JOHANSON v. STATE (2004)

ON MOTION FOR REHEARING/CLARIFICATION

We grant the motion for rehearing, withdraw our previously issued opinion, and substitute the following.

This is an appeal from the circuit court's denial of appellant's petition for writ of mandamus compelling the state attorney's office to comply with appellant's public records request.

Appellant was convicted of aggravated battery.   The information charged that the victim had suffered “great bodily harm, permanent disability or permanent disfigurement” caused by appellant “throwing a cup of bleach in his eyes.”

Appellant filed a public records request with the state attorney's office seeking lab reports and medical records regarding the victim's injury.   Appellant's request noted that the state's discovery response in the criminal case listed lab reports and medical records.

The state's unsworn response to the mandamus petition conceded that its discovery submission listed Dr. Lieberman of the Coral Springs Medical Center and “lab report, medical report(s), lab report, as mentioned in the police reports.”   The response indicated that the assistant state attorney who had prepared the discovery submission reviewed her office's file and did not find any lab or medical reports.   The state argued that it did not possess the requested records and that the mandamus petition should be denied.   The circuit court adopted the state's response and denied the motion.

We agree with appellant that the circuit court erred in not conducting an evidentiary hearing, including an in-camera inspection of the state attorney's file, on the contested issue of whether the state had the requested reports in its possession.

At the hearing, the trial court may consider and rule on arguments that the records are covered by exemptions from disclosure.

Reversed and remanded for an evidentiary hearing.

PER CURIAM.

STONE, WARNER and GROSS, JJ., concur.