                                             IN THE DISTRICT COURT OF APPEAL
                                             FIRST DISTRICT, STATE OF FLORIDA

MORRIS PUBLISHING GROUP,                     NOT FINAL UNTIL TIME EXPIRES TO
LLC, d/b/a, THE FLORIDA TIMES-               FILE MOTION FOR REHEARING AND
UNION MULTIMEDIA HOLDINGS                    DISPOSITION THEREOF IF FILED.
CORPORATION and GANNETT
RIVER       STATES     PUBLISHING            CASE NO. 1D13-5721
CORPORATION, d/b/a, WTLV/WJXX
FIRST COAST NEWS, and POST-
NEWSWEEK STATIONS FLORIDA,
INC., d/b/a, WJXT-TV4,

       Petitioners,

v.

STATE   OF    FLORIDA                AND
MICHAEL D. DUNN,

     Respondents.
_______________________________/

Opinion filed January 20, 2015.

Petition for Writ of Certiorari - - Original Jurisdiction.

George D. Gabel, Jr., Timothy J. Conner, Jennifer A. Mansfield, and Paul R.
Regensdorf of Holland & Knight, LLP, Jacksonville; Meagan L. Logan and
Edward L. Birk of Marks Gray, P.A., Jacksonville, for Petitioners.

Pamela Jo Bondi, Attorney General; Samuel B. Steinberg, Jay Kubica, and Trisha
Meggs Pate, Assistant Attorneys General, Tallahassee; Cory C. Strolla, West Palm
Beach; Angela B. Corey, State Attorney, and Meredith Charbula, Assistant State
Attorney, Jacksonville, for Respondents.


PER CURIAM.
      Criminal discovery and Florida public records laws are at issue in this case.

Morris Publishing Group, LLC, Multimedia Holdings Corporation, and Gannett

River States Publishing Corporation (collectively the “Media”), seek review of the

trial court’s order, which concluded that the State Attorney’s Office, Fourth

Judicial Circuit (SAO), did not act unlawfully in delaying or withholding recorded

phone conversations of a criminal defendant, Michael Dunn, without first securing

a deposit from the Media to cover the costs of reviewing the recordings to redact

information that is exempt/confidential under Chapter 119, Florida Statutes. Due to

the unusual facts of this case and the novel legal issue presented, we deny the

petition but certify a question of great public importance as detailed below.

                                         I.
                                         A.

      This overly contentious public records litigation is back for a fourth round of

appellate review, this time limited solely to the Media’s access to recorded phone

conversations in which Mr. Dunn engaged while incarcerated and awaiting his first

criminal trial held in Jacksonville, Florida. The case garnered much attention in the

local, state, and national media. In September 2013, the Media made its initial

public records request for criminal discovery records, which makes such items

subject to inspection and copying. See § 119.011(3)(c)(5), Fla. Stat. (addressing

documents in criminal discovery that are part of public records).


                                          2
      Interest in the criminal discovery spiked around October 16, 2013, when the

SAO released various records including letters written by Mr. Dunn, a police

interrogation video, witness statements, 9-1-1 audio recordings, and crime scene

photos. Many of Mr. Dunn’s letters were immediately aired, some of which

included potentially inflammatory racial references to fellow inmates where Mr.

Dunn was jailed. Heightened interest thereby arose among the Media and the

public over the hundreds of recorded phone conversations to which Mr. Dunn was

a party while incarcerated and awaiting trial.

      Access to all criminal discovery, however, came to a halt soon thereafter. On

October 24, 2013, after reading media accounts of the jailhouse letters, the trial

judge entered an order on his own initiative without notice to the Media that barred

public dissemination of any criminal discovery in the case without his approval.

The “sole purpose” of the order was to provide the trial judge an opportunity for

“in-camera inspection to ensure that no exempted materials become inadvertently

disclosed to the public, and to ensure that Defendant’s constitutional right to a fair

trial is not jeopardized.”

      After a series of emergency petitions and orders of this Court, over a span of

three months, the trial court’s restrictive orders were lifted. We summarized that

the effect of our orders “was to require immediate release of all such public

records” absent an immediate evidentiary hearing and “written order for possible

                                          3
appellate review.” We deemed it necessary to compel “disclosure of all criminal

discovery produced in this case, including but not limited to the defendant’s

recorded conversations, provided pursuant to Florida Rule of Criminal Procedure

3.220.” (Emphasis added). We noted, however, that our order did “not modify [the

Media’s] requirement to comply with necessary payment and other administrative

requirements provided in Chapter 119.” The trial court promptly held a hearing at

which Mr. Dunn’s counsel made a generalized, but unsupported objection to

disclosure of the public records. Because no showing was made that the release of

the criminal discovery posed any meaningful risk to Mr. Dunn in the prosecution

of the ongoing criminal proceedings, the trial court denied Mr. Dunn’s request to

keep the discovery confidential, thereby compelling the immediate release of all

public records at issue, including the recorded conversations, subject to whatever

“necessary payment” requirements Chapter 119 imposed.

      As to the phone recordings, the SAO required advance payment from the

Media for its anticipated efforts to complete its public records review process. It

estimated that the cost of reviewing and redacting the recorded jail calls for

confidential and exempt information would be over $6,000, and approximately half

that amount was required as a deposit to begin the review process. The Media

refused to pay the deposit, contending that the SAO’s policy of requiring full

payment to review every phone recording including those the SAO had already

                                        4
reviewed for trial purposes, violated Florida’s public records laws. The Media

sought an emergency hearing to determine whether the SAO was violating Chapter

119, and obtained an order of this Court to expedite the matter. Because the first

day of trial—set for February 3, 2014—was just a few days away, we permitted the

circuit’s chief judge to consider the appointment of a special master or magistrate

to hold a hearing and make recommendations to the trial court. As jury selection

began, the chief judge did just that, appointing a magistrate to determine whether

the SAO’s response to the Media’s requests for the recorded jail calls was

reasonable or amounted to an unlawful refusal of access.

                                         B.

      The testimony before the magistrate established that there are two ways the

SAO reviews recordings of jail calls. For its trial review process, a non-attorney

support specialist listens to jail calls while performing other tasks, essentially

keeping an ear out for any potentially relevant or helpful information to the

prosecution’s case. The specialist maintains a summary of the calls for purposes of

this review. In contrast to this type of review, public records review is handled

differently. The SAO maintains a two-person public records unit, comprised of one

attorney and one administrative assistant. Upon receipt of a public records request

for criminal discovery involving audio recordings, the administrative assistant first

listens to the recordings in their entirety, stopping to redact exempt material. The

                                         5
redaction process consists of stopping and rewinding the recording, creating a

marker showing where the exempt material is contained, and removing the audio

from that portion of the recording. Once that process is completed, the attorney

conducts an abbreviated review of the recordings, checking the redactions and

listening to the recordings at double their normal speed for items the assistant may

have missed.

      To estimate the cost of its review, the SAO multiplied the hours of calls by

1.5 for the administrative assistant’s initial, lengthier review, and then by the

administrative assistant’s hourly rate of pay, which in this case is $10.94. The SAO

then multiplied the hours of calls by 0.5 for the attorney’s double-speed review,

and then multiplied that number by the attorney’s hourly rate of pay, which in this

case is $35.61. For the 186 hours of calls at issue, the SAO estimated that the

public records review would cost $6,357.14, and it required a $3,000 deposit

before it would begin its review. If the actual cost of producing the redacted

records is lower than the estimate, a refund would be issued; the Media was

notified of this refund policy. The SAO would also split payment among multiple

requesters. Though the Media could choose calls from a list the SAO prepared,

only the time and date of each call was listed.

      Following the evidentiary hearing, the magistrate entered a report and

recommendation, concluding that the SAO’s failure to produce the calls without

                                          6
the requested financial deposit was not an unlawful refusal of access. The

magistrate, however, recommended that the SAO immediately release eight hours

of jail calls by 5:00 p.m. on each business day, and that the Media pay a rolling

deposit of $273.60 at the end of each business day or $1,374.50 for each 40-hour

workweek of labor. With 186 hours of calls to be reviewed, and an estimated 360

hours to review them, the entire process would require nine weeks to be completed.

      On March 12, 2014, the trial judge adopted the magistrate’s report and

recommendations, except that he ordered only six (rather than eight) hours of calls

to be produced each work day. Three days later, a jury verdict was rendered.

                                        II.
                                        A.
      With this background in mind, we turn to the central issue in this case:

whether the SAO’s actions in withholding the phone recordings and requiring

advance payment before starting its review of the requested phone recordings

constitutes an unlawful delay or denial of access to these public records. No one

disputes that the phone recordings are public records or that they must be made

available in as immediate a manner as is practicable. And, as a general matter, the

Media does not disagree that advance payment of some amount may be required.

Instead, the crux of the legal issue is to what extent, if any, was the SAO as a

records custodian legally required to coordinate its review of phone recordings for


                                        7
discovery purposes and for use at trial, with its public records request review under

Chapter 119. We find no clear answer.

      “In Florida, access to public records is a matter of such importance that it is

constitutionally guaranteed.” Bd. of Cnty. Comm’rs of Highlands Cnty. v. Colby,

976 So. 2d 31, 35 (Fla. 2d DCA 2008) (citing art. I, § 24(a), Fla. Const.). Chapter

119 obligates a state agency to provide public records to any person requesting

them. See § 119.01(1), Fla. Stat. (2013) (“It is the policy of this state that all state,

county, and municipal records are open for personal inspection and copying by any

person. Providing access to public records is a duty of each agency.”). As a policy,

this chapter acknowledges that public records have become “automated” in the

modern era, but that the “[a]utomation of public records must not erode the right of

access to those records.” See § 119.01(2)(a). “As each agency increases its use of

and dependence on electronic recordkeeping, each agency must provide reasonable

public access to records electronically maintained and must ensure that exempt or

confidential records are not disclosed except as otherwise permitted by law.” Id.

Based on these dual policies, the SAO’s burden to provide reasonable access to the

public records at issue is tempered by its obligation to ensure that no exempt or

confidential information is disclosed.

      Custodians of public records are required to make them available for

inspection and copying at reasonable times under reasonable conditions.

                                           8
§ 119.07(1)(a). Requests must be acknowledged promptly and responded to in

good faith. § 119.07(1)(c). A custodian has a duty to redact portions of public

records that are exempt, stating the basis “in writing and with particularity the

reasons for the conclusion that the record is exempt or confidential.”

§ 119.07(1)(d)-(f). A custodian may impose a statutorily-regulated fee for the cost

of copies. § 119.07(4). If no set fee is prescribed by law, custodians are allowed to

impose other statutorily-defined fees. For instance, a “special service charge” is

available in certain circumstances:

      (d) If the nature or volume of public records requested to be
      inspected or copied pursuant to this subsection is such as to require
      extensive use of information technology resources or extensive
      clerical or supervisory assistance by personnel of the agency
      involved, or both, the agency may charge, in addition to the actual
      cost of duplication, a special service charge, which shall be
      reasonable and shall be based on the cost incurred for such extensive
      use of information technology resources or the labor cost of the
      personnel providing the service that is actually incurred by the
      agency or attributable to the agency for the clerical and supervisory
      assistance required, or both.
§ 119.07(4)(d); see, e.g., Colby, 976 So. 2d at 37 (upholding special service

charges for work that required more than approximately fifteen minutes to locate,

review, and refile requested records).

      An unlawful denial of access can occur in many different ways, including

delay. See, e.g., Tribune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984) (“The

only delay permitted by the Act is the limited reasonable time allowed the

                                         9
custodian to retrieve the record and delete those portions of the record the

custodian asserts are exempt.”); see also Barfield v. Town of Eatonville, 675

So. 2d 223 (Fla. 5th DCA 1996) (“An unjustified delay in complying with a public

record request amounts to an unlawful refusal under section 119.12(1), Florida

Statutes.”). It may also occur by excessive special services charges. See, e.g.,

Carden v. Chief of Police, City of Clewiston Police Dep’t, 696 So. 2d 772, 773

(Fla. 2d DCA 1996) (“An excessive charge could well serve to inhibit the pursuit

of rights conferred by the Public Records Act.”).

                                        B.

      The narrow focus of the challenge before us is whether the application of the

SAO’s public records review policy to the facts of this case amounts to an

unlawful delay and denial of access. This Court recognized this theory in Johnson

v. Jarvis, 74 So. 3d 168, 171 (Fla. 1st DCA 2011), where we said that the

“reasonableness of the appellee’s policy itself is not the subject of the inquiry.

Rather, the inquiry centers on whether the application of the policy resulted in an

unjustified delay that amounted to an unlawful refusal to comply with chapter

119.” The focal point in Jarvis was whether a facially reasonable policy might

nonetheless result in an unreasonable delay of access based on the policy’s

application to a particular set of facts. Id. at 170-71 (remanding to “determine



                                        10
whether there was a delay to produce the requested records and, if so, whether the

delay was reasonable under the facts of this case.”).

      Here, the Media’s primary point is that the SAO’s public records review

policy is combative, inefficient, unduly expensive, and prolonged, which made it

virtually impossible to get access to Mr. Dunn’s phone recordings prior to trial.

They further contend that the SAO overstated its estimated special service charges

and increased delays by failing to disclose summaries of the phone calls and failing

to take any steps to coordinate or combine its ongoing review of Mr. Dunn’s phone

recordings. The Media points out the antipathy between it and the SAO, which the

magistrate observed was “palpable,” along with the SAO’s public statements

criticizing the public records laws. All of this, according to the Media, reflected an

intent to make the process of getting the requested public records as onerous as

possible for them.

      The SAO counters that it has two independent review processes, both

facially reasonable, and that the Media requests for the phone recordings

vacillated, 1 making it unclear whether they desired the calls and would pay the

deposit. Further, due to the extensive review needed to complete the calls—360

1
  This vacillation appears to have occurred during the time when the trial court’s
restrictive orders were in place, making it confusing what (and when) criminal
discovery would be made available to the public and Media.

                                         11
hours—requiring a deposit was not unlawful. The SAO also notes that the Media

does not claim the magistrate’s findings lack competent substantial evidence as to

the SAO’s estimated costs and methodology and the estimated time for review and

production.

      We first note that the SAO’s policy of requiring the payment of a deposit

prior to redaction and delivery of public records is facially reasonable. Colby, 976

So. 2d at 37 (“[T]he County’s policy of requiring an advance deposit seems

prudent given the legislature’s determination that taxpayers should not shoulder the

entire expense of responding to an extensive request for public records.”). Noting

that “the facts in this case do not suggest an abuse” by the custodian, the Second

District emphasized that the County reviewed the records faster than estimated and

at a cost lower than it could have charged. Id. Thus, the reasonableness of a policy

and its application—based on the facts in a particular case—guides whether an

abuse of discretion is shown. As a counter-point, the Media cites to Office of the

State Attorney for the Thirteenth Judicial Circuit of Florida v. Gonzalez, 953 So.

2d 759, 765 (Fla. 2d DCA 2007), which upheld the trial court’s conclusion that

“requiring payment before an invoice cannot excuse the delay in providing [public]

records.” Though Gonzalez is distinguishable because it involved only

photocopying costs, rather than “special service charges” as is the case here, we



                                        12
agree with the larger point, which is that the factual context of how much advance

deposit must be paid for special service charges can be abused.

      We next turn to the claim that the SAO should have attempted to consolidate

its evidentiary review for trial with its public records review process. The

magistrate, and by implication the trial judge, rejected the position that it could

compare the SAO’s two policies with the hybrid one proposed by the Media,

concluding that the only inquiry permitted by law was whether the SAO’s policies

were themselves reasonable. Nonetheless, the magistrate agreed that the type of

cooperative policy suggested by the Media was something that the SAO should

consider, saying:

      I agree with you, it is something that should be looked at and perhaps
      the policy may be changed. But unfortunately that’s not my power,
      and not the ability that I have to do anything about . . . so probably it
      might have been a brighter idea at that time to contemporaneously,
      while they searched it for evidence to also search it for exemptions, so
      that they would have it available to produce. But that’s not the case,
      and that’s not the law. Just because they could have, doesn't mean that
      they were required to.

Thus, the legal focus of the magistrate’s analysis was solely on whether the SAO’s

policies independently were facially reasonable, not whether their application to the

Media’s requests—in the factual context of a palpably hostile relationship between

the SAO and the Media—was unreasonable. Given this limited focus, the evidence




                                         13
taken at the hearing established that the evidentiary review and the public records

review by the SAO are two different tasks, both facially reasonable.

      While we agree as to the facial validity of the SAO’s individual policies, we

recognize that otherwise facially valid policies can be implemented in such a way as

to result in unjustified delays or costs that lack good faith. See Jarvis, 74 So. 3d at

170-71. But to reverse the trial court’s adoption of the magistrate’s order, we would

have to conclude that the SAO had a legal duty while conducting its review of

criminal discovery for use at trial to adapt or modify that process to combine it with

its public records review process. To our knowledge, no case has addressed this

legal question.

      Valid arguments exist either way. In some situations, a state attorney’s office

may be able to combine its criminal discovery efforts to facilitate its public records

review process, and thereby reduce costs and lessen delay to the requesting parties.

Indeed, in response to the Media’s assertion that the SAO’s public records policy

was duplicative and unreasonable, the magistrate agreed to some extent, saying

“[t]hat point is well taken, that part of it seems to be unreasonable.” Contrarily, the

imposition of a legal duty, versus a hortatory one, could have unintended and costly

consequences by imposing administrative burdens on agencies that do not have the

resources or personnel to conduct the two review functions simultaneously. Here,

the SAO apparently conducted both processes as to the criminal discovery it

                                         14
initially disclosed, but disclosure of that batch of public records did not include

review of phone recordings, which are the focus of this case. Other policy

arguments from both perspectives undoubtedly exist.

      All that said, the ultimate question here is whether the application of the

SAO’s public records policy is unreasonable because it failed to take steps to avoid

repetition and duplication with its review of the recordings for use at trial.

Coordinating trial review efforts with pending public records requests (and perhaps

even anticipated requests in the highest profile cases) makes sense, but in the

absence of clear legislative intent requiring it, we are unable to conclude that the

SAO is legally required to do so.2

      In conclusion, because we find no legal duty exists to require a custodian of

criminal discovery to combine its ongoing discovery review for trial with public

records requests, we deny the Media’s request for relief, but certify the following

question of great public importance:

      DOES A CUSTODIAN OF CRIMINAL DISCOVERY HAVE A
      LEGAL OBLIGATION TO, WHERE POSSIBLE, COMBINE ITS
      REVIEW OF DISCOVERY FOR TRIAL PURPOSES WITH A

2
  The Media also argues that the SAO should have used the prosecution support
specialist’s call summaries to shorten the redaction process or to enable them to
identify which calls the Media might request. The availability of those summaries,
possibly redacted of any notations that might reveal trial strategy, would be of
immense assistance to persons who might be put in the position of trying to
determine which of 186 phone recordings they might want.

                                        15
    PUBLIC RECORDS REQUEST IF DOING SO WILL BE
    ECONOMICALLY EFFICIENT AND RESULT IN LESS DELAY?

    PETITION DENIED.

THOMAS, RAY, and MAKAR, JJ., CONCUR.




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