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Government and Administrative

Fourth DCA: Florida Sunshine Law’s Strict Compliance vs Public Records Act Good Faith Exception

Fourth DCA: Florida Sunshine Law’s Strict Compliance vs Public Records Act Good Faith Exception

In yet another example of the Florida Sunshine Law’s virtually unblemished and undefeated record, the Fourth District Court of Appeal recently reversed a trial court’s decision that the Palm Beach County Canvassing Board and Palm Beach County Supervisor of Elections did not violate the Sunshine Law when they took too long to produce the minutes from a meeting. The decision once again shows that, regardless of the reason, if a government entity violates the Sunshine Law, attorney’s fees and costs will follow.

An Election, a Pandemic, and a Broken Laptop, Oh My!

The plaintiff in Jackson v. City of South Bay, 48 Fla. L. Weekly D371, — So. 3d —- (Fla. 4th DCA Feb. 15, 2023), was an individual who, after losing his March 2020 election for South Bay City Commissioner by one vote, filed a public records request for copies of all meeting minutes for the Palm Beach County Canvassing Board relating to the March 2020 election. Jackson eventually filed a complaint contesting the election results. He later amended this complaint to allege violations of Florida’s Sunshine Law and Public Records Act by the canvassing board and supervisor of elections.

After the parties agreed on a production deadline, all of the meeting minutes were produced in time by the defendants, save for one. The reason for the delay for producing minutes from the March 13 meeting is because the defendants initially did not realize a meeting had actually taken place on that day. The defendants then tried to obtain the meeting’s minutes from the laptop of the person responsible for taking the minutes but, unfortunately, the laptop was broken. The minutes were eventually retrieved from the minute-taker’s email and produced to Jackson in September 2020. Despite this delay, the trial court found Jackson’s Sunshine Law and Public Records Act claims failed, and therefore he was not entitled to attorney’s fees.[1]

Public Records Act’s Good Faith Exception Can Excuse Delay in Production

On appeal, the Fourth DCA affirmed the trial court’s finding regarding the Public Records Act, noting that the applicable law, chapter 119, Florida Statutes, requires a records custodian to respond to a public records request “in good faith.” The Fourth DCA focused on the fact that all of the meeting minutes at issue, save for one, were produced before the agreed-upon production date, and that Jackson could not complain he should have received the minutes earlier given this agreement. As for the March 13 meeting minutes, the defendants’ prompt production of them upon discovery—technical and other issues notwithstanding—was a “good faith response” in that the delay was not unlawful. That is, the defendants did not affirmatively refuse to produce the records, nor was the delay unjustified. Rather, given the circumstances, the defendants did what they could to produce the minutes as soon as possible and in good faith.

The Sunshine Law Requires Mandatory Compliance

Turning to the Sunshine Law claim, the Fourth DCA found error with the trial court’s finding. Contrasting the Sunshine Law (found in chapter 286, Florida Statutes) with the Public Records Act, the court noted that the Sunshine Law does not contain a “good faith” exception. Indeed, the Sunshine Law’s text is unambiguous and clearly states the minutes of a government agency’s meeting “shall be promptly recorded, and such records shall be open to public inspection,” and courts “shall assess a reasonable attorney’s fee” to enforce its provisions. Driving this point home, the Fourth DCA pointedly stated that merely showing that the Sunshine Law has been violated is itself an irreparable public injury and the law should be construed to defeat “all evasive devices.” Analyzed within this strict framework, the court found that the March 13 meeting minutes were not promptly recorded and open to public inspection as evidenced by the defendants’ unawareness that the meeting even occurred prior to Jackson’s complaint, and that despite requesting the minutes in April, he did not receive them until five months later.

The Fourth DCA also dispensed with the trial court’s cited reasons excusing the delay: the “busy election” season, the “throes of a pandemic” and a stay-at-home order in effect, and the defendants’ good faith efforts to comply under “extraordinary circumstances.” Focusing on the Sunshine Law’s use of the word “shall,” the Fourth DCA found this statute requires mandatory compliance. No good faith exception exists, nor is there a pandemic-related exception. In fact, Governor DeSantis’ March 20, 2020 Executive Order—issued in response to the pandemic—explicitly stated that it was not waiving any requirements of the Sunshine Law. Thus, the defendants in Jackson violated the Sunshine Law regarding the March 13 meeting, and the Fourth DCA reversed and remanded for a determination of Jackson’s attorney’s fees and costs related to this issue.

A Pandemic Cannot Overcome the Sunshine

Jackson is another example of the Sunshine Law’s mandatory nature of compliance and how, regardless of the reason, if a government agency violates it, penalties shall be imposed. Many would likely agree the defendants’ delay here was understandable. To say government agencies were going through a lot in March and April 2020 is obviously an understatement. A neutral observer could argue it makes sense that, amidst an election, a pandemic, and a broken laptop, the minutes from a meeting might get lost in the shuffle. Ultimately, though, these ostensibly reasonable arguments were irrelevant, because while the Public Records Act contains a “good faith” exception, the Sunshine Law is essentially absolute in its requirements. In the end, the aggravating circumstances brought on by the pandemic were not enough to surmount the Sunshine Law’s demands. The defendants’ failure to comply meant they violated the law, and were therefore on the hook for Jackson’s attorney’s fees and costs. Government agencies should use this case as a reminder of the importance of compliance with the Sunshine Law and the costs that will follow for noncompliance, no matter how sympathetic of an underlying rationale they may have.

[1] The trial court also found Jackson’s election contest untimely. Jackson did not contest this finding on appeal.