IN THE SUPREME COURT OF FLORIDA RAMESES, INC., d/b/a CLEO S and STEVEN G. MASON, P.A., v. Petitioners, Case No.: SC10-670 Lower Tribunal: 5D09-208 JERRY DEMINGS, in his Official Capacity as Sheriff of Orange County Respondent. RESPONDENT S BRIEF ON JURISDICTION ERIC D. DUNLAP Attorney For Sheriff Demings, Respondent Florida Bar No. 897477 Assistant General Counsel Orange County Sheriff s Office Legal Services Section 2500 W. Colonial Drive Orlando, FL 32804 407-254-7170
TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE FACTS AND CASE... 2 SUMMARY OF THE ARGUMENT ON JURISDICTION... 3 ARGUMENT ON JURISDICTION... 4 PETITIONERS FAIL TO DEMONSTRATE EXPRESS AND DIRECT CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW. CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 i
TABLE OF AUTHORITIES CASES Bludworth v. Palm Beach Newspapers, 476 So.2d 775 (Fla. 4 th DCA 1985)... 6 Christy v. Palm Beach County Sheriff s Office, 698 So. 2d 1365 (Fla. 4 th DCA 1997)...7, 8 City of Miami v. Post-Newsweek Stations Florida, Inc., 837 So.2d 1002 (Fla. 3 rd DCA 2002)... 5 Downs v. Austin, 522 So.2d 931 (Fla. 1 st DCA 1988)... 5 Henderson v. State, 745 So.2d 319 (Fla. 1999)... 5 Metropolitan Dade County v. San Pedro, 632 So.2d 196 (Fla. 3 rd DCA 1994)... 6 Ocala Star Banner Corporation v. McGhee, 643 So.2d 1196 (Fla. 5 th DCA 1994).. 8 Petersburg v. Romine, 719 So.2d 19 (Fla. 2 nd DCA 1998)... 5 Post-Newsweek v. Doe, 612 So.2d 549 (Fla. 1992)... 5 Salcines v. Tampa Television, 454 So.2d 639 (Fla. 2 nd DCA 1984)...7, 8 Satz v. Blankenship, 407 So.2d 396 (Fla. 4 th DCA 1981)... 6 Staton v. McMillan, 597 So.2d 940 (Fla. 1 st DCA 1992)... 6 Tribune Co. v. Public Records, 493 So.2d 480 (Fla. 2 nd DCA 1986)... 6 STATUTES Florida Statute 119.07...2, 8 Florida Statute 119.071(2)(c)... 5 Florida Statute 119.071(2)(d)... 5 Florida Statute 119.071(4)(c)... 5 Florida Statute 119.071(4)(d)1.a... 5 RULES Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv)... 4 ii
PRELIMINARY STATEMENT Petitioners, Rameses, Inc., d/b/a Cleo s, and Steven G. Mason, P.A., shall be collectively referred to as Petitioners. Respondent, Sheriff Jerry Demings, shall be referred to as Sheriff. References to the relevant pages of the opinion issued by the Fifth District Court Appeal and included as Tab A of Petitioners Brief on Jurisdiction shall be designated as: Opinion at p.. 1
STATEMENT OF THE FACTS AND CASE This case involves a public records lawsuit filed by Rameses, Inc., d/b/a Cleo s, and Steven G. Mason, Esquire seeking access to unredacted copies of undercover video recordings revealing the faces and identities of undercover law enforcement personnel. Opinion at p. 1 2. The Sheriff has been willing to release the undercover video recordings, but the Petitioners have refused to accept and pay for redacted copies that protect the identities of the undercover law enforcement personnel pursuant to exemptions set forth in Florida Statute 119.071. Opinion at p. 2 3. The Honorable George A. Sprinkel, IV, granted the Sheriff s Motion for Summary Final Judgment and denied the Petitioner s Motion for Summary Judgment. Opinion at p. 1. The Petitioners filed a timely notice of appeal to the Fifth District Court of Appeal. On March 5, 2010, the Fifth District Court of Appeal affirmed the trial judge s decision and concluded that the trial court was correct in ordering that the faces of the undercover officers be obscured prior to release of the surveillance recordings. Opinion at p. 1 8. The Sheriff stands ready to produce redacted copies of the undercover videos consistent with the trial judge s and appellate court s order once the Petitioners pay the costs authorized pursuant to Florida Statute 119.07. 2
SUMMARY OF THE ARGUMENT ON JURISDICTION Petitioners rely on the same arguments and cases which they presented in the trial and appellate courts. Both the trial and appellate courts made it clear that the cases cited by the Petitioners were factually and legally distinguishable since they involved the interpretation of a different public records exemption than the three exemptions asserted by the Sheriff. The Court should deny Petitioners application to invoke this Court s discretionary jurisdiction since the Petitioners Brief on Jurisdiction fails to demonstrate the requisite express and direct conflict on the same question of law. 3
ARGUMENT ON JURISDICTION PETITIONERS FAIL TO DEMONSTRATE EXPRESS AND DIRECT CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THE SUPREME COURT ON THE SAME QUESTION OF LAW. Unhappy with the decision of the district court of appeal, the Petitioners seek the proverbial second bite at the apple by filing their notice to invoke the discretionary jurisdiction of this court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). It is incumbent on Petitioners to demonstrate that the decision from the Fifth District Court of Appeal expressly and directly conflict[s] with a decision of another district court of appeal or of the supreme court on the same question of law. Fla.R.App.P. 9.030(a)(2)(A)(iv). In their effort to establish express and direct conflict, Petitioners rely on the same arguments and cases which they presented in the trial and appellate courts. These arguments and cases were rejected by the Fifth District Court of Appeal as distinguishable. The Petitioners reargument of points already rejected does not provide a basis for this Court s jurisdiction. Furthermore, the Petitioners cited authorities do not address the same question of law decided by the Fifth District Court of Appeal in this case. The Court should deny Petitioners application to invoke this Court s discretionary jurisdiction since the Petitioners Brief on Jurisdiction fails to demonstrate the requisite express and direct conflict on the same question of law. 4
Petitioners cite to ten cases they contend conflict with the decision in the case sub judice. The vast majority of Petitioners cases interpret a public records exemption pertaining to active criminal intelligence information and active criminal investigative information. See Florida Statute 119.071(2)(c). The Sheriff, on the other hand, has consistently relied on three separate exemptions the legislature has deemed important for the safety and protection of undercover law enforcement personnel. See Florida Statute 119.071(2)(d), 119.071(4)(c), and 119.071(4)(d)1.a. Notwithstanding the Sheriff s reliance on these three exemptions, the Petitioners continue to argue that cases interpreting the exemption for active criminal intelligence information or active criminal investigative information control. 1 Clearly, the Petitioners cannot establish express and direct 1 Petitioners factually and legally distinguishable cases include: Henderson v. State, 745 So.2d 319 (Fla. 1999) which involves the interplay between Chapter 119, criminal discovery rules, and a criminal defendant s attempt to circumvent reciprocal discovery rather than an interpretation of the three exemptions protecting undercover law enforcement personnel; Post-Newsweek v. Doe, 612 So.2d 549 (Fla. 1992), a case involving the interplay between the public records law and privacy rights of people identified in a criminal investigation, but the Petitioners failed to include the following important excerpt from the Court s opinion: Even though the names and addresses of people on the witness list of a criminal prosecution may be disclosed to the public, we emphasize that the public does not have a universal right to all discovery materials. Id. at 553; St. Petersburg v. Romine, 719 So.2d 19 (Fla. 2 nd DCA 1998), a case involving records identifying payments made to a confidential informant; however, the Petitioners failed to note that the court allowed continued exemption of information that may reveal McCullough s role as a confidential informant on specific cases. Id. at 22; Downs v. Austin, 522 So.2d 931 (Fla. 1 st DCA 1988), City of Miami v. Post- Newsweek Stations Florida, Inc., 837 So.2d 1002 (Fla. 3 rd DCA 2002), Satz v. 5
conflict on the same question of law by relying on cases interpreting a statutory provision inapplicable to the three exemptions asserted by the Sheriff. The courts in two consecutive orders have advised the Petitioners that their cases are factually and legally distinguishable from the exemptions asserted by the Sheriff. First, the Honorable George A. Sprinkel, IV, Orange County Circuit Judge, stated the following on page 7 of his order: Rameses cites no case law in support of this argument and the Court finds none. All of the cases relied upon by Rameses in support of this argument concern exemptions relating to active investigations or cases. Those are not the exemptions asserted by [Demings]. [Emphasis added] Additionally, the Honorable Richard B. Orfinger, writing for the Fifth District Court of Appeal, reached a similar conclusion regarding the inapplicability of the Petitioners cases when he stated the following in footnote 4 on page 7: Nevertheless, as the Sheriff argues, these decisions are factually and legally distinguishable as they involve the exemption for either active criminal intelligence information or active criminal investigative information, which are not the exemptions at issue. Opinion at p. 7, [Emphasis added] Blankenship, 407 So.2d 396 (Fla. 4 th DCA 1981), Metropolitan Dade County v. San Pedro, 632 So.2d 196 (Fla. 3 rd DCA 1994), Bludworth v. Palm Beach Newspapers, 476 So.2d 775 (Fla. 4 th DCA 1985), Staton v. McMillan, 597 So.2d 940 (Fla. 1 st DCA 1992), and Tribune Co. v. Public Records, 493 So.2d 480 (Fla. 2 nd DCA 1986), each involving the application of the exemptions for criminal intelligence and investigative information, not the exemptions relating to the protection of undercover law enforcement personnel. 6
The decision of the Fifth District Court of Appeal in the instant case is consistent with decisions out of the Second and Fourth District Courts of Appeal. Decisions from these courts demonstrate the continued viability of the exemptions contained in section 119.071 which are designed to protect the identity of undercover law enforcement personnel or confidential informants, even if that information may already be public. For example, in Salcines v. Tampa Television, 454 So.2d 639 (Fla. 2 nd DCA 1984), the court stated that it matters not that the informants or sources are no longer active or may have, through other sources, been identified as such. The Salcines court noted that the exemption for confidential informants applies to any information revealing identity and [i]t does not specify not previously identified, nor current confidential informants or sources. Id. at 641 [Emphasis in original]. Additionally, in Christy v. Palm Beach County Sheriff s Office, 698 So. 2d 1365 (Fla. 4 th DCA 1997), a decision in which Justice Pariente concurred in the majority opinion, the court recognized the continued viability of exemptions even when the active criminal intelligence and investigative exemptions no longer apply. The court in Christy stated [a]lthough the redaction of the identities of the confidential information and [the Sheriff s] undercover personnel may frustrate [Christy s] purpose in requesting the records, this is all that [Christy] is entitled to under the Public Records Act. 7
Similar to the exemption addressed in Salcines, one of the Sheriff s exemptions, Florida Statute 119.071(4)(c), specifically exempts any information revealing undercover personnel of any criminal justice agency. The Sheriff seeks to protect only the information revealing undercover law enforcement personnel consistent with what was deemed to be acceptable in Salcines. See also, Ocala Star Banner Corporation v. McGhee, 643 So.2d 1196 (Fla. 5 th DCA 1994), (information identifying an officer could be redacted from the report). In the instant case, the Fifth District Court of Appeal correctly upheld the trial court s decision authorizing the Sheriff to exempt nothing more than what is authorized by statute, and decisions of the Second, Fourth, and Fifth District Courts of Appeal in Salcines, Christy, and Ocala Star Banner Corporation, respectively. CONCLUSION The Court should deny Petitioners application to invoke this Court s discretionary jurisdiction since the Petitioners Brief on Jurisdiction fails to demonstrate the requisite express and direct conflict on the same question of law. The Sheriff remains ready to produce redacted copies of the videos to the Petitioners upon receipt of the charges authorized by Florida Statute 119.07. The Sheriff respectfully requests the Court deny Petitioners application to invoke this Court s discretionary jurisdiction. 8
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail to Steven G. Mason, Esquire, 280 Rollingwood Trail, Altamonte Springs, FL 32714, this day of, 2010. CERTIFICATE OF COMPLIANCE I hereby certify that this computer-generated brief has been prepared in Times New Roman 14-point font and complies with the font requirements set forth in Florida Rule of Appellate Procedure 9.210. Respectfully submitted, JERRY L. DEMINGS SHERIFF OF ORANGE COUNTY Eric D. Dunlap Assistant General Counsel Florida Bar No. 897477 Orange County Sheriff s Office Legal Services Section 2500 West Colonial Drive Orlando, FL 32804 (407) 254-7170 9