• TABLE OF CONTENTS
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 Foreword
 Table of Contents
 Introduction
 How the law works
 The Constitutional amendment
 Open meetings
 Open records
 The Freedom of Information Act...
 Open courts
 Additional references
 A sample public records request...






Title: Florida's government in the sunshine: a citizen's guide
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Permanent Link: http://ufdc.ufl.edu/UF00088828/00001
 Material Information
Title: Florida's government in the sunshine: a citizen's guide
Physical Description: Book
Language: English
Creator: Brechner Center for Freedom of Information
Chance, Sandra F.
Publisher: University of Florida Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: 2006
 Subjects
Subject: University of Florida.   ( lcsh )
Spatial Coverage: North America -- United States of America -- Florida
 Record Information
Bibliographic ID: UF00088828
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved, Board of Trustees of the University of Florida

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Table of Contents
    Foreword
        Page 1
    Table of Contents
        Page 2
    Introduction
        Page 3
    How the law works
        Page 4
    The Constitutional amendment
        Page 5
    Open meetings
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
    Open records
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
    The Freedom of Information Act (FIOA)
        Page 18
    Open courts
        Page 19
        Page 20
        Page 21
        Page 22
    Additional references
        Page 23
    A sample public records request letter
        Page 24
Full Text





.. UNIVERSITY OF
FLORIDA
Brechner Center for Freedom of Information 3208 Weimer Hall
College of Journalism and Communications PO Box 118400
Gainesville, FL 32611-8400
(352) 392-2273
Dear Citizen, Fax: (52) 392-9173

Information about our government provides one of the cornerstones of our
democracy. The right to access this information is fundamentally impor-
tant to the citizens of the state of Florida. In addition to a comprehensive
set of laws guaranteeing access, Florida is one of only a handful of
states to provide a constitutional right of access to government meetings
and records.

We need this information in order to hold our elected officials
accountable, understand their decision-making process and make
decisions about where to live or how to prioritize our community's
concerns.

This booklet provides an overview of the government-in-the-sunshine laws
and how the laws work. There's even a sample public records request
letter, in case you need to use one.

The Brechner Center is nationally and internationally recognized as an
important resource on freedom of information issues. We are dedicated
to helping people understand the state's government-in-the-sunshine
laws, access to courts and the federal Freedom of Information Act
(FOIA).

The Center was established in 1986, when Joseph L. Brechner, an
Orlando broadcaster and advocate of freedom of information, provided
more than $1 million for the endowment.

We discuss First Amendment and FOI issues at numerous national
conferences and statewide meetings each year. We produce a monthly
newsletter on access and First Amendment issues.

Each year, we answer about 500 questions about how FOI laws work.
These questions come from journalists, public officials, media lawyers
and citizens. We also produce a number of research projects focused
on access to information.

If you need more specific information about the law or about the Brechner
Center, please visit our Web site, Brechner.org, or call our office at
(352)392-2273.

Sincerely

Scwadra F. CharLwce
Sandra F. Chance, J.D.
Executive Director, Brechner Center for Freedom of Information
Associate Professor of Journalism










Florida
Government in the Sunshine
A Citizen's Guide



Index


Introduction
How the Law Works
The Constitutional Amendment
Open Meetings
Which Governmental Bodies Are Covered?
Does the Sunshine Law Apply to the Governor and Cabinet?
What Legislative Meetings Are Covered?
Are Private Organizations Covered?
What Activities Are Covered?
Exemptions
How Should Government Provide Access?
What If a Meeting Is Improperly Closed?
Open Records
Access to Computerized Records
Examples of Public Records
What Is Exempt from the Public Records Law?
Which Government Bodies Are Subject to the
Public Records Law?
How to Get Access to Public Records
Remedies
Fees
The Freedom Of Information Act (FOIA)
Open Courts
Florida Courts
Gag Orders
Cameras In Florida Courts
Camera Access to Federal Courts
Additional References
Sample Public Records Request Letter


3-4
4-5
5
6-12
6-7
7
8
8-9
9
10
10-11
12
13-17
13
14
14-15

15-16
16
17
17
18-19
19-22
20-21
21
22
22
23
Appendix A










Florida
Government in the Sunshine
A Citizen's Guide
Introduction

The public's right of access to information about its government is a
fundamental constitutional right in Florida. In addition, Florida's open
government laws are some of the strongest in the nation, and aside from
specific and narrow exceptions, governmental bodies must keep their
affairs open to the public.

Our government is based on the will of the people, and an open government
is essential for a self-governing society. Therefore, citizens and the media
must be able to monitor the activities of their elected representatives and
their government.

Access to public meetings of governmental bodies and to governmental
records provides citizens with the information they need to participate in
the democratic process. An informed electorate is better able to evaluate
and monitor officials' behavior- ensuring an honest, competent and
responsive government.

In a democracy, the records belong to the people, not the government. The
records are created by people on the public payroll, they are recorded on
paper or computer disks paid for by tax money, and they are stored in
public buildings.

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, so that not just traditional written documents are covered, but
also included are tapes, photographs, film, sound recordings and computer
records.

Thirty years ago, Florida enacted the Sunshine Law, 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 overwhelmingly
passed a constitutional amendment providing for open meetings in the
Legislative branch of the state government. In 1992, Florida voters over-
whelmingly 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.


How the Laws 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.
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.
Here's how the law works. Parents have a right to watch their local school
board consider changes in the elementary school curriculum. Residents
have a right to attend a city council meeting to discuss a proposal to
rezone property in order to build a shopping mall in their neighborhood.










Residents also can review and photocopy the school curriculum materials
or the detailed, formal request for zoning approval under the Public
Records Law, Chapter 119 of the Florida Statutes. This companion to the
Sunshine Law requires that all government records be open for public
inspection and copying unless there is a specific exemption approved by
the state Legislature.

The Public Records Law allows citizens to look at reports of crime in their
areas or the professional backgrounds of the people teaching their
children. Citizens can evaluate how much is being spent on emergency
services at the local public hospital or how much state employees are
getting paid.

In addition to being able to attend government meetings and review public
records, citizens may attend most judicial proceedings in Florida and
review many of the documents that are filed in court proceedings. State
and federal courts have ruled that criminal and civil trials and hearings
generally should be open to the public, along with any documents that are
filed and transcripts of those proceedings.

The Constitutional
Amendment
In 1992, Florida voters overwhelmingly ap-
proved a constitutional amendment that allows
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 legisla-
tive 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-SunshineAmendment. Now,
two-thirds of state senators and representatives, rather than just a major-
ity, must vote to approve new exemptions to Florida's Sunshine laws.


Wi5










Open Meetings
The Sunshine Law requires that government boards and commissions meet
in public when discussing public business. The law permits citizens to
observe the decision-making process from initial deliberations to the final
vote. The law also requires governmental bodies to provide reasonable prior
notice of their meetings and to keep minutes of the proceedings.

Which Governmental Bodies are Covered?
The Sunshine Law applies to most state, county and municipal governmen-
tal bodies. Florida courts have ruled this includes all public boards, com-
missions 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 meet-
ings to discuss pending litigation. The law provides specific conditions for
these meetings. For example, the discussion must be confined to settle-
ment negotiations or strategy sessions related to litigation expenditures,
the session must be recorded by a certified court reporter and the transcript
must be part of the public records when the litigation is concluded.

State and local governmental bodies covered by the Sunshine Law include,
but are not limited to:

County and city commissions;
School boards;
Planning and zoning boards;
Appointed boards or commissions;
Civil service boards;
Regulatory boards, such as boards under the Department of
Professional Regulation;










University committees searching for presidents or deans;
Private organizations providing services to public agencies, and
Economic development boards.

Florida courts have ruled that most advisory boards even those
whose powers are limited to making recommendations to a public
agency and that possess no decision-making authority are still
subject to the Sunshine Law. Courts have ruled that it is the type of
action performed by the board or committee, and not its makeup,
that determines whether an advisory committee is subject to the law.

The following types of advisory committees have been found by
Florida courts to be subject to the Sunshine Law:

Community advisory committees;
Architectural review committees of a homeowners' association;
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, and
An ad hoc committee appointed to investigate charges against a
local police chief.


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, discussed later.


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 created 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.










What Legislative Meetings are Covered?
The Sunshine Law does not specifically cover the Legislature. However,
the SunshineAmendment approved by voters in 1992 specifically includes
the Legislature and states that "all meetings of the Legislature shall be
open and noticed."

Another constitutional amendment, approved by voters in 1990, requires
legislators to adopt procedural rules ensuring that meetings of commit-
tees, subcommittees and joint-conference committees are open and the
public is notified. Following the Sept. 11 terrorist attacks, the Florida
Senate passed new rules that allow secret meetings to discuss terrorism
prevention.

The constitutionally required rules also provide that informal, pre-arranged
meetings of three or more legislators, or meetings involving legislative
leaders and the governor, must be open where formal action is taken or
agreed to be taken later. The amendment does not require notice of these
informal meetings.

Legislators may adopt rules controlling admission to the floor of each
chamber and providing for limited closure of committee meetings.


Are Private Organizations Covered?
The Sunshine Law does not usually
cover private organizations, but there
are exceptions. If a governmental l
body delegates its functions to a h
private organization, its actions
regarding the delegated duties are
subject to 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. For example,
if a county commission requests that a private, non-profit corporation
hold a workshop to gather information relating to land development
regulations and make recommendations, the workshop must be open to
the public. If private organizations invite members of a public board or
commission, these meetings should be open to the public if public
business is discussed.










It is important to note that 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 legisla-
tively 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 simi-
larly not be subject to the Sunshine Law.

What Activities Are Covered?
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 conversation.

There is no requirement that a quorum or majority be present for a discus-
sion to be subject to the Sunshine Law.

Every step in the decision-making process, however preliminary, consti-
tutes an action subject to the law. For example, board members may not
use written memos, intermediaries or staff members to avoid a public
meeting.
Examples of activities covered by the law include:
Telephone conference calls;
Deliberations of a regional planning council;
Public board or commission meetings discussing personnel
matters;
Meetings to discuss confidential material;
Workshop or conference sessions;
Lunch meetings prior to formal meetings;
Meetings at which personnel matters are discussed;
Selection and screening committees;
Purchasing or bid evaluation committees, and
Negotiations by a public board or commission for the sale or
purchase of property.










Exemptions
The Florida Supreme Court has ruled that the Sunshine Law has no exemp-
tions except those provided by statute. The Government-in-the-Sunshine
Amendment, Section 24 of the Florida Constitution, embodies this principle
and limits exemptions to those listed in the Constitution and the Sunshine
Law. The constitutional amendment requires the Legislature to specify the
public necessity justifying a new exemption and requires new exemptions
not be any broader than necessary to accomplish the stated purpose of the
law.

The Legislature has enacted more than 200 exemptions to the Sunshine
Law, passing new exemptions almost every year.

A few examples include:
Meetings between city councils and city attorneys when discuss-
ing pending litigation involving the city;
Advisory committees involved solely in fact-finding activities;
Proceedings of peer review panels, committees and governing
bodies of public hospitals or surgical centers relating to disciplinary
actions;
Certain meetings of Judicial Nominating Commissions and Judicial
Qualifications Commissions;
Some deliberations of the Public Employees Relations Commis-
sion;
Certain meetings of the State Lottery Commission;
Strategy discussions between a governmental body and its chief
executive officer prior to collective bargaining negotiations, and
Grand jury proceedings.


How Should Government Provide
Access?
The public must be notified about public meetings. Notice should include
the meeting's time, place and the agenda, if available. The notice should
be prominently displayed in the agency's offices or meeting area.

The type of notice depends upon the facts of the situation and the board
involved. The goal of the public official should always be to provide ad-
equate notice to enable any interested citizen to find out about the meeting.

In some instances, posting of the notice in a public area may suffice. In
others, publication in a local newspaper may be necessary.










Additional notice may be given in any
reasonable fashion, including tele-
phone calls to interested persons,
press releases sent to local news
media or advertisements placed in the
media. Because methods of publish-
ing vary widely among jurisdictions,
persons interested in attending a
government meeting should check
with a government body to determine
how it provides notice.

Emergency sessions should be
announced through the most appropriate and effective channels under the
circumstances. The public should have at least 24 hours notice of emer-
gency meetings. The Sunshine Law does not specify where a public
meeting may be held, but it does prohibit facilities that discriminate on
the basis of sex, age, race, creed, color, origin or economic status, or
which unreasonably restrict public access. Private buildings, even if open
to the public, should be used only as a last resort. The goal, as always,
should be maximum public attendance at the meeting.

Also, boards and commissions generally must meet at or near their
headquarters, or within their jurisdiction. For example, a Florida court
ruled that a local board attending an out-of-town conference could not
meet at the conference site simply because it was convenient for the
board.

Meetings of public boards or commissions must be open to the public at
all time. If, at any time, the proceedings become covert, secret or outside
the public's ability to see or hear what is going on, then that portion of the
meeting violates the law.

While bodies may institute reasonable rules to ensure orderly conduct at
meetings, they should take reasonable steps to ensure that the facility
will accommodate the anticipated turnout. Attendance at the meeting
cannot be restricted, and the public body cannot prohibit tape recorders
or cameras unless they are disruptive.

Written minutes must be kept of all meetings and those minutes must be
open for public inspection. Voting must be in the open and all members
are required to cast votes unless they abstain because of a stated conflict
of interest. The Sunshine Law does not allow the use of "secret ballots."


'11











What if a Meeting is Improperly Closed?
If it is known in advance that a meeting will be closed in violation of the
Sunshine Law, the chairperson of the public body or its attorney should be
notified. If time permits, the notice should be in writing. The written request
should inform the public body of its duties under the Sunshine Law and
should ask the public body to cite the exemption it is relying upon to close
the meeting. The written notice may be sent by certified mail to ensure
proof of receipt by the public body.

If officials continue to refuse to open a meeting after receiving a formal
request, or if closure is expected for other reasons, a circuit court may
issue an injunction to prevent the closed meeting. Citizens may contact the
State Attorney's office in the appropriate judicial circuit or a private attorney
to request help with securing an injunction or other legal action.

If a court finds that a public board or commission failed to comply with the
Sunshine Law, its members could be subject to criminal or civil penalties
and may even be removed from office. In 2002, an Escambia County
Commissioner was sentenced to 60 days in jail and served 49 days of the
sentence for violating the law. Florida courts may also invalidate any votes
or other actions taken by the public body in violation of the law.

If you seek entry to a meeting at which official matters are to be considered
and you are prohibited from entry, you should inform the presiding official
that: "Florida Statute 286.011, the
Government-in-the-Sunshine Law,
requires that all meetings of state or
local governmental boards or commis-
sions be open to the public unless
there is a specific statutory exemp-
tion. If I am ordered to leave (or
forbidden to enter) this meeting, I ask
that you advise me of the statutory
authority for your action. Otherwise, I
must insist on my right to attend this
meeting."

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 orfiled in bad faith.










Open Records
The Florida Public Records Law, Chapter 119,
Florida Statutes, gives the public access to public
records, defined as "all documents, papers, letters
maps, books, tapes, photographs, films, sound
recordings, data processing software or other .
material, regardless of the physical form, charac- \k.h
teristics, or means of transmission," made or
received in connection with government agency business. The Florida
Supreme Court has interpreted this definition to encompass all material
prepared to "perpetuate, communicate or formalize knowledge."

All records, regardless of whether they are in final form, are open for public
inspection unless the Legislature has exempted them from disclosure.

When officials circulate material for review, comment or information, the
material is a public record. Records of advisory bodies, private organiza-
tions or independent contractors acting as agents of government agencies
are public unless covered by a specific exemption.


Access to Computerized Records
As technology has changed the means by which agencies communicate,
manage and store information, many public records are kept only in com-
puterform.

In 1995, Florida amended its definition of a public record to specifically
include computer records and data processing software. The statute says
that automation of public records must not erode the public's right of
access.

Accordingly, computerized public records are governed by the same rule as
paper documents. Agencies must provide a copy of public records in the
medium requested if the agency maintains the record in that medium.
However, an agency is not required to create a new record to meet a
requester's particular needs.

Agencies are responsible for ensuring reasonable access to records
electronically maintained and should set up their databases to comply with
the Public Records Law.

E-mail messages made or received in connection with official business are
public records.










Examples of Public Records
Most portions of arrest and crime reports;
E-mail messages made or received by agency employees in
connection with official business;
Most personnel records of government employees, including
applications for state or local employment;
Agency documents circulated for review, comment or information;
Private company records connected with governmental services
where private business acts on behalf of government;
Salaries and expense reports of most government employees;
Written communications between a government agency and its
attorney, except information prepared for a pending suit;
Court orders orjudgments dealing with public hazard;
Tape recordings of incoming calls to a public agency, and
County and municipal budgets.


What is Exempt from the Public Records
Law?
The Florida Supreme Court has ruled that government agencies must
provide access to public records unless the Legislature has specifically
exempted them from disclosure. An agency claiming an exemption from
disclosure bears the burden of proving a record is exempt by law. Before
denying access, a public records custodian must specifically state in
writing if requested which part of the law exempts a record.

There are more than 850 separate records exempted from the Public
Records Law.

Examples of them include:
Medical, birth and adoption records;
Autopsy photographs, and video and audio recordings of an
autopsy;
Social Security numbers contained in official public records;
Nursing home adverse incident reports, and risk-management
records and meetings;
Personal identifying and financial information contained in the
Department of Health's records;
Investigative and criminal intelligence records of law enforcement
agencies that are related to active investigations;










Law enforcement records identifying sexual abuse victims or
confidential informants;
Home addresses and phone numbers of Department of Children &
Family Services investigators, law enforcement officers, state
attorneys, judges, firefighters, code enforcement officers, human
resource officers, guardians ad litem and lottery winners;
Student educational records;
Reports of diseases of "public health significance" to the state
Department of Children & Family Services;
Information "necessary to secure the integrity" of the lottery;
Negotiation records of purchases of real property by state and local
agencies, such as appraisals, offers and counteroffers, until a deal
is final or will be considered within 30 days;
Most tax information filed with the Department of Revenue;
Security system plans, including building plans, blueprints, sche-
matic drawings and diagrams depicting the internal layout and
structural elements of any state owned or operated building, arena,
stadium, water treatment facility or other structure, and
Driver license and motor vehicle records unless driver consents to
disclosure.

Juvenile offender records are generally confidential and exempt from the
Public Records Law. However, if the juvenile is arrested for a crime that
would be a felony if committed by an adult or if the juvenile has committed
three or more "adult" misdemeanors, the records are not exempt.

If a federal statute requires a record to be closed and the state is clearly
subject to the provisions of that statute, the state must keep the records
confidential. However, a Florida court ruled that tenant records of a public
housing authority are not exempt from the Public Records Law, despite the
Federal Privacy Act.


Which Government Bodies Are Subject to
the Public Records Law?
All units of state, county and local government are subject to the Public
Records Law, as are advisory bodies, private organizations or independent
contractors acting on behalf of any public agency. Thus, any publicly
created advisory board would be an agency subject to the law unless a
statutory exemption exists. When a private corporation not otherwise
connected with government provides services to a governmental body, the
key question is whether the private organization is acting on behalf of a
public agency.










Neither public funding nor a government contract automatically makes
the private organization subject to the law. The Florida Supreme Court
developed a "totality of factors" approach as a guide for evaluating
whether a private entity is subject to the Public Records Law.

Generally, if the private organization is involved in the decision-making
process, it becomes an "agency" for the purposes of the Public Records
Law. In addition, when a private organization enters negotiations with a
public agency, records of those negotiations are public records.

For example, the Chicago White Sox professional baseball team and the
city of St. Petersburg were found to have violated the Public Records
Law by denying access to draft lease documents generated during the
negotiations.


How To Get Access to Public Records
The Florida Public Records Law states that any person can inspect and
copy public records. An individual does not need to state a purpose or
special interest to obtain access to a record and does not need to
present identification.

The first step toward seeing a record is identifying the agency holding it
and the person within that agency who is the records custodian. A
custodian is the person who either supervises or has control over the
document, or has legal responsibility for its care, keeping or guardian-
ship. Citizens can call or write the agency for this information.

The request for a public record should be as specific as possible.
Although a verbal request is sufficient, a written request is often more
effective. A request for a record should include the subject matter,
location, date, agency in charge and the name or identification of the file,
if known. Copies of all correspondence should be kept.

When a portion of the material requested is exempt from disclosure, a
records custodian must provide the non-exempt material. For example,
even though the name of the victim of a sexual assault is exempt from
disclosure, the police report itself is not exempt. Once the identifying
information is removed, the report must be released.










Remedies
If you are refused access to public records you should cite Chapter 119 of
Florida Law, which states: "It is the policy of this state that all state,
county and municipal records shall at all times be open for a
personal inspection by any person. Public records are defined as
'all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings or other material, regardless of physical
form or characteristics, made or received...in connection with the
transaction of official business by any agency.' Section 119.10
provides that: Any person willfully and knowingly violating any of
the provisions of this chapter shall be guilty of a misdemeanor of
the first degree..."

If a government agency violates the Public Records Law, it harms all
citizens of the state of Florida. Therefore, any citizen of the state who
reasonably believes that there has been a violation may seek an order
from the circuit court to force disclosure. Penalties include fines, injunc-
tive relief and, in extreme cases, incarceration of offenders.

The cost of bringing a justifiable suit against a government entity should
not deter citizens from enforcing the law. Even though legal fees may
become costly, if a citizen brings a suit under the Sunshine Law or the
Public Records Law and the court finds that there was a violation, the
person who filed the lawsuit is entitled to recover reasonable attorney's
fees from the agency. However, if the court finds that the suit was filed in
bad faith, or on frivolous grounds, the agency may recover reasonable
attorney's fees from the person filing the suit.

Knowingly withholding public records can cause more than financial
trouble for public officials who mishandle the public trust. In 1999, an
Escambia County School Board member spent seven days in jail after
being found guilty of violating the Public Records Law.

Fees
If you want a copy of a record, the custodian may charge only the actual
cost of duplication. The law allows the records custodian to charge higher
fees for certain records and when requests require extensive assistance.

For example, if a request requires extensive use of information technology
resources or extensive clerical or supervisory assistance, or both, an
agency may charge a reasonable service charge based on the actual cost
incurred.










The Freedom of Information Act (FOIA)
Records of federal agencies in Florida are not covered by the Public
Records Law. In 1966, Congress passed the Freedom of Information Act
(FOIA) to increase public access to federal government documents. The
FOIA generally applies to documents that serve the function of public
records and can be reproduced. The FOIA does not apply to Congress, the
White House, the federal courts or independent regulatory agencies.

Persons seeking records under the federal Freedom of Information Act
should contact the agency in possession of the record to get the name of
the agency information officer. If this informal contact is not successful, a
formal written request should be filed (requests can be patterned on the
request letter (illustrated in Appendix A). Each agency is required to
publish in the Federal Register a description of its structure and a list of
people to contact for an inquiry under the Act.

Once a formal request is made, the federal agency must release the
document or advise the requester that it falls into one of the nine exempt
categories. They are: national security, agency rules and practices,
specific statutory exemptions, confidential business information, internal
memoranda, personnel or medical files, law enforcement investigations,
banking reports and information about oil and gas wells.

The Electronic Freedom of Information ActAmendments of 1996 (E-FOIA)
guarantees that records maintained in computerform are as accessible as
paper records under FOIA. Among other things, the law requires agencies
make regulations, opinions, policy statements and similar information
available online, on CD-ROM or computer disc. It also requires agencies to
provide information in the format requested, whenever possible.

In addition to making electronic records accessible, the 1996 law amends
other portions of the FOIA. For example, an important section of the new
law allows expedited access for reporters who can demonstrate a "compel-
ling need" for the federal records they request under FOIA. Expedited
access is a faster processing of their requests than that of rank and file
requesters.

Agencies are now required to respond faster in two situations. First, when
failure to obtain records can pose an imminent threat to an individual's life
or physical safety. Second, and of particular interest to reporters, when a
request is made by a person primarily engaged in disseminating informa-
tion, and there is an urgency to inform the public concerning actual or
alleged federal government activity.










According to the new law, expedited access requests must be processed
within 10 days. In addition, the new law changes the time limit for other
requests from 10 to 20 days.
If you file a FOIA request, you should know that it is not unusual to wait
for months or even years for a response. Agencies say they do the best
they can with their resources. For example, the FBI spends $36 million a
year and employs 300 people to process FOIA requests. As a whole, the
federal government receives approximately 3 million FOIA requests per
year and spends $323 million processing them, according to Department
of Justice figures.
Some agencies meet the time limits to respond to requests. Most do
not. It is highly unlikely that response times will change much, even with
the passage of the new law, so plan accordingly.
Appeals can be directed to an agency head and subsequently to a federal
court. Unfortunately, information can seldom be obtained for free under
the Act. Members of the press may obtain a waiver of all or at least part
of the fees. Waivers are also available if the information will serve a public
interest, as opposed to a commercial interest.


Open Courts
The public's right to attend government meetings and view public records
is based on statutes enacted by legislative bodies. The right to attend
judicial proceedings and view judicial records generally is controlled by
courts based on traditional practices, court rules and constitutional law.

The U.S. Supreme Court has ruled the public has a qualified right of
access to criminal trials, jury selection and pretrial hearings. The Su-
preme Court has not yet formally extended this right to civil proceedings,
but traditionally the public is allowed to attend. Many lower courts have
ruled that civil proceedings are presumptively open.

If a proceeding historically has been open, the U.S. Supreme Court has
ruled judges can close it only if:

Evidence shows access will abridge a constitutional right, such
as the defendant's right to a fair trial;
Alternatives to closure would not protect the right jeopardized by
access, and
Closure is limited in time and scope only to what is necessary
to protect the right.


^










Judges also control the conduct of spectators in courtooms, the use of
cameras and recording equipment.


Florida Courts
The Florida Supreme Court
has ruled that criminal and
civil proceedings in state
courts generally should be
open to the public. Judges,
however, may close court- ....
rooms or seal certain
judicial records if the party
seeking closure has over-
come the presumption of .
openness by proving that:

Closure is necessary to prevent a serious and imminent threat
to the administration of justice;
No less restrictive measures are available, and
Closure would be effective to protect the defendant's rights
without being broader than necessary.

To close a civil proceeding, a judge must find closure is necessary to:

Comply with the state's constitution, a statute or case law;
Protect trade secrets;
Protect a compelling interest, such as national security, or the
identification of confidential informants;
Obtain evidence to properly determine legal issues in a case;

Avoid substantial injury to innocent third parties, such as children
in a divorce proceeding, or
Avoid substantial injury to a party by disclosure of matters pro-
tected by common law or privacy rights.

Before ordering closure in a civil proceeding, the judge must also find
that no reasonable alternative is available and then use the least
restrictive closure necessary to accomplish the stated purpose.










If you oppose closure, you should notify the court immediately of your
objection. You might say something like this:

"I am a reporter/citizen of this community.
I object to the proposed closure of this proceeding. I am
not an attorney, but I understand the public has a consti-
tutional and common law right of access to this and all
other court proceedings. I believe the law requires that
a hearing be held, with the press and public having an
opportunity to be heard through counsel, prior to closure.
I, therefore, request such a hearing."

Court decisions, procedural rules and the Florida Constitution provide for
access to judicial records. Court records generally are open for inspec-
tion once they are filed with the clerk, unless specifically closed by court
order or otherwise exempted.

A 1990 law prohibits a court from entering an order that conceals a public
hazard or information that may help guard against injury from a public
hazard. Known as the Sunshine in Litigation Act, the law enables the
public to inspect judicial documents regarding public hazards, even if the
parties agree to settle the litigation out of court.


Gag Orders
Judges may issue restrictive orders, often called "gag orders," preventing
parties and trial participants from talking about judicial proceedings. To
issue a gag order, a judge must demonstrate that there is a substantial
likelihood their statements would prejudice a criminal proceeding, that no
viable alternative exists and that the order is no broader than necessary
to protect the defendant's rights.
Judges may not, however, impose prior restraints that prevent members
of the media from publishing information they have already obtained,
unless there is an immediate threat to the administration of justice. A
party seeking a prior restraint has a heavy burden of proof because there
is a presumption against its constitutionality.










Cameras in Florida Courts
For more than 25 years, cameras and recording equipment have been
allowed in Florida courtrooms. There are, however, rules regulating the
number of television and still cameras permitted. Also, photographers must
use equipment that does not produce distracting light or sound. Cameras
may not be excluded solely because they make participants
nervous or self-conscious.

State judges may ban cameras
from judicial proceedings only if
the participant seeking the ban
can prove the presence of
cameras would have a "substan-
tial effect" on a trial participant 4
that would be "qualitatively
different" from coverage by other
media. -

Judicial orders denying electronic
or photographic recording of a
judicial proceeding are reviewable
directly by the Florida Supreme
Court.

Camera Access to Federal Courts
Although cameras are allowed in 50 states, they are still banned from
most federal courts and U.S. Supreme Court proceedings. However, the
Judicial Conference of the United States, the policy-making body for the
federal courts, passed a resolution that gave federal appellate judges the
discretion to allow still photographs or radio or television coverage of
appellate arguments.










Additional References


The Brechner Center for Freedom of Information, College of Journalism
and Communications, 3208 Weimer Hall, University of Florida, Gainesville,
FL 32611, is an important resource for information about access to govern-
ment and other media law issues in Florida, around the country and interna-
tionally. Call (352) 392-2273 for expert analysis and assistance, or to arrange
for a speaker. Visit our Web site: http://Brechner.org.

The Brechner Report, published by The Brechner Center for Freedom of
Information, College of Journalism and Communications, University of
Florida, is a monthly newsletter covering developments in media law in the
state of Florida. Copies of the newsletter, the Citizen's Guide to Florida
Government in the Sunshine and a sample public records request letter are
available online at the Brechner Center's Web site.

Government-in-the-Sunshine Manual, published by the FirstAmendment
Foundation, 336 E. CollegeAvenue, Suite 101, Tallahassee, FL 32301, is
prepared and updated annually by the state Attorney General's Office. To
order the manual, call (850) 222-3518 or (800) 337-3518. An electronic
version of the manual is available at: http://myfloridalegal.com.

The First Amendment Foundation also tracks legislative initiatives
impacting access and the FirstAmendment. A comprehensive summary of
legislative activities is available at: http://www.floridafaf.org. The Foundation
produces The Florida Public Records Handbook.

The Office of the Florida Attorney General provides information about
government-in-the-sunshine issues and possible mediation assistance. The
Attorney General's number is (850) 414-3300 or visit the Web site at: http://
myfloridalegal.com.

Florida Legislature's Online Sunshine, the official guide to the state
legislature, provides links to statutes, the Constitution and the Laws of
Florida, at: http://www.leg.state.fl.us.

How to Use the Federal Freedom of Information Act is published by the
FOI Service Center and sponsored by the Reporters Committee for
Freedom of the Press. This is an easy-to-read guide for persons wishing
to use the federal Freedom of Information Act. Visit the Web site: http://
www.rcfp.org for an online version.










A Sample Public Records Request Letter



Date
Records Custodian
Government Building
Anywhere, FL 54321


Dear Records Custodian,

Pursuant to the Florida Public Records Law, Chapter 119 of the Florida
Statutes, I request access to review and photocopy: (List all records you
wish to review, including any specifics such as governmental offices,
public officials, issues of importance, names or dates. In this section, be
as specific as possible in describing the records you want. This enables
the custodian to process your request more quickly and avoids unneces-
sary costs associated with records searches).

I am willing to pay all lawful and reasonable costs associated with this
request. Please notify me in advance what those costs will be.

If you intend to deny this public request in whole or part, I request that
you advise me in writing of the particular statutory exemption upon which
you are relying, and an explanation for doing so, as required by Chapter
119 of the Florida Statutes. Additionally, if the exemption you are claiming
applies to only a portion of a record, please delete the exempted section
and release the remainder of the record as required by law.

In light of the nature and importance of the records requested, please
make them available by (The public records law provides no definitive time
limit for fulfilling records requests, but states that agencies must respond
to records requests within a reasonable period of time.)
If you have any questions about this request, please call me at (your
number.)

Thank you in advance for processing my request.

Sincerely,


Concerned Citizen




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