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After Investigation Has Ended, Even Investigator’s “Mental Impressions” Are Subject to Release Under Public Records Act

The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar.

The City of Avon Park (“City”) terminated Michael Rowan’s employment as Chief of Police. In the subsequent administrative hearing, at issue was Rowan’s investigation of certain city council members and alleged deletion of certain information from his work computer.

An investigator with the State Attorney’s Office was called in to investigate those issues; he prepared a report of his findings. The City subpoenaed the investigator to appear as a witness at the administrative hearing on Rowan’s termination, and to bring his report, which the City wanted to rely on. The State sought a circuit court order quashing the subpoena issued to the investigator. It also sought to prevent disclosure of portions of the report which constituted mental impressions of the investigator. The circuit court granted in part and denied in part the State’s petition. It concluded the investigator’s mental impressions were exempt from the Public Records Act and entered a protective order limiting the investigator’s testimony and protecting the mental-impression portions of the report.

The City appealed, arguing the report should be admissible in full and Rowan’s testimony should not be limited; Rowan cross-appealed, arguing that he should not be required to testify at all. The Second District Court of Appeal reversed the trial court’s decision excluding from evidence the portion of the report containing the investigator’s mental impressions. The court pointed to section 119.071(1)(d)1., Florida Statutes, which protects mental impressions from disclosure only until the conclusion of the litigation or adversarial administrative proceedings. In this case, the court concluded that the investigation had ended and no charges had been filed. Therefore, the investigator’s mental impressions were no longer protected.

Source:

City of Avon Park v. State of Florida, 117 So. 3d 470 (Fla. 2d DCA 2013) (Opinion filed July 17, 2013).

About the Author: The foregoing case summary was prepared by Mary F. Smallwood, Esquire, of The Administrative Law Section of The Florida Bar. It originally appeared in the Administrative Law Section Newsletter, Col. 36, No. 2 (Dec. 2013).

By The Health Law Firm|2024-03-14T10:00:54-04:00June 1, 2018|Categories: Administrative law, Public Records, The Health Law Firm Blog|Tags: Administrative Hearing, administrative law, adversarial administrative proceedings, litigation, mental impressions, mental impressions protected, public records, public records act, State Attorney's Office, subpoena|Comments Off

Trial Court Must Hold Evidentiary Hearing to Determine Disputed Facts in Public Records Act Suit

Edited by George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in the Legal Specialty of Health Law

An interesting summary of a Florida appellate case from Florida’s First District Court of Appeal recently came across my desk. Florida has a very broad Public Records Act and Sunshine Act. We are often involved in suing state agencies for force disclosure of documents and information.

The following is from a summary that was originally published in the newsletter of the Florida Bar’s Administrative Law Section.

Clay Cnty. Ed. Ass’n u. Clay Cnty. Sch. Bd., 144 So. 3d 708 (Fla. 1st DCA 2014).

After requesting various public records related to the Clay County School Board’s operation, and receiving only some of the responsive documents, the Clay County Education Association (CCEA) filed a petition for a writ of mandamus with the circuit court to compel production of the records. In unsworn defenses to the complaint, the school board stated that it had already produced the documents, did not have the information in the requested format, or that the requested documents did not exist. The circuit court granted the school board’s motion to dismiss the complaint, and the CCEA appealed.

The First District Court of Appeal reversed, finding that CCEA’s petition for writ of mandamus was legally sufficient. The complaint alleged a violation of a clear legal right and breach of an indisputable legal duty, thereby showing a prima facie basis for relief.

The appellate court also concluded that the circuit court erred by failing to hold an evidentiary hearing to resolve disputed issues of fact, which CCEA requested. The school board’s defenses likewise created issues of fact that should have been grounds for a priority bearing under section 119.01, Florida Statutes.

Additional Comments.

This case is important for several reasons. It took place in the First District Court of Appeal. Since most Florida agencies are located in Tallahassee, most Public Records Act cases are filed there. Additionally this shows that the Florida Appellate Courts will require trial courts to actually have evidentiary hearings and trials when there are facts in contention between the parties, which is good for citizens.

Contact The Health Law Firm Attorneys Experienced in Administrative Law.

The attorneys of The Health Law Firm represent clients in administrative and civil litigation (both state and federal) throughout the state and in other states as permitted by their rules. We also represent clients in cases involving the Florida Public Records Act, the Sunshine Act, the Federal Freedom of Information Act (FOIA) and the Privacy Act. Our attorneys are available to provide emergency hearing coverage, administrative hearing representation, emergency board representation (Board of Medicine, Board of Dentistry, Board of Nursing, Board of Osteopathic Medicine, Board of Pharmacy, Board of Psychology, Board of Licensed Clinical Social Work, Marriage & Family Therapy & Mental Health Counseling and other professional boards), as well as the Agency for Health Care Administration, emergency deposition coverage and other litigation coverage on short notice. Should you need local counsel or just coverage for a hearing or deposition, we are available; contact us.

Source: The original case summary discussed above was originally published in the Administrative Law Section Newsletter, Vol. 34, No. 2 (Dec. 2014), a publication of The Administrative Law Section of the Florida Bar.

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By The Health Law Firm|2024-03-14T10:00:59-04:00June 1, 2018|Categories: Administrative law, The Health Law Firm Blog|Tags: Administrative Hearing, administrative law, appellate case, attorney, complex litigation, defense, evidentiary hearing, First District Court of Appeal, FOIA, Freedom of Information Act, health care litigation, health law, lawyer, Privacy Act, production of records, public records act, Sunshine Act, writ of mandamus|Comments Off

Recent Appellate Court Case Emphasizes The Public’s Right to Records Under Public Records Act

By: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

The following is a summary of a recent appellate case on an issue that may be relevant to those pursuing administrative hearings in health law cases or related cases:

Promenade D’Iberville v Sundy, 145 So. 3d. 980 (Fla. 1st DCA 2014)

After receiving a public records request from Promenade D’Iberville, LLC (Promenade), with whom the Jacksonville Electric Authority (JEA) was in active litigation in Mississippi, the JEA filed a motion for protective order in the Mississippi court to circumvent the request. The JEA eventually turned over the requested records, but only after two months had passed and Promenade was forced to file an action for the public records.

The appellate court framed the issue as whether the JEA had violated the public records law by withholding requested non-exempt public records. The court noted that, as a general rule, governmental entities in Florida are broadly responsible to make public records available to all who request them. The JEA did not argue that any statutory exemption excused its obligation to make the requested documents available. Rather, the JEA delayed making the records available pending a ruling on its Mississippi motion, even though the pending litigation was not grounds for a public records exemption. Thus, the appellate court concluded, the JEA violated the public records law by delaying Promenade’s access to non-exempt public records for legally insufficient reasons.

Moreover, the appellate court concluded that JEA’s delayed production of records did not “cure” its unjustified delay. Only justified delay is permissible, such as to determine whether such records exist or due to a relief that some or all of the requested records are exempt from disclosure. Unjustified delay violates Florida public records law. Where there is unjustified delay to the point of forcing a requester to file a law suit that, alone, is “tantamount to an unlawful refusal to provide public records in violation of the Act.”
The case summary above was originally published in the Administrative Law Section Newsletter, Vol, 34, No. 2 (Dec 2014), a publication of the Administrative Law Section of the Florida Bar.

Blog Editor’s Comments:

Florida has a very broad Public Records Act, codified in Chapter 119, Florida Statutes. It entitles Florida residents to obtain copies of most records kept by state agencies (with certain exceptions, of course).

If a state agency denies a person’s request improperly, that person may sue the agency. If successful, the person is awarded attorney’s fees and costs incurred in bringing the litigation.

Comments?

Do you think that governmental entities in Florida are responsible to make public records available to all who request them? Do you agree/disagree that Unjustified delay violates Florida public records law? Do you think a person should be able to sue state agency if their request is denied improperly? Please leave any thoughtful comments below.

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About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

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By The Health Law Firm|2024-03-14T10:01:00-04:00June 1, 2018|Categories: Administrative law, Electronic Health Record, The Health Law Firm Blog|Tags: Administrative Hearing, Appellate, public records act|Comments Off