DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Petitioner,
v.
DACOBY RESHARD WOOTEN and
THE PALM BEACH POST,
Respondents.
No. 4D18-2636
[November 28, 2018]
Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Cheryl A. Caracuzzo, Judge; L.T.
Case No. 50-2015-CF-011635-AXXX-MB.
Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for petitioner.
Carey Haughwout, Public Defender, and Christine Geraghty, Assistant
Public Defender, West Palm Beach, for respondent Dacoby Reshard
Wooten.
L. Martin Reeder Jr. of Atherton McAuliffe & Reeder, PA, West Palm
Beach, for respondent The Palm Beach Post.
LEVINE, J.
The state asks us to prevent the disclosure of information that it had
redacted from search warrants and warrant applications related to this
pending criminal prosecution. We deny the petition and require an
unredacted disclosure of the search warrants and applications to the
defendant. Due process mandates it.
We also deny the petition as to the other portion of the order and require
that there be an unredacted disclosure to the public and third parties. As
to the public disclosure, first, the state did not preserve any argument
regarding section 119.071, Florida Statutes (2018); second, this case does
not involve a public records request under section 119.071; third, the trial
court did not abuse its discretion in finding that the state did not meet its
burden to justify closure; and finally, there is a common law “right to
access” judicial records where the state has failed to demonstrate a
compelling governmental interest in non-disclosure.
Because the requirements for certiorari review have not been met, we
deny the petition and require the unredacted disclosure of the search
warrants and the accompanying applications to the defendant and the
public.
The defendant allegedly committed a murder, shot at a witness to the
murder, and then fled the scene. Law enforcement obtained search
warrants authorizing electronic tracking of the defendant’s cell phone and
the cell phone of a friend with whom the defendant allegedly was hiding.
The order authorizing the search warrants stated that the warrants and
supporting documents would be “sealed until further Order of this Court.”
Law enforcement apprehended the defendant at the friend’s apartment.
The search warrants, applications, affidavits, return, and inventory were
not filed with the clerk of court as required by chapter 933, Florida
Statutes. 1
The defendant sought discovery regarding cell phone tracking,
including requests for all warrants relating to his cellphone. The state
eventually filed with the court unredacted versions of the warrant
documents under seal. The state sought to provide only redacted versions
of the search warrants and applications to the defense and to prevent
dissemination to third parties. The redacted information related to the
tracking of cell phones.
The defendant moved to unseal the documents. The Palm Beach Post
filed a motion to intervene seeking to vacate the order limiting disclosure
of the redacted documents and requesting public access to the unredacted
documents.
The trial court held a hearing on the motion to unseal and the motion
to intervene. The trial court explained that during a prior hearing it treated
the state’s request to limit the unsealing as a motion to determine
confidentiality of court records under Florida Rule of Judicial
Administration 2.420. The trial court recognized that, under rule 2.420,
warrants are court records. Rule 2.420(c)(6) exempts warrants and
supporting documents from disclosure only until execution of the warrant
or until it is determined that execution is not possible.
1The record does not explain why the executed search warrants and related
documents were not immediately filed with the court as required by law.
2
The state argued that “investigative techniques” should be deemed
confidential to “protect a compelling governmental interest,” referring to
rule 2.420(c)(9)(A)(iii). The trial court stated that it had reviewed the
unredacted materials in camera and concluded that the state’s reasons for
restricting disclosure did not amount to a compelling governmental
interest.
The trial court granted the motion to unseal and ordered the
unredacted records unsealed and made open to the public by a certain
date. The trial court granted the Post’s motion to intervene and denied the
Post’s motion to unseal as moot in light of the court granting the
defendant’s motion. The state petitioned this court for certiorari review.
This court stayed the release of the unredacted documents pending our
certiorari review.
The state argues that the trial court departed from the essential
requirements of law by ordering the release of privileged surveillance
techniques that are not subject to public disclosure under section
119.071(2)(d), Florida Statutes. The state contends that disclosure of
“privileged surveillance techniques” will irreparably harm the state
because it “will inform fugitives how to avoid lawful surveillance and to
evade capture.” The state alternatively argues that, even if the defendant
is entitled to the unredacted documents, this court should find the
unredacted documents are exempt from public disclosure.
To invoke certiorari jurisdiction, the state must show that the order
complained of constitutes a departure from the essential requirements of
law and causes the state material harm that cannot adequately be
remedied on appeal. State v. Pettis, 520 So. 2d 250, 252 (Fla. 1988). This
extraordinary writ is reserved for situations where there is a “violation of
a clearly established principle of law resulting in a miscarriage of justice.”
Id. at 254. We find that the trial court did not depart from the essential
requirements of law in the present case.
I. PRESERVATION, JURISDICTION, AND STANDARD OF REVIEW
Initially, the state did not preserve the arguments raised in its petition.
During the proceedings below, the state did not specifically assert a
“surveillance technique privilege” under section 119.071(2)(d) or cite to any
chapter 119 exemption. In fact, the state did not even use the term
“surveillance.” During the hearing, the trial court discussed Florida Rule
of Judicial Administration 2.420. The state argued that “investigative
techniques” should be deemed confidential to “protect a compelling
3
governmental interest,” referring to rule 2.420(c)(9)(A)(iii). 2 The state did
not argue any other grounds for closure under rule 2.420. Further, at no
point did the state put the trial court on notice that it was in any way
relying on section 119.071. The state did not cite this statute, track any
language from the statute, or cite any cases involving that statute. See
Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985) (stating that in order to
preserve an issue for appellate review, the specific legal ground or
argument relied upon for appeal must have been presented to the trial
court).
Even if the state’s arguments were preserved, the standard of review for
all of the issues on appeal is abuse of discretion. “[I]t is within the sound
discretion of the trial judge to grant or limit criminal discovery.” State v.
Kuntsman, 643 So. 2d 1172, 1173 (Fla. 3d DCA 1994). “[T]he decision as
to access is one best left to the sound discretion of the trial court, a
discretion to be exercised in light of the relevant facts and circumstances
of the particular case.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599
(1978). See also Miami Herald Pub. Co., a Div. of Knight-Ridder
Newspapers, Inc. v. Morphonios, 467 So. 2d 1026, 1029 (Fla. 3d DCA 1985)
(“The trial court, upon ruling that a closure is warranted, must make
findings of fact and must extend its order no further than the
circumstances require.”); Smithwick v. Television 12 of Jacksonville, Inc.,
730 So. 2d 795, 798 (Fla. 1st DCA 1999) (applying abuse of discretion
standard in ruling on motion to seal). The public right to access judicial
records or documents under common law is also reviewed for abuse of
discretion. See Nixon, 435 U.S. at 599.
II. DISCLOSURE TO DEFENDANT
The defendant sought unredacted copies of the search warrants and
applications. Florida Rule of Criminal Procedure 3.220, which governs
discovery, provides that the state must disclose “whether there has been
any search or seizure and any documents relating thereto.” Fla. R. Crim.
2 Although not explicitly argued, there is a difference between “surveillance
techniques” and “investigative techniques.” Most criminal cases include
“investigative techniques” of some variety, while “surveillance techniques” are
less frequently utilized and are more particularized. See United States v. Ramirez-
Encarnacion, 291 F.3d 1219, 1222 n.2 (10th Cir. 2002) (stating that traditional
investigative techniques include “(1) standard visual and aural surveillance; (2)
questioning and interrogation of witnesses or participants (including the use of
grand juries and the grant of immunity if necessary); (3) use of search warrants;
and (4) infiltration of conspiratorial groups by undercover agents or informants”
as well as “[p]en registers and trap and trace devices”).
4
P. 3.220(b)(1)(H). Because the search warrants and applications were
documents related to a search or seizure, the state was required to provide
them to the defendant. See id.
“Florida’s criminal discovery rules are designed to facilitate a truthful
fact-finding process and to prevent surprise and trial by ambush. To
ensure full and fair discovery, parties must both comply with the technical
provisions of the discovery rules and adhere to the purpose and spirit of
those rules in the criminal and civil contexts.” Wilcox v. State, 143 So. 3d
359, 375-76 (Fla. 2014) (citations omitted); see also Williams v. Florida,
399 U.S. 78, 81 (1970) (noting that “Florida law provides for liberal
discovery by the defendant against the State”). A defendant has a due
process right under both the federal and Florida constitutions to defend
himself against criminal charges, see U.S. Const. amend. V; Fla. Const.
art. 1, § 9, and a discovery violation may prevent a defendant from properly
preparing for trial. See Scipio v. State, 928 So. 2d 1138, 1147 (Fla. 2006);
Wilcox v. State, 367 So. 2d 1020, 1023 (Fla. 1979). Due process requires
that the state disclose potentially exculpatory evidence to the defendant.
Brady v. Maryland, 373 U.S. 83, 87 (1963). Due process also requires that
discovery “be a two-way street.” Wardius v. Oregon, 412 U.S. 470, 475
(1973).
Rule 3.220 explains when a court may restrict discovery:
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 physical
harm, intimidation, bribery, economic reprisals, or
unnecessary annoyance or embarrassment resulting from the
disclosure, that outweighs any usefulness of the disclosure to
either party.
Fla. R. Crim. P. 3.220(e). The rule also states that “[d]isclosure of a
confidential informant shall not be required unless the confidential
informant is to be produced at a hearing or trial or a failure to disclose the
informant’s identity will infringe the constitutional rights of the
defendant.” Fla. R. Crim. P. 3.220(g)(2).
Applying the plain language of the rule to this case, restricting the
disclosure of the search warrant documents was not authorized because
there was no “substantial risk to any person of physical harm,
intimidation, bribery, economic reprisals, or unnecessary annoyance or
embarrassment resulting from the disclosure.” See Fla. R. Crim. P.
3.220(e). Nor did the redacted information relate to the disclosure of a
5
confidential informant or the equivalent. Thus, the trial court did not
depart from the essential requirements of the law in mandating the
disclosure of the unredacted search warrants and applications to the
defendant.
III. DISCLOSURE TO PUBLIC
A) THE STATE FAILED TO MEET ITS BURDEN FOR NON-DISCLOSURE
As to disclosure to third parties and the public, the state argues that
the redacted information contains “surveillance techniques not widely
known to the public.” However, rule 2.420 does not recognize a
surveillance technique exception. Nor is the “not widely known to the
public” language found in section 119.071(2)(d), upon which the state now
relies. Moreover, the state does not identify any grounds in the record
upon which it bases it argument. In determining if closure is necessary
“an evidentiary hearing should be held and findings of fact should be
recorded by the judge in his order granting or refusing closure.” Miami
Herald Pub. Co. v. Lewis, 426 So. 2d 1, 7-8 (Fla. 1982). In this case, the
state did not offer any evidence that the redacted information contained
“surveillance techniques” under section 119.071(2)(d) nor did the state
demonstrate that the alleged surveillance techniques were “not widely
known.” Therefore, there is no record upon which the state can rely. The
state is simply advancing an “it is because I say it is” position. This sort
of ipse dixit reasoning is insufficient to support a finding that the trial
court’s ruling was an abuse of discretion, much less a departure from the
essential requirements of law.
Under the Lewis three-prong balancing test:
Those who seek closure of a pretrial proceeding (or a
restraint operating as a closure), must first provide an
adequate basis to support a finding that closure is necessary
to prevent a serious and imminent threat to the
administration of justice. Second, those seeking closure are
required to show that no less restrictive alternative measures
than closure are available for this purpose. Third, those
seeking closure must demonstrate that there is a substantial
probability that closure will be effective in protecting against
the perceived harm.
Morphonios, 467 So. 2d at 1029 (footnote omitted).
6
As the party seeking “a restraint operating as a closure,” see id., the
burden remained on the state to justify closure. Barron v. Fla. Freedom
Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988); Lewis, 426 So. 2d at 8.
The state has not demonstrated an abuse of discretion in that no trial
court would have ruled the way this trial court has. After reviewing the
redacted information in camera, the trial court found: “The state made
arguments that there is a need to protect law enforcement techniques so
they do not become common knowledge thus thwarting the investigative
means. However, no testimony or evidence was presented to support why
this is a compelling government interest.” (emphasis added). Likewise,
there was no testimony or evidence presented to support the state’s
argument that the redacted information involved privileged surveillance
techniques.
The trial court’s finding constitutes a factual determination based on
the evidence submitted to the court and a further finding that the state
did not meet its burden to establish a grounds for closure. See id. Since
an appellate court may not “substitute its judgment for that of the trial
court on questions of fact,” we are compelled to accept the trial court’s
factual determination based on the evidence that the state presented to it.
Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (citation omitted).
B. RULE 2.420, NOT CHAPTER 119, APPLIES
To implement article I, section 24(a) of the Florida Constitution, the
supreme court adopted Florida Rule of Judicial Administration 2.051,
which has since been renumbered to rule 2.420. Rule 2.420, which
governs public access to judicial branch records, provides that “[t]he
public shall have access to all records of the judicial branch of
government” except in limited circumstances. Fla. R. Jud. Admin.
2.420(a). Under this rule, “[c]opies of arrest and search warrants and
supporting affidavits retained by judges, clerks, or other court personnel”
“shall be confidential” “until execution of said warrants.” Fla. R. Jud.
Admin. 2.420(c)(6) (emphasis added). Significantly, the search warrants
in this case have already been executed.
Rule 2.420(c)(1)-(6) enumerates specific judicial branch records which
are confidential; the records here are not such records. Additionally, rule
2.420(c)(9)(A) recognizes the following judicial records as confidential:
(9) Any court record determined to be confidential in case
decision or court rule on the grounds that
(A) confidentiality is required to
7
(i) prevent a serious and imminent threat to the fair, impartial,
and orderly administration of justice;
....
(iii) protect a compelling governmental interest;
....
(vii) comply with established public policy set forth in the
Florida or United States Constitution or statutes or Florida
rules or case law[.]
Even where one of these factors under (9)(A) is present, “the degree,
duration, and manner of confidentiality ordered by the court shall be no
broader than necessary” and there must be “no less restrictive measures .
. . available to protect the interests.” Fla. R. Jud. Admin. 2.420(c)(9)(B),
(C).
Among these exceptions, in the proceedings below, the state argued
only that redaction was necessary to protect “a compelling governmental
interest,” without presenting any evidence in support of its position. The
trial court, after reviewing the redacted information in camera, made a
factual determination that the redacted information did not fall within
these disclosure exceptions. As previously noted, the trial court did not
abuse its discretion in making this determination based on the record
before it.
In its petition, the state relies heavily on chapter 119. However, chapter
119 is inapplicable because this case does not involve an agency public
records request. Neither the defendant nor The Palm Beach Post made
any public records request to an agency. The Post filed only a motion to
intervene in the trial court proceedings. Section 119.011 defines
“[a]gency” as:
any state, county, district, authority, or municipal officer,
department, division, board, bureau, commission, or other
separate unit of government created or established by law
including, for the purposes of this chapter, the Commission
on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency,
person, partnership, corporation, or business entity acting on
behalf of any public agency.
8
Article II, section 3 of the Florida Constitution provides: “The powers of
the state government shall be divided into legislative, executive and
judicial branches. No person belonging to one branch shall exercise any
powers appertaining to either of the other branches unless expressly
provided herein.” Thus, under the separation of powers doctrine, only the
judiciary has the inherent power to maintain its records and to determine
the manner to access these records. See Times Publ’g Co. v. Ake, 660 So.
2d 255, 257 (Fla. 1995); Locke v. Hawkes, 595 So. 2d 32, 36-37 (Fla.
1992).
Access to judicial branch records is governed by the rules and decisions
of the Florida Supreme Court, not Chapter 119, Florida Statutes. Ake,
660 So. 2d at 257. In Locke, the supreme court held that the legislature
was not an agency which is subject to the Public Records Act. 595 So. 2d
at 37. In Ake, the supreme court expanded its holding in Locke and held
that court records maintained by the clerk of the circuit court are not
subject to the inspection and copying requirements of chapter 119. 660
So. 2d at 255. As the Ake court explained:
[T]he clerks of the circuit courts, when acting under the
authority of their article V powers concerning judicial records
and other matters relating to the administrative operation of
the courts, are an arm of the judicial branch and are subject
to the oversight and control of the Supreme Court of Florida,
rather than the legislative branch. We should emphasize that
this Court has exercised its authority and directly addressed
its responsibility in this area. In Barron v. Florida Freedom
Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), and Miami
Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), we
made clear that court records are presumed open and set
forth standards for exemptions. In In re Amendments to Rule
of Judicial Administration 2.051-Public Access to Judicial
Records, 651 So. 2d 1185 (Fla. 1995), this Court recently
implemented article I, section 24, of the Florida Constitution,
by setting forth the openness of court records, the standards
for exemptions, and, in an extensive commentary, an
explanation of the rule’s application.
Id. at 257. See also WFTV, Inc. v. Wilken, 675 So. 2d 674, 676 (Fla. 4th
DCA 1996) (“Ake stands for the proposition that access to judicial records
under the clerk’s control is governed exclusively by the supreme court.”).
Cf. Rameses, Inc. v. Demings, 29 So. 3d 418, 420 (Fla. 5th DCA 2010)
(applying chapter 119 in the context of a public records request to the
sheriff, an agency under chapter 119).
9
The state conflates records that are exempt under chapter 119 with
records that are confidential under rule 2.420. The state relies on section
119.071(2)(d), which states: “Any information revealing surveillance
techniques or procedures or personnel is exempt from s. 119.07(1) and s.
24(a), Art. I of the State Constitution.” Contrary to the state’s suggestion,
the judiciary has not adopted section 119.071(2)(d) via rule 2.420(c).
Chapter 119 speaks to both “exempt” records and records which are
“confidential and exempt.” Section 119.071(2)(d) only makes surveillance
techniques exempt, not confidential and exempt. In contrast, rule
2.420(c)(9)(A) adopts certain laws pertaining to confidential records.
Therefore, it does not adopt section 119.071(2)(d).
There is a difference, in the context of chapter 119, between exempt
information and confidential information:
If information is made confidential in the statutes, the
information is not subject to inspection by the public and may
only be released to the persons or organizations designated in
the statute. . . . If records are not confidential but are only
exempt from the Public Records Act, the exemption does not
prohibit the showing of such information.
WFTV, Inc. v. Sch. Bd. of Seminole, 874 So. 2d 48, 53-54 (Fla. 5th DCA
2004).
Further, rule 2.420 contains specific references to chapter 119 when
exemptions under that chapter apply. See Fla. R. Jud. Admin.
2.420(d)(1)(B), 2.420(d)(1)(B)(iii), (xiii). Had rule 2.420(c) intended to
incorporate section 119.071(2)(d), it would have included a specific
reference to that section. Courts are guided by the principle that “[n]othing
is to be added to what the text states or reasonably implies (casus omissus
pro omisso habendus est). That is, a matter not covered is to be treated as
not covered.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 93 (2012). “Whatever temptations the
statesmanship of policymaking might wisely suggest, construction must
eschew interpolation and evisceration. [The judge] must not read in by
way of creation.” Id. (quoting Felix Frankfurter, Some Reflections on the
Reading of Statutes, 47 Colum. L. Rev. 527, 533 (1947)) (alterations in
original). See also Coral Cadillac, Inc. v. Stephens, 867 So. 2d 556, 558–
59 (Fla. 4th DCA 2004) (“[W]hen a law expressly describes a situation
where something should apply, an inference must be drawn that what is
not included by specific reference was intended to be omitted or
10
excluded.”); Overstreet v. Blum, 227 So. 2d 197, 198 (Fla. 1969) (stating
that a statute adopts another statute by specifically referring to the first
statute).
Even accepting the state’s interpretation that chapter 119 applies to
this case—which it does not—certiorari relief still would be improper. “[I]t
is not the purpose of an in camera inspection for the court to decide
whether there are sufficient reasons to release requested information, but
rather to decide whether there are sufficient reasons not to release it.”
Tribune Co. v. Pub. Records, P.C.S.O. No. 79-35504 Miller/Jent, 493 So. 2d
480, 484 (Fla. 2d DCA 1986). The state here has not demonstrated
sufficient reasons not to release the documents.
“The general purpose of the Public Records Act (Chapter 119, Florida
Statutes (1995)), is to open public records to allow Florida’s citizens to
discover the actions of their government.” Christy v. Palm Beach Cty.
Sheriff’s Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997). “Florida
courts construe the public records law liberally in favor of the state’s policy
of open government. If there is any doubt about the application of the law
in a particular case, the doubt is resolved in favor of disclosing the
documents.” Nat’l Collegiate Athletic Ass’n v. Associated Press, 18 So. 3d
1201, 1206 (Fla. 1st DCA 2009) (citations omitted).
As the state correctly recognizes, once the state gives information to the
defendant in compliance with pretrial discovery criminal rules, the
disclosed information “attains the status of a public record.” Post-
Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549, 553 (Fla. 1992).
However, the state also relies on Post-Newsweek for the proposition that
“[d]iscovery is not intended to be a vehicle for the media to use in its search
for newsworthy information.” Id. The state’s reliance on Post-Newsweek
is misplaced inasmuch as it involves chapter 119 rather than section
2.420.
Additionally, Post-Newsweek recognized that the public’s right to
discovery materials may be limited where discovery “seriously implicate[s]
privacy interests of litigants and third parties.” Id. (emphasis added)
(citation omitted). In this case, no privacy interest of litigants or third
parties is implicated. Post-Newsweek further recognized “that this state’s
open government policy requires that information be available for public
inspection unless the information fits under a legislatively created
exemption.” Id. Here, the state did not demonstrate that the redacted
information fits under any exemption. Cf. Executive Office of the Governor
v. AHF MCO of Fla., Inc., 43 Fla. L. Weekly D2410 (Fla. 1st DCA Oct. 29,
2018) (finding, based on an undisputed sworn affidavit of an FDLE agent,
11
that release of information pertaining to the governor’s detailed schedule
and travel plans would compromise the governor’s safety and security).
C. PUBLIC’S COMMON LAW RIGHT TO ACCESS SEARCH WARRANT
MATERIALS
“[A]ll trials, civil and criminal, are public events and there is a strong
presumption of public access to these proceedings and their records,
subject to certain narrowly defined exceptions.” Barron, 531 So. 2d at 114
(emphasis omitted). “The reason for openness is basic to our form of
government. Public trials are essential to the judicial system’s credibility
in a free society.” Id. at 116.
Article I, section 24(a) of the Florida Constitution codifies the public’s
right to access judicial records and states:
Every person has the right to inspect or copy 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 with respect to records exempted
pursuant to this section or specifically made confidential by
this Constitution. This section specifically includes the
legislative, executive, and judicial branches of government
and each agency or department created thereunder; counties,
municipalities, and districts; and each constitutional officer,
board, and commission, or entity created pursuant to law or
this Constitution.
The Florida Supreme Court implemented this constitutional provision by
enacting what is now rule 2.420. Thus, rule 2.420 is a codification of the
common law right of access to public records. See In re Amendments to
Fla. Rule of Judicial Admin. 2.420-Sealing of Court Records & Dockets, 954
So. 2d 16, 21 (Fla. 2007) (stating that “individualized sealing orders must
meet the test first defined in Barron and subsequently codified in rule
2.420”).
The United States Supreme Court has generally recognized that the
public and press have a First Amendment right of access to criminal
proceedings. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980);
Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press-Enter.
Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501 (1984) (“Press-
Enterprise I”); Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty.,
478 U.S. 1 (1986) (“Press-Enterprise II”). Openness of judicial processes
12
“gives assurance that established procedures are being followed and that
deviations will become known.” Press-Enterprise I, 464 U.S. at 508.
Courts in general have recognized the right to access search warrant
documents as being firmly rooted in our history. In Entick v. Carrington,
19 How. St. Tr. 1029 (C.P. 1765), Lord Camden found general warrants
illegal because of their lack of checks, such as requiring an inventory of
items taken. As Justice Thomas noted in City of West Covina v. Perkins,
525 U.S. 234, 247 (1999), the failure to adhere to the procedures
mandated in the execution of search warrants “profoundly influenced the
Founders’ view of what a ‘reasonable’ search entailed.” Thus, the
formalities of the execution of a search warrant, including the filing of an
inventory and the return of service, are part of the architecture of a
properly executed search warrant.
Further, in Nixon, the United States Supreme Court recognized the
existence of a “common-law right of access to judicial records.” 435 U.S.
at 596. The Court acknowledged “a general right to inspect and copy
public records and documents, including judicial records and documents.”
Id. at 597 (footnote omitted). As a general rule, judicial records are to be
open to the public, in part so that citizens may “keep a watchful eye on
the workings of public agencies.” Id. at 598. See also Baltimore Sun Co.
v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989) (finding a common law right
to access search warrant affidavits); accord In re Newsday, 895 F.2d 74
(2d Cir. 1990). Thus, in this case, the public has a common law right to
access the search warrant documents.
Judge Conner’s opinion states that the “Florida Constitution and the
implementing statutes override the common law.” In fact, the
constitutional provision and the pertinent rules such as rule 2.420 do not
override or supplant the common law as to access to court files, but rather
assist its implementation by institutionalizing transparency in the Florida
Constitution and the rules ensuring public access to judicial records.
“Public access to warrant materials serves as a check on the judiciary
because the public can ensure that judges are not merely serving as a
rubber stamp for the police.” In re Application of New York Times Co. for
Access to Certain Sealed Court Records, 585 F. Supp. 2d 83, 90 (D.D.C.
2008) (citing United States v. Leon, 468 U.S. 897, 917 n.18 (1984)).
“[W]arrant materials are often used to adjudicate important constitutional
rights such as the Fourth Amendment protection against unreasonable
searches and seizures.” Id. “[P]ublic access to documents filed in support
of search warrants is important to the public’s understanding of the
function and operation of the judicial process and the criminal justice
13
system and may operate as a curb on prosecutorial or judicial
misconduct.” In re Search Warrant for Secretarial Area Outside Office of
Gunn, 855 F.2d 569, 573 (8th Cir. 1988).
In a free society governed by our constitutional framework, the default
should be for transparency and disclosure. That is not to say that the
state may not have compelling reasons to prevent disclosure. Far from it.
In a time of security challenges, the state may request orders to prevent
public disclosures. But the burden remains on the state to demonstrate,
by evidence, that there is a compelling reason to inhibit the public from
knowing.
For all the above reasons, we deny the petition.
Petition denied.
GERBER, C.J., concurs in part with opinion.
CONNER, J., concurs in part and dissents in part with opinion.
GERBER, C.J., concurring in part.
I concur with sections I., II., and III.A. of Judge Levine’s opinion.
However, I believe the analysis can, and therefore should, stop there.
Thus, I do not join in sections III.B. and III.C of the opinion.
CONNER, J., concurring in part and dissenting in part.
I concur with the analyses and appellate conclusions in Sections I and
II of the majority opinion. I also concur with the appellate conclusion in
Section III A. that the record shows the State failed to demonstrate that
the redacted surveillance techniques were “not widely known,” and thus,
the trial court properly authorized disclosure to the public. However, as
to Sections III A., B., and C., my understanding of the law is different from
Judge Levine and I disagree with a substantial portion of the legal analysis
in those sections. Primarily, I disagree with the premise that Chapter 119
does not apply to the analysis of this case. I first discuss my disagreement
with Sections III A. and B., then my disagreement with Section III C., and
end with a conclusion.
Sections III A. and B.
In my view, by adopting rule 2.420, our supreme court intended for the
judiciary to follow the system of public records disclosure and exemption
requirements established by the Florida Legislature for the other two
14
branches of government in Chapter 119, in general, and various other
statutes addressing specific subject matters. As a separate and coequal
branch of government, the judiciary has the constitutional right to adopt
a system of rules for public records of the branch that can be different
from the other two branches of government. But in my view, the supreme
court embraced the value of consistency in the application of the law
across the three branches, to the extent it is practical to do so, when it
adopted rule 2.420.
As Judge Levine points out, rule 2.420(c)(9) recognizes the following
judicial records as confidential:
(9) Any court record determined to be confidential in case
decision or court rule on the grounds that
(A) confidentiality is required to:
....
(iii) protect a compelling governmental interest; [or]
....
(vii) comply with established public policy set forth in the
Florida or United States Constitution or statutes or Florida
rules or case law[.]
Fla. R. Jud. Admin. 2.420(c)(9). Significantly, rule 2.420(f) allows a litigant
to file a motion to determine the confidentiality of court records. Rule
2.420(f)(3) specifically authorizes a motion and hearing procedure for a
confidentiality determination under rule 2.420(c)(9)(A)(iii) (compelling
governmental interest) and 2.420(c)(9)(A)(vii) (established public policy set
forth in Florida Statutes). Thus, when reading rule 2.420(c)(9) and (f)(3)
together, it appears to me that in making a decision in response to a
2.420(f)(3) motion as to whether a court record should be deemed
confidential at the request of a party, the trial court should declare a record
to be confidential if such is required to “protect a compelling governmental
interest” is demonstrated or to “comply with established public policy set
forth in the Florida . . . statutes.”
I agree with Judge Levine that there is a difference between exempt
records and confidential records. Section 119.071, Florida Statutes, is
designed to give an agency the discretion to assert a public record
exemption. However, in certain instances, the legislature has taken that
15
discretion away, and declared, statutorily, that certain records are
confidential. See § 119.071(h), Fla. Stat. (2018) (identifying records which
are “confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the
State Constitution”) (emphasis added).
I agree with Judge Levine that under section 119.071(d), surveillance
techniques are exempt, and not statutorily confidential. § 119.071(d), Fla.
Stat. (2018) (“[a]ny information revealing surveillance techniques or
procedures or personnel is exempt from s. 119.07(1) and s. 24(a), Art. I of
the State Constitution”). However, because rule 2.420 is designed to allow
an agency to assert an exemption, if asserted, the court system should
honor the exemption and declare a record confidential, if a compelling
governmental interest is shown or if the established public policy, as
declared by the legislature, requires that confidentiality be maintained.
That said, trial judges must also keep in mind that a statute can be
trumped by constitutional rights, such as due process. In this case, the
constitutional right to due process, as provided for in our criminal
discovery rules, trumps confidentiality regarding disclosure of the
redacted information to the defendant. I contend the public does not hold
a similar trump card.
In my view, a strong statement of public policy in statutes can establish
a compelling governmental interest. Section 119.071(2)(d) makes a clear
legislative statement of public policy that “[a]ny information revealing
surveillance techniques or procedures or personnel is exempt from s.
119.07(1) and s. 24(a), Art. I of the State Constitution.” § 119.071(2), Fla.
Stat. (2018) (emphasis added). Additionally, section 119.0714(1)(c),
Florida Statutes (2018) provides:
(1) Court files.―Nothing in this chapter shall be construed to
exempt from s. 119.07(1) a public record that was made a part
of a court file and that is not specifically closed by order of
court, except:
....
(c) Any information revealing surveillance techniques or
procedures or personnel as provided in s. 119.071(2)(d).
§ 119.0714(1)(c), Fla. Stat. (2018) (emphases added). The fact that the
legislature has exempted the disclosure of surveillance techniques in at
least two statutes, presents a compelling argument that the court system
should determine such information in court records to be confidential and
not subject to public disclosure.
16
Section III C.
My problem with Section III C. of Judge Levine’s opinion is that it cites
and quotes Article I, section 24(a) of the Florida Constitution, but fails to
address section 24(c) of Article 1. Section 24(c) specifically allows the
legislature to provide for exemptions by general law. Art. I, § 24(c), Fla.
Const. (“The legislature, however, may provide by general law . . .
exemption of records from the requirements of subsection (a).”). Thus, it
appears to me that the Florida Constitution and the implementing statutes
override the common law. If my analysis above is correct (rule 2.420 was
intended to mirror the exemptions in Chapter 119), then to the extent rule
2.420 is a codification of Article I, section 24, the rule likewise supplants
the common law concerning the right of access to public records of the
judiciary, including warrants.
Conclusion
The State in this case moved to block disclosure of the redacted
information by asserting redaction was necessary to protect a compelling
governmental interest. As discussed in Section I of the majority opinion,
the State failed to preserve in the trial court the arguments raised in the
certiorari petition regarding the surveillance technique exemption
authorized in section 119.071(2)(d). In addition, the State failed to present
proof that the redacted information was not widely known by the public.
In the trial court, the State had multiple opportunities for making winning
arguments to block the disclosure of the redacted information to the
public. Our review of the record in light of all the exemptions listed in
section 119.071 reveals there are other exemptions the State could have
asserted besides the surveillance technique exception. The State failed to
raise those arguments in the trial court. Additionally, the State failed to
make arguments in the trial court connecting the interplay of Chapter 119
with rule 2.420. In short, the State has failed to demonstrate the trial
court departed from the essential requirements of law.
* * *
Not final until disposition of timely filed motion for rehearing.
17