STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA INSTITUTIONAL LEGAL ) SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-1094RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in this case by telephone conference call on March 8, 1990, between counsel for both parties and the undersigned, Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Richard A. Belz, Esquire

Florida Institutional Legal Services, Inc.

925 N.W. 56th Terrace, Suite A Gainesville, Florida 32605

For the Respondent: Linda B. Miles, Esquire

Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-lo50

STATEMENT OF THE ISSUES

The issue for consideration herein is whether Department of Corrections Rule 33-1.004(3) is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

By undated Petition For Administrative Determination, Richard A. Belz, attorney for and Executive Director of the Petitioner, Florida Institutional Legal Services, Inc., (FILS), challenged the Department of Corrections', (Department), Rule 33- 1.004(3), Florida Administrative Code, as an invalid exercise of delegated legislative authority in several particulars as hereinafter discussed. On February 5, 1990, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and by Notice of Hearing dated February 27, 1990, the undersigned, to whom the case had been assigned on February 26, 1990, set the matter for formal hearing in Tallahassee on March 26, 1990.

However, at the stipulated request of counsel for both parties, a telephone conference call was held on march 8, 1990, at which the parties agreed there was no issue of material fact for resolution and that a Final Order could be entered by the undersigned based upon a joint stipulation of the facts and upon consideration of Proposed Final Orders to be submitted by the parties, without hearing.

An Order was thereafter issued by the undersigned incorporating the terms of the above agreement, cancelling the hearing scheduled for March 26, 1990, and setting dates for the filing of the Joint Stipulation and the Proposed Final Orders.

The Joint Stipulation was filed on March 22, 1990; Respondent's Proposed Final Order on April 15, 1990; and Petitioner's Proposed Final Order on April 6, 1990. The Proposed Findings of Fact contained in the Proposed final Orders have been accepted and are incorporated into this Final Order.

FINDINGS OF FACT

1. The Petitioner, FILS, provides legal services to indigent inmates committed to the custody of the Department pursuant to a contract between the parties. In the course of providing this legal service, FILS, or its employees, periodically request copies of Department records for which it is charged by the Department at the rate of 15 cents per page. The copying charge is paid by FILS out of organizational funds.

   
   

2. These charges are based on Department Rule 33- 1.004(3), which is founded on authority found in Sections 119.07 and 120.53, Florida Statutes, and which sets out the 15 cent per page copy charge, and also provides:

   
   

   In addition to the actual cost of materials and supplies, a special service charge will be assessed for providing information when the nature or volume of the records requested requires extensive clerical or supervisory assistance by department personnel. For the purpose of this rule, "extensive" means that it will take more than 15 minutes to locate, review for confidential information, copy and refile the requested material. The special service charge will be computed to the nearest quarter of an hour exceeding 15 minutes based on the current rate of pay for the paygrade of the person who performed the service, but not to exceed a paygrade 18, and will be assessed when appropriate regardless of the number of individual copies made.

   The Department may also charge for the cost of mailing the requested records including the cost of the envelope and the postal service charge.

3. Petitioner has been charged the additional fee, as provided for above, in each case where it has taken Department personnel longer than 15 minutes to locate the requested material, review an extensive number of documents for confidential information, copy it, and refile the originals.

   
   

4. The enabling statute, Section 119.07(l)(b), Florida Statutes, provides:

   
   

   If the nature or volume of public records requested to be inspected, examined, or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use or information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both. "Information, technology resources" shall have the same meaning as in S. 282.303(10).

   
   

5. On or about February 5, 1990, FILS filed its Petition For Administrative Determination challenging the rule in question which provides for the additional charge on the basis that it:

   
   

   1. is an invalid exercise of delegated legislative authority,

   2. exceeds the grant to the Department of rule making authority,

   3. enlarges, modifies, or contravenes the specific provisions of the basic statute, and

   4. is arbitrary and capricious.

G. FILS is substantially affected by the rule in issue and has standing to seek administrative determination of the rule's validity.

1. In Opinion 084-81, (August 21, 1984), the Florida Attorney General recognized the propriety of an additional charge over and above the actual copy costs, for the inspection and examination of public records where the nature or volume of the records requires extensive clerical or supervisory assistance under Section 119.07(1)(b), Florida Statutes, but held such fee is not routinely justified merely because a public record contains exempted material.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

3. Petitioner contends that the Department's rule in question here constitutes an invalid exercise of delegated legislative authority because:

   
   

   1. The Department has exceeded its grant of rule making authority, or

   2. The rule enlarges, modifies, or contravenes the specific provisions of the law implemented, or

   3. The rule is arbitrary and capricious, in that:

      1. It has set a charge to exceed that for "actual cost of duplication" based on an arbitrary time standard, regardless of the number of individual copies made,

      2. The statute authorizing a

      does not authorize a fee based on time, a "special service charge?, or any other charge over and above the "actual cost of duplication" for the review time, and (3). According to the opinion of the Attorney General, no charge can be made under the statute for the deletion or excision of exempted information.

      
      

4. The burden of proof in this case rests upon the Petitioner to show, by a preponderance of the evidence, that the challenged rule is an invalid exercise of delegated legislative authority, Agrico Chemical Co. v. State. 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla. 1979).

   
   

5. Much of the fundamental case law regarding rule challenges is found in the Agrico case cited above which set the standard for evaluation. In that case, the court required the challenger to show that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the rule requirements are not reasonable related to the purpose of the enabling legislation; or that the rule, or its requirements, are arbitrary and capricious.

   
   

6. The term "invalid exercise of delegated legislative authority1, is defined in Section 120.52(8), Florida Statutes, as "... action which goes beyond the powers, functions, and duties delegated by the legislature", and that section then identifies those bases for holding a rule to be invalid, including the three utilized by Petitioner herein. Both proposed and existing rules are to be tested against those criteria set forth in Aqrico as well as the statute.

   
   

7. The burden of showing that an agency action is an invalid exercise of delegated legislative authority is a difficult one. The courts recognize that agencies are given wide discretion in the exercise of their lawful rule making authority, and once an agency has construed a statute, that construction is

   given great weight and is not to be overturned unless clearly erroneous, Austin

   v. Department of Health and Rehabilitative Services, 495 So.2d 777, 779 (Fla. 1st DCA 1986).

   
   

8. On the other hand, however, agencies cannot, by administrative rule, enlarge, modify, or contravene the provisions of a statute, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984). The Salvation case also stands for the proposition that, absent some legislative indication of a different meaning, the words in a statute should be given "their plain and ordinary meaning."

   
   

9. Without doubt, governmental records, insofar as not exempt, should be, and are, open for public inspection. This is state policy. (See Section 119.01(1), Florida Statutes) By the same token, it is equally clear that records custodians may charge anyone desiring a copy of a record not only for the actual cost of copying, but also, when the nature of the record or its volume so indicates, for the extra time and effort spent in gathering and examining the records by the charge of an additional fee.

   
   

10. Therefore, the concept of charging an additional fee in an appropriate case is acceptable and unobjectionable. Only when the extra charge becomes routine and not a compensation for the extraordinary effort involved in examination of voluminous records for possible "confidential" or non-disclosable information, does it become improper.

    
    

11. It has already been determined herein that Section 119.07(1)(b), Florida Statutes, authorizes a charge for the actual cost of duplication and a reasonable special service charge when the nature or volume of the requested records requires "extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved "

    
    

12. Here, the Department's rule quotes the above cited language and, in addition, defines the term, "extensive", as meaning taking longer than 15 minutes. In an isolated case, 15 minutes would not seem extensive. If numerous requests are received on a repeated basis, however, the cumulative effect on the time of Department personnel could well be extensive. The stipulated facts submitted by the parties give no indication of the volume or complexity of the records involved, or of the degree of frequency with which the extra fee is charged. In the absence of any evidence of magnitude of application, it cannot be said that the Department's action in defining by rule the term "extensive" used in the statute either exceeds its grant of rule making authority or enlarges, modifies or contravenes the specific provision of the law it implements. Whether that action is arbitrary or capricious is another question.

    
    

13. In Aqrico, the court defined a capricious action as one which is taken without thought or reason or irrationally. An arbitrary action is one not supported by facts or logic, or despotic.

    
    

14. Clearly, the Department's action in assessing an additional charge in those cases which meet the "extensive" test is neither without thought or reason or irrational. Repeated requests for examination of and copying of departmental records, as they pertain to prisoners or other matters, can certainly be burdensome, and the agency's attempt to recoup what might be a substantial financial expenditure appears, in theory, to be well thought out, rational and within reason. No evidence was presented as to the magnitude of the problem,

    and Petitioner has failed to present evidence to demonstrate it does not exist or that the application to it is unreasonable. The burden rests with Petitioner and it has failed to satisfy that burden.

    
    

15. As to whether the agency's action is not supported by facts or logic, again, there is no direct evidence to establish either way. The rule in question, then, appears to be, absent a showing to the contrary, and affording it the presumptions to which it is entitled under the law, neither arbitrary nor capricious, and is clearly not an improper exercise of delegated legislative authority.

It is, therefore:

ORDERED THAT

Florida Institutional Legal Service, Inc.'s Petition For Administrative Determination is hereby dismissed.

DONE and ORDERED in Tallahassee, Florida this 16th day of April, 1990.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1990.

APPENDIX TO FINAL ORDER IN CASE NO. 90-1094RX

The following constituted my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

Finding 10.

1. Accepted.

2. & 15. Accepted.

1. - 18. Not Findings of Fact but procedural or other matters.

   FOR THE RESPONDENT:

   
   

   1. Accepted and incorporated herein.

   2. Accepted and incorporated herein.

   3. - 6. Accepted and incorporated herein.

1. Accepted.

2. Accepted and incorporated herein, but duplicative of Finding 6.

3. Accepted.

4. Accepted and incorporated herein.

COPIES FURNISHED:

Richard A. Belz, Esquire Florida Institutional

Legal Services, Inc.

925 N.W. 56th Terrace, Suite A Gainesville, Florida 32605

Linda Miles, Esquire Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-10500

Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Blvd.

Tallahassee, Florida 32399-2500

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Blvd.

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 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.

================================================================= DISTRICT COURT OPINION AND MANDATE

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

FLORIDA INSTITUTIONAL LEGAL : NOT FINAL UNTIL TIME EXPIRES TO SERVICES, INC., FILE MOTION FOR REHEARING AND

: DISPOSITION THEREOF IF FILED.

Appellant,

: CASE NO.: 90-1343

FLORIDA DEPARTMENT OF DOAH CASE NO.: 90-1094RX CORRECTIONS, :

Appellee. :

Opinion filed May 3, 1991.

An Appeal from an order of the Department of Administrative Hearings. Arnold Pollock, Hearing Officer.

Richard A. Belz, Gainesville, for Appellant. Rosa H. Carson, Tallahassee, for Appellee.

George K. Rahdert and Patricia Fields Anderson of Rahdert & Anderson, St. Petersburg, for Amicus Curiae/Tirnes Publishing Company.

Gregg G. Thomas of Holland & Knight, Tampa, for Amicus Curiae/Tribune Company. SMITH, J.

Appellant challenges a final order of the Department of Administrative Hearings dismissing its rule challenge. We affirm.

Appellant provides legal services to indigent inmates of Florida's prison system pursuant to a contract with the Department of Corrections (DOC), the appellee. DOC and appellant stipulated that in the course of the representation of inmates, appellant has requested copies of DOC records.

Appellant filed a challenge of a rule adopted by the DOC pursuant to section 119.O7(1)(b), Florida Statutes. The challenged rule provides, in pertinent part:

[I]n addition to the actual cost of materials and supplies, a special service charge will be assessed for providing information when the nature or volume of the records requested requires extensive clerical or

assistance by department personnel. For the purpose of this rule, `extensive' means that it will take more than 15 minutes to locate, review for confidential information, copy and refile the requested material.

Rule 33-1.004(3), F.A.C. (emphasis added).

Section 119.O7(l)(b) provides, in pertinent part, that if: the nature or volume of public records

requested to be inspected, examined, or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred . . .

DOC and appellant stipulated below that appellant was charged the actual cost of duplicating the requested records and, pursuant to the challenged rule, has been charged a fee over and above the actual cost of duplication whenever it has taken DOC personnel longer than fifteen minutes to locate, review documents for confidential information, photocopy and refile the requested information.

The DOC and appellant further stipulated that appellant has been substantially affected by Rule 33-1.004(3).

The hearing officer concluded in his final order that the rule was not an invalid exercise of legislative authority inasmuch as section 119.07 specifically authorizes a "special service charge" which requested material requires "extensive use of information technology resources or extensive clerical or supervisory assistance. . . ." DOC defined extensive as requiring fifteen or more minutes of work, and the hearing officer found that while fifteen minutes may not seem extensive in an isolated case, the cumulative effect of numerous requests could be extensive. The hearing officer further observed that the burden was on appellant to show the rule gas invalid, and in the absence of any evidence regarding the magnitude of this rule's application, the hearing officer would not declare that DOC's definition of the term "extensive" exceeded, modified or contravened the statutory authorization. The hearing officer added that the rule was not arbitrary or capricious.

The essence of appellant's argument before this court is that DOC is improperly charging appellant for the DOC's review for and excision of information in the inmate files which DOC deems confidential. As support for this argument, appellant states that it is well-established that a custodian of

public records cannot charge a fee for the mere inspection of public records, citing State ex rel Davis v. MacMillan, 38 56. 666 (Fla. 1905). Appellant further cites to an opinion of the ;attorney General providing that no provision of Chapter 28 or 119, Florida Statutes, authorizes a fee for the inspection and examination of public records except as provided in section 119.O7(1)(b), when the nature or volume of such records necessitates extensive clerical or supervisory assistance. 1984 Op. Att'y. Gen. Fla. 084-81 (Aug. 21, 1984),

readopted 1986 Op. Att'y. Gen. Fla. 086- 69 (Aug. 14, 1986). Appellant notes further that under Florida law, government records shall be open to inspection by the public at a reasonable time and under reasonable conditions. Section 119.O7(1)(a) Florida Statutes We find the authority cited to this court by the appellant does not render the rule at issue invalid.

In MacMillan, supra, the supreme court was asked to consider the question of whether a party may have access without charge to circuit court records for the purpose of taking abstracts when the party will do "all the work of taking the abstracts and the memoranda from such records without the assistance of the [circuit court] clerk or his deputies." 38 So. at 667. Contrary to the appellant's suggestion, the MacMillan court did not hold that a custodian of records could hot charge for his assistance in providing access to public records. Instead, the supreme court held that under the then existing statutory law, a court clerk could not charge a fee

for the bare supervision in his office of parties who may go in there themselves to inspect and take extracts from the records without calling upon him for any service or assistance in connection therewith, other than that bare general supervision, observation, or watchfulness on his part that it is his duty at all times and under all circumstances to exercise . . ." Id. at 667

(Emphasis added).

Interestingly, the statute at issue in MacMillan, 1/ like section 119.07(1)(b), provided that a court clerk was not required "to perform any service" in connection with the right of inspection or the making of abstracts without payment of compensation as fixed by law. Id. Thus, we find MacMillan is not controlling because it construes a different statute than is at issue in this appeal and further, the court in MacMillan held only that a fee could not be charged for supervision as opposed to any assistance which may be required.

Similarly, we find the opinions of the Attorney General cited to us by appellant to be unpersuasive. The Attorney General considered in 1984 Op. Att'y. Gen. Fla. 84-81 the question of whether a court clerk could charge, in addition to the copying fee, a fee for the clerical and supervisory effort necessary to review and delete information exempt from-the right of public inspection when the clerk is obligated to make copies in order to permit the records to be inspected in accordance with Chapter 119, Florida Statutes. The Attorney General opined that there was no specific provision in Chapter 119 for the charging of a fee for the deletion of exempt material; however, the Attorney General observed that an agency may charge for "extensive clerical or supervisory assistance," referring to section 119.07(1)(b), Florida Statutes (1983). The Attorney General did not express an opinion as to whether supervisory or clerical assistance could not include the review for and deletion of confidential information.

Although appellant never specifically raised the issue below nor is the issue raised on appeal, the Times Publishing Company argues in its amicus brief that the definition of "extensive" adopted by DOC, that is, fifteen minutes or more of effort, is invalid, The Times Publishing Company also argues that the DOC's definition of "extensive" frustrates both the Legislature's purpose in enacting the Public Records Act and the public's efforts to exercise its rights under the Act. Similarly, the Tribune Company argues that the rule unjustifiably threatens and encumbers the public's right to supervise government. We find these to be mere conclusory allegations without basis in the record before us.

As to these and all other contentions that were or might have been raised below, the burden was on appellant to show that the rule was invalid, as the hearing officer observed. Aqrico Chemical CO. v. Dept. of Environmental Regulation,

365 So.2d 759 (Fla. 1st DCA 1978). Because appellant made no demonstration below of only one acceptable meaning of the term "extensive" as used in section 119.07, and because appellant has not shown that the term as used in the rule does not comport with the intent and purposes of the statute, we defer to the DOC's interpretation which we do not find to be "clearly erroneous." Shell Harbor Group v. Dept. of Business Regulations, 487 So.2d 1140 (Fla. 1st DCA 1986).

Because we find the appellant has failed to show the rule is invalid and because we find the remaining arguments advanced by the amicus also to be without merit, we AFFIRM the final order.

NIMMONS, J., CONCURS; ZEHMER, J., DISSENTS WITH OPINION.

ENDNOTE 1/ 1390-1391, Fla. Stat. (1892).

ZEHMER, J. (dissenting)

I respectfully dissent. Rule 33-1.004(3), F.A.C., imposes a charge if a Department of Corrections clerk expends fifteen minutes or more in locating and reviewing requested documents. This condition exceeds the agency's delegated authority under section 119.07(1)(b), Florida Statutes.

Section 119.07(1)(b) speaks in terms of a particular request for public records or documents that requires the agency to provide "extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved." (Emphasis added.) Chapter 119 is a generic chapter governing all state agencies in respect to the availability, inspection, and copying of public records. Determining whether a particular request requires "extensive" use of personnel time is not a matter falling within any particular expertise of the Department of Corrections, or indeed any other state agency; pouring meaning into that term is simply a matter of statutory construction and interpretation by the courts without any need to resort to agency expertise.

Thus, I do not agree with the majority that this court should defer to the agency's interpretation of this statute in determining that fifteen minutes meets the statutory requirement of "extensive" use.

The rule defines "extensive" as requiring a clerk to expend at least fifteen minutes of time. The hearing officer's order contains a finding that fifteen minutes is not in itself extensive, but justifies treating this short

limitation as "extensive" within the meaning of the statute by reason of the "cumulative effect of numerous requests" for information from the agency. I find no language in section 119.O7(1)(b) that supports a notion that this section contemplates the cumulative effect of numerous requests in determining what is "extensive." On the contrary, this section is written in terms of a single request, and it is clear to me that unless a single request for location and review of public records requires "extensive" time, no charge may be made for the service pursuant to the statute. In view of the hearing officer's finding that fifteen minutes pier se is not extensive, neither the record nor section 119.O7(1)(b) supports the validity of this rule requirement.

The legislative intent manifested by the statutory language in section 119.O7(1)(b) contemplates a single request to the agency that by reason of the "nature or volume of public records requested to be inspected, examined, or copied pursuant to this subsection" requires an unusual amount of time and effort to be expended by the agency. A mere fifteen minutes to locate, review, and copy a public document pursuant to a routine request such as the requests described in the record in this case is simply not the kind of extensive service contemplated by the statute, and the hearing officer so found. In short, I cannot agree with the majority that the rule comports with the obvious statutory purpose underlying the requirement of "extensive" use of clerical personnel; instead, I would hold that the rule is an invalid exercise of delegated legislative authority. Section 120.54(4), Fla. Stat. (1989).

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, Arnold H. Pollock. Hearing Officer

Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

FLORIDA INSTITUTIONAL LEGAL SERVICES, INC.

vs. Case NO. 90-1343

Your Case NO. 90-1094RX

DEPARTMENT OF CORRECTIONS

The attached opinion was rendered on May 3, 1991

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable James D. Joanos

Chief Judge of the District Court of Appeal of Florida,

First District and the Seal of said

court at Tallahassee, the Capitol, on this 8th day of July, 1991

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 90-001094RX

Orders for Case No: 90-001094RX