Chapter 119’s requirement of public disclosure of records made available to the defendant does not violate the attorney disciplinary rule prohibiting extrajudicial comments about defendants as long as the state attorney does not put an interpretation on the record that prejudices the defendant or exposes witnesses. Bludworth v. Palm Beach Newspapers, Inc., 476 So. 2d at 780.
The only circumstances where criminal intelligence or investigative information can retain that status even though it has been made available to the defendant are:
- 1) If the information would reveal the identity of a victim of a sexual offense or child abuse pursuant to s. 119.071(2)(h), F.S.; or
2) If a court order has been issued finding that release of the information prior to trial would:
- a) be defamatory to the good name of a victim or witness or jeopardize the safety of a victim or witness; and
b) impair the ability of a state attorney to locate or prosecute a codefendant.
In all other cases, material which has been made available to the defendant cannot be deemed criminal investigative or intelligence information and must be open to inspection unless some other exemption applies (e.g., s. 119.071[e], F.S., exempting all information “revealing the substance of a confession” by a person arrested until there is a final disposition in the case); or the court orders closure of the material in accordance with its constitutional authority to take such measures as are necessary to obtain orderly proceedings and a fair trial or to protect constitutional privacy rights of third parties. See Miami Herald Publishing Company v. Lewis, 426 So. 2d 1 (Fla. 1982); Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988); Post-Newsweek Stations, Florida Inc. v. Doe, 612 So. 2d 549 (Fla. 1992). And see Morris Communications Company LLC v. State, 844 So. 2d 671, 673n.3 (Fla. 1st DCA 2003) (although documents turned over to the defendant during discovery are generally public records subject to disclosure under Ch. 119, the courts have authority to manage pretrial publicity to protect the defendant’s constitutional rights as described in Miami Herald Publishing Company v. Lewis, supra). Cf. Times Publishing Co. v. State, 903 So. 2d 322 (Fla. 2d DCA 2005) (while the criminal discovery rules authorize a nonparty to file a motion to restrict disclosure of discovery materials based on privacy considerations, where no such motion has been filed, the judge is not authorized to prevent public access on his or her own initiative).
Emergency “911” voice recordings
Section 365.171(12), F.S., provides that any record, recording, or information, or portions thereof, obtained by a public agency for the purpose of providing services in an emergency which reveals the name, address, or telephone number or personal information about, or information which may identify any person requesting emergency service or reporting an emergency by accessing an emergency communications E911 system is confidential and exempt from s. 119.07(1), F.S. The exemption applies only to the name, address, telephone number or personal information about or information which may identify any person requesting emergency services or reporting an emergency while such information is in the custody of the public agency or public safety agency providing emergency services. Id. Accord AGO 90-43 (only that portion of 911 tape relating to name, address and telephone number of the caller exempt).
A tape recording of a “911” call is a public record which is subject to disclosure after the deletion of the exempt information. AGO 93-60. This does not, however, preclude the application of another exemption to such records. Thus, if the “911” calls are received by a law enforcement agency and the county emergency management department, information which is determined by the law enforcement agency to constitute active criminal investigative information may also be deleted from the tape prior to public release. AGO 95-48. See also Inf. Op. to Fernez, September 22, 1997 (while police department is not prohibited from entering into an agreement with the public to authorize access to its radio system, the department must maintain confidentiality of exempt personal information contained in “911” radio transmissions).
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