TBO.com - TBO is Tampa Bay Online

Sunshine Law: Expert's Remarks

ADVERTISEMENT

Tampa Tribune

Published: November 24, 2007

Special Report: Sunshine Law

Editor's note: Pat Gleason, an expert on the Sunshine Law, gave the following testimony in August. Her remarks are edited for space.

The Sunshine Law: All official action by boards or commissions shall be open to the public.

The Florida Supreme Court cemented our state as the leader in open government when it ruled that an open meeting, for purposes of the Sunshine Law, was any gathering of two or more members of a covered board when they met to discuss any matter on which foreseeable action could be taken by the board.

What that did was make our state the only one in the nation that essentially prohibits private communications among board members on any topic related to board business. No telephone calls, no e-mail back and forth, no discussions in chat rooms, no private discussions over lunch....

Then the court went even further and said that not only are elected or appointed boards subject to the sunshine laws, but advisory bodies ... The court felt it was the entire decision-making process that was essential for the public to be involved, not just the final product.

Citizens I talk to want even more openness. Many citizens don't like it if two members of a county commission talk to each other privately at all, even though the Sunshine Law applies only to discussions of public business.

When the Supreme Court issued its ruling that the two-or-more standard is what would constitute a meeting, some agencies … took the view that, "We must find some way around this law." … So the question then came up, "Well, what about members talking on the telephone? They are not physically in the same room. Would that be authorized?" And the court decision came back, "No." A telephone conversation is subject to the Sunshine Law.

What about correspondence back and forth? By just circulating a contract around to everyone's individual office? … The court said "No, action must be taken by the board at a public board meeting."

Someone came up with the idea that maybe what they'd do was have each school board member in his own office and the superintendent would go from person to person to person and explore various options and come up with a consensus. The court said, "That's a de facto meeting." ... If a system is set up where there is a series of meetings in sequence … this can be a violation of the Sunshine Law.

The public records law: All materials, regardless of form, made or received in the course of official business are public records, unless the Legislature has created an exemption.

Access: You don't need to provide any information to give a public records request. You don't need to give your name, unless of course you want things mailed to your address … and you don't have to say why you want the records.

Abuse: The legislature has taken steps to ensure if someone uses the public records unlawfully or illegally, i.e. to commit a crime or to make a fraudulent misrepresentation or for identity theft, then that action can be prosecuted.

Draft documents: The main question (I get is) whether or not the law applies to drafts, and it does. In the legislative process, there's a big exemption for draft documents. But in the executive branch, there is no exemption for drafts. The courts say that once the material has been circulated, that's enough to make it a public record.

Private notes: The courts have determined if you write a note, don't discuss it or show it to anyone else, that that may fall outside the definition. What's problematic is if someone like me is talking, and someone up there on the dais writes down, "When will that person stop?" And they sort of send a piece of paper for their neighbor to see. At that point, the note has been shared and would fall within the definition. The difficulty that sometimes can occur is, suppose someone writes a note and someone then leans over to look at it? You can't do as one county attorney has said, that when he was asked for his personal notes, he promptly ate them.

Instant messaging: The use of technology during a public meeting, instant messaging, this is a complaint I get regularly from citizens who see their commissioner, their elected representative, instant messaging and a lobbyist from a construction company back there responding. Some states have actually banned the use of the technology during public hearings. ... If you have a lobbyist e-mailing someone on a board … about an item during the meeting, those are public records. The status of instant messaging is harder, because it's not stored. Perhaps that's something the commission could address.

E-mails: The court a few years ago ... decided that so-called personal e-mails do not become public records simply because they are stored on a government computer or a government Blackberry. The determining factor is whether or not material has been made or received in the course of official business. The converse is also true. If you have a private home computer and you make or receive records relating to official business, then those records are public records.

Public complaints: When I talk to members of the public, the thing that they are most concerned about is, almost, lack of respect from the government, that the process of asking for information ... can be difficult for ordinary citizens to carry out. I think many members of the public would like to see more access online and over the Internet so that they don't have to go through so much effort to try to obtain the types of records they want, like minutes of local meetings.

Fees: (People) would like the fee-charging provisions to be clearer, (and governments would like) better guidance on exactly how to charge for access to records. Someone made a public records request for the entire tobacco litigation case file. It was at least a million pages of records. And he expected this to be produced by 5 o'clock, and he didn't want to pay for it.

Information technology: To what degree should the information technology that we get for law enforcement agencies be focused on keeping a criminal history record for view by law enforcement and to what degree should the system be designed to ensure what's public is easily producible?

Record storage: How long a particular record is to be maintained, that's confusing for both the government and the public alike.

Share this:

Loading Comments...

Email Print

ADVERTISEMENT