because the case hasn't yet been filed.

Current Status: Referred to the Committee on State Affairs as of March 8, 2007.