Wisher v. News-Press Pub. Co., NEWS-PRESS

• Decision Date: 05 March 1975
• Docket Number: NEWS-PRESS,No. 74--903,74--903
• Citation: 310 So.2d 345
• Parties: Lavon WISHER, as County Administrator of Lee County, Florida, Appellant, v.PUBLISHING CO., d/b/a the Fort Myers News Press, Appellee.
• Court: Florida District Court of Appeals

Page 345

310 So.2d 345

Lavon WISHER, as County Administrator of Lee County, Florida, Appellant, v. NEWS-PRESS PUBLISHING CO., d/b/a the Fort Myers News Press, Appellee.

No. 74--903.

District Court of Appeal of Florida, Second District.

March 5, 1975.

James T. Humphrey, County Atty., and Richard V. S. Roosa, Asst. County Atty., Fort Myers, for appellant.

Steven Carta, of Smith, Seals & Carta, Fort Myers, for appellee.

GRIMES, Judge.

This case involves the question of whether the personnel files of government employees are open to inspection under the law requiring disclosure of public records.

The case had its inception at a meeting of the Lee County Board of County Commissioners when one of the commissioners made a motion to consider the termination for cause of an unnamed department head. The motion failed for lack of a second, but the board directed that a warning be placed in the employee's file. Thereafter, the Fort Myers News Press made demand upon the County Administrator to examine the personnel files of the county department heads. Upon the refusal of the administrator to comply with the request, the News Press obtained a writ of mandamus directing her to allow it to 'inspect and examine the personnel files of the employees of Lee County.'

A reasonable argument can be made for the narrow proposition that the public was entitled to know the details concerning the unnamed department head who the commission saw fit to discuss in its public meeting. Yet, this information was sought by way of mandamus upon the theory that the County Administrator was under a legal duty to permit any member of the public to examine the county personnel files. Therefore, in order to decide this case, we must consider the broad question of whether that duty exists.

At common law, the public records of governmental agencies were subject to inspection but it was usually necessary for the person seeking the inspection to show that he had a special interest therein. 76 C.J.S. Records § 35. This right has been expanded by statute in Florida so that any citizen is entitled to the inspection regardless of his interest in the documents in question. The statutory definition of public records subject to inspection reads:

'119.011 Definitions.--For the purpose of this act:

(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.

* * *

This court recently required disclosure of a written appraisal report obtained by the county in connection with negotiations for the proposed acquisition of property. Gannett Co., Inc. v. Goldtrap, Fla.App.2nd, 1974, 302 So.2d 174. A preliminary site plan review prepared for a public building project has also been held subject to public inspection under the statute. State ex rel. Copeland v. Cartwright, 1972, 38 Fla.Supp. 6, aff'd Fla.App.4th, 1973, 282 So.2d 45.

Since governmental agencies are authorized to employ personnel, the utilization of such authority would seem to constitute official business of such an agency. Therefore, personnel records apparently fall within the broad definition of records which are made 'in connection with the transaction of official business by any agency.'

Certain exemptions from disclosure are set forth in § 119.07(2)(a) as follows:

'(2)(a) All public records which presently are deemed by law to be confidential or which are prohibited from being inspected by the public, whether provided by general or special acts of the legislature or which may hereafter be so provided, shall be exempt from the provisions of this section.'

There are no statutes which specifically exempt personnel records. However, consideration must be given with respect to whether such records may be 'deemed by law to be confidential.'

It has always been held that right of inspection does not extend to all public records or documents, because public policy requires that some of them be treated as confidential. See 66 Am.Jur.2d, Records and Recording Laws, § 27. In Lee v. Beach Pub. Co., 1937, 127 Fla. 600, 173 So. 440, our Supreme Court said:

'The appellant contends that there are certain records in the police department of a city which must be kept secret and free from common inspection as a matter of public policy. This is true. The rule as stated in 23 R.C.L. 161, is as follows:

'The right of inspection does not extend to all public records or documents, for public policy demands that some of them, although of a public nature, must be kept secret and free from common inspection, such for example as diplomatic correspondence and letters and despatches in the detective police service or otherwise relating to the apprehension and prosecution of criminals."

Likewise, this court stated in Patterson v. Tribune Company, Fla.App.2d, 1962, 146 So.2d 623:

'Generally public records are subject to the right of inspection and publication; but this right does not apply to all public records since public policy requires that some of them, although of a public nature, be ketp secret and free from public inspection . . ..'

In Runyon v. Board of Prison Terms and Paroles, 1938, 26 Cal.App.2d 183, 79 P.2d 101, the court declined to issue a writ of mandamus requiring disclosure of letters and other documents sent voluntarily by various individuals to the parole...