Orange County v. Florida Land Co.

• Decision Date: 24 May 1984
• Docket Number: No. 83-1624,83-1624
• Parties: ORANGE COUNTY, Florida, Petitioner, v. FLORIDA LAND COMPANY, etc., et al., Respondent.
• Court: Florida District Court of Appeals

Page 341

450 So.2d 341

ORANGE COUNTY, Florida, Petitioner, v. FLORIDA LAND COMPANY, etc., et al., Respondent.

No. 83-1624.

District Court of Appeal of Florida Fifth District.

May 24, 1984.

Philip H. Trees of Gray, Harris & Robinson, P.A., Orlando, for petitioner.

Timothy J. Manor of Lowndes, Drosdick, Doster & Kantor, P.A., Orlando, for respondent Florida Land Co., etc.

FRANK D. UPCHURCH, Jr., Judge.

Petitioner, Orange County, Florida, seeks a writ of certiorari to partially quash an order of the circuit court which requires it to produce certain documents for discovery.

Respondent Florida Land Company sued Orange County after a dispute arose over its alleged entitlement to a certain amount of sewage capacity in the county's waste disposal system. Florida Land sought to compel the county to disclose numerous documents. The county furnished some of the requested documents, but contended that others were within the attorney-client or work-product privileges. The trial court eventually held that the county was entitled to assert an attorney-client privilege, but not a work-product privilege. Following an in camera examination of the contested documents, the court released a list of thirty-eight documents which it found were not subject to the attorney-client privilege, but constituted work-product materials, which were nevertheless subject to disclosure under the Florida Public Records Act, Chapter 119, Florida Statutes (1981). Orange County, by this petition, is challenging the order as it applies to twenty-five of the thirty-eight documents. ¹

Certiorari is appropriate to review an order requiring a party to produce certain documents or disclose certain information in discovery. See Ponte Vedra Recorder, Inc. v. Carpenter, 401 So.2d 834 (Fla. 5th DCA 1981); Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1958). The question here is whether the lower court departed from the essential requirements of law in ordering disclosure of the twenty-five documents at issue. The court found that these documents came within the Public Records Act, that the Act does not contain a work-product privilege and therefore the documents had to be disclosed. The county argues that the Act does or should contain a work-product privilege and that in any event, many of the documents in question are not "public records" and hence are not subject to disclosure under the Act.

As to the county's first argument, in Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979), the supreme court held that the work-product privilege does not apply to the Public Records Act and hence does not preclude access to documents otherwise subject to inspection under the Act. See also Hillsborough County Aviation Authority v. Azzarelli Construction Co., Inc., 436 So.2d 153 (Fla. 2d DCA 1983); City of Williston v. Roadlander, 425 So.2d 1175 (Fla. 1st DCA 1983); Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982). The court in Wait stated that no statutory exemption for work-product exists in the Act and if such common law privilege is to be included as an exemption, it is up to the Legislature and not the courts to amend the statute. ²

The county's claim that discovery matters are procedural and that Florida Rule of Civil Procedure 1.280(b)(2), which contains a work-product privilege ³ takes precedence over the Act, was recently rejected by the Second District in Hillsborough County Aviation. The court there held that access to public records is a matter of substance rather than practice and procedure and therefore the Act takes precedence over the rule of procedure. See also City of Tampa v. Titan Southeast Construction Corp., 535 F.Supp. 163 (M.D.Fla.1982). It could be said that the supreme court in Wait also recognized this, at least by implication, when it declared that no work-product privilege is included in the Public Records Act and it is up to the Legislature and not the courts to include such an exemption in the Act.

The question of whether the documents here are "public records" and hence subject to disclosure under the Public Records Act is more difficult. The twenty-five documents were either developed by county attorneys in preparation for a hearing on Florida Land's request for a temporary injunction or were correspondence from one of the county's attorneys to another.

Section 119.011(1), Florida Statutes, defines "public records" as:

[A]ll documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

In Shevin v. Byron, Harless, Schaffer, etc., 379 So.2d 633, 640 (Fla.1980), the supreme court declared that under this section, a public record "is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type." The court explained as follows:

To be contrasted with 'public records' are materials prepared as drafts or notes, which constitute mere precursors of governmental 'records' and are not, in themselves, intended as final evidence of the knowledge to be recorded. Matters which obviously would not be public records are rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency's later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.

In that case, the...