Third District Court of Appeal
State of Florida
Opinion filed April 13, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-295
Lower Tribunal No. A85U5DE
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City of Miami,
Petitioner,
vs.
Andres Armando Blanco, et al.,
Respondents.
A Writ of Certiorari to the County Court for Miami-Dade County, Raul
A. Cuervo, Judge.
Victoria Méndez, City Attorney, and Eric J. Eves, Assistant City
Attorney, for petitioner.
Law Offices of Robert S. Reiff, P.A., and Robert S. Reiff, for
respondent Andres Armando Blanco; Ashley Moody, Attorney General, and
Michael W. Mervine, Chief Assistant Attorney General, for respondent The
State of Florida.
Before FERNANDEZ, C.J., and LINDSEY and HENDON, JJ.
HENDON, J.
The City of Miami (“City”) petitions this Court for a writ of certiorari,
seeking to quash the trial court’s order denying the City’s motion to set
aside/quash the trial court’s order granting Andres Armando Blanco’s
(“Blanco”) motion to compel and for a subpoena duces tecum for video
camera recordings taken at the City’s police station following Blanco’s arrest
for driving under the influence. We grant the petition for writ of certiorari,
quash the order under review, and remand with instructions for the lower
tribunal to conduct an in camera review of the video camera recordings.
I. BACKGROUND
According to a complaint/arrest affidavit, a City police officer arrested
Blanco for driving under the influence. Blanco was transported to a City
police station where a breathalyzer test was administered.
Pursuant to Chapter 119 of the Florida Statutes, Blanco filed a public
records request with the City, requesting a copy of the video camera
recordings of the police station for a specific two hour period on the day of
Blanco’s arrest. The City denied the public records request stating that the
video camera recordings obtained from the security systems are confidential
and exempt from disclosure under sections 119.071(3)(a) and 281.301,
Florida Statutes (2021)—"security system plan” exemption.
2
On October 20, 2021, after the City denied the public records request,
Blanco filed a motion to compel and/or for a subpoena duces tecum for video
camera recordings (“Motion to Compel”) in his criminal case. He argued that
the video camera recordings may show that the breathalyzer test was
improperly conducted under the Florida administrative rules governing such
testing. A copy of the Motion to Compel was sent to the Office of the State
Attorney and the City of Miami Police Department, Public Records
Department.
An online hearing was conducted on October 27, 2021, before Judge
Seraphin. During the hearing, Blanco’s counsel, Mr. Robert Reiff, and an
assistant state attorney were present, but there was no appearance by the
City. 1 The trial court addressed several motions filed by Mr. Reiff, including
the Motion to Compel. The transcript of the hearing reflects the following as
to the Motion to Compel:
MR. REIFF: . . . The next motion is a motion [to] compel
and/or for permission to issue a subpoena duces tecum for
surveillance video camera feed for the City of Miami Police
Department substation six.
THE COURT: Is that on the same case?
MR. REIFF: It is on the same case, Your Honor. These
are all for Blanco.
1
Although a copy of the Motion to Compel was sent to the City’s Public
Records Department, it does not appear that the City was notified of the
hearing on the Motion to Compel.
3
THE COURT: All right. Motion is granted.
MR. REIFF: Thank you, Your Honor. Are you compelling
the State to produce it or permitting me to issue a subpoena?
THE COURT: Issue subpoena, sir.
MR. REIFF: Okay, I will submit an order for that as well.
Thank you again, Your Honor. . . .
Thereafter, on November 18, 2021, the trial court entered an “Order Granting
Defendant’s Motion to Compel and/or for a Subpoena Duces Tecum for
Video Camera Recordings,” stating it was granting Blanco’s request to issue
the subpoena for the video camera recordings.
The City moved to set aside or quash the trial court’s order granting
Blanco’s Motion to Compel (“Motion to Quash”). The City argued the video
camera recordings are confidential and exempt from disclosure under
sections 119.071(3)(a) and 281.301 because they reveal information
pertaining to the security capabilities and vulnerabilities of the City’s police
department’s security systems. The City acknowledged that a court may
order disclosure of the exempt information only upon a showing of “good
cause.” The City disputed Blanco’s claim that the video camera recordings
would show good cause because they do not show the officers administering
the breathalyzer. The City further argued that prior to ordering disclosure,
the trial court must conduct an in camera review, citing to Gonzalez v. State,
240 So. 3d 99, 101 (Fla. 2d DCA 2018) (“In camera review affords the trial
judge an opportunity to ‘properly determine if the document is, in fact, subject
4
to a public records disclosure.’ . . . That is, without conducting an in camera
inspection of the requested CDs, the circuit court could not conclude that
their contents are exempt from disclosure under section 119.071(3)(a)(2) or
section 281.301; nor could it determine whether redaction was possible.”).
The City offered to provide the video camera recordings to the trial court for
an in camera review.
The City’s Motion to Quash was heard by Judge Raul A. Cuervo. After
a non-evidentiary hearing, and without conducting an in camera review of
the video camera recordings, the trial court denied the City’s Motion to
Quash. The City’s petition for writ of certiorari followed.
II. ANALYSIS
The City argues that the trial court departed from the essential
requirements of law by failing to review the video camera recordings in
camera prior to granting Blanco’s Motion to Compel. 2 We agree.
“To grant certiorari relief, there must be: ‘(1) a material injury in the
proceedings that cannot be corrected on appeal (sometimes referred to as
irreparable harm); and (2) a departure from the essential requirements of the
law.’ ” Fla. Power & Light Co. v. Cook,
277 So. 3d 263, 264 (Fla. 3d DCA
2019) (quoting Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87
2
Respondent, The State of Florida, takes the same position as the City.
5
So. 3d 712, 721 (Fla. 2012)). Blanco does not dispute that the City has met
the jurisdictional requirement of “irreparable harm,” but does dispute whether
there has been a departure from the essential requirements of law.
A departure from the essential requirements of law can be
demonstrated based on statutes, rules of procedure, or case law. See
Dodgen v. Grijalva,
331 So. 3d 679, 684 (Fla. 2021) (“ ‘[C]learly established
law’ can derive from a variety of legal sources, including recent controlling
case law, rules of court, statutes, and constitutional law.”) (quoting Allstate
Ins. Co. v. Kaklamanos,
843 So. 2d 885, 889 (Fla. 2003)). “[A] circuit court
(even one functioning in its appellate capacity) is bound to apply existing
precedent from another district if its district has not yet spoken on the issue.”
Nader, 87 So. 3d at 724 (emphasis in original); see State, Dep’t of Highway
Safety & Motor Vehicles,
204 So. 3d 169 (Fla. 1st DCA 2016) (holding that
the circuit court’s failure to follow a decision from Florida’s Second District
Court of Appeal “was a profound error, amounting to a clear departure from
the essential requirements of law because ‘in the absence of interdistrict
conflict, district court decisions bind all Florida trial courts.’ ”) (quoting Pardo
v. State,
596 So. 2d 665, 666 (Fla. 1992)).
Sections 119.071(3)(a) and 281.301(1) sets forth a “security system
plan” exemption to Florida’s public records disclosure laws. See Fla. Dep’t
6
of Corr. v. Miami Herald Media Co.,
278 So. 3d 786, 787 (Fla. 1st DCA 2019);
State Attorney’s Off. of Seventeenth Jud. Cir. v. Cable News Network, Inc.,
251 So. 3d 205, 213 (Fla. 4th DCA 2018) (“Because the footage from the
surveillance camera ‘relates directly’ to the security system at [the public high
school], 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.”). However, the confidential and exempt information under these
sections may be disclosed “[u]pon a showing of good cause before a court
of competent jurisdiction.” § 119.071(3)(a)3.d.; § 281.301(2)(d); see Miami
Herald Media, 278 So. 3d at 790 (“Florida law allows for the public disclosure
of materials that otherwise would be exempted for security purposes if good
cause is shown.”). Sections 119.071(3) and 281.301 do not specifically
require the trial court to conduct an in camera review prior to ordering
disclosure.3 Thus, based on the statute itself, the trial court did not depart
3
In contrast, an in camera review is addressed in section 119.07, titled
“Inspection and copying of records; photographing public records; fees;
exemptions,” and does provide for an in camera review by the trial court
under certain circumstances:
(g) In any civil action in which an exemption to this section is
asserted, if the exemption is alleged to exist under or by virtue of
s. 119.071(1)(d) or (f), (2)(d), (e), or (f), or (4)(c), the public record
or part thereof in question shall be submitted to the court for an
inspection in camera. If an exemption is alleged to exist under or
7
from the essential requirements of law by not conducting an in camera review
prior to ordering the disclosure of video camera recordings.
In its petition for writ of certiorari, however, the City has relied on case
law from other courts in Florida when arguing that the trial court departed
from the essential requirement of law. In Walton v. Dugger,
634 So. 2d 1059,
1061-62 (Fla. 1993), the Florida Supreme Court addressed whether
noncompliance with a public records request under chapter 119, Florida
Statutes (1989), to the State Attorney and the Pinellas County Sheriff can be
addressed in a rule 3.850 motion. The Florida Supreme Court found that it
can, and in doing so, stated:
When, as in the instant case, certain statutory exemptions are
claimed by the party against whom the public records request
has been filed or when doubt exists as to whether a particular
document must be disclosed, the proper procedure is to furnish
the document to the trial judge for an in camera inspection. At
that time, the trial judge can properly determine if the document
is, in fact, subject to a public records disclosure. Under the
circumstances of this case, the trial judge should have granted
an evidentiary hearing to consider whether the exemptions
applied or whether the documents requested were public records
subject to disclosure.
by virtue of s. 119.071(2)(c), an inspection in camera is
discretionary with the court. If the court finds that the asserted
exemption is not applicable, it shall order the public record or part
thereof in question to be immediately produced for inspection or
copying as requested by the person seeking such access.
This provision applies to civil actions, not criminal actions, and it does not
refer to section 119.071(3)(a).
8
Walton,
634 So. 2d at 1061-62 (internal citations omitted) (emphasis in
original).
In Downs v. State,
740 So. 2d 506, 510 (Fla. 1999), the Florida
Supreme Court addressed the above language in Walton as follows:
Contrary to Downs’ assertion, we do not read our opinion in
Walton to require an evidentiary hearing in every case. Rather,
we remanded for an evidentiary hearing in Walton because the
trial court summarily denied Walton’s motion on the mistaken
belief that noncompliance with a public records request may not
be raised in a rule 3.850 motion. No such error occurred in the
instant case.
The Court held that Downs was not entitled to an evidentiary hearing on his
3.850 motion, noting as follows:
Here, both the state and the sheriff's office stated during a
hearing on Downs' public records request that all documents had
been disclosed and expressly denied the existence of any
documents not otherwise included in the disclosed files. Further,
Hicks[, the records custodian for the Jacksonville Sheriff’s Office
(“JSO”),] testified that all documents given to him from the
departments within the JSO were then disclosed to collateral
counsel. Based on this testimony, the trial court denied Downs'
motion to compel because the evidence was “uncontroverted
that all records of JSO have been provided [to the] defense” and
that “mere suspicion that there is more does not warrant an
evidentiary hearing” under rule 3.850. Later, in its summary
denial of Downs' 3.850 motion, the trial court again “ensured that
the documents to which the defendant was entitled were
provided to him.”
Downs,
740 So. 2d at 511. Thus, the language in Downs reflects that an
evidentiary hearing was held on Downs’ motion to compel, during which the
9
trial court made specific findings indicating that the State and the JSO turned
over the requested documents that he was entitled to. As such, an
evidentiary hearing on his rule 3.850 motion was not necessary, and it was
proper to summarily deny Downs’ 3.850 motion.
The Fifth District Court of Appeal in Demings v. Brendmoen,
158 So.
3d 622 (Fla. 5th DCA 2014), addressed an issue similar to the issue in the
instant case. Andrew Brendmoen filed a motion seeking to compel the State
to produce the Orange County Sheriff’s operation plan for an undercover
operation intended to identify violations of the “Computer Pornography and
Child Exploitation Prevention Act.” Demings,
158 So. 3d 623. The State and
Brendmoen attended the hearing, but the Sheriff’s Office was not provided
with notice of the motion or of the hearing.
Id. When the Orange County
Sheriff, Jerry L. Demings, learned that the trial court had ordered the
disclosure of the operation plan, he moved to vacate the trial court’s order.
Id. At the hearing on Sheriff Demings’ motion to vacate, the trial court
informed the parties that it had already made its decision, and thereafter,
entered an order denying Sheriff Demings’ motion to vacate.
Sheriff Demings filed a petition for writ of certiorari, seeking to quash
the trial court’s order directing the production of the operation plan, arguing
that the operation plan contains sensitive law enforcement information that
10
is exempt from disclosure, in part, under section 119.071(2), Florida Statutes
(2013). Id. at 624. Sheriff Demings indicated that the operation plan
contains sensitive information that was used in other law enforcement
operations, and the surveillance techniques and procedures will likely be
used in future operations. Id. The Fifth District granted Sheriff Demings’
petition for writ of certiorari, quashed the order under review, and remanded
for further proceedings, stating, in part, as follows:
Here, the trial court failed to allow the Sheriff to challenge the
discovery request or order, despite expressly recognizing the
Sheriff's standing to do so. Once the trial court determined the
Sheriff had standing to contest the production of the Plan, it was
error to deny him a meaningful opportunity to be heard. “When,
as in the instant case, certain statutory exemptions are claimed
by the party against whom the public records request has been
filed or when doubt exists as to whether a particular document
must be disclosed, the proper procedure is to furnish the
document to the trial judge for an in camera inspection.” Walton
v. Dugger,
634 So. 2d 1059, 1061-62 (Fla.1993). In camera
review affords the trial judge an opportunity to “properly
determine if the document is, in fact, subject to a public records
disclosure.” Id. at 1062.
Demings,
158 So. 3d at 625 (footnote omitted).
Similarly, in 2018, in Gonzalez v. State,
240 So. 3d 99 (Fla. 2d DCA
2018), the Second District Court of Appeal addressed whether the circuit
court was required to conduct an in camera review of the discovery evidence
requested by Gonzalez—copies of twenty-one CDs that the State had listed
in its case against Gonzalez.
Id. at 100. The State responded that fifteen of
11
the CDs would be made available, but six of the CDS were exempt from
public disclosure pursuant to sections 119.071(3)(a)(2) and 281.301 (Fla.
Stat. 2015). 4 Gonzalez, 240 So. 3d at 100. Thereafter, Gonzalez filed a
motion to compel the State to produce all twenty-one CDs, which the trial
court treated as a petition for writ of mandamus. Id. Without conducting an
in camera review, the trial court summarily denied the petition for writ of
mandamus, finding that the six CDs were subject to public records
exemptions.
Gonzalez appealed the summary denial of his motion to compel. The
Second District reversed the denial of the petition for writ of mandamus and
remanded to the circuit court to conduct an in camera inspection of the six
CDs to determine if they are subject to the exemptions from public disclosure
under sections 119.071(3)(a)(2) and 281.301, and if so, whether redaction
would allow their production. In doing so, the Second District stated:
In camera review affords the trial judge an opportunity to
“properly determine if the document is, in fact, subject to a public
records disclosure.” Walton,
634 So. 2d at 1062. That is, without
conducting an in camera inspection of the requested CDs, the
circuit court could not conclude that their contents are exempt
from disclosure under section 119.071(3)(a)(2) or section
281.301; nor could it determine whether redaction was possible.
4
These statutes also set forth a public records exemption for a “security
system plan.”
12
Gonzalez, 240 So. 3d at 101.
More recently, in Everglades Law Center, Inc. v. South Florida Water
Management District,
290 So. 3d 123, 125 (Fla. 4th DCA 2019), the Fourth
District Court of Appeal addressed whether “mediation communications
disclosed by a governmental attorney during a shade meeting are to be
redacted from the transcript of the shade meeting when it becomes public
record.” In addressing this issue, the Fourth District, relying on both Walton
and Gonzalez, stated: “Even though the trial court correctly harmonized the
statutory provisions protecting the confidentiality of mediation
communications with the requirements of section 286.011(8), the trial court
was led astray by the parties’ agreement that an in camera review of the
transcript was not needed.” Everglades Law Ctr., 290 So. 3d at 133.
Although the statutes addressed in Everglades Law and in the instant case
are different, confidentiality is at issue in both cases.
III. CONCLUSION
Based on the above analysis, we conclude that the trial court departed
from the essential requirements of law by not conducting an in camera review
of the video camera recordings prior to granting Blanco’s Motion to Compel.
Without an in camera review, the trial court cannot determine whether the
video camera recordings fall within the security plan exemption or even if
13
they are material in any manner. Accordingly, we grant the petition for writ
of certiorari, quash the trial court’s order denying the City’s Motion to Quash,
and remand with instructions for the trial court to conduct an in camera
review of the video camera recordings.
Petition granted; order quashed; and remanded with instructions.
14
