State, Dept. of Highway Safety and Motor Vehicles v. Krejci Co., Inc.

• Decision Date: 08 June 1990
• Docket Number: No. 89-01794,89-01794
• Citation: 570 So.2d 1322
• Parties: 15 Fla. L. Weekly D1556 STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. KREJCI COMPANY, INC. d/b/a Scarlett O'Hara's, Respondent.
• Court: Florida District Court of Appeals

Page 1322

570 So.2d 1322

15 Fla. L. Weekly D1556

STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. KREJCI COMPANY, INC. d/b/a Scarlett O'Hara's, Respondent.

No. 89-01794.

District Court of Appeal of Florida Second District.

June 8, 1990.

Rehearing Denied July 17, 1990.

I. Ed Pantaleon, Asst. Gen. Counsel, Dept. of Highway Safety and Motor Vehicles, Tallahassee, for petitioner.

C. Wade Yeakle, III of Yeakle & Watson, P.A., St. Petersburg, for respondent.

PER CURIAM.

The Department of Highway Safety and Motor Vehicles petitions this court for a writ of certiorari to review an order that required it to produce certain driver's license photographs. For the reasons stated below, we deny the petition.

The respondent (Scarlett O'Hara's), an establishment that serves alcoholic beverages, is the defendant in a civil personal injury action. The plaintiff in that action was a minor at the time she sustained injuries in an automobile accident after she had left Scarlett O'Hara's. She has contended that Scarlett O'Hara's is liable for her injuries because it sold her alcoholic beverages while she was a minor. See § 562.11, Fla.Stat. (1987). Scarlett O'Hara's defense is that she used her sister's driver's license to obtain entrance into its establishment. See § 562.11(1)(b), Fla.Stat. (1987). In pursuit of this defense, Scarlett O'Hara's subpoenaed the Department of Highway Safety and Motor Vehicles to produce the driver's license photographic records of the plaintiff and her sister. The department denied the request for the photographs on the basis of section 322.142(4), Florida Statutes (1987). Scarlett O'Hara's filed a motion for contempt to which the department responded. After a hearing on the motion, the trial court issued an order in which it found that the requested documents were not exempt from chapter 119, the Public Records Act; that Scarlett O'Hara's had a legitimate reason for seeking the items; and thus, the department was required to produce the photographs and records.

The general state policy underlying chapter 119 is that all public records be open for inspection by any person at any reasonable time and under any reasonable conditions. §§ 119.01(1) and 119.07(1)(a), Fla.Stat. (1987). Section 119.07(3)(a), Florida Statutes (1987), however, provides: "All public records which are presently provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, are exempt from the provision of subsection (1)."

The department contends, and we agree, that section 322.142(4), Florida Statutes (1987), exempts its photographic records from the Public Records Act. Section 322.142(4), relating to color photographic driver's licenses, provides:

The department [of Highway Safety and Motor Vehicles] shall maintain a film negative or print file. Prints from the file shall be made and issued only for departmental administrative purposes, for the issuance of duplicate licenses, or in response to law enforcement agency requests approved by the department. Each request from a law enforcement agency shall be submitted in writing by the head of the agency or his designated representative. It shall contain a brief explanation of the case and a statement that the case involves an active felony investigation and that a photograph of the licensee is not otherwise available.

It is clear the legislature intended that the photographic records maintained by the petitioner be made and issued only for the specific instances set forth in the statute. Additionally, petitioner has pointed us to a staff analysis by the Senate Transportation Committee, dated December 28, 1988, in which it was recommended that the exemption to the Public Records Act contained in section 322.142(4) be revived and readopted. This analysis was prepared in connection with the systematic review of exemptions to the Public Records Act pursuant to section 119.14, Florida Statutes, which provides that exemptions are automatically repealed by a certain date unless revived and readopted. See §§ 119.14(2) and (3)(a), Fla.Stat. (1987). We note that the legislature readopted the exemption contained in section 322.142(4), effective October 1, 1989. See Ch. 89-90, § 4, Laws of Fla. The current section 322.142(4), Florida Statutes (1989), now contains uniform language which clearly states the exemption, as required by section 119.14(4)(e).

Although we conclude that the driver's license photographic records are exempt from public inspection, we do not agree that the legislature intended such records to be free from discovery in a civil action under appropriate circumstances. Cf. Kerr v. United States District Court for Northern District of California, 511 F.2d 192 (9th Cir.1975), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (exceptions to disclosure in Freedom of Information Act not intended to create evidentiary privileges for civil discovery; exceptions intended only to permit withholding certain types of information from public generally).

For example, the legislature has exempted the records of medical review committees from public inspection. § 119.07(3)(z), Fla.Stat. (1989). It has also provided that such records are not subject to discovery or introduction into evidence in a civil action against a health care provider. § 766.101(5), Fla.Stat. (1989); Burton v. Becker, 516 So.2d 283 (Fla. 2d DCA 1987). These medical review committee records, however, are not immune from discovery in administrative disciplinary actions where the party seeking such records has shown "exceptional necessity" or "extraordinary circumstances." Mercy Hospital v. Department of Professional Regulation, Board of Medical Examiners, 467 So.2d 1058, 1060 (Fla. 3d DCA 1985).

In Mercy Hospital, the Department of Professional Regulation subpoenaed the peer review records of the hospital in connection with a disciplinary investigation of two physicians that was initiated after the hospital had notified the department that it had recently suspended the physicians' staff privileges. The hospital claimed that the records were privileged by virtue of section 768.40(4), Florida Statutes (1983) (presently section 766.101(5)). The third district concluded that the peer review records were not beyond discovery because the disciplinary action against the physicians was not a civil action against a health care provider, as contemplated in the statute. Id. The court further reasoned that although there was no statutory privilege preventing the production of these records, because of the overwhelming public interest in maintaining the confidentiality of such records, they may be discovered only upon a "showing of exceptional necessity" or in "extraordinary circumstances." Id. (quoting Dade County Medical Ass'n. v. Hlis, 372 So.2d 117, 121 (Fla. 3d DCA 1979)). The court then held that the department had made the requisite showing to require production of the...