Florida Public Official Ethics - PUBLIC RECORDS and MEETINGS
Second DCA reverses dismissal of action alleging Sunshine Law violations by school board in textbook selection process. [Added 10/5/21]
Plaintiffs filed suit against School Board. One count alleged that School Board violated the Sunshine Law (F.S. 286.011) by delegating a substantial portion of its authority regarding textbook selection to “Textbook Committees” that met in closed sessions without public meeting notices. The trial court dismissed the count, and Plaintiffs appealed.
The Second DCA reversed and remanded for further proceedings. “School board actions are subject to the Sunshine Law. . . . When a school board delegates part ‘of its decision-making authority to an advisory group, those meetings must be open to the public.’” (Citations omitted.) The appeals court concluded that “the Textbook Committees have been delegated decision-making authority, that the Sunshine Law applies to meetings of the Textbook Committees, and that those meetings must be open to the public with reasonable notice provided.”
As to notice, “[t]he School Board does not dispute that notice for meetings of the Textbook Committees was not given on the public notices page of the [school] District’s website or in the newsletter. Rather, the notice was posted to the instructional materials page of the District’s website.” This location was difficult to find, and “[n]othing indicated that the meetings were public.” Consequently, the court stated: “We agree with the Plaintiffs that burying a notice inside a committee application and calendar on the instructional materials page of the District’s website is an unreasonable way to give public notice of a meeting. Under these circumstances, we conclude as a matter of law that reasonable notice of the committee meetings was not given.”
Finally, the court rejected the contention that the School Board’s approval of the Textbook Committees’ recommendations in an open meeting satisfied the Sunshine Law “because a full and open hearing was not had on the Textbook Committees’ recommendations.” Florida Citizens Alliance, Inc. v. Lewis, __ So.3d __ (Fla. 2d DCA, No. 2D20-739, 9/10/2021), 2021 WL 4125800.
First DCA affirms ruling that private entity was not subject to open records and open meetings laws. [Added 8/27/21]
Holifield sued Big Bend Cares, Inc. (“Appellee”) for alleged violations of the open records and open meetings laws (F.S. Ch. 119 and 286). The trial court entered summary judgment for Appellee. Holifield appealed.
The First DCA affirmed. It was undisputed that Appellee is a private entity. Chapter 119 (public records) can apply to private entities in two circumstances: where a government agency has delegated a statutorily authorized function to the private entity; or where a government agency contracts with a private entity for provision of goods or services to facilitate the agency’s performance of its duties. Holifield contended that the second situation applied, but the First DCA disagreed. “[T]he public agency here did not delegate any decision-making authority to Appellee, and there is no evidence that the agency ‘regulate[d] or otherwise control[led]’ Appellee’s ‘professional activity or judgment.’ (Citation omitted.) Additionally, even if Appellee received a slight measure of support from the City of Tallahassee related to its facilities, there is no dispute that the activities in question were being conducted on property owned by Appellee, or that Appellee was not created pursuant to any government action. The trial court also correctly noted that the amounts paid by DOH to Appellee were all amounts paid in consideration for professional services already rendered . . .”
Nor did Chapter 286 (open meetings) apply to Appellee. By its express terms, this law applies to governmental bodies and not private entities. It can apply to a private entity when a public agency has delegated the performance of its public duty to the private entity, but that was not the situation here. Holifield v. Big Bend Cares, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D19-3389, 8/9/2021), 2021 WL 3029546.
Second DCA reverses order finding city’s prepayment request for public records production unreasonable, also noting that because litigation was pending public records request should have been submitted to city attorney rather than city clerk. [Added 8/23/21]
A property purchaser discovered that the land was contaminated, allegedly as a result of illegal dumping by City. The parties entered into an agreement under which City was to remediate the contamination. The purchaser assigned its rights to Dorchester, which sued City. After filing suit Dochester’s counsel sent a public records request to the City Clerk seeking a large volume of records.
City’s initial estimate for costs to fulfill the request was for about $6155 to be paid in advance, with possible additional costs of about $256,571 to review the responsive documents for exempt information. Dorchester revised the scope of its request, and the Clerk advised Dorchester that the cost to review the documents for exempt information would be about $27,500. Following communications between Dorchester and the City Attorney, Dorchester filed a suit against City alleging unlawful refusal to provide the requested public records. After a hearing the trial court entered an order finding the City’s cost estimates were unreasonable and that, due to its request for prepayment, the City unlawfully refused to respond to the records request. City appealed.
The Second DCA reversed. The court summarized the obligations of the City under Florida law: “[T]he Public Records Act requires a records custodian to determine whether the requested records exist, locate the records, and review each record to determine if any of those records are exempt from production. Moreover, if the nature or volume of the requested records requires the extensive use of information technology resources or clerical or supervisory assistance, the Act permits the agency to charge a special service charge to cover these costs, and the City’s preliminary estimate regarding this charge must be paid in advance.”
In this case, the appeals court noted that the trial court apparently assumed, incorrectly, that the City was requiring prepayment of the estimated $27,500 cost of review; actually, the City asked Dorchester to prepay only $6155. Further, Dorchester failed to present evidence that the City’s estimates were unreasonable. The record also contained no meaningful findings or explanation regarding the conclusion that the City’s estimate was unreasonable. “Accordingly, we conclude that the trial court erred in holding that the City’s prepayment request constituted an unlawful interference with Dorchester’s right of access to public records.”
In a footnote, the court also addressed the ethical question of whether the public records request should have been sent to the City Attorney instead of the City Clerk. “Although there appears to be no prohibition against using the [Public Records] Act as a discovery device, thereby circumventing the rules of civil procedure regarding discovery, this does not provide an attorney who represents a party in pending litigation with carte blanche to directly contact a represented opposing party. See R. Regulating Fla. Bar 4-4.2; Fla. Bar Ethics Opinion 09-1 (concluding that a lawyer may not communicate with government officers, directors, or employees who are directly involved or whose acts can be imputed to the government entity in a represented matter); . . . Here, because litigation was pending, Dorchester’s counsel should have submitted the public records request to the City Attorney, not the City Clerk.” City of St. Petersburg v. Dorchester Holdings, LLC, __ So.3d __ (Fla. 2d DCA, No. 2D20-463, 7/21/2021), 2021 WL 3059699.
Motion for fees against county in public records case was properly denied, per Fourth DCA. [Added 8/18/20]
Under a license agreement with the County, Uber must file monthly reports that contain both aggregate and granular data about Uber’s activity level at certain County transportation venues. Uber marks those reports are containing trade secret information.
Cab Company made a public records request for the reports. County produced a redacted set of reports. Cab Company sued County seeking the un-redacted records. Uber moved to intervene to protect its allegedly trade secret information.
After an evidentiary hearing, the trial court entered an order finding that the redacted information was trade secret information and so was exempt from disclosure under the Public Records Act. The order also found that County had not violated the Act. Cab Company moved for rehearing “for the limited purpose ‘of obtaining an order that requires disclosure of only the amount paid, or due, to the County, based upon the number of pick-ups.’ The motion did not seek rehearing of the trial court’s express ruling in the final order that Broward County did not violate the Public Records Act.” The court granted the rehearing motion in part and found certain aggregate information was not entitled to the trade secret exemption.
Uber appealed (“Rasier I”), but Cab Company did not cross-appeal the determination that County had not violated the Public Records Act. After the judgment was affirmed, Cab Company moved for fees against County under F.S. 119.12. The trial court denied the motion. Cab Company appealed.
The Fourth DCA affirmed. “By its terms, section 119.12 only allows for fees ‘if the court determines that [the] agency unlawfully refused to permit a public record to be inspected or copied.’ . . . In other words, a determination that a public agency acted unlawfully for purposes of awarding attorney’s fees is predicated on a finding by the trial court that the agency violated a provision of the Public Records Act. . . . With these parameters in mind, Broward County and Uber jointly argue that by failing to cross-appeal the trial court’s ruling that Broward County did not violate the Public Records Act in Rasier I, Yellow Cab necessarily waived the issue of whether Broward County unlawfully refused the public records request. We agree.” B&L Service, Inc. v. Broward County, __ So.3d __ (Fla. 4th DCA, No. 4D19-2100, 7/29/2020), 2020 WL 4342715.
Person whose request for public record was denied until conclusion of active investigation was properly denied attorney’s fees. [Added 1/17/20]
McLendon requested a copy of a complaint that was the subject of an investigation by the Palm Beach County Office of Inspector General. The Office refused to furnish the copy until the investigation was closed, at which time it provided the copy. McLendon “moved for attorney’s fees, contending that the initial complaint was not subject to an exemption from disclosure and that he was entitled to his attorney’s fees incurred in obtaining the document. The trial court disagreed and denied the fees.” McLendon appealed.
The Fourth DCA affirmed. The initial complaint was exempt from public records disclosure. As a result, the Office “properly declined to produce the complaint, and the trial court correctly denied appellant’s claim for attorney’s fees.” McLendon v. Palm Beach County Office of Inspector General, __ So.3d __ (Fla. 4th DCA, No. 4D18-2818, 12/18/2019), 2019 WL 6884999.
Petition for writ of mandamus is proper vehicle for challenging denial of public records request based on alleged exemption. [Added 11/25/19]
A requester whose request for public records was denied filed a petition for writ of mandamus. The trial court determined that a petition for writ of mandamus “was the wrong procedural vehicle to address the dispute” because the City from which the records were sought had asserted that the records were exempt from disclosure. The requester appealed.
The Second DCA noted that the trial court’s determination “was incorrect; a petition for writ of mandamus is an appropriate vehicle to challenge the denial of a public records request, even where an exemption has been asserted” (footnote omitted). The appeals court concluded, however, that the requester’s appeal was moot because it had sought the same records in a separate suit for declaratory and injunctive relief and the “substantive issues that the trial court declined to address in the instant case have already been fully resolved in the separate action.” Deeson Media, LLC v. City of Tampa, __ So.3d __ (Fla. 2d DCA, No. 2D18-3150, 11/15/2019), 2019 WL 6041428.
Court properly ordered redaction of mediation communications from “shade meeting” transcript before release as public record. [Added 10/7/19]
A Water Management District was involved in litigation. The parties were ordered to mediation. Subsequently the attorney for the District met with the District board at a “shade meeting” during which a court reporter transcribed the closed-door session. A nonprofit environmentally-interested law firm sought release of the transcript. The District resisted on the ground that the “mediation communications” reflected in the transcript are exempt from public records disclosure. With the agreement of the parties, the trial court ruled on the matter without conducting an in camera review of the transcript. The court ordered that the mediation communications be redacted from the transcript. Seeking the entire transcript, the law firm appealed.
In a “matter of first impression” involving shade meetings and mediation communications, the Fourth DCA affirmed the ruling that the mediation communications should be redacted but reversed for an in camera review to determine if the redactions are appropriate. The court summarized its conclusions: “We conclude that the trial court properly applied constitutional and statutory provisions and correctly ruled that the statutory mediation communication exemption under sections 44.102(3) and 44.405(1) precluded the disclosure of the full Shade Meeting transcript under review. We further affirm the trial court’s ruling that the exemption is permanent and not temporary. However, the trial court erred in denying the petition for writ of mandamus without conducting an in camera review of the transcript to determine if redactions of claimed mediation communications are appropriate. Thus, we reverse the final judgment and remand for the trial court to conduct the required in camera review of the full Shade Meeting transcript to assess whether redactions of mediation communications proposed by the District have been appropriately applied.” Everglades Law Center, Inc. v. South Florida Water Management District, __ So.3d __ (Fla. 4th DCA, Nos. 4D18-1220, 4D18-1519, 4D18-2124, 9/18/2019), 2019 WL 4458737.
Names of mental health experts who visit high-profile criminal defendant in jail not exempt from disclosure under public records law. [Added 8/20/19]
Mental health experts who visit Criminal Defendant in jail sign in on a visitor log. Defendant filed a motion to keep the names of the experts from being disclosed under the public records law. The trial court denied the motion, and Defendant petitioned for certiorari review.
The Fourth DCA denied the petition. Defendant “failed to overcome that the jail’s visitor logs are public records with no statutory exemption for the experts’ names within those logs.” Discussing Andrews v. State, 243 So.3d 899 (Fla. 2018), the appeals court agreed that Defendant made a showing of irreparable injury (which is a jurisdictional requirement for certiorari), but concluded that the trial court’s ruling did not depart from the essential requirements of law.
The jail visitation logs are public records and no statutory exemption that allows redaction of the records to keep the names from disclosure. Unlike in Andrews, this case involved no attorney-client or work product privileges. The court concluded: “[Defendant] failed to demonstrate that the trial court departed from the essential requirements of law in denying his motion for protective order. The constitution and the Public Records Act do not authorize redacting the names of the experts visiting petitioner in jail. If public policy demands that these be kept confidential, it is for the Legislature to provide an exemption by statute.” Cruz v. State, 279 So.3d 154 (Fla. 4th DCA 2019), review denied, __ So.3d __ (Fla., No. SC19-1784, 3/11/2020) .
City commission’s “full and open public meeting” cured any potential Sunshine Law violation relating to process for eliminating some applicants for vacant commission seat. [Added 3/20/19]
The First DCA affirmed a summary judgment ruling that the City of Tallahassee “did not violate the Sunshine Law in its process of eliminating some applicants for a vacant [City] commission seat, and that regardless of any asserted violation, the city’s later meeting eliminated any purported taint from the earlier process by conducting a full and open public meeting to fill the vacancy.” The court explained: “[W]e agree with the circuit court that “the December 31, 2018 meeting was not [a] perfunctory or ceremonial acceptance of a prior decision made outside the Sunshine.’ Accordingly, as the court concluded, any purported violation ‘was cured by the full, open and fair consideration of the appointment at the December 31, 2018 meeting.’” Jackson v. City of Tallahassee, __ So.3d __ (Fla. 1st DCA, No. 1D19-366, 3/8/2019), 2019 WL 1090561.
Records reflecting governor’s future travel schedule and location may be exempt from disclosure under Public Records Act. [Added 11/28/18]
An entity made a request under the Public Records Act for copies of documents showing the governor’s calendar, travel schedule, and whereabouts during stated time periods in the future. The governor’s office declined to produce the records, asserting that they were exempt from disclosure under F.S. 119.071(2)(d) (which exempts “[a]ny information revealing surveillance techniques or procedures or personnel”). The governor’s office filed a supporting affidavit from a Florida Department of Law Enforcement agent who attested that premature disclosure of the information would reveal law enforcement techniques, procedures, and personnel and so would compromise security. The trial court ordered production, and an expedited appeal followed.
The First DCA reversed and remanded. Most of the requested information was exempt from disclosure under F.S. 119.071(2)(d). As to the remainder, the appeals court directed that the trial court make an in camera inspection prior to determining whether the exemption applied. Executive Office of the Governor v. AHF MCO of Florida, Inc., __ So.3d __ (Fla. 1st DCA, No. 1D18-3951, 10/29/2018), 2018 WL 5315973.
Claim for violation of public records laws not mooted because record-keeping entity provided requested records after suit was filed but before hearing was held. [Added 11/20/18]
O’Boyle and Asset Enhancement, Inc. (collectively, “Appellants”) made a public records request to Town, asking for copies of (1) text messages sent or received by the Town’s Mayor since the time of his appointment and (2) bills and payments sent to the Town for services rendered by the Town’s attorney. Town did not provide the requested documents, instead allegedly producing redacted copies of the bills and payments and only selected text messages. Appellants filed suit alleging that Town violated the Public Records Act (F.S. Ch. 119). They asked the court to order an in camera review of the legal bills. Town turned over the billing and payment records without redactions, and then filed a motion to dismiss. The court granted the motion to dismiss.
The Fourth DCA reversed and remanded, addressing both categories of requested documents.
Text Messages. Text messages sent or received by public officials or employees of a government agency are public records subject to disclosure upon request under the Act if the messages are related to their public responsibilities. “Accordingly, the Town’s reasons for its lack of disclosure, whether for reasons related to relevancy, the application of possible privileges, or otherwise, necessitates a judicial review of the available communications to identify those which are subject to disclosure and any defenses to allegations of noncompliance.” The appeals court remanded for an in camera review of the disputed text messages to determine whether they are public records.
Town attorney’s billing and payment records. Town claimed that Appellants’ request for these records was moot because Town ultimately provided a complete set of unredacted records. The appellate court disagreed, concluding that “this claim was not moot due to the presence of collateral issues yet to be decided by the trial court – specifically, a determination whether the Town’s initial redactions of the bills were proper, and whether any reasonable attorney’s fees, costs, and expenses, should be awarded. We therefore reverse and remand for a determination of those issues.” O’Boyle v. Town of Gulf Stream, __ So.3d __ (Fla. 4th DCA, No. 4D17-2725, 10/24/2018), 2018 WL 5291287.
Court properly ordered release of video footage of school shooting as public record. [Added 8/10/18]
Events as part of a school shooting were video recorded. Media outlets requested copies under the Public Records Act. The State Attorney’s Office and the School Board objected, arguing that the footage was exempt from release under exceptions to the Act. The trial court ordered disclosure of the footage. The State Attorney’s Office and the School Board appealed.
The Fourth DCA affirmed. The court commented that the videos at issue “are public records subject to disclosure within the meaning of” Fla.Constit. Art. I, sec. 24(a) and F.S. Ch. 119. Consequently, “[t]he central issue before [the court] is whether the footage is statutorily exempt from disclosure.”
The State Attorney’s Office argued that the videos were exempt from disclosure under F.S. 119.071(2) as “active criminal investigation information.” The appeals court rejected that contention because “the footage was created before the criminal investigation began and was compiled by the School Board, not a law enforcement agency.” The videos were not covered by the exemption because “they were not compiled by a criminal justice agency in the course of conducting a criminal investigation.” Further, the criminal investigative information exception does not exempt public records from disclosure just because they are transferred to a law enforcement agency.
The School Board had argued that the footage, which was taken by its surveillance cameras, was exempt from disclosure under the “security plan” exemption in F.S. 119.071(3). The appeals court rejected this contention on the ground that the “good cause” exception to the exemption applied. State Attorney’s Office v. Cable News Network, Inc., __ So.3d __ (Fla. 4th DCA, Nos. 4D18-1335, 4D18-1336, 7/25/2018), 2018 WL 3569397.
Public records exemption for personal financial information identifying specific consumer in connection with insurance policy upheld as constitutional by First DCA. [Added 5/9/18]
Consumers may contact the Department of Financial Services about 2 sinkhole-related programs overseen by the Department under the insurance code. Two Law Firms had routinely obtained information from the Department of Financial Services regarding policyholders who contacted the Department to participate in either program, including the policyholders’ names, addresses, phone numbers, email addresses, type of insurance, reason for contacting the Department, and insurance company information. The Department had provided this information under the belief that it was public records. Recently, however, the Department changed its analysis and concluded that the information was protected from disclosure by an exemption in F.S. 624.23 for “personal financial” information.
The Law Firms filed suit seeking the information. The trial court granted summary judgment for the Department. Law Firms sought a determination that the statute was unconstitutional, and the court agreed. The Department appealed.
The First DCA reversed, holding that the statute was constitutional. F.S. 624.23 “satisfies the two-pronged test for constitutionality under [Fla.Constit.] Article I, section 24(c) and Halifax [Hospital Medical Center v. News-Journal Corp., 724 So.2d 567, 569 (Fla. 1999)].” Florida Dept. of Financial Services v. Danahy & Murray, P.A., __ So.3d __ (Fla. 1st DCA, No. 1D17-2493), 2018 WL 1885890.
Fourth DCA reverses determination that Sunshine Law violation was cured by subsequent public meeting. [Added 5/7/18]
Plaintiff Transparency for Florida, Inc. (“Transparency”) sued City alleging a violation of the Sunshine Law. Specifically, the complaint claimed that city council members were improperly polled by the city attorney to determine their position on the terminated city manager’s separation agreement. After the polling, there was a special meeting held in public on just less than 24 hours notice. At that meet the separation agreement was approved without discussion. The defendants denied violating the Sunshine Law, but argued that any violation was cured by the public meeting. The trial court agreed and granted defendants’ motion for summary judgment. Transparency appealed.
The Fourth DCA reversed and remanded, concluding that there were disputed issues of fact. The appeals court was of the view that the evidence presented did not conclusively refute the allegation that the city attorney acted as a liaison for communication between the council members in violation of the law. The trial court “correctly concluded that it could not definitively find that no Sunshine Law violation occurred,” but erred in ruling that any violation was cured by the subsequent special meeting. The court quoted from Zorc v. City of Vero Beach, 722 So.2d 891, 903 (Fla. 4th DCA 1998): “only a full, open hearing will cure a defect arising from a Sunshine Law violation. Such violation will not be cured by a perfunctory ratification of the action taken outside of the sunshine.” The separation was not discussed during the public meeting, but merely unanimously approved. “[W]e conclude that there are disputed issues of fact as to whether the meeting on the separation agreement cured any Sunshine Law violation which may have occurred prior to the meeting in the formation of the separation agreement and termination of the city manager.”
The court further noted that “[t]here remains a disputed issue of fact” regarding whether the notice provided for the meeting was reasonable. Transparency for Florida v. City of Port St. Lucie, __ So.3d __ (Fla. 4th DCA, No. 4D16-3976, 4/18/2018), 2018 WL 1865024.
State attorney did not violate public records law by making requested records available at main office rather than office closer to requester’s home. [Added 4/19/18]
Following a decision not to charge his client, the client (through his lawyer) made a public records request to see and copy the state attorney’s case file. In accordance with his office’s public records policy, the state attorney offered to make the records available at his main office, where he had reviewed them. When the requester filed suit, the trial court ruled that the state attorney had violated the public records law by not making the records available at his branch office closer to the requester’s home. The state attorney appealed.
The First DCA reversed. “By making the records available at his main office in Live Oak, where they had been reviewed for exemptions pending [the requester’s] inspection, State Attorney Jarvis satisfied his legal obligation. His office was a reasonable place to make the State Attorney’s records available in the Third Circuit, even if [the requester] had to drive some twenty-five miles to view them.” (Footnote omitted.) Siegmeister v. Johnson, __ So.3d __ (Fla. 1st DCA, No. 1D17-992, 2/20/2018), 2018 WL 944474.
City violated Sunshine Law because city council’s discussions exceeded scope of “shade session” exception to law. [Added 4/11/18]
During a city council meeting, the council met with its legal counsel to discuss a city ordinance that had been challenged in federal court. This portion of the meeting was closed to the public under the exception to the Sunshine Law (F.S. 286.011) that permits “shade sessions,” which are “confined to settlement negotiations or strategy sessions related to litigation expenditures.” F.S. 286.011(8)(b). Immediately after the shade session the council voted to amend the ordinance. A member of the public filed a suit against the city seeking injunctive relief and a declaratory judgment that the city violated the Sunshine Law.
The trial court ruled that the council did not break the law during the “shade session” but did invalid the ordinance because of the city’s failure to follow statutory notice requirements. The plaintiff appealed. The Second DCA affirmed the judgment that the notice requirements were violated, but reversed the trial court’s conclusion that the Sunshine Law had not been violated.
The scope of the discussion during the shade session was not limited to discussing settlement or litigation expenditures in the federal suit challenging the ordinance. Rather, “a great majority of the discussion involved the specifics of a proposed amendment to” the ordinance. “In short, the shade meeting was used to crystallize a secret decision to a point just short of ceremonial acceptance, in violation of Florida's Sunshine Law. [The plaintiff] was entitled to summary judgment holding such.” The court remanded for further proceedings, citing Anderson v. City of St. Pete Beach, 161 So.3d 548, 554 (Fla. 2d DCA 2014). City of St. Petersburg v. Wright, __ So.3d __ (Fla. 2d DCA, No. 2D16-3361, 2/14/2018), 2018 WL 844075.
Court erred in ordering disclosure of public records ina city’s risk management claims file on basis that release of records, though protected by statute, would not prejudice city. [Added 1/10/18]
McDonough filed a Notice of Intent to File Claim against the City of Homestead based on an incident involving McDonough and an off-duty City police officer. McDonough also filed a defamation action against the officer. City decided to defend the officer in the defamation action and retained a law firm for that purpose. McDonough filed a public records request seeking documents relating to City’s decision. City responded that the documents “contained the impressions of attorneys retained by the City related to the pending Notice of Intent claim” and were exempt from production because of the “claims file exemption” contained in F.S. 768.28(16)(b) (“Claims files maintained by any risk management program administered by the state, its agencies, and its subdivisions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident, although portions of the claims files may remain exempt, as otherwise provided by law.”).
The trial court ruled that the 5 documents in question were part of City’s claims filed, but nonetheless ordered production of 2 of the documents on the ground that they were not confidential and there would be no prejudice to City as a result of producing them.
The Third DCA reversed. The fact that the documents were in City’s risk management claims file made them confidential and exempt from production under F.S. 768.28(16)(b). “[T]he trial court erred by creating a ‘no harm’ exception to section 768.28 that is not contained in either statute or case law. While finding that the documents were contained in the risk file and as such should be exempt, the trial court determined that their production would not harm the City and would not place the City at any disadvantage, and thus were not confidential. This ignores the plain language of the statute indicating that the entire claims file is exempt from disclosure until resolution of the claim or claims. The statute does not contain such an exception to the privilege.” City of Homestead v. McDonough, __ So.3d __ (Fla. 3d DCA, No. 3D16-2462, 11/1/2017), 2017 WL 4937816.
Amendment to Public Records Act applies retroactively and prevents disclosure of identity of witnesses to a murder who could also be considered victims of a crime. [Added 10/5/17]
Someone shot and killed the murder victim as he was driving on I-95. A vehicle with 2 occupants followed the suspect’s vehicle and tried to get its license number. The suspect shot at their car. The shots struck their car but did not hit the occupants.
Newspaper made a public records to the Sheriff’s Office (PBSO) for the names of the persons who chased the suspect. PBSO refused to provide the requested information “because, in its view: (a) the identity of witnesses to a crime was covered by the so-called ‘active criminal investigative information’ exception to the [Public Records] Act; and (b) as these ‘witnesses’ were not ‘victims’ of the primary crime being investigated (the homicide), the statutory ‘exception’ to this ‘exemption’ – which compels disclosure of the identity of ‘the victim of a crime’ – was not implicated.” See F.S. 119.001(3)(c)(2).
Newspaper filed suit under the Public Records Act. The trial court orally granted Newspaper’s request for the information and ordered disclosure, “that these individuals – while primarily witnesses – also were victims and, as a result, their identifying information was specifically excluded from the definition of ‘active criminal investigative information’ and hence outside the reach of this exemption.” See F.S. 119.001(3)(c)(2). The trial court also stayed its order so that PBSO could appeal.
The Fourth DCA reversed. The appeals court observed that the relevant statute “as plainly written, excepts victim information from what would otherwise be this applicable exemption from disclosure.” PBSO maintained that the persons who saw the shooting were not “victims” of the crime being investigated – the murder. They were, in the view of PBSO, “primarily witnesses.” Applying the statute, the appeals court concluded that the trial court correctly decided that “the names of these individuals were not exempt from disclosure as criminal intelligence or investigative information.”
The court’s analysis, however, did not end there due to a recent legislative amendment to the Public Records Act. The amendment exempted information that identified the witnesses to a murder for 2 years after the date of the murder. Under the amendment, in the court’s view, “just as a victim’s information is subject to disclosure even if that victim also happens to be a witness, information regarding a witness to a murder is protected even if that witness also happens to be a victim.” The court concluded that the amendment applied retroactively and reversed the trial court’s disclosure order. Palm Beach County Sheriff’s Office v. Sun-Sentinel Co., LLC, __ So.3d __ (Fla. 4th DCA, No. 4D17-1060, 9/6/2017), 2017 WL 3888807.
Court erred by ordering production of public records in time frame that did not allow redaction of exempt information and without requiring payment from requesting law firm. [Added 7/11/17]
Law Firm, which represented a defendant in a criminal case, submitted public records requests to the Florida Agency for Health Care Administration (“AHCA”). AHCA searched for the records and identified a huge number of results. The parties worked together to refine the search terms, but the searches still produced “a massive” number of results. AHCA billed Law Firm for charges, but Law Firm claimed the charges were unreasonable and did not pay. AHCA declined to produce the records.
The searches were further refined and produced fewer results, but Law Firm did not pay the reduced cost reimbursement invoices. Seeking to compel AHCA to produce the records, Law Firm petitioned for a writ of mandamus. The trial court ordered AHCA “to produce a modified list of documents within forty-eight hours, without requiring any payment prior to production.” AHCA appealed.
The First DCA reversed. An agency that receives a public records request is obligated to redact information that is exempt from disclosure under the public records law, such as social security numbers or bank account information. Further, the law requires that an agency provide public records upon the requestor’s payment of the legally prescribed fee. The appeals court concluded: “The trial court erred by requiring production of documents within forty-eight hours of the date of the order because the documents could not be reviewed for redaction within this compressed time period. The trial court further erred by requiring production of the documents prior to payment of AHCA’s invoices.”
The appeals court also ruled that the requirements for mandamus were not met. Florida Agency for Health Care Administration v. Zuckerman Spaeder, LLP, __ So.3d __ (Fla. 1st DCA, No. 1D16-4801, 7/6/2017), 2017 WL 2870998.
Court erred in invalidating approval of workers’ compensation insurance rate increase for alleged violations of open meetings and public records laws. [Added 6/13/17]
The National Council on Compensation Insurance (“NCCI”) is a licensed insurance rating organization operating nationwide. After Florida Supreme Court decision affecting workers’ compensation insurance (Castellanos v. New Door Co., 192 So.3d 431 (Fla. 2016)), NCCI filed a request with the Florida Office of Insurance Regulation (“OIR”) for a rate increase. A single NCCI employee, Rosen, was responsible for the rate determination proposal. While that matter was pending, the Supreme Court decided another case that could affect workers’ comp insurers (Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla. 2016)). NCCI filed an amended rate request.
After each filing, Fee made a public records request of NCCI for documents relating to these and prior rate filings. NCCI provided Fee with documents. Prior to the public hearing on NCCI’s rate filing, Fee filed suit alleging: “(1) NCCI violated the Sunshine Law [F.S. 286.011], byfailing to provide notice of or a meaningful opportunity to participate in committee meetings where its rate proposals were discussed; (2) the amended rate filing was void ab initio due to violations of the Sunshine Law; (3) NCCI violated [F.S. 627.291(1)], by denying Fee access to records regarding the rate proposal; and (4) NCCI violated the Public Records Act by failing to respond to Fee’s records requests.”
While the suit was pending, the OIR approved a rate increase at a lower amount than sought by NCCI. The trial court in Fee’s suit then held an evidentiary hearing. The court “determined that the order approving the rate increase was void because NCCI and OIR violated the Sunshine Law under three separate statutory provisions” (F.S. 627.091(6), 286.011, and 627.093). The court also ruled that NCCI violated F.S. 627.291(1) and 119.07 when it denied Fee access to its records. OIR and NCCI appealed.
The First DCA reversed, deciding that no violations occurred and ordered reinstatement of OIR’s order approving the rate increase.
Open meetings violations did not occur because there was only a single NCCI employee responsible for determining rate increase proposals. The Sunshine Law would apply only “when the rate-determination committee of a rating organization meets to determine workers’ compensation insurance rates.” No NCCI committee had been responsible for workers’ compensation rate determinations for the past 25 years. Further, the Sunshine Law did not apply to NCCI’s internal meetings, because only Rosen had authority to determine the rate to be proposed to OIR.
The court also explained why NCCI was not required to provide Fee with access to its records under sections 627.291 or 119.07. National Council on Compensation Ins. v. Fee, __ So.3d __ (Fla. 1st DCA, Nos. 1D16-5408, 1D16-5416, 5/9/2017), 2017 WL 1908370.
Fourth DCA affirms trial court’s determination that hourly fee of $189.21 to respond to public records request involving ballot inspection was reasonable under circumstances. [Added 12/29/16] -- Trout v. Bucher, __ So.3d __ (Fla. 4th DCA, No. 4D16-369, 12/7/2016), 2016 WL 7118836.
Court’s order denying petition to compel disclosure of public records reversed because court failed to hold hearing before ruling. [Added 10/15/16] -- Kline v. University of Florida, __ So. 3d __ (Fla. 1st DCA, No. 1D15-4216, 10/4/2016), 2016 WL 5804982.
When responding to public records request, public agency not required to identify the statutory exemption for each individual redaction in record. [Added 9/6/16] -- Jones v. Miami Herald Media Co., __ So.3d __ (Fla. 1st DCA, No. 1D16-1906, 8/29/2016), 2016 WL 4506121
Inmate who filed mandamus petition suit to compel production of public records may be entitled to costs, despite fact that documents were provided shortly after he filed. [Added 7/26/16] -- Cookston v. Office of the Public Defender, Fifth Judicial Circuit, __ So.3d __ (Fla. 5th DCA, No. 5D15-4074, 7/15/2016), 2016 WL 3769055.
County’s “wait and see” attitude toward public records request results in imposition of attorney’s fees. [Added 7/7/16] -- Schweickert v. Citrus County Florida Board, __ So.3d __ (Fla. 5th DCA, No. 5D15-3007, 6/17/2016), 2016 WL 3353692.
Failure to immediately produce public records in response to request from email that appeared to be spam was not “unlawful refusal” and thus could not support fee award to requestor. [Added 6/6/16] -- Citizens Awareness Foundation, Inc. v. Wantman Group, Inc., __ So.3d __ (Fla. 4th DCA, No. 4D15-1760, 5/25/2016), 2016 WL _______.
University student disciplinary records protected by federal privacy law (FERPA) and generally not subject to disclosure under Public Records Act, with limited exception for information about student government officers. [Added 4/19/16] -- Knight News, Inc. v. University of Central Florida, __ So.3d __ (Fla. 5th DCA, No. 5D14-2951, 4/8/2016) (on rehearing), 2016 WL 1385921.
Supreme Court holds that prevailing party is entitled to fees under Public Records Act when public agency violated Act, regardless of whether agency acted in bad faith. [Added 4/15/16] -- Board of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, __ So.3d __ (Fla., No. SC13-1315, 4/14/2016), 2016 WL _______.
Fee award against Department of Economic Opportunity for failing to timely respond to public records request is reversed because requestor did not give timely notice to Department of Financial Services as required by F.S. 284.30. [Added 12/30/15] -- Dept. of Economic Opportunity v. Consumer Rights, LLC, __ So.3d __ (Fla. 1st DCA, No. 1D15-0383, 12/18/2015), 2015 WL 9258293.
At least some information in Facebook post that sparked criminal investigation is public record and should be disclosed, notwithstanding ongoing investigation. [Added 8/21/15] -- Barfield v. City of Tallahassee, __ So.3d __ (Fla. 1st DCA, No. 1D14-5530, 8/14/2015), 2015 WL 4774021.
Public hospital violated Public Records Act by placing unreasonable restrictions on requester’s access to records. [Added 7/16/15] -- Lake Shore Hospital Authority v. Lilker, __ So.3d __ (Fla. 1st DCA, No. 1D14-4579, 7/8/2015), 2015 WL 4111669.
County’s delay in providing public records in response to anonymous request from generic email address was not unlawful refusal and thus would not support fee award to requestor. [Added 3/23/15] -- Consumer Rights, LLC v. Union County, __ So.3d __ (Fla. 1st DCA, No. 1D14-263, 2/26/2015).
The First DCA addresses a question with “no clear answer” – whether a state attorney’s office is legally required to coordinate its ongoing discovery review for trial with a public records request review regarding the same records.[Added 2/10/15] -- Morris Publishing Group, LLC v. State, __ So.3d __ (Fla. 1st DCA, No. 1D13-5721, 1/20/2015), 201 WL 233285.
In “textbook case of why the legislature authorized an aaward of fees against obstinate public entities such as Appellant,” Fifth DCA sanctions a county for filing frivolous appeal. [Added 12/30/14] -- Orange County v. Hewlings, __ So.3d __ (Fla. 5th DCA, No. 5D13-3775, 12/12/2014), 2014 WL 6990570.
Closed-door mediation sessions between City and police and firefighters unions resulting in changes to unions’ pension plan were collective bargaining sessions that should have been held in public. [Added 11/9/14] -- Brown v. Denton, __ So.3d __ (Fla. 1st DCA, Nos. 1D14-0443, 1D14-0444, 10/21/2014), 2014 WL 5333480.
Agency violated Public Records Act by delaying disclosure of non-exempt records to litigation opponent. [Added 9/2/14] -- Promenade D’Iberville, LLC, v. Sundy, __ So.3d __ (Fla. 1st DCA, No. 1D13-5583, 8/28/2014).
“Shade meeting” transcript becomes public record on conclusion of underlying lawsuit, notwithstanding later filing of related suit. [Added 9/1/14] -- Chmielewski v. City of St. Pete Beach, Florida, __ So.3d __ (Fla. 2d DCA, No. 2D13-4923, 8/27/2014).
Court erred in dismissing complaint for writ of mandamus to compel production of public records based solely on pleadings and without holding evidentiary hearing. [Added 8/27/14] -- Clay County Education Ass’n v. Clay County School Board, __ So.3d __ (Fla. 1st DCA, No. 1D13-4858, 8/22/2104).
Email request for public records is sufficient to give standing to bring mandamus action to compel production of records sought. [Added 6/18/14] -- Chandler v. City of Greenacres, __ So.3d __ (Fla. 4th DCA, No. 4D13-377, 6/11/2014).
Court erred in denying fees to public records requestor on ground that governmental entity's failure to promptly provide records was not "willful." [Added 3/14/14] -- Lilker v. Suwannee Valley Transit Authority, 133 So.3d 654 (Fla. 1st DCA 3/14/2014).
Videotaped interview of minor victim of sexual battery may have to be produced to convicted defendant under public records laws. [Added 2/27/14]
A convicted, incarcerated defendant sent a written public records request to the State Attorney’s Office under the Public Records Act, Fla.Stat. Ch. 119. Among other things, he sought a copy of recorded interviews of the minor victim and her mother. The State declined to produce the requested records, citing an allegedly applicable exception to the public records laws. Defendant filed a motion to compel production and requested a hearing on his motion. The trial court summarily denied the motion without holding a hearing.
Defendant sought certiorari review of the trial court’s order. The Fifth DCA quashed the order and remanded for hearing.
In its opinion the appeals court offered “some guidance to the trial court when it conducts a hearing.” Regarding Defendant’s request for copies of videotaped interviews, the court commented: “As to Petitioner’s second category of public records requested, if there is a videotaped interview of the minor victim, an unredacted copy must be provided to defendant or his attorney. All of the other records should be redacted in accordance with section 119.071(2)(h).”
The court closed by certifying the following question to the Florida Supreme Court as one of great public importance: “Does Florida’s Public Records Act, specifically section 119.071(2)(j)2.b., Florida Statutes (2013), require a state agency to provide a convicted, incarcerated inmate with an unredacted copy of the videotaped statement of the minor victim of his or her crime?” Ingram v. State, __ So.3d __ (Fla. 5th DCA, No. 5D13-1519, 2/21/2014), 2014 WL 656734.
Records regarding the “value added” by individual public school teachers to a student’s FCAT score are not exempt from disclosure under the public records law. [Added 11/19/13] -- Morris Publishing Group, LLC v. Fla. Dept. of Education, __ So.3d __, 38 Fla.L.Weekly D2345 (Fla. 1st DCA, No. 1D13-1376, 11/12/2013), 2013 WL 5988693.
One governmental entity may not assert public records exemption at direction of another governmental entity. [Added 9/16/13] -- Chandler v. City of Sanford, 121 So.3d 657 (Fla. 5th DCA 9/13/2013).
Court erred in excluding from evidence portion of public record containing investigator’s “mental impressions.” [Added 7/19/13] -- City of Avon Park v. State, 117 So.3d 470 (Fla. 2d DCA 7/17/2013).
Fees are to be awarded whenever public agency refuses to permit access to public records, regardless of agency’s intent. [Added 4/28/13] -- Lee v. Board of Trustees, Jacksonville Police and Fire Pension Fund, 113 So.3d 1010 (Fla. 1st DCA 4/22/2013).
Public records laws do not require disclosure of name of student who sent email complaining about state college teacher. [Added 3/22/13] -- Rhea v. Board of Trustees of Santa Fe College, 109 So.3d 851 (Fla. 1st DCA 3/13/2013) (on rehearing).
Court erred in ruling that location of university primate research facility was exempt from public records request. [Added 2/27/13] -- Marino v. University of Florida, 107 So.3d 1231 (Fla. 1st DCA 2/26/2013).
Court applied wrong test in denying City’s motion to inspect court records in dependency case. [Added 12/5/12] -- City of Plant City v. Dept. of Children and Family Services, 101 So.3d 407 (Fla. 2d DCA 2012).
Municipality permitted, but not required, to release records of juvenile offense investigation to victim. [Added 9/18/12] -- Harvard v. The Village of Palm Springs, 98 So.3d 645 (Fla. 4th DCA 2012).
First DCA discusses exceptions to statutory confidentiality of juvenile criminal records. [Added 9/14/12] -- G.G. v. Fla. Dept. of Law Enforcement, 97 So.3d 268 (Fla. 1st DCA 2012).
Court “shall” award reasonable fees and costs to party forced to litigate to obtain compliance with public records laws. [Added 8/6/12] -- Althouse v. Palm Beach County Sheriff’s Office, 92 So.3d 899 (Fla. 4th DCA 2012).
Public records requestor’s objection to court’s proposed in camera review of relevant records results in denial of request. [Added 6/1/12] -- Althouse v. Palm Beach County Sheriff’s Office, 89 So.3d 288 (Fla. 4th DCA 2012).
Court erred in denying fees to public records requestor after government entity “responded” but did not comply for 45 days. [Added 5/22/12] -- Hewlings v. Orange County, 87 So.3d 839 (Fla. 5th DCA 2012).
Public Records Act permits city to redact questions and answers from pre-employment polygraph report before releasing it to applicant/requestor. [Added 2/28/12] -- Rush v. High Springs, Florida, 82 So.3d 1108 (Fla. 1st DCA 2012).
Complaint that facially states cause of action for violation of public records law requires evidentiary hearing. [Added 11/23/11] -- Johnson v. Jarvis, 74 So.3d 168 (Fla. 1st DCA 2011).
Fourth DCA concludes that an email sent by a city official is not a public record, focusing on whether it was prepared in connection with official business. [Added 7/22/11] -- Butler v. City of Hallandale Beach, 68 So.3d 278 (Fla. 4th DCA 2011).
Supreme Court rules that Fla.R.Crim.P. 3.852 and F.S. 27.7081 did not unconstitutionally restrict death-penalty defendant's access to public records. [Added 7/19/11] -- Wyatt v. State, 71 So.3d 86 (Fla. 2011).
Supreme Court rules that Sarasota County did not violate Sunshine Law during negotiations to relocate Baltimore Orioles spring training. [Added 10/29/10] -- Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So.3d 755 (Fla. 2010).
Audio recordings of high-profile defendants' phone calls made by sheriff's office are not public records subject to disclosure. [Added 9/30/10] -- Bent v. State, 46 So.3d 1047 (Fla. 4th DCA 2010).
First DCA rules that Department of Health's confidential investigative records are not subject to discovery administrative or court proceedings. [Added 9/27/10] -- Florida Dept. of Health v. Kenneth D. Poss, D.P.M., 45 So.3d 510 (Fla. 1st DCA 2010).
State Attorney's trial notes not subject to disclosure as public records, rules Florida Supreme Court. [Added 9/20/10] -- Geralds v. State, __ So.3d ___, 35 Fla.L.Weekly S503 (Fla., Nos. SC06-761, SC07-716, 9/16/2010), 2010 WL 3582955.
Company's customer lists produced to state agency are trade secrets exempt from disclosure under public records law. [Added 8/4/10] -- James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A. v. Rodale, Inc., 41 So.3d 386 (Fla. 1st DCA 2010).
Supreme Court amends rules governing public access to judicial branch records. [Added 3/22/10] -- In re: Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, 31 So.3d 756 (Fla. 2010).
Public Records Act exemptions for undercover police identities not lost merely because they were disclosed to criminal defendant during discovery. [Added 3/11/10] -- Rameses, Inc. v. Demings, 29 So.3d 418 (Fla. 5th DCA 2010).
City's eventual production of meeting minutes months after their request did not moot issue of City's violation of public records law. [Added 1/25/10] -- Grapski v. City of Alachua, 31 So.3d 193 (Fla. 1st DCA 2010).
Criminal defendant's filing of pleading in his closed case not appropriate method of filing public records request. [Added 10/23/09] -- Harris v. State, 21 So.3d 864 (Fla. 3d DCA 2009).
Audio recording of criminal defendant's sentencing hearing is not a "court record" and therefore is not a public record. [Added 5/10/09] -- Media General Operations, Inc. v. State, 12 So.3d 239 (Fla. 2d DCA 2009).
Government lawyer's memo concerning Disadvantaged Business Enterprise application must be produced in response to public records request. [Added 2/17/09] -- Greater Orlando Aviation Authority v. Nejame, Lafay, Jancha, Vara, Barker & Joshi, P.A., 4 So.3d 41 (Fla. 5th DCA 2009).
Internal investigation procedures used by County Sheriff's Office did not violate Sunshine Law. [Added 1/19/09] -- McDougall v. Culver, 3 So.2d 391 (Fla. 2d DCA 2009).
Portions of personal flight logs of pilots for police department's aviation unit are public records. [Added 1/19/09] -- Miami-Dade County v. Professional Law Enforcement Ass'n, 997 So.2d 1289 (Fla. 3d DCA 2009).
Someone requesting public records from city must pay past-due fees owed before city must comply with new request. [Added 10/31/08] -- Lozman v. City of Riviera Beach, 995 So.2d 1027 (Fla. 4th DCA 2008).
Private engineering firm that contracted to perform public functions on behalf of city is considered "agency" subject to public records laws. [Added 7/10/08] -- B & S Utilities, Inc. v. Baskerville-Donovan, Inc., 988 So.2d 17 (Fla. 1st DCA 2008).
Government's charge for labor costs in responding to extensive public records requests may include both salary and employee benefit costs. [Added 1/29/08] -- Board of County Commissioners of Highlands County v. Colby, 976 So.2d 31 (Fla. 2d DCA 2008).
Memo "to the file" written by county commissioner is public record subject to disclosure under Chapter 119, Florida Statutes. [Added 12/27/2007] -- Miami Herald Media Co. v. Sarnoff, 971 So.2d 915 (Fla. 3d DCA 2007).
Public records law does not require copies be furnished free of charge to convicted defendant pursuing postconviction relief. [Added 7/10/07] -- Clowers v. State, 960 So.2d 840 (Fla. 3d DCA 2007).
Litigation files of county and its law firm continue to be exempt from public records laws while claimant pursues claims bill in Legislature. [Added 6/22/07] -- Wagner v. Orange County, Florida, 960 So.2d 785 (Fla. 5th DCA 2007).
Attorney's fees awarded against state attorney's office that did not respond to public records request until after requestor filed suit to require production. [Added 4/27/07] -- Office of the State Attorney for the Thirteenth Judicial Circuit v. Gonzalez, 953 So.2d 759 (Fla. 2d DCA 2007).
Public records laws precluded judge from ordering production of notices of hearing from unemployment appeals. [Added 3/23/07] -- Fla. Agency for Workforce Innovation v. Mitchell S. Ritchie, P.A., 951 So.2d 111 (Fla. 1st DCA 2007).
Labor unions must pay statutory copying charge for public records sought from public employer with which union is engaged in collective bargaining. City of Miami Beach v. Public Employees Relations Comm'n, 937 So.2d 226 (Fla. 3d DCA 2006).
City's data identifying persons and businesses cited for security alarm ordinance violations not available as matter of public record. Critical Intervention Services, Inc. v. City of Clearwater, 908 So.2d 1195 (Fla. 2d DCA 2005).
Police event security plan not "public record" under Fla.Stat. sec. 119 even after event is over. Timoney v. City of Miami Civilian Investigative Panel, 917 So.2d 885 (Fla. 3d DCA 2005).
Statements made in city commission meeting that arguably were relevant to former employee's suit against city were not improper ex parte communications under Fla.Stat. sec. 286.0115 The City of Hollywood v. Hakanson, 866 So.2d 106 (Fla. 4th DCA 2004).
ersonal email messages not considered public records by virtue of placement on government-owned computer system. State v. City of Clearwater, 863 So.2d 149 (Fla. 2003).