THE FLORIDA SUNSHINE LAWS

Hi All,
Following is everything you wanted to know about the Florida Sunshine laws but were afraid to ask.
Yes indeed, they do not apply to Condominium Associations directly; BUT what of local Advisory Bodies such as UCO, whose Bylaws clearly require adherence to the Sunshine law concept.

"UCO BYLAWS

ARTICLE XI H.

The Sunshine Laws as promulgated by the Federal and/or State authority shall be used as a guide for any and all meetings with the following exceptions:.......!!!!!"

What does the Supreme Pontifex have to hide; Open our Local Government George; let the people see how the sausage is made; make one good decision before your regime is swept away.

Dave Israel




REF: http://myfloridalegal.com/sun.nsf/manual/A342F688127D5AFD852566F30055F8C8

Chapter updated: 02/25/2008

What agencies are covered by the Sunshine Law?

1. Are all public agencies subject to the Sunshine Law?The Government in the Sunshine Law applies to "any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision." The statute thus applies to public collegial bodies within this state, at the local as well as state level. City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971). It is equally applicable to elected and appointed boards or commissions. AGO 73-223.Florida courts have stated that it was the Legislature's intent to extend application of the Sunshine Law so as to bind "every 'board or commission' of the state, or of any county or political subdivision over which it has dominion and control." Times Publishing Company v. Williams, 222 So. 2d 470, 473 (Fla. 2d DCA 1969), disapproved in part on other grounds, Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla. 1985). 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).Based upon the specific terms of the statute and the "dominion and control" test approved by the courts, the following are some of the entities which the Attorney General's Office has concluded are subject to the Sunshine Law:
civil service boards--AGOs 79-63, 73-370, 71-29 (municipal) and 80-27 (sheriff);county and municipal boards--AGOs 04-35 (city risk management committee), 85-55 (downtown redevelopment task force), 83-43 (board of adjustment), 76-230 (beautification committee), and 73-366 (board of governors of municipal country club);
interlocal agreement boards--AGOs 84-16 (five-county consortium created pursuant to Florida Interlocal Cooperation Act), 82-66 (regional sewer facility board), 76-193 (Central Florida Commission on the Status of Women), and Inf. Op. to Nicoletti, November 18, 1987 (Loxahatchee Council of Governments, Inc.);
regulatory boards--AGOs 76-225 (accountancy), and 74-84 (dentistry);
special district boards--AGOs 74-169 (fire control district), and 73-08 (mosquito control district).2. Are advisory boards which make recommendations or committees established only for fact-finding subject to the Sunshine Law?a. Publicly created advisory boards which make recommendationsAdvisory boards created pursuant to law or ordinance or otherwise established by public agencies are subject to the Sunshine Law, even though their recommendations are not binding upon the entities that create them. Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). Accord, Spillis Candela & Partners, Inc. v. Centrust Savings Bank, 535 So. 2d 694 (Fla. 3d DCA 1988). "[T]he Sunshine Law equally binds all members of governmental bodies, be they advisory committee members or elected officials." Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 869 (Fla. 3d DCA 1994). And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law applies to site plan review committee created by county commission to serve in an advisory capacity to the county manager). The Attorney General's Office has issued numerous opinions discussing the application of the Sunshine Law to advisory committees. The following are some of the advisory committees which have been found to be subject to the Sunshine Law:
community issues advisory bodies--AGOs 98-13 (citizen advisory committee appointed by city council to make recommendations to the council regarding city government and city services), 93-41 (criminal justice commission established by county ordinance to develop and make recommendations on criminal justice issues in the county), and 85-55 (community certification committee organized for the purpose of qualifying city as a blue chip community under a program of the Department of Commerce);
employee or personnel advisory bodies--AGOs 96-32 (employee advisory committee), 92-26 (committee responsible for making recommendations to city council on personnel matters), and 84-70 (grievance committees);
education advisory bodies--AGOs 03-28 (business assistance center advisory council created by community college board of trustees), 01-84 (school advisory councils created pursuant to former s. 229.58 [now s. 1001.452], F.S.), and 74-267 (Council of Deans appointed by state university president);
legislation implementation advisory bodies--AGOs 92-79 (advisory committee appointed to assist state agency with the implementation of legislation), and 85-76 (ad hoc committee appointed by mayor for purpose of making recommendations concerning legislation);
planning or property acquisition advisory bodies--AGOs 05-07 (lake restoration council created by the Legislature within a water management district to advise district governing board), 02-24 (vegetation committee created by city code to make recommendations to city council and planning department regarding vegetation and proposed development), 87-42 (ad hoc committee appointed by mayor to meet with Chamber of Commerce to discuss a proposed transfer of city property), and 86-51 (land selection committee appointed by water management district to evaluate and recommend projects for acquisition).The Sunshine Law applies to advisory committees that are appointed by a single public official as well as those appointed by a collegial board. See, e.g., Wood v. Marston, 442 So. 2d 934 (Fla. 1983) (Sunshine Law applies to an ad hoc advisory committee appointed by university president to screen applications and make recommendations for the position of dean of the law school); Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997) (committee established by community college purchasing director to consider and rank various contract proposals must meet in the Sunshine); and Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (Sunshine Law governs advisory group created by city manager to assist him in screening applications and making recommendations for the position of chief of police). Accord, AGO 05-05 (advisory group created by police chief to make recommendations regarding various issues affecting the police department is subject to the Sunshine Law). And see, Inf. Op. to Lamar, August 2, 1993, regarding the application of the Sunshine Law to a transition team made up of citizens appointed by a mayor to make recommendations on the reorganization of city government.b. Fact-finding committeesA limited exception to the applicability of the Sunshine Law to advisory committees has been recognized for advisory committees established for fact-finding only. When a committee has been established strictly for, and conducts only, fact-finding activities, i.e., strictly information gathering and reporting, the activities of that committee are not subject to s. 286.011, F.S. Cape Publications, Inc. v. City of Palm Bay, 473 So. 2d 222 (Fla. 5th DCA 1985). Accord, AGO 95-06 (when a group, on behalf of a public entity, functions solely as a fact-finder or information gatherer with no decision-making authority, no "board or commission" subject to the Sunshine Law is created).For example, the court in Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976), held that a fact-finding committee appointed by a community college president to report to him on employee working conditions was not subject to the Sunshine Law. Later, in Wood v. Marston, 442 So. 2d 934 (Fla. 1983), the Supreme Court approved the holding in Bennett that such fact-finding consultations are not subject to s. 286.011, F.S. And see, Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000) (Sunshine Law did not apply to informal meetings of staff where the discussions were "merely informational," where none of the individuals attending the meetings had any decision-making authority during the meetings, and where no formal action was taken or could have been taken at the meetings).However, when a committee has a decision-making function in addition to fact-finding, the Sunshine Law is applicable. For example, in Wood v. Marston, the Court recognized that a "search and screen" committee appointed by a university president which was responsible for soliciting and compiling applications for a position "had an admitted 'fact-gathering' role in the solicitation and compilation of applications." 442 So. 2d at 938. But, because the committee "had an equally undisputed decision-making function in screening the applicants," the Sunshine Law was applicable. Id. And see, Roscow v. Abreu, No. 03-CA-1833 (Fla. 2d Cir. Ct. August 6, 2004), in which the circuit judge relied on Wood in finding that a committee created by the state department of transportation and composed of officials from state, local and federal agencies was subject to the Sunshine Law because the committee was responsible for screening and evaluation of potential corridors and alignments for a possible expansion of the Suncoast Parkway.Similarly, in AGO 94-21, the Attorney General's Office advised that the Sunshine Law governed the meetings of a negotiating team that was created by a city commission to negotiate with a sports organization on behalf of the city. Even though the resolution creating the team provided that the negotiations were subject to ratification and approval by the city commission, the team was authorized to do more than mere fact-finding in that it would be "participating in the decision-making process by accepting some options while rejecting others for presentment of the final negotiations to the city commission." Id. 3. Are private organizations subject to the Sunshine Law?A more difficult question is presented with private organizations which are providing services to state or local government. The Attorney General's Office has recognized that private organizations generally are not subject to the Sunshine Law unless the private organization has been delegated the authority to perform some governmental function. See, e.g., Inf. Op. to Fasano, June 7, 1996 (Sunshine Law does not apply to meetings of a homeowners' association board). Thus, the Sunshine Law does not apply to a private nonprofit corporation established by local business people to foster economic development where no delegation of legislative or governmental functions by any local governmental entity has occurred and the corporation does not act in an advisory capacity to any such entity. Inf. Op. to Hatcher and Thornton, September 15, 1992. And see, Inf. Op. to Armesto, September 18, 1979, concluding that meetings of political parties are not subject to s. 286.011, F.S. However, the Sunshine Law has been held to apply to private entities created by law or by public agencies, and also to private entities providing services to governmental agencies and acting on behalf of those agencies in the performance of their public duties. Each of these circumstances is discussed more fully below.a. Private entities created pursuant to law or by public agenciesFlorida case law provides that the Sunshine Law should be liberally construed to give effect to its public purpose. See, e.g., Wood v. Marston, 442 So. 2d 934 (Fla. 1983); Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969) (statute should be broadly construed to effect its remedial and protective purposes). Thus, the Supreme Court stated that "[t]he Legislature intended to extend application of the 'open meeting' concept so as to bind every 'board or commission' of the state, or of any county or political subdivision over which [the Legislature] has dominion or control." City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971). Similarly, an entity that acts on behalf of a governmental entity in the performance of its public duties may also be subject to open meetings requirements. See, Town of Palm Beach v. Gradison, 296 So. 2d 473, 478 (Fla. 1974) (Sunshine Law applies to an advisory committee that was established by a city council and was "active on [its] behalf"). Applying these principles, the Attorney General's Office concluded that the Board of Directors of Enterprise Florida, Inc., must comply with the Sunshine Law. AGO 92-80. Even though the organization was acting as a nonprofit corporation, it was created by a statute which also prescribed its membership, powers and duties. Id. And see, AGO 04-44 (Sunshine Law applies to Prison Rehabilitative Industries and Diversified Enterprises [PRIDE], the nonprofit corporation established by state law to manage correctional work programs of the Department of Corrections). Similarly, in AGO 97-17 the Attorney General's Office advised that the Sunshine Law applied to a not-for-profit corporation created by a city redevelopment agency to assist in the implementation of the agency's redevelopment plan. See also, AGO 98-55 (meetings of the board of directors of the Council on Aging of St. Lucie, Inc., a nonprofit organization incorporated pursuant to the "Community Care for the Elderly Act," must comply with the Sunshine Law); AGO 98-42 (Florida High School Activities Association, Inc., having been legislatively designated as the governing organization of athletics in Florida public schools, is subject to the Sunshine Law); and AGO 98-01 (Sunshine Law applies to board of trustees of insurance trust fund created pursuant to collective bargaining agreement between city and employee union).A community college direct-support organization, as defined in s. 1004.70, F.S., is subject to the Sunshine Law. AGO 05-27. See also, AGO 92-53 (John and Mable Ringling Museum of Art Foundation, Inc., established pursuant to statute as a not-for-profit corporation to assist the museum in carrying out its functions by raising funds for the museum, subject to Sunshine Law); and Inf. Op. to Chiumento, June 27, 1990 (direct-support organization, created pursuant to statute for the purpose of assisting a district school board in carrying out the educational needs of its students, governed by Sunshine Law).b. Private entities providing services to public agenciesMuch of the litigation regarding the application of the open government laws to private organizations providing services to public agencies has been in the area of public records. E.g., News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla. 1992). The courts, however, have looked to Ch. 119, F.S., in determining the applicability of the Sunshine Law. See, Cape Coral Medical Center, Inc. v. News-Press Publishing Company, Inc., 390 So. 2d 1216, 1218 n.5 (Fla. 2d DCA 1980) (inasmuch as the policies behind Ch. 119, F.S., and s. 286.011, F.S., are similar, they should be read together); Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983); and Krause v. Reno, 366 So. 2d 1244, 1252 (Fla. 3d DCA 1979).Accordingly, as the courts have emphasized in analyzing the application of Ch. 119, F.S., to entities doing business with governmental agencies, the mere receipt of public funds by private corporations, is not, standing alone, sufficient to bring the organization within the ambit of the open government requirements. See, News and Sun-Sentinel Company v. Schwab, Twitty & Hanser Architectural Group, Inc., supra (records of private architectural firm not subject to Ch. 119, F.S., merely because firm contracted with school board); and Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997) (contract between Salvation Army and county to provide services does not in and of itself subject the organization to the Public Records Act). Cf., Campus Communications, Inc. v. Shands Teaching Hospital and Clinics, Inc., 512 So. 2d 999 (Fla. 1st DCA 1987), review denied, 531 So. 2d 1352 (Fla. 1988).Thus, a private corporation which performs services for a public agency and receives compensation for such services pursuant to a contract or otherwise, is not by virtue of this relationship alone subject to the Sunshine Law unless the public agency's governmental or legislative functions have been delegated to it. McCoy Restaurants, Inc. v. City of Orlando, 392 So. 2d 252 (Fla. 1980) (airlines are not by virtue of their lease with the aviation authority public representatives subject to the Sunshine Law); AGO 98-47 (Sunshine Law does not apply to private nongovernmental organization when the organization counsels and advises private business concerns on their participation in a federal loan program made available through a city); and AGO 80-45 (the receipt of Medicare, Medicaid, government grants and loans, or similar funds by a private nonprofit hospital does not, standing alone, subject the hospital to the Sunshine Law). However, although private organizations generally are not subject to the Sunshine Law, open meetings requirements can apply if the public entity has delegated "the performance of its public purpose" to the private entity. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373, 382-383 (Fla. 1999). And see, Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 927 So. 2d 961 (Fla. 5th DCA 2006), in which the Fifth District applied the "totality of factors" test set forth in News and Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc., supra, and determined that a private corporation that purchased a hospital it had previously leased from a public hospital authority was not "acting on behalf of" a public agency and therefore was not subject to the Public Records Act or the Sunshine Law.Thus, in AGO 00-03, the Attorney General's Office found that meetings of the board of directors of the Family Services Coalition, Inc., an entity performing services for the Department of Children and Family Services pursuant to statute, which services would normally be performed by the department, were subject to the Sunshine Law. The Attorney General has also stated that local health councils, which may be public or private nonprofit corporations, whose duties are prescribed by s. 408.033, F.S., and which 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. AGO 07-27. And see, AGO 04-32 (Sunshine Law applies to meetings of boards of directors of volunteer fire departments that provide firefighting services to the county and use facilities and equipment acquired with county funds). Cf., AGO 96-43 (Astronauts Memorial Foundation, a nonprofit corporation, is subject to the Government in the Sunshine Law when performing those duties funded under the General Appropriations Act); and Inf. Op. to Bedell, December 28, 2005 (private nonprofit organization which entered into an agreement with a city to operate a theater, received city funding in the form of a loan for this purpose, and leased property from the city, should comply with the Sunshine Law when holding discussions or making decisions regarding the theater). Additionally, the Attorney General's Office concluded that if a county commission dissolves its cultural affairs council and designates a nonprofit organization to fulfill that role for the county, the nonprofit organization would be subject to the Sunshine Law. AGO 98-49. As noted in the opinion, the nonprofit organization would be providing services in place of the county council and would receive the public funding formerly provided to the council to carry out that purpose. Id. And see, AGO 02-53 (Martin County Golf and Country Club, a not-for-profit corporation which was specifically created to contract with the county for the operation of a public golf course on county property acquired by public funds, is subject to open records and open meetings requirements); AGO 85-55 (even though a downtown redevelopment task force was not appointed by the city commission, the task force's actions in analyzing methods for downtown improvement would be subject to the Sunshine Law because it, in effect, stood in place of the city commission when considering downtown improvement issues); AGO 83-95 nongovernmental advisory committee, which had been impliedly delegated the authority to act on behalf of the county commission in a review of the zoning code, is subject to the Sunshine Law); and AGO 77-43 (a committee selected by a county bar association on behalf of the school board to screen applicants and make recommendations for the position of school board attorney must comply with s. 286.011, F.S.). On the other hand, meetings of a county volunteer firefighters association for the purpose of providing a forum for county volunteer fire departments to meet and discuss common county firefighting concerns and issues are not subject to the Sunshine Law. AGO 04-32. Cf., AGO 00-08 (meetings of the Lee County Fire Commissioner's Forum, a nonprofit entity created by fire districts as a vehicle for networking and discussion of common concerns, would be subject to the Sunshine Law if the Forum operates as a collegial body for incipient decision making); and Inf. Op. to Wiles, February 14, 2002 (if the State University Presidents Association operates as a collegial body for incipient decision-making, then the association would be subject to the Sunshine Law; if the association, however, merely provides an opportunity to network and discuss common concerns, the association would not necessarily be subject to the Sunshine Law).

c. Homeowners' associationsThe Sunshine Law does not generally apply to meetings of a homeowners' association board of directors. Inf. Op. to Fasano, June 7, 1996. Other statutes govern access to records and meetings of these associations. See, e.g., s. 720.303(2), F.S. (homeowners' association board of directors and any committee making a final decision regarding the expenditure of association funds or any body having the authority to approve architectural plans involving a specific piece of property owned by a community resident); s. 718.112(2)(c), F.S. (condominium board of administration); s. 719.106(1)(c), F.S. (cooperative board of administration); and s. 723.078(2)(c), F.S. (mobile home park homeowners' association board of directors). Cf., AGO 99-53 (an architectural review committee of a homeowners' association is subject to the Sunshine Law where that committee, pursuant to county ordinance, must review and approve applications for county building permits).

4. Are federal agencies subject to the Sunshine Law?Federal agencies, i.e., agencies created under federal law, operating within the state, do not come within the purview of the state Sunshine Law. AGO 71-191. See also, Cincinnati Gas and Electric Company v. General Electric Company, 854 F.2d 900 (6th Cir. 1988), cert. denied, 109 S.Ct. 1171 (1989) (public has no right of access to negotiations leading to settlement of a case in federal court). Thus, meetings of a federally-created private industry council are not subject to s. 286.011, F.S. AGO 84-16. Cf., Inf. Op. to Knox, January 6, 2005 (St. Johns River Alliance, Inc., a non-profit corporation formed to help carry out the federal American Heritage Rivers Initiative and the associated intergovernmental Partnership Agreement among state, local and federal governmental entities, is subject to s. 286.011, F.S., requirements); Inf. Op. to Green, December 11, 1998 (tri-state river commission established pursuant to state and federal law is subject to the Sunshine Law); and Inf. Op. to Markham, September 10, 1996 (technical oversight committee established by state agencies as part of settlement agreement in federal lawsuit subject to Sunshine Law).5. Does the Sunshine Law apply to the Governor and Cabinet?The courts have limited the application of s. 286.011, F.S., to those functions of the Governor and Cabinet which are statutory responsibilities as opposed to duties arising under the Constitution. Thus, the Governor and Cabinet in dispensing pardons and the other forms of clemency authorized by Art. IV, s. 8(a), Fla. Const., are not subject to s. 286.011, F.S. Cf., In re Advisory Opinion of the Governor, 334 So. 2d 561 (Fla. 1976) (Constitution sufficiently prescribes rules for the manner of exercise of gubernatorial clemency power; legislative intervention is, therefore, unwarranted). Section 286.011, F.S., however, does apply to the Governor and Cabinet sitting in their capacity as a board created by the Legislature, such as the Board of Trustees of the Internal Improvement Trust Fund. In such cases, the Governor and Cabinet are not exercising powers derived from the Constitution but are subject to the "dominion and control" of the Legislature.Moreover, Art. I, s. 24, Fla. Const., requires that meetings of "any collegial public body of the executive branch of state government" be open and noticed to the public. The only exceptions to this constitutional right of access are those meetings which have been exempted by the Legislature pursuant to Art. I, s. 24, Fla. Const., or which are specifically closed by the Constitution. And see, Art. III, s. 4(e), Fla. Const., providing, in relevant part, that "all prearranged gatherings, between . . . the governor, the president of the senate, or the speaker of the house of representatives, the purpose of which is to agree upon formal legislative action that will be taken at a subsequent time, or at which formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open to the public." 6. Does the Sunshine Law apply to commissions created by the Constitution?The courts have determined that boards or commissions created by the Constitution which prescribes the manner of the exercise of their constitutional powers are not subject to s. 286.011, F.S., when carrying out such constitutionally prescribed duties. See, Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977) (judicial nominating commissions are not subject to s. 286.011, F.S.). Cf., In re Advisory Opinion of the Governor, 334 So. 2d 561 (Fla. 1976) (clemency power does not exist by virtue of legislative enactment; rather Constitution sufficiently prescribes rules for the manner of exercise of the power); and AGO 77-65 (Ch. 120, F.S., inapplicable to Constitution Revision Commission established by Art. XI, s. 2, Fla. Const.). Compare, Turner v. Wainwright, 379 So. 2d 148 (Fla. 1st DCA), affirmed and remanded, 389 So. 2d 1181 (Fla. 1980), holding that the Parole Commission, which Art. IV, s. 8(c), Fla. Const., recognizes may be created by law, is subject to s. 286.011, F.S.However, Art. I, s. 24, Fla. Const., establishes a constitutional right of access to meetings of any collegial public body of the executive branch of state government by providing that such meetings must be open and noticed to the public unless exempted by the Legislature pursuant to Art. I, s. 24, Fla. Const., or specifically closed by the Constitution. 7. Does the Sunshine Law apply to the Legislature?Article I, s. 24, Fla. Const., requires that meetings of the Legislature be open and noticed as provided in Art. III, s. 4(e), Fla. Const., except with respect to those meetings exempted by the Legislature pursuant to Art. I, s. 24, Fla. Const., or specifically closed by the Constitution.Pursuant to Art. III, s. 4(e), Fla. Const., the rules of procedure of each house of the Legislature must provide that all legislative committee and subcommittee meetings of each house and joint conference committee meetings be open and noticed. Such rules must also provide:
[A]ll prearranged gatherings, between more than two members of the legislature, or between the governor, the president of the senate, or the speaker of the house of representatives, the purpose of which is to agree upon formal legislative action that will be taken at a subsequent time, or at which formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open to the public. All open meetings shall be subject to order and decorum. This section shall be implemented and defined by the rules of each house, and such rules shall control admission to the floor of each legislative chamber and may, where reasonably necessary for security purposes or to protect a witness appearing before a committee, provide for the closure of committee meetings. Each house shall be the sole judge for the interpretation, implementation, and enforcement of this section.The votes of members during the final passage of legislation pending before a committee and, upon request of two members of a committee or subcommittee, on any other question, must be recorded. Article III, s. 4(c), Fla. Const. 8. Does the Sunshine Law apply to the judiciary?The open meetings provision found in Art. I, s. 24, Fla. Const., does not include meetings of the judiciary. In addition, separation of powers principles make it unlikely that the Sunshine Law, a legislative enactment, could apply to the courts established pursuant to Art. V, Fla. Const. AGO 83-97. Thus, questions of access to judicial proceedings usually arise under other constitutional guarantees relating to open and public judicial proceedings, Amend. VI, U.S. Const., and freedom of the press, Amend. I, U.S. Const. However, a circuit conflict committee established by the Legislature to approve attorneys handling conflict cases is subject to the Sunshine Law, even though the chief judge or his or her designee is a member, because the "circuit conflict committees are created by the Legislature, subject to its dominion and control." AGO 83-97. And see, Canney v. Board of Public Instruction of Alachua County, 278 So. 2d 260 (Fla. 1973) (Sunshine Law applies to quasi-judicial functions; a board exercising quasi-judicial functions is not a part of the judicial branch of government).a. Criminal proceedingsA court possesses the inherent power to control the conduct of proceedings before it. Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982); and State ex rel. Miami Herald Publishing Company v. McIntosh, 340 So. 2d 904 (Fla. 1977). A three-pronged test for criminal proceedings has been developed to provide "the best balance between the need for open government and public access, through the media, to the judicial process, and the paramount right of a defendant in a criminal proceeding to a fair trial before an impartial jury." Lewis, supra at 7. Closure in criminal proceedings is acceptable only when:
1) it is necessary to prevent a serious and imminent threat to the administration of justice;2) no alternatives are available, other than change of venue, which would protect the defendant's right to a fair trial; and 3) closure would be effective in protecting the defendant's rights without being broader than necessary to accomplish that purpose.And see, Bundy v. State, 455 So. 2d 330, 339 (Fla. 1984), noting that the trial court properly used a combination of alternative remedies for possible prejudicial effects of pretrial publicity instead of barring public access to pretrial proceedings. Article I, s. 16(b), Fla. Const., provides that victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused. See, Sireci v. State, 587 So. 2d 450 (Fla. 1991), cert. denied, 112 S.Ct. 1500 (1992) (court did not err by allowing the wife and son of the victim to remain in the courtroom after their testimony). See also, s. 960.001(1)(e), F.S., restricting exclusion of victims, their lawful representatives, or their next of kin.b. Civil proceedingsStressing that all trials, civil and criminal, are public events and that there is a strong presumption of public access to these proceedings, the Supreme Court in Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), set forth the following factors which must be considered by a court in determining a request for closure of civil proceedings:
1) a strong presumption of openness exists for all court proceedings;2) both the public and news media have standing to challenge any closure order with the burden of proof being on the party seeking closure;3) closure should occur only when necessary
a) to comply with established public policy as set forth in the Constitution, statutes, rules or case law;b) to protect trade secrets;c) to protect a compelling governmental interest;d) to obtain evidence to properly determine legal issues in a case;e) to avoid substantial injury to innocent third parties; orf) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.4) whether a reasonable alternative is available to accomplish the desired result and if none exists, the least restrictive closure necessary to accomplish its purpose is used;
5) the presumption of openness continues through the appellate review process and the party seeking closure continues to have the burden to justify closure.In a more recent decision, the Court reiterated its support for the Barron standards and explained that "public access to court proceedings and records [is] important to assure testimonial trustworthiness; in providing a wholesome effect on all officers of the court for purposes of moving those officers to a strict conscientiousness in the performance of duty; in allowing nonparties the opportunity of learning whether they are affected; and in instilling a strong confidence in judicial remedies, which would be absent under a system of secrecy." Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208, 209 (Fla. 1998).c. DepositionsWhile the courts have recognized that court proceedings are public events and the public generally has access to such proceedings, the general public and the press do not have a right under the First Amendment or the rules of procedure to attend discovery depositions. See, Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 380 (Fla. 1987), cert. denied, 108 S.Ct. 346 (1987), stating that while discovery depositions in criminal cases are judicially compelled for the purpose of allowing parties to investigate and prepare, they are not judicial proceedings. Accord, Post-Newsweek Stations, Florida, Inc. v. State, 510 So. 2d 896 (Fla. 1987) (media not entitled to notice and opportunity to attend pretrial discovery depositions in criminal cases); and SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796 (Fla. 4th DCA 2002) (upholding protective order closing depositions to the media based on privacy concerns). Cf. Lewis v. State, 958 So. 2d 1027 (Fla. 5th DCA 2007) (while Burk applied to unfiled depositions made during an ongoing, active criminal prosecution, materials related to defendant's prosecution, including depositions, are subject to disclosure after the case becomes final).d. Florida Bar grievance proceedingsAn attorney's claim that the Florida Bar violated the Sunshine Law by refusing to allow him to attend a grievance committee meeting of the Bar was rejected in Florida Bar v. Committe, 916 So. 2d 741 (Fla. 2005). The Court stated: "The grievance committee meetings of the Bar are private, and therefore the Bar is justified in prohibiting [the attorney] from attendance." Id. at 744-745. In Committe, the Court reviewed prior case law involving the application of the open government laws to the Bar, and reiterated its holding in The Florida Bar: in re Advisory Opinion, 398 So. 2d 446, 447 (Fla. 1981), that "[n]either the legislature nor the governor can control what is purely a judicial function."e. Grand juriesSection 905.24, F.S., provides that "[g]rand jury proceedings are secret," thus, these proceedings are not subject to s. 286.011, F.S. See, Clein v. State, 52 So. 2d 117, 120 (Fla. 1951) (it is the policy of the law to shield the proceedings of grand juries from public scrutiny); In re Getty, 427 So. 2d 380, 383 (Fla. 4th DCA 1983) (public disclosure of grand jury proceedings "could result in a myriad of harmful effects"); and AGO 73-177, stating that it is the public policy of the state to keep secret the proceedings of the grand jury. The grand jury has also been referred to as a "coordinate branch of the judiciary, and as an arm, appendage, or adjunct of the circuit court." State ex rel. Christian v. Rudd, 302 So. 2d 821, 828 (Fla. 1st DCA 1974). Cf., Butterworth v. Smith, 110 S.Ct. 1376 (1990), striking down a Florida statute to the extent that it prohibited a witness from disclosing his own testimony before a grand jury after the grand jury's term has ended.In addition, hearings on certain grand jury procedural motions are closed. The procedural steps contemplated in s. 905.28(1), F.S., for reports or presentments of the grand jury relating to an individual which are not accompanied by a true bill or indictment, are cloaked with the same degree of secrecy as is enjoyed by the grand jury in the receipt of evidence, its deliberations, and final product. Therefore, a newspaper has no right of access to grand jury procedural motions and to the related hearing. In re Grand Jury, Fall Term 1986, 528 So. 2d 51 (Fla. 2d DCA 1988). And see, In re Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d 1559 (11th Cir. 1989), stating that while a court must hold a hearing and give reasons for closure of criminal court proceedings, a court is not required to give newspapers a hearing and give reasons for closure of grand jury proceedings. f. Judicial nominating commissions/Judicial Qualifications CommissionJudicial nominating commissions for the Supreme Court of Florida, the district courts of appeal, or for a judicial circuit for the trial courts within the circuit are not subject to the Sunshine Law. Kanner v. Frumkes, 353 So. 2d 196 (Fla. 3d DCA 1977). The Florida Constitution, however, requires that except for its deliberations, the proceedings of a judicial nominating commission and its records are open to the public. Article V, s. 11(d), Fla. Const. While the deliberations of a commission are closed, such a limitation would appear to be applicable to that point in the proceedings when the commissioners are weighing and examining the reasons for and against a choice. Inf. Op. to Russell, August 2, 1991.The statewide judicial nominating commission for workers' compensation judges, however, is not a judicial nominating commission as contemplated by the Constitution. Thus, the statewide judicial nominating commission created pursuant to the workers' compensation law is subject to s. 286.011, F.S. AGO 90-76.Proceedings of the Judicial Qualifications Commission are confidential. However, upon a finding of probable cause and the filing of formal charges against a judge or justice by the commission with the Clerk of the Supreme Court, all further proceedings of the commission are public. Article V, s. 12(a)(4), Fla. Const.g. Mediation proceedingsCourt-ordered mediation and arbitration are to be conducted according to the rules of practice and procedure adopted by the Florida Supreme Court. Sections 44.102(1) and 44.103(1), F.S. Florida Rule of Civil Procedure 1.720(e) provides that the mediator may meet and consult privately with any party or parties or their counsel. And see Rule 10.360(a), Florida Rules For Certified and Court-Appointed Mediators ("A mediator shall maintain confidentiality of all information revealed during mediation except where disclosure is required or permitted by law or is agreed to by all parties."), adopted by the Supreme Court in In re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, 931 So. 2d 877 (Fla. 2006).Public access to mediation proceedings involving governmental agencies was raised in News-Press Publishing Company, Inc. v. Lee County, Florida, 570 So. 2d 1325 (Fla. 2d DCA 1990). The case involved litigation between two cities and a county. As the litigation progressed, the trial judge ordered the parties to participate in mediation. In its initial order appointing a mediator, the judge required the parties to have present a representative "with full authority to bind them." After the news media protested the closure of the mediation proceeding to the public, the judge entered an amended order that limited the authority of the representatives so that no final settlement negotiations, decisions, or actual settlement could be made during the mediation conference. The news media appealed the amended order, but the district court noted that no two members of any of the public boards would be present at the mediation proceedings. And, the narrow scope of the mediation proceedings in the case did not give rise to a substantial delegation affecting the decision-making function of the boards so as to require that the mediation proceeding be open to the public. 570 So. 2d at 1327. See also, O'Connell v. Board of Trustees, 1 F.L.W. Supp. 285 (Fla. 7th Cir. Ct. Feb. 9, 1993) (as to public agencies, mediation is subject to the Sunshine Law; thus, no more than one member of a collegial body should attend the mediation conference). And see, Fla. R. Civ. P. 1.720(b), stating that "[i]f a party to mediation is a public entity required to conduct its business pursuant to chapter 286, Florida Statutes, that party shall be deemed to appear at a mediation conference by the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision-making body of the entity." Cf., AGO 06-03 (closed attorney-client session may not be held to discuss settlement negotiations on an issue that is the subject of ongoing mediation pursuant to a partnership agreement between a water management district and others); and Inf. Op. to McQuagge, February 13, 2002 (mediation meetings conducted pursuant to the Florida Governmental Conflict Resolution Act, ss. 164.101-164.1061, F.S., which involve officials or representatives of local governmental entities who have the authority to negotiate on behalf of that governmental entity are subject to the Sunshine Law).9. Does the Sunshine Law apply to staff?Meetings of staff of boards or commissions covered by the Sunshine Law are not ordinarily subject to s. 286.011, F.S. Occidental Chemical Company v. Mayo, 351 So. 2d 336 (Fla. 1977), disapproved in part on other grounds, Citizens v. Beard, 613 So. 2d 403 (Fla. 1992). See also, School Board of Duval County v. Florida Publishing Company, 670 So. 2d 99, 101 (Fla. 1st DCA 1996) (staff personnel not subject to the Sunshine Law); and AGO 89-39 (aides of county commissioners are not subject to the Sunshine Law unless they have been delegated decision-making functions outside of the ambit of normal staff functions, are acting as liaisons between board members, or are acting in place of the board members at their direction).However, when a staff member ceases to function in a staff capacity and is appointed to a committee which is given "a policy-based decision-making function," the staff member loses his or her identity as staff while working on the committee and the Sunshine Law applies to the committee. See, Wood v. Marston, 442 So. 2d 934, 938 (Fla. 1983). In Wood, the Florida Supreme Court concluded that the Sunshine Law applied to a faculty committee charged with seeking applicants for a position to be appointed by the university president. By screening applicants and deciding which of the applicants to reject from further consideration, the committee performed a policy-based decision-making function delegated to it by the president of the university. Id. Even though the faculty as a whole had the authority to review and reject the decisions of the committee, this factor "did not render the committee's function any less policy-based or decision-making." Id. at 938-939. Accordingly, it is the nature of the act performed, not the makeup of the committee or the proximity of the act to the final decision, which determines whether a committee composed of staff is subject to the Sunshine Law. Wood v. Marston, supra. See, News-Press Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 548 (Fla. 2d DCA 1982), concluding that it would be "ludicrous" to hold that "a certain committee is governed by the Sunshine Law when it consists of members of the public, who are presumably acting for the public, but hold a committee may escape the Sunshine Law if it consists of individuals who owe their allegiance to, and receive their salaries from, the governing authority." Thus, in Silver Express Company v. District Board of Lower Tribunal Trustees, 691 So. 2d 1099 (Fla. 3d DCA 1997), the district court determined that a committee (composed of staff and one outside person) that was created by a college purchasing director to assist and advise her in evaluating contract proposals was subject to the Sunshine Law. According to the court, the committee's job was to "weed through the various proposals, to determine which were acceptable and to rank them accordingly." This function was sufficient to bring the committee within the scope of the Sunshine Law because "[g]overnmental advisory committees which have offered up structured recommendations such as here involved--at least those recommendations which eliminate opportunities for alternative choices by the final authority, or which rank applications for the final authority--have been determined to be agencies governed by the Sunshine Law." 691 So. 2d at 1101. See also, AGO 05-06 (city development review committee composed of several city officials and representatives of various city departments to review and approve development applications, is subject to the Sunshine Law); and AGO 86-51 (land selection committee appointed by water management district to evaluate and recommend projects for acquisition must comply with Sunshine Law "even though such committee may be composed entirely of district staff and its decisions and recommendations are subject to further action by the district's governing board").Similarly, in Dascott v. Palm Beach County, 877 So. 2d 8 (Fla. 4th DCA 2004), the court held that a meeting of a pre-termination conference panel established pursuant to a county ordinance and composed of a department head, personnel director and equal opportunity director should have been held in the Sunshine. Even though the county administrator had the sole authority to discipline employees, that authority had been delegated to the department head who in turn chose to share that authority with the other members of the panel. "Because it is undisputed that the staff gave advice on the ultimate decision to terminate" an employee during a closed-door session held following the pre-termination hearing, the closing of the deliberations violated the Sunshine Law. Id. at 14. Compare, Jordan v. Jenne, 938 So. 2d 526 (Fla. 4th DCA 2006), in which a divided Fourth District Court of Appeal held that the Sunshine Law did not apply to a professional standards committee (PSC) responsible for reviewing charges against a sheriff's deputy and making recommendations to the inspector general as to whether the charges should be sustained, dismissed, or whether the case should be deferred for more information. The majority distinguished Dascott because the inspector general made the "ultimate decision" on discipline and did not deliberate with the PSC. Id. at 530.On the other hand, a committee composed of staff which is merely responsible for informing the decision-maker through fact-finding consultations is not subject to the Sunshine Law. Bennett v. Warden, 333 So. 2d 97 (Fla. 2d DCA 1976) (fact-finding committee appointed by community college president to report to him on employee working conditions not subject to Sunshine Law). And see, Knox v. District School Board of Brevard, 821 So. 2d 311, 315 (Fla. 5th DCA 2002) ("A Sunshine violation does not occur when a governmental executive uses staff for a fact-finding and advisory function in fulfilling his or her duties.").Thus, in Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), the appellate court ruled that the Sunshine Law did not apply to informal meetings of staff where the discussions were "merely informational," where none of the individuals attending the meetings had any decision-making authority during the meetings, and where no formal action was taken or could have been taken at the meetings. Similarly, a state agency did not violate the Sunshine Law when agency employees conducted an investigation into a licensee's alleged failure to follow state law, and an assistant director made the decision to file a complaint. Baker v. Florida Department of Agriculture and Consumer Services, 937 So. 2d 1161 (Fla. 4th DCA 2006), review denied, 954 So. 2d 27 (2007). "Communication among administrative staff in fulfilling investigatory, advisory, or charging functions does not constitute a 'Sunshine' Law violation." Id. And see, Molina v. City of Miami, 837 So. 2d 462, 463 (Fla. 3d DCA 2002) (police department discharge of firearms committee, composed of three deputy chiefs, is not subject to the Sunshine Law because the committee "is nothing more than a meeting of staff members who serve in a fact-finding advisory capacity to the chief"); and 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 a petition to terminate parental rights). Compare, Evergreen the Tree Treasurers of Charlotte County, Inc. v. Charlotte County Board of County Commissioners, 810 So. 2d 526, 531-532 (Fla. 2d DCA 2002) (when public officials delegate their fact-finding duties and decision-making authority to a committee of staff members, those individuals no longer function as staff members but "stand in the shoes of such public officials" insofar as the Sunshine Law is concerned). 10. Does the Sunshine Law apply to members of public boards who also serve as administrative officers or employees?In some cases, members of public boards also serve as administrative officers or employees. The Sunshine Law is not applicable to discussions of those individuals when serving as administrative officers or employees, provided such discussions do not relate to matters which will come before the public board on which they serve. Thus, a board member who also serves as an employee of an agency may meet with another board member on issues relating to his or her duties as an employee provided such discussions do not relate to matters that will come before the board for consideration or action. See, AGO 92-79 (when two or more members of a public board are participating in other meetings or functions unconnected with the board, they must refrain from discussing matters on which foreseeable action may be taken by the board but are not otherwise restricted in their actions).For example, the Sunshine Law would not apply to meetings between the mayor and city commissioners where a mayor performs the duties of city manager and the city commissioners individually serve as the head of a city department when the meeting is held solely by these officers in their capacity as department heads for the purpose of coordinating administrative and operational matters between executive departments of city government for which no formal action by the governing body is required or contemplated. Those matters which normally come before, or should come before, the city commission for discussion or action must not, however, be discussed at such meetings. AGO 81-88. Accord, AGOs 83-70 and 75-210 (mayor may discuss matters with individual city council member which concern his administrative functions and would not come before the council for consideration and further action).Similarly, a conversation between a state attorney and sheriff about a specific criminal investigation involving an assault related to a youth gang would not violate the Sunshine Law even though both officials are members of a county criminal justice commission and the commission is studying and making recommendations on the problem of youth gangs in the community. AGO 93-41. Discussions between the sheriff and the state attorney of matters which may foreseeably come before or are currently being considered by the criminal justice commission, would be subject to the Sunshine Law. However, to the extent that these discussions relate to an ongoing criminal case or investigation or relate to factual inquiries or matters upon which the commission is not required to act, these discussions would not fall within s. 286.011, F.S. Id. The Attorney General's Office has also issued informal opinions regarding the application of the Sunshine Law to members of school advisory councils created pursuant to former s. 229.58 [now s. 1001.452], F.S., who also serve as faculty members, school administrative officials or who are parents. For example, the Sunshine Law would not ordinarily apply to a meeting of school faculty simply because two or more members of the school advisory council who are also faculty members attend the faculty meeting, as long as the council members refrain from discussing matters that may come before the council for consideration. Inf. Op. to Hughes, February 17, 1995; and Inf. Op. to Boyd, March 14, 1994.

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