Okaloosa County Tourist Development Council — April 25, 2013 (meeting #1135) — reading text

recommendations to a public body is clearly subject to the Sunshine Law, since the committee is performing a decision- making function. Wood v. Marston, 442 So.2d 934 (Fla. 1983). But for the specific exemptions provided by law, discussions between a public board and its attorney are subject to the Sunshine Law. Neu v. Miami Herald Publishing Company, 462 So.2d 821 (Fla. 1985). Section 286.011(8), Florida Statutes, establishes an exemption from meeting in the re As with most exemptions, the courts will strictly construe this statute and compliance with its terms. City of Dunnellon v. Aran, 662 So.2d 1026 (Fla. 5th of the lawyers participating in the shade meeting violated the Sunshine Law). 4 Packet Pg. 77  2.B.1.a E. Notice And Procedural Requirements A fundamental requirement of the Sunshine Law is that a public board or commission TSI Southeast, Inc. v. Royals, 588 So.2d 309 (Fla. 1st DCA 1991); Baynard v. City of Chiefland, No. 38-2002-CA-00078 (Fla. 8th Cir. Ct. July 8, 2003). The type of notice that must be given depends upon the facts of the situation and the board involved. In some instances, posting of the notice in an area set aside for that purpose may be sufficient. In others, more formal notice (such as publication in a local newspaper) may be Attachment: Sunshine Law Public Records and Ethics (1641 : Sunshine law) required. In any event, the notice must be given at such time and in such a manner as will enable the public to attend. Lyon v. Lake County, 765 So.2d 785 (Fla. 5th DCA 2000). The Sunshine law does not require that every item to be discussed by a board be included in a published agenda. Yarbrough v. Young, 462 So.2d 515 (Fla. 1st DCA 1985); Law and Information Services, Inc. v. City of Riviera Beach, 670 So.2d 1014 (Fla. 4th DCA 1996). The mere fact that a meeting is held in a public room does not make it public within the notice and provided a reasonable opportunity to attend. Bigelow v. Howze, 291 So.2d 645 (Fla. 2d DCA 1974); Rhea v. School Board of Alachua County, 636 So.2d 1383 (Fla. 1st DCA 1994). A meeting must be open to all who choose to attend. A request that certain members of ave the room during portions of a public meeting is not permitted. Port Local 1922-1, 652 So.2d th 1169 (Fla. 4 DCA 1995). A board is permitted to impose reasonable rules and policies which ensure the orderly conduct of a public meeting and which require orderly behavior on the part of the public attending its meetings. However, a board may not ban videotaping of an otherwise public meeting. Pinellas County School Board v. Suncam, Inc., 829 So.2d 989 (Fla. 2d DCA 2002). F. Consequences For Failure To Comply Section 286.011, Florida Statutes, provides that any member of a board who knowingly violates the Sunshine Law is guilty of a second degree misdemeanor. Section 112.52, Florida Statutes, permits the Governor to suspend an elected or appointed official who is indicted or informed against for any misdemeanor arising directly out of his or her official duties. If convicted, a public official may be removed from office by executive order of the Governor. The Sunshine Law also imposes noncriminal penalties for its violation, in the form of a fine not exceeding $500. 5 Packet Pg. 78  2.B.1.a Reasonable attorney fees may be assessed against a board or commission which has been found to have violated Section 286.011, Florida Statutes. Fees may be assessed against individual members of the board, except where the board sought, and took, the advice of its attorney. Appellate fees are also authorized. The circuit courts are provided jurisdiction to enjoin violations of the Sunshine Law. Unlike ordinary injunctive relief burdens of proof, the mere showing that the law has been Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974). No resolution, rule, regulation or formal action shall be considered binding except as Attachment: Sunshine Law Public Records and Ethics (1641 : Sunshine law) taken or made at a public meeting. Therefore, any action taken in violation of the Sunshine Law is void ab initio. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla. 1974); Blackford v. School Board of Orange County, 375 So.2d 578 (Fla. 5th DCA 1979); TSI Southeast, Inc. v. Royals, 588 So.2d 309 (Fla. 1st DCA 1991). However, the board may cure such a violation by a full reexamination and re-discussion of the subject matter in an open meeting. Tolar v. School Board of Liberty County, 398 So.2d 427 (Fla. 1981). II. PUBLIC RECORDS A. Scope Of The Public Records Law Article I, Section 24(a), Florida Constitution, provides: (a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. Pursuant to the authorizing language of subsection (c) of Section 24, the Legislature enacted Chapter 119, Florida Statutes, which establishes requirements for complying with requests for public records, specific exemptions from disclosure, penalties for violations, and provisions for an accelerated hearing to enforce compliance the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each 6 Packet Pg. 79  2.B.1.a 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. The Florida Supreme Court has interpreted this definition to encompass all materials made or received by any agency in connection with official business which are used to Attachment: Sunshine Law Public Records and Ethics (1641 : Sunshine law) perpetuate, communicate or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So.2d 633, 640 (Fla. 1980); Miami Herald Media Company v. Sarnoff, 2007 Fla. App. LEXIS 20113 (Fla. 3d DCA 2007). requirements of Chapter 119, Florida Statutes. If the purpose of a document prepared in connection with the official business of a public agency is to perpetuate, communicate or formalize knowledge, then it is a public record regardless whether it is in final form. Warden v. Bennett, 340 So.2d 977 (Fla. 2d DCA 1976). Therefore, any agency document, however prepared, if circulated for review, comment or information, is a public record irrespective of In Times Publishing Company, Inc. v. City of St. Petersburg, 558 So.2d 487 (Fla. 2d DCA 1990), the court found that while the mere preparation of documents by a corporate entity for submission to a public body does not create public records, those documents become public records when they are exhibited to public officials as part of the bargaining process, even where the public body does not take possession of the documents. in rememberi Chapter 119, Florida Statutes. The Justice Coalition v. The First District Court of Appeal Judicial Nominating Commission, 823 So.2d 185 (Fla. 1st DCA 2002); Coleman v. Austin, 521 So.2d 247 (Fla. 1st DCA 1988). B. Agencies Subject To The Public Records Act Any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission and the Office of Public Counsel, and any 7 Packet Pg. 80  2.B.1.a other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. public agency cannot avoid disclosure by contractually delegating to a private entity that which would otherwise be an agency responsibility. C. Kinds Of Records Subject To The Public Records Act 1. Computer records Attachment: Sunshine Law Public Records and Ethics (1641 : Sunshine law) subject to disclosure under the Public th Records Act. Seigle v. Barry, 422 So.2d 63 (Fla. 4 DCA 1982). Emails generated or received in connection with the transaction of official business that are intended to communicate, perpetuate, or formalize knowledge are public records, but private emails stored in a government computer are not automatically public records by virtue of that storage. State v. City of Clearwater, 863 So.2d 149 (Fla. 2003). An agency that maintains a record in an electronic recordkeeping system must provide a copy of that record in the medium requested, if the agency maintains the record in that medium. However, an agency is not Seigle v. Barry, 422 So.2d 63 (Fla. 4th DCA 1982). The Court went on to state that an agency may be required to provide access through a specially designed program by or at the request of