“The trial court is the judge of the facts and the credibility of the witnesses.”
How later courts described this case
- “The trial court is the judge of the facts and the credibility of the witnesses.”
- interpreting an earlier version of section 119.07 concerning child abuse records
Written by the judges who cited it.
The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE ATTORNEY’S OFFICE OF THE SEVENTEENTH JUDICIAL
CIRCUIT and SCHOOL BOARD OF BROWARD COUNTY,
Appellants,
v.
CABLE NEWS NETWORK, INC., MIAMI HERALD MEDIA COMPANY,
SUN-SENTINEL COMPANY, LLC, ABC, INC., THE ASSOCIATED
PRESS, THE BRADENTON HERALD, THE FIRST AMENDMENT
FOUNDATION, FLORIDA PRESS ASSOCIATION, GANNETT COMPANY,
INC., LOS ANGELES TIMES COMMUNICATIONS LLC, THE NEW YORK
TIMES COMPANY, ORLANDO SENTINEL COMMUNICATIONS
COMPANY, LLC, BROWARD COUNTY SHERIFF’S OFFICE, and
SCOTT ISRAEL, in his official capacity as Broward County Sheriff,
Appellees.
Nos. 4D18-1335
and 4D18-1336
[July 25, 2018]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case
No. CACE 18-004429 (09).
Michael J. Satz, State Attorney, and Joel Silvershein, Assistant State
Attorney, Fort Lauderdale, for appellant, State Attorney’s Office of the
Seventeenth Judicial Circuit.
Eugene K. Pettis and Debra Potter Klauber of Haliczer, Pettis &
Schwamm, P.A., Fort Lauderdale, for appellant, School Board of Broward
County.
Dana J. McElroy, James J. McGuire, and Jon M. Philipson of Thomas
& LoCicero, PL, Fort Lauderdale, for appellees, Cable News Network, Inc.;
Miami Herald Media Company; and Sun-Sentinel Company, LLC, ABC,
Inc.; The Associated Press; The Bradenton Herald; the First Amendment
Foundation; the Florida Press Association; Gannett Co., Inc.; Los Angeles
Times Communications LLC; The New York Times Company; and Orlando
Sentinel Communications Company, LLC.
GROSS, J.
We affirm the order of the circuit court which directed the disclosure of
video footage as public records over the objections of the School Board of
Broward County and the State Attorney of the 17th Judicial Circuit.
On February 14, 2018, Nikolas Cruz, a former student, entered the
grounds of Marjory Stoneman Douglas High School in Broward County.
He walked into Building 12, containing several classrooms, and allegedly
shot and killed seventeen people, including students and staff members.
The timeline for the shooting is as follows:
2:19 p.m. Cruz is dropped off near the school
2:21 p.m. Cruz enters Building 12 and begins firing rifle
2:22 p.m. A fire alarm is set off
2:27 p.m. Cruz discards his weapon and exits out the west
side of the building
Approximately 70 surveillance cameras are installed at Douglas. The
exterior cameras are mounted in plain sight and are “completely visible”
to a person looking for them. Without seeing the actual footage from the
camera, one would not know:
• Whether the camera is on or off;
• Whether the camera is working;
• How wide the angle is;
• Where the camera is pointing;
• Whether the camera operates at night; or
• How many frames per second the camera is recording.
On February 15, the Broward County Sheriff’s Office (“BSO”)
subpoenaed all of Douglas’s video surveillance footage. On February 16,
the BSO executed a search warrant and seized the School Board’s
computers which housed the footage.
Two weeks after the shooting, several media outlets petitioned for
access to video recordings captured by Douglas’s surveillance cameras.1
1The original Petition was filed by Cable News Network, Inc.; Miami Herald Media
Company; and Sun-Sentinel Company, LLC. An amended petition was filed
adding ABC, Inc.; The Associated Press; The Bradenton Herald; the First
Amendment Foundation; the Florida Press Association; Gannett Co., Inc.; Los
Angeles Times Communications LLC; The New York Times Company; and
-2-
The Media’s petition was filed pursuant to Article I, Section 24 of the
Florida Constitution and Chapter 119, Florida Statutes, the “Public
Records Act.” The respondents were the BSO, Scott Israel (BSO Sheriff),
the School Board of Broward County, and Robert Runcie (Superintendent
of Schools).
The Media’s petition averred “extreme public interest” in “the response
of law enforcement officers during the shooting and immediately
thereafter.” The petition mentioned school resource officer, Scot Peterson,
by name. The petition was necessitated because the BSO refused to
release the footage.
The State Attorney’s Office moved to intervene as the authority
prosecuting Cruz. The State Attorney argued that the “items sought
constitute criminal investigative information” that is exempt from
disclosure under the Public Records Act.
The BSO responded to the petition, raising the same exemption, and
other objections not relevant to this appeal. The School Board’s response
claimed that the footage was exempt from disclosure under Florida Statute
section 119.071(3)(a), Florida Statutes – the “security system plan
exemption.”
Before the hearing, the Media filed two DVDs in support of the petition.
The first was a video of a press conference conducted by the BSO. In the
press conference, Sheriff Scott Israel discusses the Douglas surveillance
videos and informs the media that Officer Peterson was suspended based
on his failure to enter Building 12 and engage the shooter.
The second DVD was an interview with a Douglas student who
described seeing Officer Peterson during the shooting. According to the
student, Officer Peterson stood in a stairwell in an adjacent building,
talking on his radio, with his gun pointed at Building 12.
The Media also filed several exhibits including its public records
request, other public records, and several articles about the shooting. The
articles discussed Officer Peterson’s actions as well as reports that other
Orlando Sentinel Communications Company, LLC. Additional media outlets
joined by intervention: ALM Media, LLC; CBS Broadcasting Inc.; Charter
Communications Operating, LLC; Fox Television Stations, LLC; Graham Media
Group, Inc.; NBCUniversal Media, LLC; Scripps Media, Inc.; Univision
Communications Inc.; WFTV, LLC; and WPLG Inc. The petitioners will be referred
to as the “Media.”
-3-
deputies remained outside during the shooting taking cover behind their
vehicles. One article notes BSO policy which is that “if real time
intelligence exists the sole deputy or team of deputies may enter the area
and/or structure to preserve life.”
The circuit judge conducted an evidentiary hearing on March 8. The
evidentiary portion of the hearing included testimony from the BSO’s
captain of criminal investigations. The captain testified that Cruz is the
subject of an active criminal investigation and that the videotapes are part
of the criminal investigative information file.
The other relevant testimony about Douglas’s surveillance system came
from a BSO officer and an assistant principal. This testimony is discussed
in more detail below.
At the close of the hearing, the judge announced that he would be doing
an in camera review of the footage, which had been redacted to obscure
the faces of students and unknown witnesses. Ultimately, the court issued
its order requiring the BSO to release the footage (the “first order”). None
of the parties appealed the first order, and the BSO provided the specified
footage to the Media.
Shortly before the video was released, the BSO published a detailed
timeline of events culled from multiple sources, including Douglas
surveillance videos. The timeline revealed that there are 70 surveillance
cameras at Douglas and that the cameras are motion-activated. The
published timeline stated:
The 45 acre campus is equipped to record 70 different camera
angles. Most of these views provide coverage of student
buildings, walkways and hallways. Building 12 was covered
by thirteen interior cameras. School video time stamps are
not exactly synchronized with BSO dispatch records.
Cameras are also motion activated leaving gaps in coverage.
After reviewing the BSO’s newly-released timeline and the footage
released March 15, the Media filed a Motion for Further Relief. The Media
argued that the footage released was incomplete, edited, and not entirely
responsive. The Media asked for “full disclosure” showing the law
enforcement response so the public could “evaluate and determine
whether more could have, or should have, been done.”
The School Board opposed releasing additional footage. It contended
that the extensive video footage sought by the Media revealed much more
-4-
than the “minimal” footage originally produced. It further argued that the
Media had not stated any “good cause” for the additional footage because
the additional footage sought captured officers’ actions after Cruz had
dropped his weapon and exited the building.
The Media’s motion for further relief spurred three hearings and the
appealed order.
The first hearing was a case management conference held on March 23.
The Media insisted that it was not seeking any footage of victims – that it
was seeking only footage from the exterior cameras showing the law
enforcement response. The circuit court clarified that “anyone on the
video, other than law enforcement,” was going to be pixelated. The BSO
did not object to producing additional footage. The court ordered the
Media to narrow its request.
The Media then filed its “Amended and Supplemental Motion for
Further Relief.” The Media specified that it was not seeking any video:
(a) depicting the victims of the shooting,
(b) showing the interior of any school building,
(c) specifically identifying any student, or
(d) depicting Nikolas Cruz.
The Media sought only video from cameras mounted on Buildings 12,
13, 6, 7, 9, 3, the gymnasium, and the auditorium which depicted law
enforcement personnel responding to the shooting from 2:15-4:00 p.m.
The second hearing was conducted on April 2. The BSO stated that it
was not opposed to releasing video showing first responders but it opposed
releasing video showing victims or children’s faces.
The School Board argued against releasing any more video. It argued
that releasing additional video would reveal the vulnerabilities of Douglas’s
security system.
After clarifying what the Media was seeking and what the footage would
reveal, the court found the request over-inclusive. The judge ordered that
the footage to be released would stop at 3:00 p.m. An evidentiary hearing
was set for April 4.
At the final evidentiary hearing, a detective testified that Cruz had been
indicted and was the subject of a continuing active criminal investigation.
He said that the first law enforcement personnel seen on the video is at
-5-
2:32 p.m. He testified that of the 5-6 cameras that show first responders,
3-4 were not previously produced.
The chief information officer for the BSO who oversees information
technology for the entire Broward County School District testified that he
is responsible for “the installation and ongoing maintenance of the
surveillance cameras.” He testified that surveillance cameras at Douglas
are “not typically monitored,” and that “no one is sitting watching those
cameras but they’re recording so that if you need to go back and look at
the footage, you can.”
A Douglas assistant principal responsible for technology, which
included surveillance technology, testified that the cameras were used to
monitor the students and to prevent truancy.
Another assistant principal expressed his concern that releasing video
footage from more cameras would expose the school’s blind spots.
A Major with the school board police supported the view that releasing
the videos would show what the school was not recording, jeopardizing the
integrity of the security system.
After hearing argument the court found that an in camera review of the
redacted footage would be appropriate. Two weeks later, the court issued
its “Order on Petitioners’ Amended and Supplemental Motion for Further
Relief,” which is the subject of this appeal.
The order found the footage to be a public record and rejected the State
Attorney’s attempt to bar disclosure under the “active criminal
investigative information” exemption.
Addressing the School Board’s argument that the videos are exempt
from disclosure because they “relate directly to or reveal information about
security systems,” the court found that the videos “minimally reveal
information relating to the security system” of Douglas, but concluded that
“good cause exists that permits disclosure:”
In making this decision, this Court has balanced the public’s
right to be informed regarding the law enforcement response
against the potential harm to the current security system.
After reviewing the video recordings, this Court finds that the
potential harm to the current security system is outweighed
by the strong public interest in disclosure.
-6-
Upon finding good cause, the court held that section 119.071(3), Florida
Statutes, did not bar disclosure of the video recordings.
The BSO was ordered to produce the redacted versions of the video
recordings to the Media. The State Attorney and the School Board each
timely appealed, and the videos were not released pending the outcome of
this case. As a sealed part of the record on appeal, footage from the five
cameras was forwarded to this court.
The videos here at issue are public records subject to disclosure within
the meaning of Article I, section 24(a) of the Florida Constitution and
Chapter 119, Florida Statutes (2018). The central issue before us is
whether the footage is statutorily exempt from disclosure. An “exemption”
is defined as “a provision of general law which provides that a specified
record . . . is not subject to the access requirements of [the Public Records
Act].” § 119.011(8), Fla. Stat. (2018).
The Public Records Act “is to be construed liberally in favor of openness,
and all exemptions from disclosure construed narrowly and limited to their
designated purpose.” Barfield v. City of Ft. Lauderdale Police Dep’t, 639
So. 2d 1012, 1014 (Fla. 4th DCA 1994). “[W]hen in doubt the courts
should find in favor of disclosure rather than secrecy.” Bludworth v. Palm
Beach Newspapers, Inc., 476 So. 2d 775, 779 n.1 (Fla. 4th DCA 1985)
(“Expansion of the exemptions from disclosure, rather than of the
exclusions from the categories called criminal investigative and criminal
intelligence information, is the area of which the courts ought to be chary,
given the overarching policy of the Public Records Act.”).
We reject the State Attorney’s argument that the video footage is exempt
from disclosure under section 119.071(2), Florida Statutes (2018),
because the footage was created before the criminal investigation began
and was compiled by the School Board, not a law enforcement agency.
By statute, “active criminal investigative information” is exempt from
disclosure under the Public Records Act. § 119.071(2)(c)1., Fla. Stat.
(2018). “The government has the burden to demonstrate the applicability
of a statutory exemption.” Rameses, Inc. v. Demings, 29 So. 3d 418, 421
(Fla. 5th DCA 2010). In order for a public record to be exempt under the
cited section, “the claimant must show that the record is both ‘active’ and
that it constitutes ‘criminal investigative information.’” Woolling v. Lamar,
764 So. 2d 765, 768 (Fla. 5th DCA 2000).
-7-
Criminal investigative information is information compiled by a
criminal justice agency in the course of conducting a criminal
investigation. The statutory definition provides:
“Criminal investigative information” means information with
respect to an identifiable person or group of persons compiled
by a criminal justice agency in the course of conducting a
criminal investigation of a specific act or omission, including,
but not limited to, information derived from laboratory test
reports of investigators or informants, or any type of
surveillance.
§ 119.011(3)(b), Fla. Stat. (2018). Such information is “active” “as long as
it is related to an ongoing investigation which is continuing with a
reasonable, good faith anticipation of securing an arrest or prosecution in
the foreseeable future [including] while such information is directly related
to pending prosecutions or appeals.” Id. § 119.011(3)(d).
The criminal investigative information exemption “furthers the critical
importance of preserving the confidentiality of police records surrounding
and compiled during an active criminal investigation, . . . and is intended
to prevent premature disclosure of information during an ongoing
investigation being conducted in good faith by criminal justice
authorities.” Palm Beach Cty. Sheriff’s Office v. Sun-Sentinel Co., LLC, 226
So. 3d 969, 973 (Fla. 4th DCA 2017) (internal quotation marks and
citations omitted).
However, the criminal investigative information exemption “does not
exempt other public records from disclosure simply because they are
transferred to a law enforcement agency.” 40 Government-In-The-
Sunshine-Manual, section II-C-15-a-9 at 101 (2018 Ed.); 2 see also Tribune
Co. v. Cannella, 438 So. 2d 516 (Fla. 2d DCA 1983), quashed on other
grounds, 458 So. 2d 1075 (Fla. 1984). The Attorney General’s office has
steadfastly opined that an agency’s public records do not become exempt
from disclosure simply because they are transferred to a law enforcement
agency. E.g., Op. Att’y Gen. Fla. (Dec. 13, 2006) (informal opinion); Op.
Att’y Gen. Fla. 06-04 (2006); Op. Att’y Gen. Fla. 01-75 (2001).
2
The Attorney General publishes the Government-In-The-Sunshine Manual “for
use by public officials in navigating issues regarding the Sunshine Law.”
Transparency for Fla. v. City of Port St. Lucie, 240 So. 3d 780, 787 (Fla. 4th DCA
2018).
-8-
Cannella demonstrates that public records of a governmental entity do
not transform into protected “criminal investigative information” because
they have been transferred to a law enforcement agency. There, after a
police-involved shooting, the Tampa Times sought the release of the
personnel files of three Tampa police officers. 438 So. 2d at 517-18. In
response, the City of Tampa first delayed production of the records and
then claimed that it could not produce the records because they had been
subpoenaed by the state attorney. Id. At 518. The Times filed a second
petition against the Chief Assistant State Attorney Norman Cannella. Id.
The trial court held that the records were exempt from disclosure as
“criminal investigative information.” Id.
The Second DCA reversed, finding that the criminal investigative
information exemption did not apply to the City’s public records. Id. at
523. The District Court rejected the state attorney’s argument that by
subpoenaing the records he had “compiled” the information within the
meaning of the exemption. Id. The court found that the personnel records
were “‘compiled’ within the meaning of the statute when the custodial
agency, the city, originally accumulated the materials in them. A law
enforcement agency cannot withdraw materials from public scrutiny by
deeming another ‘compilation’ to occur simply because it subpoenas such
records.” Id. (emphasis added). The court also noted that “information
filed before an investigative process begins cannot be criminal investigative
information.” Id. (citing Op. Att’y Gen. Fla. 080-96 (1980)).
In sum, the videos were not “criminal investigative information” within
the meaning of section 119.011(3)(b) because they were not compiled by a
criminal justice agency in the course of conducting a criminal
investigation.
The circuit court did not use this reasoning in deciding that the
“criminal investigative information” exemption from disclosure did not
apply. Nonetheless, we affirm the trial court on this issue under the “tipsy
coachman” doctrine, which “allows an appellate court to affirm a trial court
that ‘reaches the right result, but for the wrong reasons’ so long as ‘there
is any basis which would support the judgment in the record.’” Robertson
v. State, 829 So. 2d 901, 906 (Fla. 2002) (quoting Dade Cty. Sch. Bd. v.
Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999)).
The School Board asserts that the surveillance footage is statutorily
exempt from disclosure under the “security plan” exemption contained in
section 119.071(3), Florida Statutes (2018). We hold that the “good cause”
exception to this exemption applies, so that disclosure is mandated.
-9-
Information relating to the School’s security system is public record.
However, by statute, it is exempt from disclosure. § 119.071(3)(a), Fla.
Stat. (2018); see also § 281.301(1), Fla. Stat. (2018).
Section 119.071 is entitled “General exemptions from inspection or
copying of public records.” The “security plan” exemption is found in
subpart (3) which reads:
(3) Security and firesafety.—
(a) 1. As used in this paragraph, the term “security or
firesafety system plan” includes all:
a. Records, information, photographs, audio and
visual presentations, schematic diagrams,
surveys, recommendations, or consultations or
portions thereof relating directly to the physical
security or firesafety of the facility or revealing
security or firesafety systems;
b. Threat assessments conducted by any agency
or any private entity;
c. Threat response plans;
d. Emergency evacuation plans;
e. Sheltering arrangements; or
f. Manuals for security or firesafety personnel,
emergency equipment, or security or firesafety
training.
2. A security or firesafety system plan or portion
thereof for:
a. Any property owned by or leased to the state or
any of its political subdivisions; or
b. Any privately owned or leased property
held by an agency is confidential and exempt . . .
§ 119.071(3)(a), Fla. Stat. (2018) (emphasis supplied). The language
highlighted above defines an exempt “security system plan” to include
“audio and visual presentations . . . relating directly to the physical
security . . . of the facility.” § 119.071(3)(a)1.a., Fla. Stat. (2018); see also
281.301(1), Fla. Stat. (2018).
Because the footage from the surveillance cameras “relates directly” to
the security system at Douglas, including both its capabilities and its
vulnerabilities, the footage is confidential and exempt from disclosure to
the public under sections 119.071(3)(a) and 281.301(1), unless an
exception to the exemption applies.
- 10 -
Public information that is confidential and exempt from disclosure
because it is directly related to a security system “may be disclosed” upon
“a showing of good cause before a court of competent jurisdiction.” §
119.071(3)(a)3.d.; § 281.301(2)(d). The “good cause” statutory exception to
the security system exemption reads:
3. Information made confidential and exempt by this
paragraph may be disclosed:
* * *
d. Upon a showing of good cause before a court of
competent jurisdiction.
§ 119.071(3)(a)3, Fla. Stat. (2018) (emphasis added). 3 The good cause
exception to the security plan exemption was inserted into both exemption
statutes effective April 1, 2016. Ch. 16-178, § 1, at 1-2, Laws of Fla.
The Media and the School Board look to two statutes that define or
analyze “good cause.” See § 406.135, Florida Statutes (2018) (concerning
photographs of autopsies); Dep’t of Health & Rehab. Servs. v. Gainesville
Sun Publ’g Co., 582 So. 2d 725 (Fla. 1st DCA 1991) (interpreting an earlier
version of section 119.07 concerning child abuse records). We do not
adopt either approach. Both statutes evaluate disclosure of records when
set against an individual’s not insubstantial right of privacy. Here, given
the constitutional commitment to open government, the scales are weighed
heavily in favor of disclosure. Also, these statutes demonstrate that the
legislature is capable of elucidating “good cause” when it wishes to do so.
“[G]ood cause is not a novel concept to our jurisprudence.” Campus
Communications, Inc. v. Earnhardt, 821 So. 2d 388, 395 (Fla. 5th DCA
2002). We conclude that the legislature intended the courts to apply a
common law approach to “good cause,” where meaning emerges over time,
on a case-by-case basis, and courts arrive at a desirable equilibrium
between the competing needs of disclosure and secrecy of government
records.
In Dohnal v. Syndicated Offices Systems, the Supreme Court considered
the meaning of “good cause” when it related to a probate court’s discretion
to extend a creditor’s time to file a claim under section 733.705(3), Florida
Statutes (Supp. 1984), which did not define “good cause”:
We defined good cause in Goldman [In re Goldman’s Estate, 79
So. 2d 846 (Fla.1955)], finding that it is “‘a substantial reason,
3 The language of section 281.301(2)(d) is identical.
- 11 -
one that affords a legal excuse,’ or a ‘cause moving the court
to its conclusion, not arbitrary or contrary to all the evidence,’
and not mere ‘ignorance of law, hardship on petitioner, and
reliance on [another's] advice.’” 79 So. 2d at 848 (citations
omitted.) Judge Sharp correctly pointed out in Williams [v.
Estate of Williams, 493 So.2d 44 (Fla. 5th DCA 1986)] that,
“[w]hat is or is not sufficient to establish ‘good cause’ . . . is
primarily addressed to the conscience and discretion of the
probate judge.” 493 So. 2d at 45.
The determination of good cause is based on the peculiar facts
and circumstances of each case. Obviously the trial court is
in the best position to weigh the equities involved, and his
exercise of discretion will be overruled only upon a showing of
abuse.
529 So. 2d 267, 269 (Fla. 1988). 4
Applying the Supreme Court’s formulation of “good cause,” the circuit
judge did not abuse his discretion in deciding that the “minimal” revelation
of information relating to the security system was outweighed by the
public’s need for the information.
It is a sad commentary on our times that there must be a full and open
public discussion about (1) the type of security system that is appropriate
for a large public high school and (2) the appropriate law enforcement
response to an active shooter on a high school campus. Parents have such
a high stake in the ultimate decisions that they must have access to
camera video footage here at issue and not blindly rely on school board
experts to make decisions for them.
Here, the Media showed that the footage would reveal the response of
law enforcement personnel and other first responders during and
immediately after an active shooting at Douglas during school hours. The
Media showed the need for the public to actually witness the events as
they unfolded because the narrative provided by “the authorities” is
confusing and has shifted and changed over time. Reviewing the footage
would allow the public to witness and evaluate:
4
The Supreme Court’s formulation is consistent with the dictionary definition of
“good cause” as a “legally sufficient ground or reason.” BLACK’S LAW DICTIONARY,
692 (6th ed. 1990); see also Morrison Mgmt. Specialists/Xchanging Integrated
Servs. Group, Inc. v. Pierre, 77 So. 3d 662, 666 (Fla. 1st DCA 2011).
- 12 -
(1) when first responders arrived on campus;
(2) where the first responders went when they arrived on
campus; and
(3) what the first responders did when they arrived on
campus.
The evidence presented by the Media establishes that different sources
tell different stories about the first responders’ conduct. The footage itself
would reveal if the first responders rushed into Building 12 to confront the
active shooter, formed a perimeter, or hid in stairwells and behind their
vehicles for an unreasonable length of time.
The Media established good cause because the footage reveals the
conduct of public servants “discharging their assigned duties and
responsibilities.” Cannella, 438 So. 2d at 521. In addition, the footage
provides insight into how Douglas’s security “net,” including the use of 70
unmonitored and possibly time-delayed cameras, failed to protect the
students and staff on February 14.
For these reasons, we affirm the Order on Petitioners’ Amended and
Supplemental Motion for Further Relief in all respects. By statute, the
BSO shall comply with this order within 48 hours. § 119.11(2), Fla. Stat.
(2018).
KLINGENSMITH, J., concurs.
CONNER, J., concurs in part and dissents in part, with opinion.
CONNER, J., concurring in part and dissenting in part.
I concur with the majority opinion’s analysis and conclusion that the
surveillance video footage sought to be obtained by the appellees does not
qualify for a public records request exemption under the section
119.071(2), Florida Statutes (2018) (the criminal investigation and
criminal information exemption), but does qualify for an exemption under
section 119.071(3), Florida Statutes (2018) (the “security plan” exemption).
I respectfully dissent from the majority’s holding and conclusion that the
“good faith” exception to the “security plan” exemption applies, so as to
authorize release of the surveillance videos. More particularly, I conclude
from the record that there was insufficient substantial competent evidence
to support the trial court’s finding that release of the surveillance videos
would “minimally reveal information relating to the security system.”
Although the evidence showed there are 70 surveillance cameras on the
Douglas campus, the appellants limited their request to video footage from
- 13 -
exterior surveillance cameras covering six specific buildings, plus the
gymnasium and the auditorium. What the majority does not discuss in
any detail is the testimony of two school board witnesses detailing their
concerns that release of the surveillance videos would expose “holes” or
weaknesses in the “security system net” for the campus, of which the video
cameras are a major component. One of the witnesses was an assistant
principal at the Douglas campus; the second witness was a Major in the
school district police force. The assistant principal was responsible for
overseeing the security system for the Douglas campus; the Major was
responsible for developing and maintaining the security system for the
entire school district, and was specifically familiar with the Douglas
campus. Their testimony was in the nature of expert opinion, and the
appellees did not impeach their testimony or opinions in any significant
way. More importantly, the appellees called no witnesses at the
evidentiary hearing and presented no conflicting or competing evidence.
With all due respect to the trial judge, there was insufficient evidence
to demonstrate the exposure of the security net provided by the
surveillance cameras was “minimal.” It is unclear from the record how
many exterior security cameras were used to generate the video footage
being released. It is also unclear from the record how those cameras
interface, in terms of coverage, with the other exterior cameras which did
not capture law enforcement images. Without knowing such information,
I submit one cannot clearly understand the extent of the exposure of
weaknesses.
Common sense would lead one to conclude that a surveillance system
using 70 cameras covering numerous buildings over a large campus with
a large student body requires sophisticated technical analysis to determine
whether gaps in camera coverage create a risk to security. Two school
board employees charged with the responsibility of developing and
maintaining the security system for the Douglas campus opined the
release of the requested footage would expose the system’s weaknesses.
More importantly, the risk of exposing weaknesses in the security system
did not pertain to just the Douglas campus, but to other school campuses
in the district.
The trial court was free to reject the testimony and opinion of the school
board witnesses. See Hay v. Hay, 944 So. 2d 1043, 1046 (Fla. 4th DCA
2006) (“The trial court is the judge of the facts and the credibility of the
witnesses.”) (citing Santiago v. State, 889 So. 2d 200, 203-04 (Fla. 4th DCA
2004)). However, assuming the trial court rejected the testimony, the
appellee’s failure to present countervailing evidence left the trial court with
no evidence upon which to find the disclosure would “minimally reveal
- 14 -
information relating to the security system,” or, more importantly, the
weaknesses in the security system. To a lay person, it may seem that not
knowing how many cameras were involved to generate the footage and how
those cameras interface with other cameras in the system means the risk
of exposure of weaknesses is minimal, but to persons knowledgeable about
how security systems are designed and employed (through information
mined from the internet or formal training), the requirement that the
disclosure include all footages showing law enforcement presence would
reveal information a lay person is unable to readily see and appreciate.
I completely agree that the public has the right to know and evaluate
not only the response of law enforcement to an active shooter, but also
what surveillance security measures school systems are using to detect
the presence of unwanted intruders on public school campuses.
Undoubtedly, the school board will be evaluated by the public on the
already disclosed information that the surveillance camera system on the
Douglas campus was not routinely monitored. But in granting an
exemption to the public records law, for obvious safety reasons, the
legislature did not intend for the public to know the current gaps in a
security system. There was some evidence presented that the school board
was assessing the need for changes to the current surveillance system.
Once significant changes are made to the surveillance camera system, I
would agree that the requested footage for February 14, 2018, should be
released under the “good faith” exception, so the public can have a better
understanding of what happened that day.
My final disagreement with the majority’s opinion is that it does not
address the request of the school board to further redact information in
the video footage that reveals the camera number, the location of the
camera, the camera angle, and where and how cameras are pointed at the
perimeter of the campus. At a minimum, the school board’s request
should be granted to address the safety concerns I discuss in my dissent.
* * *
No motion for rehearing will be entertained.
Mandate shall issue immediately.
- 15 -