Lorei v. Smith

• Decision Date: 15 March 1985
• Docket Number: WMNF-F,No. 84-102,A,84-102
• Citation: 464 So.2d 1330,10 Fla. L. Weekly 712
• Parties: 10 Fla. L. Weekly 712 Robert LOREI and Nathan B. Stubblefield Foundation d/b/appellants, v. Robert SMITH, Chief of Police of the City of Tampa, Appellee.
• Court: Florida District Court of Appeals

Page 1330

464 So.2d 1330

10 Fla. L. Weekly 712

Robert LOREI and Nathan B. Stubblefield Foundation d/b/a WMNF-FM, Appellants, v. Robert SMITH, Chief of Police of the City of Tampa, Appellee.

No. 84-102.

District Court of Appeal of Florida,

Second District.

March 15, 1985.

Gregg D. Thomas and Steven L. Brannock of Holland & Knight, Tampa, for appellants.

Joseph G. Spicola, Jr., City Atty., and Luis G. Figueroa, Asst. City Atty., Tampa, for appellee.

PER CURIAM.

The instant appeal arises from appellants' efforts to gain access to certain records within the custody of appellee, Robert Smith, chief of police of the city of Tampa (department). The request for disclosure was, of course, grounded upon the relevant provisions of chapter 119, Florida Statutes (Supp.1982), the Public Records Act (Act).

Without detailing the events which occurred prior to and during the pendency of this matter in the trial court, it is sufficient for our purposes to note that appellants' requests were not fulfilled by the department in substantial part upon the claim that the requested data fell within the statutory exemption from disclosure of public records denominated "criminal investigative" and "criminal intelligence" information. §§ 119.011(3)(a), (b), (c), and 119.07(2), Fla.Stat. (1981).

A mandamus proceeding was initiated by appellants in the Hillsborough County Circuit Court which had as its objective two forms of relief. First, appellants sought an order requiring the department to state as to each request whether a public record actually existed and, second, that the trial court conduct an in camera examination to determine if the exemptions claimed by the department were proper. As an adjunct to their request for but as a prelude to an in camera review of the documents, appellants urged the view that discovery would aid the trial court in validating vel non the claimed exemptions. Thus, appellants propounded a set of interrogatories to the department which was responded to by a motion for a protective order. The trial court granted the motion and undertook an in camera review of the documents furnished it by the department. As a result of that review, an order was entered requiring the department to release certain portions of the records. As to other documents, the trial court preliminarily sustained the department's position that they were encompassed within the concept of "criminal intelligence" information. The entry of a final order was delayed, however, pending the court's disposition of appellants' motion seeking additional discovery relative to the remaining "disputed records." That motion was also denied, and a final order was entered granting the petition but denying the writ as to documents which were disclosed pursuant to a prior order and, in all other respects, denying the petition for writ of mandamus. It found that the "disputed records" were exempt from disclosure as active "criminal intelligence" information enjoying the shelter of section 119.011(3)(c), Florida Statutes (1981). We affirm.

Appellants and the department have different versions of the issue or issues to be resolved by this court. Appellants cast the issues in terms of the trial court's error in (1) failing to require the department to justify the claim of exemption from revelation under section 119.07, (2) interdicting appellants' ability to engage in discovery, and (3) refusing to confirm or deny the existence of the records sought by appellants. ¹ The department, on the other hand, confines the issue to the degree of justification required of a public agency once it claims the shield of nondisclosure provided by the Act. The determinative questions we glean from the record are dealt with below.

The legislative objective underlying the creation of chapter 119 was to insure to the people of Florida the right freely to gain access to governmental records. The purpose for such inquiry is immaterial. News-Press Publishing Co. v. Gadd, 388 So.2d 276 (Fla. 2d DCA 1980); Warden v. Bennett, 340 So.2d 977 (Fla. 2d DCA 1976). The breadth of such right is virtually unfettered, save for the statutory exemptions designed to achieve a balance between an informed public and the ability of government to maintain secrecy in the public interest. The exclusive technique adopted by the legislature for the accomplishment of the Act's purposes is judicial intervention. When the demand for disclosure competes with a public interest, asserted to be protected by a statutory exemption, the judiciary's role is to insure that the governmental claim does not defeat the right to disclosure. This court, no less than was true of the Fourth District in Satz ex rel. Broward County v. Gore Newspaper Co., 395 So.2d 1274, 1275 (Fla. 4th DCA 1981), is aware of the "difficulty which one who seeks such information may have in proving the negative ..." once a public agency contends a statutory exemption excuses disclosure. The answer to that dilemma, however, is to be left to the conscientious judgment of our trial courts, and we reject appellants' suggestion that we engraft upon the Act the wholly pragmatic devices of "specificity, separation, and indexing," which the United States Court of Appeals for the District of Columbia Circuit perceived in Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), to be essential to the administration of the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). We believe a Vaughn-type remedy to potential problems arising from an in camera assessment of disputed documents is better left for another day or, perhaps more...