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Courts key to strength of Florida's Sunshine Law.

Floridians believe that our Government-in-the-Sunshine Law is the strongest open meetings law in the world. The law simply requires that "[a]ll meetings of any board or commission of any (state or local governmental body) at which official acts are to be taken are declared to be public meetings open to the public at all times, and no ... formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings."

Today, in light of its interpretation and application by Florida courts, the Sunshine Law is a remarkable act without a loophole. The courts have refused all invitations to engraft exceptions or qualifications and have given the law the broadest possible interpretation.

A "meeting" is any communication between any two or more members of a collegial body in which the members discuss any matter that foreseeably may come before the meeting. "Official acts" include any discussion of such foreseeable business. A "board or commission" includes any informal advisory body that plays a role in the decision-making process.

A meeting is not "open to the public" unless it is held in a venue that is genuinely open and accessible to the public and in or close by the jurisdiction of the board. A vote by secret ballot is not "open to the public," and a discussion that refers to undisclosed codes or pseudonyms is not open to the public.

Any action taken by a board that is tainted by nonpublic deliberations at any stage of the decision-making process is void, and the board may not proceed unless it "cures" the action by rehashing the entire deliberation in an independent final action in the Sunshine.

There is a reason in history why Florida courts have so energetically embraced the Sunshine Law. It is a product of revolutionary reform, adopted in 1967 by a newly reapportioned Legislature elected under a reapportionment plan imposed by order of the federal court. As South Florida grew rapidly in the postwar years, the Legislature had become increasingly less representative of the population, and reapportionment was an issue that dominated Florida politics from 1946 until the matter was finally resolved by court order.

During this era, the legislature was dominated by a secretive cabal of rural state senators known as the "Pork Chop Gang." They operated in secret, controlled the Senate, and above all else protected their seats from reapportionment.

In 1954, LeRoy Collins ran for governor on a platform of reform. He pledged to bring about fair apportionment and advocated "government in the Sunshine and not in the shade." In his first message to the Legislature in 1955, he called for this reform, saying, "The people of Florida possess the sovereignty of statehood. [They] have yielded to us no right to decide what is good for them to know, or what is bad for them to know."

Collins' bill passed the House but died in committee in the Senate, a pattern that was repeated in each session thereafter until 1967. Collins was similarly unable to force the legislators to reapportion themselves, and when the federal courts finally compelled the reform, the imbalance was such that less than 13% of the population elected a majority of the legislators.

In 1959, Collins had predicted that the reapportionment struggle ultimately would bring "new soldiers from the fast-growing areas determined to make our government more representative of and more responsive to the needs of the people." Backed by the power of the federal courts, the new soldiers finally marched into Tallahassee in 1967 and quickly set about fulfilling Collins' prophecy.

There were many such soldiers. For example, Dade County representation increased from three members in 1965 to more than 20 in 1967. All but one of these new legislators had been endorsed by The Miami Herald, and the alumni of that class include U.S. Senator Bob Graham and Florida State University president Talbot "Sandy" D'Alemberte, who was a prominent First Amendment attorney for many years.

The new soldiers quickly passed the Sunshine Law and a companion bill expanding access to public records.

But the new law was only a spark of revolution. It could easily have been suppressed by a minimalist interpretation. The courts might have said a meeting required a quorum, that mere discussion of politics is not an "official act," that informal advisory bodies are not "boards or commissions." The expansive reading of Florida's Sunshine Law was not inevitable but rather the conscious choice of a nearly unanimous judiciary, which greeted the reform with the same revolutionary spirit that animated the new soldiers who passed it.

When the new law first reached the Florida Supreme Court in 1969, Justice James C. Adkins set the tone for expansive judicial enforcement, decreeing:

"The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. During past years tendencies toward secrecy in public affairs have been the subject of extensive criticism. Terms such as managed news, secret meetings, closed records, executive sessions, and study sessions have become synonymous with 'hanky panky' in the minds of public-spirited citizens. One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made."

This firm judicial mandate finally signaled the end to secret government in Florida, and Florida's courts have for 35 years been unwavering in their commitment to enforcing the seamless command of openness.

Jon Kaney, an authority on open government, is an attorney with Cobb, Cole & Bell in Daytona Beach, Florida. His clients include the Daytona Beach News-Journal.
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Article Details
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Title Annotation:access to public records; freedom of information
Author:Kaney, Jon
Publication:The Masthead
Article Type:Brief Article
Geographic Code:1USA
Date:Jun 22, 2002
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