FAF Letter to Rep. Byron Donalds Re: HB 439/Exemption – Imminent Litigation

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5 January 2018
The Honorable Byron Donalds
Florida House of Representatives
402 South Monroe Street, Room 1101 The Capitol
Tallahassee, FL 32399-1300

Re: HB 439/Exemption – Imminent Litigation

Dear Representative Donalds:

We are writing to express our opposition to HB 439 expanding the exemption under s. 286.011(8), F.S, for meetings at which certain issues regarding pending litigation is discussed to include discussion of imminent litigation. The litigation exemption is arguably the most abused of all of the exemptions to the sunshine law and to expand the allowable discussions behind closed doors is extremely worrisome. Additionally, from what we’ve learned, government agencies receive litigation threats on a near daily basis, which could lead to an exponential increase in closed-door meetings.

The bi-partisan Commission on Open Government Reform was asked to consider an expansion of s. 286.011(8) to include imminent litigation and unanimously recommended against the change, finding “that the argument for expansion of the litigation exemption[] fails to take into account that the government attorney is representing a board that is ultimately responsible to the people for its actions.” 2007 Final Report, Commission on Open Government Reform, page 12
In vetoing a bill that would have allowed government agencies to discuss litigation behind closed doors, Governor Reubin Askew stated,

While [open meetings] may cause some inconveniences in the short run, certainly we have discovered in this state that it is far better in the long run to conduct public business in the ‘sunshine.’ The public trust and the public confidence that are fostered by free and open government proceedings far outweigh any possible benefits that might be derived from [the proposed exemption. Id at p. 112.

The Governor’s argument in favor of sunshine is as strong today as it was then, Representative Donalds. We believe the proposed expansion runs contrary to the public interest and that any benefit to government is far outweighed by the potential for abuse. Thus, we respectfully request that HB 439 be withdrawn from further consideration.

Thank you for your attention to our concerns, Representative Donalds. If you have any questions please don’t hesitate to contact us.

Sincerely,
Barbara A. Petersen, President

Cc: The Honorable Richard Corcoran, Speaker, Florida House of Representatives
Jon Kaney, General Counsel, First Amendment Foundation
Sam Morley, General Counsel, Florida Press Association
Gil Thelen, Executive Director, Florida Society of News Editors

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