August 29, 2016 – Miami Herald

by Mary Ellen Klas

A Florida appellate court has ruled that the Florida Department of Corrections did not violate the public records law when it redacted prison documents and inmate records sought by the Miami Herald but failed to specify the legal authority for each redaction.

In a unanimous opinion, a three-judge panel of the First District Court of Appeal in Tallahassee concluded that Florida’s Sunshine laws did not require the agency to explain each redaction when it responded to the Herald’s public record requests in 2014 and 2015.

However, Judge Stephanie Ray acknowledged in a concurring opinion that an agency’s use of exemptions could render the state’s Sunshine law “meaningless.” She said the Monday ruling should “not foreclose a future challenge” to an agency’s use of the public records act.

The Herald sought numerous documents and videotapes from FDC as part of its extensive investigation, Beyond Punishment, that uncovered details about inmate deaths and allegations of abuse and cover-up at the state’s prison agency. The department refused to turn over the videos and provided many documents with numerous sections blacked out. To justify the exemptions, the agency attached a standard form with check boxes identifying five statutory citations with the exemptions language.

The process did not allow the Herald to validate whether the redactions were appropriate because the agency did not specify which exemptions applied to which redactions.

The Herald filed a complaint on Aug. 28, 2015, seeking relief pursuant to chapter 119, Florida’s public records law, and asked a court to compel FDC to cite the exemption related to each redaction and remove redactions the court deemed unjustified. Separately, the Herald ask the agency to produce specific video footage depicting corrections officers extracting an inmate from a prison cell.

Leon County Circuit Court Judge George S. Reynolds initially ruled against the Herald’s request, disagreeing with its claim that “a requestor of public records is entitled to the specific exemptions relied upon for each redaction in every circumstance.”

But four months later, he reconsidered his initial ruling and ordered the agency to cite the exemption for each specific redaction.

“What I am requiring is that there be some type of footnoting,” Reynolds said at the hearing. He suggested each redaction be listed with numbers corresponding to a “key” or index of the statutory exemptions relied upon by the agency for each record at issue.

The agency appealed, arguing that the order exceeded the requirements in the law. By reversing the ruling, the appellate court leaves unsettled how far an agency can go to make redactions to a public record.

State law requires that state and local governments provide a record-by-record identification of claimed exemptions, and, upon request, state in writing and “with particularity” the reasons it concluded a record is exempt.

“As 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,’ ” wrote Judge T. Kent Wetherell in the ruling. “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.”

In her concurring opinion, however, Judge Ray suggests that there may be room for improvement in the law and for a potential legal challenge against the use of the redactions exemption.

“Given that the undisputed purpose of the Public Records Act is to promote government transparency, Appellees’ concern is significant,” she wrote. “However, this Court’s opinion should not foreclose a future challenge to an agency’s method of identifying the basis of claimed exemptions in a public records response if it essentially renders the mandates of Florida’s Public Records Act meaningless.” [READ MORE]