STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENRIQUE J. DIAZ, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4912RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on July 7, 1988, at Florida State Prison, Starke, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

For Petitioner: Richard A. Belz, Esquire

Florida Institutional Legal Services, Inc. 925 Northwest 56th Terrace

Gainesville, Florida 32605

For Respondent: Ann Cocheu, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

ISSUES AND INTRODUCTION

This is a rule challenge proceeding in which the Petitioner originally sought a determination pursuant to Section 120.56, Florida Statutes, that Rule 33-6.006, Florida Administrative Code, was an invalid exercise of delegated legislative authority. This case began with the filing of a Petition For Administrative Determination on December 23, 1986. On March 26, 1987, this Hearing Officer issued a Final Order of Dismissal which granted the Department's motion to dismiss. The Final Order Of Dismissal concluded that the Petitioner had failed to allege standing to challenge Subsections (2) through (9) of Rule 33-6.006, because his allegations were insufficient to show that his substantial interests were affected by those subsections of the rule.

The Final Order Of Dismissal went on to conclude that the Petitioner had sufficiently alleged standing to challenge Subsection (1) of the challenged rule, but also concluded that the Petitioner had failed to sufficiently allege facts sufficient to show the invalidity of the rule. In this regard the Final Order Of Dismissal specifically stated at paragraph 12:

In order to sufficiently allege the invalidity of an existing rule, a rule challenge petition must assert, at a minimum,

that the challenged rule is in some specified way a departure from statutory authority granted to the rule enacting agency by the Legislature. Where, as here, the rule is nothing more than a repetition of the statutory provision, the rule may be unnecessary, but it is not an invalid exercise of delegated legislative authority because it does not in any way depart from the statutory mandate. Because of the identical provisions of the subject rule language and the applicable statute, the Petitioner has not, and cannot, allege any facts sufficient to show that the rule is an invalid exercise of delegated legislative authority because he has not, and cannot, allege any differences between the statutory mandate and the rule mandate.

The Petitioner sought appellate review of the Final Order Of Dismissal. In Diaz v. Florida Department of Corrections, 519 So.2d 41 (Fla. 1st DCA 1988), appeal dismissed, 525 So.2d 877 (Fla. 1988), the First District Court of Appeal issued an opinion which primarily addressed the constitutionality of the statutory authority for the challenged rule. In that opinion the court concluded as follows:

Accordingly, we declare section 945.10(2) Florida Statutes (1985), to be unconstitutional. The case is remanded to the DOAH hearing officer for further proceedings to determine the validity of Rule 33-6.006(1) in light of this opinion.

On March 21, 1988, the appellate court issued its mandate and the case was once again before the Hearing Officer for further proceedings consistent with the court's opinion. The appellate court decision left undisturbed the conclusion that the Petitioner lacks standing to challenge Subsections (2) through (9) of Rule 33-6.006. Accordingly, the issue on remand is limited to a determination of the validity of Subsection (1) of Rule 33-6.006, Florida Administrative Code. As discussed in the conclusions of law, that determination involves a consideration of statutory amendments which took effect after the appellate court decision and were, therefore, not considered by the appellate court.

At the final hearing, both parties presented the testimony of witnesses and the Petitioner also offered several exhibits. During the course of the hearing the Petitioner was granted leave to file two late exhibits consisting of selected portions of the Department's Policy and Procedure Directives and selected portions of the Florida State Prison Institutional Operating Procedures. The Respondent was granted leave to file post-hearing objections to any late-filed exhibits.

The late-filed exhibits were submitted by the Petitioner and the Respondent promptly filed objections to same. Upon consideration, the objections to the exhibits are overruled and the late-filed exhibits are received as part of the record in this case.

Following the hearing, a transcript of tide proceedings at hearing was also filed. Thereafter, both parties filed timely proposed final orders containing proposed findings of fact and conclusions of law. The parties' proposed final orders have been carefully considered during the preparation of this final order. Specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated herein.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact.

Findings stipulated by the parties

1. Florida Administrative Code Chapters 1S, 22I, 28, and 33, as found in the Florida Administrative Code Annotated, through the April 1988 supplement, are true and correct copies of those rule chapters.

2. The Petitioner's current address is: Enrique J. Diaz

   Inmate Number 065599

   Florida State Prison Post Office Box 747 Starke, Florida 32091

   
   

3. The Respondent's name and address is:

   
   

   Florida Department of Corrections 1311 Winewood Boulevard

   Tallahassee, Florida 32301

   
   

4. The Department rule on which an administrative determination is sought is Rule 33-6.006(1), Florida Administrative Code, which states:

   
   

   No inmate of any institution, facility, or program shall have access to any information contained in the files of the Department.

   
   

5. The statutory provisions on which the subject Department rule is based are Sections 944.09 and 945.10, Florida Statutes.

   
   

6. The Petitioner's interests are substantially affected by Rule 33- 6.006(1), Florida Administrative Code, in that:

   
   

   1. He is a convicted felon, lawfully confined in the custody of the Department.

      
      

   2. He wishes to obtain from the Department, for the lawful cost of copying, documents he was once given by the Department, but which

      he no longer has in his possession, including, but not limited to:

      
      

      1. Institutional grievances filed by him.

      2. Grievance appeals filed by him.

         
         

      3. Disciplinary Reports issued against him.

         
         

      4. Disciplinary Report Worksheets issued against him.

      
      

   3. He wishes to obtain from the Department, for the lawful cost of copying, documents which are public records and which can be obtained by anyone from sources outside the Department, including, but not limited to:

      
      

      1. His Judgment and Sentence forms.

         
         

      2. His Uniform Commitment to Custody form.

      
      

   4. He wishes to obtain from the Department documents which are public records and which are normally provided to any member of the public requesting same, including, but not limited to:

      
      

      1. The Department's annual report.

         
         

      2. Ordinary records kept in the normal course of business, such as might be kept by any state agency.

      
      

   5. He had been refused any and all documents from the Department because of Rule 33-6.006(1), Florida Administrative Code.

      
      

      FINDINGS BASED ON EVIDENCE AT HEARING

      
      

7. Inmates are given copies of any disciplinary reports they receive at the time they receive the disciplinary report, plus the results of any subsequent disciplinary hearing. These copies are carbon copies rather than photocopies.

   
   

8. Inmates are given answers to inmate requests, institutional grievances, and grievance appeals they file. These answers are given to the inmate with a copy of his original filing.

   
   

9. The act of giving an inmate another, identical, copy of any disciplinary report, disciplinary worksheet, inmate request, institutional grievance, or grievance appeal he had previously been given does not create a security problem.

   
   

10. The act of giving an inmate another, identical, copy of his Judgment and Sentence forms, which are public documents contained in the files and records of the appropriate Clerks of Court, does not create a security problcm.

    
    

11. Copies of the above documents are routinely made for attorneys and the news media. The actual cost of providing these copies is charged.

12. The Department would not provide copies of the above documents if it were known the copies would be given to an inmate.

    
    

13. The Department's Administrative Gain Time Manual is made available to the news media, the public, and attorneys. The Department refuses to make this manual available to inmates.

    
    

14. The Florida State Prison Institutional Operating Procedures (IOPs) are public records, but the Department refuses to make copies of them for individual inmates because of Rule 33- 6.006(1), even though some of the IOPs are in the prison law library.

    
    

15. The Department's Policy and Procedure Directives are freely available to the public, but the Department refuse to make them available to inmates.

    
    

16. Florida State Prison, where the Petitioner is incarcerated, has approximately 1164 inmates. In accordance with state statute, the institution keeps a file on each inmate. Each file consists of from two to eighteen legal size folders of documents. The files include such material as investigation reports, disciplinary reports, special review information, presentence reports, psychological and medical reports, detainers, gain time, and other information.

    
    

17. There are three people in the Florida State Prison records department responsible for inmate files. It takes the FSP record department three or four hours daily to file newly received documents. The FSP records department also has other duties, such as posting gain time, cell changes, and disciplinary reports. The FSP records department has received few, if any, requests for information from the public or the news media. Most of their requests come from attorneys. The attorneys' requests for information place additional burdens on the small FSP records department staff. By way of example, it took approximately two hours to "screen" the Petitioner's file at FSP and his file is smaller than that of 75 or 80 per cent of the inmates.

    
    

18. Florida State Prison has only three photocopy machines for the entire institution. The machines are used extensively and are subject to frequent malfunctions.

    
    

19. The Admissions and Release office maintains the official file on each inmate at the central office. Currently, there are 33,000 inmates in custody. The primary reason that the Admissions and Release office does not want inmates to have hands-on access to their central office files is to maintain the integrity of the record. The Department has had to use the files in court to defend and substantiate the calculations for release dates. The Admissions and Release office has denied all inmate requests for copies of information from its files.

    
    

20. The Admissions and Release office is currently shorthanded. Whenever there is a new court decision affecting inmate rights or sentences, the office is flooded with correspondence and requests from inmates. The office has already received some grievances and requests from inmates concerning the appellate court decision in this case. The office expects a flood of requests if inmates are given access to Department records. During the past four years the Admissions and Release office has had very few requests for access to its files from the news media or the general public.

21. The Department's central files contain access codes for the Department's computers. If inmates could obtain the access codes, it would compromise the integrity of the Department's computer records.

    
    

22. Before release of any information from the Department's central office files, the information is screened for confidential information. Even documents which appear to be facially innocent have to be read to determine whether they contain information about informants or victims.

    
    

23. The Department is concerned that if inmates are allowed broad access to Department files, such access will create security problems. But the Department is even more concerned about the sheer volume of requests that would result from allowing broad access and the impact the expected volume of requests would have on Department staff and copying equipment. The Department is also generally of the view that it is virtually impossible to write a rule which would describe which documents should be available for inmate access and which should not. Rather, the Department is of the view that decisions regarding release of documents to inmates must be made on a case by case basis after review of each document in each file.

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.56, Fla. Stat.

    
    

25. The Petitioner is substantially affected by Rule 33-6.006(1), Florida Administrative Code, and has standing to seek an administrative determination as to its invalidity on the grounds that it is an invalid exercise of delegated legislative authority. In reaching this conclusion I have not overlooked the issues raised by the Respondent's motion to dismiss based on the fact that numerous documents were provided to the Petitioner's counsel at the commencement of the hearing. The act of providing those documents does not defeat the Petitioner's standing, because (a) the documents provided do not constitute all documents sought by the Petitioner and (b) the Department has not undertaken to provide the Petitioner with any documents he may seek in the future. Further, the Department cannot validate a rule of general applicability by waiving its application to one individual.

    
    

26. The sole statutory authority for a rule challenge to an existing rule is Section 120.56, Florida Statutes. Subsection (1) of the statute provides as the sole basis for a rule challenge a showing that the challenged rule is an "invalid exercise of delegated legislative authority." That statutory term is defined in Section 120.52(8), Florida Statues (1987), as follows:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridles discretion in the agency; or

       5. The rule is arbitrary or capricious.

    
    

27. The challenged rule reads as follows:

    
    

    No inmate of any institution, facility, or program shall have access to any information contained in the files of the Department.

    
    

28. The cited statutory authority for the adoption of the challenged rule is Section 944.09 and 945.10, Florida Statutes. Section 944.09, Florida Statutes, is a broad grant of rulemaking authority to the Department. Subsection (1) of that statute provides, in pertinent part:

    
    

    1. The department shall adopt rules governing the administration of the correctional system and the operation of the department, which rules shall relate to:

       (a) The rights of inmates.

       ...

       (e) The operation and management of the correctional institution or facility and its personnel and functions.

       (q) Such other rules as in the opinion of the department may be necessary for the efficient operation and management of the correctional system.

       
       

29. At the time of the adoption of the challenged rule, Section 945.10, Florida Statutes, read as follows, in pertinent part:

    
    

    1. No inmate of any institution, facility, or program of the Department of Corrections shall have access to any information contained in the files of the department. The department shall restrict release of information to any person except members of

    the news media and those listed in subsection

    1. when there is a reasonable cause to believe that such person may divulge such information to the inmate. (emphasis added)

       
       

30. A comparison of the portion of the statute underscored above with the language of the challenged rule reveals that at the time of its adoption, the rule was identical to a portion of the authorizing statute. But since the

    commencement of these proceedings, two things have happened to Section 945.10(2), Florida Statutes. First, it was declared to be unconstitutional. See Diaz v. Florida Department of Corrections, 519 So.2d 41 (Fla. 1st DCA 1988), appeal dismissed, 525 So.2d 877 (Fla. 1988). Thereafter, it was amended by Chapter 88-118, Laws of Florida, effective June 16, 1988. As amended, Section 945.10(2), Florida Statutes, reads as follows:

    
    

    1. Due to concerns for institutional security and unreasonable and excessive demands on agency personnel and resources if an inmate has unlimited or routine access to department records, an inmate of an institution, facility, or program of the Department of Corrections may not have access to any information contained in the records of the department unless a court of competent jurisdiction orders the department to give the inmate access to information in the records. However, the department may permit limited access to information in its records upon his written request, upon demonstration of exceptional circumstances including, but not limited to, safety concerns, and upon demonstration that the requested information is not available from another source. The department shall restrict release of information to any person except members of the news media and those listed in subsection

    (1) when there is reasonable cause to believe that such person may divulge such information to the inmate. The department shall adopt rules to administer this section. (Underscoring indicates new language added to statute. The amendment also deleted a few words.)

    
    

31. As amended and as presently in effect, Section 945.10(2), Florida Statutes, affords an inmate very little access to information in the Department's records, but it does afford some access. Rule 33-6.006(1), Florida Administrative Code, affords no access at all. Therefore, the rule is more restrictive than the statute and to that extent the rule contravenes the provisions of the statute by prohibiting access which is specifically provided in the statute. As noted in State, Department of Business Regulation v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984):

    
    

    It is axiomatic that an administrative rule cannot enlarge, modify or contravene the provisions of a statute. Seitz v. Duval County School Board, 336 So.2d 119, 121 (Fla. 1st DCA 1979); State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d

    454 (Fla. 1st DCA 1980). A rule which purports to do so constitutes an invalid exercise of delegated legislative authority. Nicholas v. Wainwright, 152 So.2d 458, 460 (Fla. 1963)

32. Because Rule 33-6.006(1), Florida Administrative Code, is more restrictive than Section 945.10(2), Florida Statutes (1987), as amended, the rule is an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(8) and 120.56, Florida Statutes.

    
    

33. The Department appears to have some legitimate concerns about security and about excessive demands on agency personnel and resources which might result from broad inmate access to Department records--concerns sufficiently legitimate that they were recited by the Legislature in the amendment to Section 945.10(2), Florida Statutes. But those concerns are not sufficient to authorize the Department to maintain a rule which is more restrictive than an express statutory provision.

Upon consideration of all of the foregoing, it is ORDERED:

That Rule 33-6.006(1), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

DONE AND ORDERED this 1st day of September, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1988.

APPENDIX TO FINAL ORDER, CASE NO. 86-4912RX

The following are my specific rulings on all of the findings of fact proposed by the parties.

Findings proposed by the Petitioner

The findings of fact proposed by the Petitioner appear in two sections, the first captioned "Agreed Findings" and the second captioned "Additional Findings." All of the proposed findings under the caption "Agreed Findings" are accepted on the basis of stipulations of the parties. The proposed findings under the caption "Additional Findings" are addressed immediately below.

Paragraph 1: Rejected as constituting a recitation of procedural events that transpired during the hearing, rather than proposed findings of fact.

Paragraphs 2 and 3: Accepted.

Paragraphs 4, 5, 6, and 7: Accepted in substance, although as written they appear to be a commentary upon events that transpired during the hearing rather than proposed findings of fact.

Paragraphs 8, 9, and 10: Accepted.

Findings proposed by the Respondent

Paragraphs 1, 2, 3, and 4: Rejected as constituting legal conclusions or discussion of legal issues, rather than proposed findings of fact.

Paragraphs 5 and 6: Accepted in substance.

Paragraph 7: Rejected as subordinate and unnecessary details.

Paragraph 8: Third sentence rejected as irrelevant. Last sentence rejected as speculative. The remainder of this paragraph is accepted in substance.

Paragraph 9: First three sentences are accepted in substance. The remainder of this paragraph is rejected as constituting a recitation of procedural events at hearing, rather than proposed findings of fact and, in part, as constituting subordinate and unnecessary details.

Paragraph 10: Accepted in substance, with some unnecessary details omitted and some details omitted as not fully supported by persuasive competent substantial evidence.

Paragraph 11: First sentence accepted. Second sentence rejected as irrelevant.

Paragraph 12: Accepted.

Paragraphs 13 and 14: Rejected as irrelevant.

Paragraphs 15, 16, 17, 18, and 19: Accepted in substance.

Paragraph 20: First three sentences rejected as subordinate and unnecessary details. Fourth sentence rejected as speculation.

Paragraphs 21 and 22: Accepted in substance, with unnecessary details omitted.

Paragraph 23: Rejected as irrelevant, especially where the issue here relates to obtaining records upon payment of the cost of duplication.

Paragraph 24: First sentence is rejected as lacking in logic. The remainder of this paragraph is rejected as subordinate and unnecessary details.

Paragraph 25: Rejected as subordinate and unnecessary details and as, in any event, addressing a matter of speculation.

Paragraphs 26 and 27: Accepted in substance with many unnecessary details omitted.

Paragraphs 28 and 29: Rejected as irrelevant to the issues in this case and as, in any event, speculative.

Paragraph 30: Accepted in substance.

Paragraph 31: Rejected as constituting a recitation of events at hearing rather than proposed findings of fact.

Paragraph 32: Rejected as irrelevant to the issues in this case.

Paragraph 33: Rejected as irrelevant in part and as constituting discussion of legal issues.

COPIES FURNISHED:

Richard A. Belz, Esquire

Florida Institutional Legal Services, Inc. 925 N.W. 56th Terrace

Gainesville, Florida 32605

Ann Cocheu, Esquire Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol

Tallahassee, Florida 32399-1050

Richard Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Louis A Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 3239-0250

Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 86-004912RX

Orders for Case No: 86-004912RX