A.J., I.J., C.C., F.C., M.C., B.C., A.C., O.R., E.R., J.R., K.K., R.K., S.K.,
S.K., L.L., T.S., F.S., S.T., L.T., J.T., T.T., A.K., A.R., A.T., C.B., C.B.,
J.N., M.B., J.F., AND N.F., Minors, and Church of Scientology Flag Service
Organization, Inc., Operator of the Scientology Cadet School, Appellants/Cross-
Appellees,
v.
TIMES PUBLISHING COMPANY, Appellee/Cross-Appellant,
and
Everett S. Rice, in his Capacity as Sheriff of Pinellas County, Florida,
Appellee.
Nos. 91-03547, 91-03550.
District Court of Appeal of Florida,
Second District.
Sept. 11, 1992.
Students and school operator sought to have court impose confidentiality on
records in sheriff's possession concerning reports of child abuse or
neglect at school which were being sought by newspaper. The Circuit Court,
Pinellas County, Ray E. Ulmer, Jr. and Jack A. Page, JJ., issued and then
dissolved temporary injunction and plaintiffs appealed. The District Court of
Appeal, Threadgill, J., held that plaintiffs had standing to bring action to
enforce statutory exemptions from disclosure of records concerning reports of
child abuse and neglect.
Reversed and remanded, and question certified.
[1] INFANTS
Florida Supreme Court holding that custodian of public records cannot
automatically delay release of document while someone else challenges
disclosure in court on ground that only custodian of public record being
requested has authority to assert exemption does not apply to case involving
custodian's refusal to assert statutory exemption for records concerning
reports of child abuse or neglect. West's F.S.A. s 119.01 et seq.
[2] RECORDS
Judicial enforcement of public records law is implicitly authorized by statutes
providing for immediate hearing and for stay orders. West's F.S.A. s 119.11(1,
3).
[3] INJUNCTION
Circuit courts have general power to issue injunctions, and this constitutional
and historical grant of equity jurisdiction may not be eliminated unless
adequate administrative or legal remedies sanctioned by Constitution are
provided. West's F.S.A. Const. Art. 5, s 20(c)(3).
[4] INFANTS
Students and school operator had standing to enjoin sheriff's office from
releasing incident reports concerning allegations of child abuse at school.
West's F.S.A. s 119.01 et seq.
[5] RECORDS
In construing public records law to permit actions both to compel custodian to
disclose records and to compel custodian to raise statutory exemptions, balance
is struck between two competing policies of state, policy that all public
records be open at all times for personal inspection, and policy that a person
be accorded right to demand that sensitive information about himself not be
disclosed to others. West's F.S.A. s 119.01(1); West's F.S.A. Const. Art.
1, s 23.
*161 Paul B. Johnson, Robert E. Johnson of Johnson & Johnson, Tampa, for
appellants/cross-appellees.
George K. Rahdert, Patricia Fields Anderson and Alison M. Steele of Rahdert &
Anderson, St. Petersburg, for appellee/cross-appellant Times Pub. Co.
Jean H. Kwall, General Counsel, Pinellas County Sheriff's Office, Largo, for
appellee Everett S. Rice.
THREADGILL, Judge.
The Church of Scientology Flag Service and thirty (30) minors appeal an
order dissolving a temporary injunction enjoining the Pinellas County Sheriff's
Office from releasing reports concerning allegations of child abuse at the
Scientology Cadet School. Times Publishing Company cross-appeals the earlier
order granting the temporary injunction. We reverse the order dissolving the
injunction.
On September 20, 1991, seven deputies of the Pinellas County Sheriff's Office
Youth Services Education Division were invited to the Scientology Cadet School
to give a puppet show. Upon arrival they noted conditions indicating that the
elementary school children were being neglected or abused. The deputies filed
incident reports with the Sheriff's office which were then referred to the
central abuse registry and tracking system of the Department of Health and
Rehabilitative Services pursuant to the mandatory referral provisions of
section 415.504(1)(f), Florida Statutes (Supp.1990).
The St. Petersburg Times submitted a public records request for all records in
the Sheriff's possession concerning reports of child abuse or neglect at the
school. The Sheriff found the initial incident reports *162 subject to
disclosure and prepared to release them. On October 16, 1991, the appellants
filed an ex parte emergency motion in the juvenile division of the circuit
court, requesting that the court impose confidentiality on all reports and
records generated as a result of harm to the children at the Cadet School. The
motion was based on statutory exemptions from public records disclosure of all
records concerning reports of child abuse or neglect. ss 119.07(3)(a),
415.51(1)(a), 39.411(4), Fla.Stat. (Supp.1990). The court granted the motion
and issued the temporary injunction the same day.
Another hearing was held the next day in the juvenile division to determine
whether to continue the temporary injunction. Upon learning that an H.R.S.
inspection of school premises had uncovered no basis to believe the children
were being abused or neglected, the juvenile division transferred the case to
the civil division on the ground that it had lost jurisdiction.
The civil division of the circuit court held a hearing on October 18, 1991, to
consider the temporary injunction and the appellants' request for an injunction
as to all other records concerning the incident. The court found that the case
fell clearly within chapter 119, the public records law, and that only the
custodian of documents, here the Sheriff, had standing to raise the statutory
exemptions. It accordingly dissolved the injunction on this procedural ground
and denied the appellants' request for additional relief by way of injunction.
We conclude this was error.
It appears from the record and the parties' briefs that the trial judge relied
on Tribune Company v. Cannella, 458 So.2d 1075 (Fla.1984) in dissolving the
injunction and dismissing the action. In Cannella the supreme court held
that only the custodian of the public record being requested has the authority
to assert an exemption to public disclosure.
We find that Cannella is distinguishable. Cannella involved a
newspaper's action against the custodian of public records in delaying the
release of the personnel files of three Tampa police officers in order to
accord the officers time to challenge the disclosure. In Cannella, the
supreme court held that disclosure of nonexempt public records may not be
automatically delayed for any reason except to permit the custodian to retrieve
a record and delete portions the custodian asserts are exempt. Id. at 1077
and 1079. No delay is permitted to allow a court challenge to disclosure:
"the purpose of the Act would be frustrated if, every time a member of the
public reaches for a record, he or she is subjected to the possibility that
someone will attempt to take it off the table through a court challenge."
Id. at 1079. To agree with the custodian's position, the court added,
"would cause us to write into the statute something that is not there, and this
we decline to do." Id. at 1078.
[1] We do not think Cannella can be extended to this case involving a
custodian's refusal to assert a statutory exemption. Protection of the
appellants' rights is the express statutory intent of the exemption. s
415.51(1)(a), Fla.Stat. (Supp.1990). [FN1] The custodian's refusal to assert
the exemption deprives them of their statutory protection.
FN1. Section 415.51(1)(a), Florida Statutes (Supp.1990) provides:
(1)(a) In order to protect the rights of the child and his parents or other
persons responsible for the child's welfare, all records concerning reports
of child abuse or neglect, including reports made to the central abuse
registry and tracking system and all records generated as a result of such
reports, shall be confidential and exempt from the provisions of s.
119.07(1) and shall not be disclosed except as specifically authorized by
ss. 415.502-415.514. Such exemption from s. 119.07(1) applies to
information in the possession of those entities granted access as set forth
in this section.
[2][3] Moreover, judicial enforcement of the public records law is
implicitly authorized by sections 119.11(1) and (3), Florida Statutes (1989).
[FN2] Florida Society of Newspaper *163 Editors, Inc. v. Florida Public
Service Commission, 543 So.2d 1262, 1266 (Fla. 1st DCA 1989). Cannella too
acknowledges the authority conferred by this section: "[s]ection 119.11
provides for an accelerated court hearing when, inter alia, the party seeking
to inspect a record challenges the exemption asserted by the custodian under
section 119.07(2)(a)" (emphasis added). 458 So.2d at 1078. The circuit
courts have a general power to issue injunctions. Art. V, s 20(c)(3), Fla.
Const. The constitutional and historical grant of equity jurisdiction may not
be eliminated unless adequate administrative or legal remedies sanctioned by
the constitution are provided. See Department of Business Regulation,
Division of Alcoholic Beverages and Tobacco v. Provende, Inc., 399 So.2d 1038,
1040 (Fla. 3d DCA 1981); State ex rel. Department of General Services v.
Willis, 344 So.2d 580, 589 (Fla. 1st DCA 1977).
FN2. Sections 119.11(1) and (3), Florida Statutes (1989), provide:
(1) Whenever an action is filed to enforce the provisions of this chapter,
the court shall set an immediate hearing, giving the case priority over
other pending cases.
(3) A stay order shall not be issued unless the court determines that there
is a substantial probability that opening the records for inspection will
result in significant damage.
[4] The appellants' action to compel the Sheriff to assert an applicable
statutory exemption is an action to enforce the provisions of chapter 119. It
is not necessary to write something into the statute to confer standing upon
the appellants. They have alleged that significant damage will result if the
Sheriff releases the records in derogation of the statutory exemptions.
In Cannella, the custodian appears to have improperly delegated its duty to
assert a constitutional exemption. The appellants, however, seek only to
compel the Sheriff to perform his duty under the law and to raise a statutory
exemption. On remand the trial court will have to determine if the report
sought to be excluded is exempt under the applicable statutes.
[5] In construing section 119.11, to permit actions both to compel the
custodian to disclose records and to raise statutory exemptions, we attempt to
strike a balance between two competing policies of this state: the policy that
all public records be open at all times for personal inspection and the policy
that a person be accorded the right to demand that "sensitive information"
about himself not be disclosed to others. s 119.01(1), Fla.Stat. (1989); Art.
I, s 23, Fla. Const.; Rasmussen v. South Florida Blood Service, 500 So.2d
533, 536 (Fla.1987). The logic for this policy is further evidenced by the
fact that the H.R.S. investigation revealed that the initial reports which the
Times seeks were unfounded as that term is defined by section 415.503(17),
Florida Statutes (1989).
We therefore find that the appellants had standing to bring an action to
enforce the provisions of chapter 119; however, we certify the following
question to the supreme court as a question of great public interest:
DOES A NON-CUSTODIAN WHO IS THE SUBJECT OF A PUBLIC RECORD HAVE STANDING TO
COMPEL THE CUSTODIAN TO ASSERT A STATUTORY EXEMPTION?
Although issues other than appellants' standing to raise statutory exemptions
were argued by appellants, we decline to address them because they were not the
basis for the trial court's final order and may properly be presented to the
trial court for a ruling on remand. Also, we have considered the Times' issue
on cross-appeal and find that it is without merit.
Reversed and remanded for further proceedings.
LEHAN, C.J., and DANAHY, J., concur.