Legal Report, April 2022
General Counsel, Davis & Associates, P.A.
1. City of Sunny Isles Beach v. Gatto, 2022 Fla. App. LEXIS 2389 (Fla. 3d DCA 2022).Public records; text messages.
During a November 2020 City of Sunny Isles Beach (“City”) Commission meeting conducted via Zoom, a Commissioner was observed on screen texting on her phone. The following day, a City resident (“Plaintiff”) issued a public records request seeking copies of the Commissioner’s text messages, alleging that the requested messages pertained to City business. In response, the City produced two sets of text messages sent by the Commissioner during the November 2020 meeting: 1) messages between the Commissioner and another City resident, and 2) messages between the Commissioner and her husband (“Husband Text Messages”). After conducting an in camera review, the trial court deemed both sets of text messages to be public records and denied the City’s motion to prevent dissemination of the Husband Text Messages. The City thereafter appealed the trial court’s ruling with respect to the Husband Text Messages.
On appeal, the Third District Court of Appeal (“DCA”) found that the Husband Text Messages were private communications that fell outside of the purview of Florida’s Public Records Law, and reversed that portion of the trial court order mandating their disclosure. Plaintiff unsuccessfully argued that the Husband Text Messages were public record because they were communicated during a public meeting, they touched on City matters, and they bore similarity in subject matter to the set of text messages between the Commissioner and City resident. The Third DCA rebuked this argument; however, finding that the Husband Texts here were uniformly personal and private, were not made in connection with any business transacted by the City, and were not made by the Commissioner in her official elected capacity in any way. The Third DCA concluded that Husband Text Messages did not possess attributes of official business and therefore did not become subject to public records inspection. While this case affirms that personal text messages, even when exchanged during a public meeting, are not public records under Chapter 119, F.S.; it presents a valuable reminder for elected officials regarding texting and the continued applicability of Florida’s Public Records Law.
2. U.S. Department of Justice, Guidance on Web Accessibility and the ADA (March 18, 2022). Americans with Disabilities Act; Public entities.
On March 18, 2022, the United States Department of Justice published guidance on web accessibility standards under Titles II and III of the Americans with Disabilities Act (“ADA”). Title II provides that no person with a qualified disability, including deafness, blindness, or mobility impairments, shall be denied the opportunity to participate in those “services, programs, and activities” offered by a local government as a public entity. The Web Accessibility Guidance (“Guidance”) provides examples of common website accessibility barriers for disabled persons, including poor color contrast between the text and background, lack of video captioning, inaccessible online forms, and a lack of text alternatives (“alt text”) on images. Alt text is used to convey the purpose of an image and can be heard by blind or visually-impaired persons who use screen readers to hear the subject text aloud. The Guidance offers a flexible approach to ensuring ADA compliance through a variety of technical standards and resources local governments can use to improve their website accessibility. Specifically-listed resources include Web Content Accessibility Guidelines (“WCAG”) 2.0 and 2.1, as well as the information and communication technology standards under § 508 of the Rehabilitation Act. These resources provide specific examples of actions local governments can take to ensure website accessibility, including: 1) websites should provide alt text for all images and synchronized video captions for all video resources; 2) all online forms should be provided with clear labels and instructions that are screen-reader compatible; and 3) websites should have a resource for accessing parties to report accessibility problems.
With the rising number of local government services now offered online, including program registration, payment of fees and tickets, and streaming of public meetings, local governments must ensure that such services are equally accessible to disabled persons under the ADA. In light of the increased dependence on these websites and the sharp rise in website accessibility lawsuits in recent years, this Guidance provides valuable information for local governments to use to ensure websites accessibility for disabled persons.