This Seems Obvious . . .

but if you're going to prove a violation of the Public Records Law -- an "unlawful refusal" in statutory parlance -- you have to prove that the record you requested, but were denied, actually exists. So said the Fourth DCA in the case of Hillier vs. City of Plantation, also reported at 935 So.2d 105 (4 DCA 2006).

Hillier, a former City Councilman, filed a petition for writ of mandamus and a complaint for injunctive relief alleging that the City had denied him access to public records. The court noted that Hillier submitted "quite a number" of public records requests and that the City had furnished access to "voluminous documents." Nonetheless, Hillier maintained that not all of the requested records had been made available to him.

The court required Hillier to make a list of the specific records which he claimed he had been denied, which he did. More thoughts on the list a bit further on. Hillier's list had twelve items.

However, Hillier was apparently not able to testify that any of these twelve records actually existed or was in the City's possession. The City's witnesses testified that some of the records did not exist. Moreover, the City's witnesses testified that they had never denied Hillier access to the public records he requested, "if they could understand what he wanted." The court did not elaborate further on this subtle point, but it suggests some confusion or lack of clarity as to the nature of the records that were being requested.

In any event, the court held that faced with conflicting testimony about the existence of the records and whether Hillier was or wasn't ever denied access, the trial court's credibility determination would not be disturbed on appeal.

Now, about that list. Sunshine proponents will usually claim that asking a requestor to submit a public records request in writing is a violation of the Public Records Law. That, of course, is nonsense -- merely asking is not a violation, although insisting on a written request as a condition of granting access likely would be. And most of the time the reason the government agency is asking for a written request is for the same reasons the court required Hillier to make one in this case -- to be sure all parties understand precisely what records are being sought. That seems so patently reasonable that I still struggle to understand why some folks find such a request offensive.

Public Records Seminar in Tampa April 11, 2007

Just a reminder, the Lorman seminar entitled "What You Need to Know About Public Records and Open Meetings" is scheduled for April 11, 2007, in Tampa. Here's all the details, the agenda and the distinguished faculty.

Hope to see many of you there. Bring some tough questions.

House Creates New "Office of Follow Our Own Rules"

Not to be outdone by Governor Crist and his new "Office of Open Government," the Florida House of Representatives today announced the creation of the new "Office of Follow Our Own Rules," which Speaker Marco Rubio insists -- cross his heart and hope to die -- was not at all related to this incident yesterday.

A Day at the Fair?

Much of my work in the public records and sunshine arena is in representing private organizations, generally not for profits, whose activities may give rise to questions regarding their status under the public records law or even the sunshine law. A "fair association" is a not for profit corporation authorized by Fla. Stat. sec. 616.001 to operate one of the seven (who knew?) types of statutorily defined fairs (community fairs, county fairs, district fairs, regional fairs, interstate fairs, specialized shows and state fairs).

There are at least fifty such fair associations chartered under Chapter 616, the most prominent being the Florida State Fair and our local favorite, the Florida Strawberry Festival. Many of the fair associations control large tracts of real estate (ever increasingly valuable real estate) and generate seven-figure revenues over the course of a year. Their stated statutory purpose, according to subsection (10) of the above-referenced statute, is "the benefit and development of the educational, agricultural, horticultural, livestock, charitable, historical, civic, cultural, scientific, and other resources of the state, any county or counties of the state, or any municipality or other community of any county of the state."

In connection with a series of claims that never quite developed, I had occasion to investigate the nature of these fair associations and any potential exposure under the public records and sunshine laws. The starting point for any analysis of the public records issue would be the venerable Schwab or "totality of factors" test, the elements of which are well known to folks in this area of practice.

Needless to say, I was fascinated by sec. 616.07(1), which provides that: "No member, officer, director, or trustee of a fair association shall be personally liable for any of the debts of the association; and no money or property of a fair association shall be distributed as profits or dividends among its members, officers, directors, or trustees, but all money and property of the association shall, except for the payments of its just debts and liabilities, be and remain perpetually public property, administered by the association as trustee, to be used exclusively for the legitimate purpose of the association, and shall be, so long as so used, exempt from all forms of taxation, including special assessments."

The provisions for no private gain, no personal liability and tax exempt status are pretty standard fare, but to my knowledge the express declaration highlighted above is unique in Florida law. Read the operative portion again: "all money and property of the association shall . . . be and remain perpetually public property, administered by the association as trustee." Now that would make for an interesting Schwab analysis.

More thoughts on fair associations later.

Clambake Anybody?

Although Informal Opinions from the Attorney General are, by definition, well . . . informal, this first effort from our new AG leaves much to be desired. The analysis, such as it is, fails to attempt anything but a cursory discussion of the Schwab factors and then manages to mangle some of them in the process.

Let's hope things get better.

"Crikey . . . now that's an exemption!"

It's always helpful, I think, to do periodic perspective checks on how and why we do the things we do. Apparently, the rest of the civilized world doesn't spend quite as much time wringing its hands over which government records should be exempt from public disclosure, or how best to accomplish that goal.

As reported by the St. Petersburg Times here, government officials in Queensland Australia have returned the original video of Steve Irwin's fatal stingray encounter to his widow and have destroyed all other copies.

There you go. Records exempt. Permanently.

New Office of Open Government Created by Governor Crist

As reported in the Tampa Tribune this morning, Governor Crist has by executive order created a new Office of Open Government to ensure compliance with Florida's open government and public records laws. You can read the Tribune article here. Executive Order 07-01 can be found here.

I'll refrain from any commentary for the moment and let the media continue to gloat. For some reason, though, the words "irrational exuberance" come to mind.

More thoughts later . . .