City of Miami v. Post-Newsweek Stations Fla., Inc., No. 3D01-662
| Decision Date | 09 October 2002 |
| Docket Number | No. 3D01-665., No. 3D01-662 |
| Parties | CITY OF MIAMI, Appellant, v. POST-NEWSWEEK STATIONS FLORIDA, INC., etc., Appellee. |
| Court | Florida District Court of Appeals |
Sale & Kuehne, and Benedict P. Kuehne, and Susan Dmitrovsky, Fort Lauderdale, Alejandro Vilarello, City Attorney, Hialeah, and Myrna D. Bricker, Assistant City Attorney, Miami, and Nicole C. Kanfer, Assistant City Attorney, Orlando; and Katherine Fernandez Rundle, State Attorney, Miami, and Angelica D. Zayas, Assistant State Attorney, for appellant.
Mitrani, Rynor, Adamsky & Macaulay, and Karen Williams Kammer, Miami, and Noah Bender, for appellee.
Before GODERICH, GREEN, and RAMIREZ, JJ.
The City of Miami, in conjunction with intervenors Mayor Joseph Carollo and the State Attorney of the Eleventh Judicial Circuit, appeal the issuance of a writ of mandamus that ordered the City to disclose information obtained concerning Mayor Carollo's arrest for misdemeanor battery. Because the materials ordered disclosed in the writ of mandamus did not qualify as public records, we reverse.
On February 7, 2001, a 911 emergency call prompted the City of Miami Police to respond to a domestic dispute between Mayor Carollo and his wife at the Carollos' residence. The police incident report notes that Mrs. Carollo had a golf-ball size hematoma on her left temple, and states that Mrs. Carollo said her husband struck her with a hard object. Mayor Carollo was subsequently arrested and charged with misdemeanor battery. The police took photographs of Mrs. Carollo's injury and obtained a written statement from her.
On February 27, 2001, Mayor Carollo filed a written request for discovery in county court pursuant to rule 3.220(a), Florida Rules of Criminal Procedure. On the same day, Post-Newsweek Stations Florida, Inc. requested the injury photograph and Mrs. Carollo's statement from the City of Miami Police Department pursuant to the Public Records Act, section 119.07, Florida Statutes (2000). The City responded that the requested documents were exempt from disclosure under section 119.07(3)(b) as "part of an active criminal investigation as defined by [sections] 119.011(3)(b), (c) and (d)."
The next day, Post-Newsweek filed a complaint for writ of mandamus in circuit court to compel the City to provide the requested documents. At the same time, Post-Newsweek sought the same materials in the pending county court action through a motion to intervene and for access to public records. The State Attorney responded that it did not have possession of the requested materials, but would produce them once obtained and provided to the defendant Mayor Carollo during the discovery process. In the meantime, Mayor Carollo and the State Attorney moved to intervene in the civil action to oppose disclosure of the materials.
At his arraignment on March 5, 2001, Mayor Carollo orally withdrew his discovery request and submitted a written withdrawal the next day. The county court with jurisdiction over the battery case authorized the withdrawal of the discovery request. The State Attorney's Office never provided any discovery to the defendant or his counsel at any time before or after the request was withdrawn.
Before the county court judge could rule on Post Newsweek's motion for access to public records, the circuit court, on March 12, 2001, issued a writ of mandamus ordering the City to comply with Post-Newsweek's request.1 The circuit court held that when Mayor Carollo requested discovery, the State Attorney's Office was then required by law to provide him with the documents. Because the Public Records Act, section 119.07(3)(b), Florida Statutes (2000), does not exempt documents which are required by law to be provided to the defendant, the court determined that the injury photograph and Mrs. Carollo's statement were not exceptions to the Public Records Act.2 We disagree that a discovery request alone removes exempt status.
Section 119.07(3)(b) exempts "active criminal investigative information" from the Public Records Act. Section 119.011(3)(c)5 in turn states that "criminal investigative information" shall not include "documents given or required by law or agency rule to be given to the person arrested." Our disposition of this case hinges on how we interpret this language. There is no dispute that the documents were never given to the person arrested. Thus, we must decide what documents were "required by law ... to be given." Preliminarily, the injury photograph and Mrs. Carollo's statement are not documents automatically required by law or agency rule to be given to the person arrested, such as warrants, property inventory lists, or exculpatory materials. The documents at issue here lose their exempt status only when they are "required to be given" to the defendant. See Doe v. State, 587 So.2d 526, 532 (Fla. 4th DCA 1991)
. It is the discovery notice pursuant to rule 3.220, Florida Rules of Criminal Procedure, which creates an obligation on the part of the State Attorney's Office to release the documents to the defendant. Absent the discovery notice, the State Attorney's Office is not required to release the documents to the defendant. Once the State Attorney's Office releases the requested information to the defendant, the documents attain public record status and lose the exempt status section 119.07(3)(b) provides. See Post-Newsweek Stations Florida, Inc. v. Doe, 612 So.2d 549, 551 (Fla.1993). Thus, it is the release of the documents to the defendant that also makes them subject to disclosure as a public record. See Tribune Co. v. Public Records, P.C.S.O. # 79-35504, 493 So.2d 480 (Fla. 2d DCA 1986).
In this case, the State Attorney's Office never provided the documents to Mayor Carollo. In fact, it was not obligated to do so until March 13, 2001, at the earliest. See Fla. R.Crim. P. 3.220(b)(1) (). Arguably, the demand for discovery on February 27, 2001, may have been a nullity because the language of rule 3.220(a) does not authorize a "Notice of Discovery" being made until "[a]fter the filing of the charging document."
Even if the February 27, 2001, filing had been a proper invocation of discovery, the State Attorney's Office was relieved of any obligation to deliver the documents when Mayor Carollo was allowed to withdraw his request on March 6, 2001.
Post-Newsweek argues that once Mayor Carollo filed his discovery notice, the records were no longer exempt. This would mean that the records would have to be released to the media even before the defendant is entitled to receive them. Further, Post-Newsweek's argument would make a discovery notice irrevocable and irreversible, but rule 3.220(d)(3) seems to envision the withdrawal of a Notice of Discovery.3
Both the language and intent of section 119.07 is to make the right of the defendant to receive documents coextensive with their status as "public records." As the documents at issue here were never "given to the person arrested," nor were they required to be given once the discovery request was withdrawn, they retained their exempt status at the time the circuit court issued its writ of mandamus. Thus, the City was improperly ordered to disclose the injury photograph and written statement.
Post-Newsweek also argues that the release of the 911 tape and the incident report had already disclosed the requested information to the public. However, the one-page incident report only contains the responding officer's brief remark about the size and location of the injury and one sentence concerning Mrs. Carollo's allegation that her husband struck her with a hard object. These remarks are a far cry from Mrs. Carollo's ten page detailed written statement and the close-up photograph of the injury.
Additionally, rule 3.220(a) imposes upon a defendant a reciprocity obligation which should not be circumvented. See Henderson v. State, 745 So.2d 319 (Fla. 1999)
. "The provisions of [section 119.07] are not intended to expand or limit the provisions of [rule] 3.220." Id. at 321. Therefore, the media should not be granted disclosure before the State Attorney's Office complies with the defendant's discovery request, thereby obligating him to reciprocate. To hold otherwise would allow defendants to manipulate the system in order to circumvent reciprocity by requesting discovery, withdrawing the request, and thereafter obtaining the requested information through disclosure to the media.
Reversed.
Because I disagree with the majority's unduly restrictive construction of the Public Records Act, particularly section 119.011(3)(5), Florida Statutes, I respectfully dissent.
The Public Records Act is a legislative creation which provides that:
[i]t is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person.
§ 119.01(1), Fla. Stat. (1995).4 The act is to be liberally construed "in favor of `open government to the extent possible in order to preserve our basic freedom, without undermining significant governmental function such as crime detection and prosecution.'" Tribune Co. v. Public Records, 493 So.2d 480, 482 (Fla. 2d DCA 1986) (quoting Bludworth v. Palm Beach Newspapers, Inc., 476 So.2d 775, 779 (Fla. 4th DCA 1985)). To this end, exemptions from disclosure are to be construed narrowly and limited solely to their stated purposes. See Miami Herald Publ'g Co. v. City of North Miami, 452 So.2d 572, 573 (Fla. 3d DCA 1984)
. Moreover, "when in doubt the courts should find in favor of disclosure rather than secrecy." Bludworth, 476 So.2d at 780, n. 1.
Here, section 119.07 provides that "[a]ctive criminal intelligence information and active criminal investigative information are exempt from" disclosure under the Public...
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POST-NEWSWEEK STATIONS FLORIDA, INC. v. City of Miami, SC03-530.
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