STATE OF FLORIDA v. DACOBY RESHARD WOOTEN AND THE PALM BEACH POST

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Petitioner,

v.

DACOBY RESHARD WOOTEN and

THE PALM BEACH POST,

Respondents.

No. 4D18-2636

[November 28, 2018]

Petition for writ of certiorari to the Circuit Court for the Fifteenth

Judicial Circuit, Palm Beach County; Cheryl A. Caracuzzo, Judge; L.T.

Case No. 50-2015-CF-011635-AXXX-MB.

Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B.

Hernandez, Assistant Attorney General, West Palm Beach, for petitioner.

Carey Haughwout, Public Defender, and Christine Geraghty, Assistant

Public Defender, West Palm Beach, for respondent Dacoby Reshard

Wooten.

L. Martin Reeder Jr. of Atherton McAuliffe & Reeder, PA, West Palm

Beach, for respondent The Palm Beach Post.

LEVINE, J.

The state asks us to prevent the disclosure of information that it had

redacted from search warrants and warrant applications related to this

pending criminal prosecution. We deny the petition and require an

unredacted disclosure of the search warrants and applications to the

defendant. Due process mandates it.

We also deny the petition as to the other portion of the order and require

that there be an unredacted disclosure to the public and third parties. As

to the public disclosure, first, the state did not preserve any argument

regarding section 119.071, Florida Statutes (2018); second, this case does

not involve a public records request under section 119.071; third, the trial

court did not abuse its discretion in finding that the state did not meet its

burden to justify closure; and finally, there is a common law “right to

access” judicial records where the state has failed to demonstrate a

compelling governmental interest in non-disclosure.

Because the requirements for certiorari review have not been met, we

deny the petition and require the unredacted disclosure of the search

warrants and the accompanying applications to the defendant and the

public.

The defendant allegedly committed a murder, shot at a witness to the

murder, and then fled the scene. Law enforcement obtained search

warrants authorizing electronic tracking of the defendant’s cell phone and

the cell phone of a friend with whom the defendant allegedly was hiding.

The order authorizing the search warrants stated that the warrants and

supporting documents would be “sealed until further Order of this Court.”

Law enforcement apprehended the defendant at the friend’s apartment.

The search warrants, applications, affidavits, return, and inventory were

not filed with the clerk of court as required by chapter 933, Florida

Statutes. 1

The defendant sought discovery regarding cell phone tracking,

including requests for all warrants relating to his cellphone. The state

eventually filed with the court unredacted versions of the warrant

documents under seal. The state sought to provide only redacted versions

of the search warrants and applications to the defense and to prevent

dissemination to third parties. The redacted information related to the

tracking of cell phones.

The defendant moved to unseal the documents. The Palm Beach Post

filed a motion to intervene seeking to vacate the order limiting disclosure

of the redacted documents and requesting public access to the unredacted

documents.

The trial court held a hearing on the motion to unseal and the motion

to intervene. The trial court explained that during a prior hearing it treated

the state’s request to limit the unsealing as a motion to determine

confidentiality of court records under Florida Rule of Judicial

Administration 2.420. The trial court recognized that, under rule 2.420,

warrants are court records. Rule 2.420(c)(6) exempts warrants and

supporting documents from disclosure only until execution of the warrant

or until it is determined that execution is not possible.

1The record does not explain why the executed search warrants and related

documents were not immediately filed with the court as required by law.

2

The state argued that “investigative techniques” should be deemed

confidential to “protect a compelling governmental interest,” referring to

rule 2.420(c)(9)(A)(iii). The trial court stated that it had reviewed the

unredacted materials in camera and concluded that the state’s reasons for

restricting disclosure did not amount to a compelling governmental

interest.

The trial court granted the motion to unseal and ordered the

unredacted records unsealed and made open to the public by a certain

date. The trial court granted the Post’s motion to intervene and denied the

Post’s motion to unseal as moot in light of the court granting the

defendant’s motion. The state petitioned this court for certiorari review.

This court stayed the release of the unredacted documents pending our

certiorari review.

The state argues that the trial court departed from the essential

requirements of law by ordering the release of privileged surveillance

techniques that are not subject to public disclosure under section

119.071(2)(d), Florida Statutes. The state contends that disclosure of

“privileged surveillance techniques” will irreparably harm the state

because it “will inform fugitives how to avoid lawful surveillance and to

evade capture.” The state alternatively argues that, even if the defendant

is entitled to the unredacted documents, this court should find the

unredacted documents are exempt from public disclosure.

To invoke certiorari jurisdiction, the state must show that the order

complained of constitutes a departure from the essential requirements of

law and causes the state material harm that cannot adequately be

remedied on appeal. State v. Pettis, 520 So. 2d 250, 252 (Fla. 1988). This

extraordinary writ is reserved for situations where there is a “violation of

a clearly established principle of law resulting in a miscarriage of justice.”

Id. at 254. We find that the trial court did not depart from the essential

requirements of law in the present case.

I. PRESERVATION, JURISDICTION, AND STANDARD OF REVIEW

Initially, the state did not preserve the arguments raised in its petition.

During the proceedings below, the state did not specifically assert a

“surveillance technique privilege” under section 119.071(2)(d) or cite to any

chapter 119 exemption. In fact, the state did not even use the term

“surveillance.” During the hearing, the trial court discussed Florida Rule

of Judicial Administration 2.420. The state argued that “investigative

techniques” should be deemed confidential to “protect a compelling

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governmental interest,” referring to rule 2.420(c)(9)(A)(iii). 2 The state did

not argue any other grounds for closure under rule 2.420. Further, at no

point did the state put the trial court on notice that it was in any way

relying on section 119.071. The state did not cite this statute, track any

language from the statute, or cite any cases involving that statute. See

Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985) (stating that in order to

preserve an issue for appellate review, the specific legal ground or

argument relied upon for appeal must have been presented to the trial

court).

Even if the state’s arguments were preserved, the standard of review for

all of the issues on appeal is abuse of discretion. “[I]t is within the sound

discretion of the trial judge to grant or limit criminal discovery.” State v.

Kuntsman, 643 So. 2d 1172, 1173 (Fla. 3d DCA 1994). “[T]he decision as

to access is one best left to the sound discretion of the trial court, a

discretion to be exercised in light of the relevant facts and circumstances

of the particular case.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599

(1978). See also Miami Herald Pub. Co., a Div. of Knight-Ridder

Newspapers, Inc. v. Morphonios, 467 So. 2d 1026, 1029 (Fla. 3d DCA 1985)

(“The trial court, upon ruling that a closure is warranted, must make

findings of fact and must extend its order no further than the

circumstances require.”); Smithwick v. Television 12 of Jacksonville, Inc.,

730 So. 2d 795, 798 (Fla. 1st DCA 1999) (applying abuse of discretion

standard in ruling on motion to seal). The public right to access judicial

records or documents under common law is also reviewed for abuse of

discretion. See Nixon, 435 U.S. at 599.

II. DISCLOSURE TO DEFENDANT

The defendant sought unredacted copies of the search warrants and

applications. Florida Rule of Criminal Procedure 3.220, which governs

discovery, provides that the state must disclose “whether there has been

any search or seizure and any documents relating thereto.” Fla. R. Crim.

2 Although not explicitly argued, there is a difference between “surveillance

techniques” and “investigative techniques.” Most criminal cases include

“investigative techniques” of some variety, while “surveillance techniques” are

less frequently utilized and are more particularized. See United States v. Ramirez-

Encarnacion, 291 F.3d 1219, 1222 n.2 (10th Cir. 2002) (stating that traditional

investigative techniques include “(1) standard visual and aural surveillance; (2)

questioning and interrogation of witnesses or participants (including the use of

grand juries and the grant of immunity if necessary); (3) use of search warrants;

and (4) infiltration of conspiratorial groups by undercover agents or informants”

as well as “[p]en registers and trap and trace devices”).

4

P. 3.220(b)(1)(H). Because the search warrants and applications were

documents related to a search or seizure, the state was required to provide

them to the defendant. See id.

“Florida’s criminal discovery rules are designed to facilitate a truthful

fact-finding process and to prevent surprise and trial by ambush. To

ensure full and fair discovery, parties must both comply with the technical

provisions of the discovery rules and adhere to the purpose and spirit of

those rules in the criminal and civil contexts.” Wilcox v. State, 143 So. 3d

359, 375-76 (Fla. 2014) (citations omitted); see also Williams v. Florida,

399 U.S. 78, 81 (1970) (noting that “Florida law provides for liberal

discovery by the defendant against the State”). A defendant has a due

process right under both the federal and Florida constitutions to defend

himself against criminal charges, see U.S. Const. amend. V; Fla. Const.

art. 1, § 9, and a discovery violation may prevent a defendant from properly

preparing for trial. See Scipio v. State, 928 So. 2d 1138, 1147 (Fla. 2006);

Wilcox v. State, 367 So. 2d 1020, 1023 (Fla. 1979). Due process requires

that the state disclose potentially exculpatory evidence to the defendant.

Brady v. Maryland, 373 U.S. 83, 87 (1963). Due process also requires that

discovery “be a two-way street.” Wardius v. Oregon, 412 U.S. 470, 475

(1973).

Rule 3.220 explains when a court may restrict discovery:

The court on its own initiative or on motion of counsel shall

deny or partially restrict disclosures authorized by this rule if

it finds there is a substantial risk to any person of physical

harm, intimidation, bribery, economic reprisals, or

unnecessary annoyance or embarrassment resulting from the

disclosure, that outweighs any usefulness of the disclosure to

either party.

Fla. R. Crim. P. 3.220(e). The rule also states that “[d]isclosure of a

confidential informant shall not be required unless the confidential

informant is to be produced at a hearing or trial or a failure to disclose the

informant’s identity will infringe the constitutional rights of the

defendant.” Fla. R. Crim. P. 3.220(g)(2).

Applying the plain language of the rule to this case, restricting the

disclosure of the search warrant documents was not authorized because

there was no “substantial risk to any person of physical harm,

intimidation, bribery, economic reprisals, or unnecessary annoyance or

embarrassment resulting from the disclosure.” See Fla. R. Crim. P.

3.220(e). Nor did the redacted information relate to the disclosure of a

5

confidential informant or the equivalent. Thus, the trial court did not

depart from the essential requirements of the law in mandating the

disclosure of the unredacted search warrants and applications to the

defendant.

III. DISCLOSURE TO PUBLIC

A) THE STATE FAILED TO MEET ITS BURDEN FOR NON-DISCLOSURE

As to disclosure to third parties and the public, the state argues that

the redacted information contains “surveillance techniques not widely

known to the public.” However, rule 2.420 does not recognize a

surveillance technique exception. Nor is the “not widely known to the

public” language found in section 119.071(2)(d), upon which the state now

relies. Moreover, the state does not identify any grounds in the record

upon which it bases it argument. In determining if closure is necessary

“an evidentiary hearing should be held and findings of fact should be

recorded by the judge in his order granting or refusing closure.” Miami

Herald Pub. Co. v. Lewis, 426 So. 2d 1, 7-8 (Fla. 1982). In this case, the

state did not offer any evidence that the redacted information contained

“surveillance techniques” under section 119.071(2)(d) nor did the state

demonstrate that the alleged surveillance techniques were “not widely

known.” Therefore, there is no record upon which the state can rely. The

state is simply advancing an “it is because I say it is” position. This sort

of ipse dixit reasoning is insufficient to support a finding that the trial

court’s ruling was an abuse of discretion, much less a departure from the

essential requirements of law.

Under the Lewis three-prong balancing test:

Those who seek closure of a pretrial proceeding (or a

restraint operating as a closure), must first provide an

adequate basis to support a finding that closure is necessary

to prevent a serious and imminent threat to the

administration of justice. Second, those seeking closure are

required to show that no less restrictive alternative measures

than closure are available for this purpose. Third, those

seeking closure must demonstrate that there is a substantial

probability that closure will be effective in protecting against

the perceived harm.

Morphonios, 467 So. 2d at 1029 (footnote omitted).

6

As the party seeking “a restraint operating as a closure,” see id., the

burden remained on the state to justify closure. Barron v. Fla. Freedom

Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988); Lewis, 426 So. 2d at 8.

The state has not demonstrated an abuse of discretion in that no trial

court would have ruled the way this trial court has. After reviewing the

redacted information in camera, the trial court found: “The state made

arguments that there is a need to protect law enforcement techniques so

they do not become common knowledge thus thwarting the investigative

means. However, no testimony or evidence was presented to support why

this is a compelling government interest.” (emphasis added). Likewise,

there was no testimony or evidence presented to support the state’s

argument that the redacted information involved privileged surveillance

techniques.

The trial court’s finding constitutes a factual determination based on

the evidence submitted to the court and a further finding that the state

did not meet its burden to establish a grounds for closure. See id. Since

an appellate court may not “substitute its judgment for that of the trial

court on questions of fact,” we are compelled to accept the trial court’s

factual determination based on the evidence that the state presented to it.

Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (citation omitted).

B. RULE 2.420, NOT CHAPTER 119, APPLIES

To implement article I, section 24(a) of the Florida Constitution, the

supreme court adopted Florida Rule of Judicial Administration 2.051,

which has since been renumbered to rule 2.420. Rule 2.420, which

governs public access to judicial branch records, provides that “[t]he

public shall have access to all records of the judicial branch of

government” except in limited circumstances. Fla. R. Jud. Admin.

2.420(a). Under this rule, “[c]opies of arrest and search warrants and

supporting affidavits retained by judges, clerks, or other court personnel”

“shall be confidential” “until execution of said warrants.” Fla. R. Jud.

Admin. 2.420(c)(6) (emphasis added). Significantly, the search warrants

in this case have already been executed.

Rule 2.420(c)(1)-(6) enumerates specific judicial branch records which

are confidential; the records here are not such records. Additionally, rule

2.420(c)(9)(A) recognizes the following judicial records as confidential:

(9) Any court record determined to be confidential in case

decision or court rule on the grounds that

(A) confidentiality is required to

7

(i) prevent a serious and imminent threat to the fair, impartial,

and orderly administration of justice;

....

(iii) protect a compelling governmental interest;

....

(vii) comply with established public policy set forth in the

Florida or United States Constitution or statutes or Florida

rules or case law[.]

Even where one of these factors under (9)(A) is present, “the degree,

duration, and manner of confidentiality ordered by the court shall be no

broader than necessary” and there must be “no less restrictive measures .

. . available to protect the interests.” Fla. R. Jud. Admin. 2.420(c)(9)(B),

(C).

Among these exceptions, in the proceedings below, the state argued

only that redaction was necessary to protect “a compelling governmental

interest,” without presenting any evidence in support of its position. The

trial court, after reviewing the redacted information in camera, made a

factual determination that the redacted information did not fall within

these disclosure exceptions. As previously noted, the trial court did not

abuse its discretion in making this determination based on the record

before it.

In its petition, the state relies heavily on chapter 119. However, chapter

119 is inapplicable because this case does not involve an agency public

records request. Neither the defendant nor The Palm Beach Post made

any public records request to an agency. The Post filed only a motion to

intervene in the trial court proceedings. Section 119.011 defines

“[a]gency” as:

any state, county, district, authority, or municipal officer,

department, division, board, bureau, commission, or other

separate unit of government created or established by law

including, for the purposes of this chapter, the Commission

on Ethics, the Public Service Commission, and the Office of

Public Counsel, and any other public or private agency,

person, partnership, corporation, or business entity acting on

behalf of any public agency.

8

Article II, section 3 of the Florida Constitution provides: “The powers of

the state government shall be divided into legislative, executive and

judicial branches. No person belonging to one branch shall exercise any

powers appertaining to either of the other branches unless expressly

provided herein.” Thus, under the separation of powers doctrine, only the

judiciary has the inherent power to maintain its records and to determine

the manner to access these records. See Times Publ’g Co. v. Ake, 660 So.

2d 255, 257 (Fla. 1995); Locke v. Hawkes, 595 So. 2d 32, 36-37 (Fla.

1992).

Access to judicial branch records is governed by the rules and decisions

of the Florida Supreme Court, not Chapter 119, Florida Statutes. Ake,

660 So. 2d at 257. In Locke, the supreme court held that the legislature

was not an agency which is subject to the Public Records Act. 595 So. 2d

at 37. In Ake, the supreme court expanded its holding in Locke and held

that court records maintained by the clerk of the circuit court are not

subject to the inspection and copying requirements of chapter 119. 660

So. 2d at 255. As the Ake court explained:

[T]he clerks of the circuit courts, when acting under the

authority of their article V powers concerning judicial records

and other matters relating to the administrative operation of

the courts, are an arm of the judicial branch and are subject

to the oversight and control of the Supreme Court of Florida,

rather than the legislative branch. We should emphasize that

this Court has exercised its authority and directly addressed

its responsibility in this area. In Barron v. Florida Freedom

Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), and Miami

Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), we

made clear that court records are presumed open and set

forth standards for exemptions. In In re Amendments to Rule

of Judicial Administration 2.051-Public Access to Judicial

Records, 651 So. 2d 1185 (Fla. 1995), this Court recently

implemented article I, section 24, of the Florida Constitution,

by setting forth the openness of court records, the standards

for exemptions, and, in an extensive commentary, an

explanation of the rule’s application.

Id. at 257. See also WFTV, Inc. v. Wilken, 675 So. 2d 674, 676 (Fla. 4th

DCA 1996) (“Ake stands for the proposition that access to judicial records

under the clerk’s control is governed exclusively by the supreme court.”).

Cf. Rameses, Inc. v. Demings, 29 So. 3d 418, 420 (Fla. 5th DCA 2010)

(applying chapter 119 in the context of a public records request to the

sheriff, an agency under chapter 119).

9

The state conflates records that are exempt under chapter 119 with

records that are confidential under rule 2.420. The state relies on section

119.071(2)(d), which states: “Any information revealing surveillance

techniques or procedures or personnel is exempt from s. 119.07(1) and s.

24(a), Art. I of the State Constitution.” Contrary to the state’s suggestion,

the judiciary has not adopted section 119.071(2)(d) via rule 2.420(c).

Chapter 119 speaks to both “exempt” records and records which are

“confidential and exempt.” Section 119.071(2)(d) only makes surveillance

techniques exempt, not confidential and exempt. In contrast, rule

2.420(c)(9)(A) adopts certain laws pertaining to confidential records.

Therefore, it does not adopt section 119.071(2)(d).

There is a difference, in the context of chapter 119, between exempt

information and confidential information:

If information is made confidential in the statutes, the

information is not subject to inspection by the public and may

only be released to the persons or organizations designated in

the statute. . . . If records are not confidential but are only

exempt from the Public Records Act, the exemption does not

prohibit the showing of such information.

WFTV, Inc. v. Sch. Bd. of Seminole, 874 So. 2d 48, 53-54 (Fla. 5th DCA

2004).

Further, rule 2.420 contains specific references to chapter 119 when

exemptions under that chapter apply. See Fla. R. Jud. Admin.

2.420(d)(1)(B), 2.420(d)(1)(B)(iii), (xiii). Had rule 2.420(c) intended to

incorporate section 119.071(2)(d), it would have included a specific

reference to that section. Courts are guided by the principle that “[n]othing

is to be added to what the text states or reasonably implies (casus omissus

pro omisso habendus est). That is, a matter not covered is to be treated as

not covered.” Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 93 (2012). “Whatever temptations the

statesmanship of policymaking might wisely suggest, construction must

eschew interpolation and evisceration. [The judge] must not read in by

way of creation.” Id. (quoting Felix Frankfurter, Some Reflections on the

Reading of Statutes, 47 Colum. L. Rev. 527, 533 (1947)) (alterations in

original). See also Coral Cadillac, Inc. v. Stephens, 867 So. 2d 556, 558–

59 (Fla. 4th DCA 2004) (“[W]hen a law expressly describes a situation

where something should apply, an inference must be drawn that what is

not included by specific reference was intended to be omitted or

10

excluded.”); Overstreet v. Blum, 227 So. 2d 197, 198 (Fla. 1969) (stating

that a statute adopts another statute by specifically referring to the first

statute).

Even accepting the state’s interpretation that chapter 119 applies to

this case—which it does not—certiorari relief still would be improper. “[I]t

is not the purpose of an in camera inspection for the court to decide

whether there are sufficient reasons to release requested information, but

rather to decide whether there are sufficient reasons not to release it.”

Tribune Co. v. Pub. Records, P.C.S.O. No. 79-35504 Miller/Jent, 493 So. 2d

480, 484 (Fla. 2d DCA 1986). The state here has not demonstrated

sufficient reasons not to release the documents.

“The general purpose of the Public Records Act (Chapter 119, Florida

Statutes (1995)), is to open public records to allow Florida’s citizens to

discover the actions of their government.” Christy v. Palm Beach Cty.

Sheriff’s Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997). “Florida

courts construe the public records law liberally in favor of the state’s policy

of open government. If there is any doubt about the application of the law

in a particular case, the doubt is resolved in favor of disclosing the

documents.” Nat’l Collegiate Athletic Ass’n v. Associated Press, 18 So. 3d

1201, 1206 (Fla. 1st DCA 2009) (citations omitted).

As the state correctly recognizes, once the state gives information to the

defendant in compliance with pretrial discovery criminal rules, the

disclosed information “attains the status of a public record.” Post-

Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549, 553 (Fla. 1992).

However, the state also relies on Post-Newsweek for the proposition that

“[d]iscovery is not intended to be a vehicle for the media to use in its search

for newsworthy information.” Id. The state’s reliance on Post-Newsweek

is misplaced inasmuch as it involves chapter 119 rather than section

2.420.

Additionally, Post-Newsweek recognized that the public’s right to

discovery materials may be limited where discovery “seriously implicate[s]

privacy interests of litigants and third parties.” Id. (emphasis added)

(citation omitted). In this case, no privacy interest of litigants or third

parties is implicated. Post-Newsweek further recognized “that this state’s

open government policy requires that information be available for public

inspection unless the information fits under a legislatively created

exemption.” Id. Here, the state did not demonstrate that the redacted

information fits under any exemption. Cf. Executive Office of the Governor

v. AHF MCO of Fla., Inc., 43 Fla. L. Weekly D2410 (Fla. 1st DCA Oct. 29,

2018) (finding, based on an undisputed sworn affidavit of an FDLE agent,

11

that release of information pertaining to the governor’s detailed schedule

and travel plans would compromise the governor’s safety and security).

C. PUBLIC’S COMMON LAW RIGHT TO ACCESS SEARCH WARRANT

MATERIALS

“[A]ll trials, civil and criminal, are public events and there is a strong

presumption of public access to these proceedings and their records,

subject to certain narrowly defined exceptions.” Barron, 531 So. 2d at 114

(emphasis omitted). “The reason for openness is basic to our form of

government. Public trials are essential to the judicial system’s credibility

in a free society.” Id. at 116.

Article I, section 24(a) of the Florida Constitution codifies the public’s

right to access judicial records and states:

Every person has the right to inspect or copy any public record

made or received in connection with the official business of

any public body, officer, or employee of the state, or persons

acting on their behalf, except with respect to records exempted

pursuant to this section or specifically made confidential by

this Constitution. This section specifically includes the

legislative, executive, and judicial branches of government

and each agency or department created thereunder; counties,

municipalities, and districts; and each constitutional officer,

board, and commission, or entity created pursuant to law or

this Constitution.

The Florida Supreme Court implemented this constitutional provision by

enacting what is now rule 2.420. Thus, rule 2.420 is a codification of the

common law right of access to public records. See In re Amendments to

Fla. Rule of Judicial Admin. 2.420-Sealing of Court Records & Dockets, 954

So. 2d 16, 21 (Fla. 2007) (stating that “individualized sealing orders must

meet the test first defined in Barron and subsequently codified in rule

2.420”).

The United States Supreme Court has generally recognized that the

public and press have a First Amendment right of access to criminal

proceedings. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980);

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Press-Enter.

Co. v. Superior Court of Cal., Riverside Cty., 464 U.S. 501 (1984) (“Press-

Enterprise I”); Press-Enter. Co. v. Superior Court of Cal. for Riverside Cty.,

478 U.S. 1 (1986) (“Press-Enterprise II”). Openness of judicial processes

12

“gives assurance that established procedures are being followed and that

deviations will become known.” Press-Enterprise I, 464 U.S. at 508.

Courts in general have recognized the right to access search warrant

documents as being firmly rooted in our history. In Entick v. Carrington,

19 How. St. Tr. 1029 (C.P. 1765), Lord Camden found general warrants

illegal because of their lack of checks, such as requiring an inventory of

items taken. As Justice Thomas noted in City of West Covina v. Perkins,

525 U.S. 234, 247 (1999), the failure to adhere to the procedures

mandated in the execution of search warrants “profoundly influenced the

Founders’ view of what a ‘reasonable’ search entailed.” Thus, the

formalities of the execution of a search warrant, including the filing of an

inventory and the return of service, are part of the architecture of a

properly executed search warrant.

Further, in Nixon, the United States Supreme Court recognized the

existence of a “common-law right of access to judicial records.” 435 U.S.

at 596. The Court acknowledged “a general right to inspect and copy

public records and documents, including judicial records and documents.”

Id. at 597 (footnote omitted). As a general rule, judicial records are to be

open to the public, in part so that citizens may “keep a watchful eye on

the workings of public agencies.” Id. at 598. See also Baltimore Sun Co.

v. Goetz, 886 F.2d 60, 64-65 (4th Cir. 1989) (finding a common law right

to access search warrant affidavits); accord In re Newsday, 895 F.2d 74

(2d Cir. 1990). Thus, in this case, the public has a common law right to

access the search warrant documents.

Judge Conner’s opinion states that the “Florida Constitution and the

implementing statutes override the common law.” In fact, the

constitutional provision and the pertinent rules such as rule 2.420 do not

override or supplant the common law as to access to court files, but rather

assist its implementation by institutionalizing transparency in the Florida

Constitution and the rules ensuring public access to judicial records.

“Public access to warrant materials serves as a check on the judiciary

because the public can ensure that judges are not merely serving as a

rubber stamp for the police.” In re Application of New York Times Co. for

Access to Certain Sealed Court Records, 585 F. Supp. 2d 83, 90 (D.D.C.

2008) (citing United States v. Leon, 468 U.S. 897, 917 n.18 (1984)).

“[W]arrant materials are often used to adjudicate important constitutional

rights such as the Fourth Amendment protection against unreasonable

searches and seizures.” Id. “[P]ublic access to documents filed in support

of search warrants is important to the public’s understanding of the

function and operation of the judicial process and the criminal justice

13

system and may operate as a curb on prosecutorial or judicial

misconduct.” In re Search Warrant for Secretarial Area Outside Office of

Gunn, 855 F.2d 569, 573 (8th Cir. 1988).

In a free society governed by our constitutional framework, the default

should be for transparency and disclosure. That is not to say that the

state may not have compelling reasons to prevent disclosure. Far from it.

In a time of security challenges, the state may request orders to prevent

public disclosures. But the burden remains on the state to demonstrate,

by evidence, that there is a compelling reason to inhibit the public from

knowing.

For all the above reasons, we deny the petition.

Petition denied.

GERBER, C.J., concurs in part with opinion.

CONNER, J., concurs in part and dissents in part with opinion.

GERBER, C.J., concurring in part.

I concur with sections I., II., and III.A. of Judge Levine’s opinion.

However, I believe the analysis can, and therefore should, stop there.

Thus, I do not join in sections III.B. and III.C of the opinion.

CONNER, J., concurring in part and dissenting in part.

I concur with the analyses and appellate conclusions in Sections I and

II of the majority opinion. I also concur with the appellate conclusion in

Section III A. that the record shows the State failed to demonstrate that

the redacted surveillance techniques were “not widely known,” and thus,

the trial court properly authorized disclosure to the public. However, as

to Sections III A., B., and C., my understanding of the law is different from

Judge Levine and I disagree with a substantial portion of the legal analysis

in those sections. Primarily, I disagree with the premise that Chapter 119

does not apply to the analysis of this case. I first discuss my disagreement

with Sections III A. and B., then my disagreement with Section III C., and

end with a conclusion.

Sections III A. and B.

In my view, by adopting rule 2.420, our supreme court intended for the

judiciary to follow the system of public records disclosure and exemption

requirements established by the Florida Legislature for the other two

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branches of government in Chapter 119, in general, and various other

statutes addressing specific subject matters. As a separate and coequal

branch of government, the judiciary has the constitutional right to adopt

a system of rules for public records of the branch that can be different

from the other two branches of government. But in my view, the supreme

court embraced the value of consistency in the application of the law

across the three branches, to the extent it is practical to do so, when it

adopted rule 2.420.

As Judge Levine points out, rule 2.420(c)(9) recognizes the following

judicial records as confidential:

(9) Any court record determined to be confidential in case

decision or court rule on the grounds that

(A) confidentiality is required to:

....

(iii) protect a compelling governmental interest; [or]

....

(vii) comply with established public policy set forth in the

Florida or United States Constitution or statutes or Florida

rules or case law[.]

Fla. R. Jud. Admin. 2.420(c)(9). Significantly, rule 2.420(f) allows a litigant

to file a motion to determine the confidentiality of court records. Rule

2.420(f)(3) specifically authorizes a motion and hearing procedure for a

confidentiality determination under rule 2.420(c)(9)(A)(iii) (compelling

governmental interest) and 2.420(c)(9)(A)(vii) (established public policy set

forth in Florida Statutes). Thus, when reading rule 2.420(c)(9) and (f)(3)

together, it appears to me that in making a decision in response to a

2.420(f)(3) motion as to whether a court record should be deemed

confidential at the request of a party, the trial court should declare a record

to be confidential if such is required to “protect a compelling governmental

interest” is demonstrated or to “comply with established public policy set

forth in the Florida . . . statutes.”

I agree with Judge Levine that there is a difference between exempt

records and confidential records. Section 119.071, Florida Statutes, is

designed to give an agency the discretion to assert a public record

exemption. However, in certain instances, the legislature has taken that

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discretion away, and declared, statutorily, that certain records are

confidential. See § 119.071(h), Fla. Stat. (2018) (identifying records which

are “confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the

State Constitution”) (emphasis added).

I agree with Judge Levine that under section 119.071(d), surveillance

techniques are exempt, and not statutorily confidential. § 119.071(d), Fla.

Stat. (2018) (“[a]ny information revealing surveillance techniques or

procedures or personnel is exempt from s. 119.07(1) and s. 24(a), Art. I of

the State Constitution”). However, because rule 2.420 is designed to allow

an agency to assert an exemption, if asserted, the court system should

honor the exemption and declare a record confidential, if a compelling

governmental interest is shown or if the established public policy, as

declared by the legislature, requires that confidentiality be maintained.

That said, trial judges must also keep in mind that a statute can be

trumped by constitutional rights, such as due process. In this case, the

constitutional right to due process, as provided for in our criminal

discovery rules, trumps confidentiality regarding disclosure of the

redacted information to the defendant. I contend the public does not hold

a similar trump card.

In my view, a strong statement of public policy in statutes can establish

a compelling governmental interest. Section 119.071(2)(d) makes a clear

legislative statement of public policy that “[a]ny information revealing

surveillance techniques or procedures or personnel is exempt from s.

119.07(1) and s. 24(a), Art. I of the State Constitution.” § 119.071(2), Fla.

Stat. (2018) (emphasis added). Additionally, section 119.0714(1)(c),

Florida Statutes (2018) provides:

(1) Court files.―Nothing in this chapter shall be construed to

exempt from s. 119.07(1) a public record that was made a part

of a court file and that is not specifically closed by order of

court, except:

....

(c) Any information revealing surveillance techniques or

procedures or personnel as provided in s. 119.071(2)(d).

§ 119.0714(1)(c), Fla. Stat. (2018) (emphases added). The fact that the

legislature has exempted the disclosure of surveillance techniques in at

least two statutes, presents a compelling argument that the court system

should determine such information in court records to be confidential and

not subject to public disclosure.

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Section III C.

My problem with Section III C. of Judge Levine’s opinion is that it cites

and quotes Article I, section 24(a) of the Florida Constitution, but fails to

address section 24(c) of Article 1. Section 24(c) specifically allows the

legislature to provide for exemptions by general law. Art. I, § 24(c), Fla.

Const. (“The legislature, however, may provide by general law . . .

exemption of records from the requirements of subsection (a).”). Thus, it

appears to me that the Florida Constitution and the implementing statutes

override the common law. If my analysis above is correct (rule 2.420 was

intended to mirror the exemptions in Chapter 119), then to the extent rule

2.420 is a codification of Article I, section 24, the rule likewise supplants

the common law concerning the right of access to public records of the

judiciary, including warrants.

Conclusion

The State in this case moved to block disclosure of the redacted

information by asserting redaction was necessary to protect a compelling

governmental interest. As discussed in Section I of the majority opinion,

the State failed to preserve in the trial court the arguments raised in the

certiorari petition regarding the surveillance technique exemption

authorized in section 119.071(2)(d). In addition, the State failed to present

proof that the redacted information was not widely known by the public.

In the trial court, the State had multiple opportunities for making winning

arguments to block the disclosure of the redacted information to the

public. Our review of the record in light of all the exemptions listed in

section 119.071 reveals there are other exemptions the State could have

asserted besides the surveillance technique exception. The State failed to

raise those arguments in the trial court. Additionally, the State failed to

make arguments in the trial court connecting the interplay of Chapter 119

with rule 2.420. In short, the State has failed to demonstrate the trial

court departed from the essential requirements of law.

* * *

Not final until disposition of timely filed motion for rehearing.

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