09-6493 JAMES HOYER, NEWCOMER, SMILJANICH, & YANCHUNIS, P.A., v. RODALE, INC. and DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida First District Court » 2010 » 09-6493 JAMES HOYER, NEWCOMER, SMILJANICH, & YANCHUNIS, P.A., v. RODALE, INC. and DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL

State: Florida

Court: Florida First District Court

Docket No: 09-6493

Case Date: 07/30/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JAMES, HOYER, NEWCOMER, SMILJANICH, & YANCHUNIS, P.A., Appellant, v. RODALE, INC. and DEPARTMENT OF LEGAL AFFAIRS, OFFICE OF THE ATTORNEY GENERAL, Appellees. _____________________________/ Opinion filed July 30, 2010.

CASE NO. 1D09-6493

An appeal from the Circuit Court for Leon County. John C. Cooper, Judge. Jonathan B. Cohen and John A. Yanchunis of James, Hoyer, Newcomer, Smiljanich & Yanchunis, P.A., Tampa, for Appellant. Peter Antonacci, Carlos G. Muniz, and Timothy M. Cerio of Gray Robinson, P.A., Tallahassee for Rodale, Inc.; Tina Furlow, Senior Assistant Attorney General, Tallahassee for Department of Legal Affairs, Office of the Attorney General.

BENTON, J.

We have for review a final order declaring documents that Rodale, Inc., ("Rodale") produced--in compliance with investigatory subpoenas--to the Department of Legal Affairs, Office of the Attorney General ("AG") to be trade secrets, and therefore exempt from disclosure as public records, pursuant to section 815.045, Florida Statutes (2009), even though now in the AG's hands. Except as to the complaints Rodale's customers made and Rodale's responses to the complaints, we affirm. Rodale is a seller of books and magazine subscriptions whose sales practices the AG is or was looking into. After Rodale complied with the subpoenas duces tecum, James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A., a self-described investigative law firm specializing in consumer protection issues, filed a public records request with the AG seeking access to the documents, on the authority of section 119.07, Florida Statutes (2009). Thereupon Rodale filed in circuit court seeking declaratory relief and an injunction to prevent the AG's disclosing what Rodale asserted were trade secrets. The law firm intervened in this lawsuit,

contending that none of the documents at issue qualified as trade secrets. After an evidentiary hearing, however, the trial court ruled the documents exempt from disclosure as public records, precipitating the present appeal. Some 5,000 documents are in dispute, all of which Rodale marked confidential before furnishing to the AG. 2 Access to these documents was

requested under seven headings, but the trial court characterized them more generally this way: "Most of the documents identified by Rodale to be trade secrets are either customer lists or contain information derived from customer lists (customer name, address, email, payment histories, etc.). Other documents

identified by Rodale to be confidential are vendor contracts and documents related to the contracts, as well as documents related to its marketing and product development." Distinct from these broader categories is the category of customer complaints, including logs of complaints received by e-mail, and Rodale's responses to customers' complaints. A private party cannot render public records exempt from disclosure merely by designating material it turns over to a governmental agency confidential. "Neither the desire for nor the expectation of non-disclosure is determinative." Sepro Corp. v. Fla. Dep't of Envtl. Regulation, 839 So. 2d 781, 784 (Fla. 1st DCA 2003) (citing Shevin v. Byron, Harless, Schaffer, Reid and Assocs., Inc., 379 So. 2d 633, 635 (Fla.1980)). "It is of no consequence that [a party furnishing

information to an executive branch agency] wishes to maintain the privacy of particular materials filed with the department, unless such materials fall within a legislatively created exemption to Ch. 119, F.S." Op. Att'y Gen. Fla. 90-104, at 323 (1990). See also Ops. Att'y Gen. Fla. 95-58, at 179-80 (1995) & 80-31, at 79 (1980). 3

The legislatively created exemption at issue here is set out in section 815.045, Florida Statutes (2009), which exempts from disclosure as public records trade secrets, as defined by section 812.081, Florida Statutes (2009), which latter provision reads: "Trade secret" means the whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. "Trade secret" includes any scientific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be: 1. Secret; 2. Of value; 3. For use or in use by the business; and 4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

Download 09-6493 JAMES HOYER, NEWCOMER, SMILJANICH, & YANCHUNIS, P.A., v. RODALE, INC