final until disposition of timely filed motion for rehearing.
appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 16-12412, Thomas J.
Serota Helfman Cole & Bierman, P.L. and Edward G. Guedes
and Samuel I. Zeskind, for appellant/cross-appellee.
J. Greenstein, P.A. and Alan Greenstein, for
ROTHENBERG, C.J., and SUAREZ and SALTER, JJ.
appeal concerns a public records request propounded by the
Appellee/Cross-Appellant Dr. James E. McDonough
("McDonough") on the City of Homestead
("City") after McDonough had filed a Notice of
Intent to File Claim against the City. The City objected to
production of the documents requested and, after a hearing,
the trial court sustained in part and denied in part the
City's objections ordering production of certain
documents. The City appeals from that part of the non-final
order granting McDonough's request for records. McDonough
cross-appeals the trial court's denial in part of his
request for records. We affirm in part and reverse in part
finding, essentially, that all of the documents requested are
privileged and not subject to production pursuant to Chapter
119 or section 768.28 (16)(b), Florida Statutes (2015).
October 2012, an incident allegedly occurred between
McDonough and City of Homestead police officer Murguido while
Officer Murguido was off-duty. McDonough filed a Notice of
Intent to file a claim against the City. While that Notice of
Intent was pending, McDonough filed a complaint against
Officer Murguido for defamation, for alleged actions taken
while Officer Murguido was off-duty and not acting in his
official capacity. The City was not named in that complaint.
McDonough then filed a public records request with the City
for documents related to the City's decision to defend
Officer Murguido in the defamation action and to retain the
law firm of Weiss, Serota, Helfman, Cole and Bierman to
defend the action. The City responded that the documents
requested were exempt from production under Chapter 119,
section 768.28(16)(b), and section 90.502, as they contained
the impressions of attorneys retained by the City related to
the pending Notice of Intent claim, which allegedly arose out
of the same October 2012 incident. At the September 2016
hearing on McDonough's records claim, the trial court
reviewed the documents in camera and found that the Notice of
Intent claim and the Murguido action were inextricably
intertwined. The five emails in question were all contained
in the City's risk management file. At the end of the
proceedings, the trial court determined that of the five
email correspondence documents at issue, the City properly
claimed Records 1 and 2 as exempt based on the claims file
exception in section 768.28(16)(b); the court concluded that
although Records 3 and 4 were contained in the risk
management file they were not confidential and exempt and
ordered the City to produce them. Record 5 was acknowledged
in open court by McDonough to be confidential, privileged and
exempt. The trial court additionally denied McDonough's
claim that the City violated Chapter 119 by failing to
produce additional non-exempt responsive records. The City
has appealed from that part of the order requiring it to
disclose Records 3 and 4; McDonough has cross-appealed from
that part of the order determining Records 1 and 2 to be
exempt from disclosure.
disagree with the trial court's determination that
Records 3 and 4 are not exempt from disclosure, for two
reasons. First, Records 3 and 4 are contained in the
City's risk management file and are, pursuant to the
plain language of section 768.28(16)(b), exempt from
disclosure for that reason alone. Second, there is no
statutory exception to that statute that would allow the
trial court to require disclosure of some risk management
file records and not others based on the court's
determination that the records do not compromise the
government's risk management analysis or settlement
negotiations. In other words, the court cannot find that
although the documents are exempt from disclosure based on
768.28(16)(b), they must still be produced because the court
finds there is no prejudice in such production.
record on appeal indicates that the email correspondence
documents at issue were generated in July 2015, well after
McDonough filed his April 2014 Notice of Intent to the City.
Those documents were placed in the City's risk management
file prior to McDonough's October 2015 first public
records request. The trial court recognized on the record
that the claims potentially exposing the City to liability in
McDonough's Notice of Intent were inextricably
intertwined with McDonough's complaint against Officer
Murguido, as both the Notice of Intent and Murguido complaint
arose out of the same set of alleged facts and circumstances.
The City would necessarily have to evaluate its exposure to
liability in its decision to defend Officer Murguido, as well
as address any potential and related risk inherent in
McDonough's Notice of Intent. As Records 3 and 4 were
generated and placed in the City's risk management claims
file in response to McDonough's Notice of Intent, those
records are, regardless of their content, confidential
pursuant to the plain language of section 768.28(16)(b),
Florida Statutes (2015). That statute provides,
Claims files maintained by any risk management
program administered by the state, its agencies, and its
subdivisions are confidential and exempt from the provisions
of s. 119.07(1) and s. 24(a), Art. I of the State
Constitution until termination of all litigation and
settlement of all claims arising out of the same incident,
although portions of the claims files may remain exempt, as
otherwise provided by law. (emphasis added).
statute clearly indicates that all of the email
correspondence documents at issue contained in the City's
risk management claims file, including Records 3 and 4, are
confidential and exempt from disclosure until such time as
the issues or claims related to McDonough's Notice of
Intent have been resolved.
addition, with regard to Records 3 and 4, the trial court
erred by creating a "no harm" exception to section
768.28 that is not contained in either statute or case law.
While finding that the documents were contained in the risk
file and as such should be exempt, the trial court determined
that their production would not harm the City and would not
place the City at any disadvantage, and thus were not
confidential. This ignores the plain language of the statute
indicating that the entire claims file is exempt
from disclosure until resolution of the claim or claims. The
statute does not contain such an exception to the privilege.
As much as judges, both trial court and appellate, would like
to carve out such an exception to help expedite the case, we
cannot do so. Florida courts are "without power to
construe an unambiguous statute in a way which would extend,
modify or limit its express terms or its
reasonable and obvious implications. To do so would
be an abrogation of legislative power." Holly v.
Auld, 450 So.2d 217, 219 (Fla. 1984) (quoting
American Bankers Life Assurance Co. of Florida v.
Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968));
State v. McMahon, 94 So.3d 468, 472-73 (Fla. 2012);
McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.
reverse that part of the order on appeal finding Records 3
and 4 non-exempt and remand for further proceedings
consistent herewith. For the same reasons as discussed above,
we affirm that part of the order finding Records 1 and 2 are
confidential and exempt from disclosure where not only are
those documents part of the claim file, but also clearly