Margo Dettelbach v. Department of Business and Professional Regulation , 261 So. 3d 676 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-3634
_____________________________
MARGO DETTELBACH,
Appellant,
v.
DEPARTMENT OF BUSINESS AND
PROFESSIONAL REGULATION,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Charles Dodson, Judge.
December 10, 2018
JAY, J.
Appellant alleges that the trial court erred in denying her
petition for writ of mandamus to compel the Department of
Business and Professional Regulation to produce a document that
she claimed was improperly withheld in response to her request
under the Public Records Act. Because the Department properly
withheld a document that was exempt from disclosure until the
conclusion of adversarial administrative proceedings, we affirm.
I.
In November 2013, over two years after Appellant filed a
complaint against Dr. Ellen Fannon with the Department’s Board
of Veterinary Medicine, a Veterinary Medicine probable cause
panel made a probable cause finding and directed the Department
to file a formal complaint against Fannon. The Department served
the complaint on Fannon the following month, but did not forward
it to the Division of Administrative Hearings. In April of 2014, the
probable cause panel met again and found probable cause to
initiate disciplinary proceedings against Fannon.
On October 26, 2015, the Department’s counsel, Elizabeth
Henderson, informed Appellant’s counsel that the matter would be
presented to the probable cause panel for reconsideration on
October 28, 2015. That same day, Appellant’s counsel responded
by sending a public records request via email seeking “to examine
any documents that have been provided to the probable cause
panel regarding this matter since the last meeting.”
The next day, the Department responded to the request with
the following qualifier: “Documents considered confidential under
the guidelines of Section 286.011(8), F.S. have not been included
as that information is considered attorney-client materials.” The
Department’s response also stated: “Please be advised that
DBPR does not monitor requests that have been closed. If a
requestor desires to seek additional information, we recommend
the creation of a new request.” (Emphasis in original).
Appellant’s counsel sought further clarification by asking:
“Ms. Henderson—based upon the response to my public records
request, no documents regarding the complaint against Dr.
Fannon have been provide[d] to the probable cause panel, is that
correct? Not even an agenda?” Henderson responded:
Your request was for documents that have been provided
to the panel since the last time the panel considered the
case. That was in April of 2014. Other than the
communication between Mr. Bayo [Fannon’s attorney]
and Ms. Senn [Henderson’s assistant], the only other
thing that was added to the file was your public records
request of October 27, 2014, for any documents that had
been added to the file since you had made your previous
public records request.
Henderson also stated that if Appellant’s counsel wanted the
entire 1200-page file again to “let us know, and you will be
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provided with an estimate for the cost of producing that to you.”
Appellant’s counsel responded that she did not want the entire file,
only new materials.
On October 28, 2015, the meeting of the probable cause panel
was conducted telephonically. During the meeting, one of the panel
members mentioned Henderson’s recommendation that the case
be closed due to insufficient evidence. Henderson responded:
In preparation for considering referring this case for trial,
interviewing the expert, going more carefully through the
materials, it looked like we were—we felt fairly solid
perhaps on the medical records the more we picked apart
at that and interviewed our expert. The Department’s in
a position now where we do not feel like this case would
be something, frankly, that would be a case we would win
at the Division. And our recommendation to you at this
point is to close the case, because we just do not have
enough evidence to overcome our burden at the Division.
After further discussion, the panel members voted to dismiss the
case.
Shortly after the meeting, Appellant’s counsel emailed
Henderson: “I asked repeatedly for copies of what had been
provided to the pc panel. Why was I not given a copy of your
recommendation that the case be dismissed?” Appellant received
the following response:
Please be advised that certain discussions and
correspondence between attorney and client—in this
instance the attorney is Ms. Henderson and the client is
the Board of Veterinary Medicine—may be excluded from
public review under the guidelines of Section 286.011(8),
F.S. It is the belief of the Department that this
information falls within the protections of this Section.
On October 29, 2015, Henderson entered an order closing the case
without further prosecution.
On June 25, 2017, Appellant filed in Leon County circuit court
a petition for writ of mandamus seeking the Department’s
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production of public records improperly withheld, asserting that
section 286.011(8) did not exempt production of the records.
Appellant also sought an award of attorney’s fees and costs. The
trial court issued an order directing the Department to show cause
why it should not grant the petition.
On June 30, 2017, the Department provided Appellant’s
counsel with two memoranda authored by Henderson, the first
dated February 26, 2014, and the second dated October 2, 2015.
The second memorandum stated in pertinent part: “Department
recommends reconsideration of the case in light of the fact that,
while probable cause was originally properly found, in preparation
for potential litigation, it has become apparent that the evidence
is not sufficient to take the case to trial.” (Emphasis in original).
Three days later, the Department responded to the show
cause order, conceding that section 286.011(8) was not applicable
and asserting for the first time that the applicable exemption was
provided by section 119.071(1)(d)1., Florida Statutes, which
temporarily exempted attorney work product until the conclusion
of the adversarial administrative proceeding. The Department
argued that Appellant was required to renew the public records
request after the disciplinary case was closed on October 29, 2015.
The Department further argued that Appellant did not make a
timely request for the documents until she filed the mandamus
petition, which was moot since the Department provided the
requested documents to Appellant on June 30, 2017.
Appellant filed a reply, arguing that the hearing before the
probable cause panel on October 28, 2015, was not an adversarial
administrative proceeding and that Henderson’s memorandum
was not prepared for imminent adversarial administrative
proceedings. Subsequently, the trial court held a hearing on the
petition, which the parties concede was not transcribed.
The trial court entered a final order denying Appellant’s
petition for writ of mandamus. The court agreed with the
Department that the Henderson memorandum was work product
and exempt from disclosure until the conclusion of the
administrative adversarial proceeding, i.e., the entry of the order
closing the disciplinary case against Fannon on October 29, 2015,
after which Appellant was required to renew her request for the
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document. Accordingly, the court concluded that the Department
did not unlawfully withhold the document and that Appellant was
not entitled to attorney’s fees and costs. This appeal followed.
II.
“In Florida, access to public records is constitutionally
guaranteed and enforced through the Public Records Act.” Lake
Shore Hosp. Auth. v. Lilker, 168 So. 3d 332, 333 (Fla. 1st DCA
2015). The Public Records Act is to be construed liberally in favor
of openness, and all exemptions from disclosure are to be construed
narrowly and limited to their designated purpose. Lightbourne v.
McCollum, 969 So. 2d 326, 332-33 (Fla. 2007); Rameses, Inc. v.
Demings, 29 So. 3d 418, 421 (Fla. 5th DCA 2010). The state has
the burden of showing that requested documents fall within the
statutory requirements for exemption from disclosure under the
Act. Lightbourne, 969 So. 2d at 333; Barfield v. Sch. Bd. of Manatee
Cty., 135 So. 3d 560, 562 (Fla. 2d DCA 2014). Where purely legal
issues are involved as to whether a document is a public record and
subject to disclosure, the de novo standard of review applies on
appeal. Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So. 3d 851,
855 (Fla. 1st DCA 2013).
A.
Appellant claims that the Department improperly withheld
the Henderson memorandum in response to her request under the
Public Records Act. Although the Department initially asserted
that the document was an attorney-client communication exempt
from disclosure under section 286.011(8), Florida Statutes (2015),
it subsequently conceded that section 286.011(8) was not
applicable. Instead, it asserted that the Henderson memorandum
was properly withheld under section 119.071(1)(d)1., Florida
Statutes (2015), which provides in pertinent part:
A public record that was prepared by an agency attorney
(including an attorney employed or retained by the
agency or employed or retained by another public officer
or agency to protect or represent the interests of the
agency having custody of the record) or prepared at the
attorney’s express direction, that reflects a mental
impression, conclusion, litigation strategy, or legal theory
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of the attorney or the agency, and that was prepared
exclusively for civil or criminal litigation or for
adversarial administrative proceedings, or that was
prepared in anticipation of imminent civil or criminal
litigation or imminent adversarial administrative
proceedings, is exempt from s. 119.07(1) and s. 24(a), Art.
I of the State Constitution until the conclusion of the
litigation or adversarial administrative proceedings.
The Department claimed that Appellant was not entitled to the
document until the conclusion of the adversarial administrative
proceeding on October 29, 2015—when the case was closed without
further prosecution—and that Appellant did not make a “ripe”
request for the document until she filed the mandamus petition,
which was rendered moot when the Department provided the
requested document to Appellant on June 30, 2017. Although the
Department’s production of the document mooted Appellant’s
request for production, the trial court still had to determine
whether the Department’s withholding of the document until suit
was filed was unlawful, entitling Appellant to an award of
attorney’s fees and costs. Schweickert v. Citrus Cty. Fla. Bd., 193
So. 3d 1075, 1079 (Fla. 5th DCA 2016); Mazer v. Orange Cty., 811
So. 2d 857, 859 (Fla. 5th DCA 2002).
Appellant claims that the Department could not withhold the
Henderson memorandum under section 119.071(1)(d)1. because
the memorandum recommended the dismissal of the case against
Dr. Fannon at a meeting of the probable cause panel, which was
not an adversarial administrative proceeding. The probable cause
panel’s decision whether to initiate a disciplinary action under
section 455.225, Florida Statutes, is not subject to the
requirements of section 120.57, Florida Statutes—which governs
adversarial administrative proceedings—because a probable cause
determination may be made without the licensee’s presence. Dep’t
of Prof’l Regulation, Div. of Real Estate v. Toledo Realty, Inc., 549
So. 2d 715, 719 (Fla. 1st DCA 1989). However, section 120.57 does
apply to disciplinary proceedings instituted under section 455.225
once the probable cause panel makes a determination of probable
cause and directs the Department to file a complaint or issue a
letter of guidance in lieu of a complaint. See Brown v. Dep’t of Prof’l
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Regulation, Bd. of Psychological Exam’rs, 602 So. 2d 1337, 1139-
40 (Fla. 1st DCA 1992).
Thus, adversarial administrative proceedings were instituted
once the probable cause panel found probable cause and directed
the Department to file a formal complaint against Fannon.
Henderson’s subsequent memorandum to the probable cause
panel—which contained Henderson’s opinion regarding the
strength of the Department’s evidence against Fannon—was
prepared exclusively for adversarial administrative proceedings
relating to the discipline of Fannon. To the extent Henderson
recommended that the case against Fannon be dismissed, this did
not negate the adversarial nature of the administrative
proceedings because the probable cause panel was authorized
under section 455.225(2) to continue the prosecution regardless of
Henderson’s recommendation.
B.
The section 119.071(1)(d)1. exemption “extends to those
records that contain [an] attorney’s mental impressions, litigation
strategy, or legal theory and are prepared exclusively for litigation
or in anticipation of imminent litigation.” Lightbourne, 969 So. 2d
at 332. Although it does not use the term “work product,” the
exemption is analogous to the work product privilege, which
“protects documents and papers of an attorney . . . prepared in
anticipation of litigation.” Marshalls of M.A., Inc. v. Witter, 186
So. 3d 570, 573 (Fla. 3d DCA 2016). It is very similar to opinion
work product which “consists primarily of the attorney’s mental
impressions, conclusions, opinions, and theories . . . .” State Farm
Mut. Auto. Ins. Co. v. Knapp, 234 So. 3d 843, 849 (Fla. 5th DCA
2018) (citation omitted). “[B]ecause proper representation
demands that counsel be able to assemble information and plan
her strategy without undue interference, opinion work product is
generally afforded absolute immunity.” Acevedo v. Doctors Hosp.,
Inc., 68 So. 3d 949, 953 (Fla. 3d DCA 2011); see also Andrews v.
State, 243 So. 3d 899, 902 (Fla. 2018).
Here, it was important that Henderson’s memorandum
remain exempt from disclosure during the pendency of the
adversarial administrative proceedings because disclosure of
Henderson’s opinion regarding the strength of the Department’s
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case could have prejudiced any effort by the probable cause panel
to continue prosecution of the case—if it had chosen to do so. See,
e.g., Andrews, 243 So. 3d at 901-02 (“Requiring a defendant to
reveal . . . the name of an expert witness whom the defendant may
wish to consider calling, along with the reasons why th[e] witness
may be of value to the defense, is ‘contrary to the work-product
doctrine because it would serve to highlight the thought processes
and legal analysis of the attorneys involved.’”) (citation omitted);
Butler v. Harter, 152 So. 3d 705, 712 (Fla. 1st DCA 2014) (“[T]he
decision-making strategy and opinions behind petitioner’s
proposal for settlement includes ‘opinion’ work product, which is
never discoverable.”).
C.
Even if the exemption of section 119.071(1)(d)1. was
applicable to Henderson’s memorandum, Appellant asserts that
the Department violated the Public Records Act by failing to reveal
that the document existed and by failing to provide it to Appellant
in a redacted form. In doing so, she cites section 119.07(1), Florida
Statutes (2015), which provides in pertinent part:
(d) A person who has custody of a public record who
asserts that an exemption applies to a part of such record
shall redact that portion of the record to which an
exemption has been asserted and validly applies, and
such person shall produce the remainder of such record
for inspection and copying.
(e) If the person who has custody of a public record
contends that all or part of the record is exempt from
inspection and copying, he or she shall state the basis of
the exemption that he or she contends is applicable to the
record, including the statutory citation to an exemption
created or afforded by statute.
Contrary to Appellant’s assertion, there is nothing in the
statute that expressly requires the Department to identify each
document that it asserts is exempt under the Public Records Act.
See, e.g., Lopez v. State, 696 So. 2d 725, 727 (Fla. 1997) (rejecting
defendant’s claim that the state attorney failed to adequately
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identify any statutory exemptions under the Public Records Act
where “the state attorney claimed that the withheld documents
were work product and not public records”) (emphasis added). This
court has cautioned that although the Public Records Act is to be
construed liberally in favor of the state’s policy of open
government, “this general principle of statutory construction does
not give the courts free rein to engraft their policy judgments into
the Act, nor does it authorize the courts to expand the
requirements of the Act beyond its plain language.” Jones v. Miami
Herald Media Co., 198 So. 3d 1143, 1145 (Fla. 1st DCA 2016). The
merit of imposing a duty on the Department to identify each
document in a record that it asserts to be exempt under the Act—
similar to the generation of a privilege log in response to a civil
discovery request—is a matter properly addressed to the
legislature rather than this court. * See, e.g., Jones, 198 So. 3d at
1146-47 (“[A]s DOC correctly argues, the plain language of this
statute does not require the agency to state the basis of the
exemption applicable to ‘each redaction.’ Instead, the statute
simply requires the agency to ‘state the basis of the exemption that
[the agency] contends is applicable to the record’ and to provide a
statutory citation for the exemption.”).
To the extent Appellant claims that the Department should
have provided the Henderson memorandum in redacted form,
there is nothing in the record that shows that Appellant made this
argument below. Appellant’s position was that the Department
violated the Public Records Acts by withholding the entire
memorandum, not just portions of it. The Department’s response
*For comparison, Florida Rule of Civil Procedure 1.280(b)(6)
provides: “When a party withholds information otherwise
discoverable under these rules by claiming that it is privileged or
subject to protection as trial preparation material, the party shall
make the claim expressly and shall describe the nature of the
documents, communications, or things not produced or disclosed in
a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the applicability of
the privilege or protection.” (Emphasis added). The highlighted
language is not included in the Public Records Act.
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was that the entire memorandum was exempt. Thus, the
possibility that only a portion of the memorandum was exempt was
not before the trial court and cannot be raised for the first time on
appeal. See Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) (holding
that the specific legal ground upon which a claim is based must be
raised at trial and a claim different than that will not be heard on
appeal); Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925,
928 (Fla. 2005) (holding that an issue must be presented to the
lower court and the specific legal argument or ground to be argued
on appeal must be part of that presentation if it is to be considered
preserved).
III.
Because the Department did not improperly withhold the
Henderson memorandum under section 119.071(1)(d)1., Appellant
was not entitled to attorney’s fees and costs. See § 119.071(1)(d)2.,
Fla. Stat. (2015) (“If a court finds that the document or other record
has been improperly withheld under this paragraph, the party
seeking access to such document or record shall be awarded
reasonable attorney’s fees and costs in addition to any other
remedy ordered by the court.”); § 119.12. Fla. Stat. (2015) (“If a
civil action is filed against an agency to enforce the provisions of
this chapter and if the court determines that such agency
unlawfully refused to permit a public record to be inspected or
copied, the court shall assess and award, against the agency
responsible, the reasonable costs of enforcement including
reasonable attorneys’ fees.”). Accordingly, we affirm the trial
court’s order in all respects.
AFFIRMED.
WOLF and WINSOR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
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Marcy I. LaHart, Micanopy, for Appellant.
Ross Marshman, Chief Appellate Attorney, Department of
Business and Professional Regulation, Tallahassee, for Appellee.
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