Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, Petitioner, v. BRIAN JOHN WILSON, Respondent. No. 2D22-1802 March 10, 2023 Petition for Writ of Certiorari to the Circuit Court for Pinellas County; Philip J. Federico, Judge. Ashley Moody, Attorney General, Tallahassee, and Jonathan S. Tannen, Assistant Attorney General, Tampa, for Petitioner. Sara Mollo, Public Defender, and John Nohlgren, Assistant Public Defender, Clearwater, for Respondent. SLEET, Judge. The State seeks certiorari review of the trial court's Order Granting Subpoena Duces Tecum entered in favor of Brian John Wilson in the criminal proceeding pending below wherein Wilson is charged with sexual battery upon a mentally defective person. The trial court's order requires production to the court for in camera inspection of the victim's mental health records held by third-party entities. We grant the petition. "Certiorari review of a discovery order is appropriate when the order 'departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.' " C.L. v. Judd, 993 So. 2d 991, 994 (Fla. 2d DCA 2007) (quoting Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995)). "The irremediable harm prong of the certiorari standard is met when an order erroneously directs the disclosure of medical records." Ricketts v. Ricketts, 310 So. 3d 993, 996 (Fla. 2d DCA 2020). Further, "[a]bsent evidence of an applicable statutory exception or waiver, a trial court departs from the essential requirements of law when it enters an order compelling disclosure of communications or records in violation of the psychotherapist-patient privilege." Id. (quoting S.P. ex rel. R.P. v. Vecchio, 162 So. 3d 75, 80 (Fla. 4th DCA 2014)). "In determining whether privileged records are subject to disclosure, the inquiry is whether there is an applicable statutory exception or there has been a voluntary or involuntary waiver." Whittington v. Whittington, 331 So. 3d 278, 280 (Fla. 1st DCA 2021). Here, the parties do not dispute that the victim's records are protected by the psychotherapist-patient privilege set forth in section 90.503(2), Florida Statutes (2022). That statute provides that "[a] patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition . . . between the patient and the psychotherapist." Id. "A communication between psychotherapist and patient is 'confidential' if it is not intended to be disclosed to third persons." § 90.503(1)(c). Wilson argued below, 2 and the trial court agreed, that the exception found in section 90.503(4)(c) applies and renders the victim's records discoverable. Section 90.503(4)(c) states that the psychotherapist-patient privilege does not apply to "communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense." Id. (emphasis added). Wilson maintains that because the State has alleged that the victim was a person with mental defect in order to enhance the charge against him, the victim's mental condition has been relied upon as an element of the charge and the subsection (4)(c) exception bars application of the privilege. We disagree. The plain language of the statute states that in order for the subsection (4)(c) exception to apply and remove the privilege, the patient must rely on his or her own mental condition "as an element of his or her claim or defense." § 90.503(4)(c) (emphasis added). This clearly does not contemplate a criminal prosecution brought by the State and does not authorize the State to waive the privilege on behalf of the individual who holds it. See State v. Famiglietti, 817 So. 2d 901, 904 (Fla. 3d DCA 2002) ("The Evidence Code itself describes the scope of the privilege which has been created. If the communication fits within the privilege, then the patient may refuse, and may insist that others refuse, to disclose the communication. There is no language in the Code which expressly or impliedly allows anyone to override a valid claim of psychiatrist-patient privilege." (citations omitted)); J.B. v. State, 250 So. 3d 829, 833 (Fla. 3d DCA 2018) (granting petition for writ of certiorari and quashing order compelling disclosure of a minor son's mental health records in his mother's death penalty trial as a departure from the essential requirements of law and stating that the "request for disclosure of [his] 3 confidential and privileged psychotherapist-patient records is exactly the type of fishing expedition that this [c]ourt, the United States Supreme Court, and our sister courts have strongly cautioned against"). Accordingly, we conclude that the trial court departed from the essential requirements of law by requiring disclosure of these records. Wilson maintains, however, that the State cannot establish irreparable harm because the trial court indicated at the hearing below that it would review the records in camera to determine what was to be discoverable. But case law is clear that the disclosure of information that is protected by the psychotherapist-patient privilege where none of the statutory exceptions apply—even if only for in camera inspection by the court—amounts to a departure from the essential requirements of law resulting in irreparable harm that cannot be remedied on appeal. This is primarily so because disclosure only after in camera review is not one of the three exceptions to the psychotherapist-patient privilege listed in section 90.503(4). If there are going to be other exceptions to general mental health records—such as the use of an in camera inspection— then the legislature should first define them, much as it did with respect to Baker Act records, so that persons seeking the aid of a psychotherapist will know what the rules are going in. State v. Roberson, 884 So. 2d 976, 980 (Fla. 5th DCA 2004) (emphasis added) (granting "petition for certiorari and quash[ing] the order of the trial court granting discovery into all of the mental health records of" the victim in a criminal case). Additionally, "making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege." Id. at 979-80 (quoting Jaffee v. Redmond, 518 U.S. 1, 17-18 (1996)). 4 Finally, the alleged victim in the criminal case pending below "is not a party to any proceedings in which a final appealable judgment shall be entered. Disclosure of any kind, including an in camera inspection, would let the proverbial cat out of the bag . . . . [And such] harm can[not] be properly remedied on appeal." See J.B., 250 So. 3d at 834 (emphasis omitted) (citation omitted). "Florida courts have consistently and repeatedly held that, absent evidence of a statutory exception or waiver . . . such disclosure results in irreparable harm." Id. Accordingly, we must grant the State's petition for certiorari and quash the trial court's order granting Wilson's motion for subpoena duces tecum. Petition granted; order quashed. CASANUEVA and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 5