Tribune Co. v. Cannella, 82-1635
| Court | Court of Appeal of Florida (US) |
| Citation | 438 So.2d 516 |
| Docket Number | No. 82-1635,82-1635 |
| 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. |
| Decision Date | 30 September 1983 |
Joseph G. Spicola, Jr., City Atty., Luis G. Figueroa and Salvatore Territo, Asst. City Attys., Tampa, for respondent Cynthia Sontag.
Jim Smith, Atty. Gen., and Eric J. Taylor, Asst. Atty. Gen., Tallahassee, for respondent Norman Cannella.
R. Jeffrey Stull of Stull & Heidt, Tampa, for respondents Robert DePerte, Robert Jones, and Roy Pierce.
Sanford L. Bohrer and Franklin G. Burt of Paul & Thomson, Miami, for amicus curiae Lakeland Ledger Pub. Co.
George K. Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, for amicus curiae Times Pub. Co.
The Tribune Company, publisher of the Tampa Times, petitions for writ of certiorari to review the trial court's orders denying its petitions for writ of mandamus. Petitioner sought mandamus to compel respondents Norman Cannella, Chief Assistant State Attorney, and Cynthia Sontag, Director of Administration of the City of Tampa, to release the personnel files of Tampa police officers Robert DePerte, Robert Jones, and Roy Pierce, which petitioner requested pursuant to Chapter 119, Florida Statutes (1981), Public Records (The Public Records Act). After reviewing the legal arguments made and the authorities cited, 1 we 2 have determined to grant the petition.
At 9:15 a.m. on July 1, 1982, Carl Crothers, a reporter for the now defunct Tampa Times newspaper, asked respondent Sontag for permission to review the personnel files of Jones, Pierce, and DePerte, who, according to information given to the Tampa Times, had attempted to arrest one John Sontag denied the request. The City of Tampa had adopted a policy of postponing compliance with the Public Records Act for seven days (now three days) pending notification of employees whose personnel records had been requested pursuant to the Act. The city had also adopted a policy that whenever the Tampa Police Department or state attorney is investigating any shooting by a police officer, all personnel records of such an officer would be withheld from public view, and compliance with the Public Records Act would be postponed indefinitely until the investigation was completed.
Emanuel Riley the previous night and had been involved in a struggle and an exchange of gunshots which resulted in Riley's death and a bullet wound to Officer Jones.
On July 1, 1982, petitioner filed a petition for writ of mandamus against Sontag seeking to compel production of the personnel records it had requested. The trial judge, Judge Gallagher, heard the petition at 9:00 a.m. on July 2, 1982. At that hearing, the city attorney stated that after The Tampa Times had made its Public Records Act request, the state attorney had subpoenaed the personnel records and that the Department of Administration had delivered the records immediately and had not retained any copies. He also took the position that, in any event, the files were exempt from disclosure as active criminal investigative or criminal intelligence information. The trial judge agreed and ruled in favor of Sontag.
At approximately 10:00 a.m. on July 2, 1982, petitioner's counsel requested respondent Cannella to provide the personnel records in question. Counsel also requested a copy of the subpoena by means of which Cannella had obtained custody of the records. Cannella refused to provide the records or a copy of the subpoena and refused to discuss what exemption he was relying on under the Public Records Act.
Later that day petitioner filed a petition for writ of mandamus against Cannella, seeking to compel production of the personnel records. The trial judge denied that petition in a hearing held at 2:00 p.m. on July 6, 1982, ruling that the personnel files were exempt from disclosure as criminal investigative information within the meaning of Section 119.07(3)(d), Florida Statutes (1981).
On July 8, 1982, counsel for petitioner telephoned the city attorney to renew petitioner's Public Records Act request. Counsel for the City of Tampa said that the state attorney was concluding his investigation that day; that the records would be returned to the city attorney forthwith; and that, upon receipt, copies of the records would be made available to The Tampa Times.
On the afternoon of July 8, 1982, the state attorney held a press conference announcing the conclusion of his investigation into the Riley shooting. At this conference, David Dahl, a Tampa Times reporter, was told that the personnel records had been returned to the City of Tampa with no copies retained by Cannella's office. Tampa Assistant City Attorney Salvatore Territo informed Dahl that the records would not be produced until Monday, July 12, at the earliest, in order to excise certain information from the records and to allow time for the officers to make objections on the basis of federal rights of privacy. Dahl returned to the city attorney's office at 10:00 a.m. on Monday, July 12, 1982, and was told that the circuit court had held a hearing and entered a temporary restraining order forbidding release of the records.
That day the three officers filed an action for a permanent injunction against any disclosure of their personnel files by the city. A hearing was held the same day at which the city attorney and counsel for the officers were present. Petitioner had no prior notice of the filing of the action or of the hearing. Citing the privacy rights of the officers, the trial judge entered a temporary restraining order forbidding release of the personnel records until Friday, July 16, at 3:15 p.m., for which time a hearing was scheduled (with notice to petitioner) to decide whether the restraining order should be continued.
On July 15, 1982, petitioner filed the instant petition for certiorari with this court. On July 16, 1982, the officers filed a complaint in the United States District Court for the Middle District of Florida requesting that court to permanently enjoin disclosure of their personnel records by the city. The complaint was grounded on the claim that release of their files would violate their right to privacy.
The federal judge, Judge Krentzman, granted a temporary restraining order (TRO) the same day. At the July 16, 1982, hearing in state court, Judge Gallagher reserved ruling pending action by Judge Krentzman.
On July 19, 1982, Judge Krentzman granted petitioner's motion to intervene in the officers' federal action. On July 22, 1982, he dissolved his TRO, ruling that the officers did not have a reasonable likelihood of success on the merits. Upon learning of the dissolution of the TRO, petitioner renewed its Public Records Act request of the city. The city refused to release the records, asserting doubt as to whether the state TRO was still in effect.
At a hearing on July 23, 1982, Judge Gallagher expressly stated that his July 12 TRO was no longer in effect. Petitioner then sought a ruling on its petition for a writ of mandamus to Sontag. Judge Gallagher refused to act due to the pendency of the instant petition for certiorari.
An hour later the city released the records sought by petitioner.
In light of the policy of the legislature and the courts of this state to expedite proceedings involving denial of media access to public records and judicial proceedings, certiorari is unquestionably an appropriate vehicle for review of the issues involved here. § 119.11, Fla.Stat. (1981); State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1977); News-Press Publishing Co. v. Gadd, 388 So.2d 276 (Fla. 2d DCA 1980). Therefore, the jurisdiction of this court was properly invoked pursuant to Article V, Section 4(b)(3) of the Florida Constitution and Florida Rules of Appellate Procedure 9.030(b)(3) and 9.100.
However, the issues raised are now technically moot, since petitioner has been provided access to the records sought. Nevertheless, we agree with petitioner that the challenged actions here are "capable of repetition, yet evading review," so that the mootness doctrine does not apply. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). When, as here, the challenged action is of too short a duration to be fully litigated prior to its cessation or expiration and there is a reasonable expectation that the same complaining party will be subjected to the same action again, review will be allowed. Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). We therefore conclude that the issues raised by petitioner are ripe for adjudication.
The sections of chapter 119 or portions thereof pertinent to the instant case provide:
119.01 General state policy on public records.--It is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.
119.011 Definitions.--For the purpose of this chapter:
(1) "Public records" means all 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.
(2) "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.
(3)(a) "Criminal intelligence information" means information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor...
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