LTC 463-2020 City of Miami Beach vs. Miami New Times, LLCM IA M I BEACH
OFFICE OF THE CITY ATTORNEY
463-2020
LTC No.
LETTER TO COMMISSION
TO:
FROM:
DATE:
SUBJECT:
Mayor Dan Gelber
Members of the City Commission
Interim City Manager Raul J. Aguila
Acting City Attorney Rafael A. Paz vZ-¿3
December 21, 2020
City of Miami Beach vs. Miami New Times, LLC
Third District Court of Appeal Case No. 3D19-2224
11"Judicial Circuit Court Case No. 2019-32548 CA 32
Chief Deputy Aleksandr Boksner and I are pleased to report that the Third District Court of Appeal
{the "Third District") recently ruled in favor of the City in a public records lawsuit. Specifically, the
Third District held that the City, in denying the Miami New Times, LLC ("New Times") access to
draft audit reports pertaining to the two (2) Miami Beach towing companies, correctly asserted a
exemption under the Florida Public Records Act, which provides that draft audit reports are not
subject to disclosure as public records until the audit reports become final.
As public employees, we take our public records obligations very seriously. Under Florida law,
the City has the affirmative duty to make available for copying and/or inspection those records
that are subject to public disclosure. However, the City also has the obligation to maintain the
confidentiality of those public records that the Florida Legislature has expressly determined must
remain exempt and NOT subject to public disclosure, until such time as the specific statutory
conditions for public disclosure have been satisfied.
Here, the Third District ruled that the City Attorney's Office properly balanced the competing
obligations set forth in the Public Records Act, by determining that the New Times was not entitled
to disclosure of draft audit reports of the City's internal auditor until the audit reports were finalized
and presented to the local unit of government (the City Commission). In resolving an issue offirst
impression in the area of public records law in favor of the City, the Third District preserved the
City's ability to rely on this limited records exemption, which serves to promote and protect the
integrity of the City's audit function until the conclusion of the audit process.
In view of the ruling in favor of the City, we intend to seek attorneys' fees and costs to the
maximum extent permitted by law, as set forth in Fla. Stat. §119.12. This litigation, both at the
trial court and appellate level (including all pleadings, motions, briefs and oral argument at the
Third District) were handled entirely in-house by the City Attorney's Office legal team, consisting
of attorneys Mark Fishman and Farosha Andasheva, with essential administrative support
provided by legal assistants Paul Saca and Bonnie Stewart, under the supervision of Chief Deputy
City Attorney Aleksandr Boksner.
Letter to Commission Re: City of Miami Beach vs. Miami New Times, LLC
December 21, 2020
Page 2 of 3
Additional background on the case is set forth below. A copy of the complete opinion (the
Opinion"), in which the Third District ruled in favor of the City and quashed the Circuit Court's
ruling, is attached hereto as Exhibit "A".
Background
On November 7, 2019, the New Times served the above-referenced lawsuit, which sought a Writ
of Mandamus (the "Writ") against the City, to enforce the Public Records Act. More specifically,
the lawsuit alleged that the City violated Article I, Section 24(a) of the Florida Constitution, and
Chapter 119 of the Florida Statutes, by refusing to furnish the New Times with the draft internal
audit reports of Beach Towing and Tremont Towing (the "Towing Companies") pursuant to the
New Times' public records request. In response, the City asserted the applicability of Florida
Statute $119.0713(2)b), which provides that the audit reports of an internal auditor do not
become public records until the audit reports become final, which only occurs when the audit
reports are presented before a unit of local government, such as the Miami Beach Mayor and City
Commission.
On November 14, 2019, at the conclusion of the hearing, the Circuit Court determined that, even
if the draft audit reports were exempt from disclosure, any entitlement to that exemption was
waived once the draft audit reports (provided by the City to the auditee Towing Companies) were
disclosed by the Towing Companies' attorney to a blogger/journalist, without the City's
knowledge. Consequently, the Circuit Court ordered the City to provide the draft audit reports to
the New Times within forty-eight (48) hours.
The City immediately appealed the Circuit Court's ruling to the Third District, and successfully
sought an Emergency Stay of the Circuit Court's order during the pendency of the appeal.
The Third District's Ruling in Favor of the City
The issues on appeal were: (1) whether the draft audit reports at issue were subject to exemption
under Fla. Stat. §119.0713(2)(b), which provides that the audit report of an internal auditor is not
a public record until the audit report is presented to a unit of local government; and (2) whether
the Towing Companies' attorney's disclosure of the draft audit reports to a third-party
blogger/journalist, without the City's knowledge, constituted a waiver of the statutory exemption.
In its appeal, the City advanced two arguments:
(1) The Circuit Court should have conducted its analysis based upon the unambiguous
language in Fla. Stat. §119.0713(2)(b) and summarily denied the Petition for Writ of
Mandamus, as the draft audit reports at issue were not public records, and thus not subject
to disclosure, based upon the undisputed fact that they had not been finalized and
presented to the Mayor and City Commission.
(2) The Circuit Court erred in relying on the Fourth District Court of Appeal's prior decision in
Satz v. Blankenship to rule that the Towing Companies' attorney disclosing the draft
reports to the third-party blogger/journalist somehow created a "waiver" of the asserted
exemption.
In its Opinion, issued on December 16, 2020, the Third District quashed the Circuit Court's ruling,
Letter to Commission Re: City of Miami Beach vs. Miami New Times, LLC
December 21, 2020
Page 3 of 3
finding that the Circuit Court erred in granting the Petition for Writ of Mandamus and compelling
the City to provide the draft audit reports to the New Times. The Third District also found that the
City appropriately asserted the statutory provision set forth in Fla. Stat. § 119.0713(2)(b ), and that
the cases relied upon by the New Times (and the Circuit Court) supporting the waiver theory were
both factually and legally distinguishable from those raised by the New Times in its lawsuit. The
question of whether the disclosure of draft audit reports to a third-party -- without the knowledge
or consent of the City -- creates a waiver, was an issue of first impression for the Court, and the
decision in the instant case has set an important legal precedent in the area of public records law.
Should you have questions or concerns about any of the foregoing, please contact Aleksandr
Boksner, Chief Deputy City Attorney.
RAP/AB/MAF/FA/bs
EXHIBIT "A"
@h ir District Court of Appeal
State of Florida
Opinion filed December 16, 2020.
Not final until disposition of timely filed motion for rehearing.
No. 3D19-2224
Lower Tribunal No. 19-32548
City of Miami Beach, etc.,
Appellant,
vs.
Miami New Times, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Maria de Jesus
Santovenia, Judge.
Raul J. Aguila, Miami Beach City Attorney, and Mark A. Fishman, Senior
Assistant City Attorney, and Faroat Andasheva, Assistant City Attorney I, for
appellant.
Julianne Hill, for appellee.
Before EMAS, C.J., and HENDON and GORDO, JJ.
PERCURIAM.
INTRODUCTION
The City of Miami Beach seeks review of the trial court's order granting a
petition for writ of mandamus, directing the City to provide to Miami New Times
copies of draft audit reports pertaining to two Miami Beach towing companies. We
quash the order on appeal because, under the plain and unambiguous statutory
language of section 119.0713(2)(b), Florida Statutes (2019), the draft audit reports
were not public records subject to disclosure.
FACTUAL BACKGROUND
In December 2018, the Internal Auditor for the City of Miami Beach
commenced an internal audit of two Miami Beach towing companies. During the
auditing process, the City Auditor met with representatives of the towing companies
to discuss the draft audit reports. The City also provided copies of these draft reports
to the towing companies' attorney. These audit reports were not final and had not
been presented to the City Commission or other city governmental body. They were
provided to the towing companies' representatives as part of the City's "customary
business practice" for completion of an internal audit, i.e., to permit the auditees
(here, the towing companies) an opportunity to review, comment upon, and provide
input prior to preparation of a final audit report.
During the pendency of the internal audit, Miami New Times requested from
the City a copy of these draft audit reports. The City responded that the audit was
2
still in pro gress an d the dra ft report s w ere not fi n al and w ere not subject to public
discl osure. T he C ity estim ated that the audit and the report s w ou ld not be fi nal fo r
at least another m onth w hile the C ity A u ditor m et w ith the tow ing com panies to
com plete their review of the dra ft report s, to solicit com m ents and fe edb ack, and to
m ake appro priate rev isions.
Sh ort ly thereaft er, and prior to com pletion of the in tern al audit, the tow in g
com panies' representatives appeared befo re the C ity C om m ission and requested
com m encing a new , extern al audit con ducted by an indepen dent auditin g fi rm . T he
tow ing com panies expressed their con cern that the intern al audit w as con ducted in
an unfa ir and un eth ical m ann er. A ft er discu ssin g the m att er, the C ity C om m ission
voted to term inate th e C ity 's intern al audit and hir ed an independent com pany to
undert ake a new extern al audit. T he dra ft audit re port s w ere never fi n ali zed, nor
w ere they sign ed by the C ity M anager or presented to the C ity C om m ission .
Foll ow ing term in ation of the C ity 's intern al aud it, M iam i N ew T im es again
requested a copy of the dra ft audit report s. T he C ity again den ied the request, based
on secti on 119 .0 7 13 (2)(b ), Florida Statu tes (20 19 ), pro v iding that an audit report
and audit w orkpapers becom e a publi c record subject to discl o sure on ly w hen the
aud it is "com p lete and the audit report becom es fi n al." T he C ity m ain tained that the
intern al C ity audit w as never com p leted, the dra ft audit report s never becam e fi n al,
and , therefo re, th e report s w ere not subject to discl osure as public records.
3
At about the same time (and unbeknownst to the City), counsel for the towing
companies shared the draft audit reports with a reporter from a local online news
agency. The reporter published an article discussing the draft audit reports. Miami
New Times renewed its request to the City, asserting that, because there was "no
reasonable anticipation of resolution of the city's audit," the exemption under
section 119.0713(2)(b) did not apply, and the draft audit reports were subject to
disclosure. The City again denied the request, advising that because the internal
audit had not been completed and the draft audit reports were not final, they were
not subject to disclosure as public records.
Miami New Times petitioned for writ of mandamus, contending that the City
improperly relied on section 119.0713(2)(b) in denying the request for a copy of the
draft audit reports because the City investigation had been terminated and therefore
the reports were no longer exempt from disclosure as public records. Miami New
Times alternatively contended that if a statutory exemption applied, that exemption
was waived when the towing companies disclosed the draft audit reports to a third
party.
Following a hearing, the trial court determined that, even if the draft audit
reports were exempt from disclosure under section 119.0713(2)(b), any entitlement
to that exemption ceased to exist once those draft reports, provided by the City to
the audi tee towing companies, were disclosed by the towing companies ( and without
4
the City's kn owledge) to a third party. W e conclude the trial court erred, an d hold
that, under the plain language of the statu te, the dra ft audit reports were not public
records subject to disclosure, and did not becom e subject to discl osure when the
towing com panies disclosed them to a third party .1
DISCUSSION AND ANALYSIS
The determination of what constitutes a public record is a question of law that
we review de novo. State v. City of Clearwater, 863 So. 2d 149, 151 (Fla. 2003 ).
Article I, section 24(a) of the Florida Constitution guarantees every person's right to
inspect and copy any public record generated by the three branches of government.
It also allows the legislature (by a two-thirds vote of each house) to create an
exemption to the public record requirements in section (a) "provided that such law
shall state with specificity the public necessity justifying the exemption and shall be
no broader than necessary to accomplish the stated purpose of the law." See also
Rameses, Inc. v. Demings, 29 So. 3d 418,421 (Fla. 5th DCA 2010) (noting: "[T]he
1 Ironically, the City resumed its internal audit in January 2020, and issued a final
audit report in September 2020, ten months after the notice of appeal was filed in
this case. Although the City's internal audit and its report are now final, thereby
rendering moot the issue between these parties, we nevertheless exercise our
discretion to dispose of the appeal on the merits. Godwin v. State, 593 So. 2d 211,
212 (Fla. 1992) (noting three instances "in which an otherwise moot case will not be
dismissed," including "when the questions raised are of great public importance,"
"are likely to recur," and "if collateral legal consequences that affect the rights of a
party flow from the issue to be determined"). See, e.g., Mazer v. Orange Cty., 811
So. 2d 857 (Fla. 5th DCA 2002).
5
right of access to public records is virtu ally unfe tt ered, save fo r statu tory exem ptions
design ed to achieve a balance betw een an in fo rm ed public and th e ability of the
governm ent to m aintain secrecy in the pub lic interest.") C h apter 119 (T he Public
R ecords A ct) lik ew ise sets fo rt h the State's policy regarding access to pub lic records,
id . (p ro v id ing : "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") and provides various public
record exemptions, including those found in section 119 .0713. See also S
119 .O 11 (8), Fla. Stat. (2019) ( defining "exemption" as "a provision of general law
which provides that a specified record ... is not subject to the access requirements
of [the Public Records Act].") Because Florida's public policy favors disclosure,
"the Public Records Act is construed liberally in favor of openness, and exemptions
from disclosure are construed narrowly and limited to their designated purpose."
Rameses, 29 So. 3d 421. The government also bears the burden to show that a
statutory exemption applies. Id.
Section 119. 0713 provides that certain records of local government agencies
are treated as confidential or otherwise exempt from treatment as public records
under Chapter 119 and Article I, Section 24 of the Florida Constitution. For our
purposes, the pertinent portion of section 119.0713, governing audits and audit
reports, provides:
6
The audit report of an internal auditor and the investigative report of
the inspector general prepared for or on behalf of a unit of local
governm ent becomes a public record when the audit or investigation
becomes final. An audit or investigation becomes final when the
audit report or investigative report is presented to the unit of local
government. Audit workpapers and notes related to such audit and
information received, produced, or derived from an investigation are
confidential and exempt from s. 119.07(1) and s. 24(a), Art . I of the
State Constitution until the audit or investigation is complete and the
audit report becomes final or when the investigation is no longer active.
An investigation is active if it is continuing with a reasonable, good
faith anticipation of resolution and with reasonable dispatch.
§ l 19.0713(2)(b) (emphasis added).
The highlighted portion of the statute is plain and unambiguous: An audit
report "becomes a public record" only "when the audit. ... becomes final." Unless
and until an audit becomes final, the audit report is not subject to disclosure as a
public record. Further, an audit "becomes final" only "when the audit report ... is
presented to the unit of local governm ent."
This excerpted statutory language compels the conclusion that the draft audit
reports were not subject to disclosure as public records, as it is undisputed that the
audit was not final and the audit report had not been presented to the City
Comm ission on the occasions that Miami New Times requested copies of these draft
reports from the City.
Returning to this same subsection, we see that the Legislature addressed not
only the audit report, but related "audit workpapers and notes" as well (which,
Miami New Times contends, would include draft audit reports):
7
The audit report of an internal auditor and the investigative report of
the inspector general prepared for or on behalf of a unit of local
government becomes a public record when the audit or investigation
becomes final. An audit or investigation becomes final when the audit
report or investigative report is presented to the unit of local
government. Audit workpapers and notes related to such audit and
information received, produced, or derived from an investigation_are
confidential and exempt from s. 119.07(1) and s.24(@), Art. I ofthe
State Constitution until the audit or investigation is complete and the
audit report becomes final or when the investigation is no longer
active. An investigation is active if it is continuing with a reasonable,
good faith anticipation of resolution and with reasonable dispatch.
§ l 19.0713(2)(b) (emphasis added).
To the extent that the draft audit reports could be considered "audit
workpapers and notes," the plain and unambiguous statutory language provides
those records remain "confidential and exempt from" disclosure "until the audit. ..
is complete and the audit report becomes final." Again, the audit is not "complete,"
and the audit report is not "final," until "the audit report is presented to the unit of
local government."
Our duty in construing statutes is equally well established: we look first to
the statute's plain meaning, and must initially be guided by the principle that if the
wording of a statute is unambiguous, we should not go beyond the clear wording
and plain meaning of the statute to give it a different meaning. City of Clearwater,
863 So. 2d 153; Streeter v. Sullivan, 509 So. 2d 268 (Fla. 1987). "When the words
of a statute are plain and unambiguous and convey a definite meaning, courts have
no occasion to resort to rules of construction-they must read the statute as written,
8
fo r to do otherw ise would constitu te an abro gation of legislative pow er." N icoll v.
Baker, 668 So. 2d 989, 990-91 (Fl a. 1996).
The only reasonable constru ction of the plain and unam biguous statu tory
language at issue leads us to conclude that the dra ft audit reports had not becom e a
public record subject to disclosure because the audit was not com plete an d the audit
report w as not final.
W e reject M iam i N ew Tim es' invitation to constru e an "audit" and an
"investigation" in identical fa shion under section l 19.0713 (2)(b). In particular ,
M iam i N ew Tim es advance s this argum ent with regard to the final portion of the
subsection, w hich pro vides:
A udit w orkpapers and notes related to such audit and info rm ation
received, pro duced, or derived fr om an investigation are confidential
and exem pt from s. 119.07(1) an d s. 24(a), Art . I of the State
Constitution until the audit or investigation is complete and the
audit report becomes final or when the investigation is no longer
active. An investigation is active if it is continuing with a
reasonable, good faith anticipation of resolution and with
reasonable dispatch.
Miami New Times posits that the statute should be construed in a manner that
treats an "inactive audit" in the same manner as an "inactive investigation," and we
should hold that when the City discontinued the internal audit in favor of an external
audit, the internal audit was "no longer active," thereby making the draft audit
reports subject to disclosure as public records.
9
T he diffi cu lty w ith this position , of course, is that the statu te does not pro vide
fo r a con cept such as an "inactive aud it." Fu rt her, treatin g "aud it" an d
"investigation" in the sam e fa shion w ould require us to ignore the very separa te an d
distinct statu tory treatm ent afforded them . T h e statu te does not use the sam e
trigg erin g event fo r w hen audit docum ents and investigative docu m ents becom e
public re cords subject to discl osure. In stead, the statu te contains distin ct pro visions
fo r each :
"A u dit w orkpapers an d notes related to su ch audit" are con fi dential and
exem pt fr om publi c records discl o sure:
1. "until the au dit. .. is com plet e"; and
2. "the audit report becomes final".
By contrast, "information received, produced, or derived from an
investigation" are confidential and exempt from public records disclosure:
1. "until the ... investigation is complete ... or"
2. "when the investigation is no longer active." "An investigation is active if
it is continuing with a reasonable, good faith anticipation of resolution and
with reasonable dispatch."
Thus, information from an investigation becomes subject to public records
disclosure when the investigation is either complete or is no longer active.
10
A u d it w o rk p a p e rs an d n o tes, on th e oth er h an d , b eco m e su bje ct to p u b lic
reco rd s d iscl o su re on ly aft er th e au d it is co m p lete an d th e au d it rep o rt b eco m e s fi n a l.
T h ere is n o eq u iv ale n t trea tm en t u n d er th e statu te, an d w e w ill n o t en g ra ft o n e on to
th e p lain an d u n am b ig u o u s lan g u a g e p ro v id ed b y th e L eg isla tu re. If the Legislature
wanted to make "audit workpapers and notes" subject to public records disclosure
under the same circumstances and to the same extent as "information received,
produced, or derived from an investigation," it would have done so. To construe the
statute in the manner suggested by Miami New Times would ignore, or altogether
negate, other language within the same subsection. This we cannot do. See Jones
v. ETS of New Orleans, Inc., 793 So.2d 912, 914-15 (Fla. 2001) (holding that a
"statute should be interpreted to give effect to every clause in it, and to accord
meaning and harmony to all of its parts") (quoting Acosta v. Richter, 671 So. 2d
149, 153-54 (Fla. 1996)).
If the legislature "did not intend the results mandated by the statute's plain
language, then the appropriate remedy is for it to amend the statute." Whitney Bank
v. Grant, 223 So. 3d 476, 479 (Fla. 5th DCA 2017) (noting: "It is a settled rule of
statutory construction that unambiguous language is not subject to judicial
construction, however wise it may seem to alter the plain language. . . . If the
legislature did not intend the results mandated by the statute's plain language, then
11
th e ap p ro p riate rem ed y is fo r it to am en d th e statu te.") (q u o tin g O v erstreet v . S ta te,
62 9 So . 2d 12 5 , 12 6 (Fl a. 19 9 3 )).
It is u n d isp u ted th at th e C ity 's au d it w a s n o t co m p lete , an d th e au d it re p o rt
h ad n o t b een p rese n ted to th e C ity C o mm issio n , w h en M iam i N ew T im e s m a d e its
pu b lic reco rd s req u e sts. A s a re su lt , th e dra ft au d it rep o rt s w ere n o t su bje ct to
d iscl o sur e u n d er sectio n 11 9 .0 7 13 (2 )(b ). N o p u b lic d iscl o su re is m an d ated h ere
b ecau se th e statu to ry co n d itio n s p reced en t to th e d o cu m en ts b e co m in g su bje ct to
d iscl o su re as p u b lic rec o rd s-a co m p leted au d it an d a fi n a l au d it rep o rt-h ad n o t
o ccu rr ed .
W e also reject M ia m i N ew T im e s' altern ativ e co n ten tio n th at, ev en if th e dra ft
au d it rep o rt s w ere ex em p t fr o m d iscl o su re u n d er sectio n 119 .0 7 13 (2)(b ), an y
en titl em en t to th at ex em p tio n v an ish ed on ce th o se dr aft rep o rt s, p ro v id ed b y th e C ity
to th e au d itee to w in g co m p a n ie s, w e re d iscl o sed (w ith o u t th e C ity 's kn o w led g e or
co n sen t) b y th e to w in g co m p an ie s to a th ird p art y .
T o su p p o rt its co n ten tio n , M iam i N e w T im es relie s o n Satz v . B lank en sh ip ,
4 0 7 So . 2d 39 6 , 39 8 (Fl a. 4 th D C A 19 8 1 ), an d sim ilar ca se s, assert in g th at p rev io u s
d iscl o su re of in fo rm atio n su bje ct to a tim e-lim ited ex e m p tio n all o w s fo r "fu rt h er
d iscl o su re." Id . (h o ld in g : "A t th e p o in t of d iscl o su re, th e in fo rm a tio n b ecam e p u b lic
in a sen se an d as p u b lic in fo rm a tio n , it lo st its effi cacy in d eterri n g crim in al
activ ity .") See also B lu d w o rt h v . P a lm B e ach N ew sp a p e rs, In c., 4 7 6 So . 2d 77 5 ,
12
778 (Fla. 4th D C A 1985) (p ron ouncin g: "[W ]e reaffirm w hat w e held in
B lank enship; nam ely, that once docum ents are rele ased, the legislatu re intended an
end to secrecy about th ose docum ents); D ow ns v. A ustin , 522 So. 2d 931 (Fl a. 1st
D C A 19 88) (recognizing: "Satz and B ludw orth evin ce a judicial recognition that
once the State has gone public w ith info rm ation w hich could have previously been
pro tected fr om discl osure under the A ct's exem ptions, no fu rt her purp ose is serv ed
by preventing fu ll access to the desire d docum ents or inform ation ); Stat on v.
M cM illan, 597 So. 2d 940, 941 (Fla. 1st D C A 1992) (holding: "The active crim inal
investigative info rm ation exem ption thus does not apply to info rm ation w hich has
previously been m ade available at a public hearing.")
H ow ever, "these decisions ar e fa ctu ally and le gally distinguishable as they
involve the exem ption fo r either 'active crim in al intelligence info rm ation' or 'active
crim inal investigative info rm ation,' w hich ar e not the exem ptions at issue."
R am eses, 29 So. 3d 422. M ore specifically, these decisions m ostly addre ss a
statu tory exception to a genera l public records exem ption.
In Satz, 407 So. 2d at 397, fo r exam ple, the State A ttorn ey "cam e into
possession of cert ain tape recorded conversations" in the course of a police
investigation leading to the defe ndant's arr est. D uring the crim inal pro ceedings, the
pro secution pro vided defe ndant's attorn ey w ith access to the tape-recorded
conversations. A ft er these recordings w ere m ade available to defe nse counsel, a
13
n ew s rep o rt er sen t a p u b lic reco rd s req u e st to th e State A tt o rn ey , seek in g a co p y of
th e tap e reco rd in g s. T h e qu estio n fo r th e co u rt w a s w h eth er tap e rec o rd in g s ( w h ich
w ere p art of th e ev id en ce g a th ere d in th e co u rse o f a crim in a l in v e stig a tio n ) w ere
"d o cu m en ts" w ith in th e m ea n in g o f sectio n 119 .0 11 (3)(c )5 , Fl o rid a Statu tes (1 9 7 9 ).
T h is sectio n ex clu d es "[d ]o cu m ent s ... g iv en to th e p erso n arr ested " fr o m th e p u b lic
reco rd s ex em p tio n in se ctio n 119 .0 7 1 (2 )( c) 1 ( ex em p tin g fr o m d iscl o su re "a ctiv e
crim in al in tell ig en ce an d in v estig ativ e in fo rm a tio n "). In oth er w o rd s, alth o u g h
sectio n 119 .0 7 1 (2 )( c) 1 p ro v id e s a g en era l ex em p tio n fr o m p u b lic reco rd s d iscl o su re
of "activ e crim in a l in tell ig en ce in fo rm ati o n " an d "a cti v e crim in al in v e stig ativ e
in fo rm atio n ," sectio n l 19 .0 11 (3)(c)5 sp ec ifi c all y ex cl u d es fr o m th at d efi n ed
ex em p ti o n (i.e ., treats as a p u b lic reco rd su bje ct to di sc lo su re) "[d ]o cu m e nt s gi v en
or req u ired b y la w or ag en cy ru le to b e giv en to th e p erso n arr ested ."
T h e F o u rt h D istrict, co n stru in g th e statu te (sectio n 11 9 .0 1), its ex em p tio n
(sectio n 119 .0 11(3 )(a) fo r activ e crim in al in tell ig e n ce/in v e stig a tiv e in fo rm atio n ),
an d th e ex cep tio n to th e ex em p tio n (sectio n 119 .0 11(3)(c)5 , p ro v id in g th at
d o cu m en ts p ro v id ed to a person arrested are not exempt from disclosure under
public records law), held that the tape recordings were "documents" under section
119.011(3)(c)5 and, once they were given to the person arrested, they fell within the
exception to the exemption and thus statutorily subject to inspection and copying as
public records. Id. at 398. See also Bludworth, 476 So. 2d 778 (noting: "The issue
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is w h eth er sectio n 119 .O 11 (3)( c) 5, F lo ri d a S tatu tes (1 9 8 3 ), w hich excl udes fr om the
d efi n itio n s o f 'c rim in al in tell ig en ce in fo rm atio n ' an d 'crim inal investi gation
in fo rm atio n ' '[d ]o cu m en ts g iv en o r req u ir ed b y law or ag ency ru le to be given to a
p erso n arr ested ,' sh o u ld b e co n stru ed n arr o w ly so as to refe r only to such
in fo rm atio n as sh o w s th e b a sis fo r th e p erso n 's arr est. ... ")
T h ere is n o co m p ar ab le ex cep tio n to th e statu to ry ex em ption in th is case. An d
as th e co u rt s d id in th o se cases cited b y M iam i N ew T im es, w e rely upon judicial
co n stru ctio n of sp ecifi c statu to ry p ro v isio n s to d eterm in e w hether discl osure w as
re q u ired . In d o in g so , w e fi n d th at it w a s n o t: T h e d iscl o sur e of these dra ft report s
b y th e to w in g co m p an ie s to a th ird p art y , w ith o u t th e kn o w ledge or consent of the
C ity , d id n o t alt er th eir statu s so as to ren d er th em su bject to discl osure as public
reco rd s.
CONCLUSION
Under the plain and unambiguous statutory language of section
119.0713(2)(b), the draft audit reports were not subject to disclosure as public
records. The trial court erred in granting the petition for writ of mandamus and
compelling the City to provide these reports to Miami New Times. We therefore
quash the order granting the writ of mandamus, and remand for further proceedings
consistent with this opinion.
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