What agencies are covered by the Sunshine Law?
1. Are all public agencies subject to the Sunshine Law?
The Government in the Sunshine Law applies to "any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision." The statute thus applies to public collegial bodies within this state, at the local as well as state level. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). It is equally applicable to elected and appointed boards or commissions. AGO 73-223.
Florida courts have stated that it was the Legislature's intent to extend application of the Sunshine Law so as to bind "every 'board or commission' of the state, or of any county or political subdivision over which it has dominion and control." Times Publishing Company v. Williams, 222 So. 2d 470, 473 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). And see Turner v. Wainwright, 379 So. 2d 148, 155 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980) (legislative requirement that certain board meetings must be open to the public does not imply that the board could meet privately to discuss other matters).
Based upon the specific terms of the statute and the "dominion and control" test approved by the courts, the following are some of the entities which the Attorney General's Office has concluded are subject to the Sunshine Law:
civil service boards--AGOs 79-63, 73-370, 71-29 (municipal) and 80-27 (sheriff);
charter school personnel board--AGO 10-14;
county and municipal boards--AGOs 04-35 (city risk management committee), 85-55 (downtown redevelopment task force), 83-43 (board of adjustment), 76-230 (beautification committee), and 73-366 (board of governors of municipal country club);
interlocal agreement boards--AGOs 84-16 (five-county consortium created pursuant to Florida Interlocal Cooperation Act), 82-66 (regional sewer facility board), 76-193 (Central Florida Commission on the Status of Women), and Inf. Op. to Nicoletti, November 18, 1987 (Loxahatchee Council of Governments, Inc.);
regulatory boards--AGOs 76-225 (accountancy), and 74-84 (dentistry);
special district boards--AGOs 74-169 (fire control district), and 73-08 (mosquito control district).
2. Are advisory boards which make recommendations or committees established only for fact-finding subject to the Sunshine Law?
a. Publicly created advisory boards which make recommendations
Advisory boards created pursuant to law or ordinance or otherwise established by public agencies are subject to the Sunshine Law, even though their recommendations are not binding upon the entities that create them. See Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974) (citizen planning committee appointed by city council to assist in revision of zoning ordinances subject to Sunshine Law). The Gradison court, concluding that the committee served as the alter ego of the council in making tentative decisions, stated that "any committee established by the Town Council to act in any type of advisory capacity would be subject to the provisions of the government in the sunshine law." Id. at 476. Accord Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So. 2d 694, 695 (Fla. 3d DCA 1988) (committee which compiled a report that was perfunctorily accepted by the board made a significant ruling affecting decision-making process and was subject to s. 286.011; "ad hoc advisory board, even if its power is limited to making recommendations to a public agency and even if it possesses no authority to bind the agency in any way, is subject to the Sunshine Law"); Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 869 (Fla. 3d DCA 1994) (committee established by county commission to negotiate lease agreement subject to s. 286.011: "the Sunshine Law equally binds all members of governmental bodies, be they advisory committee members or elected officials"); and Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law applies to site plan review committee created by county ordinance to serve in an advisory capacity to the county manager).
The Attorney General's Office has issued numerous opinions discussing the application of the Sunshine Law to advisory committees. The following are some of the advisory committees which have been found to be subject to the Sunshine Law:
community issues advisory bodies--AGOs 98-13 (citizen advisory committee appointed by city council to make recommendations to the council regarding city government and city services), 93-41 (criminal justice commission established by county ordinance to develop and make recommendations on criminal justice issues in the county), and 85-55 (community certification committee organized by city to act on its behalf in seeking designation of city as a blue chip community under a Department of Commerce program);
employee or personnel advisory bodies--AGOs 96-32 (employee advisory committee established pursuant to special law), 92-26 (committee responsible for making recommendations to city council on personnel matters), and 84-70 (grievance committees established pursuant to county personnel manual and responsible for bringing about "a fair and equitable settlement of the complaint");
education advisory bodies--AGOs 03-28 (business assistance center advisory council created by community college board of trustees), 01-84 (school advisory councils created pursuant to former s. 229.58 [now s. 1001.452], F.S.), and 74-267 (Council of Deans appointed by state university president);
legislation implementation advisory bodies--AGOs 92-79 (advisory committee authorized by statute to assist state agency with the implementation of legislation), and 85-76 (ad hoc committee appointed by mayor for purpose of making recommendations concerning legislation);
planning or property acquisition advisory bodies--AGOs 05-07 (lake restoration council legislatively created to advise water management district board), 02-24 (vegetation committee created by city code to make recommendations to city council and planning department regarding vegetation and proposed development), and 86-51 (land selection committee appointed by water management district to create proposed land acquisition list).
The Sunshine Law applies to advisory committees appointed by a single public official as well as those appointed by a collegial board. See, e.g., Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (Sunshine Law applies to ad hoc advisory committee appointed by university president to screen applications and make recommendations for position of law school dean as committee, in deciding which applicants to reject from further consideration, performed a policy-based, decision-making function); Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997) (committee established by community college purchasing director to consider and rank various contract proposals must meet in the Sunshine); and Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (Sunshine Law governs advisory group created by city manager to assist in screening applications and to recommend several applicants for the position of chief of police). Accord AGOs 05-05 (fact that advisory group was created by chief of police and not city commission and its recommendations were made to police chief would not remove group from ambit of the Sunshine Law), 87-42 (ad hoc committee appointed by mayor to meet with Chamber of Commerce and draft proposal for transfer of city property); and Inf. Op. to Lamar, August 2, 1993 (transition team made up of citizens appointed by mayor to make recommendations on city government's reorganization).
b. Fact-finding committees
A limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for advisory committees established for fact-finding only. When a committee has been established strictly for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities of that committee are not subject to s. 286.011, F.S. Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985). Accord AGO 95-06 (when a group, on behalf of a public entity, functions solely as a fact-finder or information gatherer with no decision-making authority, no "board or commission" subject to the Sunshine Law is created). "In determining whether a committee is subject to the Sunshine Law, the actual function of the committee must be scrutinized to determine whether It is exercising part of the decision-making function by sorting through options and making recommendations to the governmental body." Inf. Op. to Randolph, June 10, 2010.
For example, the court in Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976), held that a fact-finding committee appointed by a community college president to report to him on employee working conditions was not subject to the Sunshine Law. And see Wood v. Marston, 442 So. 2d 934 (Fla. 1983); and Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law did not apply to informal meetings of staff where the discussions were "merely informational," where none of the individuals attending the meetings had any decision-making authority during the meetings, and where no formal action was taken or could have been taken at the meetings).
This ‘fact-finding’ exception, however, applies only to advisory committees and not to boards that have “ultimate decisionmaking authority.” See Finch v. Seminole County School Board, 995 So. 2d 1068 (Fla. 5th DCA 2008), holding that the fact-finding exception did not apply to a school board as the ultimate decision-making authority; thus the board could not take a fact-finding tour without complying with the Sunshine Law even though school board members were separated from each other by several rows of seats, did not discuss their preferences or opinions, and no vote was taken during the trip.
When a committee has a decision-making function in addition to fact-finding, the Sunshine Law is applicable. See Wood v. Marston, supra at 938, recognizing that while a "search and screen" committee appointed by a university president had a fact-gathering role in soliciting and compiling applications, the committee also "had an equally undisputed decision-making function in screening the applicants" by deciding which of the applicants to reject from further consideration, and thus was subject to the Sunshine Law. And see Roscow v. Abreu, No. 03-CA-1833 (Fla. 2d Cir. Ct. August 6, 2004) (committee created by the state department of transportation and composed of officials from state, local and federal agencies was subject to the Sunshine Law because the committee was responsible for screening and evaluating potential corridors and alignments for a possible expansion of the Suncoast Parkway).
Similarly, in AGO 94-21, the Attorney General's Office advised that the Sunshine Law governed the meetings of a negotiating team that was created by a city commission to negotiate with a sports organization on behalf of the city. Even though the resolution creating the team provided that the negotiations were subject to ratification and approval by the city commission, the team was authorized to do more than mere fact-finding in that it would be "participating in the decision-making process by accepting some options while rejecting others for presentment of the final negotiations to the city commission." Id.
3. Are private organizations subject to the Sunshine Law?
A more difficult question is presented with private organizations which are providing services to state or local government. The Attorney General's Office has recognized that private organizations generally are not subject to the Sunshine Law unless the private organization has been created by a public entity, has been delegated the authority to perform some governmental function, or plays an integral part in the decision-making process of a public entity. AGO 07-27.
Thus, for example, the Sunshine Law does not apply to a private nonprofit corporation established by local business people to foster economic development where no delegation of legislative or governmental functions by any local governmental entity has occurred and the corporation does not act in an advisory capacity to any such entity. Inf. Op. to Hatcher and Thornton, September 15, 1992. Accord Inf. Op. to Gaetz and Coley, December 17, 2009. Compare AGO 10-30, concluding that a private economic advisory council, delegated the responsibility of accomplishing the county's economic development strategic plan, was subject to the Sunshine Law. And see Inf. Ops. to Armesto, September 18, 1979 (meetings of political parties are not subject to s. 286.011, F.S.), and Fasano, June 7, 1996 (Sunshine Law does not apply to meetings of a homeowners' association board).
However, as discussed below, the Sunshine Law applies to private entities created by law or by public agencies, and to private entities providing services to governmental agencies and acting on behalf of those agencies in the performance of their public duties.
a. Private entities created pursuant to law or by public agencies
The Supreme Court has stated that "[t]he Legislature intended to extend application of the 'open meeting' concept so as to bind every 'board or commission' of the state, or of any county or political subdivision over which [the Legislature] has dominion or control." City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971). Recognizing that the Sunshine Law should be liberally construed to give effect to its public purpose, the Court has applied the Sunshine Law to a citizen’s advisory committee established by, and active on behalf of, a city council. See Town of Palm Beach v. Gradison, 296 So. 2d 473, 478 (Fla. 1974).
Applying these principles, the Attorney General's Office has concluded that the following private organizations are subject to the Sunshine Law: Enterprise Florida, Inc., board of directors, created by statute which prescribed its membership, powers and duties, AGO 92-80; Prison Rehabilitative Industries and Diversified Enterprises [PRIDE], a nonprofit corporation established by state law to manage correctional work programs of the Department of Corrections, AGO 04-44; John and Mable Ringling Museum of Art Foundation, Inc., established pursuant to statute as a not-for-profit corporation to assist the museum in carrying out its functions, AGO 92-53; education direct-support organizations, AGO 05-27 and Inf. Op. to Chiumento, June 27, 1990; not-for-profit corporation created by a city redevelopment agency to assist in the implementation of its redevelopment plan, AGO 97-17; Council on Aging of St. Lucie, Inc., a nonprofit organization incorporated pursuant to the "Community Care for the Elderly Act," AGO 98-55; Florida High School Activities Association, Inc., legislatively designated as the governing organization of athletics in Florida public schools, AGO 98-42; board of trustees of an insurance trust fund created pursuant to collective bargaining agreement between a city and the employee union, AGO 98-01; and Inf. Op. to Martelli, July 20, 2009 (State Fair Authority, created by statute as a public corporation).
b. Private entities providing services to public agencies
Much of the litigation regarding the application of the open government laws to private organizations has been in the area of public records, and the courts have often looked to Ch. 119, F.S., in determining the applicability of the Sunshine Law. See Cape Coral Medical Center, Inc. v. News-Press Publishing Company, Inc., 390 So. 2d 1216, 1218 n.5 (Fla. 2d DCA 1980) (inasmuch as the policies behind Ch. 119, F.S., and s. 286.011, F.S., are similar, they should be read together); Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983); and Krause v. Reno, 366 So. 2d 1244, 1252 (Fla. 3d DCA 1979).
As the courts have emphasized in analyzing the application of Ch. 119, F.S., to entities doing business with governmental agencies, the mere receipt of public funds by private corporations, is not, standing alone, sufficient to bring the organization within the ambit of the open government requirements. See, e.g., News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992) (records of private architectural firm not subject to Ch. 119, F.S., merely because firm contracted with school board). Similarly, a private corporation performing services for a public agency and receiving compensation for such services is not by virtue of this relationship alone subject to the Sunshine Law unless the public agency's governmental or legislative functions have been delegated to it. McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980) (airlines are not by virtue of their lease with the aviation authority public representatives subject to the Sunshine Law); and AGO 98-47 (Sunshine Law does not apply to private nongovernmental organization when the organization counsels and advises private business concerns on their participation in a federal loan program made available through a city). Cf. AGO 80-45 (the receipt of Medicare, Medicaid, government grants and loans, or similar funds by a private nonprofit hospital does not, standing alone, subject the hospital to the Sunshine Law); Inf. Op. to Gaetz and Coley, December 17, 2009 (mere receipt of federal grant does not subject private economic development organization to Sunshine Law).
Although private organizations generally are not subject to the Sunshine Law, open meetings requirements can apply if the public entity has delegated "the performance of its public purpose" to the private entity. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373, 382-383 (Fla. 1999). And see Mae Volen Senior Center, Inc. v. Area Agency on Aging, 978 So. 2d 191 (Fla. 4th DCA 2008), review denied, 1 So. 3d 172 (Fla. 2009) (area agencies on aging which are public or private nonprofit organizations designated by the Department of Elder Affairs to coordinate and administer department programs and to provide, through contracting agencies, services for the elderly within a planning and service area are subject to Ch. 119 and s. 286.011, F.S., when considering any contracts requiring the expenditure of public funds). Compare Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 927 So. 2d 961 (Fla. 5th DCA 2006), in which the Fifth District applied the “totality of factors” test set forth in News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., supra, and determined that a private corporation that purchased a hospital it had previously leased from a public hospital authority was not “acting on behalf of” a public agency and therefore was not subject to the Public Records Act or the Sunshine Law.
The Attorney General's Office has found meetings of the following entities to be subject to the Sunshine Law: Family Services Coalition, Inc., board of directors, performing services for the Department of Children and Family Services which services would normally be performed by the department, AGO 00-03; local health councils, whose duties are prescribed by statute and which provide an integral role in the Agency for Health Care Administration's decision-making process in providing for coordinated health care services planning, AGO 07-27; property owners association, delegated the performance of services otherwise performed by a municipal services taxing unit, AGO 07-44; boards of directors of volunteer fire departments that provide firefighting services to the county and use facilities and equipment acquired with county funds, AGO 04-32; community land trust, which contracted with city to carry out city's affordable housing responsibilities and screen applicant files, AGO 08-66; Astronauts Memorial Foundation when performing duties funded under the General Appropriations Act, AGO 96-43; nonprofit organization designated by county to fulfill role of county's dissolved cultural affairs council, AGO 98-49; nonprofit corporation specifically created to contract with county for operation of a public golf course on county property acquired by public funds, AGO 02-53; downtown redevelopment task force which, although not appointed by city commission, stood in place of the city commission when considering downtown improvement issues, AGO 85-55; nongovernmental advisory committee, which had been impliedly delegated the authority to act on behalf of the county commission in a review of the zoning code, AGO 83-95; committee selected by a county bar association on behalf of the school board to screen applicants and make recommendations for the position of school board attorney, AGO 77-43. Cf. Inf. Op. to Bedell, December 28, 2005 (private nonprofit organization which entered into an agreement with a city to operate a theater, received city funding in the form of a loan for this purpose, and leased property from the city, should comply with the Sunshine Law when holding discussions or making decisions regarding the theater).
On the other hand, meetings of a county volunteer firefighters association for the purpose of providing a forum for county volunteer fire departments to meet and discuss common county firefighting concerns and issues are not subject to the Sunshine Law. AGO 04-32. Cf. AGO 00-08 (meetings of the Lee County Fire Commissioner's Forum, a nonprofit entity created by fire districts as a vehicle for networking and discussion of common concerns, would be subject to the Sunshine Law if the Forum operates as a collegial body for incipient decision-making); and Inf. Op. to Wiles, February 14, 2002 (if the State University Presidents Association operates as a collegial body for incipient decision-making, then the association would be subject to the Sunshine Law; if the association, however, merely provides an opportunity to network and discuss common concerns, the association would not necessarily be subject to the Sunshine Law).
c. Homeowners' associations
The Sunshine Law does not generally apply to meetings of a homeowners' association board of directors. Inf. Op. to Fasano, June 7, 1996. Other statutes govern access to records and meetings of these associations. See, e.g., s. 720.303(2), F.S. (homeowners' association board of directors and any committee making a final decision regarding the expenditure of association funds or any body having the authority to approve architectural plans involving a specific piece of property owned by a community resident); s. 718.112(2)(c), F.S. (condominium board of administration); s. 719.106(1)(c), F.S. (cooperative board of administration); and s. 723.078(2)(c), F.S. (mobile home park homeowners' association board of directors). Cf. AGOs 99-53 (an architectural review committee of a homeowners' association is subject to the Sunshine Law where that committee, pursuant to county ordinance, must review and approve applications for county building permits), and 07-44 (property owners association subject to open government laws when acting on behalf of a municipal services taxing unit).
4. Are federal agencies subject to the Sunshine Law?
Federal agencies, i.e., agencies created under federal law, operating within the state, do not come within the purview of the state Sunshine Law. AGO 71-191. See also Cincinnati Gas and Electric Company v. General Electric Company, 854 F.2d 900 (6th Cir. 1988), cert. denied, 109 S.Ct. 1171 (1989) (public has no right of access to negotiations leading to settlement of a case in federal court).
Thus, meetings of a federally-created private industry council are not subject to s. 286.011, F.S. AGO 84-16. Cf. Inf. Op. to Knox, January 6, 2005 (St. Johns River Alliance, Inc., a non-profit corporation formed to help carry out the federal American Heritage Rivers Initiative and the associated intergovernmental Partnership Agreement among state, local and federal governmental entities, is subject to s. 286.011, F.S., requirements); Inf. Op. to Green, December 11, 1998 (tri-state river commission established pursuant to state and federal law is subject to the Sunshine Law); and Inf. Op. to Markham, September 10, 1996 (technical oversight committee established by state agencies as part of settlement agreement in federal lawsuit subject to Sunshine Law).
5. Does the Sunshine Law apply to the Governor and Cabinet?
Section 286.011, F.S., applies to those functions of the Governor and Cabinet which are statutory responsibilities as opposed to duties arising under the Constitution. Thus, the Governor and Cabinet in dispensing pardons and the other forms of clemency authorized by Art. IV, s. 8(a), Fla. Const., are not subject to s. 286.011, F.S. Cf. In re Advisory Opinion of the Governor, 334 So. 2d 561 (Fla. 1976) (Constitution sufficiently prescribes rules for the manner of exercise of gubernatorial clemency power; legislative intervention is, therefore, unwarranted).
Section 286.011, F.S., however, does apply to the Governor and Cabinet sitting in their capacity as a board created by the Legislature or whose powers are prescribed by the Legislature, such as the Board of Trustees of the Internal Improvement Trust Fund. In such cases, the Governor and Cabinet are not exercising powers derived from the Constitution but are subject to the "dominion and control" of the Legislature.
Moreover, Art. I, s. 24, Fla. Const., requires that meetings of "any collegial public body of the executive branch of state government" be open and noticed to the public. The only exceptions to this constitutional right of access are those meetings which have been exempted by the Legislature pursuant to Art. I, s. 24, Fla. Const., or which are specifically closed by the Constitution. And see Art. III, s. 4(e), Fla. Const., providing, in relevant part, that "all prearranged gatherings, between . . . the governor, the president of the senate, or the speaker of the house of representatives, the purpose of which is to agree upon formal legislative action that will be taken at a subsequent time, or at which formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open to the public."
6. Does the Sunshine Law apply to commissions created by the Constitution?
Boards or commissions created by the Constitution which prescribes the manner of the exercise of their constitutional powers are not subject to s. 286.011, F.S., when carrying out such constitutionally prescribed duties. See Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (judicial nominating commissions are not subject to s. 286.011, F.S.). Cf. In re Advisory Opinion of the Governor, 334 So. 2d 561 (Fla. 1976) (clemency power does not exist by virtue of legislative enactment; rather Constitution sufficiently prescribes rules for the manner of exercise of the power); and AGO 77-65 (Ch. 120, F.S., inapplicable to Constitution Revision Commission established by Art. XI, s. 2, Fla. Const.). Compare Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980), holding that the Parole Commission, which Art. IV, s. 8(c), Fla. Const., recognizes may be created by law, is subject to s. 286.011, F.S.
However, Art. I, s. 24, Fla. Const., establishes a constitutional right of access to meetings of any collegial public body of the executive branch of state government by providing that such meetings must be open and noticed to the public unless exempted by the Legislature pursuant to Art. I, s. 24, Fla. Const., or specifically closed by the Constitution.
7. Does the Sunshine Law apply to the Legislature?
Article I, s. 24, Fla. Const., requires that meetings of the Legislature be open and noticed as provided in Art. III, s. 4(e), Fla. Const., except with respect to those meetings exempted by the Legislature pursuant to Art. I, s. 24, Fla. Const., or specifically closed by the Constitution.
Pursuant to Art. III, s. 4(e), Fla. Const., the rules of procedure of each house of the Legislature must provide that all legislative committee and subcommittee meetings of each house and joint conference committee meetings be open and noticed. Such rules must also provide:
[A]ll prearranged gatherings, between more than two members of the legislature, or between the governor, the president of the senate, or the speaker of the house of representatives, the purpose of which is to agree upon formal legislative action that will be taken at a subsequent time, or at which formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open to the public. All open meetings shall be subject to order and decorum. This section shall be implemented and defined by the rules of each house, and such rules shall control admission to the floor of each legislative chamber and may, where reasonably necessary for security purposes or to protect a witness appearing before a committee, provide for the closure of committee meetings. Each house shall be the sole judge for the interpretation, implementation, and enforcement of this section.
The votes of members during the final passage of legislation pending before a committee and, upon request of two members of a committee or subcommittee, on any other question, must be recorded. Article III, s. 4(c), Fla. Const.
8. Does the Sunshine Law apply to the judiciary?
The open meetings provision found in Art. I, s. 24, Fla. Const., does not include meetings of the judiciary. In addition, separation of powers principles make it unlikely that the Sunshine Law, a legislative enactment, could apply to the courts established pursuant to Art. V, Fla. Const. AGO 83-97. Thus, questions of access to judicial proceedings usually arise under other constitutional guarantees relating to open and public judicial proceedings, Amend. VI, U.S. Const., and freedom of the press, Amend. I, U.S. Const. However, a circuit conflict committee established by the Legislature to approve attorneys handling conflict cases is subject to the Sunshine Law, even though the chief judge or his or her designee is a member, because the "circuit conflict committees are created by the Legislature, subject to its dominion and control." AGO 83-97. And see Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973) (Sunshine Law applies to quasi-judicial functions; a board exercising quasi-judicial functions is not a part of the judicial branch of government).
a. Criminal proceedings
A court possesses the inherent power to control the conduct of proceedings before it. Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982); and State ex rel. Miami Herald Publishing Company v. McIntosh, 340 So. 2d 904 (Fla. 1977). A three-pronged test for criminal proceedings has been developed to provide "the best balance between the need for open government and public access, through the media, to the judicial process, and the paramount right of a defendant in a criminal proceeding to a fair trial before an impartial jury." Lewis, supra at 7. Closure in criminal proceedings is acceptable only when:
1) it is necessary to prevent a serious and imminent threat to the administration of justice;
2) no alternatives are available, other than change of venue, which would protect the defendant's right to a fair trial; and
3) closure would be effective in protecting the defendant's rights without being broader than necessary to accomplish that purpose.
And see Bundy v. State, 455 So. 2d 330, 339 (Fla. 1984), noting that the trial court properly used a combination of alternative remedies for possible prejudicial effects of pretrial publicity instead of barring public access to pretrial proceedings.
Article I, s. 16(b), Fla. Const., provides that victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused. See Sireci v. State, 587 So. 2d 450 (Fla. 1991), cert. denied, 112 S.Ct. 1500 (1992) (court did not err by allowing the wife and son of the victim to remain in the courtroom after their testimony). See also s. 960.001(1)(e), F.S., restricting exclusion of victims, their lawful representatives, or their next of kin.
b. Civil proceedings
Stressing that all trials, civil and criminal, are public events and that there is a strong presumption of public access to these proceedings, the Supreme Court in Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), set forth the following factors which must be considered by a court in determining a request for closure of civil proceedings:
1) a strong presumption of openness exists for all court proceedings;
2) both the public and news media have standing to challenge any closure order with the burden of proof being on the party seeking closure;
3) closure should occur only when necessary
- a) to comply with established public policy as set forth in the Constitution, statutes, rules or case law;
b) to protect trade secrets;
c) to protect a compelling governmental interest;
d) to obtain evidence to properly determine legal issues in a case;
e) to avoid substantial injury to innocent third parties; or
f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.
5) the presumption of openness continues through the appellate review process and the party seeking closure continues to have the burden to justify closure.
And see Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208, 209 (Fla. 1998), reiterating support for the Barron standards and stating that "public access to court proceedings and records [is] important to assure testimonial trustworthiness; in providing a wholesome effect on all officers of the court for purposes of moving those officers to a strict conscientiousness in the performance of duty; in allowing nonparties the opportunity of learning whether they are affected; and in instilling a strong confidence in judicial remedies, which would be absent under a system of secrecy"; and BDO Seidman v. Banco Espirito Santo International, Ltd., 34 F.L.W. D739 (Fla. 3d DCA April 8, 2009) (test for sealing of court proceedings and records is set forth in Barron v. Florida Freedom Newspapers, Inc.).
While the courts have recognized that court proceedings are public events and the public generally has access to such proceedings, the general public and the press do not have a right under the First Amendment or the rules of procedure to attend discovery depositions. See Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 380 (Fla. 1987), cert. denied, 108 S.Ct. 346 (1987), stating that while discovery depositions in criminal cases are judicially compelled for the purpose of allowing parties to investigate and prepare, they are not judicial proceedings. Accord Post-Newsweek Stations, Florida, Inc. v. State, 510 So. 2d 896 (Fla. 1987) (media not entitled to notice and opportunity to attend pretrial discovery depositions in criminal cases); and SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796 (Fla. 4th DCA 2002) (upholding protective order closing depositions to the media based on privacy concerns). Cf. Lewis v. State, 958 So. 2d 1027 (Fla. 5th DCA 2007) (while Burk applied to unfiled depositions made during an ongoing, active criminal prosecution, materials related to defendant's prosecution, including depositions, are subject to disclosure after the case becomes final).
d. Florida Bar grievance proceedings
An attorney's claim that the Florida Bar violated the Sunshine Law by refusing to allow him to attend a grievance committee meeting of the Bar was rejected in Florida Bar v. Committee, 916 So. 2d 741, 744-745 (Fla. 2005): "The grievance committee meetings of the Bar are private, and therefore the Bar is justified in prohibiting [the attorney] from attendance." The Court reiterated its holding in The Florida Bar: In re Advisory Opinion, 398 So. 2d 446, 447 (Fla. 1981), that "[n]either the legislature nor the governor can control what is purely a judicial function."
e. Grand juries
Section 905.24, F.S., provides that "[g]rand jury proceedings are secret"; thus, these proceedings are not subject to s. 286.011, F.S. See Clein v. State, 52 So. 2d 117, 120 (Fla. 1951) (it is the policy of the law to shield the proceedings of grand juries from public scrutiny); In re Getty, 427 So. 2d 380, 383 (Fla. 4th DCA 1983) (public disclosure of grand jury proceedings "could result in a myriad of harmful effects"); and AGO 73-177, stating that it is the public policy of the state to keep secret the proceedings of the grand jury. The grand jury has also been referred to as a "coordinate branch of the judiciary, and as an arm, appendage, or adjunct of the circuit court." State ex rel. Christian v. Rudd, 302 So. 2d 821, 828 (Fla. 1st DCA 1974). Cf. Butterworth v. Smith, 110 S.Ct. 1376 (1990), striking down a Florida statute to the extent that it prohibited a witness from disclosing his own testimony before a grand jury after the grand jury's term has ended.
In addition, hearings on certain grand jury procedural motions are closed. The procedural steps contemplated in s. 905.28(1), F.S., for reports or presentments of the grand jury relating to an individual which are not accompanied by a true bill or indictment, are cloaked with the same degree of secrecy as is enjoyed by the grand jury in the receipt of evidence, its deliberations, and final product. Therefore, a newspaper has no right of access to grand jury procedural motions and to the related hearing. In re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988). And see Palm Beach Newspapers, Inc., v. Doe, 460 So. 2d 406 (Fla. 4th DCA 1984) (hearing ancillary or related to a grand jury session constitutes a proceeding which comes within the protection of s. 905.24); and In re Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d 1559 (11th Cir. 1989) (while a court must hold a hearing and give reasons for closure of criminal court proceedings, a court is not required to give newspapers a hearing and give reasons for closure of grand jury proceedings).
f. Judicial nominating commissions/Judicial Qualifications Commission
Judicial nominating commissions for the Supreme Court of Florida, the district courts of appeal, or for a judicial circuit for the trial courts within the circuit are not subject to the Sunshine Law. Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977). Article V, s. 11(d), Fla. Const., however, requires that except for its deliberations, the proceedings of a judicial nominating commission and its records are open to the public. While the deliberations of a commission are closed, such a limitation appears to be applicable to that point in the proceedings when the commissioners are weighing and examining the reasons for and against a choice. Inf. Op. to Russell, August 2, 1991.
The statewide judicial nominating commission for workers' compensation judges, however, is not a judicial nominating commission as contemplated by the Constitution; thus, such a commission created pursuant to the workers' compensation law is subject to s. 286.011, F.S. AGO 90-76.
Proceedings of the Judicial Qualifications Commission are confidential. However, upon a finding of probable cause and the filing of formal charges against a judge or justice by the commission with the Clerk of the Supreme Court, all further proceedings of the commission are public. Article V, s. 12(a)(4), Fla. Const.
g. Mediation proceedings
Court-ordered mediation and arbitration are to be conducted according to the rules of practice and procedure adopted by the Florida Supreme Court. Sections 44.102(1) and 44.103(1), F.S. Florida Rule of Civil Procedure 1.720(e) provides that the mediator may meet and consult privately with any party or parties or their counsel. And see Rule 10.360(a), Florida Rules For Certified and Court-Appointed Mediators ("A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to by all parties.").
Public access to court-ordered mediation proceedings between two cities and a county was raised in News-Press Publishing Company, Inc. v. Lee County, Florida, 570 So. 2d 1325 (Fla. 2d DCA 1990). Initially, the judge required the parties to have present a representative "with full authority to bind them"; however, after the media objected to the closure of the mediation proceeding, the judge amended the order to limit the representatives' authority so that no final settlement decisions could be made during the mediation conference. On appeal, the district court noted that no two members of any of the public boards would be present at the mediation proceedings and that the mediation's narrow scope did not give rise to a substantial delegation affecting the boards' decision-making function so as to require the mediation to be open to the public. 570 So. 2d at 1327. See also O'Connell v. Board of Trustees, 1 F.L.W. Supp. 285 (Fla. 7th Cir. Ct. Feb. 9, 1993) (as to public agencies, mediation is subject to the Sunshine Law; thus, no more than one member of a collegial body should attend the mediation conference). And see Fla. R. Civ. P. 1.720(b), stating that "[i]f a party to mediation is a public entity required to conduct its business pursuant to chapter 286, Florida Statutes, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity." Accord Fla. R. App. P. 9.720(a). Cf. AGO 06-03 (closed attorney-client session may not be held to discuss settlement negotiations on an issue that is the subject of ongoing mediation pursuant to a partnership agreement between a water management district and others); and Inf. Op. to McQuagge, February 13, 2002 (mediation meetings conducted pursuant to the Florida Governmental Conflict Resolution Act, ss. 164.101-164.1061, F.S., which involve officials or representatives of local governmental entities who have the authority to negotiate on behalf of that governmental entity are subject to the Sunshine Law).
9. Does the Sunshine Law apply to staff?
Meetings of staff of boards or commissions covered by the Sunshine Law are not ordinarily subject to s. 286.011, F.S. See, e.g., Occidental Chemical Company v. Mayo, 351 So. 2d 336 (Fla. 1977), disapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Fla. 1992); School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99, 101 (Fla. 1st DCA 1996); and AGO 89-39.
Thus, a committee composed of staff that is responsible for advising and informing the decision-maker through fact-finding consultations is not subject to the Sunshine Law. Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976) (meetings of committee appointed by community college president to report on employee working conditions not subject to Sunshine Law). And see Knox v. District School Board of Brevard, 821 So. 2d 311, 315 (Fla. 5th DCA 2002), holding that the Sunshine Law did not apply to a group of school board employees meeting with an area superintendent to review applications, which were then sent by the area superintendent to the school superintendent with her recommendation: "[A] Sunshine violation does not occur when a governmental executive uses staff for a fact-finding and advisory function in fulfilling his or her duties."
Similarly, the court in Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), ruled that the Sunshine Law did not apply to informal meetings of staff where the discussions were "merely informational," where none of the individuals attending the meetings had any decision-making authority during the meetings, and where no formal action was taken or could have been taken at the meetings. And see Baker v. Florida Department of Agriculture and Consumer Services, 937 So. 2d 1161 (Fla. 4th DCA 2006), review denied, 954 So. 2d 27 (2007) (no violation of Sunshine Law when agency employees conducted investigation into licensee's alleged failure to follow state law and an assistant director made the decision to file a complaint as "[c]ommunication among administrative staff in fulfilling investigatory, advisory, or charging functions does not constitute a 'Sunshine' Law violation"); Molina v. City of Miami, 837 So. 2d 462, 463 (Fla. 3d DCA 2002) (police discharge of firearms committee not subject to Sunshine Law because the committee "is nothing more than a meeting of staff members who serve in a fact-finding advisory capacity to the chief"); J.I. v. Department of Children and Families, 922 So. 2d 405 (Fla. 4th DCA 2006) (Sunshine Law not applicable to Department of Children and Families permanency staffing meetings conducted to determine whether to file a petition to terminate parental rights); Jordan v. Jenne, 938 So. 2d 526 (Fla. 4th DCA 2006) (Sunshine Law did not apply to professional standards committee responsible for reviewing charges against a sheriff's deputy and making recommendations to the inspector general as to whether the charges should be sustained, dismissed, or should be deferred for more information); and McDougall v. Culver, 3 So. 3d 391 (Fla. 2d DCA 2009) (Internal Affairs memorandum containing findings and recommendations circulated to senior officials for review and comment before submission to the sheriff for a decision on disciplinary action did not constitute a meeting under the Sunshine Law since officials only provided a recommendation but did not deliberate with the sheriff or have decision-making authority).
However, when a staff member ceases to function in a staff capacity and is appointed to a committee which is given "a policy-based decision-making function," the staff member loses his or her identity as staff while working on the committee and the Sunshine Law applies to the committee. See Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983); and Evergreen the Tree Treasurers of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526, 531-532 (Fla. 2d DCA 2002) (when public officials delegate their fact-finding duties and decision-making authority to a committee of staff members, those individuals no longer function as staff members but "stand in the shoes of such public officials" insofar as the Sunshine Law is concerned).
In Wood v. Marston, supra, the Florida Supreme Court recognized that the function of staff is to inform and advise the decision-maker. However, the Court concluded that
It is therefore the nature of the act performed, not the makeup of the committee or the proximity of the act to the final decision, which determines whether a committee composed of staff is subject to the Sunshine Law. Wood v. Marston, supra. See News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982), concluding that it would be "ludicrous" to hold that "a certain committee is governed by the Sunshine Law when it consists of members of the public, who are presumably acting for the public, but hold a committee may escape the Sunshine Law if it consists of individuals who owe their allegiance to, and receive their salaries from, the governing authority."
Thus, in Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997), the district court determined that a committee composed primarily of staff that was created by a college purchasing director to assist and advise her in evaluating contract proposals was subject to the Sunshine Law. The committee's job to "weed through the various proposals, to determine which were acceptable and to rank them accordingly" was sufficient to bring the committee within the scope of the Sunshine Law. "Governmental advisory committees which have offered up structured recommendations such as here involved--at least those recommendations which eliminate opportunities for alternative choices by the final authority, or which rank applications for the final authority--have been determined to be agencies governed by the Sunshine Law." Id. at 1101. See also AGOs 05-06 (city development review committee, composed of several city officials and representatives of various city departments to review and approve development applications, is subject to the Sunshine Law), and 86-51 (land selection committee appointed by water management district and delegated decision-making authority to consider projects for inclusion on a list of proposed acquisition projects must comply with Sunshine Law "even though such committee may be composed entirely of district staff and its decisions and recommendations are subject to further action by the district's governing board").
Similarly, in Dascott v. Palm Beach County, 877 So. 2d 8 (Fla. 4th DCA 2004), the court held that a meeting of a pre-termination conference panel established pursuant to a county ordinance and composed of a department head, personnel director and equal opportunity director should have been held in the Sunshine. Even though the county administrator had the sole authority to discipline employees, that authority had been delegated to the department head who in turn chose to share that authority with the other members of the panel. "Because it is undisputed that the staff gave advice on the ultimate decision to terminate" an employee during a closed-door session at which the decision to terminate was made, the closing of the deliberations violated the Sunshine Law. Id. at 14. Compare Jordan v. Jenne, 938 So. 2d at 530 (Sunshine Law did not apply to a professional standards committee responsible for reviewing charges against sheriff's deputy and making recommendations to the inspector because inspector general made the "ultimate decision" on discipline and did not deliberate with the committee).
10. Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees?
In some cases, members of public boards also serve as administrative officers or employees. The Sunshine Law is not applicable to discussions of those individuals when serving as administrative officers or employees, provided such discussions do not relate to matters which will come before the public board on which they serve.
For example, the Sunshine Law would not apply to meetings between the mayor and city commissioners where a mayor performs the duties of city manager and the city commissioners individually serve as the head of a city department when the meeting is held solely by these officers in their capacity as department heads for the purpose of coordinating administrative and operational matters between executive departments of city government for which no formal action by the governing body is required or contemplated. Those matters which normally come before, or should come before, the city commission for discussion or action, however, must not be discussed at such meetings. AGO 81-88. Accord AGOs 83-70 and 75-210 (mayor may discuss matters with individual city council member which concern his administrative functions and would not come before the council for consideration and further action).
Similarly, a conversation between a state attorney and sheriff about a specific criminal investigation involving an assault related to a youth gang would not violate the Sunshine Law even though both officials are members of a county criminal justice commission and the commission is studying and making recommendations on the problem of youth gangs in the community. AGO 93-41 And see Inf. Op. to Hughes, February 17, 1995; and Inf. Op. to Boyd, March 14, 1994 (Sunshine Law not applicable to school faculty meeting simply because two or more members of school advisory council who are also faculty members attend the faculty meeting as long as council members refrain from discussing matters that may come before the council for consideration).