       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           TODD MCLENDON,
                              Appellant,

                                     v.

   PALM BEACH COUNTY OFFICE OF THE INSPECTOR GENERAL,
                        Appellee.

                              No. 4D18-2818

                           [December 18, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    David    E.    French,    Judge;   L.T.    Case    No.
502018CA003069XXXXMBAJ.

   Robert N. Hartsell, Sarah M. Hayter, Heidi M. Mehaffey and Shai Ozery
of Robert N. Hartsell, P.A., Pompano Beach, for appellant.

   Helene C. Hvizd, Senior Assistant County Attorney, Palm Beach County
Attorney’s Office, West Palm Beach, for appellee.

    Amanda S. Coffey of the Pinellas County Attorney’s Office, Clearwater,
for Ken Burke, Pinellas County; Hampton C. Peterson, West Palm Beach,
for Sharon R. Bock, Clerk & Comptroller, Palm Beach County; Michael J.
Healy, Fort Myers, for Linda Doggett, Lee County Clerk of Court and
Comptroller Office of the Inspector General; Carol J. Breece, Plantation,
for the Broward Office of the Inspector General; Dennis J. Alfonso of
McClain Alfonso, P.A., Dade City, for Paula S. O’Neil, Clerk & Comptroller,
Pasco County; Marie Perikles, Office of the Inspector General, Miami-Dade
County, Miami; and Cela D. Webster, Brooksville, for Doug Chorvat, Jr.,
Hernando County Clerk of Circuit Court and Comptroller, for Amicus
Curiae Appellee Palm Beach County Office of the Inspector General.

PER CURIAM.

   This is an appeal of an order denying attorney’s fees in a public records
request case. The appellant had requested that the Palm Beach County
Office of the Inspector General furnish him with a copy of a complaint,
which initiated an investigation into alleged mismanagement and
overpayment of contractors in the Town of Loxahatchee Groves. The
Inspector General refused to furnish the complaint until the investigation
was closed. After the investigation closed, the complaint was furnished to
appellant. He then moved for attorney’s fees, contending that the initial
complaint was not subject to an exemption from disclosure and that he
was entitled to his attorney’s fees incurred in obtaining the document. The
trial court disagreed and denied the fees. We affirm.

   Section 112.3188(2)(b), Florida Statutes (2017) provides:

      All information received by a local chief executive officer or
      appropriate local official or information produced or derived
      from fact-finding or investigations conducted pursuant to the
      administrative procedure established by ordinance by a local
      government as authorized by s. 112.3187(8)(b) is confidential
      and exempt from s. 119.07(1) and s. 24(a), Art. I of the State
      Constitution, if the information is being received or derived
      from allegations as set forth in paragraph (1)(a) or paragraph
      (1)(b) and an investigation is active.

(emphasis added). The type of allegations set forth in section 112.3188
paragraph (1)(a) and (b) includes assertions that:

      [A]n employee or agent of an agency or independent
      contractor:

      (a) Has violated or is suspected of having violated any federal,
      state, or local law, rule, or regulation, thereby creating and
      presenting a substantial and specific danger to the public’s
      health, safety, or welfare; or

      (b) Has committed an act of gross mismanagement,
      malfeasance, misfeasance, gross waste of public funds, or
      gross neglect of duty.

Thus, to qualify for an exemption from a public records request, the
information received by a local official must involve gross mismanagement,
waste of public funds or neglect of duty, and that the investigation is
active. Since section 119.07(1), Florida Statutes (2017), deals with the
obligation of the custodian of public records to produce records upon
request, the plain meaning of the statute authorizes the custodian to
withhold such documents when the investigation is active at the time the
request is made.



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   The initial complaint in this case involved questions of
mismanagement. It was “information received by” a proper local official.
When the appellant demanded the production of the complaint, an active
investigation was ongoing. Therefore, the initial complaint was exempt
from public records disclosure. Accordingly, the Office of the Inspector
General properly declined to produce the complaint, and the trial court
correctly denied appellant’s claim for attorney’s fees.

  Affirmed.

WARNER, GROSS and KUNTZ, JJ., concur.

                          *        *        *

  Not final until disposition of timely filed motion for rehearing.




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