Filing # 48196224 E-Filed 10/27/2016 04:15:44 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. MIAMI HERALD MEDIA COMPANY, publisher of The Miami Herald, and DAVID SMILEY, vs. Plaintiffs, MIAMI-DADE COUNTY, and EMMMA LEW, as Director of the Medical Examiner Department, Defendants. / COMPLAINT COUNT I Injunction 1. This is an action for injunctive relief to enforce Florida's Public Records Law. 2. This Court has jurisdiction pursuant to Chapter 119, Florida Statutes. 3. Plaintiff Miami Herald Media Company ( MHMC ) is the publisher of The Miami Herald, a newspaper of general circulation in Miami-Dade County, Florida. MHMC uses public records, including records of the Miami-Dade County (the County ) and its Medical Examiner Department (the ME Department ) as some of its principal sources for newsgathering. Plaintiff David Smiley is one of MHMC s professional journalists. 4. The County and its constituent departments, including the ME Department, are public agencies as defined by 119.011(2), Florida Statutes, and Defendant Dr. Emma Lew (in her official capacity) is the custodian of the ME Department s public records. Pursuant to 119.07,
Florida Statutes, Dr. Lew has a duty to permit the inspection, examination, and copying of the ME Department's public records at a reasonable time and under reasonable conditions. 5. In the early morning hours of September 25, 2016, three men including major league baseball player Jose Fernandez died when the boat in which they were travelling collided with a jetty (made of rock) that is located at the entrance to Government Cut. The three men were the only occupants of the boat at the time of the collision and, at present, it is not known which of the three men were operating the boat at the time of the collision. 6. On October 4, 2016, MHMC delivered a request to the County for copies of the autopsy and toxicology reports relating to the three men. A copy of the request is attached as Exhibit 1. 7. The requested documents are public records within the meaning of 119.011(1), Florida Statutes, because they were made or received in connection with agency business. 8. On October 24, 2016, the County denied the request for public records, claiming that the public records are exempt from the Public Records Law because they constitute active criminal investigative information under 119.071(2)(c)1, Florida Statutes. 9. The County purported to support its position by providing an affidavit executed by Colonel Curtis Brown of the Division of Law Enforcement of the Florida Fish and Wildlife Commission (the FWC ). Copies of those documents are attached as Exhibit 2. 10. There are two reasons that the County s refusal to provide access to the public records is unlawful. 11. First, [c]riminal investigative information shall be considered active as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith 2
anticipation of securing an arrest or prosecution in the foreseeable future. See 119.011(d)2, Florida Statutes. 12. Here and in light of the fact that all three occupants of the boat died there can be no reasonable, good faith anticipation that the FWC s investigation will secure an arrest or prosecution in the foreseeable future. There simply is no one to arrest or prosecute. 13. Indeed, in an affidavit that the FWC submitted to a different division of the Court in order to obtain a search warrant in connection with this investigation, the FWC swore, under penalty of perjury, that it was investigating potential violations of 327.35(3)3 & 782.072(1), Florida Statutes. A copy of the affidavit is attached as Exhibit 3. 14. Those statutes create criminal liability for the operators of vessels and, in light of the fact that whoever was operating the boat died in the collision, there can be no active investigation into violations of either statute. 15. Second, in light of FWC s limited authority to make arrests and enforce the law, it simply cannot be conducting an investigation that is active for the purposes of the Public Records Law. 16. Section 379.3311, which Colonel Brown s affidavit cites as providing the authority for FWC s investigation, provides that: The commission, the executive director and the executive director s assistants designated by her or him, and each commission officer are constituted peace officers with the power to make arrests for violations of the laws of this state when committed in the presence of the officer or when committed on lands under the supervision and management of the commission, the department, the Board of Trustees of the Internal Improvement Trust Fund, or the Department of Agriculture and Consumer Services, including state parks, coastal and aquatic managed areas, and greenways and trails. The general laws applicable to arrests by peace officers of this state shall also be applicable to such director, assistants, and commission officers. 3
See 379.3311(1), Florida Statutes. 17. Thus, under that section, FWC s officers are authorized to make arrests only if a crime occurs in their presence or in specified areas. Here, no crime was committed in the presence of a FWC officer and, because no one on the boat survived the collision, there is no one to arrest for having committed a crime in one of the specified areas. 18. Similarly, 379.3311(2) provides: [FWC] officers may enforce throughout the state all laws relating to game, nongame birds, fish, and fur-bearing animals and all rules and regulations of the commission relating to wild animal life, marine life, and freshwater aquatic life, and in connection with such laws, rules, and regulations, in the enforcement thereof and in the performance of their duties thereunder, to: (a) Go upon all premises, posted or otherwise; (b) Execute warrants and search warrants for the violation of such laws; (c) Serve subpoenas issued for the examination, investigation, and trial of all offenses against such laws; (d) Carry firearms or other weapons, concealed or otherwise, in the performance of their duties; (e) Arrest upon probable cause without warrant any person found in the act of violating any such laws or, in pursuit immediately following such violations, to examine any person, boat, conveyance, vehicle, game bag, game coat, or other receptacle for wild animal life, marine life, or freshwater aquatic life, or any camp, tent, cabin, or roster, in the presence of any person stopping at or belonging to such camp, tent, cabin, or roster, when such officer has reason to believe, and has exhibited her or his authority and stated to the suspected person in charge the officer s reason for believing, that any of the aforesaid laws have been violated at such camp; (f) Secure and execute search warrants and in pursuance thereof to enter any building, enclosure, or car and to break open, when found necessary, any apartment, chest, locker, box, trunk, crate, basket, bag, package, or container and examine the contents thereof; 4
(g) Seize and take possession of all wild animal life, marine life, or freshwater aquatic life taken or in possession or under control of, or shipped or about to be shipped by, any person at any time in any manner contrary to such laws. (emphasis added). 19. Nothing in that provision of 379.3311 authorizes FWC to investigate any aspect of the collision because the collision does not implicate any laws relating to game, nongame birds, fish, and fur-bearing animals and all rules and regulations of the commission relating to wild animal life, marine life, and freshwater aquatic life. 20. According to 119.11(1), Florida Statutes, "whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases." 21. Failing to produce public records for inspection constitutes irreparable injury that is not ordinarily and, in this case, is not compensable in damages. Unless the injunctive relief sought is ordered, Defendants will continue to violate Chapter 119. 22. MHMC requests that the Court set an immediate hearing on its claim for injunctive relief pursuant to 119.11(1), Florida Statutes. 23. MHMC has retained the undersigned counsel and has agreed to pay counsel a reasonable attorneys' fee. Statutes. 24. MHMC requests that the Court award attorneys' fees pursuant to 119.12, Florida Wherefore, MHMC requests that the Court: (a) Set and hold the immediate hearing and thereafter enter an injunction ordering Defendants to produce to MHMC the requested records; (b) (c) Award MHMC its attorneys' fees and costs incurred in obtaining such relief; and Award MHMC such other and further relief as may be appropriate. 5
COUNT II - Mandamus 25. MHMC adopts the allegations set forth in paragraphs 2 through 20. 26. MHMC has a clear legal right to have Defendants make the public records requested available for inspection. 27. MHMC has no adequate remedy at law. 28. MHMC requests that this Court set an immediate hearing on its claim for a writ of mandamus pursuant to 119.11(1), Florida Statutes. 29. MHMC has retained the undersigned counsel and has agreed to pay costs and reasonable attorneys' fees. 30. MHMC requests that the Court award attorneys' fees pursuant to Section 119.12, Florida Statutes. Wherefore, MHMC request that the Court: (a) Issue an alternative writ of mandamus, requiring Defendants to show cause immediately why a peremptory writ of mandamus should not be entered, directing them to comply with the public records requests; (b) Set and hold the immediate hearing and thereafter enter the writ of mandamus ordering Defendants to comply with the public records requests without imposing the impermissible charges; (c) (d) Award MHMC its attorneys' fees and costs incurred in obtaining such relief; and Award MHMC such other and further relief as may be appropriate. 6
HOLLAND & KNIGHT LLP Attorneys for Plaintiffs 701 Brickell Avenue Suite 3000 Miami, Florida 33131 (305) 374-8500 (telephone) (305) 789-7799 (facsimile) By: /s/ Scott D. Ponce Sanford L. Bohrer (FBN 160643) Primary E-mail: sbohrer@hklaw.com Secondary E-Mail 1: sponce@hklaw.com Secondary E-Mail 2: estarling@hklaw.com Scott D. Ponce (FBN 0169528) Primary E-Mail: sponce@hklaw.com Secondary E-Mail 1: sbohrer@hklaw.com Secondary E-Mail 2: estarling@hklaw.com #48458081_v1 7
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. MIAMI HERALD MEDIA COMPANY, publisher of The Miami Herald, and DAVID SMILEY, vs. Plaintiffs, MIAMI-DADE COUNTY, and EMMMA LEW, as Director of the Medical Examiner Department, Defendants. / ALTERNATIVE WRIT OF MANDAMUS AND ORDER SETTING IMMEDIATE HEARING ON REQUEST FOR INJUNCTIVE RELIEF The Court has reviewed Plaintiffs Complaint, a copy of which is attached to this Order as Exhibit A, and finds the allegations establish a prima facie case for the relief requested. Accordingly, it is ORDERED that Defendants are hereby directed to permit Plaintiff to inspect and copy all records requested in the Complaint, or show cause at :.m.,, 2016 in Room of the Miami-Dade County Courthouse, Miami, Florida, why the injunctive and mandamus relief requested in the Complaint commanding such acts to be done should not be entered against them. ORDERED in Miami-Dade County, Florida this day of 2016. CIRCUIT JUDGE #48458081_v1
EXHIBIT 1
From: Smiley, David [mailto:dsmiley@miamiherald.com] Sent: Tuesday, October 04, 2016 5:18 PM To: Melton-Lamar, Veronica (ME); Caprara, Darren (ME) Subject: Miami Herald records request Good afternoon, Pursuant to Florida Statutes Chapter 119, I'm writing to request that the Medical Examiner's Office provide the full report of the autopsy and toxicology tests performed on Jose Fernandez, Eduardo Rivero and Emilio Macias, all of whom were killed Sept. 25 in a boat crash off Miami Beach. Should you anticipate a charge for extensive use of resources, please provide an itemized estimate breaking down the anticipated costs involved. Should you believe any portion of this request to be exempt from Florida's public records laws, please cite the appropriate state statute in choosing to withhold or redact any information or record. Please provide the requested documents no later than end of business today, and please don't hesitate to call should you have any questions, need any further clarification, or wish to further discuss this records request. -- David Smiley Miami Herald Cell: 786-683-2195 1
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Ponce, Scott D (MIA - X27575) From: Angell, Christopher (CAO) <Christopher.Angell@miamidade.gov> Sent: Monday, October 24, 2016 6:51 PM To: Bohrer, Sandy (MIA - X27678) Cc: Lew, Emma O. (ME); Caprara, Darren (ME); Ponce, Scott D (MIA - X27575); Walters, Rachel (CAO) Subject: Re: Jose Fernandez toxicology report request Attachments: Col. C. Brown Affidavit - Active Investigation - 10.24.16.pdf Good evening: Upon receipt of your Public Records Request for the autopsy protocol and toxicology report of decedent Jose Fernandez, the State Attorney s Office and the Florida Fish and Wildlife Conservation Commission (FWCC) were contacted and advised that the Medical Examiner s Department intends to release these documents at 10:00 AM on Tuesday, October 25, 2016 to any party that has requested them, unless prior to such time it receives an affidavit from a law enforcement agency asserting a statutory exemption. Today the County Attorney s Office received an affidavit from FWCC, a copy of which is attached. Based on the representations contained in the affidavit the Medical Examiner s Department will not be releasing the requested records. If you would like additional information regarding the investigation or its status please contact FWCC directly. Thank you. Chris Angell. Christopher A. Angell, Esq. Assistant County Attorney Miami-Dade County Attorney's Office Stephen P. Clark Center 111 NW First Street Suite 2810 Miami, FL 33128 Tel: 305-375-1024 Fax: 305-375-5611 Legal Assistant: Paralegal: Juliet Menendez Irma Hernandez Tel: 305-375-1300 Tel: 305-375-5743 Email: JNM@MiamiDade.gov Email: IrmaH@MiamiDade.gov No trees were harmed in the sending of this E-mail; however, a great number of electrons were terribly inconvenienced. 1
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