Jacobs Keeley, PLLC v. Chief Judge of the Seventeenth Judicial Circuit ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JACOBS KEELEY, PLLC,
Petitioner,
v.
CHIEF JUDGE OF THE SEVENTEENTH JUDICIAL CIRCUIT,
Respondent.
No. 4D14-4162
[June 17, 2015]
Petition for writ of mandamus to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Chief Judge Peter M. Weinstein.
Roy D. Wasson of Wasson & Associates, Chartered, Miami, Margery
Golant of Golant & Golant, P.A., Boca Raton, and Bruce Jacobs of Jacobs
Keeley PLLC, Miami, for petitioner.
Mihaela Cabulea, Senior Trial Court Staff Attorney, Broward County
Courthouse, Fort Lauderdale, for respondent.
GROSS, J.
Jacobs Keeley, PLLC, a law firm, seeks a writ of mandamus to compel
the chief judge of the Seventeenth Judicial Circuit to comply with its
request for public records regarding reassignment of cases following
judicial disqualification in the circuit’s foreclosure division. We deny the
petition for writ of mandamus in part and order production of certain e-
mails claimed to be privileged.
The law firm filed a broad records request in October 2014. The general
counsel of the Seventeenth Judicial Circuit responded that an e-mail
search of the time period requested had resulted in location of 41,691 e-
mails. The Circuit proposed to charge $227 for securing the e-mails and
$36,782 for review, determination, redaction, and printing of the records
requested; the Circuit sought a cost deposit of $25,000. The scope of the
e-mail search was tailored to mirror the broad initial request.
The Circuit provided the law firm with its search criteria and asked if
the firm could suggest different search criteria. The law firm declined to
do so, stating that it was unreasonable to “force” it to advise the court how
to design queries on the Circuit’s database.
The Circuit narrowed the search to the chief judge and his judicial
assistants; 223 e-mails were identified, with only $219.73 in related
charges. The law firm was unhappy with the narrow scope of this request.
The Circuit provided records responsive to this narrow request except for
14 e-mails determined to be confidential. On the morning of October 31,
2014, the Circuit proposed four different query options which led to the
identification of 752 to 4,258 e-mails, with related charges.
The law firm filed its petition for mandamus at 6:41 p.m. on October
31, 2014; the petition did not advise this Court of the Circuit’s response
from earlier that morning. After the petition was filed, based on e-mails
from the law firm, the Circuit designed a different search parameter that
identified 544 e-mails. Ultimately, the law firm picked up 82 emails based
upon one of the search requests.
Mandamus lies to compel a lower official to perform a clear ministerial
duty. See Pleus v. Crist, 14 So. 3d 941, 945 (Fla. 2009). “A party
petitioning for a writ of mandamus must establish a clear legal right to
performance of the act requested, an indisputable legal duty, and no
adequate remedy at law.” Chandler v. City of Greenacres, 140 So. 3d 1080,
1083 (Fla. 4th DCA 2014) (quoting Smith v. State, 696 So. 2d 814, 815
(Fla. 2d DCA 1997)).
The law firm has not established that the Circuit failed to perform a
clear legal duty. Although it complains about the failure to use certain
search terms, the law firm refused to participate in the search process
below by suggesting any search terms or setting parameters for the search
or requesting a hearing on the scope of the search or the reasonableness
of the proposed charges. This record does not demonstrate that the Circuit
acted unreasonably in response to the record request so as to trigger the
obligation to perform a clear ministerial duty. Insofar as it is directed to
the adequacy of the Circuit’s response, the petition for writ of mandamus
is denied.
Withheld Records
The Circuit withheld production of 14 e-mails, citing Florida Rules of
Judicial Administration 2.420(c)(1) and 2.420(c)(7), and section 90.502,
Florida Statutes (2014) pertaining to the attorney-client privilege.
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The e-mails in question qualify as “administrative records” within
the meaning of Rule of Judicial Administration 2.420(b)(1)(B).
Rule 2.420(c) provides for confidentiality of certain judicial branch
records. There are two provisions that might be relevant here:
(1) Trial and appellate court memoranda, drafts of
opinions and orders, court conference records, notes, and
other written materials of a similar nature prepared by judges
or court staff acting on behalf of or at the direction of the court
as part of the court’s judicial decision-making process utilized
in disposing of cases and controversies before Florida courts
unless filed as a part of the court record;
(2) Memoranda or advisory opinions that relate to the
administration of the court and that require confidentiality to
protect a compelling governmental interest, including, but not
limited to, maintaining court security, facilitating a criminal
investigation, or protecting public safety, which cannot be
adequately protected by less restrictive measures. The degree,
duration, and manner of confidentiality imposed shall be no
broader than necessary to protect the compelling
governmental interest involved, and a finding shall be made
that no less restrictive measures are available to protect this
interest. The decision that confidentiality is required with
respect to such administrative memorandum or written
advisory opinion shall be made by the chief judge;
Fla. R. Jud. Admin. 2.420(c)(1) & (2).
We disagree with the law firm’s narrow interpretation of Rule 2.420(c)(1)
that would limit the rule to records relevant to disposing of a particular
case. Judges or court staff often exchange ideas about legal issues that
frequently arise. Such ongoing discussions are part of a “court’s judicial
decision-making process utilized in disposing of cases and controversies
before Florida courts,” even if the discussions are not tied to a particular
case. Fla. R. Jud. Admin. 2.420(c)(1).
E-mails exchanged within a Circuit concerning the adoption of a
proposed administrative order “relate to the administration of the court”
within the meaning of Rule 2.420(c)(2) and may be kept confidential only
“to protect a compelling governmental interest.” The Circuit does not rely
upon a subsection (2) claim of confidentiality as a basis for non-disclosure.
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We have examined the e-mails provided and conclude that one e-mail
pertains to the Circuit’s decision making process—the April 11, 2014 e-
mail from a staff attorney to the chief judge transmitting a proposed order
making a ruling in a particular case. The remainder of the e-mails are
subject to disclosure. We have examined the e-mails and conclude that
the attorney-client privilege does not disqualify the remaining e-mails from
public records disclosure.
WARNER and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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