Sunday, December 07, 2014

Florida AG Sunshine Manual on rights to meeting seating and prompt records responses

a. (1)
Can restrictions be placed on the public’s attendance at, or participation in, a public meeting?
Public’s right to attend or record meeting Size of meeting facilities
The sunshine law requires that meetings of a public board or commission be “open to the public.” if a large turnout is expected for a particular meeting, the attorney general’s office has recommended that public boards and commissions take reasonable steps (such as moving the meeting to a larger room) to accommodate those who wish to attend. inf. op. to galloway, august 21, 2008. if the largest available public meeting room cannot accommodate all of those who are expected to attend, the use of video technology (e.g., a television screen outside the meeting room) may be appropriate. See Kennedy v. St. Johns River Water Management District, no. 2009-0441-Ca (Fla. 7th Cir. Ct. september 27, 2010), per curiam affirmed, 84 so. 3d 331 (Fla. 5th DCa 2011) (even though not all members of the public were able to enter the meeting room, board did not violate the sunshine law when it held a meeting at the board’s usual meeting place and in the largest available room; the court noted, however, that the board set up a computer with external speakers so that those who were not able to enter the meeting room could view and hear the proceedings).

b. Production delays
an agency’s unjustified delay in producing public records can constitute an unlawful refusal to provide access to public records. See Hewlings v. Orange County, 87 so. 3d 839 (Fla. 5th DCa 2012) (mere fact that county quickly responded to public records request by voicemail and fax is not dispositive of whether county’s 45-day delay in complying with the request was unjustified for purposes of s. 119.12, F.s., authorizing an award of attorney’s fees to a party who succeeds in a civil action resulting from an unlawful refusal to provide public records). See also Rechler v. Town of Manalapan, no. Cl 94-2724 aD (Fla. 15th Cir. Ct. november 21, 1994), affirmed, 674 so. 2d 789, 790 (Fla. 4th DCa 1996), review denied, 684 so. 2d 1353 (Fla. 1996), finding that the town engaged in a “pattern of delays” by taking months to fully comply with the petitioner’s public records requests.
similarly, in State v. Webb, 786 so. 2d 602, 604 (Fla. 1st DCa 2001), the court held that it was error for a lower court judge to vacate a misdemeanor conviction of a records custodian (Webb) who had been found guilty of willfully violating s. 119.07(1)(a), F.s., based on her “dilatory” response to public records requests filed by a citizen (Watson):
evidence was presented that Webb took one and one-half months to respond to Watson’s initial public-records request; that it was nearly four months before Webb attempted to schedule a time for Watson to review documents responsive to the requests; that Webb gave Watson one hour to review a ten-inch stack of documents and then allowed only two additional one-hour sessions five weeks later; that Webb terminated Watson’s review after this third session; and that Webb did not provide all of her public records until she received a request from the grand jury nearly seven months after Watson’s request.
By contrast, in Lang v. Reedy Creek Improvement District, no. CJ-5546 (Fla. 9th Cir. Ct. october 2, 1995), affirmed per curiam, 675 so. 2d 947 (Fla. 5th DCa 1996), the circuit court rejected the petitioner’s claim that the agency should have produced requested records within 10, 20 and 60-day periods. The court determined that the agency’s response to numerous (19) public records requests for 135 categories of information and records filed by the opposing party in litigation was reasonable in light of the cumulative impact of the requests and the fact that the requested records contained exempt as well as nonexempt information and thus required a considerable amount of review and redaction. And see Herskovitz v. Leon County, no. 98-22 (Fla. 2d Cir. Ct. June 9, 1998), in which the court said that in view of the “nature and volume of the materials requested [over 9000 pages], their location, and the need for close supervision by some knowledgeable person of the review of those records for possible exemptions,” the amount of time expended by the county to produce the records (several weeks) to opposing counsel was not unreasonable.
c. Arbitrary time for inspection
While an agency may restrict the hours during which public records may be inspected to those hours when the agency is open to the public, a custodian is not authorized to establish an arbitrary time period during which records may or may not be inspected. ago 81-12. Thus, an agency policy which permits inspection of its public records only from 1:00 p.m. to 4:30 p.m., monday through Friday, violates the Public records act. inf. op. to riotte, may 21, 1990. There may be instances where, due to the nature or volume of the records requested, a delay based upon the physical problems in retrieving the records and protecting them is necessary; however, the adoption of a schedule in which public records may be viewed only during certain hours is impermissible. Id.

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