Submitted by Suanne Z. Thamm
Last week Barbara Petersen, President of the First Amendment Foundation, traveled to Fernandina Beach, where she conducted four training sessions on Florida’s comprehensive sunshine law. City Commissioners, city staff and citizens who serve on city commission-appointed boards and committees were strongly advised to attend. Entitled “Government in the Sunshine,” the training session was designed to explain and clarify roles and responsibilities of those who conduct The Public’s business in the state of Florida, whether serving in an elected or appointed capacity.
What exactly is “The Sunshine Law?”
While the term “Sunshine Law” is bandied about regularly, not everyone understands its meaning, especially in Florida, where its coverage is much broader than in some other states where the same term is used. According to the First Amendment Foundation’s website:
Florida’s Sunshine Law provides a right of access to governmental proceedings at both the state and local levels. The Sunshine Law generally applies to any gathering, whether formal or casual, of two (2) or more members of the same board or commission meeting to discuss some matter on which foreseeable action will be taken.
Article I, Section 24 of the Florida Constitution: “All meetings of any collegial body of the executive branch of state government or of any … county, municipality, school district, or special district, at which official acts are to be taken or at which public business … is to be transacted or discussed, shall be open and noticed to the public…”
Chapter 286, Florida Statutes: “All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.”
Ms. Peterson discussed transparency requirements under this law with respect to public meetings and public records. While those individuals covered by this law may find certain requirements cumbersome, they fail to meet them at their peril. Individuals around the state have been prosecuted and jailed for intentionally keeping discussions, meetings and/or records out of public view.
When is a meeting between two people who serve on the same elected or appointed board a public meeting?
According to Peterson, “The law provides a presumption of openness, which means that all meetings between two or more members of the same board or commission are presumed open to the public unless there is a specific statutory exemption.” If a member of the public is denied access to any meeting, she/he has a right to demand the specific statutory exemption that allows her or him to be excluded from the discussion.
It is also important to note that even meetings that may be conducted outside the sunshine by statutory exemption have requirements that minutes be taken. If the exemption relates to litigation, at the conclusion of the litigation the minutes become public records.
While the law does not apply to fact-finding committees or social gatherings, it does kick in if two or more members of the same board or commission are discussing business at the social gathering. Believe it or not, private citizens are entitled to approach such officials, whether at a barbecue, restaurant, wedding or any other circumstance, to verify that public business is not being inappropriately conducted. Peterson cited an example of a citizen following a group of male commissioners into the men’s room during a meeting recess, where she found them to be conducting public business.
What kinds of procedures need to be followed for a meeting to be in compliance with the Sunshine Law?
Peterson boiled it down to four key elements:
. Meetings of boards or commissions must be open to the public.
. Reasonable notice of such meetings must be given.
. Minutes of meetings must be taken.
. Venue must be accessible.
A public agency cannot hold a meeting at any facility which discriminates based on age, race, etc., nor can a public agency unreasonably restrict public access. It must hold meetings in an accessible facility of sufficient size so as to accommodate the anticipated turnout.
The public has an “inalienable right to be present and to be heard” at most public meetings, according to statute. The public has that right at any meeting during which a decision will be made. However, the decision-making body may adopt reasonable rules of conduct and procedure for public input.
So what constitutes a public record?
Public records are another thorny topic. Again citing the First Amendment Foundation’s website:
The definition for public records is quite broad and includes all materials made or received by an agency in connection with official business used to perpetuate, communicate, or formalize knowledge. This means public records are not limited to traditional written documents, but that tapes, photographs, films, and sound recordings, for example, are also considered public records. There is both a statutory and a constitutional right of access to government records (Chapter 119, Florida Statutes, and Article I, Section 24, of the Florida Constitution).
This definition includes emails, text messages, and social media like Facebook. Any communication that a public official, elected or appointed, receives relating to public business is a public record. Notes passed during meetings; texts received and sent during meetings, sticky notes, prepared remarks or notes brought to meetings: all of these and more may be deemed to be public records if generated or received by individuals covered under the Sunshine Law.
Any person who has ever sent an email to a person covered by the Sunshine Law needs to understand that such email has also become a public record. So be careful to edit your remarks before hitting the SEND button on an email that contains strong feelings! It matters not whether you send the email to an “official” email address or a personal email address. If the subject matter is public business, it becomes a public record.
Who can request a “public record?”
The short answer: anyone. Whether you are a member of the media, the Citizen of the Year or a recently paroled felon, you have a right to request public records. You may even make such a request anonymously. The body that receives your request has a right to charge you reasonable and customary fees, which may be waived. But if your request will involve extensive time and voluminous records, you may be asked to pay for such requests up front.
The agency receiving your request is not required to generate a record to meet your demand. So, if you would like a table showing votes on a certain topic taken over the course of 2 years, you may be provided with minutes of the meetings that recorded the votes so that you can compile your own table.
Polling public officials: risky business
Public officials are prohibited by law from using third parties to communicate with other members of the same body. An elected or appointed official who uses a friend to poll other members of the board or otherwise inappropriately transmit information on a matter of public business is subject to fine and/or imprisonment.
Barbara Peterson knows more about Government in the Sunshine than most of us could ever need to know. If you have more questions or a need to delve more deeply into the topic, the First Amendment Foundation website can probably provide most of the answers to your questions. If by some chance it can’t, phone, email and fax contact information may also be found there.
Editor’s Note: Suanne Thamm is a native of Chautauqua County, NY, who moved toFernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.
April 15, 2015 1:00 a.m.