State, Department of Transportation v. Plummer

774 So. 2d 945, 17 I.E.R. Cas. (BNA) 316, 2001 Fla. App. LEXIS 91, 2001 WL 20775
CourtDistrict Court of Appeal of Florida
DecidedJanuary 10, 2001
DocketNo. 1D00-1356
StatusPublished

This text of 774 So. 2d 945 (State, Department of Transportation v. Plummer) 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
State, Department of Transportation v. Plummer, 774 So. 2d 945, 17 I.E.R. Cas. (BNA) 316, 2001 Fla. App. LEXIS 91, 2001 WL 20775 (Fla. Ct. App. 2001).

Opinion

PER CURIAM.

Pursuant to Florida Rule of Appellate Procedure 9.100(l)(c)(13), the Florida Department of Transportation (DOT) petitions this court for review of orders entered in the administrative proceeding below compelling it to provide confidential information regarding employees tested under Florida’s Drug-Free Workplace Act. For the reasons explained below, we quash those orders.

Respondent, formerly employed by DOT as a driver with a commercial driver’s license, was dismissed when he refused to submit to an alcohol test during a random [946]*946drug test performed under federal1 and state law by failing to supply an adequate breath sample. Respondent appealed his dismissal to the Public Employees Relations Commission (PERC) pursuant to section 112.0455, Florida Statutes (1999), the Florida Drug-Free Workplace Act. Pursuant to respondent’s discovery request, the hearing officer issued a subpoena duces tecum to the breath alcohol technician who administered respondent’s test, requiring production of all employee test results on the machine since the month preceding respondent’s test and entered an order requiring DOT to identify other employees unable to provide an adequate breath sample on the same date and on the same machine appellant was tested. The order also required DOT to provide the names of similarly situated employees as related to the mitigation criteria contained in section 447.208(3), Florida Statutes. In response to DOT’s appeal, PERC issued an interim order determining that section 447.208(3) is inapplicable to a Drug-Free Workplace appeal, but requiring DOT to provide the names, addresses, and phone numbers of other employees tested by DOT and the date of the test, but not the test results.

The Department sought review of these orders, urging as it did below, that PERC’s action requires DOT and the alcohol testing technician to release confidential information about state employees in contravention of both state and federal law. We find that judicial review of these non-final orders is proper in this case. See § 120.68(1), Fla. Stat.; Holmes Reg’l Med. Cent., Inc. v. Agency for Health Care Admin., 731 So.2d 51, 53 (Fla. 1st DCA 1999) (“[T]he opportunity to review a nonfinal order exists only in those cases in which the court must address an issue immediately to protect a substantial right that would be lost in the interim.”); see, e.g., Prudential Ins. Co. v. Florida Dep’t of Ins., 694 So.2d 772, 773 (Fla. 2d DCA 1997) (deciding to review non-final agency action because “[a]n order requiring discovery is a proper subject for review ‘since an erroneously compelled discovery, once made, may constitute irreparable harm which cannot be remedied on appeal.’ ”).

Florida’s Drug-Free Workplace Act, section 112.0455, Florida Statutes (1999), is intended to “[pjromote the goal of drug-free workplaces within government through fair and reasonable drug-testing methods for the protection of public employees and employers.” The legislature provided for confidentiality regarding that testing as follows:

Except as otherwise provided in this subsection, all information, interviews, reports, statements, memoranda, and drug test results, written or otherwise, received or produced as a result of a drug-testing program are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceedings, except in accordance with this section.

§ 112.0455(ll)(a), Fla. Stat. At issue in the instant case is the meaning of the following exception:

Employers, laboratories, employee assistance programs, drug and alcohol rehabilitation programs, and their agents may not release any information concerning drug test results obtained pursuant to this section without a written consent form signed voluntarily by the person tested, except where such release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal taken under this section, or where deemed appropriate by a professional or occupational licensing board in a related disciplinary proceeding.

§ 112.0455(ll)(b), Fla. Stat.

Petitioner DOT argues that in keeping with the statute’s clear and sweeping confidentiality provision, paragraph (b) permits [947]*947a hearing officer to order discovery of information concerning drug test results only as to the testing of the particular employee challenging an employment action and not as authorizing the discovery of any information, including the names and addresses, regarding other persons subject to the testing program. We agree. Authorizing a hearing officer or court to order discovery of information regarding any person other than the specific employee in question allows the exception to swallow the rule. The very purpose of the confidentiality provision would be defeated. Our interpretation of this statute is consistent with federal law and regulations applicable in this case.

The federal Omnibus Transportation Employee Testing Act of 1991 also governs DOT’S alcohol and controlled substances testing of drivers holding a commercial license, such as respondent. See 49 U.S.C. § 31306. This statute, like the Florida statute, and the applicable federal regulations require employers to retain and keep confidential the records of their drug testing program. See id.; 49 C.F.R. §§ 382.401, .405(a). The exception to this confidentiality requirement provides as follows:

An employer may disclose information required to be maintained under this part pertaining to a driver, [sic] the decisionmaker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual, and arising from the results of an alcohol and/or controlled substance test administered under this part, or from the employer’s determination that the driver engaged in conduct prohibited by subpart B of this part (including but not limited to, a worker’s compensation, unemployment compensation or other proceeding relating to a benefit sought by the driver).

49 C.F.R. § 382.405(g). See also 49 C.F.R. § 40.81 (governing workplace alcohol testing procedures and permitting an employer to disclose “information required to be maintained under this part pertaining to a covered employee to that employee or to the decisionmaker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the individual, and arising from the results of an alcohol test administered under the requirements of this part....”). The federal exception is clearly drawn to allow the decisionmaker in an administrative proceeding or court to obtain only the records applicable to the employee in question in order to preserve the confidentiality of the records pertaining to other employees.

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Related

Prudential Ins. v. Florida Dept. of Ins.
694 So. 2d 772 (District Court of Appeal of Florida, 1997)
Holmes Reg. Med. v. Health Care Admin.
731 So. 2d 51 (District Court of Appeal of Florida, 1999)
Keaveney v. Town of Brookline
937 F. Supp. 975 (D. Massachusetts, 1996)

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Bluebook (online)
774 So. 2d 945, 17 I.E.R. Cas. (BNA) 316, 2001 Fla. App. LEXIS 91, 2001 WL 20775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-transportation-v-plummer-fladistctapp-2001.