Byron, Harless, Schaffer, Reid and Associates, Inc. v. State ex rel. Schellenberg

• Decision Date: 01 June 1978
• Docket Number: No. DD-30,DD-30
• Citation: 360 So.2d 83
• Parties: 3 Media L. Rep. 2425 BYRON, HARLESS, SCHAFFER, REID AND ASSOCIATES, INC., a Florida Corporation, Appellant, John Doe, Intervenor, v. STATE of Florida ex rel. Robert W. SCHELLENBERG and Robert L. Shevin, Attorney General of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 83

360 So.2d 83

3 Media L. Rep. 2425

BYRON, HARLESS, SCHAFFER, REID AND ASSOCIATES, INC., a Florida Corporation, Appellant, John Doe, Intervenor, v. STATE of Florida ex rel. Robert W. SCHELLENBERG and Robert L. Shevin, Attorney General of the State of Florida, Appellees.

No. DD-30.

District Court of Appeal of Florida,First District.

June 1, 1978.

William H. Adams, III, Thomas M. Baumer, and Stephen D. Lobrano, Jacksonville, for appellant.

Delbridge L. Gibbs, Jacksonville, for intervenor Doe and as amicus curiae.

Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., William C. Sherrill, Jr., Sharyn L. Smith, Asst. Attys. Gen., Tallahassee, and Frederick R. Brock, of Wildt, Quesada, Brock & Skinner, Jacksonville, for appellees.

SMITH, Judge.

This case presents constitutional and other issues concerning Florida's public records law, Sections 119.01, et seq., Florida Statutes (1977). In March 1976, Jacksonville Electric Authority ("JEA"), a public agency, employed Byron, Harless, Schaffer, Reid & Associates, Inc. ("the consultant"), an independent firm of psychologists skilled in evaluating management, to search nationwide for potential applicants for the open postition of JEA managing director. The consultant's Dr. Reid and other personnel, promising confidentiality, interviewed a number of prospects, made notes of their interviews and impressions, and received approximately 20 resumes and 40 letters. Most of the material was discarded as prospects withdrew from consideration, but a small stack of handwritten and typewritten material remained in the consultant's possession on March 24, 1976, when appellee Schellenberg, a Jacksonville television executive requested an opportunity to inspect the consultant's papers. The consultant refused. On the application of appellees Schellenberg and the Attorney General, the circuit court issued a writ of mandamus to compel production and public inspection of the consultant's papers as public records. Section 119.07. However, the court impounded and sealed the papers pending appeal because "significant damage may result" from disclosure. Section 119.11. The consultant appealed and we received briefs and oral argument on the nonconstitutional issues.

We then examined the consultant's papers and found that they identify several prospects and record their addresses, the positions they then held in utilities elsewhere in the country, biographical data, and comments by the prospects on their personalities, personal strengths and weaknesses, aspirations, work and living habits, and families. Recognizing the stake in this proceeding of persons not then before the court, and sensing their potential claim of a Constitution-based right of privacy in the information recorded in the papers, ¹ we summarized the contents of the consultant's papers, omitting names and other identifying information, in an order entered and made public July 1, 1977. Copies of the consultant's papers concerning particular prospects were mailed to those whose addresses were known. We later opened the file to counsel of record, who have honored our order that no identifying information be revealed to others. We invited the identifiable prospects to intervene under pseudonyms. Intervenor Doe appeared through Delbridge L. Gibbs, Esquire, who accepted our appointment to appear for Doe and as amicus in the interest of other prospects who did not intervene. Additional briefs and reargument were received on the privacy claims of Doe and the amicus. We are indebted to lawyer Gibbs for his service and to all counsel for their first-rate briefs and arguments.

The Attorney General and appellee Schellenberg have presented reasoned arguments against Constitution-based privacy claims of the nature asserted here. Nevertheless, after examining the consultant's papers for the first time shortly before reargument, Assistant Attorney General Smith suggested in behalf of appellees, at the close of argument, that these particular papers ought never to have been prepared and now should be destroyed, returned, or otherwise withheld from public disclosure. We do not consider that that suggestion voiced by one whose advocacy of free public access to the records of public business is firmly established moots the case or deprives it of essential adversariness. ² The suggestion, though obviously deliberated, was in the nature of a cri de coeur, for appellees neither acquiesced in the intervenor's constitutional claim nor suggested any other rationale for suppressing the papers except the possibility of prohibiting public agencies from collecting "psychological" data in employment interviews. That suggestion, for reasons stated below, we cannot accept. Appellees' written submissions after the argument resumed the adversary position taken before. At any rate, appellees cannot be held to have waived any right other members of the public may have to inspect the consultant's papers as public records. All parties urge, and we agree, that the issues here require a decision. Ervin v. Capital Weekly Post, Inc., 97 So.2d 464, 466 (Fla.1957). ³

The issues are (a) whether in its research for potential applicants to JEA the consultant was "acting on behalf of" JEA and so was subject to Chapter 119; (b) whether these particular papers are "public records" notwithstanding their informality and their exclusive use to aid the consultant's oral discussion of prospects; and (c) whether intervenor Doe and the other subjects have a Constitution-based right that the papers, or some of their contents, not be disclosed publicly.

I. The consultant was "acting on behalf of" JEA

JEA agreed to pay the consultant $75 per hour up to $20,000 to conduct "an executive search" for one or more qualified candidates for the highly responsible and well-paid position of JEA managing director. Both the consultant and JEA were persuaded that the success of such a search depends on assuring those interviewed that the fact of the interview and the information given by the prospect would be held in confidence. JEA and the consultant therefore agreed that the consultant would search confidentially for prospective candidates; that the identities of those interviewed by the consultant, and the resulting information, would be kept confidential by the consultant until one or more of the best qualified prospects consented to become formal candidates; that the consultant would submit a final written report on the candidates, whose identity and biographical information would then become public; and that JEA would finally make its selection in full public view. Jacksonville's general counsel advised the consultant that any notes prepared by the consultant for the "exclusive use and eyes" of its own personnel would not be public records subject to disclosure under Section 119.07. JEA's purpose was to permit potential candidates, who typically were employed in positions of high responsibility elsewhere, to talk freely with the consultant without jeopardizing their present positions. The evidence shows that many prospects spoke to the consultant of "dire consequences" to their careers should their conversations with the consultant be made public. Some took elaborate measures, before talking, to assure themselves of the consultant's identity and reliability.

Conceptually, therefore, the consultant and JEA were to perform separate roles, the consultant searching for and identifying qualified potential candidates, and JEA publicly selecting from among the candidates. The arrangement thus sought to preserve a distinction in roles this court recognized in State ex rel. Tindel v. Sharp, 300 So.2d 750 (Fla. 1st DCA 1974), cert. denied, 310 So.2d 745 (Fla.1975), holding that the written work product of an educational consultant, employed by a school board to assist in the search for a new superintendent, was the consultant's "private property" and was not subject to public scrutiny if not delivered to the school board. At the time of Tindel, the disclosure requirement of the public records act applied only to public agencies, defined as

. . . any state, county or municipal officer, department, division, board, bureau, commission or other separate unit of government created or established by law. (Section 119.011(2), Florida Statutes (1973).)

By Chapter 75-225, Section 3, Laws of Florida, Section 119.011(2) was amended to extend the definition of "agency" to include "any . . . business entity acting on behalf of any public agency." On supplemental briefs which we requested, we have explored the possibility that the 1975 act should be read narrowly to embrace the records of only those private contractors to whom the public agency has delegated a significant part of the agency's power of decision on the public question at hand. Were that the proper construction of Section 119.011(2), it would be necessary to consider whether the consultant and JEA preserved in practice the conceptual distinction between their respective roles of developing prospects and acting on candidates. ⁴ But the text of the 1975 amendment and its legislative history made clear that the legislature did not intend to recognize such a distinction. Rather, the legislative purpose was to extend the reach of Chapter 119 to those whom Tindel held were not reached by the law as it existed in 1974. A business entity such as the consultant must be regarded as "acting on behalf of" the public agency if the services contracted for are an integral part of the agency's chosen process for a decision on the question at hand. See Town of Palm Beach v. Gradison, 296 So.2d 473, 476-77 (Fla.1974). Because the consultant was employed to perform and did perform a preliminary search and inquiry function which JEA thought necessary or desirable for its proper decision, the consultant was "acting on behalf of" JEA and was therefore an "agency" to which the public records law applied.

II. The consultant's notes are ...