Executive Office of the Governor v. AHF MCO of Florida, Inc. d/b/a PHC Florida HIV/AIDS Specialty Plan , 257 So. 3d 612 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-3951
_____________________________
EXECUTIVE OFFICE OF THE
GOVERNOR,
Appellant,
v.
AHF MCO OF FLORIDA, INC.
d/b/a PHC FLORIDA HIV/AIDS
SPECIALTY PLAN,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.
October 29, 2018
PER CURIAM.
Appellant, the Executive Office of the Governor, appeals the
trial court’s order granting mandamus relief to Appellee, AHF
MCO of Florida, Inc. d/b/a PHC Florida HIV/AIDS Specialty Plan,
requiring Appellant to produce the public records Appellee had
requested. We reverse and remand for further proceedings.
On July 19, 2018, Appellee submitted a public records request
to Appellant, seeking the production of the following records: (1)
“[a] copy of Governor Scott’s electronic calendar showing all
meetings, events, and appearances involving the Governor for the
period July 20, 2018 through October 31, 2018”; (2) “[a] copy of any
hardcopy calendars or other documents showing all meetings,
events, and appearances involving the Governor for the period
July 20, 2018 through October 31, 2018”; (3) “[a]ll documents and
records that indicate where Governor Scott will travel during the
period July 20, 2018 through October 31, 2018”; (4) “[a]ll
documents and records that indicate where Governor Scott will
reside during the period July 20, 2018 through October 31, 2018”;
and (5) “[a] list of all campaign and fundraising events Governor
Scott will attend as part of his campaign for U.S. Senate during
the period July 20, 2018 through October 31, 2018.” In its response
to the public records request, Appellant asserted that it would not
produce the records because they are exempt under section
119.071(2)(d), Florida Statutes (2018).
Pursuant to Appellee’s ensuing petition for writ of mandamus
and the trial court’s order to show cause, Appellant filed a response
asserting as it does on appeal that the requested information is
exempt from disclosure under section 119.071(2)(d)—which
exempts “[a]ny information revealing surveillance techniques or
procedures or personnel”—because the premature disclosure of
prospective information regarding the Governor’s detailed
schedule and travel plans would reveal surveillance techniques,
procedures, or personnel and would jeopardize his security. In
addition, Appellant asserted below that Appellee’s request (5) does
not relate to public records. In support of its argument, Appellant
attached to its response the affidavit of a special agent with the
Florida Department of Law Enforcement (“FDLE”), who attested
that it is the statutory duty of FDLE to provide for the safety of
the Governor and that “[p]remature disclosure of prospective
information regarding the Governor’s detailed schedule, including
drive times, and the time and location of the Governor’s arrival
and departure, would reveal FDLE’s surveillance techniques,
procedures, and personnel and would compromise” the security of
the Governor, as well as the security of law enforcement officers
whose job is to protect him.
Following an accelerated hearing where the agent’s affidavit
was undisputed, and without inspecting the records at issue, the
trial court entered an Order on Public Records Request, in which
it granted mandamus relief and ordered Appellant to produce the
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requested public records within ten days upon finding that the
requested information does not reveal surveillance techniques,
procedures, or personnel or pertain to agency investigation. This
expedited appeal followed.
As we have repeatedly stated, “an in-camera inspection is
‘generally the only way for a trial court to determine whether or
not a claim of exemption applies.’” See, e. g., Envtl. Turf, Inc. v.
Univ. of Fla. Bd. of Trs., 83 So. 3d 1012, 1013 (Fla. 1st DCA 2012)
(reversing in part the trial court’s denial of a public records request
based on its determination without inspection of the records that
the asserted exemptions applied and remanding for an in-camera
inspection to determine if the records were exempt from disclosure
under the alleged exemptions) (citation omitted); Holley v.
Bradford Cty. Sheriff’s Dep’t, 171 So. 3d 805, 805 (Fla. 1st DCA
2015) (similar); Garrison v. Bailey, 4 So. 3d 683 (Fla. 1st DCA
2009) (similar); see also Lopez v. Singletary, 634 So. 2d 1054, 1058
(Fla. 1993) (reaffirming that “it is for a judge to determine, in an
in camera inspection, whether particular documents must be
disclosed”).
Here, the trial court granted Appellee’s request for disclosure
of public records without inspecting the records, despite the special
agent’s undisputed attestation that the “[p]remature disclosure of
prospective information regarding the Governor’s detailed
schedule, including drive times, and the time and location of the
Governor’s arrival and departure, would reveal FDLE’s
surveillance techniques, procedures, and personnel” and would
jeopardize the security of the Governor and the officers whose duty
is to protect him. Appellee’s requests in (3) and (4) for “[a]ll
documents and records that indicate” where the Governor will
travel and reside are broad and to the extent they seek
information encompassed by the agent’s affidavit, such as drive
times and arrival and departure times, such information is exempt
from disclosure. As to other types of information not referenced in
the agent’s affidavit, Appellant shall produce any public records
requested in (3) and (4)—in addition to any public records
requested in (1), (2), and (5)—for an in-camera inspection, and the
trial court shall determine if the records and/or entries contained
therein are exempt from disclosure under the Public Records Act.
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REVERSED and REMANDED.
LEWIS and JAY, JJ., concur; ROWE, J., specially concurs with
opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
ROWE, J., specially concurring.
I concur in the majority opinion, but write separately to
explain why AHF’s request for records relating to the Governor’s
calendar and travel records necessarily reveals information that
could compromise the ability of the Governor’s security detail to
surveil for threats against the Governor and why those records are
not subject to disclosure under the Public Records Act.
AHF requested the following records related to the Governor’s
calendar and travel plans:
(1) A copy of Governor Scott’s electronic calendar showing
all meetings, events, and appearances involving the
Governor for the period July 20, 2018 through October 31,
2018;
(2) A copy of any hardcopy calendars or other documents
showing all meetings, events, and appearances involving
the Governor for the period July 20, 2018 through
October 31, 2018;
(3) All documents and records that indicate where
Governor Scott will travel during the period July 20, 2018
through October 31, 2018;
(4) All documents and records that indicate where
Governor Scott will reside during the period July 20, 2018
through October 31, 2018; and
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(5) A list of all campaign and fundraising events Governor
Scott will attend as part of his campaign for U.S. Senate
during the period July 20, 2018 through October 31, 2018.
In response to AHF’s requests, the Executive Office of the
Governor (EOG) asserted that the records requested in (1)-(4) were
exempt from disclosure pursuant to section 119.071(2)(d), Florida
Statutes (2018), because they contained “information revealing
surveillance techniques or procedures or personnel.” As to request
(5), the EOG asserted that the Governor’s campaign schedule and
campaign fundraising schedule were unrelated to the transaction
of official state business and therefore were not public records. See
Butler v. City of Hallandale Beach, 68 So. 3d 278 (Fla. 4th DCA
2011).
After AHF petitioned for mandamus relief, the trial court
issued an order to show cause to the EOG. In response, the EOG
argued that the records requested were exempt from disclosure
pursuant to section 119.071(2)(d). Attached to the EOG’s response
was a sworn affidavit from Darrick Waller, Assistant Special
Agent In Charge of the Florida Department of Law Enforcement
(FDLE). Waller has served in the Protective Operations Section of
FDLE (security detail) for over twelve years, during the
administrations of multiple governors. Waller attested that
disclosure of the records requested by AHF could reveal
surveillance techniques, procedures, and the identity of law
enforcement officers, which would “compromise the safety and
security of the Governor.” The trial court, without conducting an
in camera inspection, determined that the records requested by
AHF did not reveal any information exempt from disclosure under
the Public Records Act, concluding instead that “[i]t simply [was]
information regarding the Governor’s travel schedule.” This
oversimplification by the trial court ignores not only the scope of
AHF’s request, but also that the schedule and travel plans of the
Governor’s security detail are in lockstep with the Governor’s
movements.
The Florida Constitution and the Public Records Act grant to
the people the right to inspect and copy public records, however,
“the legislature also has the prerogative to place reasonable
restrictions on that right.” Henderson v. State, 745 So. 2d 319, 326
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(Fla. 1999). The Legislature established such restrictions for
agency investigations, specifically making exempt from disclosure
“any information revealing surveillance techniques or procedures
or personnel.” § 119.071(2)(d), Fla. Stat. (2018). This exemption
is not limited to records containing written descriptions of
surveillance techniques, procedures, and personnel identifications.
Rather, it exempts from disclosure “[a]ny information revealing
the surveillance techniques or procedures or personnel” of the
FDLE, the Capitol Police, and the Governor’s security detail. See
§§ 119.071(2)(d), 119.011(2), Fla. Stat. (2018) (emphasis added).
Thus, the plain language of section 119.071(2)(d) reflects the
Legislature’s intent to exempt from disclosure any information by
which a person could ascertain law enforcement surveillance
techniques, procedures, and the identity of law enforcement
personnel. See generally Hechtman v. Nations Title Ins. of N.Y.,
840 So. 2d 993, 996 (Fla. 2003) (“It is an elementary principle of
statutory construction that significance and effect must be given
to every word, phrase, sentence, and part of the statute if possible,
and words in a statute should not be construed as mere
surplusage.”).
AHF’s requests call for the EOG to produce records that reveal
surveillance techniques, procedures, and the identity of law
enforcement personnel, including members of the Governor’s
security detail. The records reflecting the Governor’s calendar and
schedule reveal not only his movements, but also the movements
of his security detail. The Governor’s security detail accompanies
him at events in, around, outside of the Capitol, and wherever the
Governor travels. The synchronized movement of the Governor
and his security detail is expressly provided for by statute. The
Legislature has enacted a number of laws to maintain the security
of the Governor, the Governor’s immediate family, and the
Governor’s office and mansion. § 943.68, Fla. Stat. (2018).
Members of the security detail are authorized to provide for the
Governor’s transportation, coordinate safety and security efforts
with other law enforcement agencies, bear arms and make arrests
(with or without a warrant), and employ the personnel necessary
to carry out these duties. §§ 943.68(2), (3), (7), Fla. Stat. (2018).
The Capitol Police and the Governor’s security detail also respond
to all complaints relating to criminal activity or security threats
against the Governor. §§ 943.61(4)(g), 943.68, Fla. Stat. (2018).
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Indeed, the core mission of the Governor’s security detail is to
keep a close watch over the Governor. That is the very definition
of “surveillance.” Surveillance, Merriam-Webster,
https://www.merriam-webster.com/dictionary/surveillance (last
visited Oct. 19, 2018) (“close watch kept over someone or
something”). The affidavit of Waller explains how AHF’s requests
for the Governor’s schedule and travel records inevitably call for
documents revealing surveillance techniques, procedures, and
identities of those keeping a close watch over him. Waller attested
that the duties of the security detail include “advance work, threat
assessments, threat response planning, emergency evacuation
planning, and sheltering arrangements.” Waller averred that the
calendar and travel records requested by AHF include highly
sensitive information, such as drive times, the time and location of
the Governor’s arrival and departure, and that premature
disclosure of this information would compromise the security
detail’s statutory duty to maintain the Governor’s security and to
guard against potential threats. ∗
In addition to the Waller affidavit, AHF introduced a number
of exhibits (copies of calendars and scheduling documents
produced by the Governor in the past to AHF) that reveal the
surveillance techniques, procedures, and the identity of FDLE
agents. Those exhibits include: (1) records of daily emails
containing the Governor’s schedule and revealing the identity of
FDLE agents; (2) the Governor’s line-by-line personal schedules
reflecting that the security detail transports the Governor to and
from each event, whether the transportation involves a five-
minute drive or air travel; (3) records identifying private aircraft
used by the Governor and his security detail; and (4) calendars
∗
It is undisputed that the EOG releases the Governor’s
schedule on a daily basis. Although AHF repeatedly referred to
this practice to support its argument that the requested records
should not be exempt, the Governor’s decision to release records
on a schedule of his choosing does not waive his ability to assert
the exemption prospectively. As a person entitled to assert the
exemption under the statute, the Governor may assert or
voluntarily waive the exemption.
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reflecting that the security detail accompanies the Governor to the
airport, private residences, the Capitol, and where the Governor
sleeps at night.
Based on the undisputed record before this Court, AHF has
requested records that include information revealing surveillance
techniques, procedures, and the identities of law enforcement
officers. Compelled disclosure of these highly sensitive records not
only compromises law enforcement information made exempt
under the Public Records Act, it also compromises the statutory
mandate of the security detail to provide for and maintain the
security of the Governor. For these reasons, I join the majority in
holding that the trial court erred in concluding that the records
were not exempt under section 119.071(2)(d) and compelling the
EOG to produce public records responsive to AHF’s request. On
remand, the trial court should carefully inspect the public records
produced by the EOG to determine whether any of those records
reveal any information about surveillance techniques, procedures,
or law enforcement personnel. The trial court should also consider
testimony and evidence submitted by the parties before
determining whether the public records, or portions thereof, may
be exempt under section 119.071(2)(d).
_____________________________
Barry Richard and M. Hope Keating of Greenberg Traurig, P.A.,
Tallahassee, for Appellant.
Steven R. Andrews, Brian O. Finnerty, and Ryan J. Andrews of
The Law Offices of Steven R. Andrews, P.A., Tallahassee, for
Appellee.
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