Cantanese v. Ceros-Livingston

599 So. 2d 1021, 1992 Fla. App. LEXIS 4734, 1992 WL 83887
CourtDistrict Court of Appeal of Florida
DecidedApril 29, 1992
DocketNo. 91-0543
StatusPublished
Cited by1 cases

This text of 599 So. 2d 1021 (Cantanese v. Ceros-Livingston) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cantanese v. Ceros-Livingston, 599 So. 2d 1021, 1992 Fla. App. LEXIS 4734, 1992 WL 83887 (Fla. Ct. App. 1992).

Opinions

FARMER, Judge.

A faculty member of Florida Atlantic University [FAU] was denied a promotion, allegedly on account of invidious discrimination. She filed a charge of illegal discrimination with the Equal Employment Opportunity Commission. Two days later, she served the president of FAU with a formal request to inspect and copy certain records, among which included the following:

Copies of the minutes and other documentation indicating the votes on tenure or promotion applications of all College level and University level Promotion and Tenure Committees from 1964 to date of inspection.

He objected to any inspection on the grounds that the records sought in the above description “consist of evaluative materials protected under Florida law.” She thereupon filed a petition for a writ of mandamus, which the trial court granted. FAU appeals.1 We reverse.

Ordinarily, questions of public records inspection begin and end with section 119.07, Florida Statutes (1991).2 In this case, however, an exemption elsewhere is asserted by FAU, viz., section 240.253, which provides:

240.253 Personnel records. — The university may prescribe the content and custody of limited access records which the university may maintain on its employees. Such records shall be limited to information reflecting evaluations of employee performance and shall be open to inspection only by the employee and by officials of the university who are responsible for supervision of the employee. Such limited access employee records are confidential and exempt from the provisions of s. 119.07(1). Except as required for use by the president in the discharge of his official responsibilities, the custodian of the limited access employee records may release information from such records only upon authorization in writing from the employee or upon order of a court of competent jurisdiction. * * *

FAU also asserts that it has designated the records sought to be inspected as confiden[1023]*1023tial by its adoption of Fla.Admin. Code Rule 6C5-5.005, which says:

6C5-5.005 Limited Access to Employee Records. The contents of employee evaluation files shall be confidential, and shall conform to the requirements of applicable law, rules and collective bargaining agreements. Employee evaluation files shall not be disclosed except to the evaluated employee, to persons so authorized by the employee, to University officials whose duties require access to the file in accordance with University and departmental evaluation and supervisory procedures, to the President and to the President’s designees in the discharge of official responsibilities as provided in 6C5-1.002 and as may be provided by law. * * *

Referring to the words “collective bargaining agreements” in the above rule, FAU also asserts that the Board of Regents3 has entered into a collective bargaining agreement with the United Faculty of Florida for the period 1988 to 1991, which contains the following provision:

11.8 Confidentiality. Except as noted above, only the employee and the employee’s representative, and university and Board officials responsible for the supervision or evaluation of the employee, may inspect information reflecting evaluation of employee performance contained in the employee’s evaluation file, except upon order of a court of competent jurisdiction.

FAU argues that the combined effect of these provisions justifies its refusal to allow appellee to inspect the records described above.

Because all exemptions from public records disclosure must find a statutory basis, it is necessary first to look at the statute. Professor Ceros-Livingston first argues that section 240.253 does not create any exemption at all. We disagree. For we find it impossible to read the words, “such limited access employee records are confidential and exempt from the provisions of s. 119.07(1),” as anything but an exemption from mandatory public disclosure.

We pause to note that FAU invites us to consider certain “legislative history”, consisting of committee reports from both the Senate and the House of Representatives of the Florida Legislature, as showing conclusively that the legislature intended in section 240.253 to grant an exemption from public records disclosure for the kind of records sought here. FAU places great emphasis, e.g., on the following words which appear repeatedly in the legislative materials furnished:

[B]y including peer evaluations as part of limited access records, the exemption safeguards candor, promotes collegiality, discourages mediocrity, and generally enhances the peer review process. If these records were not exempt from public inspection, universities might find it difficult to continue to attract quality staffs.

See Florida Senate, Committee on Education, Open Government Sunset Review Act Exemption Analysis, (November 4, 1987) at 2.

It is well established, however, that the rules of statutory construction may be employed only when the statute is ambiguous on its face. Streeter v. Sullivan, 509 So.2d 268 (Fla.1987). Section 240.253 is not ambiguous. The ordinary meaning and common usage of simple, workaday words, such as “information reflecting evaluations of employee performance,” is immediately apparent. Thus, even assuming that this kind of “legislative history” can teach us anything about what the legislature really meant by section 240.253, the lack of ambiguity in that statute precludes the use of these materials.

We acknowledge that section 240.253 is not a legislative undertaking to define precisely what constitutes “information reflecting evaluations of employee performance.” Rather, we understand the statute to be merely an authorization to the several universities in this state to exempt from [1024]*1024public records disclosure a certain class of information. That class is described as “information reflecting evaluations of employee performance.” The legislature, we note, simply described the class without venturing to specify just what records might constitute such “information”. The statute thus leaves it to FAU to decide for itself what information in what records may fit into the legislative classification.

Here, the legislature used the term “prescribe” in place of the phrase “shall adopt rules,” which is frequently used elsewhere in chapter 240, part II. The word “prescribe” seems to us to allow some freedom for the university to decide just how it will designate which records or information shall constitute “evaluations of employee performance.” One way of so designating might be by formal rule-making under chapter 120. Another might be by formal agreement with the collective bargaining agent of all of its employees. Still another might be by university policy stated in a writing distributed to all employees, such as an employee handbook.

In this case, FAU seems to have tried the first two. Its rule broadly provides that the “contents of employee evaluation files shall be confidential.” Although the rule does not define just what information constitutes evaluations of employee performance, we think that that limitation itself, though concededly general in one sense, is yet specific enough to narrow the limited access materials to the class defined by the legislature.

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Related

Alexander v. Herbert
150 F.R.D. 690 (M.D. Florida, 1993)

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Bluebook (online)
599 So. 2d 1021, 1992 Fla. App. LEXIS 4734, 1992 WL 83887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cantanese-v-ceros-livingston-fladistctapp-1992.