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MEDIA GENERAL CONVERGENCE, INC. and Media General Operations, Inc., Petitioners, v. CHIEF JUDGE OF THE THIRTEENTH JUDICIAL CIRCUIT, Respondent.
Media General Convergence, Inc., and Media General Operations, Inc. are, respectively, the owner of television station NewsChannel 8/WFLA-TV and the publisher of The Tampa Tribune newspaper. They petition for a writ of mandamus directed to the Honorable F. Dennis Alvarez, chief judge of the Thirteenth Judicial Circuit, and argue that he must grant them access to materials related to specified conduct by one or more judges of that circuit. We deny the petition.
At issue are two overlapping categories of documents described in separate letters from the petitioners' attorneys to Judge Alvarez. First, the petitioners asked to see written materials concerning allegations that Thirteenth Circuit Judge Edward Ward had sexually harassed court employees. Second, they sought writings relating to “fraternization, romantic relationships or sexual contact” between any circuit or county judge in the circuit and “any personnel assigned to any courthouse located in Hillsborough County, whether such personnel are employed by the State of Florida, Hillsborough County, the Hillsborough County Sheriff's Office, or some other private or governmental entity.” Although we disagree to some extent with some of Judge Alvarez's reasons, we conclude that he properly denied the petitioners' requests for the documents.
The public nature of items such as these depends on whether they are “judicial records” within the meaning of Florida Rule of Judicial Administration 2.051. This rule implements the public's right of access to records made in the course of the official business of Florida's courts, as mandated by the Florida Constitution, article I, section 24. As defined by the rule, a judicial record subject to public access is “material created by any entity within the judicial branch ․ made or received pursuant to court rule, law or ordinance, or in connection with the transaction of official business by any court or court agency.” Fla. R. Jud. Admin. 2.051(b). Such material is open to public inspection unless it falls within an applicable exemption. Fla. R. Jud. Admin. 2.051(a).
By and large, none of the documents requested by the petitioners is a “judicial record” as defined in the rule. The reason has to do with the purely administrative nature of the office of chief judge. The Florida Constitution, article V, section 2(d), states that the chief judge “shall be responsible for the administrative supervision of the circuit courts and county courts in his circuit.” Florida Rule of Judicial Administration 2.050 details the administrative duties of a circuit chief judge. Neither the constitution nor the rule imbues him with authority to supervise the social, romantic or sexual behavior of other judges or, for that matter, of anyone else. Indeed, a chief judge, as such, has no official role in investigating judicial misconduct of any kind. That duty is vested in the Judicial Qualifications Commission, and the chief judge plays no part in its investigative or adjudicatory processes. Art. V, § 12, Fla. Const.; Fla. Jud. Qual. Comm'n R. For the most part, then, the documents requested of Judge Alvarez could not have been made or received by him in his capacity as chief judge pursuant to court rule, law or ordinance, or in connection with the transaction of official business. Simply put, they are not judicial records subject to compulsory public access. Fla. R. Jud. Admin. 2.051(b).
That said, we discern two ways in which some items included in the petitioners' request could be deemed judicial records as defined in rule 2.051. The first derives from canon 3(D) of the Code of Judicial Conduct, entitled “Disciplinary Responsibilities.” It requires any judge who receives information or has actual knowledge of a substantial likelihood that another judge has violated the Code, or that a lawyer has violated the Rules Regulating the Florida Bar, to “take appropriate action.” The canon describes this disciplinary responsibility as part of a judge's judicial duties.1 The commentary to canon 3(D) states that appropriate action “may include ․ reporting the violation to the appropriate authority or other agency.” Therefore, although a judge has no formal role in the investigatory processes of the Judicial Qualifications Commission or The Florida Bar, his or her judicial duties could include the making or receipt of a complaint alleging that another judge or a lawyer has committed misconduct. For this reason such a complaint would be a judicial record as defined in rule 2.051(b). However, pursuant to rule 2.051(c)(3)(A) or (B) it would be exempt from public disclosure until such time as the relevant authority finds probable cause, consistent with the rules of the Judicial Qualifications Commission and of The Florida Bar. Fla. Jud. Qual. Comm'n R. 23; R. Regulating Fla. Bar 3-7.1.
Judge Alvarez denied access to materials relating to the allegations against Judge Ward in part because he had turned them over to the Judicial Qualifications Commission, which maintained their confidentiality during its ongoing investigation. Further, he cited the above-mentioned rule 2.051(c)(3)(A) exemption when refusing to release the “fraternization” materials. Although a custodian of non-exempt judicial records generally may not shield them from disclosure simply by delivering them to an entity that treats them as confidential, e.g., Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982), rule 2.051(c)(3)(A) might exempt some of the sought-after items from public disclosure-with two important qualifications.
First, as the petitioners point out, the Judicial Qualifications Commission found probable cause against Judge Ward several days before Judge Alvarez declined to release documents relating to him. Second, the petitioners' records requests were not limited to complaints alleging judicial misconduct; they sought all materials regarding fraternization between any judge and anyone who worked at the courthouse. To the extent the requested items relate to a complaint of misconduct as to which probable cause has been found, or to behavior that does not amount to an allegation of judicial misconduct, the exemption contained in rule 2.051(c)(3)(A) does not apply.
Even so, it is apparent that another exemption applies to all judicial records that might be included in the petitioners' request. This one is suggested in the petitioners' allegation that Judge Alvarez “apparently conducted his own review of Judge Ward's actions.” Any such review, whether regarding Judge Ward or anyone else, would fall within a chief judge's official duties only if it was done as part of his or her participation in a civil rights complaint process prescribed by the Florida Supreme Court and the local circuit.
In 1993 the supreme court adopted a uniform policy and procedure addressing complaints of work-related civil rights violations, including complaints of sexual harassment, committed by or against employees of the State Courts System. The court ordered the policy and procedure incorporated in the State Courts System personnel rules and regulations. In re Personnel Rules and Regulations, Fla. Admin. Order (Sept. 23, 1993) (on file with Clerk, Florida Supreme Court). A court's chief judge performs some functions in the complaint procedure, one of which is attempting to help the parties resolve the complaint informally through mutual conciliation. Significantly, the court included a provision declaring that “[w]ritten materials developed through the use of this procedure are confidential pursuant to Rule 2.051, Public Access to Judicial Records, Florida Rules of Judicial Administration.” Therefore, these records would be exempt from public disclosure because they are “deemed to be confidential by court rule[.]” Fla. R. Jud. Admin. 2.051(c)(8).
The petitioners point out that when denying them access to the items Judge Alvarez did not cite the confidentiality provisions of these complaint procedures. This is of no moment, however. We note that the Florida State Courts System Personnel Regulations Manual includes a statement reflecting the above-described policy against discrimination in the workplace, and the Office of the State Courts Administrator has circulated a pamphlet which advises court system employees that complaints of sexual harassment will be treated confidentially. Further, the Thirteenth Judicial Circuit's Administrative Office of the Courts has issued an employee handbook assuring that “an employee's complaint [of sexual harassment] will be investigated in a confidential manner.” As evidenced by these materials, confidentiality provisions serve the important purpose of encouraging victims of sexual harassment and those who witness it to come forward, and they protect the subjects of such complaints from injury attendant to mistaken or false accusations. In this regard they are consistent with statutes that to varying degrees place cloaks of confidentiality over investigations of alleged civil rights violations in other realms. See, e.g., § 119.07(3)(p), Fla. Stat. (1999) (making complaints in custody of any unit of local government relating to housing discrimination confidential until finding regarding probable cause, investigation becomes inactive, or complaint is made part of record in any hearing or court proceeding); § 119.07(3)(u), Fla. Stat. (1999) (providing that records relating to allegation of employment discrimination are to remain confidential if alleged victim chooses not to file complaint and requests that records remain confidential); § 760.11(12), Fla. Stat. (1999) (making complaints filed with Florida Commission on Human Relations alleging violations of Florida Civil Rights Act confidential).
We do not believe that the intended beneficiaries of such confidentiality provisions-victim, witness, and accused alike-must lose the benefit of that important policy if one of the participants in the complaint process does not invoke it when responding to an inquiry, or does not strictly follow the prescribed investigation procedure. See Times Publ'g Co. v. A.J., 626 So.2d 1314 (Fla.1993). A holding to the contrary would betray victims and witnesses who previously have been induced to come forward by promises of confidentiality, and it would undermine the policy against discrimination in the workplace by rendering such promises unreliable in the eyes of the people they are intended to protect.
Mandamus will lie only to compel the performance of a clear legal duty. C.J. v. State, 779 So.2d 591 (Fla. 2d DCA 2001). In this case, most of the items requested by the petitioners are not judicial records subject to compulsory public disclosure. Any such materials that do qualify as judicial records are rendered confidential by the very rules and procedures under which they were gathered or received. Regardless of Judge Alvarez's reasoning, when declining to release the materials at issue he has not failed to perform a clear legal duty.
We recognize that this dispute has launched us into uncharted waters, and that we have navigated a course based on assumptions regarding the scope of a chief judge's administrative authority. As indicated by Judge Fulmer's dissent, those assumptions are debatable. For this reason, and because the resolution of that debate establishes the boundaries of the public's right of access to judicial records, we certify that this decision passes on the following question of great public importance:
UNDER WHAT CIRCUMSTANCES ARE DOCUMENTS REFLECTING SOCIAL, ROMANTIC, OR SEXUAL RELATIONSHIPS OF JUDGES DEEMED TO BE JUDICIAL RECORDS SUBJECT TO PUBLIC DISCLOSURE UNDER FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.051?
I respectfully dissent because I conclude that the records at issue in this dispute are judicial records that are subject to public disclosure. Through their petition for writ of mandamus, petitioners seek access to two categories of records, which they refer to as the “Judge Ward Records” and the “Fraternization Records.” Petitioners' request for the Judge Ward Records is directed to judicial records made or received by the Chief Judge, his staff, the Court Administrator of the Thirteenth Judicial Circuit, his staff, or Court Communications & Technology Services personnel relating to alleged misconduct by Judge Edward H. Ward of the Thirteenth Judicial Circuit. The request for the Fraternization Records is directed to judicial records made or received by the Chief Judge, his staff, the Court Administrator, or his staff concerning fraternization, romantic relationships, or sexual contact between any Thirteenth Judicial Circuit judge and courthouse personnel. Petitioners assert that these requests encompass judicial records subject to public disclosure pursuant to article I, section 24 of the Florida Constitution 2 and Florida Rule of Judicial Administration 2.051. I agree and, therefore, would grant the petition.
I am confident that my colleagues in the majority fully subscribe to Florida's strong policy in favor of open government and to the view that records generated while courts are acting in an administrative capacity should be subject to the same standards that govern similar records of other branches of government. My disagreement with the majority simply concerns the legal interpretation and application of certain rules implementing Florida's constitutional mandate that the public has a right of access to certain records made in the course of the official business of Florida's courts.
The majority begins with a review of the definition of judicial record and concludes that “by and large, none of the documents requested by petitioners is a ‘judicial record’ as defined in the rule because they were not received by Judge Alvarez in the transaction of official business.” This conclusion, in turn, is premised on the reasoning that the duties of a chief judge, as enumerated by article V, section 2(d) of the Florida Constitution and Florida Rule of Judicial Administration 2.050, do not include the duty to investigate judicial misconduct of any kind. Thus, the majority seems to define judicial records as only those records generated by an official in carrying out a duty specifically enumerated by rule, law or ordinance. In doing so, the majority construes the public record provisions too narrowly. The administrative responsibilities of a chief judge are not so rigid as to enable this court to predetermine exactly what documents could have been generated by him in all transactions of official business. Furthermore, the majority's conclusion ignores the facts established in this record, which are that Judge Alvarez in his capacity as the Chief Judge of the Thirteenth Judicial Circuit did make and receive records while investigating alleged misconduct.3
I recognize that a chief judge is not the “boss” of the other judges, each of whom hold the same constitutional officer status as the chief judge. However, pursuant to article V, section 2(d) of the Florida Constitution, the chief judge is “responsible for the administrative supervision of the circuit courts and county courts in his circuit.” It is my view that any action taken by a chief judge that relates to the day-to-day functioning of the courts constitutes the transaction of official business, whether or not the action taken is expressly listed as a duty in Florida Rule of Judicial Administration 2.050. For example, if a chief judge engaged in negotiations and correspondence regarding the lease of branch courthouse facilities, I assume the majority would agree that any resulting e-mail communication or other documentation would be subject to public disclosure because the chief judge would be carrying out an administrative activity in his capacity as the chief judge. However, the enumerated duties of a chief judge do not include the procurement of leases for courthouse facilities.
The majority next discusses the application of canon 3(D) of the Code of Judicial Conduct to render some of the requested items a judicial record and the interplay with the exemption provision of Florida Rule of Judicial Administration 2.051(c)(3)(A) as to some of those items. I agree with petitioners' argument that rule 2.051(c)(3)(A) has no application in this case because this rule addresses “[c]omplaints alleging misconduct against judges, until probable cause is established.” Nowhere in the record before us did Judge Alvarez ever assert that he received a formal complaint about Judge Ward. In fact, in response to petitioners' October 1999 public records request, Judge Alvarez stated that “I do not have custody of, nor am I aware of, any ‘complaints of sexual harassment and/or sexually inappropriate comments or behavior made against Hillsborough Circuit Judge Edward Ward.’ ” Moreover, there was no formal complaint made against Judge Ward by any alleged victim contained in the records released by the Judicial Qualifications Commission. On the contrary, the alleged victims filed affidavits stating that they did not wish to file a complaint. Nevertheless, I will not belabor this point because the majority does not rest its conclusion on the application of rule 2.051(c)(3)(A). Instead, the majority ultimately relies on an exemption that it concludes applies to all judicial records that might be included in the petitioners' request.
The majority contends that any review that Judge Alvarez did undertake regarding Judge Ward or anyone else would fall within the confidentiality provisions of the work-related civil rights complaint procedures adopted by the supreme court. I agree that complaints made and materials developed through the use of these procedures may be confidential. However, as recognized by the majority, there is nothing in the record to suggest that the civil rights complaint procedures were invoked by anyone at any time. The majority finds this fact to be of no moment. I find it to be of great moment because I believe the confidentiality provisions of the civil rights complaint procedures only apply when those procedures are, in fact, being utilized. Furthermore, I do not understand the majority's fears that the intended beneficiaries of the confidentiality provisions will be betrayed if we order the records at issue to be disclosed. In this case, those persons who could be protected by the confidentiality provisions have expressly stated that they do not wish to initiate any complaints. Their decision not to invoke the complaint procedures in no way affects the rights of those who do invoke the procedures to receive the protections afforded by the confidentiality provisions.
I decline to address some of the arguments of the parties that are directed specifically to the Fraternization Records because they are not specifically addressed in the majority opinion. However, I wish to express my disagreement with respondent's position that “fraternization, romantic relationships or sexual contact” are not part of any court's official business and, therefore, there is no public right of access to materials or e-mails concerning such activity. Judge Alvarez undertook an investigation of these activities in his capacity as chief judge and it is this fact that renders the records he generated or received to be judicial records subject to disclosure.
For the reasons expressed in this dissent, I am of the view that Judge Alvarez had a clear legal duty to grant petitioners' record request or, at a minimum, to seek an in camera inspection proceeding in which claimed exemptions could be considered. A failure to produce these records violates both the letter and the spirit of the Florida Constitution and rule 2.051. I would grant the petition for writ of mandamus.
1. The Florida Code of Judicial Conduct, Canon 3D states:(1) A judge who receives information or has actual knowledge that substantial likelihood exists that another judge has committed a violation of this Code shall take appropriate action.(2) A judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action.(3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2) are part of a judge's judicial duties and shall be absolutely privileged, and no civil action predicated thereon may be instituted against the judge.
2. Article I, section 24(a) of the Florida Constitution provides, in part:Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government․
3. Judge Alvarez indicated that such records existed in responding to requests on March 6, 2000, wherein he wrote that “any records in my custody pertaining to your request have already been furnished to the Florida Judicial Qualifications Commission (JQC) pursuant to its request.” Moreover, in his response to the petition, counsel for Judge Alvarez argues that at least part of petitioners' current request for materials is moot because the JQC's disclosure to the public included affidavits and documents “created in Respondent's administrative review of the matter.”
NORTHCUTT and GREEN, JJ., Concur. FULMER, A.C.J., Dissents with opinion.
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Docket No: No. 2D00-1346.
Decided: May 25, 2001
Court: District Court of Appeal of Florida,Second District.
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