Concerns about government transparency in the US started as early as the 1950s when the McCarthy era trials and civil rights movement highlighted how easy it was for government agencies to abuse power when there was a lack of transparency in their processes and decision-making. By the mid-1970s almost every state in the US had adopted open meetings and records laws. Known colloquially as the sunshine laws, they aimed to strengthen democracy in the US by giving citizens access to government decision-making processes.
While state sunshine laws govern when and how US citizens can gain access to state and local public records, the Freedom of Information Act (FOIA) establishes their access to federal government agencies. The FOIA defines which federal agency records have to be shared, outlines the procedures needed to access these records, and specifies any records or meetings that are exempt from such disclosure. According to the FOIA, federal agencies must make all procedures to apply for agency documents accessible to the public, and they are mandated to comply with any such requests they receive.
While all of these laws were in place by the late 1970s, they are continuously in need of amending and updating, particularly in the age of electronic messaging and data collection. The number of documents and records that are generated now are massive compared to 50 or 60 years ago, and the proliferation of communication channels and platforms adds to the general complexity of managing public access to these records.
In this blog we will be looking at some of the latest developments in the state sunshine laws, and how the related challenges and risks can be managed.
Understanding State Sunshine Laws
State sunshine laws all cover key basic requirements, such as:
- Open Meetings: Sunshine laws typically require that government meetings be open to the public. They also specify that these meetings should be accessible for citizens to attend (i.e. they can’t be held in places that the general public doesn’t have access to or would be required to incur significant expense to attend) and that they should be able to observe all decision-making processes (i.e. no holding back of agenda items for when the public have left). The FOIA and many of the state Sunshine Laws do list exceptions where closed meetings can be held in order, for example, to protect security interests or if confidential documents are going to be discussed.
- Public Notice: State sunshine laws also generally mandate that proper advance notice of meetings is given to the public. The laws also often specify what information the notice should include, such as the date, time, location, and agenda of the meeting. This makes sure that citizens are given fair warning and the opportunity to attend and participate in the discussions.
- Public Meeting Minutes: Sunshine laws require government agencies to keep accurate and detailed minutes of meetings. These minutes should reflect the discussions and decisions that took place during the meeting and must also record any votes that took place. These minutes become the formal record of the proceedings and, in general, must be made available to the public.
- Access to Records: Sunshine laws typically grant the public the right to access government records and documents. This includes a wide range of information such as budgets, contracts, emails, correspondence, and other official documents. However, certain exceptions may exist to protect sensitive information or individuals’ privacy.
- Records Requests: Sunshine laws usually outline the procedures for making records requests, and specify a timeframe within which government agencies must respond to these requests. This is done to make sure that citizens have both the right to access public documents and to do so promptly.
- Closed Executive Sessions: While the goal of sunshine laws is transparency, some discussions require confidentiality. As mentioned before, state sunshine laws do provide exceptions and allow for closed executive sessions under very specific circumstances. These sessions typically involve sensitive topics such as personnel matters, legal issues, or national security concerns.
- Enforcement and Penalties: State sunshine laws generally include penalties for non-compliance. This can range from fines imposed on government entities or officials to legal actions taken by individuals or organizations.
What Is Considered a Record Under State Sunshine Laws?
In general, “…the Sunshine Law applies to all records, regardless of what form they are kept in, and to all meetings, regardless of the manner in which they are held.” This means there are a wide range of documents that are considered records under the state sunshine laws. These include:
- Meeting minutes: Details of discussions and decisions made during government meetings.
- Records and documents: Such as budgets, contracts, emails, and correspondence.
- Public notices: Public announcements and notifications regarding government activities.
More recently sunshine laws have significantly extended the scope of information available for the public to access. The Florida Supreme Court has determined that public records are “…all materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge.” This means that records are no longer limited to traditional written or printed documents but also include sound recordings, computer files, photographs, videos, and mobile text messages.
This means that all government agencies have to capture and retain all these business-related emails, mobile messages across all platforms such as WhatsApp or SMS, recordings of virtual meetings (such as on Zoom), and other electronically stored information. They also have to keep this information for specified periods of time and make it easily and readily accessible both to members of the public and any enforcement agencies.
Which Government Departments Do the State Sunshine Laws Apply To?
State sunshine laws typically apply to the full range of state and local government entities, including:
- State agencies and departments: This includes executive branch agencies such as Departments of Transportation, Education, Health, Environmental Protection, Labor, Agriculture, Revenue/Taxation, and Public Safety.
- Local government entities: Such as city councils, county commissions, school boards, and other local governing bodies.
- Public institutions: Universities, libraries, and other publicly-funded institutions.
- Special districts: Certain special-purpose districts, such as water boards or transportation authorities.
- Advisory committees such as community advisory committees, certain review committees of homeowner’s associations, public hospital advisory boards, and municipal planning commissions.
The judiciary and the state legislature are not subject to the sunshine laws, but each has its own constitutional provisions and rules relating to openness and access to records.
Challenges of Implementing State Sunshine Laws
Implementing sunshine laws can bring about several challenges. Following are some of the common hurdles that arise during their implementation:
- The language used in sunshine laws can sometimes be open to interpretation. This can lead to differing opinions on what information falls within the scope of the law, what constitutes a public meeting, or which exceptions may apply. Such ambiguity can result in disputes.
- Ensuring that government entities and officials understand and adhere to the requirements of sunshine laws can be an uphill battle. It may necessitate comprehensive training programs and continuous monitoring to ensure there is ongoing compliance with the rules.
- Public records often contain sensitive or confidential information that needs protection, such as personal identifiers or privileged communications. Striking the right balance between transparency and privacy rights requires careful consideration.
- The digital age has introduced new challenges in managing electronic records and ensuring their accessibility. Effectively capturing and managing these records is crucial for compliance with Sunshine Laws, however, the sheer volume and complexity of records can make this challenging. Automated systems are a must-have to effectively manage, store, and retrieve electronic records.
- As technology continues to evolve, new communication platforms and channels are emerging. Adapting transparency obligations to encompass these platforms can be challenging and require the right technological solutions.
State Sunshine Laws Matter, And So Does Their Implementation
Sunshine laws are a cornerstone of a healthy democracy. By enforcing government transparency they serve as a safeguard against the abuse of power by public officials and they contribute to building public trust in government institutions.
But this all comes at a price. Given the volume of records generated by the daily activities of all government bodies throughout the US, capturing and managing them so they can be accessed by interested parties can be an overwhelming task. How these laws are implemented is clearly crucial to their effectiveness, and to do this well state agencies will have to turn to technology. Building the right tech stack to ensure that nothing is falling through the cracks is the only way to ensure that the right to watch our democracy in process can be enacted.
LeapXpert offers a complete communication management platform that helps you not only manage how communication is conducted but to record and safely store all records – regardless of how complex the communication channels used. Visit our webpage or book a demo for more information.
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