IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT,
IN AND FOR LEON COUNTY, FLORIDA
ANABELLE DIAS & ASSOCIATES, P.A.
BRANDON HEPBURN
OMAR BLEECHINGTON
ZACK PETERSON Case Number 2008-CA 2446
TEDRICK CHILDS
WILLIE COLSON, and
ANABELLE DIAS Circuit Civil Division
Petitioners,
v.
LARRY CAMPBELL, as SHERIFF
OF LEON COUNTY, FLORIDA,
Respondent,
________________________________/
PETITIONER REPLY TO LEON COUNTY SHERIFF RESPONSE TO AMENDED PETITION FOR ALTERNATE WRIT IN MANDAMUS
COMES NOW THE Petitioners, ANABELLE DIAS AND ASSOCIATES, P.A., BRANDON HEPBURN, OMAR BLEECHINGTON, ZACK PETTERSON, TEDRICK CHILDS, WILLIE COLSON and ANABELLE DIAS, hereinafter Petitioners and requests file this Reply to the Leon County Sheriff Rein response to the Sheriff. This Honorable Court issued an order to show cause on the respondent, Larry Campbell, in the above styled cause dated July 28,2008. The Sheriff was given twenty(20) days from the Court ordered date and that date fell on August 17, 2008 which would have been on that Sunday and the respondent filed on August 18, 2008, pursuant to rule 1.080 Rules of Civil Procedure.
The petitioner brought fourth cognizable issues that the Sheriff failed to provide or purposely delayed in providing certain documents regarding several public records requests made pursuant to Chapter 119, Florida Statutes.
The petitioner will now reply to the responses that the respondent, Sheriff Larry Campbell, has filed.
THE PETITIONER REPLIES IN THE FOLLOWING:this honorable Court to issue its Alternate Writ in Mandamus against the Respondent, LARRY CAMPBELL, as SHERIFF OF LEON COUNTY, FLORIDA, a Constitutional Officer of the State of Florida, hereinafter the Sheriff, pursuant to Florida Rule of Civil Procedure 1.630 and states:
This is an action for a alternative writ of mandamus.
This Court has jurisdiction over this action pursuant to the Florida Public Records Act, Fla. Stat. 119 and under Section 5 of Article V of the Florida Constitution.
Petitioners are residents of the State of Florida.
Larry Campbell is the Sheriff of Leon County, Florida, and is subject to the Public Records Law as an “Agency” of the State of Florida as that term is defined in section 119.011(2), Florida Statutes and as a “Criminal justice agency” as that term is defined in section 119.011(4), Florida Statutes.
On August 03, 2007, Petitioner, Dias, requested documents and records from the Sheriff by a written request emailed for the Records Manager for the Leon County Sheriff's Office, Henry Eggers to his assistant email address Cassandra Austin. This request was specific to “Any emails within the State Attorney's office of the Second Judicial Circuit from or to Rick Eggers and/or Rick Courtmanche regarding public records request made by defense attorneys, myself and/or my office from January 1, 2006 to present.” The second item requested was “Any emails to Terry Brown and/or Cassandra Austin regarding how to handle public records request made by defense attorneys, myself and/or my office from January 1, 2006.” The records requested are “public record”, as that term is defined by Section 119.011(1), Florida Statutes. A copy of Dias' Public Records Request is attached hereto as Exhibit “A1” and incorporated herein for all purposes.
Dias also requested documents and records from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers, on August 07, 2007, the requested “Public Records” was for emails referencing “Dias Requests” or “Dias” in the subject line from or to anyone within the State Attorney's Office to and/or from anyone within the LCSO. The records requested are “public record”, as that term is defined by Section 119.011(1), Florida Statutes. A copy of Dias Public Records Request is attached hereto as Exhibit “A2” and incorporated herein for all purposes.
On August 10, 2007, August 14, 2007, and August 22, 2007, Dias requested an update on the above mentioned records requests. Ms. Cassandra Austin replied on August 10, 2008 stating that “we will have this information by the end of next week.” On August 22, 2007, a status update was requested from Records Manager for the Leon County Sheriff's Office, Henry Eggers. To this date neither of the above two records requests has been produced by the Sheriff. A copy of these communications is attached hereto as Exhibit “A3” and incorporated herein for all purposes.
Dias requested documents and records from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers, on February 20, 2008, the requested “Public Records” was for “any emails to and/or from anyone (other than to or from our office) at the Leon County Sheriff's Office and/or the Leon County Jail in regards to the following individuals: Omar Bleechington SPN 137840 from 9/18/2006 19:30:25 PM to present; Willie Colson SPN 158335 from 11/04/2007 01:25:17 AM to present; and/or Zack Petterson SPN 33366; from 07/04/2006 22:58:51PM to present. Any emails referring to cell K.29 and/or Robert Wilson SPN 192293 from 07/14/2007 12:10:53 to present.” The records requested are “public record”, as that term is defined by Section 119.011(1), Florida Statutes. A copy of Dias Public Records Request is attached hereto as Exhibit “B1” and incorporated herein for all purposes.
Records manager for the Leon County Sheriff's Office, Henry Eggers, responded to the email request on February 20, 2008 by stating that he could not provide a time when the request would be ready for pick-up because “LCSO does not have any system in place which would provide the information you have asked for. Without names of specific LCSO staff you think may have sent e-mail(s) I can only send out an e-mail to our distribution e-mail lists (which I will do today) and ask for anyone who has sent e-mail(s) concerning your request to provide a copy to me.”Public Records Request is attached hereto as Exhibit “B2” and incorporated herein for all purposes.
On February 20, 2008, Dias also made a records request for copies of policies regarding what attorneys can and can not give their clients after a client had envelopes confiscated by jail staff as contraband. ”Public Records Request is attached hereto as Exhibit “B3” and incorporated herein for all purposes.
Dias requested documents and records from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers, on March 06, 2008, any documents to and from Lt. Leod Davis in reference to attorney, visits, and legal mail from Jan. 01, 2008 to present. The records requested are “public record”, as that term is defined by Section 119.011(1), Florida Statutes. A copy of Dias Public Records Request is attached hereto as Exhibit “B4” and incorporated herein for all purposes. In the same email Dias requested an update of her previous requests especially for emails to and from the LCSO and SAO in regards to discovery requests. Public Records Request is attached hereto as Exhibit “B4” and incorporated herein for all purposes.
Records manager for the Leon County Sheriff's Office, Henry Eggers, responded to the email request on March 10, 2008, by stating the request for Lt. Davis e-mails “should be ready this week for pick-up.” Dias have yet to receive such emails to this date.
Dias requested documents and records from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers, on March 10, 2008. The requested “Public Records” was for “copies of any and all emails within any employees of the LCSO 05/15/2006 19:44:55 to present in reference to Inmate Brandon Hepburn as well as attorney visits from Anabelle Diaz (also spelled Dias). Public Records Request is attached hereto as Exhibit “C1” and incorporated herein for all purposes. On April 2, 2008, Dias sent an email to LCSO records asking for the status of this request. Public Records Request is attached hereto as Exhibit “C2” and incorporated herein for all purposes
On March 11, 2008, Dias requested documents and records from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers,
in reference to records regarding to a tazing incident between Lt Leod Davis and Petitioner Bleechington. Public Records Request is attached hereto as Exhibit “D” and incorporated herein for all purposes.
On April 02, 2008, Dias requested to be informed on the status of the request that was sent on March 6, 2008 and March 10, 2008. To this date no response has been received and the status of the records request remains unfulfilled.
On April 7, 2008, Dias requested on behalf of Petitioner Hepburn, copies of the CAD notes and Radio Transmissions for LCSO case number 06-080073 from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers. Public Records Request is attached hereto as Exhibit “E1” and incorporated herein for all purposes.
On April 7, 2008, Dias requested on behalf of Petitioner Colson, copies of certain records in LCSO case number 07-251052 via a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers. Public Records Request is attached hereto as Exhibit “E2” and incorporated herein for all purposes.
On April 8, 2008, Dias requested on behalf of Petitioner Colson, copies of certain documents in reference to a Rosemita Pierre via a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers. Public Records Request is attached hereto as Exhibit “E3” and incorporated herein for all purposes.
On April 14, 2008, Dias requested again on behalf of Petitioner Hepburn, copies of the CAD notes for LCSO case number 06-080073. Public Records Request is attached hereto as Exhibit “E4” and incorporated herein for all purposes.
On April 17, 2008, Dias requested on behalf of Petitioner Colson, copies of all the records in reference to LCSO case number 07-251052 from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers. Public Records Request is attached hereto as Exhibit “E4” and incorporated herein for all purposes.
On April 21, 2008, Dias requested on behalf of all Petitioners an update on her still unanswered August 2007 records requests. Public Records Request is attached hereto as Exhibit “E5” and incorporated herein for all purposes.
On this date April 27, 2008, Dias requested to be informed of the status of emails of the requested documents and records on February 20, 2008, & March 10, 2008. This request included possible search methods to be utilized by the Records Manager in order to properly obtain the requested documents.
On April 28, 2008, Dias requested on behalf of Petitioner Hepburn, a copy of all text or emails from LCSO cars regarding his case from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers. Public Records Request is attached hereto as Exhibit “E6” and incorporated herein for all purposes.
On May 3, 2008, Dias requested documents and records from the Sheriff by a written request emailed to Rebecca Gay, Supervisor of Communications for the Leon County Sheriff's Office. This request was a duplicate request because there had been no response from the Records Manager, Henry Eggers. Ms. Gay responded by stating “I am unable to process this request. All records requests must be made through our records custodian Mr. Rick Eggers.” A copy of these communications is attached hereto as Exhibit “F1” and incorporated herein for all purposes. Ultimately, a motion for subpoena duces tecum had to be filed and a hearing was held on July 17, 2008 where Judge Kathleen Dekker granted the motion for the previously requested documents and records.
Dias requested documents and records on behalf of Mr Colson from the Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers, on May 7, 2008, the requested “Public Records” was in reference to 07-251052. The request was for all LCSO records in reference to 07-251052; copies of any policy applicable to retention of Radio Transmissions; radio transmissions for November 2, 2007 from 15:00PM to 23:00PM; when the Radio transmissions for 07-251052 were recycled, destroyed or became no longer available for copy; as well as any reason why the LCSO believes that Mr Colson and his attorney of records would not be entitled to a copy of the CAD notes and Radio Transmissions upon written requests despite having filed a proper Demand for Discovery. Public Records Request is attached hereto as Exhibit “F3” and incorporated herein for all purposes.
On May 15, 2008, Dias requested to be informed on the status of the emails of the requested documents and records on February 20, 2008, March 10, 2008 and April 27, 2008. To this date no response has been received and the status of the records request remains unfulfilled.
On May 15, 2008, Dias requested an update for records request for Lt Davis emails which should have been ready sometime in March 2008. Public Records Request is attached hereto as Exhibit “F4” and incorporated herein for all purposes.
On May 15, 2008, Dias made another records request on behalf of Willie Colson in LCSO case number 07-251052 (Public Records Request is attached hereto as Exhibit “F5” and incorporated herein for all purposes); Brandon Hepburn in LCSO 06-080073; 06-105405; 06-083572; and agency ORI#370000 (Public Records Request is attached hereto as Exhibit “F6” and incorporated herein for all purposes). Dias also requested an update on an outstanding records request sent on February 20, 2008. Public Records Request is attached hereto as Exhibit “F7” and incorporated herein for all purposes.
On May 27, 2008, Dias sent a formal letter to Records Manager, Henry Eggers, detailing the various outstanding requests. Also included in the letter were duplicate requests for previously submitted records requests that had gone unanswered as well as a new request for “ALL Leon County Sheriff's Policies and/or Procedures and/or Rules....” A copy of this letter was attached with the previous petition.
On May 27, 2008, Dias sent unanswered records request on behalf of Brandon Hepburn to LCSO Attorney Alan Griner. Public Records Request is attached hereto as Exhibit “F8” and incorporated herein for all purposes.
On June 4, 2008, Dias sent an email to Cassandra Austin requesting that LCSO respond to all unanswered records requests and comply with the subpeona duce tecum served on behalf of petioner Hepburn. Public Records Request is attached hereto as Exhibit “G” and incorporated herein for all purposes.
On June 10, 2008, Dias sent an email to Henry Eggers in reponse to request asking that the records Cassandra Austin requesting that LCSO respond to all unanswered records requests and comply with the subpeona duce tecum served on behalf of petioner Hepburn. Public Records Request is attached hereto as Exhibit “G” and incorporated herein for all purposes.
Dias requested documents and records from Sheriff by a written request emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers, on June 4-6, 2008, with a follow up email on the status of this request on June 06, 2008. A copy of these communications is attached hereto as Exhibit “H1; H2; H3; H4; H5” and incorporated herein for all purposes.
On this date June 19-20, 2008, Dias request to inspect records from Sheriff by written requests emailed to the Records Manager for the Leon County Sheriff's Office, Henry Eggers, with an email requesting a follow up on June 20, 2008 and June 24, 2008.A copy of these communications is attached hereto as Exhibit “I1; I2; I3; I4; I5; I6; I7; I8” and incorporated herein for all purposes. Dias also requested to inspect LCSo Records Custodian log showing all public records request made by her firm from January 1, 2007, to present. As of today, Dias has still not received the documentation requested.
Records manager for the Leon County Sheriff's Office, Henry Eggers, responded to the email request on June 20, 2008 and June 24, 2008 by stating “Due to the nature of your various requests it 's expected that extensive staff time will be required to gather the records and then review the records for exempt information as required by Law. Also, at this time due to the unknown quantity of records which meet your requests we are unable to provide an estimate of the time and/or costs associated with completing your requests."
On June 20, 2008, Dias requested on behalf of Mr Bleechington, copies of Internal Affair investigation Case#08-59234 by written requests Captain Coughlin of the Leon County Sheriff's Office. A copy of these communications is attached hereto as Exhibit “J” and incorporated herein for all purposes.
On June 20, 2008, Dias also requested on behalf of Mr Hepburn, that we be allowed to inspect certain records previously asked by Dias as well as a copy of all of his jail calls. A copy of Hepburn Jail calls to his attorney office is the only items that was provided to date. A copy of these communications is attached hereto as Exhibit “K” and incorporated herein for all purposes.
On June 24, 2008, Dias email Henry Eggers requesting that Mr Bleechington and Mr Hepburn be allowed to inspect the previous records they had requested as well as other records including an internal affair report, if one exists, or any other documents which was added to Officer Baker's file in the last 12 months. A copy of these communications is attached hereto as Exhibit “L” and incorporated herein for all purposes.
On June 25, 2008, Dias received an email stating that the Jail calls for Mr Hepburn were ready to be picked up. The undersigned was out of the country and was unable to review the CD until July 25, 2008. The CD contains only phone calls from Mr Hepburn to his attorney's office. A copy of these communications is attached hereto as Exhibit “M” and incorporated herein for all purposes.
On July 8, 2008, Dias emailed Cassandra Austin and Henry Eggers requesting yet again that she be provided a copy of documents kept by the LCSO in reference to our firm's attorney client visits as well as an update as to when to expect previously records request. A copy of these communications is attached hereto as Exhibit “N1 & N2” and incorporated herein for all purposes.
On July 9, 2008, Dias emailed Henry Eggers to authorize payment for the records previously requested. A copy of these communications is attached hereto as Exhibit “N3 & N4” and incorporated herein for all purposes.
On July 24, 2008, Dias emailed Henry Eggers at the Leon County Sheriff's Office and requested that they inform our office whether or not they intended to comply with our many outstanding records request dating as far back as August 3, 2007. Mr Eggers replied via email
in part, as follow: “ Therefore, since your 2nd e-mail today provided authorization, we will start the process of pulling and reviewing this information and you will be notified once we have completed. Also, as was explained in the last e-mail concerning this request, it requires extensive staff time to pull the information and review it for exempt information; it is not a request that "could be quickly and easily located” Please provide a copy of any request which you believe LCSO has not responded to so that “ A copy of these communications is attached hereto as Exhibit “O1 & O2” and incorporated herein for all purposes.
ARGUMENT:
The State of Florida has what has been described as the most expansive open government and public records laws in the country. This openness and accessibility is often referred to as government “transparency.” This is based on the preposition that if an agency can survive public scrutiny, then we are all assured that they are acting in the best interest of its citizens. Governor Charlie Christ in his first Executive Order created the Office of Open Government to assure full and expeditious compliance, with Florida’s open government and public records laws and provided training to all executive agencies under his purview on transparency and accountability.
Section 119.011(1), F.S., defines “public records” to include “All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. “The form of the record is irrelevant; the issue is whether the record is made or received by the public agency in connection with the transaction of official business that is used to perpetuate, communicate or formalize knowledge. “Public Records” also include computer records as well as paper documents, tape recordings, and other more tangible materials. Information such as electronic calendars, databases, and word processing files stored in agency computers, can all constitute public records because records made or received in the course of official business and intended to perpetuate, communicate or formalize knowledge of some type, fall within the scope of Ch. 119, F.S. Therefore, “e-mail” messages made or received by agency employees in connection with official business are public records are subject to disclosure in the absence of an exemption as well as subject to the statutory restrictions on destruction of public records.
Article I. section 24, of the Florida Constitution establishes a constitutional right of access to any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf except those records exempted pursuant to Art. I, s. 24. Fla. Const., or specifically made confidential by the Constitution. There is no such a thing as “unfinished business” or “draft” exception to Chapter 119, F.S. The fact that the records are part of a preliminary process is irrelevant such records are subject to disclosure unless the Legislature has specifically exempted the documents from inspection or has otherwise expressly acted to make the records confidential.
Section 119.07(l)a) F.S states that- “Every person who has custody of a public record shall permit the record to be inspected and by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision the custodian of the public records. The “reasonable conditions” referred to above does not include anything that would hamper or frustrate, directly or indirectly, a person’s right of inspection and copying. Since most records kept by the Sheriff's Office are public records, the record must be released unless there is an exemption to prevent its release.
Chapter 119, F.S., does not authorize an agency to require that the person requesting the records be required to provide writing documentation as a precondition to allow inspection or copying of public records. Furthermore the agency may not require the requestor to disclose his or her name, address, telephone number nor show a “special interest” or “legitimate interest” in public records before being allowed to inspect or copy same. The fact that a person seeking access to public records wishes to use them in a commercial enterprise does not alter his or her rights under Florida’s public records law.
The term “custodian” for purposes of the Public Records Act refers to all agency personnel who have it within their power to release or communicate public records.
Therefore the fact that a particular record is also maintained by another agency does not relieve the Sheriff's office of the obligation to permit inspection and copying in the absence of any applicable statutory exemption. In fact, there are instances when a public record may be available in the hands of one agency, but exempt in another.
Furthermore, in the absence of a statutory exemption, a custodian can not refuse to provide records because the request might be viewed as overbroad and must produce the records regardless of the number of documents involved or possible inconvenience.
Also, the Public Records Act does not contain a specific time limit for compliance, the Florida Supreme Court has stated that the only delay in producing records permitted under 119, F.S., “is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.” While an agency may restrict the hours during which public records may be inspected to those hours when the agency is open to the public, a custodian is not authorized to establish an arbitrary time period during which records may or may not be inspected.
In addition, the Sheriff's Office is required under 119, F.S. To state the basis for its refusal to release an exempt record. Section 1197(l)(c) F.S.. states that a custodian of a public record who contends that a record or part of a record is ‘exempt from inspection must state the basis for the exemption, including the statutory citation to the exemption.
Furthermore. Even if the Sheriff's Office refused to allow inspection and copying of an entire public record on the grounds that a portion of the record contains information which is exempt from disclosure; 119.07, FS. requires the custodian of the record to delete or redact only that portion or portions of the record for which an exemption is asserted and to provide the remainder of the record for examination.
While the Sheriff's office is allowed to charge a fee for production of the records, providing access to public records is not considered a profit-making or revenue-generating operation and copies are limited to the actual cost of duplication of the record.. The phrase “actual cost of duplication” is defined to mean the cost of the material and supplies used to duplicate the public record, but does not include the labor cost associated with such duplication. Section 1 19.07(4)(d), F.S., authorizes the imposition of a special service charge when the nature of volume of public records to be inspected is such as to require extensive use of information technology resources. or extensive clerical or supervisory assistance, or both. The charge must be reasonable and based on the labor or computer costs actually incurred by the agency. The Sheriff's office should have an established policy as to what efforts constitute extensive clerical assistance. Court's have held that an agency is authorized to require the payment of an advance deposit before proceeding with the effort and cost of preparing copies requested but only if the facts warrant it. However, Section 1l9.07 states that the custodian of public records shall furnish a copy of the record “upon payment of the fee prescribed by law.
Article 1, section 24(c), of the Florida Constitution authorizes the Legislature to enact general laws creating exemptions provided that such laws “shall state with specificity the public necessity justifving the exemption and shall be no broader than necessary to accomplish the stated purpose of the law.” These exemptions are strictly construed to comply with the general purpose of Ch. 119. which is to open public records to allow Florida's citizens to discover the actions of their government.” There is no exemptions to exclude inamtes, criminal defendants and/or their attorney's from the definition of citizen's.
There is a difference between records the Legislature has determined to be exempt from the Public Records Act and those that the Legislature has determined to be exempt and confidential. If records are not made confidential but are simply exempt from the mandatory disclosure requirements in s 119 07(1), F S , the agency is not prohibited from disclosing the documents in all circumstances - the option is with the custodian of the records. Not the State Attorney's Office or FDLE. The option is with the custodian of the records. Furthermore, once an agency has gone public with information which could have been previously protected from disclosure under Public Records Act exemptions, no further purpose is served by preventing full access to the desired information.
Also 119 does create an optional exemption for active criminal investigative and intelligence information, arrest and crime reports are generally considered to be open to public inspection. This is because 119.07 l(2)(c ), F.S., only exempts active criminal intelligence information and active criminal instigative information from public inspection and in order to be exempt, the information must be both “active” and constitute either “criminal investigative” or “criminal intelligence” information. The active criminal investigative and intelligence exemption is limited in scope and its purpose is to prevent premature disclosure of information when such disclosure could impede an ongoing investigation or allow a suspect to avoid apprehension or escape detection.. It should be noted that this exemption does not prohibit the disclosure of the information by the criminal justice agency. The information is only exempt from and not subject to the mandatory inspection requirements in s. 119.07(1), F.S.
In order for the Sheriff to refuse to comply with the request under an active criminal investigative or intelligence information exemption, the “Criminal intelligence information” must be information concerning “an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.” Section 119.01 1(3)(a), F.S. Criminal intelligence information is considered “active” as long “as it is related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities” or “is directly related to pending prosecutions or appeals.” Section 119.01 l(3)(d), F.S.
“Criminal investigative information” is defined as information relating to “an identifiable person or group of person compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance.” Section 119.0 11(3)(b), F.S. Such information is considered “active” as long “as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future” or “is directly related to pending prosecutions or appeals.” Section 119.01 l(3)(d), F.S.
However, despite the active criminal investigation/information permissible exemption, Section 119.01 l(3)(c), F.S., states that the following information is not criminal investigative or criminal intelligence information:
• The time, date, location and nature of a reported crime;
• The name, sex, age, and address of a person arrested (if not a juvenile records) or
• The name, sex, age and address of the victim of a crime, except for a victim of a sexual offense or of child abuse, as provided in s. 119.0171 (2)(h), F.S.;
• The time, date and location of the incident and of the arrest;
• The crime charged;
• Documents given or required to be given to the person arrested, except as provided in s. 119.071(2)(h), F.S.
• Informations and indictments except as provide in s. 905.26, F.S.
In addition and except in limited circumstances, once the material has been made available to the defendant as part of the discovery process in a criminal proceeding, the material is ordinarily no longer considered to be exempt criminal investigative or criminal intelligence information. The only circumstances where criminal intelligence or investigative information can retain that status even though it has been made available to the defendant are:
• If the information would reveatl the identity of a victim of a sexual offense
• or child abuse pursuant to s. 1l9.071(2)(h), F.S.; or
• If a court order has been issued finding that release of the information prior to trial would: be defamatory to the good name of a victim or witness or jeopardize the safety of a victim or witness; and o impair the ability of a state attorney to locate or prosecute a co-defendant.
In all other cases, material which has been made available to the defendant cannot be deemed criminal investigative or intelIigence information and must be open to inspection unless some other exemption applies. In all the cases where the Sheriff had claim the exemption above, the defendants had filed a Notice of Discovery and the State had already filed their answer prior to the 119 request from the Petitioners.
Furthermore, except where specific exemptions apply, criminal history information is a public record. Section 943 ..053(3), F.S., states that criminal history information compiled by the Criminal Justice Information Program of the Florida Department of Law Enforcement from intrastate sources shall be provided to law enforcement agencies free of charge and to persons in the private sector upon payment of fees.
Therefore, all the documents requested for the Petioners with pending prosecutions, shoul have been provided for inspection since documents given or required to be given to the person arrested, except as provided in s. 119.071(2)(h), F.S. Do not fall under the active criminal investigation/information discretionary exemption. This is because also, once upon a time, Florida followed the general American rule and allowed little or no discovery to a citizen accused of crime. Today, the rule is the opposite: A Floridian charged with crime enjoys perhaps the most liberal and generous discovery known to the English-speaking world. There is, the minimal, constitutionally-mandated disclosure referred to as “Brady material,” the Florida’s equivalent of the federal Freedom of Information Act, referred to as the “Sunshine Law,” and the comprehensive and concatenous discovery scheme embodied in Fla. R. Crim. P. 3.220. Fla. R. Crim. P. 3.220 grants a criminal defendant almost all the discovery devices civil litigants have traditionally enjoyed. A defendant’s entitlement to Brady-type disclosure is constitutional in nature, grounded in the Due Process Clauses of the Fifth and Fourteenth Amendments. As such, the state is powerless to condition the grant of such discovery on reciprocity of discovery. A defendant has a right to Brady material quite apart from the terms and conditions of Fla. R. Crim. P. 3.220. Indeed Fla. R. Crim. P. 3.220 recognizes that fact, providing at subpart (b)(4) for disclosure to a criminal defendant of “any material informtion within the state’s possession or control which tends to negate the guilt of the accused as to the offense charged.” This is inadvertently narrower than the Brady doctrine which requires disclosure of favorable evidence “material either to guilt or to punishment.” However, F.. R. Crim. P. 3.220(b)(4) is intended to be contiguous with Brady, and should be so treated. “[This language was] added to emphasize that constitutionally-required Brady material must be produced regardless of the defendant’s election to participate in the discovery process.” See So. 2d 1097, 1105 (Fla. 1989) “Brady is not a cliscovery rule, but a rule of fairness and minimum prosecutonal obligation.” United States v. Beasley, 576 F. 2d 626 (5th Cir. 1978). Common examples of Brady material include: a witness’s criminal record, United States v. Strifler, 851 F. 2d 1197 (9th Cir. 1988); witness statements favorable to the defense, Jackson v. Wainwright, 390 F. 2d 288 (5th Cir. 1968); the existence of witnesses favorable to the defense, United States ex rel. Meers v. Wilkins, 326 F. 2d 135 (2d Cir. 1964); psychiatric reports showing the defendant’s insanity at the time of the offense, Ashley v. Texas, 319 F. 2d 80 (5th Cm. 1963); specific evidence that detracts from the force or probative value of prosecution evidence, Thomas v. United States, 343 F. 2d 49 (9th Cir. 1965); promises of immunity to a prosecution witness, Giglio v. United States, 405 U.S. 150(1972); prior contrary statements of a prosecution witness, Giles v. Maryland, 386 U.S. 66 (1967). Failure to disclose material exculpatory or impeachment evidence contained in the narrative portion of a polygraph examination report is a Brady violation. Jacobs v. Singletary, 952 F. 2d 1282 (11th Cir. 1992); United States v. Patino, 991 F. Supp. 1449 (M.D. Fla. 1997). Florida courts have held that a defendant making a Brady claim must establish: 1 That the prosecution possessed evidence favorable to the defendant (this may be impeachment evidence); 2. That the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; 3.That the prosecution suppressed the favorable evidence; and 4.That had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. Jones v. State, 709 So. 2d 512, 519 (Fla. 1998)/ The fourth and final requirement that the putative Brady violation actually undermines confidence in the outcome of the proceedings is often dispositive. In Steinhorst v. State, 574 So. 2d 1075 (Fla. 1991), the defendant alleged that the prosecution withheld summaries of witness interviews taken by the Florida Department of Law Enforcement. The Florida Supreme Court has receded from so much of the Mendyk opinion as to hold that a state attorney is responsible for providing access to the public records of other agencies in response to a request under Fla. Stat. § 119. See Lopez v. Singletary, 634 So. 2d 1065 (Fla. 1993) (citing Hoffman v.. State, 613 So. 2d 405 (Fla. 1992)). The Brady analysis in the Mendyk opinion, however, remains the law and the Petitioners are not claiming that the State Attorney's Office is reposnsible to insure that the Sheriff's Office comply with any of the Petitioners public records request despite the fact that the Sheriff's Office states that it will comply with the requirement of Chapter 119 if the prosecutor on the case agrees to the release of the records requested. The Prosecutors are not the custodian of the Leon County Sheriff's records and their willingness to consent with the Sheriff's compliance of the law are not at issue and should not be accepted by this Court as a valid defense to the Sheriff's willfull refusal to allow inspection of the records requested under the provisions of the laws of this State.
WHEREFORE, the Petitioners, having all demonstrated a prima facie entitlement to the
Writ, requests this Court advance this matter before all other actions on the docket is required by Section 119.11, Florida Statues, and issue forthwith its Alternative Writ of Mandamus commanding the Sheriff to do the following:
A. Produce all of the “Public Records” requested by Petitioners; OR IN THE ALTERNATIVE
B. Require the Sheriff to file its Answer and Defenses to this Petition within a time certain;
and
C. Expeditiously hear those issues which are contested, advancing this matter before all others on the docket, and upon proper proof by Dias of the Sheriff default in it obligation under Chapter 119, Laws of Florida, let this Court's Writ then issue compelling the production of the public records by the Sheriff, on a date and time certain, and
INCLUSIVE OF SUCH ALTERNATIVES
D. Require the Sheriff to produce the public records at NO COST to the petitioners;
E. Award Petitioners the costs of this action and a reasonable attorney's fee pursuant to section 119.12, Florida Statutes.
F. And grant such other further relief as this Court deems necessary or appropriate
Respectfully Submitted,
________________________ Anabelle Dias,
Florida Bar No. 162604
1226 E. 7th Ave.
Tallahassee, Florida 32303
Ph: 850-422-3427
Fax: 850-893-9901
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