Internal Memoranda On Discipline Not Subject To Disclosure

Florida’s equivalent of the Freedom of Information Act, known as the “Sunshine Law,” is one of the most expansive in the nation. With very few exceptions, the Sunshine Law requires that all governmental documents be made public. The extent of the Sunshine Law was recently tested in a case involving the discipline of eight deputies employed by the Lee County, Florida Sheriff’s Department.

Each of the deputies was the subject of an internal affairs investigation. Internal affairs officials made findings and recommendations and incorporated them into written memoranda. The memoranda were given to the deputies’ commanding officers, who then forwarded the memoranda to senior officials from the Sheriff’s Office for review and comment. The memoranda were eventually given to the Sheriff, who made the final decision regarding the appropriate disciplinary action.

Once the internal affairs investigations were concluded and discipline was imposed, the Sheriff’s Office made the memoranda public. A question arose as to whether or not the memoranda should have been public before the conclusion of the internal affairs investigation and imposition of discipline.

The Florida Court of Appeals found that the County’s procedures did not violate the Sunshine Law. The Court ruled that “the memoranda were reviewed by senior officials of the Sheriff’s Office, who could write comments, and the Sheriff then reviewed the memoranda. As was the case with prior decisions we have issued, the senior officials provided only a recommendation to the Sheriff but they did not deliberate with him, nor did they have decision-making authority. Because the officials provided only a mere recommendation and did not deliberate with the Sheriff, we conclude that the senior officials do not exercise decision-making authority so as to constitute a ‘board’ or ‘commission’ subject to the Sunshine Act.”

McDougall v. Culver, 2009 WL 103158 (Fla.App. 2009).

This article appears in the March 2009 issue