Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ZACHARY O'BANNON SMITH, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1874 March 25, 2022 Appeal from the Circuit Court for Collier County; Lauren L. Brodie, Judge. Zachary O'Bannon Smith, pro se. Amira D. Fox, State Attorney, and Jody P. Brown, Assistant State Attorney, Fort Myers, for Respondent. LaROSE, Judge. Zachary O'Bannon Smith petitions for a writ of certiorari. He wants us to quash the trial court's order denying his mandamus petition. In that petition, Mr. Smith sought public records related to his criminal conviction. We convert Mr. Smith's petition to a plenary appeal of a final appealable order. See Fla. R. App. P. 9.030(b)(1)(A). We reverse. Background Mr. Smith was convicted in 2008 of various offenses. The trial court sentenced him to a total of thirty years' imprisonment. Some ten years later, in May 2018, Mr. Smith submitted a public records request to the Twentieth Judicial Circuit's State Attorney's Office (the State). The State sent him an invoice, advising that the cost to copy the requested documents was $18.80. Mr. Smith was unable to pay this charge. In March 2019, the State sent him a second invoice along with a notice to pay within thirty days or the records would be destroyed; the State also advised Mr. Smith that he would be barred from making any further records requests. This invoice, too, went unpaid. So, in May 2019, the State destroyed the records.1 Mr. Smith submitted another public records request in April 2020. The State responded, reminding Mr. Smith that he had made 1 Apparently, the destroyed "records" were copies, not the original records. 2 a public records request in May 2018 and "[b]ecause [he] failed to pay in a timely manner for the documents, they were destroyed" and "[his] failure to pay also bans [him] from making any further requests from our office[,] so [the State would] not be providing [him] any further documentation." Undeterred, Mr. Smith asked for public records, again, in November 2020. This time, he remitted a $25.00 check payable to the State's "Public Records Department." Mr. Smith informed the State that the check was intended to pay the original invoice for $18.80 as well as the "guesstimated costs" for the November 2020 records request. The State returned a voided check to Mr. Smith, explaining that he "[was] banned from making any further public information requests from our office for failure to pay from a previous request in 2018."2 2 Elsewhere in its response, the State concluded that "because [he] failed to pay for previous requests, [the State is] no longer required to fulfill further requests and [the State] will not be providing you any further records." (Emphasis added.) However, this appears to be a typographical error as the State specifically explained that the bar was due to his "failure to pay from a previous request in 2018." Our record does not indicate that Mr. Smith failed to pay for any other records that he requested, apart from his May 2018 record request. 3 In January 2021, Mr. Smith filed a mandamus petition. He urged the trial court to compel the State to provide him with the documents he requested in May 2018. The trial court ordered the State to respond. The State informed the trial court that it had "banned [Mr. Smith] from making public records requests because he failed to pay for previous records he requested." Relying on Lozman v. City of Riviera Beach, 995 So. 2d 1027 (Fla. 4th DCA 2008), the State claimed that "an agency may refuse to produce additional records if the fees from a previous request for records have not been paid by the requestor." The trial court denied Mr. Smith's petition, citing section 119.07(4), Florida Statutes (2018), and Lozman, 995 So. 2d 1027, stating that "[he] failed to make the required allegations, as he does not demonstrate he has a clear legal right to the performance requested." Analysis I. Certiorari is Inapt We first address the method by which Mr. Smith brought us this case. Certiorari is improper. In reviewing an order denying a petition for writ of mandamus concerning a public records request, we afford full plenary review. See, e.g., Anthony v. State, 277 So. 3d 4 223, 224-26 (Fla. 2d DCA 2019); Farmer v. State, 927 So. 2d 1075, 1076 (Fla. 2d DCA 2006); Radford v. Brock, 914 So. 2d 1066, 1068- 69 (Fla. 2d DCA 2005). Our certiorari jurisdiction is limited to reviewing "nonfinal orders of lower tribunals" and "final orders of circuit courts acting in their review capacity." Fla. R. App. P. 9.030(b)(2)(A), (B). Neither is applicable here. See Sheley v. Fla. Parole Comm'n, 703 So. 2d 1202, 1204 (Fla. 1st DCA 1997) ("We acknowledge that if mandamus is used to initiate a new civil action in the circuit court, the resulting final order is subject to review by appeal. Mandamus is an action at law, and, as with other actions at law, a final judgment on a complaint for writ of mandamus is reviewable by appeal." (citation omitted)); e.g., Walker v. Ellis, 989 So. 2d 1250, 1251 (Fla. 1st DCA 2008) ("In general, appellate courts allow direct review of an order dismissing a petition for writ of mandamus."). Therefore, we convert Mr. Smith's certiorari petition to an appeal from a final appealable order. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy."); 5 9.030(b)(1)(A) ("District courts of appeal shall review, by appeal . . . final orders of trial court . . . not directly reviewable by the supreme court or a circuit court."). II. Mandamus Appeal We now turn our attention to the merits of the trial court's order denying the mandamus petition. We review the order for an abuse of discretion. Brown v. State, 93 So. 3d 1194, 1195 (Fla. 4th DCA 2012) (citing Ilkhani v. Lamberti, 50 So. 3d 1180, 1181 (Fla. 4th DCA 2010)). A petitioner is entitled to issuance of a writ of mandamus upon proof of three elements: (1) petitioner possesses a clear legal right to performance of the requested action, (2) respondent has an indisputable legal duty to perform the requested action, and (3) the petitioner otherwise lacks an adequate legal remedy. Smith v. State, 696 So. 2d 814, 815 (Fla. 2d DCA 1997). "When a trial court receives a petition for a writ of mandamus, its initial task is assessing the petition to determine whether it is facially sufficient. If it is not facially sufficient, the court may dismiss the petition." Davis v. State, 861 So. 2d 1214, 1215 (Fla. 6 2d DCA 2003) (citations omitted). The State does not dispute the facial sufficiency of Mr. Smith's petition. If the petition is facially sufficient, the court must issue an alternative writ of mandamus requiring the respondent to show cause why the writ should not be issued. Moore v. Ake, 693 So. 2d 697, 698 (Fla. 2d DCA 1997); Conner v. Mid–Fla. Growers, Inc., 541 So. 2d 1252, 1256 (Fla. 2d DCA 1989). If the petition and response to the alternative writ raise disputed factual issues, the trial court must resolve these issues upon evidence submitted by the parties. DeGregorio v. State, 205 So. 3d 841, 842 (Fla. 2d DCA 2016). There is no factual dispute here. The parties agree that Mr. Smith made a May 2018 records request, he failed to pay the two copying invoices, and the State destroyed the reproduced records. We are faced with the question of whether Mr. Smith's failure to pay timely for the records from his May 2018 request prohibits him from ever again obtaining records from the State. It does not. (a) Clear legal right to performance of the act requested The State's position hinges upon its interpretation of Lozman. The State is wrong. 7 Mr. Lozman submitted a public records request to the City of Riviera Beach. Lozman, 995 So. 2d at 1028. As here, the city compiled copies of the requested records and notified Mr. Lozman of the charges. Id. He refused to pay. Id. Consequently, the city refused to give him the documents. Id. Mr. Lozman "then attempted to order other documents, but was told that he had to pay the bill for the first group before the city would make any further documents available." Id. Mr. Lozman sought issuance of a writ of mandamus, arguing that the city had violated Florida's public records law. Id. "The only issue he raised was whether the city could require him to pay the past due fees before complying with his subsequent requests." Id. The Fourth District held that because Mr. Lozman refused to pay for the copies of records that were compiled by the city in response to his first public records request, he was not entitled to a writ of mandamus compelling the city to respond to his second request. Id. Quoting from our decision in Board of County Commissioners of Highlands County v. Colby, 976 So. 2d 31, 37 (Fla. 2d DCA 2008), the Lozman court took note of the "prudent" policy behind fulfilling a records request, observing that "a 'policy of requiring an advance 8 deposit seems prudent given [the] legislature's determination that taxpayers should not shoulder the entire expense of responding to an extensive request for public records.' " Lozman, 995 So. 2d at 1028 (quoting Colby, 976 So. 2d at 37).3 Lozman is easily distinguishable and does not support the State's position. In our case, Mr. Smith was not "told that he had to pay the bill for the first group before the [State] would make any further documents available." Id. In Lozman, the requested records were available to Mr. Lozman; he just refused to pay for them. That is not what we have here. The State destroyed the copied records it had compiled for Mr. Smith. It then rebuffed his efforts to pay for them, deeming his payment untimely. Unlike Mr. Lozman, Mr. Smith tried to pay for the records. We take from the Lozman opinion that Mr. Lozman can access additional records once he pays for the first batch. As a result of the trial court's order before us, the same opportunity is unavailable to Mr. Smith. The State has cut Mr. Smith off from requesting any more records. 3 We observe that the State's apparent practice of copying requested records before payment of an estimated charge is seemingly at odds with the "prudent" policy of requiring an "advance deposit." Colby, 976 So. 2d at 37. 9 Under Florida law, the public is assured broad access to public records. See art. I, § 24(a), Fla. Const. ("Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution."); § 119.01(1) ("It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency."). Of course, such access is not unfettered. There may be conditions and obligations to accessing records. Cf. Patterson v. State, 264 So. 3d 315, 317 (Fla. 2d DCA 2019) ("[T]he postconviction court correctly denied the motion [seeking documents and trial transcripts] because Mr. Patterson is not entitled to free copies of the materials for postconviction purposes."); Potts v. State, 869 So. 2d 1223, 1225 (Fla. 2d DCA 2004) ("We also find no merit in Potts' argument that the Public Records Act, chapter 119, Florida Statutes (2002), entitles him to free copies of all records generated in his case. . . . Even though 10 Potts is entitled to certain items, as discussed above, the Public Records Act does not give him an unfettered right to all records relating to his case, free of charge. In fact, the Public Records Act provides for a fee to obtain copies of documents." (citing Woodson v. Durocher, 588 So. 2d 644, 644 (Fla. 2d DCA 2004))). But permanently and impermissibly preventing Mr. Smith from obtaining public records abridges his guaranteed right to access public records.4 (b) Indisputable legal duty Mr. Smith's petition satisfied the second prong of the tripartite mandamus test recounted above. The State has an indisputable legal duty to furnish him with the documents he requested. See Gonzalez v. State, 240 So. 3d 99, 100 (Fla. 2d DCA 2018) ("To the 4 The State does not advise us, and there is nothing in our limited record indicating that the trial court has deemed Mr. Smith a vexatious litigant under section 68.093, Florida Statutes (2018). Cf. Smith v. Hernandez, 20 So. 3d 905, 906 (Fla. 2d DCA 2009) ("On appeal, Smith challenges the propriety of the denial of his records request and the determination that he is a vexatious litigant. . . . We find no error in the court's denial of Smith's petition for writ of mandamus. . . . Having carefully reviewed the record, we conclude that the record fully supports the trial court's finding that Smith is a vexatious litigant and that the court did not infringe on his constitutional rights in so finding."). 11 extent that records in his possession are subject to disclosure by law, the State Attorney has a ministerial duty to make them available in response to a proper request, and mandamus is an appropriate means of compelling compliance." (quoting Weeks v. Golden, 764 So. 2d 633, 634 (Fla. 1st DCA 2000))). Unquestionably, then, the State possesses a legal duty to furnish Mr. Smith with the records he seeks in his case, subject, of course, to his paying the required fees.5 (c) No adequate remedy at law "A writ of mandamus is not available when the petitioner has an adequate legal remedy." Villa Bellini Ristorante & Lounge, Inc. v. Mancini, 283 So. 3d 972, 980 (Fla. 2d DCA 2019) (citing Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000)). That is because "[t]he writ of mandamus does not supersede legal remedies, but rather supplies the want of a legal remedy." Welch v. State, 95 So. 751, 752 (Fla. 1923). 5 The State's readiness to comply with Mr. Smith's May 2018 records request, pending remittance of $18.80, suggests that the records were not confidential or otherwise exempt from disclosure. Certainly, neither party argues otherwise. 12 Having made multiple records requests of the State and having been rebuffed repeatedly due to the State's misplaced reliance on Lozman, Mr. Smith has no alternative legal remedy. Conclusion We convert Mr. Smith's certiorari petition to an appeal of a final appealable order. The trial court abused its discretion in denying Mr. Smith's mandamus petition. Thus, we reverse the trial court's order and remand for further proceedings consistent with this opinion. Reversed and remanded. ROTHSTEIN-YOUAKIM and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 13