City of North Miami v. Miami Herald Pub. Co.

• Decision Date: 28 March 1985
• Docket Number: No. 64944,64944
• Citation: 10 Fla. L. Weekly 183,468 So.2d 218
• Parties: 10 Fla. L. Weekly 183 CITY OF NORTH MIAMI, Etc., et al., Petitioners, v. MIAMI HERALD PUBLISHING COMPANY, Etc., et al., Respondents.
• Court: Florida Supreme Court

Page 218

468 So.2d 218

10 Fla. L. Weekly 183

CITY OF NORTH MIAMI, Etc., et al., Petitioners, v. MIAMI HERALD PUBLISHING COMPANY, Etc., et al., Respondents.

No. 64944.

Supreme Court of Florida.

March 28, 1985.

Rehearing Denied May 31, 1985.

Thomas M. Pflaum of Simon, Schindler & Hurst, Miami, for petitioners.

Parker D. Thomson and Susan H. Aprill of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, and Richard J. Ovelmen, General Counsel, The Miami Herald Pub. Co., Miami, for respondents.

James R. Wolf, General Counsel, Tallahassee, amicus curiae for Florida League of Cities.

Robert A. Ginsburg, County Atty., and James A. Jurkowski, Asst. County Atty., Miami, amicus curiae for Metropolitan Dade County.

Philip H. Trees and G. Robertson Dilg of Gray, Harris & Robinson, Orlando, amicus curiae for Orange County.

PER CURIAM.

This cause is before us on a certified question of great public importance. Miami Herald Publishing Co. v. City of North Miami, 452 So.2d 572 (Fla. 3d DCA 1984) appealing after remand 420 So.2d 653 (Fla. 3d DCA 1982). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The facts of the case are set forth in the district court opinion. For our purposes it is enough to say that the district court held that certain written communications pertaining to litigation pending between petitioners and other parties were not privileged under section 90.502, Florida Statutes (1981), and, thus, were subject to disclosure under the Public Records Act, chapter 119, Florida Statutes (1981). Because of the significance of the issue, the district court certified the following question of great public importance:

Does the lawyer-client privilege section of the Florida Evidence Code exempt from the disclosure requirements of the Public Records Act written communications between a lawyer and his public-entity client?

Miami Herald, 452 So.2d 574.

There is no question that the written communications at issue are public records subject to chapter 119. Petitioners urge, however, that they are privileged communications exempted from public disclosure. Two points raised by petitioners merit comment. First, petitioners argue that their constitutional rights of due process, effective assistance of counsel, freedom of speech, and this Court's exclusive jurisdiction over The Florida Bar prohibit public disclosure. Essentially, we addressed and rejected many of these same arguments in Neu v. Miami Herald Publishing Co., 462 So.2d 821 (Fla.1985). The legislature has the constitutional power to regulate disclosure of public records of the state and its political subdivisions and has done so through chapter 119. The communications (public records) belong to the client (government entity), not the lawyer, and the legislature, not this Court, regulates disclosure of public records. Id. In this connection, petitioners urge that they are "individual human beings" subject to personal, civil and criminal liability. This is unquestionably true. From this obvious truth, petitioners then argue that they are constitutionally entitled, as individuals, to private communications with the city's attorney. This argument is fallacious. The city attorney furnishes legal assistance to council members in their official capacity, not as individual citizens.

Petitioners also urge that chapter 90 exempts such written communications from public disclosure. Whatever merit this argument might have had when made to the district court has since been negated by passage of chapter 84-298, section 5, Laws of Florida. Chapter 84-298, section 5, amends chapter 119 to provide for a temporary exemption from public disclosure of government agency, attorney-prepared, litigation files during the pendency of litigation. ^* If chapter 90 provided a permanent exemption for attorney/client communications between government agencies and their attorneys, as petitioners urge, it would have been pointless for the legislature to enact a temporary exemption during pendency of litigation. As we said in Neu, "[i]n construing legislation, courts should not assume that the legislature acted pointlessly. Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962)." Neu, at 825.

Our answer to the certified question is a qualified no. The lawyer-client privilege section of chapter 90 does not exempt written communications between lawyers and governmental clients from disclosure as public records, but section 119.07(3)(o) does provide a limited exception within its terms.

In the posture of the case the specific communications are not contained in the record nor are we told the status of the litigation to which the communications pertain. Thus, we cannot determine whether section 119.07(3)(o) is applicable. Under the circumstances we approve the decision of the district court but remand for further proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, EHRLICH and SHAW, JJ., concur.

McDONALD, J., dissents with an opinion, in which ALDERMAN, J., concurs.

McDONALD, Justice, dissenting.

It is my view that communications between a public body and its attorneys concerning litigation for which the attorney is hired are absolutely privileged without the aid of section 119.07(3)(o), Florida Statutes (Supp.1984). I reiterate my dissent in Neu v. Miami Herald Publishing Co., 462 So.2d 821 (Fla.1985). In addition I note that the Florida Evidence Code, section 90.502, Florida Statutes (1983), not only codifies the traditional attorney/client privilege, but expressly designates communications between an attorney and a client as "confidential." According to subsection 90.502(1):

(c) A communication between lawyer and...