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FREQUENTLY ASKED QUESTIONS
Florida in the Sunshine
1. When did Florida begin its tradition of openness?
2. What is the Sunshine Law?
3. What changed after the Constitutional Amendment in
1992 was approved?
4. How does the Sunshine Law work?
5. Who does the Sunshine Law apply
to?
6. Which government bodies does the Sunshine Law cover?
7. What types of advisory committees have the Florida
courts found to be subject to the Sunshine Law?
8. Which committees are exempt from the Sunshine Law?
9. Does the Sunshine Law Apply to the Governor and Cabinet?
10. What Legislative meetings are covered by the Sunshine
Law?
11. What activities are covered by the Sunshine Law?
12. Are there exemptions to the Sunshine Law?
13. Are private organizations covered by the Sunshine
Law?
14. Is a private organization that receives public funds
subject to the requirements of the Sunshine Law?
15. Who is responsible for attorney’s fees when
there is a lawsuit over the Sunshine Law?
1. When did Florida begin its tradition of openness?
Florida began its tradition of openness in 1909 when the Legislature
passed the first Public Records Law, Chapter 119 of the Florida
Statutes. The Public Records Law provides that citizens shall
have virtually unlimited access to records made or received by
any public agency in the course of its official business, unless
specifically exempted by the Legislature. Chapter 119 mandates
that custodians of these records shall permit them to be inspected
and examined by any person desiring to do so, at any reasonable
time. Over the years, the definition of a public record has expanded.
In addition to traditional written documents, tapes, photographs,
films, sound recordings and computer records are also included.
•
A
message from the Florida Attorney General on the Florida’s
Government in the Sunshine Law
•
The Florida Press Association and Government in the Sunshine
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2. What is the Sunshine Law?
The Sunshine Law is outlined in Chapter 286 of the Florida Statutes.
It established a basic right of access to most meetings of boards,
commissions and other governing bodies of state and local governmental
agencies. Prior to 1990, there was a question as to whether the
Sunshine Law covered the state Legislature, but in that year, the
voters passed a constitutional amendment providing for open meetings
in the Legislative branch of the state government. In 1992, Florida
voters overwhelmingly approved the Public Records and Meetings
constitutional amendment. This amendment constitutionalized the
right of access to government information and specifically includes
the legislative, executive and judicial branches of government.
•Chapter 286 of the Florida Statutes
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3. What changed after the Constitutional Amendment in 1992 was
approved?
In 1992, Florida voters overwhelmingly approved a constitutional
amendment that allowed citizens improved access to government records.
The constitutional amendment, Article 1, Section 24, specifically
includes agencies of the legislative, executive and judicial branches
of government and makes it more difficult for legislators to add
exemptions to the law. Under the amendment, the legislative branch
is authorized to adopt rules governing legislative records. The
amendment requires the judicial branch to draft new rules providing
access to administrative records. In addition, the constitutional
amendment provides that exemptions may be enacted only if the Legislature
can prove that a public necessity exists justifying the exemption.
New exemptions must be no broader than necessary to accomplish
the stated purpose of the law. In November 2002, 75 percent of
the voters supported Amendment IV, which amended Florida’s
constitutional Government in the Sunshine Amendment. Now, two-thirds
of state senators and representatives, rather than just a majority,
must vote to approve new exemptions to Florida’s Sunshine
Laws.
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4. How does the Sunshine Law work?
The Sunshine Law, Chapter 286 of the Florida Statutes, requires
that government decision-making take place in public. The Sunshine
Law prohibits elected officials from meeting behind closed doors
to decide matters that affect the citizens they represent in
the absence of a specific exemption approved by the Legislature.
The basic requirements of the law are that meetings of any public
decision-making body must be open to the public, reasonable notice
of such meetings must be given and minutes of the meeting must
be taken.
•Florida
Online Sunshine, the official Internet site
of the Florida Legislature
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5. Who does the Sunshine Law apply to?
The Sunshine Law applies not only to the obvious meetings of elected
bodies, but also to appointed and advisory boards. Florida courts
have stated that the entire decision-making process is subject
to the Sunshine Law, and not just at official meetings to vote
on final decisions or actions. The statute extends to discussions
and deliberations as well as to formal action taken by a public
body. Therefore, the law applies to any gathering where two or
more members of a public board or commission discuss some matter
on which foreseeable action will be taken by that board or commission.
Public agencies may not circumvent the Sunshine Law by using
an alter ego to conduct public business in secret. Anyone who
carries messages about public business from one public official
to another in an attempt to resolve an issue outside of the Sunshine
violates the law. In addition, boards subject to the Sunshine
Law must provide reasonable notice of all meetings.
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6. Which government bodies does the Sunshine Law cover?
The Sunshine Law applies to most state, county and municipal governmental
bodies. Florida courts have ruled this includes all public boards,
commissions and regional agencies under the “dominion and
control” of the state Legislature, whether they are elected
or appointed. The Sunshine Law applies to members-elect of boards
or commissions as well. The law applies to private bodies as well,
if governmental decision-making duties have been delegated to it
by a body otherwise covered by the Sunshine Law. Government may
not avoid the law by simply delegating its decision-making authority
to another entity. When decision-making authority is delegated
to staff members, staff members also become subject to the Sunshine
Law when discussing these matters. The Sunshine Law does not ordinarily
apply to administrative proceedings or meetings of government staff
when the function of staff members is to inform and advise the
decision-making body. The law allows public bodies to meet with
their attorneys in closed meetings to discuss pending litigation.
The law provides specific conditions for these meetings. Courts
have ruled that it is the types of action performed by the board
or committee, and not its makeup that determines whether an advisory
committee is subject to the law. For a list of state and local
governmental bodies covered by the Sunshine law, see A
Citizen’s
Guide, page 6.
CASE IN POINT: In 2002, a Florida court found that a city did
not violate the Florida Sunshine Law when it met with its attorneys
behind closed doors to discuss settlement negotiations and strategy
in connection with a lawsuit. Bruckner v. City of Dania Beach,
CASE NO. 4D01-1749, COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT,
823 So. 2d 167; 2002 Fla. App.
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7. What types of advisory committees have the Florida
courts found to be subject to the Sunshine Law?
The following are some of the advisory committees that the Florida
courts have found subject to the Sunshine Law. See A
Citizen’s
Guide, page 7, for more information.
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Community advisory committees
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Architectural review committees of a homeowner’s association
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A public hospital advisory board
•
A criminal justice commission created by county ordinance to make
recommendations about criminal justice issues
•
A municipal planning commission
•
A committee appointed by a mayor to recommend legislation
•
An ad hoc committee appointed to investigate charges against a
local police chief
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8. Which committees are exempt from the Sunshine Law?
Advisory committees that are established solely for the purpose
of fact-finding and reporting to public bodies are exempt from
the Sunshine Law. The Sunshine Law does not apply to federal
agencies within the state. In 1976, however, Congress passed
the federal Sunshine Act, which requires about 60 federal agencies
to meet in public. The Act generally applies to agencies subject
to the Freedom of Information Act.
CASE IN POINT: In 2002 a Florida court found that employment
interviews conducted by an advisory team of school principal
candidates were
not governed by the Florida Sunshine Law because the interview
team simply had a fact-finding or advisory role.Knox v. Dist.
Sch. Bd., CASE NO. 5D01-2384, COURT OF APPEAL OF FLORIDA, FIFTH
DISTRICT,
821 So. 2d 311; 2002 Fla. App.
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9. Does the Sunshine Law Apply to the Governor and Cabinet?
State lawmakers have no power to require the governor or Cabinet
members to meet in public when they are exercising their constitutional
administrative duties or acting as a policy-making board related
by the Legislature, such as the State Board of Education. For instance,
the governor’s deliberations with Cabinet members about whether
to grant a pardon or clemency are not covered by the Sunshine Law
because they involve constitutional duties, not statutory duties.
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10. What Legislative meetings are covered by the Sunshine Law?
The Sunshine Law does not specifically cover the Legislature. However,
the Sunshine Amendment approved by voters in 1992 specifically
includes the Legislature and states that “all meetings of
the Legislature shall be open and noticed.”
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11. What activities are covered by the Sunshine Law?
The Sunshine Law covers “meetings” of public boards
and commissions. That includes deliberations, discussions and workshops,
as well as formal actions. Florida courts have ruled that whenever
two or more members of a governmental body discuss matters on which
foreseeable action could be taken by the body, that “meeting” is
subject to the Sunshine Law. This would apply even if two members
of a commission were having a casual dinner, and public business
came up in the course of the conversation. Examples of activities
covered by the law are listed in A
Citizen’s Guide, page
9.
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12. Are there exemptions to the Sunshine Law?
The Legislature has enacted more than 200 exemptions to the Sunshine
Law, passing new exemptions almost every yet. Exemptions are listed
in the Government-in-the-Sunshine Amendment, Section 24. Also see
A
Citizen’s Guide, page 10.
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13. Are private organizations covered by the Sunshine
Law?
The Sunshine Law does not usually cover private organizations,
but there are exceptions. If a governmental body delegates its
functions to a private organization, its actions regarding the
delegated duties are subject the Sunshine Law. Private organizations
that play an integral part in a public body’s decision-making
process by acting in an advisory capacity must comply with the
Sunshine Law.
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14. Is a private organization that receives public funds subject
to the requirements of the Sunshine Law?
Public funding alone does not bring the private body under the
requirements of the Sunshine Law. For example, a private hospital
that receives Medicare or Medicaid funds would not be subject
to the Sunshine Law for that reason alone, but one governed by
a legislatively
created body would be. A private corporation that is paid to
perform services for a public agency but is not delegated any
governmental
or legislative duties, would similarly not be subject to the
Sunshine Law.
CASE IN POINT: In 1997, the Florida Supreme Court found that
a Volusia County hospital was subject to the Public Records
Law even
though it was under a lease agreement with a local agency. News-Journal
Corp. v. Memorial Hospital-West Volusia, CASE NO. 96-2608, COURT
OF APPEAL OF FLORIDA, FIFTH DISTRICT, 695 So. 2d 418; 1997 Fla.
App.
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15. Who is responsible for attorney’s fees when
there is a lawsuit over the Sunshine Law?
The Sunshine Law provides for recovery of attorney’s fees
from governmental bodies if a court finds a violation. The law
also permits a governmental body to recover attorney’s fees
from an individual if a court rules a suit was frivolous or filed
in bad faith.
•
Attorney's
Fees Database, an index
of cases in which attorney’s fees were awarded in FOI disputes
in the state of Florida since 1981.
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