STATE ATTORNEY'S OFFICE OF THE 17TH JUDICIAL CIRCUIT v. CABLE NEWS NETWORK, INC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

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
and 4D18-1336

[August 8, 2018]

ON APPELLEES’ MOTION FOR ATTORNEY’S FEES

Consolidated appeals from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. CACE 18-
004429 (09).

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.

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GROSS, J.

Various media appellants (the “Media”) have filed a motion for appellate
attorney’s fees under the Public Records Act, Chapter 119, Florida Statutes
(2018). In a separate opinion, we affirmed the circuit court order requiring
production of certain video footage taken by security cameras at Marjory
Stoneman Douglas High School. See State Attorney’s Office v. Cable News
Network, Inc., No. 4D18-1335 (Fla. 4th DCA July 25, 2018). The motion seeks
to recover fees from appellants, the State Attorney’s Office of the Seventeenth
Judicial Circuit and the School Board of Broward County.

We deny the motion for attorney’s fees because neither defendant “unlawfully
refused to permit a public record to be inspected or copied” within the meaning
of section 119.12(1)(a), Florida Statutes (2018).

Section 119.12 provides:

(1) If a civil action is filed against an agency to enforce the provisions
of this chapter, the court shall assess and award the reasonable
costs of enforcement, including reasonable attorney fees, against the
responsible agency if the court determines that:
(a) The agency unlawfully refused to permit a public record to be
inspected or copied; and
(b) The complainant provided written notice identifying the public
record request to the agency’s custodian of public records at least
5 business days before filing the civil action. . . .

(Emphasis added).

This section “is designed to encourage public agencies to voluntarily comply
with the requirements of chapter 119, thereby ensuring that the state’s general
policy is followed. If public agencies are required to pay attorney’s fees and costs
to parties who are wrongfully denied access to the records of such agencies, then
the agencies are less likely to deny proper requests for documents.” New York
Times Co. v. PHH Mental Health Servs., Inc., 616 So. 2d 27, 29 (Fla. 1993). “[A]
prevailing party is entitled to statutory attorney’s fees under the Public Records
Act when the trial court finds that the public agency violated a provision of the
Public Records Act in failing to permit a public record to be inspected or copied.”
Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120,
128 (Fla. 2016).

The School Board’s objection to the video footage was not “unlawful” because
it was based on the “security plan” exemption from disclosure contained at
section 119.071(3)(a), Fla. Stat. (2018). As we wrote in State Attorney’s Office:

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 Because the footage from the surveillance cameras “relates directly”
to the security system at Douglas, including both its capabilities and
its vulnerabilities, the footage is confidential and exempt from
disclosure to the public under sections 119.071(3)(a) and
281.301(1), unless an exception to the exemption applies.

The School Board’s refusal to permit disclosure was required by statute; it could
not therefore be “unlawful” within the meaning of section 119.12(1)(a). Only a
“court of competent jurisdiction” may determine whether the “good cause”
statutory exception applied to require disclosure. § 119.071(3)(a)3, Fla. Stat.
(2018). The School Board’s conduct did not become “unlawful” because it
pursued this unsettled area of the law on appeal.

The Media is not entitled to an award of fees against the State Attorney
because the State Attorney was never the custodian of the public records here
at issue. The State Attorney intervened in the action to give voice to the criminal
investigation information exemption to disclosure. The State Attorney did not
violate a provision of the Public Records Act in failing to permit a public record
to be inspected or copied because the State Attorney was never the agency
responsible for maintaining the public record or complying with Public Records
requests.

The motion for attorney’s fees is denied.

CONNER and KLINGENSMITH, JJ., concur.

* * *

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