MAGGY HURCHALLA v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
EVERGLADES LAW CENTER, INC., MAGGY HURCHALLA,
and DONNA MELZER,
Appellants,
v.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT, a public
corporation of the State of Florida, MARTIN COUNTY, a political
subdivision of the State of Florida, LAKE POINT PHASE I, LLC, a
Florida limited liability company, and LAKE POINT PHASE II, LLC, a
Florida limited liability company,
Appellees.
Nos. 4D18-1220, 4D18-1519 & 4D18-2124
[September 18, 2019]
Consolidated appeal from the Circuit Court for the Nineteenth Judicial
Circuit, Martin County; William L. Roby, Judge; L.T. Case Nos. 43-2017-
CA-001098 and 43-2018-CA-000108.
Marcy I. LaHart of Marcy I. LaHart, P.A., Micanopy, for appellant
Everglades Law Center, Inc.
Virginia P. Sherlock of Littman, Sherlock & Heims, P.A., Stuart, for
appellant Maggy Hurchalla.
Donna Sutter Melzer, Palm City, pro se.
Thomas E. Warner and Dean A. Morande of Carlton Fields Jorden Burt,
P.A., West Palm Beach, for Amicus Curiae First Amendment Foundation,
Inc.
Brian J. Accardo, James W. Sherman, Judith W. Levine and Laura E.
Scala-Olympio of South Florida Water Management District, West Palm
Beach, for appellee South Florida Water Management District.
Meagan L. Logan of Marks Gray, P.A., Jacksonville, and Kansas R.
Gooden of Boyd & Jenerette, P.A., Jacksonville, for Amicus Curiae Florida
Defense Lawyers Association.
Richard Grosso of Richard Grosso, P.A., Davie, for appellants
Everglades Law Center, Inc., and Maggy Hurchalla.
Daniel S. Melzer, Palm City, for appellee Donna Melzer.
CONNER, J.
We address a matter of first impression involving shade meetings 1 and
the public’s interest in protecting government in the sunshine and
mediation communications. Reading applicable provisions of the Florida
Constitution and statutes in pari materia, we conclude that mediation
communications disclosed by a governmental attorney during a shade
meeting are to be redacted from the transcript of the shade meeting when
it becomes a public record.
Everglades Law Center, Inc. (“ELC”), Maggy Hurchalla (“Hurchalla”),
and Donna Sutter Melzer (“Melzer”) (collectively, “Appellants”), appeal
several orders entered by the trial court involving the trial court’s
determination that mediation communications are exempt from disclosure
with reference to the transcript of a shade meeting conducted by the South
Florida Water Management District (“the District”). Appellants also appeal
the trial court’s order denying their motions to dismiss for improper venue.
We affirm without discussion the trial court’s venue ruling. We also affirm
the trial court’s determination that mediation communications are subject
to redaction from the shade meeting transcript and explain our analysis. 2
However, the trial court erred in denying Appellants’ petition for
mandamus to compel the disclosure of the full shade meeting transcript
without conducting an in camera review of the transcript to determine if
1 Meetings held between a governmental board and its attorney pursuant to
section 286.011(8) to discuss settlement and litigation strategy, which are not
open to the public, are commonly referred to as “shade meetings.” Anderson v.
City of St. Pete Beach, 161 So. 3d 548, 551 n.2 (Fla. 2d DCA 2014).
2 Appellants also raise an issue about technical compliance with section
286.011(8), Florida Statutes (2017), in that they had not been provided with a
redacted transcript of the closed meeting (showing compliance as to who was
present during the closed meeting and the time period of the meeting). However,
because Appellants stipulated that the trial court could rule without reviewing
the meeting transcript and because the transcript is neither in the trial court
record nor the appellate record, we do not reach the issue. See Goodwin v. State,
751 So. 2d 537, 544 (Fla. 1999) (“If the error is ‘invited,’ . . . the appellate court
will not consider the error a basis for reversal.”); Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In appellate proceedings the
decision of a trial court has the presumption of correctness and the burden is on
the appellant to demonstrate error.”).
2
redactions were appropriate. Thus, we affirm in part, reverse in part, and
remand the case for further proceedings consistent with this opinion.
Background
Lake Point Phase I, LLC and Lake Point Phase II, LLC (collectively, “Lake
Point”), the District, and Martin County entered into a partnership for an
environmental project. After contract disputes arose, Lake Point brought
suit against the District, Martin County, and Hurchalla, claiming damages
(“the Lake Point Litigation”). During the course of that litigation, the trial
court ordered the parties to attend mediation.
The District filed a certification of authority, naming its attorney, Brian
Accardo, as its representative at mediation, certifying that he “ha[d] full
authority to negotiate on behalf of the District and to recommend
settlement to the District’s Governing Board [(“the Board”)].” Several
mediation sessions were conducted by the mediator with all of the parties.
Eventually, Lake Point and the District developed a settlement agreement
at mediation (“the MSA”).
The District held duly noticed meetings that included closed and
confidential attorney-client sessions in accordance with section
286.011(8), Florida Statutes (2017). At issue in this case is one specific
meeting that occurred on August 23, 2017 (“the Shade Meeting”). An open
meeting immediately preceded the Shade Meeting. When the Board
convened the Shade Meeting, a certified court reporter recorded the entire
closed-door session, as required by statute.
According to the minutes of the public portion of the meeting, only the
Board members and two attorneys representing the District in the Lake
Point Litigation were present during the Shade Meeting. At the conclusion
of the Shade Meeting, the Board immediately returned to an open meeting,
whereupon the chair solicited a motion to “accept or reject the terms of the
settlement,” referring to the discussion during the Shade Meeting. The
Board approved the MSA at that open meeting.
Subsequently, Lake Point and the District entered a joint stipulation
for dismissal of their respective claims against one another with prejudice.
Eventually, Martin County and Lake Point entered into a separate
mediated settlement agreement, resulting in Martin County being
dismissed from the litigation. The litigation between Lake Point and
Hurchalla continued to a jury trial.
Notably, ELC, a nonprofit law firm dedicated to representing the public
3
interest in environmental and land use matters, became interested in the
Lake Point Litigation. ELC strives to enhance governmental transparency
regarding governmental decisions impacting the environment.
After it was dismissed from the litigation, the District filed an action for
declaratory relief, naming ELC, Martin County, Hurchalla, and Lake Point
as defendants. The District alleged that shortly after it approved the MSA,
Appellants made a public records request for the Shade Meeting
transcript. The District requested the trial court enter a declaratory
judgment that it was not required to produce and disclose the Shade
Meeting transcript.
ELC filed its answer and also filed a counterclaim in the form of “a
petition for writ of mandamus to enforce the provisions of Chapter 119,
Florida Statutes.” ELC requested that the trial court enter a writ requiring
the District to produce the full Shade Meeting transcript. Melzer filed a
similar counterclaim seeking disclosure of the full transcript.
At the hearing on ELC’s petition for writ of mandamus, the District
argued that the Shade Meeting transcript was exempt from disclosure
pursuant to section 44.102(3), Florida Statutes (2017), which states: “All
written communications in a mediation proceeding, other than an
executed settlement agreement, shall be exempt from the requirements of
chapter 119.” ELC argued that the statements made during the Shade
Meeting and the transcript were not “written communications” and the
statements were not made in a “mediation proceeding.” At no time during
the proceedings below did Appellants ask the trial court to conduct an in
camera review of the Shade Meeting transcript. The transcript was not
filed in the trial court and is not part of the appellate record.
The trial court entered an order denying ELC’s petition for writ of
mandamus and entering final judgment on ELC’s counterclaim. In its
written order, the trial court noted that “because the parties agreed that
this Court was not required to take evidence, the Court relies on the
representations of counsel,” and found that “as a matter of law, mediation
communications reflected in the transcripts are exempt from disclosure
under Chapter 119.”
Based on Appellants’ stipulation that the trial court’s ruling as to the
petition for mandamus was determinative of the declaratory judgment
actions, the trial court entered final judgment in favor of the District on all
claims and counterclaims filed by Appellants. The Appellants gave notice
of appeal.
4
Appellate Analysis
In support of their contention that they are entitled to the full transcript
of the Shade Meeting, Appellants rely on section 286.011(8), Florida
Statutes (2017). Section 286.011(8) provides for a limited exception to the
public meeting requirements of Florida’s Sunshine Law. Appellants
contend that section 286.011(8) does not contain an explicit exception for
mediation communications. Appellants further contend that there is no
provision of chapter 119, Florida’s Public Records Act, which permanently
exempts the disclosure of the Shade Meeting transcript. Additionally,
Appellants argue that the trial court erroneously interpreted statutes
pertaining to mediation to conclude that there is a public records
exemption from disclosure of the Shade Meeting transcript. In Appellants’
view, the trial court impermissibly expanded the temporary delay for the
public to have access to the full Shade Meeting transcript, as contemplated
by section 286.011(8), into a permanent delay.
The District contends that the statutory provisions protecting the
confidentiality of mediation communications are not at odds with the
provisions of section 286.011(8). The District relies primarily on section
44.102(3), Florida Statutes, in arguing that the trial court properly
determined that mediation communications are not to be disclosed to the
public in a Shade Meeting transcript. The trial court relied upon section
44.102(3), as well as section 44.405(1), Florida Statutes, in denying the
relief sought by Appellants.
Also important to the analysis are the provisions of article I, section 24
of the Florida Constitution. We proceed with a discussion of the pertinent
constitutional and statutory provisions.
Florida’s Sunshine Law and Section 286.011(8)
“Originally codified by statute, the Sunshine Law . . . became part of
the Florida Constitution.” Monroe Cty. v. Pigeon Key Historical Park, Inc.,
647 So. 2d 857, 860 (Fla. 3d DCA 1994). In November 1992, the Florida
Constitution was amended to add article I, section 24. The constitutional
amendment “elevated the public’s right to government in the sunshine to
constitutional proportions.” Zorc v. City of Vero Beach, 722 So. 2d 891,
896 (Fla. 4th DCA 1998). Article I, section 24(b), states:
All meetings of any collegial public body of the executive
branch of state government or of any collegial public body of
a county, municipality, school district, or special district, at
which official acts are to be taken or at which public business
5
of such body is to be transacted or discussed, shall be open
and noticed to the public and meetings of the legislature shall
be open and noticed as provided in Article III, Section 4(e),
except with respect to meetings exempted pursuant to this
section or specifically closed by this Constitution.
Art. I, § 24(b), Fla. Const.
Especially important to our analysis, article I, section 24(d) states that
“[a]ll laws that are in effect on July 1, 1993 that limit public access to
records or meetings shall remain in force, and such laws apply to records
of the legislative and judicial branches, until they are repealed.” Art. I, §
24(d), Fla. Const.
Section 286.011, commonly referred to as the “Sunshine Law,” is the
primary statute that implements article I, section 24(b). Thus, section
286.011(1), requires:
All meetings of any board or commission of any state agency
or authority or of any agency or authority of any county,
municipal corporation, or political subdivision, except as
otherwise provided in the Constitution, . . . at which official
acts are to be taken are declared to be public meetings open
to the public at all times, and no resolution, rule, or formal
action shall be considered binding except as taken or made at
such meeting.
§ 286.011(1), Fla. Stat. (2017).
“Because section 286.011 ‘was enacted in the public interest to protect
the public from “closed door” politics . . . the law must be broadly
construed to effect its remedial and protective purpose.’” Sarasota Citizens
for Responsible Gov’t v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010)
(alteration in original) (quoting Wood v. Marston, 442 So. 2d 934, 938 (Fla.
1983)). Our supreme court has also stated that “[t]he statute should be
construed so as to frustrate all evasive devices.” Town of Palm Beach v.
Gradison, 296 So. 2d 473, 477 (Fla. 1974). Because the Sunshine Law
must be liberally construed in favor of open government, “exemptions
should be narrowly construed.” Brown v. Denton, 152 So. 3d 8, 11 (Fla.
1st DCA 2014).
Section 286.011(8) provides an exemption to the open meeting
requirement of the Sunshine Law under certain conditions. See Zorc, 722
So. 2d at 896. Section 286.011(8) states:
6
(8) Notwithstanding the provisions of subsection (1), any
board or commission of any state agency or authority or any
agency or authority of any county, municipal corporation, or
political subdivision, and the chief administrative or executive
officer of the governmental entity, may meet in private with
the entity’s attorney to discuss pending litigation to which the
entity is presently a party before a court or administrative
agency, provided that the following conditions are met:
(a) The entity’s attorney shall advise the entity at a public
meeting that he or she desires advice concerning the litigation.
(b) The subject matter of the meeting shall be confined to
settlement negotiations or strategy sessions related to litigation
expenditures.
(c) The entire session shall be recorded by a certified court
reporter. The reporter shall record the times of
commencement and termination of the session, all discussion
and proceedings, the names of all persons present at any time,
and the names of all persons speaking. No portion of the
session shall be off the record. The court reporter’s notes shall
be fully transcribed and filed with the entity’s clerk within a
reasonable time after the meeting.
(d) The entity shall give reasonable public notice of the time
and date of the attorney-client session and the names of
persons who will be attending the session. The session shall
commence at an open meeting at which the persons chairing
the meeting shall announce the commencement and
estimated length of the attorney-client session and the names
of the persons attending. At the conclusion of the attorney-
client session, the meeting shall be reopened, and the person
chairing the meeting shall announce the termination of the
session.
(e) The transcript shall be made part of the public record upon
conclusion of the litigation.
§ 286.011(8), Fla. Stat. (emphases added). As the statute provides, the
discussions during the closed meeting are confined to settlement
negotiations or strategy sessions related to litigation expenditures. Id.
7
The subsection (8)(e) requirement that transcripts of shade meetings
“shall be made part of the public record” is a focal point of our analysis.
We deem it important to note that section 286.011(8)(e) provides for a
significant delay between a shade meeting and when the transcript of the
meeting becomes a public record. The language of section 286.011(8)(e)
leads to our discussion of the Public Records Act.
Florida Public Records Act – Chapter 119, Florida Statutes
Similar to the Sunshine Law, the Public Records Act was added to the
Florida Constitution, and is also contained in article I, section 24 as
subsection (a), which states:
(a) Every person has the right to inspect or copy any public
record made or received in connection with the official
business of any public body, officer, or employee of the state,
or persons acting on their behalf, except with respect to
records exempted pursuant to this section or specifically made
confidential by this Constitution.
Art. I, § 24(a), Fla. Const. (emphasis added). The constitutional provision
regarding open government and public records has been primarily
implemented by chapter 119, Florida Statutes.
As stated early on in chapter 119, “[i]t is the policy of this state that all
state, county, and municipal records are open for personal inspection and
copying by any person. Providing access to public records is a duty of
each agency.” § 119.01(1), Fla. Stat. (2017). Consistent with this policy,
“the purpose of the Public Records Act ‘is to open public records to allow
Florida’s citizens to discover the actions of their government.’” Bent v.
State, 46 So. 3d 1047, 1049 (Fla. 4th DCA 2010) (quoting Christy v. Palm
Beach Cty. Sheriff’s Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997)).
Also similar to the Sunshine Law, “the public records law is to be
construed ‘liberally in favor of the state’s policy of open government.’”
Morris Publ’g Grp., LLC v. Fla. Dep’t of Educ., 133 So. 3d 957, 960 (Fla. 1st
DCA 2013) (quoting Nat’l Collegiate Athletic Ass’n v. Associated Press, 18
So. 3d 1201, 1206 (Fla. 1st DCA 2009)). “If there is any doubt as to
whether a matter is a public record subject to disclosure, the doubt is to
be resolved in favor of disclosure.” Id. Important to our analysis is that
the Public Records Act, similar to the Sunshine Law, is subject to the
provisions of article I, section 24(d), which provides exemptions existing
prior to July 1, 1993, that remain in place until repealed. Art. I, §§ 24(c),
(d), Fla. Const.
8
Mediation Communication Confidentiality Exemption – Sections
44.102(3) and 44.405(1)
The trial court relied on sections 44.405(1) and 44.102(3) as the
statutory bases for exempting the Shade Meeting transcript from
disclosure. Section 44.405(1) states: “(1) Except as provided in this
section, all mediation communications shall be confidential. A mediation
participant shall not disclose a mediation communication to a person other
than another mediation participant or a participant’s counsel.” § 44.405(1),
Fla. Stat. (2017) (emphasis added). Section 44.102(3) states: “All written
communications in a mediation proceeding, other than an executed
settlement agreement, shall be exempt from the requirements of chapter
119.” § 44.102(3), Fla. Stat. (2017) (emphasis added). Section 44.102(3)
is a particularly key provision, since it expressly provides an exemption
from chapter 119.
A transcript is a memorialization of oral communications; once
memorialized, the exchange of ideas, information, and assertions become
a written communication. Thus, to the extent the shade meeting
transcript memorializes mediation communications, such portions of the
transcript constitute a mediation communication within the meaning of
sections 44.403(1), 44.102(3), and 44.405(1).
The Trial Court Properly Harmonized Statutory Provisions.
Appellants argue that the statutory provisions protecting the
confidentiality of mediation communications do not create an exemption
to the disclosure of the full Shade Meeting transcript because there is no
exemption under section 286.011 regarding mediation. However, that
argument ignores the language of the Florida Constitution in article I,
section 24(d), which authorizes exemptions from open public meetings and
access to public records by statutory exemptions existing before July 1,
1993. 3 More specifically, the argument ignores the status of the law,
according to the chapter laws history under section 44.102. In 1990, the
latest revision prior to 1993, the legislature renumbered section 44.302 as
section 44.102, Florida Statutes. See Ch. 90-188, § 3, Laws of Fla. As
amended by chapter law 90-188, section 44.102(3) provided:
3We note that the hearing transcript on Appellants’ petition reflects that the trial
court referred to article I, section 24(c), which provides for exemptions to the
Sunshine Law and the Public Records Act created after July 1, 1993.
Nonetheless, the trial court correctly understood that constitutional provisions
control the analysis.
9
Each party involved in a court-ordered mediation proceeding
has a privilege to refuse to disclose, and to prevent any person
present at the proceeding from disclosing, communications
made during such proceeding. Notwithstanding the provisions
of s. 119.14, all oral or written communications in a mediation
proceeding, other than an executed settlement agreement,
shall be exempt from the requirements of chapter 119 and shall
be confidential and inadmissible as evidence in any
subsequent legal proceeding, unless all parties agree
otherwise.
§ 44.102(3), Fla. Stat. (1990) (emphases added). What is critically
significant is that, although section 44.102(3) has been substantially
rewritten since 1990, the core provision (“[a]ll written communications in a
mediation proceeding, other than an executed settlement agreement, shall
be exempt from the requirements of chapter 119”) has not been repealed.
Thus, we conclude, as a matter of interpreting the constitutional provision
for government in the sunshine and the statutes implementing it, the
voters and the legislature intended mediation communications in written
form to be exempt from public disclosure.
Additionally, we interpret the provisions of the Mediation
Confidentiality and Privilege Act, adopted in 2004, to implement the
language in the 1990 version of section 44.102(3) that “[e]ach party
involved in a court-ordered mediation proceeding has a privilege to refuse
to disclose, and to prevent any person present at the proceeding from
disclosing, communications made during such proceeding.” § 44.102(3),
Fla. Stat. (1990) (emphasis added).
Based on the language of article I, section 24(d), we conclude the trial
court properly determined that sections 44.102(3) and 44.405(1) are not
inconsistent with the provisions of section 286.011(8). As we said in
Barnett v. Antonacci, 122 So. 3d 400, 404 (2013),
When reviewing constitutional provisions, a court “‘follows
principles parallel to those of statutory interpretation.’” Lewis
v. Leon Cnty., 73 So. 3d 151, 153 (Fla. 2011) (quoting Zingale
v. Powell, 885 So. 2d 277, 282 (Fla. 2004)). First, Florida
courts “must examine the actual language used in the
constitution.” Id. (citing Crist v. Fla. Ass’n of Criminal Defense
Lawyers, Inc., 978 So. 2d 134, 140 (Fla. 2008); Fla. Dep’t of
Rev. v. City of Gainesville, 918 So. 2d 250, 256 (Fla. 2005)).
“If the constitutional language is clear, unambiguous, and
addresses the matter at issue, it must be enforced as written,
10
and courts do not turn to rules of constitutional
construction.” Ford v. Browning, 992 So. 2d 132, 136 (Fla.
2008) (citing Fla. Soc’y of Ophthalmology v. Fla. Optometric
Ass’n, 489 So. 2d 1118, 1119 (Fla. 1986)).
“If the explicit language is ambiguous or does not address the
exact issue before the court, the court must endeavor to
construe the constitutional provision in a manner consistent
with the intent of the framers and the voters.” Id. (citing Crist,
978 So. 2d at 140). “It is a fundamental rule of construction
that, if possible, amendments to the Constitution should be
construed so as to harmonize with other constitutional
provisions. . . .” State v. Div. of Bond Fin. of Dep’t of Gen.
Servs., 278 So. 2d 614, 617 (Fla. 1973).
Id. (emphasis added). Moreover, as noted by our supreme court in In re
Advisory Opinion of the Governor, Appointment of County Commissioners,
Dade County, 313 So. 2d 697 (Fla. 1975):
This Court has consistently held that the Constitution shall
be construed in such a manner as to give effect to every clause
and every part thereof. Every provision is inserted for a
definite purpose and all sections and provisions of the
Constitution must be construed in par[i] materia.
Additionally, our supreme court has held that
[t]he fundamental object to be sought in construing a
constitutional provision is to ascertain the intent of the
framers and the provision must be construed or interpreted in
such manner as to fulfill the intent of the people, never to
defeat it. Such a provision must never be construed in such
manner as to make it possible for the will of the people to be
frustrated or denied.
Crist v. Fla. Ass’n of Criminal Defense Lawyers, Inc., 978 So. 2d 134, 140
(Fla. 2008) (quoting Caribbean Conservation Corp. v. Fla. Fish & Wildlife
Conservation Comm’n, 838 So. 2d 492, 501 (Fla. 2003)) (emphasis
omitted). The court has also said that a constitutional provision should
be “construed as a whole in order to ascertain the general purpose and
meaning of each part; each subsection, sentence, and clause must be read
in light of the others to form a congruous whole so as not to render any
language superfluous.” Dep’t of Envtl. Prot. v. Millender, 666 So. 2d 882,
886 (Fla. 1996).
11
Because section 286.011(8) was passed after the voters approved article
I, section 24(d), and several years after statutes were enacted protecting
the confidentiality of mediation communications,
[i]t is axiomatic, [] that the courts must presume that statutes
are passed with knowledge of prior existing statutes and
where possible, it is the duty of the courts to favor a
construction that gives a field of operation to all rather than
construe one statute as being meaningless or repealed by
implication. See Oldham v. Rooks, 361 So. 2d 140, 143 (Fla.
1978); Woodgate Dev. Corp. v. Hamilton Invest. Trust, 351 So.
2d 14, 16 (Fla. 1977). Therefore, whenever possible, courts
must attempt to harmonize and reconcile two different
statutes to preserve the force and effect of each. See Unruh v.
State, 669 So. 2d 242, 245 (Fla. 1996) (stating that “[t]his
follows the general rule that the legislature does not intend ‘to
enact purposeless and therefore useless legislation.’”) (citation
omitted). There must be hopeless inconsistency before rules
of construction are applied to defeat the plain language of one
of the statutes. See Starr Tyme, Inc. v. Cohen, 659 So. 2d
1064, 1068 (Fla. 1995).
Agency for Health Care Admin. v. In re Estate of Johnson, 743 So. 2d 83,
86-87 (Fla. 3d DCA 1999).
Noting the principle that constitutional and statutory provisions must
be read in pari materia in a way to harmonize the provisions of each, we
point out that sections 286.011(8)(c) and (e), relating to the creation of a
shade meeting transcript, must be considered together with section
286.0105, Florida Statutes (2017), which provides:
Each board, commission, or agency of this state or of any
political subdivision thereof shall include in the notice of any
meeting or hearing, if notice of the meeting or hearing is
required, of such board, commission, or agency,
conspicuously on such notice, the advice that, if a person
decides to appeal any decision made by the board, agency, or
commission with respect to any matter considered at such
meeting or hearing, he or she will need a record of the
proceedings, and that, for such purpose, he or she may need to
ensure that a verbatim record of the proceedings is made,
which record includes the testimony and evidence upon which
the appeal is to be based.
12
§ 286.0105, Fla. Stat. (emphasis added). Section 286.0105 has been in
effect since 1988, indicating that the legislature understood the
importance of a verbatim record for appellate review of governmental board
decisions when it adopted the transcript requirement for shade meetings.
We also note that section 286.011(8) was not passed until after the
voters approved article I, section 24. It is significant that the statutory
provisions protecting the confidentiality of mediation communications
were in effect for several years before the voters approved article I, section
24. In contrast, section 286.011(8) became law on May 15, 1993, but was
not effective until June 30, 1993, one day before the grandfathered
exemptions under article I, section 24(d) closed. See Ch. 93-232, § 4, Laws
of Fla.
Appellants contend that Attorney General Opinion 96-75 (“AGO 96-75”)
is persuasive authority for resolution of this appeal. AGO 96-75 deals with
the issue of protecting the confidentiality and privacy of an individual’s
medical record in the context of a workman’s compensation claim. Op.
Att’y Gen. Fla. 96-75 (1996). Appellants point to the language in AGO 96-
75 that
[t]he participants in such discussions [during a shade
meeting] under these circumstances, therefore, should take
precautions to protect the confidentiality of an employee’s
medical reports and condition such that when the transcript
of the closed-door meeting is made a part of the public record,
the privacy of the employee will not be breached.
Id. Recognizing that it is problematic for a governing board to make a
decision as to whether to accept, offer, or reject a settlement proposal
without having information contained in mediation communications,
Appellants argued at oral argument that the appropriate solution would
be for the government’s attorney to speak privately and individually with
each board member about mediation communications prior to the shade
meeting.
However, Appellant’s attempted application of AGO 96-75 as offering a
solution is simply untenable. Aside from the practical problem of how to
assure each board member hears the same information, such an approach
deprives the board of the collective benefit of exchanging ideas and asking
questions about mediation communications that build upon questions
asked by other board members, in order to reach a collaborative decision.
Additionally, such an approach inappropriately sidesteps the requirement
13
to record important communications that would be essential to the
collaborative process when a governing board decides whether to settle a
case. More importantly, AGO 96-75 addresses the protection of
confidentiality and privacy of an individual’s medical record in the context
of a workman’s compensation claim. Op. Att’y Gen. Fla. 96-75 (1996). It
does not address the confidentiality of mediation communications
involving information regarding multiple persons. Id.
Error by Failing to Conduct an In Camera Review
Even though the trial court correctly harmonized the statutory
provisions protecting the confidentiality of mediation communications
with the requirements of section 286.011(8), the trial court was led astray
by the parties’ agreement that an in camera review of the transcript was
not needed.
When, as in the instant case, certain statutory exemptions are
claimed by the party against whom the public records request
has been filed or when doubt exists as to whether a particular
document must be disclosed, the proper procedure is to
furnish the document to the trial judge for an in camera
inspection.
Walton v. Dugger, 634 So. 2d 1059, 1061-62 (Fla. 1993). As stated by the
Second District in Gonzalez v. State, 240 So. 3d 99 (Fla. 2d DCA 2018),
In camera review affords the trial judge an opportunity to
“properly determine if the document is, in fact, subject to a
public records disclosure.” [] That is, without conducting an
in camera inspection of the requested [compact discs], the
circuit court could not conclude that their contents are
exempt from disclosure under section 119.071(3)(a)(2) or
section 281.301; nor could it determine whether redaction
was possible.
Id. at 101.
In the context of attorney-client privilege, we have held that when the
privilege is asserted, the party claiming the privilege is entitled to an in
camera review of the documents by the trial court prior to disclosure.
American Airlines, Inc. v. Cimino, 44 Fla. L. Weekly D1495 (Fla. 4th DCA
June 12, 2019); Alliant Ins. Services, Inc. v. Riemer Ins. Group, 22 So. 3d
779, 781 (Fla. 4th DCA 2009). Confidentiality is the core value protected
by both the attorney-client privilege and the statutes protecting mediation
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communications. Given the importance of protecting the Sunshine Law,
the Public Records Act, and mediation confidentiality, we hold that it is
fundamental error for a trial court to rule on an exemption to public access
to the full shade meeting transcript by redacting mediation
communications without conducting an in camera review of the transcript
to determine if the claimed exemption applies.
Conclusion
We conclude that the trial court properly applied constitutional and
statutory provisions and correctly ruled that the statutory mediation
communication exemption under sections 44.102(3) and 44.405(1)
precluded the disclosure of the full Shade Meeting transcript under review.
We further affirm the trial court’s ruling that the exemption is permanent
and not temporary. However, the trial court erred in denying the petition
for writ of mandamus without conducting an in camera review of the
transcript to determine if redactions of claimed mediation communications
are appropriate. Thus, we reverse the final judgment and remand for the
trial court to conduct the required in camera review of the full Shade
Meeting transcript to assess whether redactions of mediation
communications proposed by the District have been appropriately applied.
Affirmed in part, reversed in part, and remanded with instructions.
DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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