Key Points

  • The First District Court of Appeal granted certiorari and quashed a trial court order requiring sealed Department of Financial Services records to be given to two public-records requester-intervenors before any ruling on whether the records are exempt.
  • The court held that section 624.4213(2), Florida Statutes, bars release of records containing claimed trade secrets until a circuit court rules on their trade-secret status, where a timely action has been filed.
  • The court held that a confidentiality order did not prevent irreparable harm, citing a requester-intervenor's service of discovery the day after the order.
  • The trial court's finding that the requesters were not the insurers' competitors did not save the order, because the dispositive question is whether the records are exempt.
  • On remand, the trial court must decide exemption status through a confidentiality-preserving in camera inspection or evidentiary hearing that does not disclose the records to the requesters; the panel took no position on whether the records are trade secrets.

A Florida appeals court ruled Wednesday that a trial judge could not hand sealed records from a state investigation of insurers' claim-handling practices to two public-records requesters before deciding whether the records contain trade secrets exempt from disclosure.

A three-judge panel of the First District Court of Appeal granted petitions by Heritage Property & Casualty Insurance Company, Florida Peninsula Insurance Company and Edison Insurance Company and quashed the trial court's order in an unsigned opinion joined by Judges Lewis, Winokur and Neff. The order had directed that records the Florida Department of Financial Services filed under seal go to the requesters, subject to a confidentiality order.

The decision holds that, where a timely action is filed, a Florida statute bars release of records containing claimed trade secrets until a circuit court rules on their trade-secret status, and that a confidentiality order is no substitute for that ruling. "In other words, ordering production before the trade-secret determination violates the statutory safeguards and defeats the declaratory actions' purpose, giving the requestors access regardless of how the exemption is decided," the panel wrote.

The dispute arose from public-records requests tied to the department's investigation. Florida Peninsula and Edison filed one suit and Heritage filed another, each seeking declaratory and injunctive relief to prevent disclosure of records concerning claimed trade secrets. Jeffrey and Virginia Rapkin petitioned for a writ of mandamus to compel disclosure.

The trial court consolidated the three cases and paused the Rapkins' mandamus suit until it resolved the insurers' exemption claims. Benjamin Mandell and Jordan Lee filed public-records requests of their own and were allowed to intervene.

Under a joint litigation plan the trial court adopted, the department was to file redacted and unredacted records under seal. The court would then conduct an in camera review and hold an evidentiary hearing on trade-secret status. According to the appellate opinion, the court instead conducted a mere "initial review," which "did no more than identify which of the 878 sealed pages carried a claimed exemption."

On March 26, 2026, the trial court entered an Order for Pre-Hearing Process stating that it "will not conduct the hearing in camera." The order directed that the sealed records go to Mandell and Lee, who could "participate fully" in the evidentiary hearing and take discovery. The next day Lee, who is also suing Heritage in separate litigation, served discovery requests on Florida Peninsula and Edison; he later noticed the deposition of Heritage's corporate representative. On April 16 the trial court granted the insurers only a temporary stay.

The insurers then sought certiorari review. To obtain certiorari relief from a nonfinal order, a petitioner must show that the trial court departed from the essential requirements of law and caused an injury that cannot be corrected on appeal after final judgment.

The panel found that injury in the threatened disclosure itself. It relied on the court's 2011 decision in Wal-Mart Stores East v. Endicott, which held that "once the documents are disseminated, a privacy or trade secret interest has been invaded which cannot be remedied on direct appeal." The panel also wrote that a protective order allowing trade-secret material to be shared "is not always sufficient to prevent harm."

"The risk here is not hypothetical," the panel wrote, pointing to Lee's discovery requests as confirmation "that the requestor-intervenors are positioned to obtain and use the claimed-exempt materials outside the context of the litigation." The court added that the insurers need not yet prove the records are trade secrets, because a prima facie showing of irreparable harm is enough to invoke certiorari review.

On the merits, the panel cited its 1995 decision in Messer v. E.G. Pump Controls, which found a departure from the essential requirements of law where a trial court ordered production "without first conducting an examination of the documents." It also cited section 624.4213(2) of the Florida Statutes, which, once a timely action is filed, bars release of records containing claimed trade secrets until a circuit court rules on their status. The trial court "did not follow that sequence," the panel wrote.

The respondents had argued that the trial court already conducted an in camera review. The panel said that contention "misreads the record," because the initial review made no trade-secret determination. Deciding the exemption at a hearing rather than through in camera review would have been permissible, the court wrote, but ordering production first was not. Even if the records proved to be trade secrets, the panel added, production would require particularized findings of reasonable necessity that the trial court never made.

The panel also held that the trial judge's finding that Mandell and Lee "are in no sense competitors of the Insurers" did not save the order. The burden of proving trade-secret status rests on the insurers, the panel wrote, and early production would deprive them of the chance to carry it. "What matters is whether the records are in fact exempt, a determination that must be made before they are ordered to be released," the court wrote.

Lawyers for Heritage included M. Hope Keating of Greenberg Traurig, P.A. Jeffrey A. Rapkin represented himself and Virginia M. Rapkin.

On remand, the trial court must decide the exemption and trade-secret status of the disputed records before ordering any production or access. The panel directed that the determination be made through "a confidentiality-preserving in camera inspection or evidentiary hearing that does not disclose the records to those seeking them," and said it took no position on whether the records are trade secrets or otherwise exempt. The decision is not final until the court disposes of any timely and authorized motion under Florida Rules of Appellate Procedure 9.330 or 9.331.