From: mgarde@superlink.net (Maureen Garde)
Subject: A.J. v. Times Publishing Co.
Date: 1996/11/07
Message-ID: <3281dcd9.2394015@news>
newsgroups: alt.religion.scientology



This is an interesting 1992 case involving the COS Cadet
School in Florida.  A visit by members of the Sheriff's
Office Youth Services Education Division (apparently 
by invitation of the school) resulted in the filing of
incident reports concerning suspected child abuse and
neglect.  A later investigation by the Department of 
Health and Rehabilitative Services revealed no basis to
believe the children were being abused or neglected. The
St. Petersburg Times sought to obtain copies of the 
initial incident reports through the Florida public records
law.  Despite the existence of an exemption in the public
records law that apparently would have permitted the
Sheriff's Office to refuse the request for the release
of the records, the Sheriff's Office prepared to release 
the records to the newspaper.  Before they could do so
the COS Flag Service Org and the Cadet School intervened
ex parte and obtained an injunction against disclosure.  
The issue in the case, which was certified by this court 
to the Florida Supreme Court, was whether third parties have
standing to intervene to compel the custodian of public 
records to assert an applicable statutory exemption against
disclosure.

By this time the appeal to the Florida Supreme Court is
likely to have been decided, but I don't have a reference
to it in my list of cases.  I'd appreciate hearing from
anyone who knows how this turned out.

605 So.2d 163 (Fla. Dist. Ct. App., 2d Dist. 1992)

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. 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
crossappeals 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)(fl, Florida Statutes
(Supp.1990).  

The St. Petersburg Times submitted a public records request for al1 records
in the Sheriff's  possession concerning reports of child abuse or neglect
at the school. The Sheriff found the initial  incident reports  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. secs. 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.  

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. sec.
415.51(1)(a), Fla.Stat. (Supp.1990).1 The custodian's refusal to assert the
exemption deprives them of their statutory protection.  

Moreover, judicial enforcement of the public records law is implicitly
authorized by sections 119.11(1) and (3), Florida Statutes (1989). 2
Florida Society of News 

paper 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, sec. 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 ref. Department of General Services
v. Willis, 344 So.2d 580, 589 (Fla. 1st DCA 1977).  

---footnotes---

1. Section 415.51(1)(a), Florida Statutes (Supp. 1990) provides:   (l)(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. 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. 

---end footnotes---

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.  

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. sec.
119.01(1), Fla.Stat. (1989); Art. I, sec. 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 crossappeal and find that it is without
merit.  

Reversed and remanded for further proceedings.  

---footnote---
(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.  
---end footnote---

LEHAN, C.J., and DANAHY, J., concur.  






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