Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc.

Decision Date17 January 1980
Docket NumberNos. 54405,54406,s. 54405
Citation379 So.2d 633
CourtFlorida Supreme Court
PartiesRobert L. SHEVIN, etc., et al., Petitioners/Appellants, v. BYRON, HARLESS, SCHAFFER, REID AND ASSOCIATES, INC., etc., et al., Respondents/Appellees.

Jim Smith, Atty. Gen., Sharyn L. Smith, Sp. Asst. Atty. Gen., and Frank A. Vickory and Richard A. Hixson, Asst. Attys. Gen., Tallahassee, and F. R. Brock of Wildt, Quesada, Brock & Skinner, Jacksonville, for petitioners/appellants.

William H. Adams, III, and Stephen D. Lobrano of Mahoney, Hadlow & Adams, Jacksonville, for respondents/appellees.

Delbridge L. Gibbs and Gerald W. Weedon of Marks, Gray, Conroy & Gibbs, Jacksonville, for Delbridge L. Gibbs, as Attorney for Undisclosed Intervenors, on the Interpretation of § 119.011(1) Florida Statutes; Steven Carta of Smith & Carta, Fort Myers, for News-Press Pub. Co.; Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Counsel, Jacksonville, for City of Jacksonville; C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Florida Society of Newspaper Editors; and George K. Rahdert of Shackleford, Farrior, Stallings & Evans, Tampa, for Times Pub. Co., amici curiae.

ALDERMAN, Justice.

We have for review the decision of the District Court of Appeal, First District, in Byron, Harless, etc., Assoc. v. State, 360 So.2d 83 (Fla. 1st DCA 1978), which has been certified to us as having passed upon a question of great public interest. 1 The question certified is whether a right of privacy exists under either the federal or the state constitution which renders Florida's Public Records Law, chapter 119, Florida Statutes (1975), unconstitutional as applied to the facts of this case. We answer the question in the negative and conclude that under the federal constitution a person's right of disclosural privacy is not as broad as was found by the district court and that under our state constitution no broader right is granted. Having jurisdiction, we also consider that part of the district court's decision which construed section 119.011(1), Florida Statutes (1975). We conclude that some of the papers in question are "public records," as defined by section 119.011(1) and that others are not, and we hold that the broad language of the district court's opinion expands the definition of "public records" beyond that intended by the legislature.

Factual Statement

Byron, Harless, Schaffer, Reid & Associates, Inc., an independent consulting firm composed of psychologists trained in evaluating management personnel, was employed by the Jacksonville Electric Authority, commonly referred to as JEA, to conduct a nationwide search for potential applicants for the position of its managing director. The consultant was to recommend one or more persons qualified for the position. Those recommended, together with others who might apply without the prior recommendation of the consultant, were to be publicly screened by JEA before final selection. JEA's general counsel advised the consultant that only its written report would be a public record and that written notes prepared by the consultant for its own use would not be subject to disclosure.

The consultant contacted numerous individuals in managerial positions in electric utilities across the nation. Those individuals interviewed were uniformly assured that the interview was confidential. At the same time, JEA conducted a public search for applicants.

During its confidential search, the consultant, for its own use, made written notes of information and impressions obtained from the interviews conducted, and it also received resumes and letters from persons possibly interested in applying for the position. These and other papers, accumulated during the course of its search, identified the prospects and recorded their addresses, current positions in the utility field, biographical data, and comments by the prospects on their personalities, personal strengths and weaknesses, aspirations, work and living habits, and families. None of these papers were available to anyone not employed by the consultant. Most of the handwritten notes were destroyed, and most of the written submissions by those interviewed were returned as the search drew to a close.

Prior to the consultant's report to JEA, Schellenberg, a local television executive, asked to examine the consultant's papers relating to its search. His request was refused. Thereupon, Schellenberg and the attorney general applied for a writ of mandamus, alleging that these papers were public records under chapter 119 and, thus, were open to public inspection. Copies of those papers that had not already been destroyed by the consultant were impounded and sealed by the circuit court. Following an evidentiary hearing, the circuit court found the papers to be public records and issued a writ of mandamus.

The consultant appealed to the First District Court of Appeal, where it briefed and orally argued only the nonconstitutional issues of whether it was "acting on behalf of" JEA in the search, whether its handwritten notes constituted "public records," and whether the writ should have issued, in light of its promise of confidentiality to the persons interviewed. Upon examining the papers, the district court became concerned that the persons interviewed, not then before the court, might have a constitutional right of privacy. Deciding that the consultant could not effectively assert the rights of these persons, the district court entered an order summarizing the contents of the papers, omitting names and other identifying information, and inviting the identifiable prospects to intervene under pseudonyms. The order appointed counsel to represent those intervenors who desired to be represented. Additional briefs and oral arguments were received on the privacy claims of the intervenors.

In reaching its decision, the district court said that the 1975 amendment of section 119.011(2) makes it clear that a business entity is "acting on behalf of" a public agency if the services contracted for are an integral part of the agency's chosen process for making a decision on the question at hand. It held that the consultant was "acting on behalf of" JEA and was therefore an "agency" to which the Public Records Law applied. The district court found that the papers made and received by the consultant, despite their form, were public records because they were made and received "in connection with the transaction of official business" which the JEA employed the consultant to perform. The district court also found that the intervenors have a constitutionally protected right of "personhood," which includes the right of disclosural privacy as to the personal information given by them to the consultant under an assurance of confidentiality. Concluding that public disclosure of the consultant's papers would deprive the intervenors of fundamental privacy rights secured by the United States and Florida Constitutions, the district court reversed the circuit court's issuance of the writ of mandamus.

Federal Constitutional Question

Petitioners argue that there is no authority for the district court's creation of a general federal right of personhood and that, even if there is a federal constitutional right of disclosural privacy, the Florida Public Records Law does not unconstitutionally infringe upon any such right when applied to the circumstances of this case. Respondents, on the other hand, contend that there is a distinct constitutional right of disclosural privacy which outweighs any interest of the state in requiring disclosure.

The district court's holding, that a federal right of privacy prevents public disclosure of the consultant's papers, is based on its determination that the Bill of Rights recognizes the fundamental integrity of persons which gives rise to a "privacy of personhood" that cannot be violated by government except to vindicate a compelling state interest. In essence, the district court formulated a general federal right of privacy the core of which is described as the "inviolability of personhood." We find that the district court's conclusion is unsupported by either the decisions of this Court or those of the Supreme Court of the United States.

While there is no right of privacy explicitly enunciated in the Bill of Rights, the Supreme Court has construed the federal constitution to protect certain privacy interests. These protected interests can be said to comprise the federal constitutional right of privacy. This right of privacy cannot be characterized as a general right because its application has been strictly limited. It has been characterized as consisting of three protected interests: an individual's interest in being secure from unwarranted governmental surveillance and intrusion into his private affairs; a person's interest in decisional autonomy on personally intimate matters; and an individual's interest in protecting against the disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The protection of a person's general right of privacy his right to be left alone is left to the law of the individual states. Katz v. United States, 389 U.S. 347, 350-51, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The oldest and most widely understood of these privacy interests protected by the federal constitution is a person's interest in being secure against arbitrary governmental surveillance and intrusion into his private affairs. This privacy interest, basic to our concept of a free society, is rooted in the fourth amendment prohibition against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Katz; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The parameters of this interest have been repeatedly delineated over the years by the Supreme Court, and, as a result, governmental intrusion upon activity safeguarded...

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