Third District Court of Appeal

State of Florida

Opinion filed December 16, 2020.

Not final until disposition of timely filed motion for rehearing.

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No. 3D19-2224

Lower Tribunal No. 19-32548

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City of Miami Beach, etc.,

Appellant,

vs.

Miami New Times, LLC,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Maria de Jesus 

Santovenia, Judge.

Raul J. Aguila, Miami Beach City Attorney, and Mark A. Fishman, Senior 

Assistant City Attorney, and Faroat Andasheva, Assistant City Attorney I, for 

appellant.

Julianne Hill, for appellee.

Before EMAS, C.J., and HENDON and GORDO, JJ. 

PER CURIAM.
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INTRODUCTION

The City of Miami Beach seeks review of the trial court’s order granting a 

petition for writ of mandamus, directing the City to provide to Miami New Times

copies of draft audit reports pertaining to two Miami Beach towing companies. We 

quash the order on appeal because, under the plain and unambiguous statutory 

language of section 119.0713(2)(b), Florida Statutes (2019), the draft audit reports 

were not public records subject to disclosure. 

FACTUAL BACKGROUND

In December 2018, the Internal Auditor for the City of Miami Beach 

commenced an internal audit of two Miami Beach towing companies. During the

auditing process, the City Auditor met with representatives of the towing companies 

to discuss the draft audit reports. The City also provided copies of these draft reports

to the towing companies’ attorney. These audit reports were not final and had not 

been presented to the City Commission or other city governmental body. They were

provided to the towing companies’ representatives as part of the City’s “customary

business practice” for completion of an internal audit, i.e., to permit the auditees 

(here, the towing companies) an opportunity to review, comment upon, and provide 

input prior to preparation of a final audit report. 

During the pendency of the internal audit, Miami New Times requested from 

the City a copy of these draft audit reports. The City responded that the audit was 
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still in progress and the draft reports were not final and were not subject to public 

disclosure. The City estimated that the audit and the reports would not be final for 

at least another month while the City Auditor met with the towing companies to 

complete their review of the draft reports, to solicit comments and feedback, and to 

make appropriate revisions.

Shortly thereafter, and prior to completion of the internal audit, the towing 

companies’ representatives appeared before the City Commission and requested 

commencing a new, external audit conducted by an independent auditing firm. The 

towing companies expressed their concern that the internal audit was conducted in 

an unfair and unethical manner. After discussing the matter, the City Commission 

voted to terminate the City’s internal audit and hired an independent company to 

undertake a new external audit. The draft audit reports were never finalized, nor 

were they signed by the City Manager or presented to the City Commission.

Following termination of the City’s internal audit, Miami New Times again

requested a copy of the draft audit reports. The City again denied the request, based 

on section 119.0713(2)(b), Florida Statutes (2019), providing that an audit report

and audit workpapers become a public record subject to disclosure only when the 

audit is “complete and the audit report becomes final.” The City maintained that the 

internal City audit was never completed, the draft audit reports never became final, 

and, therefore, the reports were not subject to disclosure as public records. 
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At about the same time (and unbeknownst to the City), counsel for the towing

companies shared the draft audit reports with a reporter from a local online news 

agency. The reporter published an article discussing the draft audit reports. Miami 

New Times renewed its request to the City, asserting that, because there was “no 

reasonable anticipation of resolution of the city’s audit,” the exemption under 

section 119.0713(2)(b) did not apply, and the draft audit reports were subject to 

disclosure. The City again denied the request, advising that because the internal 

audit had not been completed and the draft audit reports were not final, they were 

not subject to disclosure as public records.

Miami New Times petitioned for writ of mandamus, contending that the City 

improperly relied on section 119.0713(2)(b) in denying the request for a copy of the 

draft audit reports because the City investigation had been terminated and therefore 

the reports were no longer exempt from disclosure as public records. Miami New 

Times alternatively contended that if a statutory exemption applied, that exemption 

was waived when the towing companies disclosed the draft audit reports to a third 

party.

Following a hearing, the trial court determined that, even if the draft audit 

reports were exempt from disclosure under section 119.0713(2)(b), any entitlement 

to that exemption ceased to exist once those draft reports, provided by the City to 

the auditee towing companies, were disclosed by the towing companies (and without 
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the City’s knowledge) to a third party. We conclude the trial court erred, and hold

that, under the plain language of the statute, the draft audit reports were not public 

records subject to disclosure, and did not become subject to disclosure when the 

towing companies disclosed them to a third party.

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DISCUSSION AND ANALYSIS

The determination of what constitutes a public record is a question of law that 

we review de novo. State v. City of Clearwater, 863 So. 2d 149, 151 (Fla. 2003). 

Article I, section 24(a) of the Florida Constitution guarantees every person’s right to 

inspect and copy any public record generated by the three branches of government. 

It also allows the legislature (by a two-thirds vote of each house) to create an 

exemption to the public record requirements in section (a) “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.” See also

Rameses, Inc. v. Demings, 29 So. 3d 418, 421 (Fla. 5th DCA 2010) (noting: “[T]he 

1 Ironically, the City resumed its internal audit in January 2020, and issued a final 

audit report in September 2020, ten months after the notice of appeal was filed in 

this case. Although the City’s internal audit and its report are now final, thereby 

rendering moot the issue between these parties, we nevertheless exercise our 

discretion to dispose of the appeal on the merits. Godwin v. State, 593 So. 2d 211, 

212 (Fla. 1992) (noting three instances “in which an otherwise moot case will not be 

dismissed,” including “when the questions raised are of great public importance,” 

“are likely to recur,” and “if collateral legal consequences that affect the rights of a 

party flow from the issue to be determined”). See, e.g., Mazer v. Orange Cty., 811 

So. 2d 857 (Fla. 5th DCA 2002).
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right of access to public records is virtually unfettered, save for statutory exemptions 

designed to achieve a balance between an informed public and the ability of the 

government to maintain secrecy in the public interest.”) Chapter 119 (The Public 

Records Act) likewise sets forth the State’s policy regarding access to public records, 

id. (providing: “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”) and provides various public 

record exemptions, including those found in section 119.0713. See also § 

119.011(8), Fla. Stat. (2019) (defining “exemption” as “a provision of general law 

which provides that a specified record . . . is not subject to the access requirements 

of [the Public Records Act].”) Because Florida’s public policy favors disclosure, 

“the Public Records Act is construed liberally in favor of openness, and exemptions 

from disclosure are construed narrowly and limited to their designated purpose.” 

Rameses, 29 So. 3d 421. The government also bears the burden to show that a 

statutory exemption applies. Id.

Section 119.0713 provides that certain records of local government agencies 

are treated as confidential or otherwise exempt from treatment as public records 

under Chapter 119 and Article I, Section 24 of the Florida Constitution. For our 

purposes, the pertinent portion of section 119.0713, governing audits and audit 

reports, provides:
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The audit report of an internal auditor and the investigative report of 

the inspector general prepared for or on behalf of a unit of local 

government becomes a public record when the audit or investigation 

becomes final. An audit or investigation becomes final when the 

audit report or investigative report is presented to the unit of local 

government. Audit workpapers and notes related to such audit and 

information received, produced, or derived from an investigation are 

confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the 

State Constitution until the audit or investigation is complete and the 

audit report becomes final or when the investigation is no longer active. 

An investigation is active if it is continuing with a reasonable, good 

faith anticipation of resolution and with reasonable dispatch.

§ 119.0713(2)(b) (emphasis added).

The highlighted portion of the statute is plain and unambiguous: An audit 

report “becomes a public record” only “when the audit. . .. becomes final.” Unless 

and until an audit becomes final, the audit report is not subject to disclosure as a 

public record. Further, an audit “becomes final” only “when the audit report . . . is 

presented to the unit of local government.” 

This excerpted statutory language compels the conclusion that the draft audit 

reports were not subject to disclosure as public records, as it is undisputed that the 

audit was not final and the audit report had not been presented to the City 

Commission on the occasions that Miami New Times requested copies of these draft 

reports from the City. 

Returning to this same subsection, we see that the Legislature addressed not 

only the audit report, but related “audit workpapers and notes” as well (which,

Miami New Times contends, would include draft audit reports): 
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The audit report of an internal auditor and the investigative report of 

the inspector general prepared for or on behalf of a unit of local 

government becomes a public record when the audit or investigation 

becomes final. An audit or investigation becomes final when the audit 

report or investigative report is presented to the unit of local 

government. Audit workpapers and notes related to such audit and 

information received, produced, or derived from an investigation are 

confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the 

State Constitution until the audit or investigation is complete and the 

audit report becomes final or when the investigation is no longer 

active. An investigation is active if it is continuing with a reasonable, 

good faith anticipation of resolution and with reasonable dispatch.

§ 119.0713(2)(b) (emphasis added). 

To the extent that the draft audit reports could be considered “audit 

workpapers and notes,” the plain and unambiguous statutory language provides 

those records remain “confidential and exempt from” disclosure “until the audit. . . 

is complete and the audit report becomes final.” Again, the audit is not “complete,”

and the audit report is not “final,” until “the audit report is presented to the unit of 

local government.” 

Our duty in construing statutes is equally well established: we look first to 

the statute’s plain meaning, and must initially be guided by the principle that if the 

wording of a statute is unambiguous, we should not go beyond the clear wording 

and plain meaning of the statute to give it a different meaning. City of Clearwater, 

863 So. 2d 153; Streeter v. Sullivan, 509 So. 2d 268 (Fla. 1987). “When the words 

of a statute are plain and unambiguous and convey a definite meaning, courts have 

no occasion to resort to rules of construction—they must read the statute as written, 
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for to do otherwise would constitute an abrogation of legislative power.” Nicoll v. 

Baker, 668 So. 2d 989, 990-91 (Fla. 1996).

The only reasonable construction of the plain and unambiguous statutory 

language at issue leads us to conclude that the draft audit reports had not become a 

public record subject to disclosure because the audit was not complete and the audit 

report was not final. 

We reject Miami New Times’ invitation to construe an “audit” and an 

“investigation” in identical fashion under section 119.0713(2)(b). In particular,

Miami New Times advances this argument with regard to the final portion of the

subsection, which provides: 

Audit workpapers and notes related to such audit and information 

received, produced, or derived from an investigation are confidential 

and exempt from s. 119.07(1) and s. 24(a), Art. I of the State 

Constitution until the audit or investigation is complete and the 

audit report becomes final or when the investigation is no longer 

active. An investigation is active if it is continuing with a 

reasonable, good faith anticipation of resolution and with 

reasonable dispatch.

Miami New Times posits that the statute should be construed in a manner that 

treats an “inactive audit” in the same manner as an “inactive investigation,” and we 

should hold that when the City discontinued the internal audit in favor of an external 

audit, the internal audit was “no longer active,” thereby making the draft audit 

reports subject to disclosure as public records. 
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The difficulty with this position, of course, is that the statute does not provide 

for a concept such as an “inactive audit.” Further, treating “audit” and 

“investigation” in the same fashion would require us to ignore the very separate and 

distinct statutory treatment afforded them. The statute does not use the same 

triggering event for when audit documents and investigative documents become 

public records subject to disclosure. Instead, the statute contains distinct provisions 

for each: 

“Audit workpapers and notes related to such audit” are confidential and 

exempt from public records disclosure: 

1. “until the audit. . . is complete”; and 

2. “the audit report becomes final”. 

By contrast, “information received, produced, or derived from an 

investigation” are confidential and exempt from public records disclosure: 

1. “until the. . . investigation is complete. . . or”

2. “when the investigation is no longer active.” “An investigation is active if 

it is continuing with a reasonable, good faith anticipation of resolution and 

with reasonable dispatch.” 

Thus, information from an investigation becomes subject to public records 

disclosure when the investigation is either complete or is no longer active. 
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Audit workpapers and notes, on the other hand, become subject to public 

records disclosure only after the audit is complete and the audit report becomes final. 

There is no equivalent treatment under the statute, and we will not engraft one onto 

the plain and unambiguous language provided by the Legislature. If the Legislature

wanted to make “audit workpapers and notes” subject to public records disclosure

under the same circumstances and to the same extent as “information received, 

produced, or derived from an investigation,” it would have done so. To construe the

statute in the manner suggested by Miami New Times would ignore, or altogether 

negate, other language within the same subsection. This we cannot do. See Jones 

v. ETS of New Orleans, Inc., 793 So.2d 912, 914–15 (Fla. 2001) (holding that a

“statute should be interpreted to give effect to every clause in it, and to accord 

meaning and harmony to all of its parts”) (quoting Acosta v. Richter, 671 So. 2d 

149, 153-54 (Fla. 1996)).

If the legislature “did not intend the results mandated by the statute’s plain 

language, then the appropriate remedy is for it to amend the statute.” Whitney Bank 

v. Grant, 223 So. 3d 476, 479 (Fla. 5th DCA 2017) (noting: “It is a settled rule of 

statutory construction that unambiguous language is not subject to judicial 

construction, however wise it may seem to alter the plain language. . . . If the 

legislature did not intend the results mandated by the statute's plain language, then 
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the appropriate remedy is for it to amend the statute.”) (quoting Overstreet v. State, 

629 So. 2d 125, 126 (Fla. 1993)).

It is undisputed that the City’s audit was not complete, and the audit report 

had not been presented to the City Commission, when Miami New Times made its 

public records requests. As a result, the draft audit reports were not subject to 

disclosure under section 119.0713(2)(b). No public disclosure is mandated here 

because the statutory conditions precedent to the documents becoming subject to 

disclosure as public records—a completed audit and a final audit report—had not 

occurred.

We also reject Miami New Times’ alternative contention that, even if the draft 

audit reports were exempt from disclosure under section 119.0713(2)(b), any 

entitlement to that exemption vanished once those draft reports, provided by the City 

to the auditee towing companies, were disclosed (without the City’s knowledge or 

consent) by the towing companies to a third party.

To support its contention, Miami New Times relies on Satz v. Blankenship, 

407 So. 2d 396, 398 (Fla. 4th DCA 1981), and similar cases, asserting that previous 

disclosure of information subject to a time-limited exemption allows for “further 

disclosure.” Id. (holding: “At the point of disclosure, the information became public 

in a sense and as public information, it lost its efficacy in deterring criminal 

activity.”) See also Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d 775, 
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778 (Fla. 4th DCA 1985) (pronouncing: “[W]e reaffirm what we held in 

Blankenship; namely, that once documents are released, the legislature intended an 

end to secrecy about those documents); Downs v. Austin, 522 So. 2d 931 (Fla. 1st 

DCA 1988) (recognizing: “Satz and Bludworth evince a judicial recognition that 

once the State has gone public with information which could have previously been 

protected from disclosure under the Act's exemptions, no further purpose is served 

by preventing full access to the desired documents or information”); Staton v. 

McMillan, 597 So. 2d 940, 941 (Fla. 1st DCA 1992) (holding: “The active criminal 

investigative information exemption thus does not apply to information which has 

previously been made available at a public hearing.”)

However, “these decisions are factually and legally distinguishable as they 

involve the exemption for either ‘active criminal intelligence information’ or ‘active 

criminal investigative information,’ which are not the exemptions at issue.” 

Rameses, 29 So. 3d 422. More specifically, these decisions mostly address a 

statutory exception to a general public records exemption.

In Satz, 407 So. 2d at 397, for example, the State Attorney “came into 

possession of certain tape recorded conversations” in the course of a police 

investigation leading to the defendant’s arrest. During the criminal proceedings, the 

prosecution provided defendant’s attorney with access to the tape-recorded

conversations. After these recordings were made available to defense counsel, a 
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news reporter sent a public records request to the State Attorney, seeking a copy of 

the tape recordings. The question for the court was whether tape recordings (which 

were part of the evidence gathered in the course of a criminal investigation) were 

“documents” within the meaning of section 119.011(3)(c)5, Florida Statutes (1979). 

This section excludes “[d]ocuments . . . given to the person arrested” from the public 

records exemption in section 119.071(2)(c)1 (exempting from disclosure “active 

criminal intelligence and investigative information”). In other words, although 

section 119.071(2)(c)1 provides a general exemption from public records disclosure 

of “active criminal intelligence information” and “active criminal investigative 

information,” section 119.011(3)(c)5 specifically excludes from that defined 

exemption (i.e., treats as a public record subject to disclosure) “[d]ocuments given 

or required by law or agency rule to be given to the person arrested.” 

The Fourth District, construing the statute (section 119.01), its exemption 

(section 119.011(3)(a) for active criminal intelligence/investigative information), 

and the exception to the exemption (section 119.011(3)(c)5, providing that 

documents provided to a person arrested are not exempt from disclosure under 

public records law), held that the tape recordings were “documents” under section 

119.011(3)(c)5 and, once they were given to the person arrested, they fell within the 

exception to the exemption and thus statutorily subject to inspection and copying as

public records. Id. at 398. See also Bludworth, 476 So. 2d 778 (noting: “The issue 
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is whether section 119.011(3)(c) 5, Florida Statutes (1983), which excludes from the 

definitions of ‘criminal intelligence information’ and ‘criminal investigation 

information’ ‘[d]ocuments given or required by law or agency rule to be given to a 

person arrested,’ should be construed narrowly so as to refer only to such 

information as shows the basis for the person's arrest. . . .”)

There is no comparable exception to the statutory exemption in this case. And 

as the courts did in those cases cited by Miami New Times, we rely upon judicial 

construction of specific statutory provisions to determine whether disclosure was 

required. In doing so, we find that it was not: The disclosure of these draft reports 

by the towing companies to a third party, without the knowledge or consent of the 

City, did not alter their status so as to render them subject to disclosure as public 

records.

CONCLUSION

Under the plain and unambiguous statutory language of section 

119.0713(2)(b), the draft audit reports were not subject to disclosure as public 

records. The trial court erred in granting the petition for writ of mandamus and 

compelling the City to provide these reports to Miami New Times. We therefore 

quash the order granting the writ of mandamus, and remand for further proceedings 

consistent with this opinion.