MAGGY HURCHALLA v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

EVERGLADES LAW CENTER, INC., MAGGY HURCHALLA,

and DONNA MELZER,

Appellants,

v.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, a public

corporation of the State of Florida, MARTIN COUNTY, a political

subdivision of the State of Florida, LAKE POINT PHASE I, LLC, a

Florida limited liability company, and LAKE POINT PHASE II, LLC, a

Florida limited liability company,

Appellees.

Nos. 4D18-1220, 4D18-1519 & 4D18-2124

[September 18, 2019]

Consolidated appeal from the Circuit Court for the Nineteenth Judicial

Circuit, Martin County; William L. Roby, Judge; L.T. Case Nos. 43-2017-

CA-001098 and 43-2018-CA-000108.

Marcy I. LaHart of Marcy I. LaHart, P.A., Micanopy, for appellant

Everglades Law Center, Inc.

Virginia P. Sherlock of Littman, Sherlock & Heims, P.A., Stuart, for

appellant Maggy Hurchalla.

Donna Sutter Melzer, Palm City, pro se.

Thomas E. Warner and Dean A. Morande of Carlton Fields Jorden Burt,

P.A., West Palm Beach, for Amicus Curiae First Amendment Foundation,

Inc.

Brian J. Accardo, James W. Sherman, Judith W. Levine and Laura E.

Scala-Olympio of South Florida Water Management District, West Palm

Beach, for appellee South Florida Water Management District.

Meagan L. Logan of Marks Gray, P.A., Jacksonville, and Kansas R.

Gooden of Boyd & Jenerette, P.A., Jacksonville, for Amicus Curiae Florida

Defense Lawyers Association.

Richard Grosso of Richard Grosso, P.A., Davie, for appellants

Everglades Law Center, Inc., and Maggy Hurchalla.

Daniel S. Melzer, Palm City, for appellee Donna Melzer.

CONNER, J.

We address a matter of first impression involving shade meetings 1 and

the public’s interest in protecting government in the sunshine and

mediation communications. Reading applicable provisions of the Florida

Constitution and statutes in pari materia, we conclude that mediation

communications disclosed by a governmental attorney during a shade

meeting are to be redacted from the transcript of the shade meeting when

it becomes a public record.

Everglades Law Center, Inc. (“ELC”), Maggy Hurchalla (“Hurchalla”),

and Donna Sutter Melzer (“Melzer”) (collectively, “Appellants”), appeal

several orders entered by the trial court involving the trial court’s

determination that mediation communications are exempt from disclosure

with reference to the transcript of a shade meeting conducted by the South

Florida Water Management District (“the District”). Appellants also appeal

the trial court’s order denying their motions to dismiss for improper venue.

We affirm without discussion the trial court’s venue ruling. We also affirm

the trial court’s determination that mediation communications are subject

to redaction from the shade meeting transcript and explain our analysis. 2

However, the trial court erred in denying Appellants’ petition for

mandamus to compel the disclosure of the full shade meeting transcript

without conducting an in camera review of the transcript to determine if

1 Meetings held between a governmental board and its attorney pursuant to

section 286.011(8) to discuss settlement and litigation strategy, which are not

open to the public, are commonly referred to as “shade meetings.” Anderson v.

City of St. Pete Beach, 161 So. 3d 548, 551 n.2 (Fla. 2d DCA 2014).

2 Appellants also raise an issue about technical compliance with section

286.011(8), Florida Statutes (2017), in that they had not been provided with a

redacted transcript of the closed meeting (showing compliance as to who was

present during the closed meeting and the time period of the meeting). However,

because Appellants stipulated that the trial court could rule without reviewing

the meeting transcript and because the transcript is neither in the trial court

record nor the appellate record, we do not reach the issue. See Goodwin v. State,

751 So. 2d 537, 544 (Fla. 1999) (“If the error is ‘invited,’ . . . the appellate court

will not consider the error a basis for reversal.”); Applegate v. Barnett Bank of

Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In appellate proceedings the

decision of a trial court has the presumption of correctness and the burden is on

the appellant to demonstrate error.”).

2

redactions were appropriate. Thus, we affirm in part, reverse in part, and

remand the case for further proceedings consistent with this opinion.

Background

Lake Point Phase I, LLC and Lake Point Phase II, LLC (collectively, “Lake

Point”), the District, and Martin County entered into a partnership for an

environmental project. After contract disputes arose, Lake Point brought

suit against the District, Martin County, and Hurchalla, claiming damages

(“the Lake Point Litigation”). During the course of that litigation, the trial

court ordered the parties to attend mediation.

The District filed a certification of authority, naming its attorney, Brian

Accardo, as its representative at mediation, certifying that he “ha[d] full

authority to negotiate on behalf of the District and to recommend

settlement to the District’s Governing Board [(“the Board”)].” Several

mediation sessions were conducted by the mediator with all of the parties.

Eventually, Lake Point and the District developed a settlement agreement

at mediation (“the MSA”).

The District held duly noticed meetings that included closed and

confidential attorney-client sessions in accordance with section

286.011(8), Florida Statutes (2017). At issue in this case is one specific

meeting that occurred on August 23, 2017 (“the Shade Meeting”). An open

meeting immediately preceded the Shade Meeting. When the Board

convened the Shade Meeting, a certified court reporter recorded the entire

closed-door session, as required by statute.

According to the minutes of the public portion of the meeting, only the

Board members and two attorneys representing the District in the Lake

Point Litigation were present during the Shade Meeting. At the conclusion

of the Shade Meeting, the Board immediately returned to an open meeting,

whereupon the chair solicited a motion to “accept or reject the terms of the

settlement,” referring to the discussion during the Shade Meeting. The

Board approved the MSA at that open meeting.

Subsequently, Lake Point and the District entered a joint stipulation

for dismissal of their respective claims against one another with prejudice.

Eventually, Martin County and Lake Point entered into a separate

mediated settlement agreement, resulting in Martin County being

dismissed from the litigation. The litigation between Lake Point and

Hurchalla continued to a jury trial.

Notably, ELC, a nonprofit law firm dedicated to representing the public

3

interest in environmental and land use matters, became interested in the

Lake Point Litigation. ELC strives to enhance governmental transparency

regarding governmental decisions impacting the environment.

After it was dismissed from the litigation, the District filed an action for

declaratory relief, naming ELC, Martin County, Hurchalla, and Lake Point

as defendants. The District alleged that shortly after it approved the MSA,

Appellants made a public records request for the Shade Meeting

transcript. The District requested the trial court enter a declaratory

judgment that it was not required to produce and disclose the Shade

Meeting transcript.

ELC filed its answer and also filed a counterclaim in the form of “a

petition for writ of mandamus to enforce the provisions of Chapter 119,

Florida Statutes.” ELC requested that the trial court enter a writ requiring

the District to produce the full Shade Meeting transcript. Melzer filed a

similar counterclaim seeking disclosure of the full transcript.

At the hearing on ELC’s petition for writ of mandamus, the District

argued that the Shade Meeting transcript was exempt from disclosure

pursuant to section 44.102(3), Florida Statutes (2017), which states: “All

written communications in a mediation proceeding, other than an

executed settlement agreement, shall be exempt from the requirements of

chapter 119.” ELC argued that the statements made during the Shade

Meeting and the transcript were not “written communications” and the

statements were not made in a “mediation proceeding.” At no time during

the proceedings below did Appellants ask the trial court to conduct an in

camera review of the Shade Meeting transcript. The transcript was not

filed in the trial court and is not part of the appellate record.

The trial court entered an order denying ELC’s petition for writ of

mandamus and entering final judgment on ELC’s counterclaim. In its

written order, the trial court noted that “because the parties agreed that

this Court was not required to take evidence, the Court relies on the

representations of counsel,” and found that “as a matter of law, mediation

communications reflected in the transcripts are exempt from disclosure

under Chapter 119.”

Based on Appellants’ stipulation that the trial court’s ruling as to the

petition for mandamus was determinative of the declaratory judgment

actions, the trial court entered final judgment in favor of the District on all

claims and counterclaims filed by Appellants. The Appellants gave notice

of appeal.

4

Appellate Analysis

In support of their contention that they are entitled to the full transcript

of the Shade Meeting, Appellants rely on section 286.011(8), Florida

Statutes (2017). Section 286.011(8) provides for a limited exception to the

public meeting requirements of Florida’s Sunshine Law. Appellants

contend that section 286.011(8) does not contain an explicit exception for

mediation communications. Appellants further contend that there is no

provision of chapter 119, Florida’s Public Records Act, which permanently

exempts the disclosure of the Shade Meeting transcript. Additionally,

Appellants argue that the trial court erroneously interpreted statutes

pertaining to mediation to conclude that there is a public records

exemption from disclosure of the Shade Meeting transcript. In Appellants’

view, the trial court impermissibly expanded the temporary delay for the

public to have access to the full Shade Meeting transcript, as contemplated

by section 286.011(8), into a permanent delay.

The District contends that the statutory provisions protecting the

confidentiality of mediation communications are not at odds with the

provisions of section 286.011(8). The District relies primarily on section

44.102(3), Florida Statutes, in arguing that the trial court properly

determined that mediation communications are not to be disclosed to the

public in a Shade Meeting transcript. The trial court relied upon section

44.102(3), as well as section 44.405(1), Florida Statutes, in denying the

relief sought by Appellants.

Also important to the analysis are the provisions of article I, section 24

of the Florida Constitution. We proceed with a discussion of the pertinent

constitutional and statutory provisions.

Florida’s Sunshine Law and Section 286.011(8)

“Originally codified by statute, the Sunshine Law . . . became part of

the Florida Constitution.” Monroe Cty. v. Pigeon Key Historical Park, Inc.,

647 So. 2d 857, 860 (Fla. 3d DCA 1994). In November 1992, the Florida

Constitution was amended to add article I, section 24. The constitutional

amendment “elevated the public’s right to government in the sunshine to

constitutional proportions.” Zorc v. City of Vero Beach, 722 So. 2d 891,

896 (Fla. 4th DCA 1998). Article I, section 24(b), states:

All meetings of any collegial public body of the executive

branch of state government or of any collegial public body of

a county, municipality, school district, or special district, at

which official acts are to be taken or at which public business

5

of such body is to be transacted or discussed, shall be open

and noticed to the public and meetings of the legislature shall

be open and noticed as provided in Article III, Section 4(e),

except with respect to meetings exempted pursuant to this

section or specifically closed by this Constitution.

Art. I, § 24(b), Fla. Const.

Especially important to our analysis, article I, section 24(d) states that

“[a]ll laws that are in effect on July 1, 1993 that limit public access to

records or meetings shall remain in force, and such laws apply to records

of the legislative and judicial branches, until they are repealed.” Art. I, §

24(d), Fla. Const.

Section 286.011, commonly referred to as the “Sunshine Law,” is the

primary statute that implements article I, section 24(b). Thus, section

286.011(1), requires:

All meetings of any board or commission of any state agency

or authority or of any agency or authority of any county,

municipal corporation, or political subdivision, except as

otherwise provided in the Constitution, . . . at which official

acts are to be taken are declared to be public meetings open

to the public at all times, and no resolution, rule, or formal

action shall be considered binding except as taken or made at

such meeting.

§ 286.011(1), Fla. Stat. (2017).

“Because section 286.011 ‘was enacted in the public interest to protect

the public from “closed door” politics . . . the law must be broadly

construed to effect its remedial and protective purpose.’” Sarasota Citizens

for Responsible Gov’t v. City of Sarasota, 48 So. 3d 755, 762 (Fla. 2010)

(alteration in original) (quoting Wood v. Marston, 442 So. 2d 934, 938 (Fla.

1983)). Our supreme court has also stated that “[t]he statute should be

construed so as to frustrate all evasive devices.” Town of Palm Beach v.

Gradison, 296 So. 2d 473, 477 (Fla. 1974). Because the Sunshine Law

must be liberally construed in favor of open government, “exemptions

should be narrowly construed.” Brown v. Denton, 152 So. 3d 8, 11 (Fla.

1st DCA 2014).

Section 286.011(8) provides an exemption to the open meeting

requirement of the Sunshine Law under certain conditions. See Zorc, 722

So. 2d at 896. Section 286.011(8) states:

6

(8) Notwithstanding the provisions of subsection (1), any

board or commission of any state agency or authority or any

agency or authority of any county, municipal corporation, or

political subdivision, and the chief administrative or executive

officer of the governmental entity, may meet in private with

the entity’s attorney to discuss pending litigation to which the

entity is presently a party before a court or administrative

agency, provided that the following conditions are met:

(a) The entity’s attorney shall advise the entity at a public

meeting that he or she desires advice concerning the litigation.

(b) The subject matter of the meeting shall be confined to

settlement negotiations or strategy sessions related to litigation

expenditures.

(c) The entire session shall be recorded by a certified court

reporter. The reporter shall record the times of

commencement and termination of the session, all discussion

and proceedings, the names of all persons present at any time,

and the names of all persons speaking. No portion of the

session shall be off the record. The court reporter’s notes shall

be fully transcribed and filed with the entity’s clerk within a

reasonable time after the meeting.

(d) The entity shall give reasonable public notice of the time

and date of the attorney-client session and the names of

persons who will be attending the session. The session shall

commence at an open meeting at which the persons chairing

the meeting shall announce the commencement and

estimated length of the attorney-client session and the names

of the persons attending. At the conclusion of the attorney-

client session, the meeting shall be reopened, and the person

chairing the meeting shall announce the termination of the

session.

(e) The transcript shall be made part of the public record upon

conclusion of the litigation.

§ 286.011(8), Fla. Stat. (emphases added). As the statute provides, the

discussions during the closed meeting are confined to settlement

negotiations or strategy sessions related to litigation expenditures. Id.

7

The subsection (8)(e) requirement that transcripts of shade meetings

“shall be made part of the public record” is a focal point of our analysis.

We deem it important to note that section 286.011(8)(e) provides for a

significant delay between a shade meeting and when the transcript of the

meeting becomes a public record. The language of section 286.011(8)(e)

leads to our discussion of the Public Records Act.

Florida Public Records Act – Chapter 119, Florida Statutes

Similar to the Sunshine Law, the Public Records Act was added to the

Florida Constitution, and is also contained in article I, section 24 as

subsection (a), which states:

(a) 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.

Art. I, § 24(a), Fla. Const. (emphasis added). The constitutional provision

regarding open government and public records has been primarily

implemented by chapter 119, Florida Statutes.

As stated early on in chapter 119, “[i]t is the policy of this state that all

state, county, and municipal records are open for personal inspection and

copying by any person. Providing access to public records is a duty of

each agency.” § 119.01(1), Fla. Stat. (2017). Consistent with this policy,

“the purpose of the Public Records Act ‘is to open public records to allow

Florida’s citizens to discover the actions of their government.’” Bent v.

State, 46 So. 3d 1047, 1049 (Fla. 4th DCA 2010) (quoting Christy v. Palm

Beach Cty. Sheriff’s Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997)).

Also similar to the Sunshine Law, “the public records law is to be

construed ‘liberally in favor of the state’s policy of open government.’”

Morris Publ’g Grp., LLC v. Fla. Dep’t of Educ., 133 So. 3d 957, 960 (Fla. 1st

DCA 2013) (quoting Nat’l Collegiate Athletic Ass’n v. Associated Press, 18

So. 3d 1201, 1206 (Fla. 1st DCA 2009)). “If there is any doubt as to

whether a matter is a public record subject to disclosure, the doubt is to

be resolved in favor of disclosure.” Id. Important to our analysis is that

the Public Records Act, similar to the Sunshine Law, is subject to the

provisions of article I, section 24(d), which provides exemptions existing

prior to July 1, 1993, that remain in place until repealed. Art. I, §§ 24(c),

(d), Fla. Const.

8

Mediation Communication Confidentiality Exemption – Sections

44.102(3) and 44.405(1)

The trial court relied on sections 44.405(1) and 44.102(3) as the

statutory bases for exempting the Shade Meeting transcript from

disclosure. Section 44.405(1) states: “(1) Except as provided in this

section, all mediation communications shall be confidential. A mediation

participant shall not disclose a mediation communication to a person other

than another mediation participant or a participant’s counsel.” § 44.405(1),

Fla. Stat. (2017) (emphasis added). Section 44.102(3) states: “All written

communications in a mediation proceeding, other than an executed

settlement agreement, shall be exempt from the requirements of chapter

119.” § 44.102(3), Fla. Stat. (2017) (emphasis added). Section 44.102(3)

is a particularly key provision, since it expressly provides an exemption

from chapter 119.

A transcript is a memorialization of oral communications; once

memorialized, the exchange of ideas, information, and assertions become

a written communication. Thus, to the extent the shade meeting

transcript memorializes mediation communications, such portions of the

transcript constitute a mediation communication within the meaning of

sections 44.403(1), 44.102(3), and 44.405(1).

The Trial Court Properly Harmonized Statutory Provisions.

Appellants argue that the statutory provisions protecting the

confidentiality of mediation communications do not create an exemption

to the disclosure of the full Shade Meeting transcript because there is no

exemption under section 286.011 regarding mediation. However, that

argument ignores the language of the Florida Constitution in article I,

section 24(d), which authorizes exemptions from open public meetings and

access to public records by statutory exemptions existing before July 1,

1993. 3 More specifically, the argument ignores the status of the law,

according to the chapter laws history under section 44.102. In 1990, the

latest revision prior to 1993, the legislature renumbered section 44.302 as

section 44.102, Florida Statutes. See Ch. 90-188, § 3, Laws of Fla. As

amended by chapter law 90-188, section 44.102(3) provided:

3We note that the hearing transcript on Appellants’ petition reflects that the trial

court referred to article I, section 24(c), which provides for exemptions to the

Sunshine Law and the Public Records Act created after July 1, 1993.

Nonetheless, the trial court correctly understood that constitutional provisions

control the analysis.

9

Each party involved in a court-ordered mediation proceeding

has a privilege to refuse to disclose, and to prevent any person

present at the proceeding from disclosing, communications

made during such proceeding. Notwithstanding the provisions

of s. 119.14, all oral or written communications in a mediation

proceeding, other than an executed settlement agreement,

shall be exempt from the requirements of chapter 119 and shall

be confidential and inadmissible as evidence in any

subsequent legal proceeding, unless all parties agree

otherwise.

§ 44.102(3), Fla. Stat. (1990) (emphases added). What is critically

significant is that, although section 44.102(3) has been substantially

rewritten since 1990, the core provision (“[a]ll written communications in a

mediation proceeding, other than an executed settlement agreement, shall

be exempt from the requirements of chapter 119”) has not been repealed.

Thus, we conclude, as a matter of interpreting the constitutional provision

for government in the sunshine and the statutes implementing it, the

voters and the legislature intended mediation communications in written

form to be exempt from public disclosure.

Additionally, we interpret the provisions of the Mediation

Confidentiality and Privilege Act, adopted in 2004, to implement the

language in the 1990 version of section 44.102(3) that “[e]ach party

involved in a court-ordered mediation proceeding has a privilege to refuse

to disclose, and to prevent any person present at the proceeding from

disclosing, communications made during such proceeding.” § 44.102(3),

Fla. Stat. (1990) (emphasis added).

Based on the language of article I, section 24(d), we conclude the trial

court properly determined that sections 44.102(3) and 44.405(1) are not

inconsistent with the provisions of section 286.011(8). As we said in

Barnett v. Antonacci, 122 So. 3d 400, 404 (2013),

When reviewing constitutional provisions, a court “‘follows

principles parallel to those of statutory interpretation.’” Lewis

v. Leon Cnty., 73 So. 3d 151, 153 (Fla. 2011) (quoting Zingale

v. Powell, 885 So. 2d 277, 282 (Fla. 2004)). First, Florida

courts “must examine the actual language used in the

constitution.” Id. (citing Crist v. Fla. Ass’n of Criminal Defense

Lawyers, Inc., 978 So. 2d 134, 140 (Fla. 2008); Fla. Dep’t of

Rev. v. City of Gainesville, 918 So. 2d 250, 256 (Fla. 2005)).

“If the constitutional language is clear, unambiguous, and

addresses the matter at issue, it must be enforced as written,

10

and courts do not turn to rules of constitutional

construction.” Ford v. Browning, 992 So. 2d 132, 136 (Fla.

2008) (citing Fla. Soc’y of Ophthalmology v. Fla. Optometric

Ass’n, 489 So. 2d 1118, 1119 (Fla. 1986)).

“If the explicit language is ambiguous or does not address the

exact issue before the court, the court must endeavor to

construe the constitutional provision in a manner consistent

with the intent of the framers and the voters.” Id. (citing Crist,

978 So. 2d at 140). “It is a fundamental rule of construction

that, if possible, amendments to the Constitution should be

construed so as to harmonize with other constitutional

provisions. . . .” State v. Div. of Bond Fin. of Dep’t of Gen.

Servs., 278 So. 2d 614, 617 (Fla. 1973).

Id. (emphasis added). Moreover, as noted by our supreme court in In re

Advisory Opinion of the Governor, Appointment of County Commissioners,

Dade County, 313 So. 2d 697 (Fla. 1975):

This Court has consistently held that the Constitution shall

be construed in such a manner as to give effect to every clause

and every part thereof. Every provision is inserted for a

definite purpose and all sections and provisions of the

Constitution must be construed in par[i] materia.

Additionally, our supreme court has held that

[t]he fundamental object to be sought in construing a

constitutional provision is to ascertain the intent of the

framers and the provision must be construed or interpreted in

such manner as to fulfill the intent of the people, never to

defeat it. Such a provision must never be construed in such

manner as to make it possible for the will of the people to be

frustrated or denied.

Crist v. Fla. Ass’n of Criminal Defense Lawyers, Inc., 978 So. 2d 134, 140

(Fla. 2008) (quoting Caribbean Conservation Corp. v. Fla. Fish & Wildlife

Conservation Comm’n, 838 So. 2d 492, 501 (Fla. 2003)) (emphasis

omitted). The court has also said that a constitutional provision should

be “construed as a whole in order to ascertain the general purpose and

meaning of each part; each subsection, sentence, and clause must be read

in light of the others to form a congruous whole so as not to render any

language superfluous.” Dep’t of Envtl. Prot. v. Millender, 666 So. 2d 882,

886 (Fla. 1996).

11

Because section 286.011(8) was passed after the voters approved article

I, section 24(d), and several years after statutes were enacted protecting

the confidentiality of mediation communications,

[i]t is axiomatic, [] that the courts must presume that statutes

are passed with knowledge of prior existing statutes and

where possible, it is the duty of the courts to favor a

construction that gives a field of operation to all rather than

construe one statute as being meaningless or repealed by

implication. See Oldham v. Rooks, 361 So. 2d 140, 143 (Fla.

1978); Woodgate Dev. Corp. v. Hamilton Invest. Trust, 351 So.

2d 14, 16 (Fla. 1977). Therefore, whenever possible, courts

must attempt to harmonize and reconcile two different

statutes to preserve the force and effect of each. See Unruh v.

State, 669 So. 2d 242, 245 (Fla. 1996) (stating that “[t]his

follows the general rule that the legislature does not intend ‘to

enact purposeless and therefore useless legislation.’”) (citation

omitted). There must be hopeless inconsistency before rules

of construction are applied to defeat the plain language of one

of the statutes. See Starr Tyme, Inc. v. Cohen, 659 So. 2d

1064, 1068 (Fla. 1995).

Agency for Health Care Admin. v. In re Estate of Johnson, 743 So. 2d 83,

86-87 (Fla. 3d DCA 1999).

Noting the principle that constitutional and statutory provisions must

be read in pari materia in a way to harmonize the provisions of each, we

point out that sections 286.011(8)(c) and (e), relating to the creation of a

shade meeting transcript, must be considered together with section

286.0105, Florida Statutes (2017), which provides:

Each board, commission, or agency of this state or of any

political subdivision thereof shall include in the notice of any

meeting or hearing, if notice of the meeting or hearing is

required, of such board, commission, or agency,

conspicuously on such notice, the advice that, if a person

decides to appeal any decision made by the board, agency, or

commission with respect to any matter considered at such

meeting or hearing, he or she will need a record of the

proceedings, and that, for such purpose, he or she may need to

ensure that a verbatim record of the proceedings is made,

which record includes the testimony and evidence upon which

the appeal is to be based.

12

§ 286.0105, Fla. Stat. (emphasis added). Section 286.0105 has been in

effect since 1988, indicating that the legislature understood the

importance of a verbatim record for appellate review of governmental board

decisions when it adopted the transcript requirement for shade meetings.

We also note that section 286.011(8) was not passed until after the

voters approved article I, section 24. It is significant that the statutory

provisions protecting the confidentiality of mediation communications

were in effect for several years before the voters approved article I, section

24. In contrast, section 286.011(8) became law on May 15, 1993, but was

not effective until June 30, 1993, one day before the grandfathered

exemptions under article I, section 24(d) closed. See Ch. 93-232, § 4, Laws

of Fla.

Appellants contend that Attorney General Opinion 96-75 (“AGO 96-75”)

is persuasive authority for resolution of this appeal. AGO 96-75 deals with

the issue of protecting the confidentiality and privacy of an individual’s

medical record in the context of a workman’s compensation claim. Op.

Att’y Gen. Fla. 96-75 (1996). Appellants point to the language in AGO 96-

75 that

[t]he participants in such discussions [during a shade

meeting] under these circumstances, therefore, should take

precautions to protect the confidentiality of an employee’s

medical reports and condition such that when the transcript

of the closed-door meeting is made a part of the public record,

the privacy of the employee will not be breached.

Id. Recognizing that it is problematic for a governing board to make a

decision as to whether to accept, offer, or reject a settlement proposal

without having information contained in mediation communications,

Appellants argued at oral argument that the appropriate solution would

be for the government’s attorney to speak privately and individually with

each board member about mediation communications prior to the shade

meeting.

However, Appellant’s attempted application of AGO 96-75 as offering a

solution is simply untenable. Aside from the practical problem of how to

assure each board member hears the same information, such an approach

deprives the board of the collective benefit of exchanging ideas and asking

questions about mediation communications that build upon questions

asked by other board members, in order to reach a collaborative decision.

Additionally, such an approach inappropriately sidesteps the requirement

13

to record important communications that would be essential to the

collaborative process when a governing board decides whether to settle a

case. More importantly, AGO 96-75 addresses the protection of

confidentiality and privacy of an individual’s medical record in the context

of a workman’s compensation claim. Op. Att’y Gen. Fla. 96-75 (1996). It

does not address the confidentiality of mediation communications

involving information regarding multiple persons. Id.

Error by Failing to Conduct an In Camera Review

Even though the trial court correctly harmonized the statutory

provisions protecting the confidentiality of mediation communications

with the requirements of section 286.011(8), the trial court was led astray

by the parties’ agreement that an in camera review of the transcript was

not needed.

When, as in the instant case, certain statutory exemptions are

claimed by the party against whom the public records request

has been filed or when doubt exists as to whether a particular

document must be disclosed, the proper procedure is to

furnish the document to the trial judge for an in camera

inspection.

Walton v. Dugger, 634 So. 2d 1059, 1061-62 (Fla. 1993). As stated by the

Second District in Gonzalez v. State, 240 So. 3d 99 (Fla. 2d DCA 2018),

In camera review affords the trial judge an opportunity to

“properly determine if the document is, in fact, subject to a

public records disclosure.” [] That is, without conducting an

in camera inspection of the requested [compact discs], the

circuit court could not conclude that their contents are

exempt from disclosure under section 119.071(3)(a)(2) or

section 281.301; nor could it determine whether redaction

was possible.

Id. at 101.

In the context of attorney-client privilege, we have held that when the

privilege is asserted, the party claiming the privilege is entitled to an in

camera review of the documents by the trial court prior to disclosure.

American Airlines, Inc. v. Cimino, 44 Fla. L. Weekly D1495 (Fla. 4th DCA

June 12, 2019); Alliant Ins. Services, Inc. v. Riemer Ins. Group, 22 So. 3d

779, 781 (Fla. 4th DCA 2009). Confidentiality is the core value protected

by both the attorney-client privilege and the statutes protecting mediation

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communications. Given the importance of protecting the Sunshine Law,

the Public Records Act, and mediation confidentiality, we hold that it is

fundamental error for a trial court to rule on an exemption to public access

to the full shade meeting transcript by redacting mediation

communications without conducting an in camera review of the transcript

to determine if the claimed exemption applies.

Conclusion

We conclude that the trial court properly applied constitutional and

statutory provisions and correctly ruled that the statutory mediation

communication exemption under sections 44.102(3) and 44.405(1)

precluded the disclosure of the full Shade Meeting transcript under review.

We further affirm the trial court’s ruling that the exemption is permanent

and not temporary. However, the trial court erred in denying the petition

for writ of mandamus without conducting an in camera review of the

transcript to determine if redactions of claimed mediation communications

are appropriate. Thus, we reverse the final judgment and remand for the

trial court to conduct the required in camera review of the full Shade

Meeting transcript to assess whether redactions of mediation

communications proposed by the District have been appropriately applied.

Affirmed in part, reversed in part, and remanded with instructions.

DAMOORGIAN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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