CopyPublished | Florida 1st District Court of Appeal | 2001 Fla. App. LEXIS 14128, 2001 WL 1180722
...On August 24, 2000, pursuant to Rule 64B-1.1013, Florida Administrative Code, the Department of Health allowed the Respondent the opportunity to review his exam questions and answers during a post-examination review. Additionally, on December 12, 2000, in accordance with section 456.014(2), Florida Statutes (2000), *1138 and Rule 64B-1.009, Florida Administrative Code, the Respondent and his attorney reviewed his exam questions and answers in order to prepare for litigation in the case....
...If an administrative hearing is held, the department shall provide challenged examination questions and answers to the administrative law judge. The examination questions and answers provided at the hearing are confidential and exempt from s.
119.07(1), unless invalidated by the administrative law judge. §
456.014(2), Fla....
...ew.” The issues for us to determine in reviewing the order are what documents the Department must provide to the Respondent and how they are to be provided according to these applicable statutes and rules. I. First, we read sections
456.017(2) and
456.014(2) together to require the department to provide the questions and answers for those “the candidate answered incorrectly or, if not feasible, the parts of the examination failed.” See §
456.017(2), Fla....
...curately provided by the Department in the postex-am and pre-hearing reviews performed to date. The ALJ improperly ordered that all questions and answers on the exam be provided, including those that the Respondent answered correctly. We do not read section
456.014(2) to require the whole exam to be provided to Respondent. Such an expansive interpretation of section
456.014(2)would be not only inconsistent with section
456.017(2), but also with its own requirement that in the event that an *1139 administrative hearing is held, the ALJ is to receive the “challenged examination questions and answers.”...
...tigation. The ALJ made no finding that the Department provided these materials to its outside experts, so we do not reach this issue. II. Second, we examine the statutes and rules for how these questions and answers are to be provided to Respondent. Section 456.014(2) is very clear that no discovery of the examination questions and answers should occur....
...However, there is no prohibition in the statutes or rules against disclosure of the challenged questions and answers to expert witnesses at the administrative hearing, with appropriate restrictions. For example, a statutory restriction for the hearing is the requirement in section 456.014(2) for the proceeding to be held “in camera.” Although “in camera” typically denotes a review only by the judge without anyone else present, it is used in section 456.014(2) in reference to the proceeding, where all the parties and them lawyers and witnesses are expected to be present....
...the ALJ should review all of the original questions and answers (in camera, without anyone present) to determine that copies of all incor-reel questions and answers are accurately provided for review to Respondent and his attorney in accordance with section 456.014(2) and Fla....
