The full case caption appears at the
end of this opinion. CASANUEVA, Judge. In this consolidated appeal, Discovery Experimental and Development, Inc.,and James T. Kimball, its chief executive officer (Discovery), challenge the dismissal onimmunity grounds of their respective claims. We reverse only the dismissal of themisappropriation of trade secrets count alleged against the Department of Health andRehabilitative Services, now known as the Department of Health (DOH). We affirm the orderof dismissal as to the remaining counts. In 1993, employees of DOH, in conjunction with other state and federalagencies, participated in a search of Discovery’s business premises and seizure of variousitems. Subsequently, DOH instituted a civil action against Discovery alleging a violationof the provisions of chapter 499, Florida Statutes (1993). Discovery then counterclaimedagainst DOH, alleging DOH had misappropriated trade secrets by disclosing Discovery’sproprietary information to a competitor (count one), and that DOH negligently investigatedand undertook enforcement action against it (count two). Additionally, Discovery initiateda third party action against DOH employees, Jerry Hill, Greg Jones, and Deborah Orr,alleging that each maliciously and illegally investigated and conducted enforcementactivities against Discovery, and violated Discovery’s constitutional rights of dueprocess and equal protection (counts three through five). Mr. Kimball separately filed asimilar counterclaim against DOH and third party action against DOH’s employees and addeda fourth person to his third party action, Robert Daniti, in-house counsel for DOH’sDivision of Pharmacy Services. In response, all appellees moved to dismiss the variouscauses of action, alleging immunity from suit. The trial court granted relief and theseappeals ensued. When a person sues the State of Florida through one of its governmentalarms, as here, and the State defends on the grounds of governmental immunity, the courtbegins a particular, but familiar, analysis of the governmental function at issuein�an effort to respect the separation of powers doctrine from which governmentalimmunity derives.
See Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1989).Constitutionally, the judicial branch of government, through actions in tort, is generallynot permitted to�infringe upon the proper functioning of its co-equal, the executivebranch. This separation permits the executive branch to perform certain governmentalactivities without fear of being sued.
See Trianon Park Condominium Ass’n v.City of Hialeah, 468 So. 2d 912 (Fla. 1985). Here, Discovery alleged that DOHmisappropriated its trade secrets in violation of the Uniform Trade Secrets Act, chapter688, Florida Statutes (1993). Discovery alleged that DOH had acquired during the search ofits premises certain information, including formulas and techniques, and had wilfully andmaliciously disclosed this information to a competitor causing Discovery economic damages.In order to defeat Discovery’s claim on grounds of immunity, DOH must establish that thegovernmental action at issue is a discretionary function, which is immune, in contrast toan operational function, which is not immune.
See Kaisner v. Kolb, 543 So.2d at 736;
Trianon Park, 468 So. 2d at 918;
Commercial Carrier Corp. v. IndianRiver County, 371 So. 2d 1010 (Fla. 1979). An operational function is “one notnecessary to or inherent in policy or planning, that merely reflects a secondary decisionas to how those policies or plans will be implemented.”
Kaisner v. Kolb, 543So. 2d at 737. The identification and classification of these functions is difficult, socourts answer four analytical questions to distinguish between discretionary andoperational functions.
See Commercial Carrier Corp. v. Indian River Co., 371So. 2d at 1019 (citing
Evangelical United Brethren Church v. State, 67 Wash. 2d246, 407 P. 2d 440 (1965)). The first inquiry is whether the challenged act necessarilyinvolves a basic governmental program or policy. Because we review a dismissal ofcounterclaims and third party claims, we must take all well-pleaded allegations as true atthis stage of the proceedings. Discovery challenges DOH’s act of disclosing proprietaryinformation as a violation of the Uniform Trade Secrets Act; therefore, this firstquestion must be answered in the negative because we cannot conceive that divulging to acompetitor protected information obtained in a proper regulatory manner is a basicgovernmental program or policy. The second inquiry is whether the questioned act is essential to therealization or accomplishment of the governmental program. The answer to this question isalso clearly in the negative. The third inquiry is whether the disclosure of theinformation is an exercise of basic policy evaluation and expertise on the part of thegovernmental agency involved. Under these circumstances, we answer this inquiry in thenegative, too. The final inquiry is whether the governmental conduct in question involvesa constitutional, statutory, or other lawful authority and duty. Again, we answer thequestion in the negative. The alleged release of Discovery’s proprietary information is neithernecessary to a governmental policy determination nor inherent in governmental planning.Accordingly, we hold that the challenged governmental conduct is operational in nature andDOH is not entitled to immunity. Like a private individual under similar circumstances whocomes into possession of trade secrets, DOH may be held liable for a violation of chapter688.
See Trianon Park, 468 So. 2d at 917-18. Because the remaining counts clearly deal with immune governmentalfunctions in regulating the pharmaceutical industry, or involve employees in the properconduct of their official duties, we affirm the dismissal of the remaining counts withoutfurther discussion. Affirmed in part; reversed in part; and remanded with instructions. ALTENBERND, A.C.J., and DANAHY, PAUL W., (SENIOR) JUDGE, Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICTCase No. 98-01347 Case No. 98-01348 CONSOLIDATED DISCOVERY EXPERIMENTAL AND DEVELOPMENT, INC., Appellant, v. STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, JERRY HILL, GREG JONES and DEBORAH ORR, Appellees. _____________________________ JAMES T. KIMBALL, Appellant, v. STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, JERRY HILL, GREG JONES DEBORAH ORR and ROBERT P.DANITI, Appellees. _______________________________ Opinion filed April 30, 1999. Appeal from the Circuit Court for Pasco County; Wayne L. Cobb, Judge. R. Elliott Dunn, Jr., Wesley Chapel, for Appellant Discovery Experimental and Development, Inc. James T. Kimball, Pro Se. Robert A. Butterworth, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellees.
