City of Homestead v. McDonough ( 2017 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed November 1, 2017.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D16-2462
    Lower Tribunal No. 16-12412
    ________________
    City of Homestead,
    Appellant/Cross-Appellee,
    vs.
    Dr. James Eric McDonough,
    Appellee/Cross-Appellant.
    An appeal from a non-final order from the Circuit Court for Miami-Dade
    County, Thomas J. Rebull, Judge.
    Weiss Serota Helfman Cole & Bierman, P.L. and Edward G. Guedes and
    Samuel I. Zeskind, for appellant/cross-appellee.
    Alan J. Greenstein, P.A. and Alan Greenstein, for appellee/cross-appellant.
    Before ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
    SUAREZ, J.
    This appeal concerns a public records request propounded by the
    Appellee/Cross-Appellant Dr. James E. McDonough (“McDonough”) on the City
    of Homestead (“City”) after McDonough had filed a Notice of Intent to File Claim
    against the City. The City objected to production of the documents requested and,
    after a hearing, the trial court sustained in part and denied in part the City’s
    objections ordering production of certain documents. The City appeals from that
    part of the non-final order granting McDonough’s request for records.
    McDonough cross-appeals the trial court’s denial in part of his request for records.
    We affirm in part and reverse in part finding, essentially, that all of the documents
    requested are privileged and not subject to production pursuant to Chapter 119 or
    section 768.28 (16)(b), Florida Statutes (2015).
    In October 2012, an incident allegedly occurred between McDonough and
    City of Homestead police officer Murguido while Officer Murguido was off-duty.
    McDonough filed a Notice of Intent to file a claim against the City. While that
    Notice of Intent was pending, McDonough filed a complaint against Officer
    Murguido for defamation, for alleged actions taken while Officer Murguido was
    off-duty and not acting in his official capacity. The City was not named in that
    complaint. McDonough then filed a public records request with the City for
    documents related to the City’s decision to defend Officer Murguido in the
    defamation action and to retain the law firm of Weiss, Serota, Helfman, Cole and
    Bierman to defend the action. The City responded that the documents requested
    were exempt from production under Chapter 119, section 768.28(16)(b), and
    section 90.502, as they contained the impressions of attorneys retained by the City
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    related to the pending Notice of Intent claim, which allegedly arose out of the same
    October 2012 incident. At the September 2016 hearing on McDonough’s records
    claim, the trial court reviewed the documents in camera and found that the Notice
    of Intent claim and the Murguido action were inextricably intertwined. The five
    emails in question were all contained in the City’s risk management file. At the
    end of the proceedings, the trial court determined that of the five email
    correspondence documents at issue, the City properly claimed Records 1 and 2 as
    exempt based on the claims file exception in section 768.28(16)(b); the court
    concluded that although Records 3 and 4 were contained in the risk management
    file they were not confidential and exempt and ordered the City to produce them.
    Record 5 was acknowledged in open court by McDonough to be confidential,
    privileged and exempt. The trial court additionally denied McDonough’s claim
    that the City violated Chapter 119 by failing to produce additional non-exempt
    responsive records. The City has appealed from that part of the order requiring it
    to disclose Records 3 and 4; McDonough has cross-appealed from that part of the
    order determining Records 1 and 2 to be exempt from disclosure.
    We disagree with the trial court’s determination that Records 3 and 4 are not
    exempt from disclosure, for two reasons. First, Records 3 and 4 are contained in
    the City’s risk management file and are, pursuant to the plain language of section
    768.28(16)(b), exempt from disclosure for that reason alone. Second, there is no
    statutory exception to that statute that would allow the trial court to require
    3
    disclosure of some risk management file records and not others based on the
    court’s determination that the records do not compromise the government’s risk
    management analysis or settlement negotiations. In other words, the court cannot
    find that although the documents are exempt from disclosure based on
    768.28(16)(b), they must still be produced because the court finds there is no
    prejudice in such production.
    The record on appeal indicates that the email correspondence documents at
    issue were generated in July 2015, well after McDonough filed his April 2014
    Notice of Intent to the City. Those documents were placed in the City’s risk
    management file prior to McDonough’s October 2015 first public records request.
    The trial court recognized on the record that the claims potentially exposing the
    City to liability in McDonough’s Notice of Intent were inextricably intertwined
    with McDonough’s complaint against Officer Murguido, as both the Notice of
    Intent and Murguido complaint arose out of the same set of alleged facts and
    circumstances.    The City would necessarily have to evaluate its exposure to
    liability in its decision to defend Officer Murguido, as well as address any potential
    and related risk inherent in McDonough’s Notice of Intent. As Records 3 and 4
    were generated and placed in the City’s risk management claims file in response to
    McDonough’s Notice of Intent, those records are, regardless of their content,
    confidential pursuant to the plain language of section 768.28(16)(b), Florida
    Statutes (2015). That statute provides,
    4
    Claims files maintained by any risk management program
    administered by the state, its agencies, and its subdivisions are
    confidential and exempt from the provisions of s. 119.07(1) and s.
    24(a), Art. I of the State Constitution until termination of all litigation
    and settlement of all claims arising out of the same incident, although
    portions of the claims files may remain exempt, as otherwise provided
    by law. (emphasis added).
    This statute clearly indicates that all of the email correspondence documents at
    issue contained in the City’s risk management claims file, including Records 3 and
    4, are confidential and exempt from disclosure until such time as the issues or
    claims related to McDonough’s Notice of Intent have been resolved.
    In addition, with regard to Records 3 and 4, the trial court erred by creating a
    “no harm” exception to section 768.28 that is not contained in either statute or case
    law. While finding that the documents were contained in the risk file and as such
    should be exempt, the trial court determined that their production would not harm
    the City and would not place the City at any disadvantage, and thus were not
    confidential. This ignores the plain language of the statute indicating that the
    entire claims file is exempt from disclosure until resolution of the claim or claims.
    The statute does not contain such an exception to the privilege. As much as
    judges, both trial court and appellate, would like to carve out such an exception to
    help expedite the case, we cannot do so. Florida courts are “without power to
    construe an unambiguous statute in a way which would extend, modify or limit its
    express terms or its reasonable and obvious implications. To do so would be an
    abrogation of legislative power.” Holly v. Auld, 
    450 So. 2d 217
    , 219 (Fla. 1984)
    5
    (quoting American Bankers Life Assurance Co. of Florida v. Williams, 
    212 So. 2d 777
    , 778 (Fla. 1st DCA 1968)); State v. McMahon, 
    94 So. 3d 468
    , 472–73 (Fla.
    2012); McLaughlin v. State, 
    721 So. 2d 1170
    , 1172 (Fla. 1998).
    We thus reverse that part of the order on appeal finding Records 3 and 4
    non-exempt and remand for further proceedings consistent herewith. For the same
    reasons as discussed above, we affirm that part of the order finding Records 1 and
    2 are confidential and exempt from disclosure where not only are those documents
    part of the claim file, but also clearly contain attorney mental impressions, work
    product, and insurance claim negotiations. We affirm all remaining issues.
    Affirmed in part, reversed and remanded in part.
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Document Info

Docket Number: 16-2462

Filed Date: 11/1/2017

Precedential Status: Precedential

Modified Date: 11/1/2017