From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. County staff and staff from almost every municipality in the county are meeting to discuss proposed county water infrastructure options for the future, which can amount to hundreds of millions of dollars of public expenditures. The county claims the meeting is confidential and not open to the public because it is not a public meeting but a mediation workshop pursuant to Chapter 44, Florida Statutes. The county says that any regional water cooperative (RWC) officials subject to the sunshine law will not be attending and there will be no decision-making, nor any binding commitments made by any of the members or their representatives. Any RWC related decision-making will be discussed and made in a publicly noticed forum.

More background—the meeting includes engineers/lobbyist seeking approval of desalination plants in the county. Some elected officials started to question what the engineers were saying and they decided to hire a professional mediator. At the time of hire, some elected officials made it clear this was not a mediation process but a third-party review process. They called the person a facilitator, not a mediator. At a public meeting, the facilitator said that engineers lobbying to build desalination plants were using inflated numbers.

A. The county says it is holding a “mediation workshop” that “is confidential pursuant to Chapter 44, Florida Statutes.” However, sections 44.102(1) and 44.103(1), F.S., only allow mediators in “court-ordered mediation” to maintain confidentiality of information revealed during mediation. If this is not a court ordered mediation, which it does not appear to be, that provision alone would not apply to close these proceedings.
Further, I would note that the county, RWC, and the various municipalities cannot use the “third party review” process by the professional mediator to avoid a public airing of what appears to be a controversial water-supply problem. In other words, the mediator cannot be used as a “go-between” or “common facilitator” for/between the various county/municipal boards. There are cases and AG opinions on this.

On the other hand, the email goes on to say that “RWC officials subject to the sunshine law will not be attending… the mediation workshop” and that “there will be no decision-making, nor any binding commitments made by any of the members or their representatives…” and that “all decision-making will be discussed and made in a publicly noticed forum.”
It is true that the Sunshine Law does not apply to a group that functions on behalf of a public entity solely as a factfinder or information gatherer with no decision-making authority. In that case, there is no “board or commission” subject to the Sunshine Law. However, even here, the actual function of the committee will be scrutinized to determine whether it is exercising part of the decision-making function. For example, the group/committee would be doing more than mere fact-finding if it “participates in the decision-making process by accepting some options while rejecting others.”
I think you should object to the closure of the mediation proceeding and raise the problems that could arise if they are saying this is factfinding only.

Q. We ran into difficulty earlier this year in obtaining documents from our county department of transportation when we requested any requests from the county sheriff’s office to utilize county poles for license plate scanners. The response from the county office was “After consultation with the sheriff’s office, the requested records are exempt under Fla. Stat. 119.071(2)(d) as a surveillance technique.” Is that accurate?

A. There is an exemption for “information revealing surveillance techniques or procedures or personnel,” however, I don’t remember hearing anything like this question. Pamela Marsh at FAF thinks more information would be helpful. Do you know how the license plate information is used by the SO? For example, are the scanners detecting speeders and capturing the license plate? What is it that the SO is looking for in the license plate information – drivers with outstanding warrants? If so, that sounds to like knowing where the poles are would give away a surveillance technique, correct? Perhaps a little more information can help determine if the exemption actually applies.

Q. Out sheriff’s office is currently investigating a robbery at a banking institution that occurred yesterday. Responding deputies obtained the suspect’s description from witnesses and issued a BOLO in the area. Deputies later located the possible suspect in a nearby location and confirmed his identity through the help of witnesses. The identified suspect is currently in custody and being interviewed with charges pending. They will provide a probable cause affidavit with more details once it becomes available but they are keeping secret the identity of the bank because the “victim business in this incident opted into Marsy’s Law and as such, will not be identified.”

Wow. Seriously? Can they really keep the bank’s identity a secret?

A. I think the SO is reading Marsy’s Law too broadly to include the bank as a “victim” but this does not surprise me as other SOs and PDs have been reading the law to keep secret id info. we think should be released. For example, there was a situation last year with the Englewood day care center that had the abusive worker, and the kids and the daycare opted into Marsy’s Law.

Here are some ML developments–the bank situation is not addressed but maybe some of the information may help in other situations. FYI, there is an ongoing case on redacting police officer’s names as victims under ML in Tallahassee that the Fla. Supreme Court may address and the hope is that this will eventually result in a narrowing of the law.

Q. We recently received word that our local school board discussed salary increases for non-union employee positions during executive session. A vote on the matter was approved on the consent agenda at the next meeting without discussion. When questioned about this, the superintendent claims “personnel” issues are one of the topics school boards are allowed to discuss in executive session.
Is this permissible under FS 286?

A. In the absence of a specific statutory exemption, meetings of a public board or commission (in this case, the school board) to discuss personnel matters are subject to the Sunshine Law (properly noticed, reasonably accessibly by the public, minutes, etc.). A “closed executive session” that includes personnel discussions would not meet that standard.

The superintendent’s email points to “union negotiations.” While it is true there is a broad exemption for “collective bargaining” contained in section 447.605 (that might apply to board discussions of union-related issues), it would NOT apply to extend secrecy to discussions of ancillary personnel issues.

Q. We’re starting to get a lot of requests from brick and mortar medical marijuana dispensaries in the area wanting to advertise. Can you give me your feedback?

A. Section 381.986(8)(h) regarding internet marketing and approval still applies. That is, a “medical marijuana treatment center [dispensary] may engage in Internet advertising and marketing” but “all advertisements must be approved by the department.”

This ad appears to be “internet advertising and marketing” by a dispensary so I would think they should have some form of approval from DOH/Office of Medical Marijuana Use (OMMU). But maybe they know something I don’t—they seem to be a big player and they should be well aware of this law.

[The OMMU is developing an MM ad rule to flesh out the law, but last time I checked it is still in flux. See 64-4.022 Medical Marijuana Treatment Center Advertising and Signage]

Q. I am looking for answers on how to access the public death records. I did not get any results from our local health department. Do you have any way of finding that out for me?

A. Death certificate information relating to cause of death is confidential and the clerk of court is not authorized to place death certificates online. Apparently, DOH can issue a certified copy of all or part of a death certificate, excluding the confidential portion, upon payment of the fee prescribed by section 382.025(2).

We asked Pamela Marsh at FAF. She says “that the medical examiner may be willing to provide the records with the cause of death redacted. Although DOH tried to tell the MEs not to release death certificates, several of the MEs bucked that advice and insisted that these were public records and belonged to the taxpayers. It may boil down to how independent a particular ME or his/her office is feeling.”

I would also suggest asking whoever is refusing to give you the records on what basis (i.e., what particular statutory exemption) s/he is relying upon to deny your request. That will help us going forward to figure out how to push back and get the records.

Feel free to copy me or FAF on your email requesting the records. FAF also has a template on their website that has more language you might want to use.