Partly Cloudy: Florida's Sunshine and Public Records Laws

PARTLY CLOUDY is moving . . .

2010-07-16T08:24:00.002-04:00

Please look for us at our new home on Word Press, whcih you can find here. Thanks as always for your support and I look forward to continuing our work at the new site.

Obama's Closed Meeting on Open Government???

2009-12-06T11:54:00.005-05:00

In the "I can't make this stuff up" department, the Obama administration, having previously pledged to be the most "transparent" administration in history, will be conducting a workshop for government agencies concerning their obligations under the federal Freedom of Information Act (FOIA).

The meeting is closed to the public.

The AP/Google News report is here.

City of Venice Ordered to Pay $703,500 in Attorneys Fees

2009-09-26T10:16:00.004-04:00

The City of Venice has been ordered to pay Anthony Lorenzo's attorneys a combined $703,449.50 in attorneys fees to two law firms for the recently concluded public records litigation. The Court's order, issued Friday September 25th, is here.

The fee award was substantially less than the $2,000,000 plus that the plaintiffs' attorneys had requested. Attorney Andrea Mogensen was awarded $343,680 or about 82% of the $420,286 worth of time that she claimed to have devoted to the case. The Carlton Fields firm, who joined Mogensen as co-counsel after the case was filed, was awarded $359,769.50 or about 85% of the $422,285 that it logged in time on the matter in a mere five months.

The Court denied the attorneys' request for a multiplier, or "enhancement," of the fee that would have pushed the amount well into the millions. The Court also denied the attorneys' request to be paid for the time they spend litigating with the City over the amount of fees to which they were entitled, which likely means that Mogensen and Carlton Fields will have to pay the attorney who represented them in the fee litigation out of their respective awards. Both rulings are sound and supported by applicable Florida law.

The order also awarded Lorenzo's attorneys about $42,000 in court costs, putting the City's total obligation at close to $750,000.

Media coverage can be found here, here and here.

More analysis to follow . . .

Lorenzo v. City of Venice Expert Attorneys Fees Testimony

2009-09-17T08:34:00.002-04:00

Your humble servant testified earlier this week as an expert on behalf of the City of Venice in the attorneys fees hearing arising out of the recent public records and sunshine litigation over the City's email practices and related matters. The Charlotte Sun article is here. The Sarasota Herald-Tribune coverage is here.

Judge Bennett has the matter under advisement, but from what I heard and saw in the courtroom, I don't expect him to take very long to render a decision. Until his decision issues, however, I will refrain from making any further observations on the proceedings.

I'll post the order as soon as it comes out and then share some thoughts on the matter.

PSC Suspends Text Messaging After Criticism

2009-09-10T09:11:00.004-04:00

The Florida Public Service Commission has suspended the use of text messages on all agency-issued Blackberries and phones after recent criticism that such messages were not be stored in accordance with the public records law. Miami Herald article is here.

NCAA vs. Chapter 119 . . .

2009-07-28T09:38:00.002-04:00

My litigation schedule has been keeping me away from blogging for too long, a condition that may well continue for a while. But this one is too good to pass up: is the NCAA, the governing body for major collegiate athletics, subject to Florida's public records laws? A circuit judge in Tallahassee will decide soon, as reported here.

Nonpayment of Fees for Public Records May Preclude Subsequent Requests

2009-02-22T16:15:00.002-05:00

In Lozman v. City of Riviera Beach, the Fourth District considered a case in which Lozman had requested records from the City but then failed to pay the undisputed charges of $233.50. Because he failed to pay, the City never furnished the records to him. When he sought additional records, the City refused to comply until Lozman paid the amount due for the previous records request.

Lozman sued for a writ of mandamus, contending that the City's refusal to supply the records was a violation of the public records law. As stated by the Fourth District, the only issue in the case was "whether the City could require him to pay the past due fees before complying with his subsequent requests."

That question was not directly answered by the opinion. Rather, the Fourth District found that Chapter 119 "does not require the City to do any more than what it did in this case" and denied the petition for writ of mandamus.

Sunshine & Public Records Seminar in Tampa April 21, 2009

2009-02-21T09:59:00.002-05:00

The Lorman Education Services seminar entitled "What You Need to Know About Public Records and Open Meetings" is scheduled to be held in Tampa on April 21, 2009. Here's all the details, the agenda and the distinguished faculty.

Hope to see you there.

Venice Email Shenanigans

2009-02-18T22:04:00.002-05:00

I haven't devoted much time to chronicling the ongoing litigation involving the City of Venice and its email, but the Sarasota Herald Tribune has done an excellent job of it. See selected articles here, here, here, here and here. There's plenty more on the Herald's website. The coverage has been comprehensive and is likely to garner a Pulitzer nomination.

New York Times Contemplates the Spectre of Too Much Sunshine . . . Hell Reportedly Frozen Over

2009-02-08T17:53:00.002-05:00

Although I try to limit this blog to matters specifically relating to Florida's open government laws -- and we have more than enough material -- some things are just too good to let pass by without comment.

In this article, the New York Times laments that, "information collected through disclosure laws intended to increase the transparency of the political process, magnified by the powerful lens of the Web, may be undermining the same democratic values that the regulations were to promote." In other words, now that all that information we demanded public access to is actually accessible to the public, it might not be such a good idea.

Imagine.

No Surprise Here - Commission's Report Being Favorably Received by the Media

2009-02-01T15:45:00.004-05:00

Given that the numerous recommendations in the Final Report of the Commission on Open Government Reform lean almost entirely towards more "openness," it's no surpirse that the report is being favorably received by the media. The St. Pete Times' editorial from this morning's paper appears here.

"Reforming Florida's Open Government Laws in the 21st Century" . . .

2009-02-01T15:40:00.003-05:00

is the title of the just-issued Final Report of the Commission on Open Government Reform, which is available here.

The Final Report is quite lengthy (about 200 pages) and contains numerous recommendations that will no doubt promptly be implemented by the Governor, to the extent he is able to do so unilaterally by Executive Order or otherwise, and by the legislature in the next session.

I'll be posting separately on specific issues and recommendations covered in the Final Report.

Nothing to Get Me Back in Blog Mode . . .

2008-10-17T10:39:00.002-04:00

. . . like a $15,000,000 service charge for a public records request!

To see how Alaska Governor Sarah Palin's office calculated that fee for requests for her official emails, check out this article from MSNBC.

Hope to back to blogging public records issues more regularly some time soon. Stay tuned.

Service Charge for Records May Include Salary Plus Benefits

2008-01-26T13:08:00.000-05:00

In this case from the Second DCA, the court examined the legislative history of the provisions of Ch. 119 that authorize agencies to charge for "extensive" clerical or supervisory time required to respond to public records requests and decided that such a charge may be based upon the salary plus benefits of the agency employees whose time is required to respond to such requests.

The court also expressly approved the practice of requiring an advance deposit before the agency undertakes the work necessary to respond to a records request.

The opinion tacitly approves of an agency rule or policy that defines "extensive" for these purposes as any request requiring more than 15 minutes of the agency's time to respond to it and also clarifies and confirms that the service charge applies irrespective of whether the request is for copies of records or merely for inspection.

When is a "Notice of Claim" not a Part of a "Claims File"?

2007-11-07T17:10:00.000-05:00

Why, when the Attorney General doesn't want to have to say that the notice of claim is exempt from disclosure under the Public Records Law.

In AGO 2007-47, the Attorney General considered a seemingly simple question: Is the notice of claim required under Fla. Sta. §768.28 as a condition precedent to a tort suit against an agency exempt from disclosure under Fla. Stat. §768.16, which exempts "claims files" from the Public Records Law?

Anybody who sues or defends agencies in Florida is familiar with the notice of claim required under the waiver of sovereign immunity statute. Presumably, such a notice of claim upon receipt by an agency prompts the creation of a file related to the claim . . . commonly referred to as a "claims file." The first logical piece of paper that goes into the claims file is, of course, the notice of claim.

For some reason, the Attorney General struggled with the notion that "claims file" must necessarily include the things in the claims file . . . like the notice of claim. You really have to read this one for yourself.

Property Owners Association Exercising Delegated Authority

2007-11-07T17:01:00.000-05:00

In AGO 2007-44, the Attorney General explained that a property owners association was subject to operation under the Sunshine Law when it was performing duties delegated to it by a Municipal Services Taxing Unit.

Elected Officials Exchanging Documents . . .

2007-08-28T20:29:00.001-04:00

is no problem, according to the Attorney General, as long as they don't comment on or respond to the documents sent to them by other members of the same board. See AGO 2007-35.

1st Carnival of Open Records is Up and Running

2007-08-02T15:31:00.001-04:00

For a collection of the best public records and sunshine posts from around the blogosphere, see the 1st Edition of the Carnival of Open Records.

Litigation Exemptions in the Legislative Claims Bill Process

2007-07-14T15:58:00.000-04:00

In Wagner v. Orange County, the Fifth DCA considered the statutory exemptions for attorney-client records and risk management claims files in the context of a legislative claims bill. The court's extensive discussion of the nature of the claims bill process is worth the read.

Workers Compensation Cases - Statutory Exemptions

2007-07-14T15:30:00.000-04:00

In this recent decision, the First DCA addressed the public records exemptions in Fla. Stat. ss. 443.171(5) and 443.1715(1) and affirmed the trial court's denial of a writ of mandamus requiring the production of notices of workers compensation hearings in the absence of proper redaction of identifying information.

State of Florida Agency for Workforce Innovation v. Mitchell S. Ritchie, P.A., 951 So.2d 111 (Fla. 1 DCA 2007).

Hospital Strategic Plans

2007-07-14T14:55:00.000-04:00

In AGO 2007-28, the Attorney General discussed sunshine and public records issues regarding the strategic plans of leased public hospitals. Much recent sunshine and public records law litigation, including some in which I've participated, has involved public hospitals leased to private organizations under the provisions of Fla. Stat. s. 155.40, and the issue is worthy of a more comprehensive post, which I'll endeavor to bang out sometime soon. For now, this AGO has a pretty good discussion of some of the issues that typically arise.

Attorney-Client "Shade" Meetings

2007-07-14T14:41:00.000-04:00

In AGO 2007-31, the Attorney General opined that a closed attorney-client meeting permitted under Fla. Stat. s. 286.011(8), sometimes referred to as a "shade" meeting, could properly be called if the agency attorney requests the closed session at any properly noticed meeting of the board, irrespective of whether it is a regular meeting or a special meeting. That's certainly a reasonable interpretation of the statute, which doesn't specify at which type of meeting such a closed session may be requested. It also kind of makes you wonder about what's really behind the request for this opinion from the AG.

Manatee County Goes Live With E-Access to Court Records

2007-07-04T14:26:00.000-04:00

Also from the current issue of The Florida Bar News, word that Manatee County Clerk of the Court has gone live with a new pilot program for electronic access to court records. Read the article here.

Classic Commercial Use of the Public Records Law

2007-07-04T14:08:00.000-04:00

As reported here in the current issue of The Florida Bar News, internet company Avvo.com has announced that is has obtained the disciplinary records of all Florida attorneys through a public records request and will be adding that information to its lawyer rating site in the near future.

The article presents a fairly balanced discussion of the issue and there are points to be made on both sides of the question. Irrespective of how one may feel about this, it's further evidence that information has become a mere commodity -- and that many of the more "noble" arguments advanced on behalf of open government laws may have little to do with much of the very commercial nature of the modern information age.

Local Health Councils Subject to Sunshine Law?

2007-07-02T12:27:00.000-04:00

In AGO 2007-27, the Attorney General opined that local health councils authorized by Fla. Stat. §408.033 are subject to the Sunshine Law.

Journalist Suggests Public Records May Be "Too Public"; In Other News, Pigs Fly

2007-06-30T09:44:00.000-04:00

In this interesting article by Jason Fry of the Wall Street Journal Online, which surely amounts to some form of media heresy, Fry actually suggests that some forms of modern technology that provide immediate and virtually unlimited access to "public" records could, well, be a bad thing.

Wow . . . did a journalist just suggest that public records can actually be "too public"?`

Public Tongue Lashing for Jax City Council

2007-06-30T09:12:00.000-04:00

As reported here, the Jacksonville City Council received a well-deserved and highly public scolding from State Attorney Harry Shorstein last week. The mess in Jacksonville has yet to be cleaned up and is likely to get worse before it gets any better.

Jacksonville City Council Under Investigation . . .

2007-06-24T14:55:00.000-04:00

for flagrant and ongoing violation of the Sunshine Law on a regular basis. For details, see the Times Union's coverage here, here, here, here and here.

A grand jury is currently considering the matter. Early prediction: indictments forthcoming.

Governor Appoints Commission of Foxes to Guard Hen House

2007-06-24T14:20:00.000-04:00

Well, officially it's the Governor's Commission on Open Government, but given the makeup of the Commission you could probably predict with reasonable accuracy the substance of the recommendations that are likely to issue from this group.

Here's Executive Order 07-107 creating the Commission. Here's the Commission's membership and meeting schedule.

And some selected -- and predictable -- media reaction can be found here, here and here.

I'll of course be following the activities of the Commission and posting as developments warrant.

Chapter 2007-39, Laws of Florida, Amending Chapter 119

2007-06-21T14:16:00.000-04:00

Here's Ch. 2007-39, Laws of Florida, as enacted in the last legislative session. Records custodians, take note.

Kudos to the Legislature - Your Open Records Laws at Work

2007-06-13T09:47:00.000-04:00

If you've spent any time here, you know that I won't hesitate to criticize actions or decisions that continue to extend the open government laws beyond the government. But at heart, I'm all in favor of just about all routine GOVERNMENT records being available -- and easily and cheaply available -- to us, the governed.

So here's kudos to the Florida Legislature (don't get the opportunity to say that much) for having lots of important documents pertaining to the ongoing tax reform debate and special session available for easy access on its website. Access the tax reform documents here.

Many Thanks . . .

2007-05-25T14:32:00.001-04:00

to Tampa attorney Matt Conigliaro, the grandaddy of legal bloggers around here, for this very kind mention in his outstanding blog, Abstract Appeal.

Back in Blog and Hoping to Catch Up . . .

2007-05-25T14:29:00.000-04:00

Well, just settled a case that was set for trial in St. Petersburg next week. Better to get it done on the Friday before a long holiday weekend than on the Tuesday after. I'll be working hard to catch up on other things. Like other cases. And the blog.

Stay tuned . . .

HB 541 Now Clarified - Records Custodians Must Now Both "Acknowledge" and "Respond" to Requests

2007-04-29T17:29:00.000-04:00

Here's the engrossed version of CS/HB 541, which appears headed for passage and sure signing by the Governor. The Committee Substitute clarifies an important point that this blogger (and no doubt others) had raised when the original bill was filed. Under the amended version of the bill, records custodians must now "acknowledge" requests "promptly" and then "respond" to requests "in good faith."

The clarification is a positive development, as the earlier version of the bill had seemingly changed the well-established requirement to respond to requests within a reasonable time in a manner that seemed to defy explanation. But I'm not too sure the requirement to "acknowledge" requests promptly is anything but a "feel good" provision. My prediction (and my advice to my public clients) is that records custodians will now issue form letters in response to records requests that say something like this: "Thank you for your public records request which was received by this office on [date]. We will respond to your request within a reasonable time." And that accomplishes what, exactly?

The new requirement also raises another issue. Records proponents will claim that even asking for a requestor's personal information -- like a name and contact information -- is a violation. It isn't (although making such information a condition of producing records might be). But the new legislation seemingly would require a records custodian to ask for such information . . . how else can he or she "acknowledge" the request? So maybe asking for that basic information from a requestor isn't such a big deal, after all.

13th Circuit State Attorney Gets Tagged for Fees in Public Records Dispute

2007-04-29T17:19:00.000-04:00

In this recent decision from the Second District, the State Attorney for the Thirteenth Judicial Circuit gets tagged for attorneys fees (including appellate fees for two appeals) based on its failure to respond to a public records request from an inmate. The opinion reveals some systemic problems in the prosecutor's office in terms of its handling of records requests, which no doubt will be addressed by Mark Ober in short order.

Sarasota City Manager Search on Shaky Ground?

2007-04-21T09:02:00.002-04:00

Buried at the end of this article from the Sarasota Herald-Tribune, the gist of which is that former Largo City Manager Steve Stanton has applied for the open City Manager position in Sarasota, is a brief discussion of the search process being conducted by the City through a private consultant. The process is typical and, if handled improperly, can easily run afoul of both the Sunshine Law and the Public Records Law.

Here's the text of the end of the article:

Sarasota's search for a new manager is being conducted by Winter Haven-based The Mercer Group, Inc.The firm received about 50 applicants for the city manager position.Sarasota spokeswoman Jan Thornburg said the city could not immediately supply the names of the candidates because the applications were sent to the consultants in Winter Haven.The Mercer Group is still sorting the Sarasota city manager applications out from other applications, Thornburg said. She did not know when they will be available for public review.The Mercer Group is scheduled to screen applications next week before presenting semi-finalists to commissioners.

Hmmm . . . they can't produce the applications because they're still "sorting" them. But they have apparently "sorted" them enough to know how many there are? Sound like an unlawful refusal to produce records?

And the private consultant will be "screening" the applications before presenting "semi-finalists" to the City? ill that screening process take place at a properly noticed public meeting? If not and if the consultant will be winnowing the field, ranking the applicants or eliminating applicants from further consideration based on anything but purely objective criteria, then a potential Sunshine violation is looming.

Let's follow this one and see how it plays out.

Records Custodians Take Note . . .

2007-04-20T18:10:00.001-04:00

HB 541 continues to sail through the Florida House of Representatives, voted favorably out of the Government Efficiency and Accountability Council with a committee substitute on April 18, 2007. I haven't been able yet to find details of the committee substitute. Here's the current status of the bill.

In a prior post I expressed my concerns over provisions in the bill that seem clearly intended to subject records custodians to an obligation to do more that what is merely reasonable in responding to public records requests. The new duty to respond "promptly" remains undefined in the bill, but the Staff Analysis report makes clear that whatever "promptly" means, it means something faster than "within a reasonable time."

In recent days, I've heard open government advocates advance different positions on the bill and its requirements. Some have argued that the bill doesn't change the current obligation to produce records within a reasonable time, but merely adds a new requirement to "respond" to records requests sooner. Of course, the bill doesn't say that at all . . . nothing in the bill defines what it means to "respond" to a records request and the bill certainly doesn't expressly indicate that it is intended to create a new two-step procedure to deal with public records requests. Besides, if that's all this bill intends to accomplish, it will accomplish nothing: agancies will just send all requestors a form letter that says "Thank you for your public records requests. We will produce any non-exempt records within a reasonable time." What does that accomplish?

Others have suggested that "promptly" doesn't mean anything different than "within a reasonable time," despite the conclusion to the contrary in the House's own analysis. That's just plain disingenuous.

The bill appears headed on its way to passage and there's little doubt that the Governor will sign it. So we'll apparently be litigating some new issues about the duty of public records custodians in the near future.

I remain concerned about the practicalities of the bill. But I am far more concerned about the larger philosophical question raised by holding often lower level government employees to a higher standard of conduct that simple reasonableness. Think about this . . . a police officer can shoot you dead if he reasonably believes that you intend to shoot him. A city or county can take your private property away from you through eminent domain if it can show a reasonable necessity for the project and the property. A government agency can abridge your First Amendment right to speak freely on government-owned property through he adoption of reasonable time, place and manner restrictions. Anybody see a pattern here?

So, if we only require the government to act reasonably when its actions impair our most fundamental rights -- life, liberty and property -- why in the world should we hold a records custodian to any higher standard? Please . . . somebody explain this to me . . . . my head is about to explode.

And records custodians . . . the Legislature is doing this to you. Speak now, or forever hold your peace.

Never Expected to Use the Word "Transgendered" in a Post . . .

2007-04-20T17:33:00.000-04:00

but according to this account in today's St. Petersburg Times, former Largo City Manager and self-proclaimed transgendered person Steve Stanton (now apparently known as Susan Stanton according to this report) is in hot water with the City of Largo for allegedly deleting public records from a City-owned laptop computer. Apparently, a forensic examination of the laptop indicated that files had been deleted, and Stanton was also known to have used portable memory devices or "memory sticks" with his laptop and has refused to turn those devices over to the City. Stanton denies that he deleted any public records.

Sordid details of the story notwithstanding, it does illustrate a couple of good points. First, personal records are not public records, even if they are made or received on a city-owned computer. Conversely, records that are made or received in connection with official agency business are public records, irrespective of who owns the computer on which they are stored. It's pretty much that simple.

Legislative Update . . . Records Custodians Can No Longer Comply By Acting Reasonably? Say What?

2007-04-08T14:22:00.000-04:00

HB 541 would create new duties and obligations for records custodians, most of which seem innocuous if not completely reasonable. These include things such as requiring each agency to designate a custodian of public records and provide appropriate notice of who the designated custodian is. No problem so far.

It would also prohibit any person who is not a designated custodian of public records from denying the existence of a public records or misleading anyone as to the existence of such a record. Is this really a big problem? Are public employees running around willy nilly denying that records exist? And, more to the point, isn't that already a violation of the public records law . . . assuming that after such a denial comes a refusal to produce the supposedly non-existent record? And why are these burdens being placed on persons other than the designated custodian of records? If a public employee not charged with the duties of the custodian "misleads" somebody as to the existence of a public record -- and notice the complete lack of any intent requirement in the statute -- has some new form of violation, or perhaps even a criminal infraction, been committed? And what exactly is required to "mislead" somebody as to the existence of a record? Here comes a runaway litigation train . . .

As bad as all that is, it's nothing compared to the supremely bad, ridiculously stupid, moronically misguided idea embodied in this seemingly innocuous sentence: "A custodian of public records and his or her designee must respond to requests to inspect or copy records promptly and in good faith." That seems harmless, until you read the House Staff Analysis report here. As the Staff Analysis makes clear, "promptly" as used in this bill means something faster than "a reasonable time," which is what the law currently requires and expects of agencies responding to records requests. Let that sink in . . . it will now no longer be sufficient for agencies to respond to records requests within a reasonable time. In fact, responding within a reasonable time is now patently insufficient and in fact would constitute a violation of the Public Records Law.

A retired partner of mine who spent a career dealing with local government issues used to have a sign on his wall that said "No man's life, liberty or property are safe while the legislature is in session." Seems fitting here . . . only our Florida legislature could actually criminalize acting reasonably.

Current Status: Voted favorably out of the Committee on State Affairs; now pending in the Government Efficiency and Accountability Council.

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

2007-04-08T13:33:00.001-04:00

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.

Economic Development Agency Records

2007-04-08T13:09:00.002-04:00

In AGO 2007-15, the Attorney General discussed the confidentiality provisions relating to records of economic development agencies. The opinion is a straightforward discussion of the exemption found in Fla. Stat. sec. 288.075(2).

In an interesting twist, the Attorney General was asked specifically whether the written request for confidentiality itself was exempt under the statute and whether the statutory confidentiality precluded the agency from citing to the exemption when responding to a public records request. The opinion advises -- correctly, I think -- that the written request for confidentiality may be itself confidential and exempt, if it contains information that the statute is intended to protect, and that the express requirement in Chapter 119 that a records custodian cite to any applicable exemption being relied upon to withhold records from production means that citing to the exemption provision of the statute can't be a violation of the confidentiality requirement.

If My Math is Right . . .

2007-04-08T12:26:00.000-04:00

then the Tampa Bay Convention and Visitors Bureau paid $14,000 per week in attorneys fees for its two-week delay in producing records relating to its work on the unsuccessful bid to host the 2008 Republican National Convention. Here's the account as reported in the Tampa Tribune, which brought the suit against the Bureau.

According to the Trib, "The bureau contended it’s not a governmental entity and therefore not subject to the state open records law. The Tribune argued that the bid is a public record because the city delegated to the bureau the governmental function of preparing the bid. The bid spelled out how millions in public money would be spent to host the GOP convention."

Given what I know about the structure and operation of the Bureau, I'm not so sure I would have caved on the legal issue as quickly as what seems to have happened here. And $28,000 is a pretty hefty price to pay for what looks like it amounts to an "Oh never mind" legal strategy.

Legislative Update Coming Soon . . .

2007-03-26T11:00:00.000-04:00

There are a number of interesting bills working their way through the current session. I'll have an update on some of them posted soon.

Overlapping Board Membership and the Sunshine Law

2007-03-04T10:16:00.000-05:00

In AGO 2007-13, the Attorney General addressed the recurring issue of overlapping board membership and the implications of the Sunshine Law. Here, two Washington County Commissioners served as board members of the West Florida Regional Planning Council. A concern was raised that discuss at a planning council meeting a matter that might later come before them at the County.

After discussing the applicable provisions of the Florida Regional Planning Council Act, including the provisions that expressly require members of the local general purpose governments to serve on such councils, the Attorney General concluded that the two County Commissioners could take part in the regional planning council meetings without violating the Sunshine Law.

If you're interested in this issue, you'll also want to read AGO 98-14.

City Emails Are Public Records . . . Even With a bcc

2007-03-04T09:58:00.000-05:00

In AGO 2007-14, the City Attorney for the City of Indian Rocks Beach inquired about emails sent from City Commissioners that contained "undisclosed or blind recipients." The Attorney General properly concluded that such emails, as well as the email addresses of any "blind recipients," were public records under Chapter 119. No big surprise there, and not really sure why anybody would ever think otherwise. Maybe there's more to this story than meets the eye.
In any event, here's a gratuitous plug for my law school classmate Andy Salzman, the City Attorney for the City of Indian Rocks Beach (and some others).

No Media Bias Here . . .

2007-02-27T10:02:00.000-05:00

In anticipation of "Sunshine Sunday," now a part of the even larger "Sunshine Week," the media-concocted, self-aggrandizing event, the Tampa Tribune has been printing an invitation for readers to share their stories of "problems or successes" in obtaining government records.

Here's the lead-in to the invitation, which has been running each day on the Op-Ed page: "Florida's commitment to open government is one of the state's greatest strengths, but every year the Legislature tries to weaken public access by passing exemptions to Florida's Sunshine Laws." So you see, no matter how important the public policy behind an exemption may be and no matter how significant the interest protected by an exemption is . . . to the media it's just another attempt by the Legislature "to weaken public access."

Yes, and I suppose that laws that make it illegal to sell firearms to convicted felons are intended "to weaken the Second Amendment rights" of such folks. Guess it's all just a matter of perspective. And it's fine for the media to have their own point of view on such matters . . . but let's not even pretend that the media is objective about these things.

And does anybody want to make a small wager as to how many "successes" get written about during Sunshine Week?

A Little Legislative Sunblock?

2007-02-18T10:24:00.000-05:00

Open government advocates and media types reflexively cringe at the suggestion that there is such a thing as too much access to public records, but the Legislature should get credit for recognizing in recent years that there must be an appropriate balance struck between open government on the one hand and other legitimate concerns on the other. Here's the most recent example.

As part of the amendments to the Electronic Mail Communications Act, Chapter 668 of the Florida Statutes, the Legislature in 2006 enacted the following requirement in Fla. Stat. sec. 668.6076:

Any agency, as defined in s. 119.011, or legislative entity that operates a website and uses electronic mail shall post the following statement in a conspicuous location on its 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 send electronic
mail to this entity. Instead, contact this office by phone or in writing.

Now, getting lots of unwanted email is certainly inconvenient, wastes time and resources and carries at least some potential for damage to personal property through viruses and other sinister technological weapons, but most folks wouldn't put preventing "spam" in the same category as, say, protecting against unauthorized use of Social Security Numbers or the unwanted distribution or publication of a loved one's autopsy photographs (both of which the Legislature has addressed in recent measures).

So, if open government is such a good thing . . . why do we have to warn people about it?

Email Confusion in Tallahassee

2007-02-13T20:34:00.000-05:00

Got a chuckle out of this comedy of errors, in which some of former Governor Bush's archived emails were temporarily "misplaced," then found. All's well that ends well, I suppose.

Boys Will Be Boys . . .

2007-02-01T08:12:00.000-05:00

A little short on time this morning, so here's the short version of the mess that's been working its way through the system over on the east coast: State Attorney's 20-something daughter gets arrested and ends up in a restraint device at the local jail. Daddy/State Attorney commences an investigation of the jail and the Sheriff's office. Another local State Attorney convenes a grand jury to investigate the Daddy/State Attorney's investigation of the Sheriff. Grand jury returns no indictment. Daddy/State Attorney/Subject of the grand jury investigation moves to have portions of the presentment expunged or sealed under the provisions of Chapter 905, Fla. Stat. Local media oppose the motion, as do the prosecuting State Attorney and local Sheriffs from surrounding counties. Yikes.

The motion to expunge or seal portions of the presentment remains pending in Flagler County Circuit Court. Here's today's report from the Daytona Beach News-Journal, whose reporter consulted with your humble blogmeister for some insight into the confidentiality of grand jury presentments.

This Seems Obvious . . .

2007-01-27T18:12:00.001-05:00

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

2007-01-27T17:28:00.001-05:00

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"

2007-01-19T07:49:00.000-05:00

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?

2007-01-18T07:40:00.000-05:00

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?

2007-01-15T18:48:00.000-05:00

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!"

2007-01-06T10:05:00.000-05:00

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

2007-01-04T09:10:00.000-05:00

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 . . .

HAPPY NEW YEAR . . . Back in blog mode soon

2006-12-31T17:50:00.000-05:00

Happy New Year to all of our Partly Cloudy friends and supporters. I'll be back in blog mode after the new year.

A New Attitude in Tallahassee?

2006-12-11T21:12:00.000-05:00

As widely reported today, Governor-elect Charlie Crist promises -- dare I say it? -- a "kinder, gentler" administration when it comes to the Public Records Law and open government. Here's the Tampa Tribune's account.

For the moment, I'll restrain myself and not comment on the so-called compliance "surveys" conducted by the First Amendment Foundation and its media accomplices . . . er . . . members.

Can the Right of Access to a Public Meeting Be Waived?

2006-11-28T18:35:00.000-05:00

I can visualize my media-oriented colleagues cringing as I type these words. "Of course," they will protest, "the right of access can never be waived. Why, it's even preserved in the Constitution!" Indeed, it is. But consider the recent discussion by the Florida Supreme Court in this case involving a proposed Bar rule implementing the contingency fee limitation adopted by Constitutional amendment in the November 2004 election:

"The comments in opposition to the Bar’s proposal center around two main issues: first, whether the right granted in the constitution may be waived; and, second, whether the courts must approve any waiver. The first contention is that the personal right granted to medical liability claimants by article I, section 26 may never be waived because it embraces certain policies that are beyond the control of the claimants themselves. We note, however, that on its face, article I, section 26 unquestionably creates a personal right, one for the direct benefit of a medical malpractice claimant. It is entitled “Claimant’s right to fair compensation” and provides that “the claimant is entitled to receive” the stated percentages of the damages. Art. I, § 26(a), Fla. Const. Further, the Bar and other commentators point out that most personal constitutional rights may be waived. See In re Shampow’s Estate, 15 So. 2d 837, 837 (Fla. 1943) (“It is fundamental that constitutional rights which are personal may be waived.”); see also City of Treasure Island v. Strong, 215 So. 2d 473, 479 (Fla. 1968) (“[I]t is firmly established that such constitutional rights designed solely for the protection of the individual concerned may be lost through waiver . . . .”). Numerous instances of judicial recognition of the right to waive constitutional rights have been cited to the Court. For example, even the most basic fundamental constitutional rights, such as the Fifth Amendment right to remain silent and the Sixth Amendment right to counsel may be knowingly and voluntarily waived. See Miranda v. Arizona, 384U.S. 436, 444 (1966). Additionally, Florida’s highly valued constitutional homestead protection is subject to waiver. See Hartwell v. Blasingame, 564 So. 2d 543, 545 (Fla. 2d DCA 1990) (“Although the constitution and statute do not expressly recognize a person’s right to waive [homestead] protection, it has long been recognized that an individual is free to knowingly and intelligently forego a right which is intended to protect only the property rights of the individual who chooses to make the waiver.”), approved 584 So. 2d 6 (Fla. 1991). We also note that nothing in the plain language of article I, section 26 prohibits a waiver of the rights granted."

That's a whole panoply of constitutional rights that can, apparently, be waived. So why should the right of access to a government meeting be treated any differently?

How might this issue arise? There are surely other possibilities, but here's one. Consider the case of Port Everglades Authority vs. International Longshoremen's Ass'n, Local 1922-1, 652 So.2d 1169 (Fla. 4 DCA 1995), in which the Authority "suggested" that bidders in a competetive procurement might not want to attend the oral presentations of the other bidders. The Fourth District said that was a violation of the Sunshine Law, but why does it have to be? Why can't the affected bidder waive its personal right to attend the meeting, provided it does so freely, kowingly and voluntarily?

Any thoughts?

A Sunshine Law Violation Perhaps?

2006-11-26T22:04:00.001-05:00

Although it would be far more entertaining to discuss Ralph Mervine's undisclosed ties to contractors doing Tampa-Hillsborough County Expressway Authority work, or even his undisclosed ownership interest in a gay porn website, we're trying to stay focused here.

So let's just contemplate how Mervine spent 195 cumulative minutes on cell phone calls to selected board members over the weekend before the Monday meeting in which the five board members to whom he spoke voted to oust the Authority's longtime attorney in favor of a firm that was ranked lower by the selection committee . . . but whose representative just happened to have dinner with Mervine in direct violation of the Authority's own procurement rules. The basic story is recounted in this article from the St. Petersburg Times. And the saga continues.

Hmm . . . can you say "indictment," boys and girls?

Nonprofits Beware

2006-11-26T20:39:00.000-05:00

This article from the St. Petersburg Times recounts the problems encountered by the Tampa Museum of Art Foundation, Inc., a not-for-profit corporation, which is providing the funding for the architectural services in connection with the new Tampa Museum of Art project.

As special counsel to the Foundation, I'm certainly pleased that the parties were able to reach a compromise that suits everybody's needs. But this serves as another example of the risks that nonprofits continue to face when they become involved in any way in publicly sponsored projects.

Look for future posts discussing public records and sunshine issues affecting nonprofits in more detail, as this is an area to which I've devoted a fair amount of my time.

Sometimes, It's That Simple . . . Part 2

2006-11-26T16:41:00.000-05:00

In State vs. City of Clearwater, the Florida Supreme Court reminds us once again that sometimes, it's that simple. Because personal emails sent or received by a public employee -- even on a government owned computer -- are not made or received in connection with official agency business, they don't meet the statutory definition of "public records" set out in Fla. Stat.§119.011(11):

"Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

Thus, such purely personal emails are just that -- personal -- and not public records under Chapter 119. Sometimes, it's that simple.

Sometimes, It's That Simple . . . Part 1

2006-11-26T16:22:00.000-05:00

As Boston's preeminent lawyer, Denny Crane, has said more than once, "Sometimes, it's that simple." That's good advice for any lawyer -- and any judge -- to keep in mind.

That was also the approach the First DCA took last year in a case involving unused ballots from the now infamous 2000 Florida presidential election. In Rogers vs. Cohen, registered voters sought to prevent the destruction of unused punch card ballots on the grounds that they had "great historical value." The plaintiffs argued that the unused ballots were public records; the Secretary of State took the position that they were not and could be destroyed or disposed of in the same manner as any other unneeded government property.

The Court noted that under Florida law, a public record must, by definition, be intended "to perpetuate, communicate, or formalize knowledge of some type." Because an unused ballot does not perpetuate, communicate or formalize anything, it can't be a public record. In fact, according to the Court, such unused ballots "are no different than cases of blank paper held in a government office."

Sometimes, it's that simple.

Confidential Student Records

2006-11-26T15:48:00.000-05:00

In AGO 2006-21, the Attorney General opined regarding the exemption for "educational records" containing personally identifiable information found in Fla. Stat. §1002.22(3)(d). The request in this case was for records reflecting any lawsuits or settlements involving allegations of physical or sexual abuse by teachers administrators or employees of the Palm Beach County School Board. Relying on the Fourth District's opinion in Johnson vs. Deluz, the Attorney General concluded that while such records would generally be public records subject to inspection and copying under Chapter 119, any personally identifying student information contained in such records was confidential and must be redacted.

Seminar Coming . . . April 11, 2007 in Tampa

2006-11-26T14:15:00.000-05:00

Yours truly will be moderating and speaking at a seminar presented by Lorman Education Services in Tampa on April 11, 2007. The seminar will be entitled: "What You Need to Know About Public Records and Open Meetings." Other speakers include Jane M. Fagan of the Pasco County Attorney's office, Alison M. Steele of Rahdert Steele Bryan Bole & Reynolds in St. Petersburg, and James B. Lake of Thomas & LoCicero PL in Tampa. This group knows each other well and should make for a lively, entertaining and informative day.

Look for updates as the seminar date draws closer and we hope to see you in Tampa in April.

Depends on What the Meaning of "Litigation" is . . .

2006-11-26T13:50:00.000-05:00

In AGO 2006-03, the Attorney General again reminded us of the excruciatingly narrow scope of the "litigation exemption" to the Sunshine Law found in Fla. Stat. §286.011(8). It seems that the Southwest Florida Water Management District wanted to meet in private session with its attorney to discuss settlement issues related an ongoing mediation involving the District and another public agency. The Attorney General concurred with the District's General Counsel, who had advised, in essence, that "mediation" pursuant to a contract is not "litigation" within the meaning of the statute.

There is no doubt that both the District's General Counsel and the Attorney General correctly interpreted the very strict language of the statute. But one has to wonder about the larger public policy issue here . . . since Florida law has always favored mediation as a means of alternative dispute resolution, what public purpose is served by a statutory exemption that doesn't allow government agencies to meet in private with their lawyers simply because they have successfully managed to avoid costly litigation by means of a contractual mediation provision? Is public policy somehow advanced by forcing the two agencies in this case to litigate, just so they can get confidential legal advice? Had the District filed suit in this case and then been ordered to mediate by the court, there is no doubt that the exemption would apply.

If the legislature truly believes that alternative dispute resolution is a good thing, then perhaps the litigation exemption should be broad enough to cover pre-suit mediation involving government agencies.

No Good Deed Goes Unpunished

2006-11-26T13:23:00.000-05:00

In AGO 2006-30, the Attorney General endorsed an innovative response to a public records request: instead of making paper copies of voluminous records, the City of Panama City created a static web page to which it uploaded all of the requested records. The costs of doing so were substantially less than what it would have cost the requester for paper copies. Both the requester and the City agreed to this process and, apparently, both were pleased with the outcome.

Alas, no good deed goes unpunished. The Mayor complained about this process because the static web page set up for the requester was not "available to the public at large." This, of course, is absurd. Had the City provided paper copies of the records to the requester, those paper copies would not have been "available to the public at large" because they would have been delivered to the requesting party. If another party requests the same records, what that party gets is separate copies of the documents, not the copies that were already provided to the first requester. Presumably, had the City received another request for the same records in this matter, it could and would have either given the second requester access to the static web page or created another web page to satisfy the second request.

The Attorney General properly rejected the Mayor's spurious complaint and opined that this innovative method of responding to a voluminous records request was fully consistent with the intent and purposes of the Public Records Law.

Electronic Participation in Sunshine Meetings

2006-11-18T10:49:00.000-05:00

In AGO 2006-20, the Attorney General opined, in response to an inquiry on behalf of the Hillsborough County Metropolitan Planning Organization, that multiple sunshine agencies could meet together via electronic means. The opinion concludes that while a Joint Citizens Advisory Committee whose members are representatives from several county metropolitan planning organizations may use electronic media technology to link simultaneously held public meetings of citizens advisory committees, the joint electronic meeting would not satisfy the quorum requirements necessary for official action to be taken by the joint committee.