Opinion
No. 1D20-134
02-23-2022
NETWORK COMMUNICATIONS OF NORTHWEST FLORIDA, INC., Petitioner, v. DEPARTMENT OF REVENUE and Holly Ann Otten, Respondents.
Todd M. LaDouceur and Matthew A. Smith of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Petitioner. Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Respondent Department of Revenue; John Booth of Walborsky & Bradley, PLLC, Pensacola, for Respondent Holly Otten.
Todd M. LaDouceur and Matthew A. Smith of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Petitioner.
Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Respondent Department of Revenue; John Booth of Walborsky & Bradley, PLLC, Pensacola, for Respondent Holly Otten.
Tanenbaum, J.
Timothy McDonald fathered a child with Holly Otten. These two have been locked in a dispute over how much McDonald should be administratively ordered to pay as child support by the Department of Revenue ("DOR") pursuant to the process set out in section 409.2563, Florida Statutes. Otten contends that the child support amount should be more. That, however, is not what we are here to review.
Network Communications of Northwest Florida, Inc. is a closely held, family corporation, and McDonald is its chief executive officer. Network asks us to review an interim order of the administrative law judge ("ALJ") handling the matter for DOR. The order denied Network's motion to quash a subpoena Otten's counsel directed to Wells Fargo Bank, where Network maintains one or more accounts. Network is a not a party to the child support proceeding, which means it will not have an avenue for review upon entry of final order. We, then, have statutory authority to review the interim order. See § 120.68(1)(b), Fla. Stat. ("A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy."); Art. V, § 4(b)(2), Fla. Const. ("District courts of appeal shall have the power of direct review of administrative action, as prescribed by general law."). Because the ALJ's order did not infringe on any cognizable right held by Network, and because in any event, the ALJ prudently put in place protections to control unnecessary disclosure of the banking information, we deny the petition.
* * *
Otten apparently suspected that McDonald was understating his income to DOR, which resulted in an under-calculation of McDonald's support obligation. After McDonald was less-than-forthcoming about the sources and amount of his income at an evidentiary hearing before the ALJ, Otten's counsel subpoenaed Wells Fargo to produce the following:
Any and all records of financial accounts (open or closed) bearing the signatory authority of TIMOTHY G. MCDONALD and/or in the name of TIMOTHY G. MCDONALD, from the period beginning January 1, 2015 to present date, to include all transactions, statements, deposits, withdrawals, drafts, and payments made. THIS REQUEST DOES NOT INCLUDE CANCELLED CHECKS.
Because McDonald was a signatory on Network's account at Wells Fargo, this subpoena would have picked up Network's account records. In support of its effort to have the ALJ quash the subpoena, Network advanced one argument. It contended that the subpoena sought irrelevant and confidential information that it feared would be misused if it fell into the hands of Otten, who ostensibly had a criminal history involving theft and abuse of personal identification. Network did not argue before the ALJ, and it does not argue here, that the subpoena would force disclosure of trade secrets or that disclosure of its information in the context of this child support proceeding in some way would put it at a competitive disadvantage. Rather, the focus of its challenge was on preventing Otten herself from accessing the bank records. Network in turn asserted before the ALJ that one of two forms of relief should be granted: either quash the subpoena, or order that the information be provided only to DOR and its counsel.
The ALJ denied the motion to quash, but he ordered Otten's counsel to ensure that information obtained in response to the subpoena would not be shared with anyone outside counsel's firm and the firm of McDonald's counsel. The ALJ's order continued with the imperative that should the information need to be disclosed in a deposition or hearing, Otten's counsel must redact all sensitive information, including "account numbers, social security numbers, and dates of birth." Network claims in its petition before us that the ALJ departed from the essential requirements of law, and it will suffer irreparable harm unless the subpoena is quashed.
Section 120.68(1)(b) contains no limit on the scope of our review, but historically (and, presumably as a practical matter), this court has not subjected non-final administrative action to a review any broader or more exacting than it would a trial court non-final order by common-law certiorari. See Charlotte County v. Gen. Dev. Utils., Inc. , 653 So. 2d 1081, 1084 (Fla. 1st DCA 1995) (relying on the appellate rules committee's interpretation of section 120.68(1)(b) to surmise that "the statutory authority to review non-final administrative action is analogous to and no broader than the right of review by common law writ of certiorari"); cf. Williams v. Oken , 62 So. 3d 1129, 1134 (Fla. 2011) ("This Court has limited certiorari as a matter of policy to avoid piecemeal review of pretrial orders." (emphasis supplied)).
Along these lines, then, this court has reviewed administrative discovery orders that might compel improper disclosure of privileged information or trade secrets. See Eight Hundred, Inc. v. Fla. Dep't of Rev. , 837 So. 2d 574 (Fla. 1st DCA 2003) (reviewing claim of accountant-client privilege); Dep't of Transp. v. OHM Remediation Servs. Corp. , 772 So. 2d 572, 573 (Fla. 1st DCA 2000) (reviewing claim of attorney-client and work-product privileges); Holmes Reg. Med. Ctr., Inc. v. Agency for Health Care Admin. , 731 So. 2d 51 (Fla. 1st DCA 1999) (reviewing claim regarding trade secrets); Sci. Games, Inc. v. Dittler Bros., Inc. , 586 So. 2d 1128 (Fla. 1st DCA 1991) (same). Our review of administrative discovery under section 120.68(1)(b) no doubt also extends to a claimed invasion of a privacy right under the Florida Constitution. cf. Rasmussen v. S. Fla. Blood Serv., Inc. , 500 So. 2d 533, 535, 538 (Fla. 1987) (approving decision to quash discovery order on certiorari review because the discovery order would "result in undue invasion of privacy").
We now turn to the merits of Network's petition. As an initial matter, we reject out of hand its argument that the ALJ should have quashed the subpoena as overbroad. cf. Bd. of Trustees of Internal Improvement Tr. Fund v. Am. Educ. Enterprises, LLC , 99 So. 3d 450, 456 (Fla. 2012) ("Overbreadth is not a proper basis for certiorari review of discovery orders."). Getting to the main argument—that the subpoena improperly "seeks irrelevant, confidential records from Network"—we note Network's heavy reliance on the premise that its financial information at the bank is constitutionally protected. This is a non-starter, and we can make quick work of it.
To be sure, the subpoena sought Wells Fargo's records, not Network's. See United States v. Miller , 425 U.S. 435, 440, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (explaining that account records "are the business records of the banks," and are not "private papers" owned or possessed by the account holders). Moreover, all these records, "including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." Id. at 442, 96 S.Ct. 1619. There is no "legitimate expectation of privacy concerning the information kept in bank records" under the U.S. Constitution. Id.
This leaves Network with looking to the Florida Constitution for a right that might be cognizable here. It is true that individuals have a "privacy" interest in their financial records under our state's constitution. See Winfield v. Div. of Pari-Mutuel Wagering , 477 So. 2d 544, 548 (Fla. 1985) (explaining that under article I, section 23 of the Florida Constitution, an individual has a "legitimate expectation of privacy in financial institution records"); see also Friedman v. Heart Inst. of Port St. Lucie, Inc. , 863 So. 2d 189, 194–95 (Fla. 2003) (considering discovery of such confidential information with the constitutional privacy protection as a backdrop). Network, however, is a corporation, and this constitutional protection does not extend to business entities. See Art. I, § 23, Fla. Const. (guaranteeing to "[e]very natural person [ ] the right to be let alone" and the right to be "free from governmental intrusion into the person's private life" (emphasis supplied)). Without the claimed privacy protection, Network has no right on which to base its petition regarding the subpoena. We could stop here and deny the petition on this basis alone, but we continue so we can make one more point.
As we noted earlier, Network's challenge to the subpoena stems mostly from its concern that Otten might misuse the financial information. It proposed that the ALJ either quash the subpoena or restrict access to the financial information to DOR and its counsel. In other words, the issue was not with Network's financial information seeing the light of day at all. Network obviously was fine with a state agency having access to that information. And the ALJ's order gave Network much of what it asked. He restricted access to the disclosed information, albeit with all of the lawyers involved in the case having access, rather than just DOR's lawyers. The ALJ also required that sensitive information be redacted before any responsive documents could be accessed by anyone else. Not only, then, does Network fail to identify an interim-review-worthy right that has been invaded by the subpoena; but also, in essence, it would have us second-guess the ALJ's exercise of discretion in crafting a solution to the problem that Network presented in the first place. This is not what interim relief under section 120.68(1)(b) is for, and it appears that the ALJ took appropriate action in any event.
DENIED .
Bilbrey and Winokur, JJ., concur.