Page 1

1 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
2 CIVIL DIVISION
3 CASE NO.: 2014-CA-003248-NC
4
5 AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC.,
and MICHAEL BARFIELD,
6
Petitioners,
7
vs.
8
CITY OF SARASOTA and MICHAEL JACKSON,
9
10 Respondents.
11 --------------------------------------------/
12 STATUS CONFERENCE
13
14 BEFORE: Honorable Charles E. Williams
15 DATE TAKEN: Thursday, June 12, 2014
16 TIME: Commencing at 9:03 a.m.
17 PLACE: Sarasota County Courthouse
2002 Ringling Boulevard
18 Sarasota, Florida 34237
19
20
21
22 Proceedings reported by:
23 Tara Shuck, RPR, FPR
Imperial Court Reporting
24 P.O. Box 21286
Bradenton, Florida 34204
25
Imperial Court Reporting
Page 2
1 APPEARANCES FOR ACLU
2 ANDREA FLYNN MOGENSEN, ESQ.
Law Office of Andrea Flynn Mogensen, P.A.
3 200 S. Washington Boulevard, Suite 7
Sarasota, Florida 34236
4 (941) 955-1066
amogensen@sunshinelitigation.com
5
6 APPEARANCES FOR MICHAEL BARFIELD
7 GREGG D. THOMAS, ESQ.
Thomas & Locicero
8 601 South Boulevard
Tampa, Florida 3360136
9 (813) 984-3060
gthomas@tlolawfirm.com
10
11 APPEARANCES FOR THE CITY OF SARASOTA
12 THOMAS D. SHULTS, ESQ.
Kirk Pinkerton, P.A.
13 240 South Pineapple Avenue, Floor 6
Sarasota, Florida 34236
14 (941) 364-2425
tshults@kirkpinkerton.com
15
and
16
ERIC F. WERBECK, ESQ.
17 Fournier, Connolly, Warren & Sham
1 South School Avenue, Suite 700
18 Sarasota, Florida 34237
(941) 906-1199
19 eric.werbeck@sarasotagov.com
20
21 APPEARANCES FOR THE U.S. DEPARTMENT OF JUSTICE
22 SEAN P. FLYNN, ESQ.
JOHN F. RUDY, ESQ.
23 U.S. Department of Justice
400 North Tampa Street, Suite 3200
24 Tampa, Florida 33602
(813) 274-6000
25 sean.flynn2@usdoj.gov
Imperial Court Reporting
Page 3
1 * * *
2 I N D E X
3 Page No.
4 Proceedings Begin 4
5 Rulings 31
6 Certificate of Court Reporter 34
7
8 * * *
9 E X H I B I T S
10 (None marked.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Imperial Court Reporting
Page 4
1 P-R-O-C-E-E-D-I-N-G-S
2 THE COURT: Okay. Let's formally go on the
3 record in this case. This is case number
4 2014-CA-3248. It is titled -- we'll call it ACLU
5 versus City of Sarasota. What I would like to do is
6 have the attorneys state their names and who they
7 represent for the clerk and court reporter. We'll
8 start with the petitioners.
9 MR. THOMAS: Your Honor, Gregg Thomas on behalf
10 of Michael Barfield.
11 MS. MOGENSEN: Andrea Mogensen on behalf of the
12 ACLU.
13 MR. SHULTS: Tom Shults on behalf of the City
14 of Sarasota.
15 MR. WERBECK: Eric Werbeck on behalf of the
16 City of Sarasota.
17 MR. FLYNN: Good morning, your Honor. Sean
18 Flynn, assistant United States attorney, deputy
19 chief of the civil division for the United States
20 Attorney's Office, Middle District of Florida.
21 I'm here today pursuant to 28 U.S.C. 517 to
22 make a limited appearance on behalf of the United
23 States to offer a statement of interest in this case
24 without submitting to the jurisdiction of the Court
25 or waiving any defenses.
Imperial Court Reporting
Page 5
1 To my right is the assistant United States
2 attorney John Rudy. Thank you, your Honor.
3 THE COURT: Thank you. Let me just
4 preliminarily state the reason we are here is not
5 for the merits of the writ but for some procedural
6 questions that the Court had based on the
7 allegations in the writ.
8 I'm going to read to you the pertinent facts
9 that the Court took from the writ and then I'm going
10 to read some questions that the Court has, and what
11 I would likely do is to have each side present their
12 answers -- or best answers to the questions that the
13 Court has after reviewing the writ.
14 And this is basically taken from the body of
15 the writ: On May 19, 2014, the petitioners made a
16 request for Sarasota Police Department records
17 relating to cell phone tracking via the use of a
18 stingray device or devices.
19 On May 22, 2014, the plaintiff contacted
20 Detective Jackson to inspect records in his
21 possession. On May 27, 2014, the City stated that a
22 federal agency instructed the City not to release
23 the documents requested -- and I'm sort of
24 paraphrasing -- because Detective Jackson was acting
25 as a, quote, special deputy, end quote, with the
Imperial Court Reporting
Page 6
1 U.S. Marshals Service.
2 May 30, 2014, the City notified the petitioners
3 that the federal agency had physically moved the
4 records from Detective Jackson's possession to an
5 unknown location, also requested to be removed by
6 the -- also requested certain digital records
7 relating to the track and trace applications.
8 So those are the -- some of the facts that are
9 in the body of the writ. The questions that the
10 Court needs to have addressed in this particular
11 hearing are, number 1, does this Court have
12 jurisdiction to address the issues raised in the
13 writ of mandamus?
14 Number 2, in what capacity does Detective
15 Jackson maintain custody and control of the records?
16 Is it in his capacity as a federal agent? Is it in
17 his capacity as a Sarasota Police Department
18 employee?
19 Also of interest of the Court is whether or not
20 the Sunshine Law applies to records held by a person
21 acting in the capacity of the federal government.
22 And if it is true that Detective Jackson is acting
23 as the behest of the federal government, wouldn't
24 the petitioners remedy be a Freedom of Information
25 Act request under the U.S. Code?
Imperial Court Reporting
Page 7
1 That's the gist of what the Court has because
2 obviously the Court has to make a determination as
3 to whether or not it has jurisdiction to hear the
4 matters in the writ, and I think we have to get to
5 the root of that. So I would ask the petitioners
6 first to indicate why they feel this Court has
7 jurisdiction, and then I would like to hear the
8 response.
9 MR. THOMAS: Good morning. Gregg Thomas again.
10 Your Honor, certainly jurisdiction -- your Honor has
11 jurisdiction under section 119 to analyze whether
12 the records at issue are public records. And the
13 Florida constitution essentially constitutionalized
14 section 119 so that this is the court in which all
15 public records/Sunshine Act matters are litigated.
16 Certainly that's the first response, your Honor,
17 with regard to jurisdiction.
18 THE COURT: Okay. Do you want to add to that?
19 MS. MOGENSEN: Judge, I really don't have
20 anything to add to that except to say that I believe
21 this Court also has jurisdiction in so far as any of
22 the responsive records would be applications to
23 state court judges of the 12th Judicial Circuit,
24 and orders signed by those judges, those would be
25 judicial records under the statutes and the rules of
Imperial Court Reporting
Page 8
1 judicial administration.
2 And to that extent this Court has jurisdiction,
3 and I think the Court needs to retain jurisdiction
4 to make the determination to the answers to the
5 questions that the Court has.
6 THE COURT: Okay. Any response?
7 MR. FLYNN: Your Honor, again, Sean Flynn, the
8 United States attorney. If the Court doesn't mind,
9 I would like to take the questions out of order --
10 THE COURT: Sure.
11 MR. FLYNN: -- and address the first question,
12 which is in what capacity was Michael Jackson
13 operating as a custodian of the records in question?
14 Your Honor, Michael Jackson is a special deputy,
15 United States marshal. He has served in that
16 capacity since 2011. He is a member assigned to the
17 Florida/Caribbean Regional Fugitive Task Force.
18 Importantly, your Honor, that task force which
19 was created pursuant to federal law, namely 28
20 U.S.C. 566 E1B, set forth in the Presidential Threat
21 Protection Act of 2000 which states in part, quote,
22 the United States -- excuse me "the Attorney General
23 shall" and further states "establish permanent
24 fugitive apprehension task force consisting of
25 federal, state, and local law enforcement
Imperial Court Reporting
Page 9
1 authorities in designated regions of the United
2 States to be directed and coordinated by the United
3 States Marshals Service for the purpose of locating
4 and apprehending fugitives."
5 As I said, your Honor, Michael Jackson was
6 serving on the task force and in the capacity as a
7 deputy -- special deputy, a United States marshal.
8 He took the oath of office which included stating
9 that he would perform the duties of a special
10 deputy, a United States marshal, and he is
11 authorized to seek and execute arrests and search
12 warrants supporting the federal task force.
13 So that is the status of Michael Jackson, your
14 Honor. And because of Michael Jackson's status as a
15 member of a federally-created task force and being
16 duly sworn as a special deputy United States
17 marshal, I respectfully suggest to this Court that
18 this Court does not have jurisdiction over this
19 matter for two reasons and a third reason that I'll
20 address.
21 The first reason is because the United States
22 and its officers are entitled to sovereign immunity.
23 An action against an officer in his official
24 capacity in reality is a suit against the officer's
25 agency or the United States.
Imperial Court Reporting
Page 10
1 And for authority I would direct the Court to
2 the Supreme Court case of Kentucky v. Graham, 473
3 U.S. 159. It's a 1985 case: And under well-settled
4 principles of sovereign immunity, the United States,
5 as sovereign, is immune from suit save as it
6 consents to be sued. For waiver of the federal
7 government's sovereign immunity must be
8 unequivocally expressed and statutory text will not
9 be implied.
10 There was no such waiver in this case, your
11 Honor, to subject the United States and the United
12 States' officer to be subject to this lawsuit.
13 With respect to the doctrine of sovereign
14 immunity, the 11th Circuit has noted that an
15 action is won against the United States as a
16 sovereign where the judgment's effect is to compel
17 or strain the government's actions, which is
18 certainly the case here.
19 In addition, your Honor, the Florida Sunshine
20 Laws at issue, at least with respect to the federal
21 government, the federal officers, have been
22 preempted by federal statute. And I would direct
23 your Honor's attention to 5 U.S.C. 301, which is
24 often referred to as the federal housekeeping
25 statute.
Imperial Court Reporting
Page 11
1 Pursuant to that statute, the Department of
2 Justice has promulgated regulations, namely 28
3 C.F.R. 16.21 et seq. which prohibit special deputy
4 United States Marshal Jackson from disclosing any
5 information or producing any material acquired as
6 part of his performance of his official duties or
7 because of his official status without prior
8 approval from the Department of Justice.
9 Special Deputy United States Marshal Jackson
10 has not received authority from the Department of
11 Justice to produce the documents in question. In
12 the Supreme Court case, the United States ex rel.
13 Touhy v. Ragan, which can be found at 340 U.S. 462,
14 the Supreme Court of the United States noted that
15 employees of the Department of Justice have no
16 discretion to honor subpoenas for official
17 information and they are bound to follow the lawful
18 orders of the Attorney General.
19 The Supreme Court case in Touhy is just one of
20 many cases in federal cases that have rejected
21 attempts by litigants to force their own employees
22 to provide testimony or documentary evidence, your
23 Honor.
24 One example closer to home is a 2007 matter
25 that occurred in the state court of Hillsborough
Imperial Court Reporting
Page 12
1 County in which the state court judge ordered the
2 FBI agents to produce documents and appear for
3 depositions in a criminal matter.
4 My office removed the matter to federal court
5 and the federal judge vacated the order, quote,
6 because the state board lacked jurisdiction to
7 compel the production of documents at deposition
8 testimony.
9 Consequently, your Honor, because the
10 Department of Justice has not authorized special
11 deputy of the United States Marshal Jackson to
12 produce the documents in question, this Court has,
13 quote, no power or authority to compel him to do so.
14 Finally, your Honor, I'll address the third
15 question your Honor raised, and that is whether the
16 Sunshine Law even applies to federal actors. And I
17 would submit to your Honor that it does not. I
18 would refer your Honor to Florida Attorney General
19 Opinion 71-191 which stated that federal entities --
20 agencies or entities created under federal law
21 operating within the state do not come within the
22 purview of the state's Sunshine Law.
23 And as I mentioned before, this federal task
24 force was created pursuant to federal law. For
25 example, meetings of a federally-created counsel
Imperial Court Reporting
Page 13
1 were found to be not subject to section 286.011.
2 And, again, I'll refer your Honor to the Florida
3 Attorney General Opinion 84-16.
4 I would like to refer your Honor's attention to
5 the case of the City of Miami v. Metropolitan Dade
6 County, which can be found at 745 F.Supp. 683.
7 That's a southern district of Florida case in 1990.
8 In that case, the district court found that the
9 federal government actions are not governed by
10 Chapter 119 of the Florida statute.
11 And that was not just because, as the Court
12 stated, the actions of the federal government should
13 not be dictated by a Florida statute, but also
14 because of the interpretation of the statute itself.
15 Primarily, your Honor, the definition of agency
16 found in 119.011(2) does not include federal
17 entities. Rather, it refers to agencies created and
18 entities created pursuant to state law.
19 Similarly, your Honor, if you refer to a
20 definition of public records, which can be found at
21 section 119.011(12), that -- it defines public
22 records and refers to documents made, received, et
23 cetera, quote, in connection with the transactions
24 of an official business of any agency.
25 It has -- I previously stated, your Honor,
Imperial Court Reporting
Page 14
1 agency, the way it is defined, does not include
2 federal entities. So I would submit to your Honor
3 that based on the Attorney General's opinions and
4 the case law, that the Florida Sunshine Law does not
5 apply to federal actors, being the federally-created
6 task force and the special deputy United States
7 marshal.
8 THE COURT: Okay. Anyone else as far as a
9 response?
10 MR. SHULTS: Yes, your Honor. On behalf of the
11 City of Sarasota, I would like to refer to paragraph
12 7 of the petition for mandamus in answering your
13 Honor's questions. Paragraph 7 describes the
14 records sought as, quote -- records, quote, made or
15 received certain records relating to applications
16 tendered to the circuit court of the 12th Judicial
17 Circuit in and for Sarasota County and the judicial
18 orders entered pursuant to the provisions of Florida
19 statute 934.32 and 934.33 (the records) or, quote,
20 the requested records, unquote.
21 What the petitioners have described your Honor,
22 are Florida judicial records. And if in fact these
23 records sought are Florida judicial records, this
24 Court does not have jurisdiction under Chapter 119
25 but rather has jurisdiction under the rules of
Imperial Court Reporting
Page 15
1 judicial administration, and in particular I believe
2 the rule is 2.240 which underwent a pre-extensive
3 redrafting by the Florida Supreme Court in 2013.
4 So if the records are Florida judicial records,
5 there is no jurisdiction under 119. And I can cite
6 to your Honor a case, Morris Publishing Group at 13
7 So.3d 120. That's the 1st DCA, June 2009. However,
8 if they are judicial records, your Honor may have
9 jurisdiction under the rules of judicial
10 administration pursuant to rule 2.240.
11 As to the capacity of Michael Jackson, the City
12 has not seen the records that are now in possession
13 of the United States. So we're unable to address
14 what capacity at this stage that Michael Jackson
15 possessed those records without seeing the records.
16 We have been informed that Michael Jackson is
17 represented by the U.S. Attorney's Office. However,
18 for purposes of today, it's my understanding that
19 the U.S. attorney is not making an appearance on
20 behalf of Michael Jackson. So we will -- in answer
21 to question number 2, the City does not know at this
22 stage. We may learn as we get into this.
23 THE COURT: Okay.
24 MR. SHULTS: In answer to question number 3,
25 does Chapter 119 apply to a person acting on behalf
Imperial Court Reporting
Page 16
1 of the federal government, I think the answer that
2 is provided by the case law is that, first, Chapter
3 119 does not apply to federal investigations. It
4 does not apply to federal criminal investigations.
5 It only applies to state criminal investigations.
6 Whether these records reveal a federal or a
7 criminal investigation, we do not know. But it does
8 appear that the records are state judicial records,
9 which would nevertheless take it outside of 119 and
10 put it into the realm of the rules of judicial
11 administration.
12 The other element of answering the question of
13 whether it applies to somebody acting on behalf of
14 the federal government is that if these documents
15 are federal documents as opposed to state documents,
16 then 119 would not apply. I think that addresses
17 your issue, and I don't know if the U.S. attorney
18 wants to add something on the issue of whether or
19 not they're judicial records.
20 MR. FLYNN: Your Honor, if I may. With respect
21 to Michael Jackson was acting in his capacity as a
22 special deputy, a United States marshal, just let
23 the Court know that in creating these applications
24 to be submitted to the Court, they must first be
25 approved by the United States Marshals Service
Imperial Court Reporting
Page 17
1 before he is even authorized to submit them to the
2 Court.
3 So in his capacity as a member of the
4 Florida/Caribbean Regional Fugitive Task Force, the
5 procedures in place require you get approval from
6 the supervisor or inspector of the United States
7 Marshals Service prior to the filing.
8 With respect to any orders and applications
9 that are under seal that the issuing court returned
10 to Michael Jackson that were in his possession, the
11 United States Marshals Service is prepared to
12 voluntarily return those orders and applications to
13 the issue in court without any further judicial
14 proceedings.
15 But as they stand right now, your Honor, they
16 are documents in the possession of the United States
17 and would be covered by the federal housekeeping
18 statute. Thank you.
19 THE COURT: Okay. Any response to that or any
20 rebuttal?
21 MR. THOMAS: Well, I think, your Honor, the
22 assertions by the U.S. attorney, we don't know, just
23 because he was a special deputy, whether in fact --
24 he went to a -- rather than a United States district
25 judge in Tampa, he went to a sitting circuit judge
Imperial Court Reporting
Page 18
1 in this county and asked for relief for the stingray
2 application.
3 It seems curious that a federal deputy marshal
4 would not go to one of the six sitting judges in
5 Tampa to make the application. Your Honor, our
6 biggest concern is it should never be that an order
7 entered by a sitting circuit judge disappears.
8 The process here is what we are most concerned
9 about, that is, that an order by one of your Honor's
10 brethren is entered, it never goes to the clerk's
11 office, it never stays in the bosom of the Court
12 here, but it goes away. So our chief concern is
13 that, your Honor.
14 And the information about the United States
15 attorneys' participation or the Justice Department
16 or the Marshals office is all new information to us.
17 So as a status conference, your Honor, we're
18 learning a lot, and I think that the briefing that
19 should happen is more than just discussion here. We
20 should have an opportunity to address the issues for
21 your Honor's consideration.
22 THE COURT: Okay.
23 MS. MOGENSEN: I would like to speak.
24 THE COURT: Oh, I'm sorry.
25 MS. MOGENSEN: I think the primary issue for
Imperial Court Reporting
Page 19
1 today is maintaining the status quo. The records
2 exist. And if the Court has observed the exhibits
3 attached to the pleadings, the public records
4 request was very broad. And Chapter 119 applies to
5 all public records in the state of Florida.
6 Irrespective of what records the federal
7 government knows about or makes an assertion about
8 and the City doesn't know about, there needs to be
9 judicial oversight because whether or not the
10 Florida Public Records Act applies is determined by
11 the nature of the record.
12 So to the extent that that's the case, although
13 it may be true that some records are exempt pursuant
14 to the argument made by the U.S. attorney and it may
15 be that some records are exempt pursuant to other
16 exemptions, this Court needs to retain jurisdiction
17 to make a determination whether it has jurisdiction
18 because it is the nature of the records that makes
19 that determination for this Court.
20 The fact that a number of those records are
21 known to be applications and orders signed by the
22 12th Judicial Circuit judges presumably in 12th
23 Judicial Circuit cases, we know there's a good
24 possibility of that. But the actual request applies
25 to all documents relating to the stingray device
Imperial Court Reporting
Page 20
1 from the Sarasota Police Department.
2 To the extent that they're custodians of
3 records -- and it was very broad. It included
4 e-mails throughout it between state agents and state
5 actors regarding state cases, financial documents
6 regarding anything that agency has spent money on
7 towards that end. It was very broad.
8 So I know that some of the -- you know, the
9 urge is to fixate on some of the records that the
10 federal government wants to keep secret, but this
11 Court does potentially have jurisdiction over
12 numerous records. And there's really no way to
13 determine that unless the Court does an in camera
14 inspection and reviews them to make that
15 determination.
16 So our primary purpose is to preserve the
17 status quo and give the Court an opportunity to make
18 that determination, whether the act applies, to
19 answer the questions that have been raised.
20 Are there responsive records that Michael
21 Jackson as a detective of the Sarasota Police
22 Department maintained that are responsive to the
23 request? Does state law apply? If there are
24 records to which the federal law applies, it's
25 possible that we can be removed.
Imperial Court Reporting
Page 21
1 But there's certainly a very good probability
2 given what Mr. Thomas just argued that if state
3 court judges are signing orders and applications are
4 being made in the state court, that they're very
5 likely state court issues.
6 THE COURT: All right. So when you say
7 maintaining the status quo, what are you requesting
8 that the Court do?
9 MS. MOGENSEN: Well, to the extent -- we've
10 asked that whatever records are responsive not be
11 disposed of and given to the federal government and
12 swept in so that we don't have that opportunity.
13 Because it does create a jurisdictional problem and
14 it's very likely that this now will be some kind of
15 bifurcated proceeding because ultimately we're going
16 to have to do that.
17 To the extent that today there are records that
18 the Sarasota Police Department are custodians of
19 that are responsive records to this request, that
20 they be required to follow the mandated Chapter 119
21 and not dispose of those records and transfer them
22 to a place where they can claim an exemption.
23 There is a requirement when a request is made,
24 irrespective of whether an agency contends that
25 those are public records, that they maintain that
Imperial Court Reporting
Page 22
1 status quo for 30 days. And the City simply said
2 they would not follow that mandate of the statute.
3 They refused to do so and they transferred the
4 records in spite of the request and in spite of the
5 fact that that particular portion of the statute was
6 cited to them. They simply said they were going to
7 ignore that.
8 That creates a legitimate concern that
9 additional records that they do not want to be
10 disclosed will be swept in. And it's never been the
11 case that the Public -- the Public Records Act is
12 designed to be construed most favorably to
13 transparency and to the right of people to have
14 access to the records, and to permit and allow and
15 encourage a government agency that is required to
16 follow Chapter 119 -- to not discourage the practice
17 of sweeping those into a secret place would really
18 pervert the purpose of the law.
19 THE COURT: All right. So you're saying that
20 any records that are currently in the City's
21 possession, I guess through the SPD, be maintained
22 and not transferred to federal custody?
23 MS. MOGENSEN: Right. And I will say too,
24 Chapter 119 does apply. The rules of judicial
25 administration are for the Courts and give mandates
Imperial Court Reporting
Page 23
1 to the Court on how records should be maintained, et
2 cetera. And when we're pursuing these records from
3 the judiciary, we would be operating under that, but
4 we're not. We're pursuing them from the state
5 government agency, the Sarasota Police Department,
6 and Chapter 119 does apply to the Sarasota Police
7 Department as custodians of whatever records are
8 responsive.
9 There may be public records that are exempt.
10 There may be some that are exempted confidential.
11 There may be responsive records that are neither.
12 But without preserving the status quo and having an
13 evidentiary hearing and allowing this Court to do an
14 in camera inspection, all we'll have is boldface
15 assertions.
16 And we don't know that any actor or person in
17 this room actually knows whether the whole body of
18 what's been requested -- whether their argument
19 pertains to that. I think it's the Court's
20 responsibility to do an in camera inspection and
21 say, you know, yes, these all are federal records in
22 federal cases. I can see that over the nature of
23 the records. No, these are not.
24 So we would like to preserve the status quo and
25 get an order in place preventing the Sarasota Police
Imperial Court Reporting
Page 24
1 Department from disposing of any more records,
2 because that is not authorized by law, and allowing
3 the Court to give the judicial oversight that's
4 required by Chapter 119.
5 THE COURT: Okay. Let me hear from the City
6 first.
7 MR. SHULTS: Here is the circumstances before
8 the Court. Mr. Barfield made the very broad public
9 records request. The City has responded and is
10 continuing to respond to that public records request
11 by providing documents to Mr. Barfield's counsel.
12 We have already provided about 1900 documents
13 to Mr. Barfield's counsel. We have also provided an
14 exemption log to Mr. Barfield's counsel. We have
15 informed counsel that we are continuing to, in good
16 faith, go through our records, and there will be
17 more records that will be provided to Mr. Barfield's
18 counsel along, likely, with more exemption logs.
19 So there's no reason for this order that
20 they're asking for attempting to freeze these public
21 records. In addition to that, they're essentially
22 asking for an injunction, which I think will require
23 an evidentiary hearing and the posting of the bond.
24 But there's no need to do that, your Honor, because
25 we are in the process of producing these records
Imperial Court Reporting
Page 25
1 that are nonjudicial records.
2 They are not the records in the possession of
3 the U.S., but they are records that are in
4 possession of the City, which we are going through
5 diligently.
6 On the issue -- if I can back down -- back up
7 to the issue of jurisdiction. We have declared
8 exemptions to certain documents in our possession.
9 The law is clear that mandamus is inappropriate to
10 determine exemptions claimed by the government. And
11 I would site the case of Shea v. Cochran, which is
12 at 687 So.2d 628.
13 Moreover, your Honor, they have not -- what
14 they have pled in this case in their petition is the
15 documents that are in the possession of the United
16 States. They have not pled a violation concerning
17 the rest of the very broad records requests that we
18 are in fact complying with. That's not an issue
19 before the Court.
20 The issue before the Court is these records
21 that are now in possession of the United States,
22 which based upon statements made here before your
23 Honor this morning and the pleading in the case,
24 appear to be state judicial records. The U.S.
25 attorney has offered to file those records with the
Imperial Court Reporting
Page 26
1 Court. The City believes that should happen, that
2 those records should be filed with the Court if they
3 are state judicial records.
4 And then if the plaintiff wants to continue to
5 proceed, to proceed under the rules of judicial
6 administration, which has a very orderly process, to
7 determine confidentiality and whether or not sealed
8 judicial records should be released to the public.
9 So there is no need for any other sort of order at
10 this stage, your Honor.
11 THE COURT: Okay.
12 MR. FLYNN: Your Honor, I want to first address
13 this notion that the City transferred documents into
14 the possession of the United States or that they are
15 attempting to hide documents with the United States.
16 Nothing can be further from the truth.
17 The documents in question here, again, are
18 documents that were generated and retained in
19 connection with the federally-created task force.
20 The United States has not sought to take any
21 documents outside of the federal task force, nor
22 have they requested that of the City.
23 An injunction would in effect be enjoining the
24 United States from handling their own documents
25 pursuant to their federal task force, which this
Imperial Court Reporting
Page 27
1 Court respectively does not have jurisdiction to do
2 so.
3 Secondly, the petitioners have made a point to
4 address that certain applications were made to state
5 courts. I'll remind petitioners and notify your
6 Honor that the United States Marshals Service has
7 jurisdiction to pursue nonfederal fugitives. And as
8 part of the federally-created task force, the United
9 States Marshals Service does direct the apprehension
10 of non-federal fugitives. So it does make sense
11 that the federal task force at times does make
12 applications to state courts and pursue non-federal
13 fugitives.
14 Finally, your Honor, there is no need for there
15 to be an injunction to protect any documents.
16 Anything that is within the possession of the United
17 States and the United States' federally-created task
18 force would be subject to federal law.
19 And the petitioners haven't had those available
20 for them, as the Court pointed out, the Freedom of
21 Information Act. And to the extent they want to
22 request those documents, the request should be made
23 through the Freedom of Information Act. Thank you,
24 your Honor.
25 THE COURT: Okay. Any further response?
Imperial Court Reporting
Page 28
1 MS. MOGENSEN: Judge, I disagree respectfully
2 with counsel for the City. Mandamus is the
3 appropriate remedy for violations of the Public
4 Records Act. That's Smith v. State, 696 So.2d at
5 816. It's not a question of whether or not
6 exemptions apply. It's a question of whether
7 there's been violations to the Public Records Act.
8 To the extent that the City is furnishing
9 documents subsequent to the filing of litigation,
10 the litigation is to proceed and determine if there
11 was a violation of the act and litigation was
12 necessary to obtain public records under mandamus.
13 But since both of the opponents believe that
14 there is no need for an injunction to prevent
15 further disposition of records, I would expect that
16 there's no objection to that as well. If they
17 intend to comply with the Public Records Act and
18 intent not to dispose of records, I can't imagine
19 why one would object to an order requiring one to do
20 what they intended to do in any case.
21 We do feel it's necessary because Chapter 119
22 was cited as a reason for the City to maintain
23 possession of the records that they had possession
24 of and frankly and candidly told us they were not
25 going to follow that provision of Chapter 119. And
Imperial Court Reporting
Page 29
1 that creates a legitimate concern, and I think that
2 we should proceed.
3 I recognize this is a status conference and not
4 an argument on the merits, but we should proceed
5 towards that end, towards entry of that injunction.
6 And, candidly, Judge, we are entitled to an
7 accelerated hearing on an emergency basis. It is
8 considered in the public interest of the highest
9 order and does get accelerated treatment.
10 So I would ask the Court to set very shortly a
11 hearing on that petition for that injunction because
12 the relief -- because of the conduct of the parties
13 involved, it does appear to be necessary. And to
14 the extent that the City doesn't object and intends
15 to follow that law, I don't see that it would be a
16 contested issue.
17 MR. SHULTS: Well, your Honor, much of what
18 counsel says the City contests. If they want to
19 have an injunction, that's an evidentiary matter.
20 They have to prove a basis for an injunction. They
21 have to post a bond. What we have in this case is
22 we have the U.S. attorney stating that they came and
23 they took possession of the City's -- of records
24 from Detective Jackson.
25 It's not a situation where the City called up
Imperial Court Reporting
Page 30
1 the U.S. attorney and said, here, come and take
2 these records. We've already addressed the nature
3 of those records. By all appearances, they appear
4 to be judicial records. They are offering to file
5 them with the Court. If there would be an order
6 this morning, I think that the only appropriate
7 order would be to take the U.S. attorney up on that
8 offer.
9 THE COURT: Okay. Let's do that. Let's get
10 that clarified. These records that the -- it's
11 always -- that the United States has in its
12 possession, those are going to be filed under seal
13 with the state court?
14 MR. FLYNN: No, your Honor. What we are
15 offering to do is the applications and orders from
16 the state court that are currently under seal, those
17 applications and orders, we are voluntarily -- we
18 will voluntarily file with the court that issued
19 those orders.
20 THE COURT: Okay. All right. And when will
21 you do that?
22 MR. FLYNN: We can do that in a reasonably
23 short period, your Honor. Whatever, you know -- I
24 don't have a specific time period in mind, but as
25 long as it's a reasonable time that gives us enough
Imperial Court Reporting
Page 31
1 time to do it. A couple of weeks, your Honor, I
2 think will probably be sufficient to do that.
3 THE COURT: All right. Can we say that that
4 will be done 10 days from today?
5 MR. FLYNN: Yes, your Honor.
6 THE COURT: All right. Any other response at
7 this point? All right. The Court's going to have
8 to make a determination again ultimately as it
9 relates to the jurisdiction to hear the writ.
10 I'm not going to issue any type of status quo
11 at this point based on what's been represented and
12 what's on the record so far. Does either side wish
13 to supplement their argument or are both sides
14 satisfied with the arguments that have been
15 presented?
16 MS. MOGENSEN: The only thing I would say,
17 Judge, is just to remind the Court that until the
18 Judge looks at the nature of the records -- and with
19 all respect to the U.S. Attorney's Office, I don't
20 know how they can claim to know what would be in
21 possession of the state agency, whether it's
22 responsive or not.
23 And the attorneys for the City said that they
24 don't necessarily have a full volume. But to the
25 extent that records are going to be produced, this
Imperial Court Reporting
Page 32
1 Court has jurisdiction to determine if the failure
2 to produce those records prior to litigation
3 comprises a violation of the act. So I would just
4 encourage the Court to consider that in the
5 jurisdictional question.
6 THE COURT: Okay.
7 MR. FLYNN: Your Honor, I would like to again
8 clarify that the only records that the federal
9 government has asserting interest are the documents
10 that are created and maintained by members of the
11 federally-created regional task force and special
12 deputy United States Marshal Jackson in that
13 capacity.
14 We are not asserting an interest at this time
15 on any documents maintained by the City outside of
16 that task force. We are only saying that the
17 documents created and maintained by the task force
18 and special deputy United States Marshal Jackson are
19 federal documents. They're our documents, and the
20 Court does not have jurisdiction to review those
21 documents, respectfully. Thank you.
22 THE COURT: Okay. All right. Anything else?
23 MR. SHULTS: No, your Honor.
24 THE COURT: All right. I'll issue some sort of
25 order based on what's been discussed here. Unless
Imperial Court Reporting
Page 33
1 there's anything else anyone wants to put on the
2 record, then that will conclude today's proceedings
3 on the status conference.
4 MR. THOMAS: Thank you, your Honor.
5 MR. SHULTS: Your Honor, the nature of the
6 order that you intend to issue, will that address
7 jurisdiction and the status of Mr. Jackson?
8 THE COURT: Yes, I have to make that
9 determination before I do anything else.
10 MS. MOGENSEN: And if the Court determines that
11 there is some jurisdiction, would the Court give
12 some consideration to setting an accelerated hearing
13 pursuant to 119?
14 THE COURT: Yes.
15 MS. MOGENSEN: Thank you, Judge.
16 THE COURT: All right. Thanks.
17
18 (The proceedings were concluded at 9:38 a.m.)
19
20
21
22
23
24
25
Imperial Court Reporting
Page 34
1 CERTIFICATE OF COURT REPORTER
2
STATE OF FLORIDA
3
COUNTY OF MANATEE
4
5 I, Tara Shuck, Registered Professional Reporter, do
6 hereby certify that I was authorized to and did
7 stenographically report the Status Conference before the
8 Honorable Charles E. Williams; and that the foregoing
9 transcript, pages 1 through 33, is a true record of my
10 stenographic notes.
11
12 I FURTHER CERTIFY that I am not a relative,
13 employee, or attorney, or counsel of any of the parties,
14 nor am I a relative or employee of any of the parties'
15 attorney or counsel connected with the action, nor am I
16 financially interested in the action.
17
18 DATED this 17th day of June, 2014 at Manatee County,
19 Florida.
20
21
22
23
24 ________________________________
Tara Shuck, RPR, FPR
25
Imperial Court Reporting

Sign up to vote on this title
UsefulNot useful