KEELIN BIELSKI—On February 14, 2018, a gunman killed 17 people at Marjory Stoneman Douglas High School. During the subsequent investigation, Broward Sheriff Scott Israel, in a news conference, stated that he suspended Deputy Scot Peterson, the school’s resource officer, because security cameras at the school showed that Peterson stayed outside of the building for four minutes while the gunman was inside shooting. Peterson then resigned and retired. Amid the increasing criticism of Sheriff Israel in the aftermath of the shooting, three media companies sued the Broward Sheriff’s Office and Broward County Public Schools for public release of the video footage outside the school. The lawsuit cited “extreme public interest” of the response of the law enforcement officers, as well as Florida’s public records law.
The Florida public records law, also known as the Florida Sunshine Law, states “that all state, county, and municipal records are open for personal inspection and copying by any person.” There are, however, exceptions to the public records law, and the sheriff’s office states it has not released the video due to three exceptions: (1) that it could reveal a “security system plan”; (2) that it is part of a criminal investigation; and (3) that it is part of an internal investigation into Peterson.
The Florida law provides that when an exemption is asserted in a civil action, the public record will be submitted to the court for review to determine whether the exemption applies. On March 8, 2018 the Broward Sheriff stated on Twitter that the Broward Sheriff’s Office agreed with the media companies at a court hearing, arguing that the video should be released.
Under the applicable Florida law, when an action is filed to enforce a public records request, the “court shall set an immediate hearing, giving the case priority over other pending cases.” This is a notable difference between the Florida law and the federal public records law, the Freedom of Information Act (or FOIA). FOIA, like Florida, allows any person to make a request for public records. FOIA has nine exemptions, including for classified information, law enforcement proceedings, and private information of individuals. Unlike requests for Florida information, however, FOIA requests can take weeks or months, depending on the complexity of the request and backlog of requests. For example, the average processing time for Federal Bureau of Investigation FOIA requests in 2016 was 32 working days for simple requests and 253 working days for complex requests.
Since September 11, 2001, Congress has passed many exceptions to FOIA, and these have been mirrored at the state level. Florida’s Sunshine Law had been heralded as one of the strongest public records law in the country. However, those in favor of government transparency now say that a lack of enforcement, as well as an increase in exemptions, has weakened it immensely.
After the shooting at Pulse nightclub, where a gunman killed 49 people, media outlets sued the city of Orlando to make 911 calls from the shooting public, citing “a strong public interest in fully evaluating how first responders and police reacted.” The city cited three exceptions to Florida’s public records law: (1) criminal investigation, (2) the depiction of the killing of a person, and (3) information that contains identifying information of the caller. Another complication was that the federal government asked that the records not be released.
However, the city eventually released 911 calls from outside of the nightclub, and then those from inside, approximately three and a half months after the shooting. The city also eventually released bodycam footage of the night almost a year after it occurred.
Although the lawsuits are very similar—for example, both cite public interest resulting from criticism of the police response to a mass shooting—there is a key difference between the two: here, the ongoing operation of a school. However, the judge decided that the “potential harm to the current security system, minimal at best, is outweighed by the strong public interest in disclosure” and that prosecutors failed to prove that release would harm the investigation. The judge ordered the video released within 48 hours to provide time for blurring of the faces of any students or witnesses, and the Broward Sheriff’s Office complied. Proponents of the Sunshine Law should see this as a positive step towards government transparency.