Ingram v. State, 5D13–1519.
| Decision Date | 21 February 2014 |
| Docket Number | No. 5D13–1519.,5D13–1519. |
| Citation | 164 So.3d 676 |
| Parties | Lawrence Andrew INGRAM, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Lawrence A. Ingram, Perry, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
ON MOTION FOR REHEARING AND CERTIFICATION
We deny the motion for rehearing but withdraw the original opinion and substitute this opinion in its place for purposes of clarification. We grant the motion for certification of a question of great public importance.
Petitioner seeks certiorari review of an order denying his motion to compel the production of various records requested pursuant to Florida Public Records Act, chapter 119, Florida Statutes (2013) (“the Act”). Petitioner asserts that the trial court departed from the essential requirements of the law when it: (1) failed to treat his motion to compel as a petition for writ of mandamus; and (2) failed to have a hearing as required by section 119.11(1), Florida Statutes, before denying his public records request. We agree with Petitioner and quash the trial court's order.
Petitioner, who is serving a life sentence for sexual battery of a child, made a written public records request to the State Attorney's Office. His request identified two categories of records by specific description and with specific reference to numbered property receipts. Petitioner sought the “mirror images” made of his computer hard drive in the form of DVDs or CDs and the analyses and reports resulting from the forensic examination of his home computer. He also sought the recorded interviews of the victim and her mother. In his request, he acknowledged his obligation to pay the costs of the documents and asked for an itemized list of these costs so that he could tender payment.
The State responded by asserting that, pursuant to an exemption to the Act, it was precluded from producing the records without first redacting any information identifying the child victim. It further asserted that Petitioner did not agree that this exemption applied in his case. He wrote the State, explaining his position and citing a specific statute as support. Without addressing the statute cited by Petitioner, the State reiterated its previous position, emphasizing again that Petitioner would have to furnish “someone with [the] capability” to redact the records before they would be produced.
Petitioner thereafter filed a motion to compel production of the documents from the State and requested a telephonic hearing on his motion. Without a hearing or explanation, the trial court summarily denied Petitioner's motions, culminating in this proceeding.
“[T]he purpose of the [Act] ‘is to open public records to allow Florida's citizens to discover the actions of their government.’ ” Bent v. State, 46 So.3d 1047, 1048 (Fla. 4th DCA 2010) (quoting Christy v. Palm Beach Cnty. Sheriff's Office, 698 So.2d 1365, 1366 (Fla. 4th DCA 1997) ). Section 119.01(1) expressly provides that “[i]t is the policy of this state that all state, county and municipal records shall be open for personal inspection by any person.” It is the “duty” of each public agency to fulfill this legislative policy. Id. To accomplish this objective, the Act “is to be construed liberally in favor of openness, and all exemptions from disclosure are to be construed narrowly and limited to their designated purpose.” Woolling v. Lamar, 764 So.2d 765, 767 (Fla. 5th DCA 2000).
When requests for public records are made, the custodian “must” promptly respond to the request in “good faith.” § 119.07(1)(c), Fla. Stat. If the custodian concludes that the requested record is exempt from the Act and if an explanation is requested by the person seeking the record, the custodian “shall state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential.” § 119.07(1)(f), Fla. Stat. (emphasis added).1 If the custodian asserts that an exemption applies to “part of such record [the custodian] shall redact that portion ... and shall produce the remainder of such record ....” § 119.07(1)(d), Fla. Stat. (emphasis added). If the person seeking the record disputes an asserted exemption and files an action to enforce the Act, the trial court is required to “set an immediate hearing, giving the case priority over other pending cases.” § 119.11(1), Fla. Stat. No specific request for an accelerated hearing need be made. Woodfaulk v. State, 935 So.2d 1225 (Fla. 5th DCA 2006). The appropriate procedure to observe when statutory exemptions are claimed and disputed is to furnish the documents to the trial judge for an in camera inspection. Walton v. Dugger, 634 So.2d 1059, 1061–62 (Fla.1993). The failure to hold an immediate hearing may be remedied by petition for writ of certiorari. Martinez v. State, 969 So.2d 1174, 1174–75 (Fla. 5th DCA 2007).
Here, the State does not address Petitioner's contention that the trial court should have treated his motion as a petition for writ of mandamus. See Farmer v. State, 927 So.2d 1075 (Fla. 2d DCA 2006) (). Nor does the State address the argument that the failure to provide a hearing is itself a departure from the essential requirements of the law, as the statute and our precedents clearly spell out. Instead, the State maintains that there is nothing for the court to compel it to do because it remains “ready and willing” to provide the records once Petitioner “[makes] arrangements for the redaction” of the exempt material. We are admittedly perplexed by this position. Besides the fact that it is directly contrary to the statutory directive of section 119.07(1)(d) that the custodian “shall” redact the record and “shall” produce the remaining portions, it strains credulity that the State with its vast resources lacks the technology to perform the redaction of video or audio cassettes, DVDs and reports.2 Equally perplexing is the State's ostensible willingness to turn over purportedly confidential material to an agent of Petitioner to perform this delicate exercise, during which confidential information may be viewed and evidence might be compromised. We will assume for now that the State's position is simply ill-advised and not a scheme to stonewall the incarcerated Petitioner by interposing an insurmountable hurdle. If the State continues to maintain this position at the hearing on the public records request, we trust that the trial court can sort this out and, if appropriate, impose sanctions.
Although not essential to our holding, in order to give some guidance to the trial court when it conducts a hearing, we will address the substance of the claimed exemptions within the context of the limited record, which does not include the disputed records. The State asserts that the records are exempt in part pursuant to section 119.071(2)(h) 1. The relevant part of that provision exempts certain components of criminal investigative information, a phrase of art, defined by section 119.011(3)(b) as “information ... compiled” by law enforcement in the course of conducting a criminal investigation, “including, but not limited to information derived from laboratory tests, reports ... or ... surveillance.” It does not include, however, “[d]ocuments ... required by law ... to be given to the person arrested, except as provided in section 119.071(2)(h)....” § 119.011(3)(c)5., Fla. Stat. Section 119.071(2)(h) 1., in relevant part, exempts from public record disclosure “information” that reveals the identity of the victim of enumerated sexual offenses, and any “photograph, videotape, or image of any part of the body [whether or not the part identifies the victim] of the victim” of enumerated sexual offenses. It does not differentiate between a child victim and an adult victim. Reading these sections of the statute together leaves little doubt that some of the materials sought by Petitioner must be redacted.3
The more difficult question involves the application of section 119.071(2)(j) 2., which creates a specific exemption from disclosure for “information” that reveals the identity of a minor victim contained in the “videotaped statement of a minor” victim of enumerated sexual offenses. Section 119.071(2)(j) 2.a. is specific as to identity information contained within videotaped statements of minor victims. Section 119.071(2)(h), on the other hand, is a more general exemption addressing various types of “criminal investigative information,” including those records that contain identity information or images of victims of sexual offenses. Although the two statutes overlap to some extent, for purposes of our analysis, the specific statute controls over the more general statute. See Parker v. Baker, 499 So.2d 843, 845 (Fla. 2d DCA 1986) ().
Section 119.071(2)(j) 2.b. provides that a “public employee” may not “disclose videotaped information that reveals the minor's identity ... to a person who is not assisting in the investigation or prosecution of the offense or to any person other than the defendant, the defendant's attorney, or a person specified in an order entered by the court having jurisdiction of the alleged offense.” (Emphasis added). It also provides criminal penalties for a violation of the prohibition. Petitioner argues that section 119.071(2)(j) 2.b. authorizes the disclosure of the videotaped statement without redaction because he is the “defendant.” The State makes two counterarguments.
First, it argues that Petitioner is no longer the “defendant” because the prosecution had concluded and he is now a ...
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State v. Ingram, SC14–564.
...before the Fifth District Court of Appeal is one that seeks an advisory opinion, the opinion by the Fifth District in Ingram v. State, 164 So.3d 676 (Fla. 5th DCA 2014), is hereby vacated, and this case is dismissed.It is so ordered.NO MOTION FOR REHEARING WILL BE ALLOWED.LABARGA, C.J., and......