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 . . .

HAPPY NEW YEAR . . . Back in blog mode soon

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?

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?

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?

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

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

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

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

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

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 . . .

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

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

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.