Alterra Healthcare Corporation v. Estate of Shelley

• Decision Date: 12 September 2002
• Docket Number: No. SC01-709.,SC01-709.
• Citation: 827 So.2d 936
• Parties: ALTERRA HEALTHCARE CORPORATION, etc., et al., Petitioners, v. ESTATE OF Francis SHELLEY, etc., Respondent.
• Court: Florida Supreme Court

827 So.2d 936

ALTERRA HEALTHCARE CORPORATION, etc., et al., Petitioners, v. ESTATE OF Francis SHELLEY, etc., Respondent.

No. SC01-709.

Supreme Court of Florida.

September 12, 2002.

Marie A. Borland and Donna J. Fudge of Hill, Ward & Henderson, P.A., Tampa, FL, for Petitioners.

Camille Godwin and Kenneth L. Connor of Wilkes & McHugh, P.A., Tallahassee, FL, for Respondent.

Scott Mager and Gary S. Gaffney of Mager & Associates, P.A., Fort Lauderdale, Florida; and Quintairos, McCumber, Prieto & Wood, P.A., Miami, FL, for Beverly Enterprises-Florida, Inc., Amicus Curiae.

LEWIS, J.

We have for review Alterra Health Care Corp. v. Estate of Shelley, 779 So.2d 635 (Fla. 1st DCA 2001), which expressly and directly conflicts with the opinion in Beverly Enterprises-Florida, Inc. v. Deutsch, 765 So.2d 778 (Fla. 5th DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

MATERIAL FACTS

The executor of the Estate of Frances Shelley filed an action against Alterra Health Care Corporation (a/k/a Alternative Living Services, Inc., d/b/a Sterling House of Tallahassee) and Sterling House Corporation (d/b/a Sterling House of Tallahassee) (collectively "Sterling House"), an assisted living facility, alleging negligence, breach of statutory rights, and wrongful death. The decedent, Mrs. Shelley, legally blind and a person over sixty years of age who suffered infirmities to the extent that her ability to provide for her own care and protection was impaired, was a resident of Sterling House from April 1998 until August 10, 1999. The executor alleged that, during the evening or early morning hours of August 9 or 10, 1999, Mrs. Shelley caught her leg in the footboard of her bed and was not found by Sterling House staff until six to eight hours later, when she was discovered hanging from the footboard upside down. It was alleged that it was known by the staff that Mrs. Shelley had an unsteady gait, was at risk for falls, and was incontinent, requiring regular, periodic observation. The executor alleged that, during the course of the six- to eight-hour period, Mrs. Shelley suffered trauma to her left leg, which ultimately required surgery resulting in the amputation of Mrs. Shelley's leg above the knee. The executor asserted, among many allegations, that Sterling House did not employ or maintain sufficient staff (particularly during evening shifts) to properly supervise and assist its residents; that it failed to properly train staff; and that it improperly retained staff. The executor further alleged that the staff at Sterling House failed to check on Mrs. Shelley, failed to provide her with access to adequate and appropriate health care, protective, and support services, and failed to protect her from foreseeable harm.

During the course of discovery, the executor requested Sterling House to produce certain documentation pertaining to each employee who provided any care or service to Mrs. Shelley while she resided at the facility.¹ While the executor acknowledged that most of the information sought could likely be found within an employee's personnel file, he asserted that he did not seek production of allegedly confidential materials, and agreed to redaction of purely private and confidential information such as home telephone numbers and social security numbers from the employee documentation. Sterling House objected to the request, in part, on the basis that it violated the employees' constitutional rights to privacy.

The executor moved to compel the production of the requested material, arguing that the information was relevant because it would help him determine (i) whether the employees were qualified; (ii) the extent of Sterling House's knowledge of its employees' qualifications based upon any disciplinary information in their files; and (iii) whether the employees were certified or licensed. He also argued that, because Sterling House might seek to impeach its former employees who were witnesses in the case with information from their personnel files, he was entitled to review the documentation from which such impeachment could be drawn to "weigh [such employees'] credibility." Finally, the executor argued that the employee information might also contain information revealing possible employee concerns regarding the operation of the facility, and was therefore relevant to the issue of the facility's notice of such concerns.

At the hearing on the executor's motion to compel, Sterling House objected to the motion on the basis that the documentation the executor was seeking contained information protected from disclosure under the privacy provision of the Florida Constitution. See art. I, § 23, Fla. Const. Sterling House also argued that the executor had the burden of demonstrating a need for the documentation which it unilaterally classified as confidential, which outweighed the employees' privacy rights. The trial court granted the motion to compel and disagreed with Sterling House that the executor was seeking documentation that would be classified as confidential under the circumstances.

Sterling House then filed a petition for writ of certiorari to the First District Court of Appeal, seeking an order quashing that portion of the trial court's order which compelled the production of the materials requested. The First District denied the petition for writ of certiorari on the basis that it was bound by its decision in North Florida Regional Hospital, Inc. v. Douglas, 454 So.2d 759 (Fla. 1st DCA 1984), to hold that Sterling House did not have standing to raise the privacy rights of its employees. Alterra Health Care Corp., 779 So.2d at 636. However, the First District acknowledged and certified conflict with Beverly Enterprises-Florida, Inc. v. Deutsch, 765 So.2d 778 (Fla. 5th DCA 2000), in which the Fifth District had held that an employer had standing there to assert the privacy rights of its employees, and had certified conflict with Douglas.² This timely petition for review followed.³

PRIVACY RIGHT IN NONPUBLIC EMPLOYMENT RECORDS

The issue addressed here is whether an employer that is not subject to the Public Records Act⁴ has standing under Florida law to challenge the disclosure of nonparty personnel records pursuant to court-ordered discovery⁵ by asserting that information contained therein is private.⁶ This Court has acknowledged that the Florida Constitution contains, in article I, section 23, a strong right of privacy provision. See Shaktman v. State 553 So.2d 148 (Fla.1989)

. In Shaktman, the Court reasoned that the enactment of this provision "ensures that individuals are able `to determine for themselves when, how and to what extent information about them is communicated to others.'" Id. at 150 (quoting from Alan F. Westin, Privacy and Freedom 7 (1967)). There, we spoke of a "zone of privacy into which not even government may intrude without invitation or consent," elaborating:

Because this power is exercised in varying degrees by differing individuals, the parameters of an individual's privacy can be dictated only by that individual. The central concern is the inviolability of one's own thought, person, and personal action. The inviolability of that right assures its preeminence over `majoritarian sentiment' and thus cannot be universally defined by consensus.

Shaktman, 553 So.2d at 150-51. Such privacy right may, under certain circumstances, extend to personal information contained in nonpublic employee personnel files.

EMPLOYERS' JUS TERTII STANDING TO ASSERT EMPLOYEE RIGHTS

Nonetheless, even where a constitutional right to privacy is implicated, that right is a personal one, inuring solely to individuals. Cf. Parnell v. St. Johns County, 603 So.2d 56, 57 (Fla. 5th DCA 1992)

(holding that the petitioner had the right not to have her state court cause of action asserting an individual right to privacy claim stayed pending a federal action brought by her employer challenging the same nudity ordinance, observing that the petitioner had "raised an important state constitutional issue which pertains to her and not to her employer, because the right to privacy extends only to natural persons"). Under traditional jus tertii jurisprudence, "In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties." Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). However, the United States Supreme Court has recognized certain limited exceptions to this general rule:

We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: The litigant must have suffered an "injury in fact," thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute, [Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)]; the litigant must have a close relation to the third party, id., at 113-114, 96 S.Ct. 2868; and there must exist some hindrance to the third party's ability to protect his or her own interests.

Id., at 115-116, 96 S.Ct. 2868. See also Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). These criteria have been satisfied in cases where we have permitted criminal defendants to challenge their convictions by raising the rights of third parties. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)

; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); see also McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). By similar reasoning, we have permitted litigants to raise third-party rights in order to prevent possible future prosecution. See, e.g., Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

Powers, 499 U.S. at 410-11, 111 S.Ct. 1364.

The "injury in fact" asserted by the employer here is potential tort liability for disclosure of...