Sunshine in Litigation
Either Florida’s Sunshine in Litigation Statute,1 F. S.§69.081 (1998) (the “Sunshine Statute”), is not widely known, or it is so clear in its intent and meaning that the courts never get much of an opportunity to interpret it. This is surprising because secrecy2 is not the friend of an attorney representing a person injured by a hazardous product.3 Orders, judgments, agreements, or contracts can prevent a party from obtaining information for use in litigation or from disclosing information beyond the particular litigation. If an attorney is unable to obtain information on a hazardous product, an otherwise meritorious case might not be pursued. If the dissemination of the information relating to a hazardous product is limited to the particular litigation, unsuspecting persons may continue to be exposed to the hazard.
On the other hand, forcing a company to disclose information can result in an injustice if the threat forces the settlement of an unworthy case or discloses business secrets which can then be used by a competitor to gain an unfair advantage. The legislature, in enacting the Sunshine Statute, attempted to balance the competing interests.
An Overview of the Statute
The Sunshine Statute can be divided into two parts. The first part of the statute4 prevents “orders, judgments, agreements or contracts which have the purpose or effect of concealing a public hazard, information concerning a public hazard, or information which may be useful to the public in protecting themselves from injury which may result from the public hazard.” (Emphasis supplied.) The second part of the statute5 relates to a “settlement or resolution against the state, its agencies, or subdivisions or against any municipality or constitutionally created body or commission.” (Emphasis supplied.) Any order, judgment, agreement, or contract which has the effect of concealing any settlement or resolution is declared void, contrary to public policy, and not enforceable.6
Public hazard is defined to mean “an instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.”7
Trade secrets are protected, but only if they meet the definition set forth in F.S. §688.002 and are not “pertinent” to public hazards.8 Proprietary confidential business information, or other information that is confidential under state or federal law, also is protected.9
Standing to contest an order, judgment, agreement, or contract in violation of this section is granted to a “substantially affected person,”10 including the media, and “any person,”11 by motion or declaratory judgment action pursuant to chapter 86.
A party attempting to prevent disclosure must file a motion with a showing of good cause. Upon this occurring, the court will examine the information in camera.
The Sunshine Statute
in the Courts
Unfortunately, there are not many appellate decisions which can help in the analysis of the statute. The following cases, however, have construed the statute.
ACandS, Inc. v. Askew, et al., 595 So. 2d 895 (Fla. 1st DCA 1992), was an asbestos case. There had been a federal court protective order entered in 1980, in a case in which ACandS was a defendant. ACandS moved in the state trial court to enforce the federal protective order. The trial judge denied the motion. ACandS filed for a writ of certiorari. The court denied the petition on the premise that ACandS had not demonstrated both a departure from the essential requirements of law and an injury which could not be remedied by appeal from the final order. The court did note that §69.081 was brought to the attention of the trial court. ACandS had argued that this statute was inapplicable because the public was aware of the dangerous nature of asbestos. The court pointed out that the petitioner failed to recognize that the statute includes a prohibition against a court order which conceals “any information concerning a public hazard,” which included the depositions in question.12
The statute may only apply in Florida state courts. The only reported federal decision, Ronque v. Ford Motor Company, 23 Fed. R. Serv. 3d (Callaghan) 1299, (Middle District of Fla., Jacksonville Division, May 19, 1992), held that §69.081 is a procedural rule and inapplicable.
The case of E.I. DuPont De Nemours & Company v. Billy W. Lambert, et al., 654 So. 2d 226 (Fla. 2d DCA 1995), involved litigation over Benlate. A confidentiality order had been previously entered. The Department of Agriculture and Consumer Services and the Lakeland Publishing Corporation filed motions pursuant to §69.081 to set aside the order. The trial court set aside the order without allowing a hearing on the merits of the Sunshine Act issues and the appellate court held this was a violation of DuPont’s procedural due process rights.13
General Motors Corporation v. Betty Haire Dickerson, et al., 654 So. 2d 1036 (Fla. 4th DCA 1995), involved a product liability/personal injury suit and a claim by General Motors of the trade secret privilege. The special master reviewed 50,000 documents in camera and ruled without a hearing that they were not entitled to protection. General Motors petitioned for a writ of certiorari which was granted by the appellate court because, based on its review of the limited record before it, the report of the special master was clearly erroneous. Section 69.081 was mentioned in a footnote, but only that there was some argument in the trial court as to whether it applied; the appellate court stated that the issue was not before it at this time.
Trade secrets receive protection under the statute, but only if they are not pertinent to public hazards.14 The statutory definition of “trade secret” is information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.15
The courts, in dealing with the question of whether a trade secret in fact exists, have established criteria to apply in the analysis process. The court in Lovell Farms Inc. v. Joseph Levy, 641 So. 2d 103 (Fla. 3d DCA 1994), citing from Lee v. Cercoa, Inc., 433 So. 2d 1, 2 (Fla. 4th DCA 1983) stated:
The plaintiff must establish. . . (a) that the process is a secret; (b) the extent to which the information is known outside of the owner’s business; (c) the extent to which it is known by employees and others involved in the owner’s business; (d) the extent of measures taken by the owner to guard the secrecy of the information; (e) the value of the information to the owner and to competitors; (f) the amount of effort or money expended by the owner in developing the information, and (g) the ease or difficulty with which the information could be properly acquired or duplicated by others.
In addition to the in camera inspection, the courts have held that an evidentiary hearing with expert testimony might be appropriate.16
If the trade secret defense is defeated, one can expect a trip to the appellate courts. “Certiorari review is available for an order that denies protection from disclosure of information that is alleged to be privileged.”17
That portion of the Sunshine Statute which deals with the government provides that the custodian of any document, record, contract, or agreement relating to any settlement as set forth in this section shall maintain said public records in compliance with chapter 119.18
Custodian is defined as: “The elected or appointed state, county, or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee, shall be the custodian thereof.”19
A public record is defined as: “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”20
The Florida Supreme Court construed the term “record” in Shevin, et al., v. Byron Harless, et al., 379 So. 2d 633 (Fla. 1980). The court stated at 640:
To give content to the public records law which is consistent with the most common understanding of the term “record,” we hold that a public record, for purposes of section 119.011(1), is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type. To be contrasted with “public records” are materials prepared as drafts or notes, which constitute mere precursors of governmental “records” and are not, in themselves, intended as final evidence of the knowledge to be recorded.
Matters which obviously would not be public records are rough drafts, notes to be used in preparing some other documentary material, and tapes or notes taken by a secretary as dictation. Inter-office memoranda and intra-office memoranda communicating information from one public employee to another or merely prepared for filing, even though not a part of an agency’s later, formal public product, would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.
If the custodian fails to disclose and provide any record as set forth in §69.081, the sanctions as set forth in chapter 119 apply. The listed sanctions21 are:
1) Suspension and removal or impeachment.
2) Misdemeanor of the first degree, if knowingly and willfully violates the provision.
3) Fine not exceeding $500.
If an action is brought to enforce any provision of chapter 119, the court must set an immediate hearing. The agency must either comply with an order to open its records for inspection or obtain an appellate stay order within 48 hours of the issuance of the order to open the records. Attorneys’ fees, at both the trial and appellate level, are available.22
Question of Standing
The persons who have standing to seek enforcement of the Sunshine Statute are “any substantially affected person”23 and “any person.”24 It is unfortunate that the drafters chose the phrase “substantially affected person” as that phrase is a term of art used in various statutes to allow persons to challenge governmental action and rulemaking.25 For example, in Ward v. Board of Trustees of the Internal Improvement Trust Fund, et al., 651 So. 2d 1236 (Fla. 4th DCA 1995), Ward challenged the validity of proposed amendments to the Administrative Code relating to the construction of docks in aquatic preserves. The hearing office dismissed his petition for lack of standing. The court addressed the issue of standing by stating:
Section 120.54(4) grants to “any substantially affected person” standing to challenge the validity of a proposed agency rule “on the ground that the proposed rule is an invalid exercise of delegated legislative authority.” In order to meet the substantially affected test of section 120.54(4), the petitioner must establish: (1) a real and sufficiently immediate injury in fact; and (2) “that the alleged interest is arguably within the zone of interest to be protected or regulated.”26
Oddly enough, the part of the statute which relates to the government does not use the term “substantially affected person”; rather, it only says “person.”
Some general conclusions can be drawn from the statute and the above analysis. First, the statute is underutilized. Second, unless the defendant’s procedural due process rights are respected, an appeal is likely. This is especially true if the trade secret privilege has been raised. Third, standing is a problem. Clearly the parties and the media have standing, but what about the attorney who has a similar case and does not want to have to fight the battle all over again in his or her case? Does he or she have standing? If the case was on appeal, a good argument could be made that an attorney with a similar case or an organization such as the Academy of Florida Trial Lawyers would have amicus rights.27 q
1 1990 Fla. Laws ch. 20 (effective date July 1, 1990).
2 For a good discussion of the secrecy problem, see Charles L. Henshaw, Jr., The Assault On The Citadel Of Secrecy, S.C. Trial Lawyer (Summer 1992).
3 The statute speaks in terms of “public hazard” and defines it in broad terms as an instrumentality that has caused and is likely to cause injury.
4 Fla. Stat. §69.081(1–7) (1997).
5 Fla. Stat. §69.081(8) (1997).
6 Fla. Stat. §69.081(9) (1997) requires notice of the expenditure of public funds in excess of $5,000, unless the settlement is approved by a court of competent jurisdiction.
7 Fla. Stat. §69.081(2) (1997).
8 Fla. Stat. §69.081(5) (1997).
9 Fla. Stat. §69.081(8) (1997). Note this is an expansion over subsection (5).
10 Fla. Stat. §69.081(6) (1997).
11 Fla. Stat. §69.081(8)(a) (1997).
12 ACandS, Inc., 597 So. 2d at 899.
13 The case was remanded for hearing on the Sunshine Act and constitutionality of the statute. Shepard’s does not reveal any further appellate treatment, except for cites in DSA Marine Sales & Serv. v. County of Manatee, 661 So. 2d 907 (Fla. 2d D.C.A. 1995), and in a law review article, 83 Geo. L.J. 2619, 2651.
14 Fla. Stat. §69.081(5) (1997).
15 Fla. Stat. §688.002(4)(a), (b) (1997).
16 Lovell Farms, 641 So. 2d at 105, and Uniroyal Goodrich Tire Company v. Nedward C. Eddings, et al., 673 So. 2d 131, 132 (Fla. 4th D.C.A. 1996).
17 Salick Health Care Inc., v. Jerome J. Spunberg, M.D., et al., 722 So. 2d 944 (Fla. 4th D.C.A. 1998). Fla. Stat. §69.081(5) (1998) does not create the privilege but Fla. Stat. §90.506 (1991) does.
18 Fla. Stat. §69.081(8)(b) (1997).
19 Fla. Stat. §119.021 (1997).
20 Fla. Stat. §119.011(1) (1997).
21 Fla. Stat. §119.02, 119.10(1), (2) (1997).
22 Fla. Stat. §§119.11(1), (2), 119.12 (1997).
23 Fla. Stat. §69.081.(6) (1997).
24 Fla. Stat. §69.081(8)(a) (1997).
25 A Lexis search of the term “substantially affected person” in the Florida Statutes produces 27 cites to sections of the statutes in which the term is used in connection with governmental or agency action. For example: Fla. Stat. §163.3213 (1998); Fla. Stat. §120.56 (1998); Fla. Stat. §553.77 (1998); Fla. Stat. §373.2295 (1998); Fla. Stat. §403.0752 (1998); Fla. Stat. §120.565 (1998).
26 Ward, 651 So. 2d at 1237. See also Televisual Communs., Inc. v. State, 667 So. 2d 372 (Fla. 1st D.C.A. 1995); Chiles v. Department of State, 711 So. 2d 151 (Fla. 1st D.C.A. 1998); Investment Corp. v. Division of Pari-Mutuel Wagering, 714 So. 2d 589 (Fla. 3d D.C.A. 1998); and Grippe v. Florida Dep’t of Bus. & Professional Regulation, Case No. 98-2100, Court of Appeals of Florida, Fourth District, March 17, 1999.
27 Fla. R. App. P. 9.370. For a few general principles of amicus curiae briefs, see Ciba-Geigy, Ltd. v. Fish Peddler, Inc., 683 So. 2d 522 (Fla. 4th D.C.A. 1996) (Amicus curiae briefs are generally for the purpose of assisting the court in cases which are of general public interest, or aiding in the presentation of difficult issues; though not normally impartial, the briefs should not argue the facts in issue; the briefs will not be allowed if used only to give one side more exposure than the rules contemplate; the briefs should not contain a statement of the case or fact, but should get right to the additional information that will assist the court.).
Ray Shawis engaged in a solo practice in Hernando County. He is an honors graduate of the University of Florida and received his law degree from the University of Florida Law School. Mr. Shaw’s practice includes appellate practice, litigation support, and mediation.
This column is submitted on behalf of the Trial Lawyers Section, Michael G. Tanner, chair, and D. Keith Wickenden, editor.