            DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                    FOURTH DISTRICT

                                    COREY LAKE,
                                      Petitioner,

                                            v.

                                  STATE OF FLORIDA,
                                     Respondent.

                                     No. 4D16-614

                                   [March 30, 2016]

  Petition for writ of certiorari to the Seventeenth Judicial Circuit, Broward
County; Jack B. Tuter, Judge; L.T. Case No. 12-008633-JR10A.

  Howard Finkelstein, Public Defender, and Donald J. Cannarozzi, Assistant
Public Defender, Fort Lauderdale, for appellant.

   No brief filed for appellee.

   Lynn D. Carrillo, Hialeah, Susan H. April, Avery A. Dial and Kevin P. Yombor
of Fowler White Burnett, P.A., Fort Lauderdale, for Intervenor, WTVJ-NBC6.

GROSS, J.

   Corey Lake petitions for review of a trial court order that refused to close a
Jimmy Ryce civil commitment review proceeding to the public and a local TV
station.1 We deny the petition because the trial court did not depart from the
essential requirements of law.

   Lake claims that his annual review trial, a civil proceeding, should be closed
because the Treatment Progress Report from the commitment facility, which is
confidential pursuant to section 394.921, Florida Statutes (2015), will
necessarily be discussed at the hearing. Lake cannot overcome the strong
presumption of openness in civil proceedings and the public policy set forth in

1Lake  sought review under Florida Rule of Appellate Procedure 9.100(d), which provides
procedures for review of orders excluding or granting access to the press or public to
proceedings or judicial branch records. “Review is by way of a petition for writ of
certiorari under Florida Rule of Appellate Procedure 9.100(d)(1). . . .” Times Pub. Co. v.
State, 903 So. 2d 322, 324 (Fla. 2d DCA 2005).
section 394.921 does not support closure of review proceedings. Also, Lake does
not demonstrate a privacy interest in the treatment records so significant that it
would justify closure.
                                 Background

   Lake pleaded guilty to offenses he committed in 1995, including sexual
battery of a child under parental or custodial authority. He was sentenced to
concurrent 13-year terms of imprisonment. Before his release from prison, the
State initiated proceedings to have Lake civilly committed as a sexually violent
predator under the Jimmy Ryce Act, Part V of Chapter 394, Florida Statutes.
After a jury trial in 2013, the trial court committed Lake. This court affirmed on
direct appeal without opinion. Lake v. State, No. 4D13-3346, 2016 WL 362916
(Fla. 4th DCA Jan. 28, 2016) (table).

   In January 2016, the commitment center submitted its annual Treatment
Progress Report under section 394.918(1), Florida Statutes (2015). The report
recommended that Lake continue treatment. Lake petitioned for release over the
objection of the facility director. See § 394.918(2). The parties stipulated that,
under section 394.918(3), there was a sufficient basis to hold a trial on Lake’s
petition for release. A bench trial was scheduled under section 394.918(4) for
January 27, 2016.

    When Lake’s attorney learned that a local TV station intended to cover the
trial, he moved for a protective order to prohibit any outside parties from being
present in the courtroom. The motion relied on section 394.921, arguing that it
protected Lake from disclosure of treatment records.

   The trial court allowed WTVJ-NBC6 to intervene and respond to Lake’s motion
for protective order. After a hearing, the circuit court denied the motion for
protective order. This petition timely followed.

                                     Analysis

    To be entitled to certiorari relief, a petitioner must establish three elements:
“‘(1) a departure from the essential requirements of the law, (2) resulting in
material injury for the remainder of the case (3) that cannot be corrected on
postjudgment appeal.’” Nucci v. Target Corp., 162 So. 3d 146, 151 (Fla. 4th DCA
2015) (quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)). To merit
such relief, the departure from the essential requirements of law must be “a
violation of [a] clearly established principle of law resulting in a miscarriage of
justice.” Id. (quoting Williams, 62 So. 3d at 1133). Certiorari relief is reserved
for serious legal errors. Id.



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   Court proceedings are strongly presumed to be open to the public. Barron v.
Fla. Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988). The burden of
establishing an exception to this general rule always remains on the party
seeking closure. Id. at 118. Barron explains the narrow situations that might
justify closure of court proceedings in civil cases:

      [C]losure of court proceedings or records should occur only when
      necessary (a) to comply with established public policy set forth
      in the constitution, statutes, rules, or case law; (b) to protect
      trade secrets; (c) to protect a compelling governmental interest [e.g.,
      national security; confidential informants]; (d) to obtain evidence to
      properly determine legal issues in a case; (e) to avoid substantial
      injury to innocent third parties [e.g., to protect young witnesses from
      offensive testimony; to protect children in a divorce]; or (f) to avoid
      substantial injury to a party by disclosure of matters protected
      by a common law or privacy right not generally inherent in the
      specific type of civil proceeding sought to be closed. We find
      that, under appropriate circumstances, the constitutional right of
      privacy established in Florida by the adoption of article I, section 23,
      could form a constitutional basis for closure under (e) or (f).

Barron, 531 So. 2d at 118 (emphasis added) (material in brackets in the original).

   The Florida Supreme Court emphasized that “the presumption of openness
continues through the appellate review process, and the party seeking closure
continues to have the burden to justify closure.” Id. “[B]efore entering a closure
order, the trial court shall determine that no reasonable alternative is available
to accomplish the desired result, and, if none exists, the trial court must use the
least restrictive closure necessary to accomplish its purpose.” Id.

   Here, the potential introduction of treatment records into evidence or the trial
discussion of their contents does not require closure of a public proceeding.
Section 394.921 mandates that the records themselves be maintained under seal
unless ordered opened by the judge. This limited privacy interest does not
require that the press and public be barred from any discussion of treatment or
treatment records during a review hearing.

   Section 394.921(1) provides for release of otherwise confidential medical
records to certain parties in Jimmy Ryce proceedings. Subsection (2) deals with
records that are submitted to the court or admitted into evidence, such as the
Treatment Progress Report at issue. Importantly, the statute expressly permits
the court to open any records admitted under the statute. The statute provides:



                                        -3-
      394.921 Release of records to agencies, multidisciplinary teams,
      and state attorney.—

         (1) In order to protect the public, relevant information and
         records that are otherwise confidential or privileged shall be
         released to the agency with jurisdiction, to a multidisciplinary
         team, or to the state attorney for the purpose of meeting the
         notice requirements of this part and determining whether a
         person is or continues to be a sexually violent predator. A
         person, agency, or entity receiving information under this
         section which is confidential and exempt from the provisions
         of s. 119.07(1) must maintain the confidentiality of that
         information. Such information does not lose its confidential
         status due to its release under this section.

         (2) Psychological or psychiatric reports, drug and alcohol
         reports, treatment records, medical records, or victim impact
         statements that have been submitted to the court or admitted
         into evidence under this part shall be part of the record but
         shall be sealed and may be opened only pursuant to a court
         order.

§ 394.921(emphasis added).

   Although the judge has not ordered the opening of the treatment report at
issue, the statutory power of the judge to do so demonstrates that the legislature
has not provided for absolute confidentiality of the treatment records of sexual
predators. Limited access to certain records may not be expanded into an
absolute privacy right in the information contained in the records. The public
has a great interest in the circumstances that justify the release of one who has
been designated a sexually violent predator. Under the test announced in
Barron, closure can be ordered when necessary “to comply with established
public policy set forth in the constitution, statutes, rules, or case law.” Barron,
531 So. 2d at 118. Lake establishes no such statutory public policy in this case.

   To the extent Lake relies upon his right to privacy, as a sexually violent
predator committed for treatment, Lake does not have the same expectation of
privacy of an ordinary citizen in his medical records. The treatment center’s
report is mandated by statute.            Lake has chosen to challenge the
recommendation that he continue treatment and to have a trial on the issue.
Lake’s limited privacy interest in the treatment record is dwarfed by the strong
presumption of openness in court proceedings. Nothing in Chapter 394 suggests
that commitment or review proceedings be closed to the public.


                                       -4-
   Lake relies on Tribune Co. v. D.M.L., 566 So. 2d 1333 (Fla. 2d DCA 1990), but
that case concerned a hearing to continue involuntary civil commitment of a
mental health patient under the Baker Act. Unlike the situation here, the
decision to close the proceedings in D.M.L. was in furtherance of a clear public
policy that is set forth by the statement of legislative intent in the Baker Act:

      It is intended that . . . any involuntary treatment or examination be
      accomplished in a setting which is clinically appropriate and most
      likely to facilitate the person’s return to the community as soon as
      possible; and that individual dignity and human rights be
      guaranteed to all persons who are admitted to mental health
      facilities or who are being held under s. 394.463.

§ 394.453, Fla. Stat. (2015); D.M.L., 566 So. 2d at 1334 (quoting the 1987 version
of this section, which contains similar language). As discussed in D.M.L., other
provisions of the Baker Act are designed to protect the privacy rights of mental
health patients, and a patient’s clinical record is expressly made confidential and
not a public record. § 394.4615(1), Fla. Stat. (2015). Release of such records is
allowed only in very limited circumstances circumscribed by the statute. See §
394.4615(2)-(6).

   This case concerns a sexually violent predator, and the legislature has
distinguished such individuals from those subject to the Baker Act, stating that
the Baker Act was inadequate to deal with them:

      The Legislature finds that a small but extremely dangerous number
      of sexually violent predators exist who do not have a mental disease
      or defect that renders them appropriate for involuntary treatment
      under the Baker Act, part I of this chapter, which is intended to
      provide short-term treatment to individuals with serious mental
      disorders and then return them to the community. In contrast to
      persons appropriate for civil commitment under the Baker Act,
      sexually violent predators generally have antisocial personality
      features which are unamenable to existing mental illness treatment
      modalities, and those features render them likely to engage in
      criminal, sexually violent behavior. The Legislature further finds
      that the likelihood of sexually violent predators engaging in repeat
      acts of predatory sexual violence is high. The existing involuntary
      commitment procedures under the Baker Act for the treatment and
      care of mentally ill persons are inadequate to address the risk these
      sexually violent predators pose to society. The Legislature further
      finds that the prognosis for rehabilitating sexually violent predators
      in a prison setting is poor, the treatment needs of this population
      are very long term, and the treatment modalities for this population

                                       -5-
      are very different from the traditional treatment modalities for people
      appropriate for commitment under the Baker Act. It is therefore the
      intent of the Legislature to create a civil commitment procedure for
      the long-term care and treatment of sexually violent predators.

§ 394.910, Fla. Stat. (2015). The legislature further hammers home its intent
that sexually violent predators not be governed by Baker Act standards:

      The Legislature intends that persons who are subject to the civil
      commitment procedure for sexually violent predators under this
      part be subject to the procedures established in this part and not to
      the provisions of part I of this chapter. Less restrictive alternatives
      are not applicable to cases initiated under this part.

§ 394.911, Fla. Stat. (2015).

   Lake’s reliance on a case dealing with a Baker Act commitment under Part I
of Chapter 394 is therefore unpersuasive. Contrary to Lake’s argument, the
Legislature has not made records of a sexually violent predator confidential in
the same way as the clinical records of a Baker Act patient.

   In sum, the petition fails to demonstrate any error, much less the departure
from the essential requirements of law necessary to merit certiorari relief.

   The petition for writ of certiorari is denied.

TAYLOR and DAMOORGIAN, JJ., concur.

                                 *         *        *

   Not final until disposition of timely filed motion for rehearing.




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