April/May 2008

Miami Commissioner’s Memorandum Outlining Alleged Public Corruption Is a Public Record

Holland & Knight Newsletter
Scott D. Ponce
A Florida city commissioner who wrote a file memorandum documenting what he was told about alleged public corruption must produce the memorandum to The Miami Herald, a Florida appellate court has ruled.

The Third District Court of Appeal in Miami held that the memorandum containing “alleged factual information about possible criminal activity” was a public record, and took the unusual step of ordering immediate production of the document notwithstanding the filing of any motions for rehearing.

A former city official contacted City Commissioner Marc Sarnoff and asked Sarnoff to attend a meeting to discuss the city’s affairs. After the meeting, Sarnoff prepared a memorandum summarizing what the former official told him during the meeting. The memorandum contained what the appellate court described as “factual information about possible criminal activity.”

The Miami Herald learned of the existence of the memorandum and requested that Sarnoff produce a copy of the document under Florida’s public records law. Sarnoff refused and filed a declaratory judgment action seeking a determination of whether the memorandum was a public record. The Herald simultaneously filed suit under the public records law seeking to compel Sarnoff to produce the memorandum.

The trial judge sided with Sarnoff, finding that Sarnoff wrote the memorandum merely to refresh his memory in the event he was later asked to testify regarding what was discussed during his meeting with the former official.

The appellate court reversed on an expedited basis, finding in a unanimous opinion that the memorandum was a public record because Sarnoff attended the meeting in his official capacity, discussed official city business, and prepared the memorandum to formalize and perpetuate what he learned at the meeting. The appellate court also found that unlike preliminary drafts or notes that are used to subsequently create a final document, the memorandum was the final record and evidence of what Sarnoff learned at the meeting.
Holland & Knight represented The Miami Herald before the trial and appellate courts in this matter.

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