State Attorney's Office of the Seventeenth Judicial Circuit v. Cable News Network, Inc.

• Decision Date: 25 July 2018
• Docket Number: Nos. 4D18-1335,4D18-1336,s. 4D18-1335
• Citation: 251 So.3d 205
• Parties: STATE ATTORNEY'S OFFICE OF the SEVENTEENTH JUDICIAL CIRCUIT and School Board of Broward County, Appellants, v. CABLE NEWS NETWORK, INC., Miami Herald Media Company, Sun-sentinel Company, LLC, ABC, Inc., the Associated Press, the Bradenton Herald, the First Amendment Foundation, Florida Press Association, Gannett Company, Inc., Los Angeles Times Communications LLC, the New York Times Company, Orlando Sentinel Communications Company, LLC, Broward County Sheriff's Office, and Scott Israel, in his official capacity as Broward County Sheriff, Appellees.
• Court: Florida District Court of Appeals

251 So.3d 205

STATE ATTORNEY'S OFFICE OF the SEVENTEENTH JUDICIAL CIRCUIT and School Board of Broward County, Appellants,

v.CABLE NEWS NETWORK, INC., Miami Herald Media Company, Sun-sentinel Company, LLC, ABC, Inc., the Associated Press, the Bradenton Herald, the First Amendment Foundation, Florida Press Association, Gannett Company, Inc., Los Angeles Times Communications LLC, the New York Times Company, Orlando Sentinel Communications Company, LLC, Broward County Sheriff's Office, and Scott Israel, in his official capacity as Broward County Sheriff, Appellees.

Nos. 4D18-1335

4D18-1336

District Court of Appeal of Florida, Fourth District.

July 25, 2018

On Motion to Certify Question of Great Public Importance August 3, 2018

Michael J. Satz, State Attorney, and Joel Silvershein, Assistant State Attorney, Fort Lauderdale, for appellant, State Attorney's Office of the Seventeenth Judicial Circuit.

Eugene K. Pettis and Debra Potter Klauber of Haliczer, Pettis & Schwamm, P.A., Fort Lauderdale, for appellant, School Board of Broward County.

Dana J. McElroy, James J. McGuire, and Jon M. Philipson of Thomas & LoCicero, PL, Fort Lauderdale, for appellees, Cable News Network, Inc.; Miami Herald Media Company; and Sun-Sentinel Company, LLC, ABC, Inc.; The Associated Press; The Bradenton Herald; the First Amendment Foundation; the Florida Press Association; Gannett Co., Inc.; Los Angeles Times Communications LLC; The New York Times Company; and Orlando Sentinel Communications Company, LLC.

Gross, J.

We affirm the order of the circuit court which directed the disclosure of video footage as public records over the objections of the School Board of Broward County and the State Attorney of the 17th Judicial Circuit.

On February 14, 2018, Nikolas Cruz, a former student, entered the grounds of Marjory Stoneman Douglas High School in Broward County. He walked into Building 12, containing several classrooms, and allegedly shot and killed seventeen people, including students and staff members. The timeline for the shooting is as follows:

2:19 p.m. Cruz is dropped off near the school

2:21 p.m. Cruz enters Building 12 and begins firing rifle

2:22 p.m. A fire alarm is set off

2:27 p.m. Cruz discards his weapon and exits out the west side of the building

Approximately 70 surveillance cameras are installed at Douglas. The exterior cameras are mounted in plain sight and are "completely visible" to a person looking for them. Without seeing the actual footage from the camera, one would not know:

• Whether the camera is on or off;

• Whether the camera is working;

• How wide the angle is;

• Where the camera is pointing;

• Whether the camera operates at night; or

• How many frames per second the camera is recording.

On February 15, the Broward County Sheriff's Office ("BSO") subpoenaed all of Douglas's video surveillance footage. On February 16, the BSO executed a search warrant and seized the School Board's computers which housed the footage.

Two weeks after the shooting, several media outlets petitioned for access to video recordings captured by Douglas's surveillance cameras.¹ The Media's petition was filed pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, the "Public Records Act." The respondents were the BSO, Scott Israel (BSO Sheriff), the School Board of Broward County, and Robert Runcie (Superintendent of Schools).

The Media's petition averred "extreme public interest" in "the response of law enforcement officers during the shooting and immediately thereafter." The petition mentioned school resource officer, Scot Peterson, by name. The petition was necessitated because the BSO refused to release the footage.

The State Attorney's Office moved to intervene as the authority prosecuting Cruz. The State Attorney argued that the "items sought constitute criminal investigative information" that is exempt from disclosure under the Public Records Act.

The BSO responded to the petition, raising the same exemption, and other objections not relevant to this appeal. The School Board's response claimed that the footage was exempt from disclosure under Florida Statute section 119.071(3)(a), Florida Statutes – the "security system plan exemption."

Before the hearing, the Media filed two DVDs in support of the petition. The first was a video of a press conference conducted by the BSO. In the press conference, Sheriff Scott Israel discusses the Douglas surveillance videos and informs the media that Officer Peterson was suspended based on his failure to enter Building 12 and engage the shooter.

The second DVD was an interview with a Douglas student who described seeing Officer Peterson during the shooting. According to the student, Officer Peterson stood in a stairwell in an adjacent building, talking on his radio, with his gun pointed at Building 12.

The Media also filed several exhibits including its public records request, other public records, and several articles about the shooting. The articles discussed Officer Peterson's actions as well as reports that other deputies remained outside during the shooting taking cover behind their vehicles. One article notes BSO policy which is that "if real time intelligence exists the sole deputy or team of deputies may enter the area and/or structure to preserve life."

The circuit judge conducted an evidentiary hearing on March 8. The evidentiary portion of the hearing included testimony from the BSO's captain of criminal investigations. The captain testified that Cruz is the subject of an active criminal investigation and that the videotapes are part of the criminal investigative information file.

The other relevant testimony about Douglas's surveillance system came from a BSO officer and an assistant principal. This testimony is discussed in more detail below.

At the close of the hearing, the judge announced that he would be doing an in camera review of the footage, which had been redacted to obscure the faces of students and unknown witnesses. Ultimately, the court issued its order requiring the BSO to release the footage (the "first order"). None of the parties appealed the first order, and the BSO provided the specified footage to the Media.

Shortly before the video was released, the BSO published a detailed timeline of events culled from multiple sources, including Douglas surveillance videos. The timeline revealed that there are 70 surveillance cameras at Douglas and that the cameras are motion-activated. The published timeline stated:

The 45 acre campus is equipped to record 70 different camera angles. Most of these views provide coverage of student buildings, walkways and hallways. Building 12 was covered by thirteen interior cameras. School video time stamps are not exactly synchronized with BSO dispatch records. Cameras are also motion activated leaving gaps in coverage.

After reviewing the BSO's newly-released timeline and the footage released March 15, the Media filed a Motion for Further Relief. The Media argued that the footage released was incomplete, edited, and not entirely responsive. The Media asked for "full disclosure" showing the law enforcement response so the public could "evaluate and determine whether more could have, or should have, been done."

The School Board opposed releasing additional footage. It contended that the extensive video footage sought by the Media revealed much more than the "minimal" footage originally produced. It further argued that the Media had not stated any "good cause" for the additional footage because the additional footage sought captured officers' actions after Cruz had dropped his weapon and exited the building.

The Media's motion for further relief spurred three hearings and the appealed order.

The first hearing was a case management conference held on March 23. The Media insisted that it was not seeking any footage of victims – that it was seeking only footage from the exterior cameras showing the law enforcement response. The circuit court clarified that "anyone on the video, other than law enforcement," was going to be pixelated. The BSO did not object to producing additional footage. The court ordered the Media to narrow its request.

The Media then filed its "Amended and Supplemental Motion for Further Relief." The Media specified that it was not seeking any video:

(a) depicting the victims of the shooting,

(b) showing the interior of any school building,

(c) specifically identifying any student, or

(d) depicting Nikolas Cruz.

The Media sought only video from cameras mounted on Buildings 12, 13, 6, 7, 9, 3, the gymnasium, and the auditorium which depicted law enforcement personnel responding to the shooting from 2:15-4:00 p.m.

The second hearing was conducted on April 2. The BSO stated that it was not opposed to releasing video showing first responders but it opposed releasing video showing victims or children's faces.

The School Board argued against releasing any more video. It argued that releasing additional video would reveal the vulnerabilities of Douglas's security system.

After clarifying what the Media was seeking and what the footage would reveal, the court found the request over-inclusive. The judge ordered that the footage to be released would stop at 3:00 p.m. An evidentiary hearing was set for April 4.

At the final evidentiary hearing, a detective testified that Cruz had been indicted and was the subject of a continuing active criminal investigation. He said that the first law enforcement personnel seen on the video is at 2:32 p.m. He testified that of the 5-6 cameras that show first responders, 3-4 were not previously produced.

The chief information officer for the BSO who oversees information technology for the entire Broward County School District testified that he is responsible for "the installation and ongoing maintenance of the surveillance cameras." He testified that surveillance cameras at Douglas are "not typically monitored," and that "no one is sitting watching those cameras but they're recording so that if you need to go...