IN THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
IN AND FOR VOLUSIA COUNTY, FLORIDA
GENERAL CIVIL DIVISION
case no 99-30725-CICI
Division 31
MEMORIAL - WEST VOLUSIA, INC., a Florida not-for-profit corporation
Plaintiff
FINAL SUMMARY JUDGMENT
*1301 The case is before the Court on cross motions for summary judgment. The court has considered the written arguments submitted by each party and heard extensive oral argument on April 14, 2000, a transcript of which has been filed herein (referred to herein by page number as "T 1"). Being fully advised in the premises, the court is now entering its findings, conclusions, orders, and final judgment disposing of this action.
This case continues landmark litigation concerning the application of Florida's open government laws to *1302 Memorial Hospital--West Volusia, Inc., ("WVI"), a private not-for-profit corporation which leases and operates a public hospital. The dispute began in 1994 when WVI, was organized as a nonprofit corporation for the purpose of operating West Volusia Memorial Hospital (the "Hospital") in DeLand under a certain "Lease and Transfer Agreement Between and Among West Volusia Hospital Authority, Memorial Hospital-West Volusia, Inc. and Memorial Health Systems, Inc." ("Agreement"). When WVI refused a demand for access to its records and meetings, the News-Journal Corporation ("News-Journal"), sued for declaratory and injunctive relief to establish the public right of access to the records and meetings of WVI.
After this court entered summary judgment for WVI, the News-Journal prevailed in an appeal to the Fifth District Court of Appeal. See News-Journal Corp. v. Memorial Hospital--West Volusia, Inc., 695 So. 2d 418 (Fla. 5th DCA 1997) ("News-Journal"). The Florida Supreme Court affirmed, holding that WVI is subject to the public right of access as to both records and meetings. See Memorial Hospital--West Volusia, Inc. v. News-Journal Corp., 729 So. 2d 373 (Fla. 1999) ("West Volusia").
While the appeal was pending in the Supreme Court, however, the legislature adopted an act intended to overcome the holding in News-Journal. See Ch. 98-330, Laws of Florida (1998) (codified at § 395.3036, Fla. Stat. (1999)) (hereafter sometimes called "the 1998 Act"). Although the Supreme Court requested supplemental briefs on the effect, if any, that the act may have on the pending case, it ultimately declined to address the act's facial constitutionality, stating, "[W]e conclude that a constitutional challenge to this statute should follow usual procedures, with the challenge initially proceeding in circuit court . . ." West Volusia, at 384. 1
Promptly after the decision in West Volusia became final, WVI brought suit asking this court to declare the 1998 Act constitutional. The News-Journal answered, moved for judgment on the pleadings dismissing the complaint for lack of standing, and counterclaimed for a declaratory judgment that the 1998 Act is facially unconstitutional, as well as for supplemental relief.
While this suit was pending, the legislature passed another act also aimed at overcoming the holding in West Volusia. See Ch. 99-356, § 6, Laws of Florida (1999) (codified at § 155.40(6) & (7), Fla. Stat. (1999)) (hereafter sometimes called the "1999 Act"). 2 With leave, the News-Journal amended its counterclaim to seek a declaration that the 1999 Act is unconstitutional, and WVI ultimately responded with an affirmative defense that there is no justiciable controversy concerning the 1999 Act.
WVI also sued Mr. Tanner Andrews, a private citizen of DeLand. Proceeding pro se, Mr. Andrews has filed pleadings and motions substantively along the lines of the pleadings of the News-Journal. Mr. Andrews also appeared and ably argued his motion to the court on April 14.
The parties have filed cross-motions for summary judgment. A narrative of the undisputed facts filed by News-Journal is not disputed by WVI. 3 The parties agree there is no genuine issue of material fact, and the court finds and concludes that summary judgment is appropriate.
The core fact is that WVI has performed its obligations under the Agreement by operating and managing the Hospital for the benefit of the public on behalf of the Authority. Thus, WVI has performed its covenants under the Agreement and has complied with the conditions and obligations imposed upon it *1303 by the Agreement in all material respects, and it has created all of the records and discussed all of the issues necessarily required to perform and carry out the Agreement. Standing of WVI
At the outset, the court finds that WVI lacks standing to seek a declaration that the 1998 Act is constitutional. By force of the Supreme Court's decision in West Volusia, WVI is acting on behalf of the state and as a delegate of the Authority for purposes of the open government laws, and it is therefore bound to indulge the presumption of constitutionality. See Reid v. Kirk, 257 So. 2d 3, 4 (Fla. 1972) (holding that a public official may not seek a declaratory judgment as to the nature of his duties unless he "is willing to perform his duties, but is prevented from doing so by others"). The complaint of WVI affirms that it is ready, willing, and able to comply with the 1998 Act and offers no allegation that would relieve it from the stricture of the cited rule; i.e., that it is prevented from complying with the law. Accordingly, the court grants the motion for judgment on the pleadings and will reach the constitutional issues only on the counterclaims of News-Journal and Mr. Andrews.
WVI contends that the 1999 Act is not applicable to the facts of this case and, therefore, the issue of its constitutionality is not now justiciable. The 1999 Act was enacted as section 6 of chapter 99-356, a multifarious bill containing several provisions relating to health care. The effective date clause applicable to all provisions of this bill is contained in section 15, which provides:
This act shall take effect July 1, 1999, except that sections 10 and 11 shall take effect October 1, 1999, and shall apply to contracts issued or renewed after that date.
WVI contends that this clause limits the effectiveness of the 1999 Act to leases entered on or after July 1, 1999, basing its argument almost exclusively on the contention that the last comma in the clause closes a parenthetical phrase containing the exception for sections 10 and 11. News-Journal counters that comma closes the parenthetical "1999" and that the exception for sections 10 and 11 consists of the entire clause introduced by "except" so that the exception means: sections 10 and 11 apply to contracts issued or renewed after October 1, 1999. All other provisions of the act are effective on July 1, 1999.
The News-Journal's reading is supported by the Final Analysis of the bill prepared by the staff of the House Committee on Health Care Services dated July 21, 1999, which explains at page 13 that the act:
Provide[s] for a July 1, 1999, effective date, except that sections 10 and 11, relating to the establishment of community health pilot projects, are effective on October 1, 1999, and this effective date applies to contracts issued or renewed after that date.
The Court concludes that all provisions of chapter 99-356 take effect on July 1, 1999, except that sections 10 and 11 take effect on October 1, 1999, with respect to contracts for community health pilot projects issued or renewed after October 1, 1999. Therefore, the court concludes that section 6 of chapter 99-356 (i.e., the 1999 Act) became effective on July 1, 1999. Thus, it is applicable to WVI effective with respect to records made or received, and meetings conducted, on and after July 1, 1999. See Memorial Hospital II (affirming judgment of this court giving similar prospective effect to 1998 Act). Therefore, the constitutionality of the 1999 Act is justiciable in this action.
The constitutionality of both the 1998 Act and the 1999 Act is controlled by Article I, Section 24 of the Florida Constitution. This section was added to the Declaration of Rights by an amendment ratified in November of 1992 and effective on July 1, 1993. This amendment "elevated the public's right to government in the sunshine to constitutional proportions." Zorc v. City of Vero Beach, 722 So. 2d 891, 896 (Fla. 4th DCA 1998) (citing Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 861 (Fla. 3d DCA 1997)). 4
The Sunshine Amendment creates self-executing rights of access to public records and public meetings. Art. I, § 24(c), Fla. Const. The public records clause provides that "every person has the right to inspect or copy any public record," Art. I, § 24(a), Fla. Const. The public meetings clause provides that *1304 "[a]ll meetings of any collegial body of the executive branch of state government [or any local body] at which official acts are to be taken or . . . public business is to be transacted or discussed, shall be open and noticed to the public." Art. I, § 24(b), Fla. Const. The Sunshine Amendment provides no exceptions, but creates a textual standard under which the legislature may provide exemptions from the public right of access. Art. I, § 24(c), Fla. Const. 5
The acts must pass scrutiny under this textual standard, and it is appropriate to begin by referring to the relevant standard of review. This standard was first construed in Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) ("Halifax") (affirming Halifax Hosp. Medical Center v. News-Journal Corp., 701 So. 2d 434 (Fla. 5th DCA 1997)) ("Halifax DCA"). These decisions affirmed a final judgment entered by this court. See News-Journal Corp. v. Halifax Hospital Medical Center et al., 25 Med. L. Rptr. (BNA) 1776 (Fla. 7th Jud. Cir. 1996) (Doyle, J.) aff'd 724 So. 2d 567 (Fla. 1999) ("Halifax Final Judgment"). In that judgment, this court explained:
Although these self-executing constitutional provisions contain no exceptions or exemptions, the framers of the amendment recognized that these rights could not be absolute. Accordingly, the constitution establishes a process by which exemptions may be created by the legislature. "The legislature . . . may provide by general law for the exemption of records from the requirements of subsection (a) and the exemption of meetings from the requirements of subsection (b) . . ." Art. I, § 24(c). This authorizes the legislature by majority vote to carve exceptions out of the constitutional right.
Not surprisingly, the power to create such exemptions is hedged by careful safeguards. The constitution substantially limits this power by requiring that any law creating an exemption:shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law.
Fla. Const., art. I, § 24(c).
This establishes a two-pronged test for validity of an exemption. First, the law must state with specificity the public necessity justifying the exemption. This requires that the legislature identify a public necessity and define it with specificity. Such a necessity must logically or rationally relate to the exemption in such a manner as to justify the creation of an exception to the constitutional right of access. Second, the exemption may be no broader than necessary to accomplish the stated purpose of the law. This permits the an exemption to carve out of the constitution only so much of the public right of access as is necessary to achieve the stated public necessity. This establishes a meaningful requirement of narrow tailoring because the standard is one of necessity. The legislature may close only so much of the public records as is necessary to achieve the stated purpose.
Halifax Final Judgment, 25 Med. L. Rptr. at 1779-80.
In affirming this judgment, the Supreme Court established a standard of strict enforcement of the plain language of the constitutional text. It held that section 24(c) creates "an exacting constitutional standard . . . of specificity as to stated public necessity and limited breadth to accomplish that purpose." Halifax, 724 So. 2d at 569.
In their arguments to this court, the parties have concentrated on the central meaning of this constitutional provision and have provided the court with interesting and cogent arguments on each side of the issue. WVI argues that the Sunshine Amendment does not create a guaranteed substantive right, but only erects certain formal prerequisites to the enactment of exemptions. The News-Journal argues that the amendment creates a fundamental right of access to public records and meetings and imposes substantive restraints on the legislative power to create exemptions. The court concludes that Halifax controls this issue and that it supports the position of the News-Journal on this point.
*1305 The standard of review recognizes that the rights secured by section 24 must be respected as fundamental rights to be protected by strict enforcement of the unique textual standard of review. Rights reserved in the declaration of rights are fundamental rights "guaranteed to each Floridian against governmental intrusion." Traylor v. State, 596 So. 2d 957, 964 (Fla. 1992). Generally, constitutional doctrine protects fundamental rights by requiring strict scrutiny of infringing governmental acts. See, e.g., Chiles v. State Employees Attorneys Guild, 734 So. 2d 1030, 1033 (Fla. 1999). Here, the constitution itself protects the right of access by imposing a strict limitation on the legislative power to enact exemptions. It requires that an act creating an exemption must state with specificity the public necessity justifying the exemption and tailor the exemption no broader than necessary to meet this necessity. Fla. Const., Art. I, § 24(c). Halifax makes clear that this is an exacting textual standard of review which must be strictly enforced.
To bring the constitutional standard to bear on the 1998 Act, it is necessary to consider both the sufficiency of the statement of justification and the appropriateness of the breadth of the exemption.
The 1998 Act is aimed directly at overturning the result in News-Journal by carving out of the purview of the Sunshine Amendment the class of organizations which that decision otherwise includes. It defines this class by reference to five stated criteria, providing that if a private lessee meets at least three of them, then all records and all meetings of the lessee are permanently exempt from the public right of access. § 395.3036(1)-(5), Fla. Stat. (1999). 6
It is apparent that the breadth of this exemption is not defined in terms of any particular content of records or meeting discussions. Rather, the legislature elected to exempt a defined category of agencies in their entirety. Any and all records and meetings of the private lessees are exempt, regardless of what may be contained in these records or may be discussed in these meetings. To qualify for exemption, a record need only have been made or received by an eligible private lessee, and a meeting need only be conducted by the board (or delegate) of such a lessee. Thus, by creating a permanent exemption for all records and all meetings arising within a certain category of agencies, the act immunizes not records or meetings, as such, but a defined class of agencies.
To justify this exemption, the act includes a lengthy statement of public necessity. See Chapter 98-330, § 2, Laws of Florida (1998). This statement implies that the exemption is necessary to "grandfather" entities that had mistakenly thought themselves exempt, protect competitive secrets, and attract private capital investments. Although the News-Journal has not conceded that any such purpose is specifically stated, it has shown that the exemption would be broader than necessary to serve these purposes taken separately or together. It asserts that the legislative statement "stitches together several patches of justification (reliance, competition, capital attraction) but these patches create a justifying quilt much smaller than the exemption blanket. This is facial overbreadth." 7
WVI replies that "[t]he News-Journal's catalogue of provisions in the 1998 statute which it claims are more broad than necessary do not address the manner in which the legislature tackled the News-Journal decision: they simply list defects which the News-Journal would find overbroad if the legislation had any one of several other hypothetical provisions." 8
WVI boils the justifying statement down to this: "The purpose for the 1998 statute now before the court was to override the News-Journal decision." WVI Response at 3. Under this view of the constitutional standard, the legislative determination on this broad policy judgment would be sufficient to justify an exemption of corresponding breadth. The only judicially reviewable issue would be whether the exemption is broader than necessary to overrule News-Journal.
The linchpin of this argument is WVI's formalistic reading of the textual standard. Adopting the stance that the constitution preserves legislative fiat over the public right of access, WVI contends that "the courts are powerless to deny an exemption where a justification *1306 is affirmatively expressed in the legislation." 9 Expanding on that view, it argues that "[t]here is no guaranteed right of access through section 24 of article I of the Constitution. That provision only guarantees that the legislature will address a denial of access with stated specificity and without overbreadth--a constitutional process which specifically places access considerations in the pluralistic give and take of the legislative process!" WVI Response at 3 (internal quotations omitted).
WVI achieves its formalistic reading of section 24 by excluding the first prong of the standard from judicial review. WVI argues that the requirement that the legislature "shall state with specificity the public necessity justifying the exemption" is no more than "an exposition requirement only: a requirement for legislative verbalization of the perceived necessity." WVI Motion at 6. As more fully developed in oral argument, this view holds that the creation of exemptions remains exclusively within the policy-making jurisdiction of the legislature. Subject only to the requirement that it state a sufficiently broad justification, the legislature may create any imaginable exemption. Though it concedes that the narrow tailoring prong of the standard is subject to judicial review, WVI recognizes that this leaves the right of access entirely within the policy-making purview of the legislature because the narrow tailoring standard is subservient to the justification standard. Thus, WVI's formalistic reading reduces the constitutional right to little more than an exercise in verbalization, a stipulation concerning the form but not the substance of legislation creating exemptions.
The court already has said it must reject this argument as contrary to Halifax. The Supreme Court held that section 24(c) creates "an exacting constitutional standard . . . of specificity as to stated public necessity and limited breadth to accomplish that purpose." Halifax, 724 So. 2d at 569. Because it controls here, Halifax bears closer review to show how it precludes the formalistic reading of WVI.
The act reviewed in Halifax provided an exemption for "those portions of a meeting [of a governing board of a public hospital] at which the written strategic plans, including written plans for marketing its services, are discussed or reported on." See § 395.3035(4), Fla. Stat. (1997). The Court stated, "[T]he exemption's justification explains only that disclosure of critical confidential information regarding strategic plans would make it `exceptionally difficult . . . if not impossible for a public hospital to effectively compete in the marketplace against private hospitals.'" Id. quoting Ch. 95-199, § 2, Laws of Florida (1995). In finding the exemption was broader than necessary to achieve its stated purpose, the Court approved this court's finding and conclusion that:
The evidence in this case thus showed and the Court finds that not all aspects of written strategic plans are critical and confidential . . . By creating an exemption for any and all discussion of the strategic plan, the legislature has created a categorical exemption which reaches far more information than necessary to accomplish the purpose of the exemption. All discussion of strategic plans is made secret solely to protect that part of the discussion that pertains to critical confidential information. This is facial overbreadth.
Id. at 570 quoting Halifax Final Judgment at 25 Med. L. Rptr. at 1781.
The Court thus required a close and content-based fit between the exemption and its justification and held the exemption overbroad because it suppressed information outside the permissible parameters of the justification.
The Supreme Court took a similarly strict view of the requirement of justification and held that a conclusory statement of necessity was insufficient to justify the exemption. In Halifax DCA, the district court had considered the legislative determination that "it is a public necessity that portions of a public hospital's governing board meetings be closed when confidential contracts, contract negotiations, or strategic plans are discussed." Id. at 435. The district court assigned this statement no weight because it was only a "statement of general necessity." Id. at 436. The Supreme Court agreed that this conclusory statement had not "justifi[ed] the breadth of the exemption." Halifax at 570.
The express constitutional duty to justify an exemption with a specific statement of public necessity may also not be discharged merely by verbalizing the existence of a need to effect a closure. An exemption must be justified by a concrete and reviewable statement of necessity. As this court held in Halifax Final Judgment, the stated public necessity "must logically or rationally relate to the exemption *1307 in such manner as to justify the creation of an exception to the constitutional right of access." Id. at 1779. Compare Bryan v. State, 753 So. 2d 1244, 1250 (Fla. 2000) (applying exacting scrutiny to legislative statement and sustaining exemption for records of the department of corrections the release of which would jeopardize a person's safety because the act "provides a meaningful exemption that is supported by a thoroughly articulated public policy").
Although the broad legislative policy decision to grant a blanket exemption to private lessees is clear, that broad policy statement does not comply with the constitutional requirement of specificity, nor with the requirement of justification. It is neither more specific, nor more justifying than the recital that "it is a public necessity that portions of a public hospital's governing board meetings be closed when confidential contracts, contract negotiations, or strategic plans are discussed," which is the statement which Halifax held insufficient. Id. at 435.
This court concludes that the generalized policy goal of overruling News-Journal does not "state with specificity the public necessity justifying the exemption." It is a general statement which does not justify the exemption by explaining why the public should be denied access to all records and all meetings of the public surrogates covered by the exemption.
WVI subscribes to the view that the specific purpose underlying that policy is competitive parity. It associates its position with the dissent in West Volusia, where Justice Overton explained that the statutory scheme allowing private lessees to operate public hospitals "was implemented to allow nonprofit hospitals to compete on a level playing field." West Volusia, 729 So. 2d at 387 (Overton, S.J., dissenting).
This court asked the distinguished counsel for WVI to explain the nexus between confidentiality of records pertaining to maintenance of the hospital roof, on the one hand, and the interests of competitive secrecy on the other hand. Counsel conceded there was no justifying connection. Pointing to the broader justification of overruling News-Journal, counsel stated that such records were swept within the exemption along with all others. T 91-94. By WVI's view, the legislative decision to categorically exempt hospital lessees leaves the citizen with no access to records or meetings on any subject. Id.
It is the view of this court that the exemption is broader than necessary, because it applies to all records and meetings without regard to the competitive sensitivity of any particular, identifiable records and discussions. On that analysis, the exemption is overbroad precisely for the same reason that the exemption in Halifax was overbroad.
The News-Journal argues that the 1998 Act is an unauthorized "entity exemption" and not an authorized exemption of specifically justified records or meetings. WVI does not deny that this is an "entity exemption." Rather, it contends that such an exemption is within the broad power delegated to the legislature under its formalistic reading of the constitutional standard. It argues that the legislature made a policy decision that private lessees of public hospitals must be granted blanket exemption from the open government laws in order to enhance their ability to compete with private for-profit corporations. "To achieve its stated purpose, the 1998 statute was narrowly drawn to reach only those entities affected by the News-Journal decision . . . " WVI Motion at 13.
The overbreadth of this exemption is, indeed, a function of its attempt to categorically exclude agencies. As an entity exemption it is both inherently overbroad and beyond the power delegated to the legislature in section 24(c). A power to create specifically justified and narrowly tailored exemptions of records cannot be stretched to include a power to exclude segments of government from public scrutiny.
The Sunshine Amendment did not modify, adjust, or fine-tune the inherent legislative power to alter the right of access. It abolished the traditional legislative role and created a unique, and somewhat baffling, relationship. The legislative power to provide exemptions is now derived exclusively from the express grant of section 24(c). In adopting their constitution, the people of Florida elected to severely limit this grant of authority. The legislature may create exemptions of records and of meetings - not agencies. In order to create a valid exemption, the legislature must state a specific justification for denying public access to a record or meeting, and in order to express such justification, the legislature must explain why revelation of that information would harm an identifiable interest of sufficient gravity to justify overriding the public right of access. An exemption which is aimed at carving a specified category of state agencies out of the purview of the Sunshine Amendment is not a specifically justified exemption of records or meetings and is not authorized by the section 24(c) standard.
*1308 WVI worries that this view of the exemption requires the legislature to enumerate exemptions record-by-record, but that concern is misplaced. The legislature may define records or meetings in any way that it chooses so long as it specifically justifies suppressing public access to those records based on their content and not merely by reference to the agency in which the records or meetings arise. This may prove to be a difficult task in the present circumstances, but preserving the integrity of the constitution is often difficult. The legislature should take some comfort in the notion that it has been equally difficult for the courts to protect the integrity of our constitution when it has been assailed by the forces of popular politics.
In summary, therefore, the court concludes that the 1998 Act is unconstitutional on its face for failure to comply with the exacting standards of section 24(c).
The 1999 Act attempts to achieve the same effect as the 1998 Act without employing the pretense of compliance with the constitutional standard. It simply states that "the transaction involving the sale or lease of a hospital shall not be construed as . . . a transfer of a governmental function . . . constituting a financial interest of the public lessor in the private lessee . . . or making a private lessee an integral part of the public lessor's decision making process." 1999 Act, § 6 (adding section 155.40(6)(a)). It further provides that the private lessees "shall not be construed to be `acting on behalf of' the lessor." Id. (adding section 155.40(7)).
The 1999 Act obviously has the same effect as the 1998 Act, which is to create an "entity exemption" for those private lessees of public hospitals which are includible within the purview of the Sunshine Amendment by force of the holding in West Volusia. Since it removes records and meetings from public access, it is an exemption within the meaning of section 24(c).
This exemption evokes evils that the Sunshine Amendment was intended to eliminate. It is a rider added by floor amendment to an extensive bill relating to health care, which does not "contain only exemptions from the requirements of subsection (a) or (b) [of section 24]." Art. I, § 24(c). And of course, it does not "state with specificity the public necessity justifying the exemption." Id.
Therefore, the 1999 Exemption is unconstitutional on its face for failure to comply in any respect with the requirements of section 24(c) pertaining to the process by which exemptions may be enacted or to the prescribed form and content of exemptions.
The court is well aware that by this judgment it is striking down not one but two serious statements of public policy by the legislature. This is not a decision that any judge reaches easily. Yet, the court has the absolute duty to uphold, protect, and preserve the constitution, even when the weight of the constitution must be brought to bear uncomfortably on the legislative branch.
The distinguished counsel for WVI has referred to the present controversy as a "tug of war" between the legislature and the courts. T 27. He has said that the "legislature has tried, with the might it knows how, to exempt Memorial Hospital and institutions like it from public records and open meetings." Id.
With respect, the legislature seems embroiled in a struggle not with the courts, but with the constitution itself. The legislature must accept the reality that the constitution must always prevail, regardless of the individual machinations of the three equal branches of our government. It is both our blessing and our curse that the constitution creates and encourages this perpetual tension among the three branches as we strive to fulfill our respective roles in an evolving world. The constitution, however, remains as the single immutable force in our governmental galaxy, and it is to this constitution which we must all remain loyal.
NOW, THEREFORE, the court orders and adjudges as follows:
1. The motion for judgment on the pleadings filed by News-Journal is granted and the court adjudges that the complaint of WVI is dismissed with prejudice, and insofar as this complaint is concerned, News-Journal and Mr. Andrews shall go hence without day.
2. The motions for summary judgment as to their respective counterclaims by News-Journal and Mr. Andrews are granted.
3. Chapter 98-330, Laws of Florida (1998) (codified at § 395.3036, Fla. Stat. (1999)) is unconstitutional on its face and void because it fails to satisfy the standards of Article I, section 24(c), Florida Constitution in that it does not state with specificity any public necessity justifying its exemption from the right of public access and that it is broader than necessary to accomplish any purpose that may be stated or implied therein.
4. Chapter 99-356, § 6, Laws of Florida (1999) (codified at §§155.40(6) & (7), Fla. Stat. (1999) is unconstitutional on its face and void because it fails to satisfy the standards of Article I, section 24(c), Florida Constitution in that it is an exemption from the public right of access to records and meetings which does not contain any statement of the public necessity justifying the exemption, is broader than necessary to accomplish any purpose whatsoever, and was not adopted in a bill containing only exemptions from the right of public access or provisions for enforcement thereof.
5. All of the records and meetings of Memorial Hospital--West Volusia, Inc., are subject to the public rights of access under Article I, section 24(a) and section 24(b), except and to the extent that the same are otherwise exempt under any valid provisions of law other than the exemptions declared unconstitutional by this judgment.
6. Memorial Hospital--West Volusia, Inc., is enjoined to permit News-Journal and Mr. Andrews to inspect, examine, and copy any and all of its records not otherwise exempt within forty-eight (48) hours from the time this judgment is entered.
7. Memorial Hospital--West Volusia, Inc. is enjoined to comply with the requirements of Article I, section 24(b) and with section 286.011, Florida Statutes (1999), with respect to any and all meetings, including giving notice, holding meetings in accessible fora, providing public access thereto, and making and recording minutes thereof.
8. The court, sua sponte, stays this judgment for a time of thirty (30) days from the entry of this judgment, and if Memorial Hospital--West Volusia, Inc., shall perfect an appeal within that time, this stay shall continue in effect until such appellate review is finally concluded.
9. The court reserves jurisdiction to determine the amount of taxable costs and attorneys' fees to be awarded to News-Journal and Mr. Andrews upon appropriate and timely motion, which need not be filed until appellate review is finally concluded.
10. The court recognizes, with great appreciation, the voluntary dismissal on the record in open court of Counts II and V of the counterclaim of Mr. Tanner Andrews. The court is also grateful for the acknowledgement on the record by the parties that the dismissal was forged in good faith, so that Mr. Andrews will remain free to file a new complaint seeking the identical relief in an independent action.
DONE AND ORDERED
in chambers in Volusia County, Florida this 15th day of January, 2002.
Joseph G. Will
Circuit Judge
cc: Jonathan D. Kaney Jr., Esquire
Arthur J. England, Jr., Esquire
Larry R. Stout, Esquire
Mr. Tanner Andrews
1 The Court then stated, "In any event, we reject the contention that the [act] shall apply retroactively." Id. Upon remand, this court entered final judgment for News-Journal with respect to records made or received before May 30, 1998, the effective date of the act. This judgment was affirmed by the Fifth District Court of Appeal and the Supreme Court of Florida. See Memorial Hospital--West Volusia, Inc. v. News-Journal Corp., 784 So. 2d 438 (Fla. 2001) and Memorial Hospital--West Volusia, Inc. v. News-Journal Corp., 747 So. 2d 473 (Fla. 5th DCA 1999) ("Memorial II").
2 The 1999 Act was adopted as a "rider" on a complex bill containing other provisions relating to healthcare. The provisions of section 6 (together with the provisions of section 15 providing the effective date) are relevant to this case. These parts of the bill are called the 1999 Act.
3 See Defendant's, News-Journal Corporation, Memorandum of Law in Support of Defendant's Motion for Summary Final Judgment at 6-11. (hereafter cited as "News-Journal Memorandum").
*1309 4 In this judgment, the Court sometimes refers to the provisions of Article I, Section 24 as the "Sunshine Amendment of 1992," "Sunshine Amendment," or simply as "section 24." The rights guaranteed by section 24 are called the "public right of access" or the "right of access." It refers to the provisions of section 24(a) and section 24(b) as the public records clause and the public meetings clause.
5 In pertinent part, section 24(c) provides that the legislature "may provide by general law for the exemption of records [or] meetings, provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law." This judgment sometimes refers to this proviso as the "section 24(c) standard" or "constitutional standard" or "textual standard."
6 The News-Journal concedes that WVI meets these criteria, and although Mr. Andrews at first contested the point, he appears now to have aligned his position with that of News-Journal. The court concludes that the WVI satisfies the criteria under the 1998 Act.
7 Defendant's, News-Journal Corporation, Memorandum of Law in Opposition to Plaintiff's Motion for Summary Final Judgment at 21, note 23 (hereafter cited as "News-Journal Opposition").
8 Memorial Hospital's Response to Motions for Summary Judgment Filed by the News-Journal Corporation and Tanner Andrews, at 3-4 (hereafter cited as "WVI Response").
9 See Plaintiff Memorial Hospital's Motion for Summary Judgment and Supporting Memorandum of Law at 8 (hereafter cited "WVI Motion").