                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

FLORIDA AGENCY FOR                   NOT FINAL UNTIL TIME EXPIRES TO
HEALTH CARE                          FILE MOTION FOR REHEARING AND
ADMINISTRATION,                      DISPOSITION THEREOF IF FILED

      Appellant,                     CASE NO. 1D16-4801

v.

ZUCKERMAN SPAEDER, LLP,

      Appellee.

_____________________________/

Opinion filed July 6, 2017.

An appeal from the Circuit Court for Leon County.
Karen A. Gievers, Judge.

Brittany Adams Long, Christopher B. Lunny, and Thomas A. Crabb of Radey Law
Firm, Tallahassee, for Appellant.

Ceci Culpepper Berman, Philip J. Padovano, and Joseph T. Eagleton of Brannock &
Humphries, Tampa; Jack E. Fernandez, D. Lee Fugate, Morris (Sandy) Weinberg,
Jr., and Sara L.A. Lawson of Zuckerman Spaeder LLP, Tampa, for Appellee.


PER CURIAM.

      Appellant, Florida Agency for Health Care Administration (“AHCA”),

appeals a trial court order granting mandamus relief to Appellee, Zuckerman

Spaeder, LLP. For the following reasons, we reverse.

                     FACTUAL AND PROCEDURAL HISTORY
       The Appellee, Zuckerman Spaeder, LLP (“Zuckerman”) is a law firm that

represents a defendant in a federal criminal case. Zuckerman’s client is charged with

Medicaid fraud and other related offenses.       Beginning in October 2014, and

continuing through February 2015, Zuckerman submitted public records requests to

AHCA pursuant to Chapter 119, Florida Statutes. In all, Zuckerman submitted ten

different requests seeking records dating back to 2002. The requested records

generally relate to the calculation of behavioral health capitation payments certified

by HMOs to AHCA. The letters contained a total of seventy-seven search requests.

       In response to the requests, AHCA prepared search terms derived from the

requests and provided the agency’s IT unit with the requests and search terms in

order to conduct searches of its system to identify responsive documents. AHCA

searched its hard copy and electronic databases, with much of the search focused on

email documents within the agency’s database.            The searches yielded an

extraordinary number of results. 1   When AHCA notified Zuckerman of the large

number of results, Zuckerman asked AHCA to suspend its searches until the parties

could confer on the search terms, with the goal of narrowing the searches and

reducing the number of results.

       The parties met to refine the search terms in order to narrow the searches for

responsive documents. The searches took between four to six weeks to complete


1
    One search alone yielded over one billion e-mails.
                                          2
due to the large number of records to be searched. The narrowed search terms

nevertheless yielded a massive number of results. As the searches were performed,

AHCA prepared invoices and delivered them to Zuckerman. Pursuant to section

119.07(4)(d), the invoices included a “special service charge,” billed to reimburse

AHCA for extensive use of its information technology and substantial clerical and

supervisory hours expended by agency personnel.         The time and effort were

expended, in part, to review and redact any confidential information from the

documents. Upon receipt of the invoices, Zuckerman refused to pay, asserting the

fees were unreasonable. However, Zuckerman never withdrew these requests. As

a result of non-payment, AHCA declined to produce the records. AHCA ultimately

advised Zuckerman it had complied with its obligations under Chapter 119 and

would provide the records once payment was received.

       Subsequently, the searches were further refined, and AHCA again searched

its e-mail systems. This search produced fewer responsive documents. AHCA

accordingly calculated significantly reduced cost reimbursement and submitted

invoices for review and redactions. Zuckerman never paid these invoices either.

       On November 23, 2015, pursuant to rule 1.630, Florida Rules of Civil

Procedure, Zuckerman filed its Petition for Writ of Mandamus (the “Petition”),

attaching the ten sets of public records requests. An alternative writ of mandamus 2


2
    Designated as an “order to show cause.”
                                         3
was issued to AHCA ordering AHCA to show cause why the relief requested in the

Petition should not be granted. AHCA filed a response to the alternative writ

asserting a number of defenses. In its response, AHCA contended, among other

things, that Zuckerman sought to impose mandamus for non-ministerial actions, that

is, the discretionary act of review and redaction of exempted information, and that

Zuckerman had failed to satisfy a condition precedent to production of the

documents because it had failed to pay for the cost of production.

       The matter proceeded to evidentiary hearing on the Petition on October 4,

2016. Following the hearing, on October 21, 2016, the trial court entered its “Order

on Public Records Final Hearing.”3 Rather than order production of all documents

identified in the Petition, the trial court ordered AHCA to produce a modified list of

documents within forty-eight hours, without requiring any payment prior to

production. Further, the order retains jurisdiction for future computation of

reasonable costs incurred by AHCA in preparation of the records. This timely appeal

followed.

                                    ANALYSIS

       AHCA raises six issues on appeal, two of which are dispositive. This Court

agrees with AHCA that it was error for the lower court to order production within

forty-eight hours of the issuance of the order without pre-payment of AHCA’s


3
    The order grants mandamus relief and will be treated as a writ of mandamus.
                                         4
charges. Additionally, Zuckerman failed to establish a clear legal right to mandamus

relief. 4

        The proper standard utilized in reviewing a trial court’s decision on a petition

for writ of mandamus is abuse of discretion. Brown v. State, 93 So. 3d 1194, 1195

(Fla. 4th DCA 2012). “In order to be entitled to a writ of mandamus, the petitioner

must have a clear legal right to the requested relief, the respondent must have an

indisputable legal duty to perform the requested action, and the petitioner must have

no other adequate remedy available.” Putnam Cty. Envtl. Council v. Johns River

Water Mgmt. Dist., 168 So. 3d 296, 298 (Fla. 1st DCA 2015) (quoting Huffman v.

State, 813 So. 2d 10, 11 (Fla. 2000)). The duty of the respondent in a mandamus

action must be ministerial in nature, and not discretionary. Wuesthoff Mem’l Hosp.

Inc. v. Florida Elections Comm’n, 795 So. 2d 179, 180 (Fla. 1st DCA 2001). A duty

is ministerial when “there is no room for the exercise of discretion, and the

performance being required is directed by law.” Town of Manalaplan v. Rechler,

674 So. 2d 789, 790 (Fla. 4th DCA 1996). Mandamus is available only to enforce

an established legal right, not to establish that right. Miami-Dade Cty. Bd. of Cty.

Comm’rs v. An Accountable Miami-Dade, 208 So. 3d 724 (Fla. 3d DCA 2016).




4
 As these issues were raised by AHCA in its response to the alternative writ of
mandamus, its memorandum of law and at the hearing itself, we are perplexed by
Zuckerman’s contention that these issues were not preserved.
                                        5
      With respect to public records requests pursuant to Chapter 119, Florida

Statutes, “[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), Florida Statutes. However,

this Court has recognized a records custodian’s duty to redact exempted portions of

public records before they are released. Morris Publ’g Grp., LLC v. State of Fla.,

154 So. 3d 528, 533 (Fla. 1st DCA 2015). There are numerous categories of records

that are exempt from disclosure in a public records request. §119.071(5)(a)5, Florida

Statutes (“Social security numbers held by an agency are confidential and exempt

from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.”); §119.071(5)(b),

Florida Statutes. (“Bank account numbers and debit, charge, and credit card numbers

held by an agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State

Constitution.”); §394.4615(1), Florida Statutes. (“A clinical record is confidential

and exempt from the provisions of s. 119.07(1).”).

      Section 119.07(4), Florida Statutes, provides in part, “[t]he custodian of

public records shall furnish a copy or a certified copy of the record upon payment of

the fee prescribed by law.” (Emphasis supplied) While access to public records is of

the utmost importance, “Florida has long required those who seek such records to

defray the extraordinary costs associated with their requests.” Bd. of Cty. Comm’rs

of Highlands Cty. v. Colby, 976 So. 2d 31, 35 (Fla. 2d DCA 2008). Florida courts

                                           6
have consistently held that where a service charge is warranted, an agency is

authorized to require payment before producing the records. Morris Publ’g, 154 So.

3d at 534; Wootton v. Cook, 590 So. 2d 1039, 1040 (Fla. 1st DCA 1991); Colby,

976 So. 2d at 37. Requiring an advance deposit is prudent given the legislature’s

determination that taxpayers should not shoulder the entire expense of responding

to an extensive request for public records. Colby, 976 So. 2d at 37. A person who

has not paid for the cost of production is not entitled to mandamus relief on a public

records request. Lozman v. City of Riviera Beach, 995 So. 2d 1027 (Fla. 4th DCA

2008).

      In the present case, which deals with a dispute over a large public records

request, the lower court seemingly failed to appreciate the amount of time required

to properly prepare the requested documents, especially given the need to review

and redact confidential information. The lower court’s order, which is devoid of

specific findings of fact and citations to legal authority, is contrary to prior decisions

of this Court and the language of controlling statutes. By ordering production of the

requested documents within forty-eight hours of issuance of its order, the court

effectively requires AHCA to ignore its statutory duty to redact exempted

information. The sheer number of documents encompassed by Zuckerman’s requests

precludes thorough review in the time allowed. Further, decisions of this Court and

the language of section 119.07(4), Florida Statutes, dictate that Zuckerman should

                                            7
be required to pay for the cost of searching, review, and redaction of exempted

information prior to production. It is unreasonable to require a publicly funded

agency to absorb the large financial cost associated with preparation of these records.

Zuckerman is a private law firm, and while discovery may be costly, it is a necessary

component of litigation. Requiring a state agency to fund, at least in advance,

litigation expenses of a private firm is against this state’s public policy. The lower

court abused its discretion by ordering production of the responsive documents

within forty-eight hours of the issuance of the order without requiring advance

payment of AHCA’s invoices.

      Here, the elements for mandamus relief were not met. AHCA’s duty in this

case was not merely to collect a fee and send records over immediately. AHCA’s

duty to protect exempted information through redaction precedes its duty to provide

the documents to Zuckerman. Zuckerman’s right to the records is not absolute. The

applicable statute provides that Zuckerman is not entitled to receive exempted

information in connection with a public records request. AHCA’s duty is not

ministerial, and Zuckerman’s right is not indisputable. Mandamus requires both

elements to be met. Therefore, mandamus relief was improper.5



5
  We also note that the lower court was without authority to issue mandamus relief
and retain jurisdiction for computation of reasonable reimbursement costs at some
future date. “It is well-settled that mandamus is not appropriate to control or regulate
a general course of conduct for an unspecified period of time.” Stone v. Ward, 752
                                           8
                                  CONCLUSION

      The trial court erred by requiring production of documents within forty-eight

hours of the date of the order because the documents could not be reviewed for

redaction within this compressed time period. The trial court further erred by

requiring production of the documents prior to payment of AHCA’s invoices.

Accordingly, we reverse the trial court’s October 21, 2016, order and vacate the writ

of mandamus. This ruling renders moot the remaining issues on appeal.

WOLF and WETHERELL, JJ., and LESTER, DON H., ASSOCIATE JUDGE,
CONCUR.




So. 2d 100, 101 (Fla. 2d DCA 2000). A writ of mandamus is not to be issued where
continued supervision is required. Id. at 102.

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