Tribune Co. v. Cannella

• Decision Date: 06 September 1984
• Docket Number: 64453,Nos. 64450,s. 64450
• Citation: 458 So.2d 1075
• Parties: The TRIBUNE COMPANY, Petitioner, v. Norman CANNELLA, Chief Assistant State Attorney, Cynthia Sontag, Director of Administration of the City of Tampa, Robert DePerte, Robert Jones, and Roy Pierce, Respondents. Robert DePERTE, Robert Jones, and Roy Pierce, Petitioners, v. The TRIBUNE COMPANY, Respondent.
• Court: Florida Supreme Court

Page 1075

458 So.2d 1075

The TRIBUNE COMPANY, Petitioner, v. Norman CANNELLA, Chief Assistant State Attorney, Cynthia Sontag, Director of Administration of the City of Tampa, Robert DePerte, Robert Jones, and Roy Pierce, Respondents.

Robert DePERTE, Robert Jones, and Roy Pierce, Petitioners, v. The TRIBUNE COMPANY, Respondent.

Nos. 64450, 64453.

Supreme Court of Florida.

Sept. 6, 1984.

Rehearing Denied Dec. 20, 1984.

Julian Clarkson, Gregg D. Thomas, Steven L. Brannock and Mike Piscitelli of Holland & Knight, Tampa, for The Tribune Co., petitioner/cross-respondent.

Joseph G. Spicola, Jr., City Atty., and Luis G. Figueroa, Asst. City Atty., for Cynthia Sontag, Director of Administration of the City of Tampa.

Edwina J. Duryea and R. Jeffrey Stull of Stull & Heidt, Tampa, for DePerte, Jones and Pierce.

Jim Smith, Atty. Gen., Mitchell D. Franks, Chief Trial Counsel and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, amicus curiae for State of Florida.

George K. Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, and Richard J. Ovelmen, Gen. Counsel, Miami, amici curiae for Times Pub. Co. and The Miami Herald Pub. Co.

EHRLICH, Justice.

This case is before us to answer questions certified to be of great public importance. Tribune Co. v. Cannella, 438 So.2d 516 (Fla. 2d DCA 1983). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The Tampa Times, a now-defunct afternoon newspaper published by the Tribune Co., sought release of the personnel files of three Tampa police officers, pursuant to the Public Records Act, chapter 119, Florida Statutes (1981). The officers had been involved in an incident where a suspect was shot and killed. Sontag, director of administration for the City of Tampa and custodian of the records requested, refused to release the files. Her refusal was based on a city policy of delaying release of personnel files seven days pending notice to the affected employee. The delay had been reduced to three days before the district court filed its opinion. The newspaper persisted in demanding the files, leading to actions in both state and federal court, by the newspaper and by the city and the officers. Following three weeks of intricate legal maneuvering, the city released the personnel files.

During the maneuvers, the newspaper had filed a petition for a writ of certiorari with the Second District Court of Appeal. Although the files had been released, the district court took jurisdiction because the problem was "capable of repetition yet evading review." Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). In an en banc decision, the Second District held, 5-4, that government employee personnel files could be automatically withheld for 48 hours, to allow employees an opportunity to raise any claims that the information should be withheld permanently because of privacy interests. ¹ The court also certified two questions to this Court:

I. May disclosure of nonexempt public records automatically be delayed for a specific period of time for any reason?

II. If the answer to the first question is yes, what is the maximum permissible delay period, and for what purpose or purposes may the delay period be invoked?

The Tribune challenges the holding that a 48-hour delay is permissible, while the officers have cross-petitioned, urging that they have a privacy interest which must be protected by an automatic delay to allow time to raise the issue. The Court allowed the briefing on the two cases to be consolidated. We hold that no automatic delay is permitted and answer the first question in the negative. The second question is mooted.

We base our decision on the fundamental principle that a municipality may not act in an area preempted by the legislature. We agree with Judge Lehan's cogent dissent to the opinion below on this point, 438 So.2d at 525-26.

Under [the preemption] doctrine a subject is preempted by a senior legislative body from the action by a junior legislative body if the senior legislative body's scheme of regulation of the subject is pervasive and if further regulation of the subject by the junior legislative body would present a danger of conflict with that pervasive regulatory scheme.... Florida law, under section 166.021, Florida Statutes (1981), which cites article VIII, section 2(b) of the Florida Constitution, includes a more restrictive application of the preemption doctrine, precluding preemption and leaving "home rule" to municipalities unless the legislature has expressly said otherwise.

Id. at 525. See Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972) ("A municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden."); State ex rel. Johnson v. Johns, 92 Fla. 187, 109 So. 228 (1926).

The legislature has clearly preempted local regulation vis-a-vis delay in the release of public records. The Public Records Act, chapter 119, Florida Statutes (1981), provides that "It is the public policy of this state that all state, county and municipal records shall at all times be open for a personal inspection by any person." Section 119.01(1). This fundamental policy in essence places all government records on the table for open inspection by all. While there are certain statutory exemptions from this initial disclosure, section 119.07 and the statutes cross-referenced therein, the public disclosure of the content of all nonexempt records occurs at the moment they become records. See, e.g., Shevin v. Byron, Harless, Schaffer, Reid and Associates, 379 So.2d 633 (Fla.1980) (information becomes public record when it is "prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type." Id. at 640); Wait v. Florida Power and Light Co., 372 So.2d 420 (Fla.1979) (exemptions limited solely to those provided by statute).

To literally place the records on the public table would be unrealistic. The legislature thus provided a procedure for making the records available for inspection. Section 119.07(1)(a) mandates that "Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of records or his designee." Section 119.07(2)(a) provides that if the custodian believes certain items are statutorily exempt he "shall produce for inspection and examination" the record with the asserted exempt material deleted. Section 119.11 provides for an accelerated court hearing when, inter alia, the party seeking to inspect a record challenges the exemption asserted by the custodian under section 119.07(2)(a). The effect of these cited sections of the Act is to provide for timely inspection of the records, with the exception of statutory exemptions asserted by the custodian, which may be challenged by an accelerated court hearing. In essence, the custodian is mandated to place any nonexempt requested record "on the table" for inspection, at reasonable times and under reasonable conditions.

We have already held that reasonable items and conditions

refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review.

Wait, 372 So.2d at 425. No...