January/February 2010

Access to Public Video Records Restricted Out of Concern for Victims’ Families

Holland & Knight Newsletter
Judith M. Mercier

A multiple shooting at a fast food restaurant that kills at least one customer is captured on the restaurant’s visible surveillance camera. A hit-and-run that kills a pedestrian on a public roadway in the early morning hours is captured by a surveillance camera mounted on a utility pole. What do these events, which both took place in public areas and were captured on videotape, have in common?

In both of these instances, notwithstanding the state’s strong public records law, different Florida courts – one in West Palm Beach in an action brought by The Associated Press and The Palm Beach Post, the other in Miami-Dade County in a criminal action against an NFL player in which The Associated Press intervened – restricted access to the surveillance videos. In both cases, the families argued that the victims’ children would suffer severe emotional distress and trauma if the victims’ deaths were displayed on the Internet. And in both, the court agreed with the families.

In the West Palm Beach case, a firefighter died when he walked back into a fast food restaurant to get a children’s toy that was missing from his order, and was shot while at the counter. The court held that permitting journalists to view the videotape but not copy it complied with Florida law, even though the statute provides citizens the right to view and copy records. In the Miami-Dade matter, the court ordered the surveillance video redacted to remove images of the victim being fatally hit by the vehicle.

Florida courts traditionally have been mechanical in applying the state’s pro-access laws. If an exception appeared in the statute, a document or portion of it would be redacted. If the statute contained no exception, the courts would order the documents released in their entirety. Also, Florida’s public records law does not contain an exception for the privacy of victims’ families.

Although perhaps a bit early to call it a trend, there does appear to be a disturbing shift by at least some courts in Florida to limit or restrict access to public records to protect privacy rights claimed by the victims’ families. This is important because all victims arguably have families that could assert such rights.

Whether trial judges may read into the statute an exception for this type of privacy interest, as the trial judges did in these two cases, has yet to be decided by the appellate courts. When it does, the appeals courts will be mindful of the language in a recent decision in another context, where the Florida Supreme Court warned that access to public records “should not be denied or left to the unfettered discretion of the trial court.”

Holland & Knight represented The Associated Press and the Palm Beach Post in the West Palm Beach matter, and The Associated Press in the Miami-Dade County matter described in this article.

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