NCAA vs. Chapter 119 . . .

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

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

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

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

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

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" . . .

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 . . .

. . . 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

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"?

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

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 . . .

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

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

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

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

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

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

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

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?

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