Fla. Agency for Health Care Admin. v. Zuckerman Spaeder, LLP

• Decision Date: 06 July 2017
• Docket Number: CASE NO. 1D16–4801
• Citation: 221 So.3d 1260
• Court: Florida District Court of Appeals
• Parties: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. ZUCKERMAN SPAEDER, LLP, Appellee.

221 So.3d 1260

FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant,
v.
ZUCKERMAN SPAEDER, LLP, Appellee.

CASE NO. 1D16–4801

District Court of Appeal of Florida, First District.

Opinion filed July 6, 2017

Brittany Adams Long, Christopher B. Lunny, and Thomas A. Crabb of Radey Law Firm, Tallahassee, for Appellant.

Ceci Culpepper Berman, Philip J. Padovano, and Joseph T. Eagleton of Brannock & Humphries, Tampa; Jack E. Fernandez, D. Lee Fugate, Morris (Sandy) Weinberg, Jr., and Sara L.A. Lawson of Zuckerman Spaeder LLP, Tampa, for Appellee.

PER CURIAM.

Appellant, Florida Agency for Health Care Administration ("AHCA"), appeals a trial court order granting mandamus relief to Appellee, Zuckerman Spaeder, LLP. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL HISTORY

The Appellee, Zuckerman Spaeder, LLP ("Zuckerman") is a law firm that represents a defendant in a federal criminal case. Zuckerman's client is charged with Medicaid fraud and other related offenses. Beginning in October 2014, and continuing through February 2015, Zuckerman submitted public records requests to AHCA pursuant to Chapter 119, Florida Statutes. In all, Zuckerman submitted ten different requests seeking records dating back to 2002. The requested records generally relate to the calculation of behavioral health capitation payments certified by HMOs to AHCA. The letters contained a total of seventy-seven search requests.

In response to the requests, AHCA prepared search terms derived from the requests and provided the agency's IT unit with the requests and search terms in order to conduct searches of its system to identify responsive documents. AHCA

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searched its hard copy and electronic databases, with much of the search focused on email documents within the agency's database. The searches yielded an extraordinary number of results.¹ When AHCA notified Zuckerman of the large number of results, Zuckerman asked AHCA to suspend its searches until the parties could confer on the search terms, with the goal of narrowing the searches and reducing the number of results.

The parties met to refine the search terms in order to narrow the searches for responsive documents. The searches took between four to six weeks to complete due to the large number of records to be searched. The narrowed search terms nevertheless yielded a massive number of results. As the searches were performed, AHCA prepared invoices and delivered them to Zuckerman. Pursuant to section 119.07(4)(d), the invoices included a "special service charge," billed to reimburse AHCA for extensive use of its information technology and substantial clerical and supervisory hours expended by agency personnel. The time and effort were expended, in part, to review and redact any confidential information from the documents. Upon receipt of the invoices, Zuckerman refused to pay, asserting the fees were unreasonable. However, Zuckerman never withdrew these requests. As a result of non-payment, AHCA declined to produce the records. AHCA ultimately advised Zuckerman it had complied with its obligations under Chapter 119 and would provide the records once payment was received.

Subsequently, the searches were further refined, and AHCA again searched its e-mail systems. This search produced fewer responsive documents. AHCA accordingly calculated significantly reduced cost reimbursement and submitted invoices for review and redactions. Zuckerman never paid these invoices either.

On November 23, 2015, pursuant to rule 1.630, Florida Rules of Civil Procedure, Zuckerman filed its Petition for Writ of Mandamus (the "Petition"), attaching the ten sets of public records requests. An alternative writ of mandamus² was issued to AHCA ordering AHCA to show cause why the relief requested in the Petition should not be granted. AHCA filed a response to the alternative writ asserting a number of defenses. In its response, AHCA contended, among other things, that Zuckerman sought to impose mandamus for non-ministerial actions, that is, the discretionary act of review and redaction of exempted information, and that Zuckerman had failed to satisfy a condition precedent to production of the documents because it had failed to pay for the cost of production.

The matter proceeded to evidentiary hearing on the Petition on October 4, 2016. Following the hearing, on October 21, 2016, the trial court entered its "Order on Public Records Final Hearing."³ Rather than order production of all documents identified in the Petition, the trial court ordered AHCA to produce a modified list of documents within forty-eight hours, without requiring any payment prior to production. Further, the order retains jurisdiction for future computation of reasonable costs incurred by AHCA in preparation of the records. This timely appeal followed.

ANALYSIS

AHCA raises six issues on appeal, two of which are dispositive. This Court agrees

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