Opinion
Case No. 5D13-1519
12-20-2013
LAWRENCE ANDREW INGRAM, Petitioner, v. STATE OF FLORIDA, Respondent.
Lawrence A. Ingram, Perry, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Petition for Certiorari; Review of Order
from the Circuit Court for Lake County,
Lawrence J. Semento, Judge.
Lawrence A. Ingram, Perry, pro se. Pamela Jo Bondi, Attorney General,
Tallahassee, and Kellie A. Nielan,
Assistant Attorney General, Daytona
Beach, for Respondent.
TORPY, C.J.
Petitioner seeks certiorari review of an order denying his motion to compel the production of various records requested pursuant to Florida Public Records Act, chapter 119, Florida Statutes (2013) ("the Act"). Petitioner asserts that the trial court departed from the essential requirements of the law when it: (1) failed to treat his motion to compel as a petition for writ of mandamus; and (2) failed to have a hearing as required by section 119.11(1), Florida Statutes, before denying his public records request. We agree with Petitioner and quash the trial court's order.
Petitioner, who is serving a life sentence for sexual battery of a child, made a written public records request to the State Attorney's Office. His request identified two categories of records by specific description and with specific reference to numbered property receipts. Petitioner sought the "mirror images" made of his computer hard drive in the form of DVDs or CDs and the analyses and reports resulting from the forensic examination of his home computer. He also sought the recorded interviews of the victim and her mother. In his request, he acknowledged his obligation to pay the costs of the documents and asked for an itemized list of these costs so that he could tender payment.
The State responded by asserting that, pursuant to an exemption to the Act, it was precluded from producing the records without first redacting any information identifying the child victim. It further asserted that "[w]e . . . do not have the ability to redact the identity of the child. Therefore, . . . you would be required to make arrangements for someone with this capability to contact this office and make appropriate arrangements." Petitioner did not agree that this exemption applied in his case. He wrote the State, explaining his position and citing a specific statute as support. Without addressing the statute cited by Petitioner, the State reiterated its previous position, emphasizing again that Petitioner would have to furnish "someone with [the] capability" to redact the records before they would be produced.
Petitioner thereafter filed a motion to compel production of the documents from the State and requested a telephonic hearing on his motion. Without a hearing or explanation, the trial court summarily denied Petitioner's motions, culminating in this proceeding.
The purpose of the Act "is to open public records to allow Florida's citizens to discover the actions of their government." See Bent v. State, 46 So. 3d 1047, 1048 (Fla. 4th DCA 2010) (quoting Christy v. Palm Beach Cnty. Sheriff's Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997)). Section 119.01(1), Florida Statutes, expressly provides that "[i]t is the policy of this state that all state, county and municipal records shall be open for personal inspection by any person." It is the "duty" of each public agency to fulfill this legislative policy. Id. To accomplish this objective, the Act "is to be construed liberally in favor of openness, and all exemptions from disclosure are to be construed narrowly and limited to their designated purpose." Woolling v. Lamar, 764 So. 2d 765, 767 (Fla. 5th DCA 2000).
When requests for public records are made, the custodian "must" promptly respond to the request in "good faith." § 119.07(1)(c), Fla. Stat. If the custodian concludes that the requested record is exempt from the Act and if requested by the person seeking the record, the custodian "shall state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential." § 119.07(1)(f), Fla. Stat. (Emphasis added). If the custodian asserts that an exemption applies to "part of such record [the custodian] shall redact that portion . . . and shall produce the remainder of such record . . . ." § 119.07(1)(d), Fla. Stat. (Emphasis added). The appropriate procedure to observe when statutory exemptions are claimed is to furnish the documents to the trial judge for an in camera inspection. Walton v. Dugger, 634 So. 2d 1059, 1061-62 (Fla. 1993).
The State made no effort to offer an explanation even after Petitioner requested it to reconsider its position in light of a cited exception to the exemption. There does not appear to be a specific remedy for a violation of this provision. The trial court can require the State to file an amended and more specific response to Petitioner's request. Weeks v. Golden, 764 So. 2d 633, 635 (Fla. 1st DCA 2000).
If the person seeking the record disputes an asserted exemption and files an action to enforce the Act, the trial court is required to "set an immediate hearing, giving the case priority over other pending cases." § 119.11(1), Fla. Stat. No specific request for an accelerated hearing need be made. Woodfaulk v. State, 935 So. 2d 1225 (Fla. 5th DCA 2006). The failure to hold an immediate hearing may be remedied by petition for writ of certiorari. Martinez v. State, 969 So. 2d 1174, 1174-75 (Fla. 5th DCA 2007).
Here, the State does not address Petitioner's contention that the trial court should have treated his motion as a petition for writ of mandamus. See Farmer v. State, 927 So. 2d 1075 (Fla. 2d DCA 2006) (trial court should treat motion to compel public records as petition for writ of mandamus). Nor does the State address the argument that the failure to provide a hearing is itself a departure from the essential requirements of the law, as the statute and our precedents clearly spell out. Instead, the State maintains that there is nothing for the court to compel it to do because it remains "ready and willing" to provide the records once Petitioner "[makes] arrangements for the redaction" of the exempt material. We are admittedly perplexed by this position. Besides the fact that it is directly contrary to the statutory directive of section 119.07(1)(d) that the custodian "shall" redact the record and "shall" produce the remaining portions, it strains credulity that the State with its vast resources lacks the technology to perform the redaction of video or audio cassettes, DVDs and reports. Equally perplexing is the State's ostensible willingness to turn over purportedly confidential material to an agent of Petitioner to perform this delicate exercise, during which confidential information may be viewed and evidence might be compromised. We will assume for now that the State's position is simply ill-advised and not a scheme to stonewall the incarcerated Petitioner by interposing an insurmountable hurdle. If the State continues to maintain this position at the hearing on the public records request, we trust that the trial court can sort this out and, if appropriate, impose sanctions.
Neither party favored us with a citation to section 119.07(1)(d). Counsel for the State is under a duty to advise the court of legal authority that is contrary to the State's position. We assume this omission was inadvertent and caution counsel to be more thorough, especially when the opposing party is unrepresented by counsel.
Although not essential to our holding, in order to give some guidance to the trial court when it conducts a hearing, we will address the substance of the claimed exemption within the context of the limited record we have. The State asserts that the records are exempt in part pursuant to section 119.071(2)(h)1. The relevant part of that provision exempts certain components of criminal investigative information, a phrase of art, defined by section 119.011(3)(b) as "information . . . compiled" by law enforcement in the course of conducting a criminal investigation, "including, but not limited to information derived from laboratory tests, reports . . . or . . . surveillance." It does not include, however, "[d]ocuments . . . required by law . . . to be given to the person arrested, except as provided in section 119.071(2)(h) . . . ." § 119.011(3)(c)5., Fla. Stat. Thus, following the trail of this circuitous statute leads us through the convoluted definition, the exception for the "person arrested" and the exception to that, all of which leads back to section 119.071(2)(h). That section, in relevant part, exempts from public record disclosure "information" that reveals the identity of the victim of enumerated sexual offenses, and any "photograph, videotape, or image of any part of the body of the victim" of enumerated sexual offenses. This portion of the statute does not differentiate between a child victim and an adult victim. Although tedious, these sections of the statute leave little doubt that some of the materials sought by Petitioner must be redacted.
The term "redact" is defined (as it pertains to both tangible records and electronic media) in section 119.011(13), and needs no elaboration.
The more difficult question involves the application of section 119.071(2)(j)2. Section 119.071(2)(j)2.a. creates a specific exemption from disclosure for "information" that reveals the identity of a minor victim contained in the "videotaped statement of a minor" victim of enumerated sexual offenses. It offers as examples: "the minor's face; the minor's home, school, church, or employment" addresses and phone numbers, as well as information about the minor's assets. Section 119.071(2)(j)2.b. prohibits a public employee from disclosing the information exempted under section 119.071(2)(j)2.a. and provides criminal penalties for a violation of the prohibition. Section 119.071(2)(j)2.b. provides an express exception, however, for the "defendant" and the "defendant's attorney."
Petitioner argues that section 119.071(2)(j)2.a. must be construed together with section 119.071(2)(j)2.b., leading to the conclusion that he is entitled to the videotaped statement without redaction because he is the "defendant." The State makes two counterarguments. Initially, it argues that Petitioner is no longer the "defendant," because the prosecution had concluded and he is now a prisoner. We reject this argument without elaboration. Next, it argues that section 119.071(2)(j)2.a. serves a different function than section 119.071(2)(j)2.b., the latter being to establish a criminal penalty for a violation. We likewise reject this argument for three reasons. First, at best, the statute is ambiguous and we are duty-bound to construe it in favor of disclosure of the record. Woolling, 764 So. 2d at 767. Second, it is a "basic principle" of statutory construction that ambiguous statutes relating to the same subject matter must be construed together. Fla. Dep't of Highway Safety & Motor Vehicles v. Hernandez, 74 So. 3d 1070, 1075 (Fla. 2011). Finally, we are charged with the responsibility to construe statutes to avoid unreasonable and illogical results. Quarantello v. Leroy, 977 So. 2d 648, 654 (Fla. 5th DCA 2008). It defies logic that the legislature would create an exemption from the Act and provide criminal penalties for a violation of the exemption, and then make an exception to the exemption that only applies to the criminal penalties. It appears to us that the exception is merely a recognition by the legislature that the defendant is entitled to this important evidence, notwithstanding the records exemption.
The exception to the exemption is only intended to apply to the defendant and his attorney. In all other respects, the videotaped statement retains its exempt status.
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Section 119.071(2)(j) 2.a. is specific as to videotaped statements of minor victims and section 119.071(2)(h) is a more general exemption. Although they overlap in subject matter, the specific controls over the general. See Parker v. Baker, 499 So. 2d 843, 845 (Fla. 2d DCA 1986) (when different statutes embrace one subject, the specific controls over the general). Thus, the "defendant" and his attorney are entitled under the Act to the videotaped statement of the victim in un-redacted form, while the remaining records are subject to the provisions of section 119.071(2)(h).
Turning once again to the facts here, it appears on the record before us that the first category of public records requested by Petitioner, that being the product of the forensic examination of his home computer, is probably not exempt, in whole or in part. Although we do not have the records themselves, we do have a summary report of the analysis. While law enforcement searched for images of the victim, apparently none were found. The majority of the information was either benign or related to internet searches of sex sites. Of course, when the trial judge conducts an in camera inspection of the records, if the actual records reveal exempt identity information, it should be ordered redacted. This exemplifies why an in camera inspection is needed when an exemption is asserted and disputed.
As to Petitioner's second category of public records requested, if there is a videotaped interview of the minor victim, an un-redacted copy must be produced. All of the other records should be redacted in accordance with section 119.071(2)(h).
Finally, we address the State's argument that Petitioner cannot have the records because he is in prison and it is against the rules of the prison. Like our sister court in Weeks v. Golden, 798 So. 2d 848 (Fla. 1st DCA 2001), we express no view on whether the Department of Corrections may prohibit Petitioner from reviewing these documents. That issue is not properly before us today and has no bearing on the public records issues.
If the trial court fails to conduct a hearing within fifteen days after this decision becomes final, then Petitioner may file a petition for writ of mandamus with this Court.
ORDER QUASHED. COHEN and WALLIS, JJ., concur.