Can a Florida board member share a written report with other members before a public meeting without violating the Sunshine Law?

Plain-English summary

A member of a hospital district's governing board wrote the Attorney General's office asking about her duties under the Government in the Sunshine Law, section 286.011. Assistant Attorney General Joslyn Wilson first explained a procedural point: the office can issue a formal opinion only when the head of the agency asks, and because the agency head here is a board, a majority of the board would have to request it on official letterhead with a memorandum of law from the agency attorney.

The letter then offered general guidance drawn from prior opinions. One board member using a written report to inform the others about a subject that will be discussed at an upcoming public meeting does not violate the Sunshine Law, provided there is no interaction about the report among the members before the meeting. In that situation the report is not a substitute for action at a public meeting; it is one-way information, and it remains a public record subject to disclosure. The line is crossed, the letter explained, when the report is circulated among members for their comments and those comments are passed along to other members, because that creates interaction outside the sunshine. The office also noted that members distributing their own position papers to other members on an issue would be "problematical" and could violate the law. The letter pointed the writer to the Government in the Sunshine Manual for more detail.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can one Florida board member send the others a written report before a meeting?
A: The letter said yes, if it is one-way. A written report informing other members about a topic to be discussed at a public meeting does not violate the Sunshine Law as long as there is no interaction about it among members beforehand.

Q: When does sharing a report cross the line?
A: According to the letter, the Sunshine Law is implicated when the report is circulated for members' comments and those comments are shared with other members, because that is interaction on board business outside a public meeting.

Q: Is the report itself a public record?
A: Yes. The letter noted that such a report is subject to disclosure under the Public Records Law, even when sharing it does not violate the Sunshine Law.

Q: Why didn't the Attorney General issue a formal opinion?
A: Because the request did not come from the agency. The letter explained that a formal opinion requires a request from the head of the agency, which for a board means a majority of the members, submitted on official letterhead with a legal memorandum.

Background and statutory framework

Section 286.011, the Government in the Sunshine Law, requires that meetings of public boards and commissions where official acts are taken be open to the public. Florida courts and the Attorney General have long treated communications that amount to board members deliberating among themselves outside a public meeting as falling within the law, even when those communications are in writing rather than spoken.

This was an informal advisory letter rather than a formal opinion, so it summarized the office's prior published opinions instead of resolving the writer's situation. The distinction it drew, between one-way transmission of information (permissible) and back-and-forth exchange of members' views (a Sunshine Law problem), reflects the office's consistent position that the law targets the deliberative interaction among members, not the mere sharing of background material. The letter also reminded the reader that any such written material is a public record under the Public Records Law.

Citations and references

Statutes:

• Section 286.011, Florida Statutes (Government in the Sunshine Law)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/sunshine-law-use-of-written-reports-by-bd-members
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1765

Original opinion text

Ms. Marilyn Bainter

36811 North County Road 44-A

Eustis, Florida 32736

Dear Ms. Bainter:

The Office of Attorney General Bill McCollum has received your letter asking about your duties under the Government in the Sunshine Law, section 286.011, Florida Statutes, as a member of a hospital district’s governing board.

In order for this office to formally comment upon this matter, a request should come from the head of the public agency. As the head of the agency is a board, a majority of the members of that board must request the opinion. The request should be submitted on the agency's official letterhead (or the agency attorney’s letterhead) and be accompanied by a memorandum of law prepared by the agency attorney.

In an effort to be of assistance, however, I would note that this office has stated that the use of a written report by one commissioner to inform other commissioners of a subject which will be discussed at a public meeting is not a violation of the Sunshine Law if prior to the meeting, there is no interaction related to the report among the commissioners. In such cases, the report, which is subject to disclosure under the Public Records Act, is not being used as a substitute for action at a public meeting as there is no response from or interaction among the commissioners prior to the meeting. See Attorney General Opinion 89-23. And see Attorney General Opinion 01-20 (e-mail communication of factual background information from one city council member to another is a public record and should be maintained by the records custodian for public inspection and copying; however, such communication of information, when it does not result in the exchange of council members' comments or responses on subjects requiring council action, does not constitute a meeting subject to the Sunshine Law).

The Government in the Sunshine Law, however, would be implicated if the report is circulated among board members for comments with such comments being provided to other members as there is interaction among the board members. See Attorney General Opinion 90-03. And see Attorney General Opinions 96-35 and 08-07. Moreover, as this office discussed in Attorney General Opinion 01-21 in the event that council members distribute their own position papers to other council members on the same issue would be "problematical" and may violate the Sunshine Law. And see Attorney General Opinion 07-35. You may access the Attorney General Opinions online at: http://myfloridalegal.com/opinions.

You may wish to review the Government in the Sunshine Manual which discusses both the Government in the Sunshine Law and the Public Records Law. An abridged edition of the manual is available online at: http://www.myfloridalegal.com/sun.nsf/manual.

Thank you for contacting the Attorney General's Office.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh