Times Pub. Co. v. State, 2D04-4293.

• Decision Date: 10 June 2005
• Docket Number: No. 2D04-4293.,2D04-4293.
• Parties: TIMES PUBLISHING CO., Petitioner, v. STATE of Florida and Joseph P. Smith, Respondents.
• Court: Florida District Court of Appeals

903 So.2d 322

TIMES PUBLISHING CO., Petitioner, v. STATE of Florida and Joseph P. Smith, Respondents.

No. 2D04-4293.

District Court of Appeal of Florida, Second District.

June 10, 2005.

George K. Rahdert and Penelope T. Bryan of Rahdert, Steele, Bryan, Bike & Reynolds, P.A., St. Petersburg, for Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Taylor, Assistant Attorney General, Tampa, for Respondent State of Florida.

Elliott C. Metcalfe, Jr., Public Defender, and Adam Tebrugge, Assistant Public Defender, Sarasota, for Respondent Joseph P. Smith.

CANADY, Judge.

Times Publishing Company ("Times Publishing") petitions for review of the trial court order restricting disclosure of certain discovery materials related to the criminal prosecution of Joseph P. Smith. Review is by way of a petition for writ of certiorari under Florida Rule of Appellate Procedure 9.100(d)(1), which governs petitions "to review an order excluding the press or public from access to ... judicial records, if the ... records are not required by law to be confidential." Times Publishing challenges only that portion of the trial court's order that was based on provisions of Florida Rule of Criminal Procedure 3.220, which governs discovery. Because we conclude that under the circumstances presented here the trial court erred in entering the challenged portion of the order under that rule, we grant Times Publishing's petition.

Background

On February 20, 2004, a grand jury issued an indictment charging Smith with the premeditated murder, kidnapping, and sexual assault of Carlie Brucia. Prior to receiving discovery materials from the State, Smith filed a motion asking the trial court to conduct an in camera inspection of these materials and to enter an order directing the State to seal them. Smith argued that all of the materials should be sealed for three reasons: (1) the materials are exempt from the public records law; (2) sealing the materials would avoid prejudicial pretrial publicity; and (3) sealing the materials would protect Smith's right to a fair trial. The trial court entered an order temporarily sealing the discovery materials upon delivery to Smith and establishing a procedure for an in camera review of specific materials upon further motion of Smith. At the same time, the trial court granted Times Publishing's motion to intervene for the purpose of opposing Smith's motion.

Subsequently, Smith filed a further motion requesting an in camera review and the blanket sealing of the discovery materials. On August 27, 2004, after an evidentiary hearing, the trial court issued a written order denying Smith's request for a blanket sealing of the discovery materials but providing that portions of the materials should be temporarily sealed to protect Smith's right to a fair trial. The order further provided for the redaction of certain information in portions of the released materials to protect Smith's right to a fair trial or pursuant to particular provisions of section 119.07, Florida Statutes (2003).

The trial court's order also provided for the nondisclosure, pursuant to Florida Rule of Criminal Procedure 3.220(e), (l), and (m), of portions of the discovery materials consisting of certain FBI reports, witness statements, and investigative reports. In entering this portion of the order, the trial court relied on "a finding that if the sealed portions of the documents were disclosed, there would be a substantial risk to witnesses and other persons, such as unnecessary annoyance or embarrassment, which outweighs any usefulness of the disclosure." The order stated that "the court determined that privacy concerns of the non-parties in areas such as prior drug use or addiction or current medical conditions should not be released."

In its petition, Times Publishing only challenges that portion of the order that was based on rule 3.220, which governs discovery in criminal proceedings. Times Publishing argues that the provisions of rule 3.220(e), (l), and (m) were not a proper basis for withholding the materials in question from the public. Times Publishing asserts that the trial court departed from the essential requirements of the law and requests that this court quash that portion of the order and direct the affected records to be released. Smith and the State contend that the trial court's order was a proper exercise of its authority under rule 3.220.

Analysis

In evaluating the challenged portion of the trial court's order, we begin with the important general principle that once criminal investigative or intelligence information is disclosed by the State to a criminal defendant that information becomes a nonexempt public record subject to disclosure pursuant to section 119.07(1). See §§ 119.07(6)(b), .011(3)(c)(5). The public may, however, be denied access to such discovery materials in limited circumstances, including those where it is established that the release of the materials would (a) interfere with a defendant's right to a fair trial, see Fla. Freedom Newspapers, Inc. v. McCrary, 520 So.2d 32 (Fla. 1988)

; or (b) infringe on the privacy rights of a nonparty, see Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So.2d 549 (Fla. 1992).

In entering the order under review, the trial court was acting on a request submitted by Smith to protect his right to a fair trial by preventing prejudicial pretrial publicity. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)

; McCrary, 520 So.2d 32; Miami Herald Publ'g Co. v. Lewis, 426 So.2d 1 (Fla.1982). The challenged portions of the trial court's order were based, however, not on Smith's right to a fair trial but on the "privacy concerns" related to certain "witnesses and other persons."

Such privacy concerns may in some circumstances be a proper basis for withholding discovery materials involved in a judicial proceeding from public disclosure. See Doe, 612 So.2d at 551

; see also Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988). Individuals seeking to prevent the disclosure of such information based on a claim that the disclosure would violate their right to privacy "bear the burden of proving that closure is necessary to prevent an imminent threat to their privacy rights." Doe, 612 So.2d at 551.

Such a privacy claim by a nonparty may be asserted pursuant to the provision of rule 3.220(m)(1) that "[a]ny person may move for an order denying or regulating disclosure of sensitive matters." (Emphasis added.) Under this provision, a nonparty has "standing to challenge the release of the discovery materials." Doe, 612 So.2d at 550.

Rule 3.220(l)(1) is also a potential basis for protecting the privacy rights of nonparties. It provides:

On a showing of good cause, the court shall at any time order that specified disclosures be restricted, deferred, or exempted from discovery ... or make such other order as is appropriate to protect a witness from harassment, unnecessary inconvenience, or invasion of privacy, including prohibiting the taking of a deposition.

(Emphasis added.) Under both subsection (l) and (m), nonparties may seek to protect their privacy interests: "[T]he broad language of rule 3.220 permits [a nonparty] to show cause for denying the [public] disclosure of ... discovery information ... in [a] criminal proceeding." Doe, 612 So.2d at 551.

In the instant case, however, no motion asserting a privacy claim and no "showing of good cause" was made by any nonparty—or by any party. Instead, the trial court on its own initiative addressed the privacy issues related to nonparties in ruling on Smith's claim regarding his right to a fair trial. This was inconsistent with the clear language of subsections (l) and (m), which contemplates that there be a specific assertion of privacy rights—or some other pertinent basis—as a predicate for the consideration of an order preventing the disclosure of particular information. In the absence of a proper motion pursuant to rule 3.220(l) or (m), the trial court erred in relying on those rule provisions to order that discovery materials provided to Smith be withheld from the public. And even if a proper motion had been filed and considered by the trial court, the challenged portions of the order would nonetheless be erroneous because the trial court failed to make the required determination showing "that closure is necessary to prevent an imminent threat to [the nonparties'] privacy rights." Doe, 612 So.2d at 551.

Finally, we address the trial court's reliance on rule 3.220(e), which provides in pertinent part:

The court on its own initiative or on motion of counsel shall deny or partially restrict disclosures authorized by this rule if it finds there is a substantial risk to any person of ... unnecessary annoyance or embarrassment resulting from the disclosure, that outweighs any usefulness of the disclosure to either party.

(Emphasis added.) The text of this provision makes plain that, unlike subsections (l) and (m), it does not grant the court the authority to prevent public access to discovery materials, but instead authorizes limitation on the availability of discovery between the parties to a proceeding. The focus of this subsection is on weighing the "usefulness of the disclosure to either party." Such a weighing process is relevant only to whether it would be appropriate to deny a party access to otherwise discoverable material. It has nothing to do with whether the public should be denied access to materials provided by the State to a criminal defendant in discovery. Although subsection (e)—unlike subsections (l) and (m)—authorizes the court to act "on its own initiative," that authority may only be exercised to deny a party access in discovery of particular information. Accordingly, rule 3.220(e) was not a proper basis for the challenged portions of the trial court's order under review here.

In sum, on the record before us in this case, there was no basis for the...