One of Florida’s most respected judges last week said appellate courts should carefully scrutinize trial court rulings that permit state agencies to keep their records secret.
He is right. I hope the Florida Supreme Court is listening.
Judge Chris Altenbernd is from Tampa and has served on the Lakeland-based Second District Court of Appeal for 25 years. On Oct. 1 Altenbernd split with two of the court’s other judges in a case concerning a stack of Department of Citrus email messages and attachments. Those two judges let stand a trial court’s ruling that the documents deserved secrecy, based upon a statute that protects certain legal documents prepared in anticipation of litigation. The two judges were satisfied that “competent, substantial evidence” supported the lower court’s decision.
That’s not a high enough standard, Judge Altenbernd said.
“I believe it is incumbent on this court to review all of these records to make our own separate determination as to whether the documents in their entirety fall within the anticipation-of-imminent-litigation exemption,” he wrote.
The split between Altenbernd and his colleagues arose because of seemingly inconsistent Florida Supreme Court rulings.
In a 1997 case, the state Supreme Court refused to “second guess” a trial judge’s ruling on a Public Records Act exemption because “competent substantial evidence” supported the trial court’s findings. But in a pair of 2003 cases (one involved The Tampa Tribune), the state’s high court said appellate judges should weigh whether a document is a public record “de novo” — that is, as if the issue is being decided for the first time, and without deferring to a trial judge’s ruling.
In the Department of Citrus case, the trial judge had reviewed the email messages and attachments, but his opinion didn’t make separate findings regarding each document. Instead, the trial judge ruled broadly, relying upon the agency lawyer’s testimony that the documents were prepared in anticipation of litigation and contained the lawyer’s mental impressions, legal theories, legal conclusions, and legal strategies.
AgroSource, the company seeking the records, was at a disadvantage, because it had not seen the records. The trial judge looked at them privately. The appellate court did, too, and AgroSource hoped the appeals judges would find that not every page needed to be kept secret.
Judge Altenbernd was willing to provide that careful review. “Given the undisputed, but secret, content of these emails and the strong public policies supporting open government in Florida,” he wrote, “I am convinced that both the trial court and this court can and should independently examine the documents to determine whether they are entirely exempt.”
He added: “When an agency declines to produce the entirety of a document, the member of the public who requests the document has no ability to make any specific argument that the document should be produced in part. It seems to me that when public records are kept inside the proverbial black box, the trial court’s review should include a determination of whether the documents could be redacted and produced in part.”
The Florida Constitution gives appellate courts a good reason to apply such careful scrutiny to exemption claims. Every person in our state has a constitutional right to inspect or copy any public record. And although the Legislature is allowed to make exceptions, laws that provide for secrecy must state why concealment is necessary and must be no broader than necessary.
Appellate judges are in a unique position to make sure that constitutional command is followed. Instead of deferring to trial judges who allow secrecy, appellate courts should look closely at exemption claims and make certain that they are not being applied more broadly than necessary.
By scrutinizing documents that agencies want to conceal, our appellate courts can help guarantee that the constitutional right of access to public records is respected.