Forsberg v. Housing Authority of City of Miami Beach

• Decision Date: 30 August 1984
• Docket Number: No. 54623,54623
• Parties: 10 Media L. Rep. 2511 Dean FORSBERG and Walter Freeman, Appellants, v. The HOUSING AUTHORITY OF the CITY OF MIAMI BEACH and Murray Gilman, Executive Director, Appellees.
• Court: Florida Supreme Court

Page 373

455 So.2d 373

10 Media L. Rep. 2511

Dean FORSBERG and Walter Freeman, Appellants, v. The HOUSING AUTHORITY OF the CITY OF MIAMI BEACH and Murray Gilman, Executive Director, Appellees.

No. 54623.

Supreme Court of Florida.

Aug. 30, 1984.

Lester C. Wisotsky, Legal Services of Greater Miami, Inc., Miami, for appellants.

Jim Smith, Atty. Gen., and Mitchell D. Franks, Chief Trial Counsel, Tallahassee, and John A. Ritter, City Atty., and Thomas M. Pflaum, Asst. City Atty., Miami Beach, for appellees.

PER CURIAM.

Dean Forsberg and Walter Freeman, tenants in public housing operated by the Miami Beach Housing Authority, filed a class action seeking to enjoin the housing authority from allowing public access to information provided by public housing tenants and prospective tenants. The circuit court granted the housing authority's motion to dismiss, finding that chapter 119, Florida Statutes (1977), violated neither article I, section 2 of the Florida Constitution nor the first, fourth, fifth, ninth, or fourteenth amendments to the federal constitution and that the complaint failed to state a cause of action. Forsberg and Freeman appealed the dismissal prior to the 1980 jurisdictional amendment, and we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972).

We agree with the circuit court. Florida's stated policy is that public records are open for personal inspection. § 119.01. The housing authority is an agency whose records are public. § 119.011. This case, therefore, deals solely with access to public records.

While certain records are statutorily exempted from the public's right to inspect, section 119.07, our examination of the statutes has brought to light no exemption pertaining to the records involved in this appeal. See Rose v. D'Alessandro, 380 So.2d 419 (Fla.1980); Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979). There is, likewise, no state constitutional right of privacy which would shield these records. Prior to the addition of article I, section 23 to the state constitution, this Court had refused to find a general right of disclosural privacy provided for in that document. Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So.2d 633 (Fla.1980). Moreover, adoption of the privacy amendment offers no relief in this case because section 23 specifically does not apply to public records: "This section shall not be construed to limit the public's right of access to public records and meetings as provided by law." There is also no per se federal constitutional right to disclosural privacy, but, rather, a balancing test is used on a case-by-case basis. See Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Shevin v. Byron, Harless.

The legislature has clearly stated that public records shall be open for public inspection. Just as clearly, the instant records are public records. There is no exemption, nor is there a constitutional right of privacy, which prevents their inspection. Any change, exception, or modification must, of necessity, come from the legislature. Wait. We therefore affirm the circuit court's order.

It is so ordered.

BOYD, C.J., and ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

OVERTON, J., concurs specially in result with an opinion.

ADKINS, J., concurs in result only.

OVERTON, Justice, specially concurring in result.

I concur in the result. The issues, in my view, need to be addressed more definitively. The majority opinion has failed to properly apply the balancing test dictated by the United States Supreme Court decisions in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). As will be explained, this abdicates our responsibility on this issue to the federal courts and could adversely affect our public records and public meeting law. I am also concerned that we have not applied a balancing test I believe is required by the right of privacy provision contained in article I, section 23, of the Florida Constitution. Finally, I find that we should explain why we cannot address in this case the assertion that this Court should protect the privacy of the poor who must use public facilities such as public housing or hospitals.

This concurring opinion requires a more detailed explanation of the circumstances of this cause. The facts, as alleged in the complaint, reflect that Forsberg and Freeman are indigent tenants in public housing. They, and each member of the class they represent, allegedly submitted

information of a personal and confidential nature concerning their family status and relationship, income, expenses, assets, employment and medical history, as a condition to obtaining decent, safe and sanitary housing at a price that they could afford.

(Emphasis added.) As a result, appellants assert that they

will suffer humiliation and embarrassment, needless invasion of their personal privacy, denial of their right to be let alone, harassment and other adverse consequences, if information concerning their personal lives is subject to public inspection, resulting in public knowledge about files showing their income, assets, bank accounts, medical histories, and other matters of a personal nature.

In Count I of the complaint, appellants claim that the policy of releasing tenant files to the general public pursuant to section 119.01, Florida Statutes (1977), violates the right of privacy implicit in article I, section 2, of the Florida Constitution; Count II claims a violation of the first, fourth, fourteenth amendments of the United States Constitution inasmuch as the information relates to private marital and family matters; Count III claims that allowing public inspection of personal, intimate information absent a showing of need is void as against public policy; and Count IV claims that releasing intimate personal information for general public inspection simply because an individual has made an application for public housing violates due process of law as guaranteed by the fourteenth amendment of the United States Constitution.

The trial judge granted a motion to dismiss and expressly held that

Chapter 119, Florida Statutes, as applied to the subject tenant files is valid and does not violate Article I, Section II of the Florida Constitution ... [and] does not violate the First, Fourth, Fifth, Ninth or Fourteenth Amendments to the Constitution of the United States .... [P]ublic policy does not mandate that such records be deemed confidential or excepted from Chapter 119, Florida Statutes ....

While this appeal was pending before this Court, the Florida Legislature proposed, and the electorate adopted, a state constitutional right-of-privacy provision contained in article I, section 23, Florida Constitution, effective January 1, 1981. This Court then directed the parties to file supplemental briefs addressing the new provision's effect on the issues presented in this cause.

At the outset it must be recognized that the question presented by the complaint in this case does not concern records in which there is traditionally no expectation of privacy, e.g., court files and public documents such as deeds, judgments, and marriage records. Without question, the records in issue in the instant case are of such a personal, intimate nature that they generally are not considered public. They allegedly include detailed medical information and financial information concerning the tenants.

In summary, I would affirm the trial judge's dismissal of appellants' complaint and find that (1) the housing authority may require an applicant for public housing to submit personal information which is necessary to determine the applicant's qualifications; (2) this information, because it is not exempted from disclosure by statute, must be available for public examination to ensure public accountability of the housing authority and its officers; and (3) Florida's constitutional right of privacy does not prohibit the disclosure of tenant files necessary to promote this state's policy of holding governmental agencies, their officials, and their employees publicly accountable. Because the proper parties and facts are not before this Court, I would not address the issue of whether a civil action for invasion of privacy could be maintained against persons who use personal, intimate information contained in tenant files for strictly private purposes totally unconnected with governmental accountability, but would recognize that this could be a justiciable issue in a future proceeding. I find it is extremely important to explain the appropriateness of the balancing test in this cause. To do so, it is necessary to discuss the various separate aspects of the right of privacy, the public's right to open government and public records, and the applicability of these rights to the instant case.

I. RIGHT OF PRIVACY

The term "right of privacy" applies to various personal rights which are not necessarily interrelated or derived from the same source. The term has three distinct meanings, depending upon the category of privacy law invoked: (1) the basis for an invasion of privacy civil action under tort law; (2) a federal constitutional right against governmental intrusion; and (3) a state constitutional or statutory right against either governmental or private intrusion. ¹

Privacy as a Basis for Tort Action

The first category concerns a wrongful intrusion into the privacy of another, which is remedied through civil tort action. The concept of a privacy tort originated with a phrase coined by Thomas M. Cooley: "The right to one's person may be said to be a right of complete immunity: to...