LinkedIn by Edward Birk
March 22, 2017
As Sgt. Joe Friday says, “just the facts, ma’am.”
Courts are not legislatures and legislatures are not courts. A recent public-records lawsuit nicely illustrates the separation of powers doctrine and the limited decision-making of courts called upon to resolve disputes about whether the legislature has exempted a particular public record from public access.
The records at issue were quarterly reports an insurance company was required to give to state insurance regulators. They include county-by-county data about new and cancelled policies, and reasons for cancellations. The insurance company, State Farm, claimed the reports were trade secrets that would give its competitors an unfair advantage if the secrets were accessible by the public.
The trial court agreed, based on a public-records exemption in the Florida Trade Secret Act (chapter 688, Florida Statutes). State regulators appealed. The First District Court of Appeal affirmed the trial court decision without too much discussion.
For public records requestors and for custodians, the interesting part of the appellate decision was a concurring opinion where the judge agreed with his fellow judges, and wrote his separate opinion to remind us and his colleagues how narrowly a trial court must be thinking when applying public records exemptions.
During the trial, there were arguments about harm to consumers and burdens on government agencies. And, oh yes, there was evidence whether the insurance report contained data that met the Trade Secret Act’s definition of trade secret.
It’s up to the Legislature, not the courts, to worry about policy issues such as whether consumers will be harmed by a records exemption or if an exemption will create more work for public agencies. Once the Legislature enacts an exemption, the only role for a court is to decide if a particular public record meets the exemption’s definition.
That’s where Joe Friday comes in.
“[T]hose concerns cannot help us decide what we are supposed to decide: whether State Farm proved that its data meets the statutory trade-secret definition,” wrote Judge Allen Winsor.
Florida’s long-standing policy, well-established in our state Constitution and Statutes and court decisions, is that if there is doubt whether a legislatively enacted exemption applies to a particular public record, then the public must continue to have access to the record. Custodians and requestors often include other policy arguments. As Judge Winsor reminded his colleagues, let’s stick to the facts.
When in doubt, an exemption cannot apply. A great source for all things about Florida’s open government and records laws is the 2017 Government-in-the-Sunshine Manual, prepared by Pat Gleason in the Attorney General’s Office, and published by the Florida First Amendment Foundation. Get one. http://floridafaf.org/faf-products/
The case was Office of Insurance Regulation v. State Farm Florida Insurance Company, Case No. 1D16-22301 (Fla. 1st DCA March 20, 2017).
And remember, as Justice Louis D. Brandeis said:
Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. [READ MORE]