News and Sun-Sentinel Co. v. Palm Beach County, SUN-SENTINEL

• Decision Date: 30 December 1987
• Docket Number: No. 4-86-1999,SUN-SENTINEL,4-86-1999
• Citation: 13 Fla. L. Weekly 76,517 So.2d 743
• Parties: 13 Fla. L. Weekly 76, 14 Media L. Rep. 2172 NEWS ANDCO., Appellant, v. PALM BEACH COUNTY, et al., Appellees.
• Court: Florida District Court of Appeals

Page 743

517 So.2d 743

13 Fla. L. Weekly 76, 14 Media L. Rep. 2172

NEWS AND SUN-SENTINEL CO., Appellant, v. PALM BEACH COUNTY, et al., Appellees.

No. 4-86-1999.

District Court of Appeal of Florida,

Fourth District.

Dec. 30, 1987.

Wilton L. Strickland and Ricki Tannen of Ferrero, Middlebrooks, Strickland & Fischer, P.A., Fort Lauderdale, for appellant.

Gary M. Brandenburg, Co. Atty., and Maureen Cullen, Asst. Co. Atty., West Palm Beach, for appellees.

HERSEY, Chief Judge.

This case raises the issue of whether attorney's fees are recoverable where access to public records is denied based upon a good faith but mistaken belief that the documents involved are exempt from disclosure.

Section 442.118(1), Florida Statutes (1985), requires every employer to report the presence of toxic substances and other hazardous materials "to the person responsible for the administration and direction of a fire department" of certain governmental units. Pursuant to this statute, the Palm Beach County Fire-Rescue Department received various documents pertaining to hazardous materials. The News and Sun-Sentinel requested production of those documents under section 119.07, Florida Statutes (the "Public Records Act"). The fire-rescue department denied the request, relying on section 442.118(5), Florida Statutes, which appears to permit disclosure of these documents only to fire suppression and fire inspection divisions, emergency medical service providers, and law enforcement agencies.

The newspaper then filed a petition to compel production of these documents and for a writ of mandamus. The fire-rescue department counterclaimed, requesting a declaratory judgment. The trial court required disclosure, ruling that section 442.118(5), Florida Statutes, was not intended to be an exemption from the disclosure requirements of chapter 119. The court reserved jurisdiction to determine the issue of attorney's fees.

Subsequently, a hearing was held on attorney's fees. The parties agreed that the following statute governs:

119.12 Attorney's fees.--

(1) If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees.

(2) Whenever an agency appeals a court order requiring it to permit inspection of records pursuant to this chapter and such order is affirmed, the court shall assess a reasonable attorney's fee for the appeal against such agency.

Implicit both in the ruling of the trial court and in the position taken by appellee is the proposition that use of the term "unlawfully" by the legislature indicates an intention to engraft a "good faith" or "honest mistake" exception on the requirement that attorney's fees be imposed upon the agency which incorrectly refuses a request to inspect, examine or copy a public record. The trial court postulates that in a case where the statute or where conflicting statutes do not speak expressly to the postulated question, the holding of the trial...