What are the statutory exceptions to the Law?
1. Sunshine Law to be liberally construed while exceptions to the law to be narrowly construed
As a statute enacted for the public benefit, the Sunshine Law should be liberally construed to give effect to its public purpose while exemptions should be narrowly construed. See, e.g., Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969); Wood v. Marston, 442 So. 2d 934 (Fla. 1983). And see Turner v. Wainwright, 379 So. 2d 148, 155 (Fla. 1st DCA 1980), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980) (rejecting a board's argument that a legislative requirement that certain board meetings must be open to the public implies that the board could meet privately to discuss other matters).
The courts have recognized that the Sunshine Law should be construed so as to frustrate all evasive devices. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); Blackford v. School Board of Orange County, 375 So. 2d 578 (Fla. 5th DCA 1979); Wolfson v. State, 344 So. 2d 611 (Fla. 2d DCA 1977). As the Florida Supreme Court stated in Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260, 264 (Fla. 1973):
Various boards and agencies have obviously attempted to read exceptions into the Government in the Sunshine Law which do not exist. Even though their intentions may be sincere, such boards and agencies should not be allowed to circumvent the plain provisions of the statute. The benefit to the public far outweighs the inconvenience of the board or agency. If the board or agency feels aggrieved, then the remedy lies in the halls of the Legislature and not in efforts to circumvent the plain provisions of the statute by devious ways in the hope that the judiciary will read some exception into the law.
If a board member is unable to determine whether a meeting is subject to the Sunshine Law, he or she should either leave the meeting or ensure that the meeting complies with the Sunshine Law. See City of Miami Beach v. Berns, supra at 41; Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) ("The principle to be followed is very simple: When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.").
2. Creation and review of exemptions
Article I, s. 24(b), Fla. Const., requires that all meetings of a collegial public body of the executive branch of state government or of local government, at which official acts are to be taken or at which the public business of such body is to be transacted or discussed, be open and noticed to the public. All laws in effect on July 1, 1993, that limit access to meetings remain in force until they are repealed. Article I, s. 24(d), Fla. Const.
The Legislature is authorized to provide by general law passed by two-thirds vote of each house for the exemption of meetings, provided such law states with specificity the public necessity justifying the exemption and is no broader than necessary to accomplish the stated purpose of the law. Article I, s. 24(c), Fla. Const. See s. 119.011(8), F.S., defining the term "exemption" to include a provision of general law which provides that a "specified . . . meeting, or portion thereof, is not subject to the access requirements" in s. 286.011, F.S., or Art. I, s. 24, Fla. Const. And see Halifax Hospital Medical Center v. News-Journal Corporation, 724 So. 2d 567 (Fla. 1999) (open meetings exemption for certain hospital board meetings unconstitutional because it did not meet the constitutional standard of specificity as to stated public necessity and limited breadth to accomplish that purpose). Compare Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189, 195 (Fla. 1st DCA 2004), upholding a more recent public meetings exemption because "the constitutional concerns expressed by the Florida Supreme Court in Halifax" were met due to a more specific legislative justification accompanied by adequate findings to support the breadth of the exemption.
Section 119.15, F.S., the Open Government Sunset Review Act, provides for legislative review of exemptions from the open government laws. Pursuant to the Act, in the fifth year after enactment of a new exemption or expansion of an existing exemption, the exemption shall be repealed on October 2 of the fifth year, unless the Legislature acts to reenact the exemption. Section 119.15(3), F.S. The two-thirds vote requirement for enactment of exemptions set forth in Art. I, s. 24(c), Fla. Const., applies to re-adoption of exemptions as well as initial creation of exemptions. AGO 03-18.
3. Statutory exemptions
There are a number of exemptions to the Government in the Sunshine Law. While the exemptions for certain investigative meetings, litigation meetings, and collective bargaining strategy sessions are respectively discussed in subsections D.2, D.3, and D4., supra, the following discussion, although by no means comprehensive, summarizes some of the other more significant exemptions which have formed the basis of inquiries to the Attorney General's Office by governmental agencies and the public. For a more complete listing of statutory exemptions, please see Appendix D.
a. Abuse meetings
Portions of meetings of the State Child Abuse Death Review Committee or local committees at which information made confidential by s. 383.412(1) is discussed are exempt from open meetings requirements. Section 383.412(3), F.S. Although the closed portion of the meeting must be recorded, the recording is exempt from disclosure. Id. Portions of meetings of domestic violence fatality review teams regarding domestic violence fatalities and their prevention, during which confidential or exempt information, the identity of the victim, or the identity of the victim's children is discussed, are exempt from s. 286.011, F.S. Section 741.3165(2), F.S.
Portions of meetings of the statewide or local advocacy councils which relate to the identity of clients, which relate to the identity of individuals providing information about abuse or alleged violation of rights, or where testimony is provided relating to records otherwise made confidential by law are not subject to open meetings requirements. Sections 402.165(8)(c) and 402.166(8)(c), F.S. See AGO 06-34 (members of local advocacy council, who are attending a closed session of the statewide advocacy council during the discussion of one of the local council's cases, may not remain in the closed session when the statewide advocacy council is considering cases from other advocacy councils which are unrelated to the local advocacy council's cases).
b. Economic development meetings
While s. 288.075(2), F.S., allows a private corporation to request confidentiality for certain records relating to its plans to locate or relocate in Florida, this exemption "applies only to records and does not constitute an exemption from the provisions of the Government in the Sunshine Law . . . ." AGO 04-19. Accord AGO 80-78. Compare s. 288.9551(3), F.S. (Scripps Florida Funding Corporation); s. 288.982(2), F.S. (Governor's Advisory Council on Base Realignment and Closure); and s. 331.326, F.S. (Space Florida), providing limited exemptions from the Sunshine Law for certain discussions of confidential records. Cf. s. 286.0113(2), F.S., providing an exemption from the Sunshine Law for a meeting at which a negotiation with a vendor is conducted pursuant to s. 287.057(1), F.S., and providing that a complete recording must be made of any exempt meeting.
c. Education meetings
Student expulsion hearings are exempt from the Sunshine Law although the student's parent must be given notice of the provisions of s. 286.011, F.S., and may elect to have the hearing held in compliance with that section. Section 1006.07(1)(a), F.S. See AGO 93-03.
Hearings on an exceptional student's placement or denial of placement in a special education program are exempt from s. 286.011, F.S., except to the extent that the State Board of Education adopts rules establishing other procedures. Section 1003.57(1) (b), F.S.
Meetings of the Florida Technology, Research, and Scholarship Board at which information made confidential by s. 1004.226, F.S., is discussed is exempt from s. 286.011, F.S., and Art. I, s. 24(b), Fla. Const. Section 1004.226(8)(b)1., F.S.
Although s. 1002.22, F.S., makes the education records of students confidential, this exemption does not close the meetings of a school board in which such records may be considered. AGO 10-04.
d. Hearings involving minors
Dependency adjudicatory hearings are open; however, a judge by special order may close any hearing to the public upon determining that the public interest or the welfare of the child is best served by closure. Section 39.507(2), F.S. And see Mayer v. State, 523 So. 2d 1171 (Fla. 2d DCA), review dismissed, 529 So. 2d 694 (Fla. 1988) (former version of statute requiring hearings to be closed did not violate First Amendment freedom of press rights). Hearings for the appointment of a guardian advocate are confidential and closed to the public. Section 39.827(4), F.S.
All hearings involving termination of parental rights are confidential. Section 39.809(4), F.S. See Natural Parents of J.B. v. Florida Department of Children and Family Services, 780 So. 2d 6 (Fla. 2001), upholding the constitutionality of the statute. And see J.I. v. Department of Children and Families, 922 So. 2d 405 (Fla. 4th DCA 2006) (Sunshine Law does not apply to Department of Children and Families permanency staffing meetings conducted to determine whether to file petition to terminate parental rights). Cf. Stanfield v. Florida Department of Children and Families, 698 So. 2d 321 (Fla. 3d DCA 1997) (trial court may not issue a "gag" order preventing a woman from discussing a termination of parental rights case because "[t]he court cannot prohibit citizens from exercising their First Amendment right to publicly discuss knowledge that they have gained independent of court documents even though the information may mirror the information contained in court documents").
Hearings held under the Florida Adoption Act are closed. Section 63.162(1), F.S. See In re Adoption of H.Y.T., 458 So. 2d 1127 (Fla. 1984) (statute providing that all adoption hearings shall be held in closed court is not unconstitutional).
Except as provided in s. 918.16(2), the judge shall clear the courtroom, except for listed individuals, in a criminal or civil trial when any person under 16 years of age or any person with mental retardation is testifying concerning any sex offense. Section 918.16(1), F.S. When the victim of a sex offense is testifying concerning that offense, the court shall clear the courtroom, except for listed individuals, upon request of the victim, regardless of the victim's age or mental capacity. Section 918.16(2), F.S. Cf. Pritchett v. State, 566 So. 2d 6 (Fla. 2d DCA), review dismissed, 570 So. 2d 1306 (Fla. 1990) (where a trial court failed to make any findings to justify closure, application of s. 918.16, F.S., to the trial of a defendant charged with capital sexual battery violates the defendant's constitutional right to a public trial). Accord Kovaleski v. State, 854 So. 2d 282 (Fla. 4th DCA 2003), cause dismissed, 860 So. 2d 978 (Fla. 2003).
All hearings conducted in accordance with a petition for a waiver of the notice requirements pertaining to a minor seeking to terminate her pregnancy, shall remain confidential and closed to the public, as provided by court rule. Section 390.01114(4)(e), F.S.
e. Hearings to obtain HIV test results
While the test results for human immunodeficiency virus infection are confidential and may be released only as prescribed by statute, a person may be allowed access to the results by court order if he or she demonstrates a compelling need for the results which cannot be accommodated by other means. The court proceedings in these cases are to be conducted in camera unless the person tested agrees to a hearing in open court or the court determines that a public hearing is necessary to the public interest and the proper administration of justice. Section 381.004(3)(e)9., F.S.
(1) Public hospitals and health facilities
The meetings of peer review panels, committees and governing bodies of hospitals or ambulatory surgical centers licensed in accordance with Ch. 395, F.S., which relate to disciplinary actions and are held to achieve the objectives of such panels, committees, or governing boards, are exempt from s. 286.011, F.S. Section 395.0193(7), F.S. The meetings of the committees and governing board of a licensed facility held solely for the purpose of achieving the objectives of risk management are not open to the public. Section 395.0197(14), F.S. See AGO 92-29, stating that to the extent a meeting of the board of directors and the medical staff's quality assurance committee deals with carrying out cited risk management statutes, the meeting is exempt from the open meeting requirements of s. 286.011, F.S.
Similar exemptions for portions of meetings which relate solely to patient care quality assurance are found in ss. 381.0055(3) (Department of Health and local health agencies); 394.907(7) (community mental health centers); and 395.51(3), F.S. (trauma agencies). And see ss. 400.119(2)(a) (long-term care facilities); 401.425(5) (emergency medical services); 766.101(7)(c) (medical review committee proceedings); and 945.6032(3), F.S. (medical review committee created by Correctional Medical Authority or Department of Corrections).
Those portions of a meeting of a public hospital's governing board at which negotiations for contracts with nongovernmental entities occur or are reported on when such negotiations concern services that are or are reasonably expected to be provided by the hospital's competitors are exempt from public meetings requirements. Section 395.3035(3), F.S. However, meetings at which the governing board is scheduled to vote on contracts, except managed care contracts, are open. Id. In addition, those portions of meetings at which certain written strategic plans are considered are exempt from open meetings requirements although a hospital may not approve a binding agreement to implement a strategic plan at any closed meeting. Section 395.3035(4) and (8), F.S. The Attorney General's Office has suggested that the governing body strictly limit attendance at meetings closed pursuant to s. 395.3035, F.S., to only those individuals who are essential to the purpose of the meeting in order to avoid what the courts might consider to be a disclosure to the public. AGO 07-28. While the board is not required to give notice of the closed meeting to discuss the hospital's strategic plan, before such a plan may be implemented it must be discussed at a public meeting noticed in accordance with section 286.011 and, if the strategic plan involves a substantial reduction in the level of medical services provided to the public, such notice must be given at least 30 days prior to the meeting at which the governing board considers the decision to implement the strategic plan. Id.
That portion of a public meeting which would reveal information contained in a comprehensive emergency management plan that addresses the response of a hospital to an act of terrorism is exempt from open meetings requirements. Section 395.1056(4), F.S.
Any portion of the meeting of the governing board, peer review panel, or committee meeting of a university health services support organization during which a confidential and exempt contract, document, record, marketing plan, or trade secret is discussed is exempt from s. 286.011, F.S. Section 1004.30(3), F.S. And see s. 409.91196(2), F.S. (
that portion of a meeting of the Medicaid Pharmaceutical and Therapeutics Committee at which the rebate amount, percent of rebate, manufacturer's pricing, or supplemental rebate, or other trade secrets that the Agency for Health Care Administration has identified for use in negotiations, are discussed is exempt from open meetings requirements).
That portion of a long term care ombudsman council meeting in which the council discusses information that is confidential and exempt from s. 119.07(1), F.S., is closed to the public. Section 400.0077(2), F.S. And see s. 641.68, F.S. (managed care ombudsman committee).
(2) Private or nonprofit corporations operating public health facilities
Section 395.3036, F.S., provides that meetings of the governing board of a private corporation that leases a public hospital or health care facility are exempt from open meetings requirements when the public lessor complies with the public finance accountability provisions of s. 155.40(5), F.S., with respect to the transfer of any public funds to the private lessee and when the private lessee meets at least three of the five criteria set forth in the exemption. See Indian River County Hospital District v. Indian River Memorial Hospital Inc., 766 So. 2d 233 (Fla. 4th DCA 2000). See also Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189 (Fla. 1st DCA 2004) (exemption is constitutional). Cf. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 927 So. 2d 961 (Fla. 5th DCA 2006) (private corporation that purchased hospital from public hospital authority is not subject to open government requirements). And see s. 155.40(8), F.S., describing and construing the term "complete sale" as applied to the purchase of a public hospital by a private entity.
Meetings of the governing body of the not-for-profit corporation operating the H. Lee Moffitt Cancer Center and Research Institute, or its subsidiaries, are also exempt except that meetings at which expenditures of dollars appropriated to the corporation by the state are discussed must remain open to the public, unless made confidential or exempt by law. Section 1004.43(9), F.S. And see s. 1004.4472(4), F.S. (portions of meetings of the Florida Institute for Human and Machine Cognition, Inc., or its subsidiary at which confidential and exempt information is presented may be closed). Cf. AGO 07-27 (local health councils, which may be public or private nonprofit corporations, whose duties are prescribed by s. 408.033, F.S., and who provide an integral role in the decision-making process of the Agency for Health Care Administration in providing for the coordinated planning of health care services within the state, are subject to s. 286.011, F.S.).
g. Insurance meetings
Proceedings and hearings relating to the actions of the Office of Insurance Regulation regarding an insurer's risk-based capital plan or report are exempt from s. 286.011, F.S., except as otherwise provided in the section. Section 624.40851(2), F.S. Portions of meetings of the Citizens Property Insurance Corporation and of the Florida Automobile Joint Underwriting Association where confidential underwriting files or confidential open claims files are discussed are closed to the public. Sections 627.351(6)(x)4. and 627.311(4)(b), F.S. Meetings of the subscriber assistance panel are open to the public unless the provider or subscriber whose grievance will be heard requests a closed meeting or the Agency for Health Care Administration or the Department of Financial Services determines that information relating to subscriber medical history or to internal risk management programs may be revealed, in which case that portion of the meeting is exempt from the Sunshine Law. Section 408.7056(14)(b), F.S.
That portion of a meeting of the Florida Commission on Hurricane Loss Projection Methodology or of a rate proceeding on an insurer's rate filing at which a confidential trade secret is discussed is exempt from open meetings requirements. Section 627.0628(3)(f)2., F.S. Although the closed portion of the meeting must be recorded, the recording is exempt from disclosure. Id.
Discussions involving officials of the Department of Financial Services and an insurance company relating to investigation of fraudulent insurance claims are confidential and exempt from s. 286.011, F.S. Section 633.175(5), F.S. And see ss. 631.724 (certain negotiations or meetings of the Florida Life and Health Insurance Guaranty Association); 631.932 (negotiations between an insurer and the Florida Workers' Compensation Insurance Guaranty Association); and 440.3851(3)(a), F.S. (portions of meetings of board of directors of Florida Self-Insurers Guaranty Association, Incorporated, at which confidential records are discussed).
Meetings held by the board of governors of the Florida Workers' Compensation Joint Underwriting Association, Inc., or any subcommittee of the association's board, to discuss records made confidential by s. 627.3121, F.S., are exempt. Section 627.3121(4), F.S.
h. Security and criminal justice meetings
Meetings relating to the security systems for any property owned by or leased to the state or any of its political subdivisions or for any privately owned or leased property which is in the hands of an agency are exempt from s. 286.011, F.S. Section 281.301, F.S. This statute exempts meetings of a board when the board discusses issues relating to the security systems for any property owned or leased by the board or for any privately owned or leased property which is in the possession of the board. The statute does not merely close such meetings; it exempts the meetings from the requirements of s. 286.011, F.S., such as notice. AGO 93-86. And see s. 286.0113(1), F.S., stating that the portion of a meeting that would reveal a security system plan or portion thereof made confidential and exempt by s. 119.071(3)(a), F.S. (providing an exemption from the Public Records Act for a "security system plan") is exempt from open meetings requirements.
The Florida Violent Crime and Drug Control Council may close portions of meetings during which the council will hear or discuss active criminal investigative information or active criminal intelligence information, provided that specified conditions are met as set forth in the exemption. Section 943.031(7)(c), F.S. And see s. 943.0314, F.S. (Domestic Security Oversight Council).
i. Licensure examination meetings
There are a several exemptions for meetings at which licensure examination questions and answers are discussed. See, e.g., ss. 456.017(4), F.S. (board within Department of Health), 455.217(5), F.S. (boards within Department of Business and Professional Regulation); 497.172(1)(a), F.S. (Board of Funeral, Cemetery, and Consumer Services within the Department of Financial Services); 472.0131(5), F.S. (Board of Professional Surveyors and Mappers within Department of Agriculture and Consumer Services).
4. Special act exemptions
Prior to July 1, 1993, exemptions from the Sunshine Law could be created by special act. Article I, s. 24, Fla. Const., however, now limits the Legislature's ability to enact an exemption from the constitutional right of access to open meetings established thereunder. While exemptions in effect on July 1, 1993, remain in force until repealed, the Constitution requires that exemptions enacted after that date must be by general law. Such law must state with specificity the public necessity for the exemption and be no broader than necessary to accomplish that stated purpose.