LYNX Surveillance Footage Exempt from Public Inspection

bus insideIn a surprising opinion issued on January 30, 2015, which promises to have a wide-reaching effect, the Fifth District Court of Appeal overturned a declaratory judgment entered in favor of WKMG-TV Local 6, and determined that surveillance footage is exempt from inspection under Florida’s Public Records Act, Chapter 119, Florida Statutes.

The controversy began when WKMG requested access to surveillance footage taken from buses operated by the Central Florida Regional Transportation Authority (“LYNX”). Relying upon a narrow exception articulated in sections 119.071(3)(a) and 281.301, Florida Statutes, LYNX argued that the footage from its buses is exempt from inspection because the footage constitutes “records, information, photographs, audio and visual presentations . . . relating directly to the physical security of the facility or revealing security systems,” which are confidential and exempt from disclosure under the Public Records Act.

The trial court ruled in favor of WKMG holding that the footage did not fall within the statutory exemption because the video did not reveal information concerning the “security system plan,” nor did the footage relate directly to or reveal LYNX’s security system. Moreover, to the extent that the footage revealed or related to the existence of a security system, which is open and notoriously disclosed on every bus, and LYNX’s security concerns were de minimus and did not overcome the strong public policy in favor of access to public records.

The Fifth District, relying on what it deemed the “plain language” of the statute, reversed the trial court. “We agree with LYNX that the video footage captured by the bus camera directly relates to and reveals information about a security system.” While WKMG argued that the bus footage revealed nothing about the security system itself, the appellate court disagreed. “The videos, which are records, reveal the capabilities—and as a corollary, the vulnerabilities—of the current system.” Declining to analyze the legislative history, the court determined that the footage clearly fell within the plain language of the statutory exemption, and held that security footage is not subject to inspection under the Public Records Act.

In light of the media’s interest in obtaining this kind of footage, this is likely not the last we will hear on this issue. Do you think the appellate court got it right? Leave a comment and let us know.

 

U.S. Supreme Court Victory for T-Mobile

tmobileOn January 14, 2015, the U.S. Supreme Court issued an opinion in T-Mobile South, LLC v. City of Roswell, Georgia, Case No. 13-975, reversing a decision of the Eleventh Circuit Court of Appeals.  At issue:  whether an application to construct a cell phone tower on residential property was properly denied after a public hearing.  T-Mobile argued that the denial was not supported by competent substantial evidence.  The District Court agreed, holding that minutes from the public hearing, published 26 days after the hearing, were insufficient under the Telecommunications Act of 1996 (the “Act”), which requires a locality’s denial of an application thereunder to be “in writing and supported by substantial evidence contained in a written record.”  The Eleventh Circuit reversed, in accordance with its precedent, and determined that the city’s denial letter and written transcript were sufficient under the Act.

In its opinion, delivered by Justice Sotomayor, the U.S. Supreme Court did what it rarely does, and set forth a procedural outline for localities to comply with the Act.  It held that, under the Act, a locality must state, in writing, the reasons for denying applications to build cell phone towers.  While the locality’s reasons need not be contained in the denial notice itself, there must be some written record issued essentially contemporaneously with the denial, to give a reviewing court sufficient information to determine with the locality’s denial is lawful.

In the case at bar, the City of Roswell’s minutes were deemed to be a sufficient writing memorializing the reason for denial, but because the minutes were not issued for 26 days, it was insufficient under the Act.  The contemporaneous requirement takes into account that the deadline to seek judicial review of a denial is 30 days.

Chief Justice Roberts and Justice Thomas filed dissenting opinions.  A full copy of the opinion can be found here.

Orange County Sanctioned for Frivolous Appeal

sanctionsIn a scathing opinion issued on December 12, 2014, the Fifth District Court of Appeal took Orange County and its attorney to task for its appeal of an order awarding attorneys fees in connection with the County’s violation of public records laws.  Orange County, Florida v. Hewlings, Case No. 5D13-3775 (5th DCA December 12, 2014).

As recited in the opinion, the case involved a records request in connection with the investigation of the appellee’s dog by the county’s animal services division.  Appellee repeatedly requested copies of all the county’s records with respect to the investigation, and offered to pay the costs of copies.  The requests were ignored for so long that the appellee filed a petition for writ of mandamus, which was granted,  however the appellee’s request for attorneys’ fees was denied. Appellee appealed the trial court’s denial of her request for attorneys’ fees.  The Fifth DCA reversed–determining that the county’s delay in furnishing records “was tantamount to a refusing to comply”–and remanded for further consideration by the trial court to determine whether the county had “unreasonably delayed” complying with the records request.

On remand the trial court found that the county had, indeed, unreasonably delayed compliance.  The county appealed the order on remand, but did not challenge the trial court’s finding of unreasonable delay.  Rather, the county re-raised the very same issues decided in the first appeal–arguing that the delay in compliance was not a refusal to comply.

In its opinion the Fifth DCA stated, “It is as if counsel for Appellant, who was the same counsel in Hewlings I, slept through the entire prior appellate proceeding and then failed to read either the opinion or order.” The county’s attempt to re-argue the same question of law previously decided by the Court (the “law of the case”) was not well taken.  “Appellant’s suggestion that it may incrementally dole out its arguments pertaining to the meaning of a single statute in separate appeals borders on ludicrous.”

Holding that the case was a “textbook example of why the legislature authorized an award of fees against obstinate public entities,”  the court ultimately sanctioned the County for what it deemed a “frivolous and abusive appeal,” and granted the appellee her appellate attorneys’ fees.

SCOTUS Denies BP’s Appeal of Gulf Spill Settlement

ID-10051435On December 8, 2014, the Supreme Court denied a petition for writ certiorari filed by BP Exploration & Production. Through its petition, BP sought to set aside a settlement agreement it reached with parties to a class action lawsuit over the devastation caused by the Deepwater Horizon explosion and oil spill. The primary basis cited by BP in the petition was that the certified class included numerous members who had not suffered any injury. At issue was the fact that claimants seeking to recover monies from the settlement were not being required to demonstrate by evidence that their claims arose from the oil spill. Opponents to the petition argued that BP was ‘switching sides’ have advocated in favor of the district court’s adopting settlement agreement.

The denial of the petition means that BP is bound by the terms of the settlement agreement, and that claimants will receive compensation regardless of whether they actually suffered economic damages as a result of the spill.

Failure to Preserve Error Costs Plaintiff a New Trial

Preservation of error is an issue that is discussed so frequently by appellate lawyers that it tends to be met with eye rolls by other lawyers. However, we keep talking about preservation of error because it is one of few things that can kill an appeal before it ever gets addressed on the merits. For this reason, appellate lawyers can add value to a trial team by ensuring that errors made at trial are properly preserved for appeal–freeing up trial laywers to focus on evidence, testimony and other substantive matters.

A recent case out of the Fifth District Court of Appeal underscores, yet again, the importance of proper preservation of error. Hang Thu Hguyen d/b/a Millenia Day Spa v. Wigley, No. 5D13-1925, 2014 WL 2968860 (Fla. 5th DCA July 3, 2014). Plaintiff Wigley filed a lawsuit against Millenia seeking damages for injuries sustained during a paraffin wax manicure. During closing argument, Millenia’s counsel made certain statements that Plaintiff’s counsel deemed improper. Plaintiff’s counsel objected that the statements were improper, and those objections were sustained by the trial court. Plaintiff asked for a curative instruction with respect to one of the objectionable statements, and the trial court granted the request.

After the jury returned a Plaintiff’s verdict ascribing 80% of fault to the Plaitniff, Plaintiff filed a motion for new trial based on the improper remarks made by Millenia’s counsel during closing. The trial court granted the motion for new trial, but the Fifth DCA reversed. Why? Because, in objecting to Millenia’s statements, Plaintiff’s counsel never asked for a mistrial.

“When a party objects to instances of attorney misconduct during tial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for a new trial.” Companioni v. City of Tampa, 51 So. 3d 452 (Fla. 2010).

Because the Fifth DCA found no fundamental error in the defendant’s closing arguments, there was no support in the record for a new trial, and the trial court order granting a new trial was reversed.

Even the most seasoned trial lawyers, in the heat of battle, can and do get hung up on these technicalities in the law. In high stakes litigation especially, best practices would dictate that at least one lawyer be assigned to focus on preservation of error issues during the trial.

Late-Filed Civil Appeals a Nonstarter

What should a civil litigant do when he or she is made aware of the entry of a final judgment after the expiration of the appeal period?  The First District Court of Appeal reminds us in an opinion issued in Sharpe v. Stanley, Case No. 1D14-1190, 39 Fla. L. Weekly D928a (Fla. 1st DCA May 1, 2014) that the appellate court has no authority to grant relief from an untimely-filed appeal in a civil proceeding.  That does not mean, however, that all appellate avenues are foreclosed.  As the court reminds us, relief “may be sought in the trial court by motion under Fla. R. Civ. P. 1.540(b) to set aside the order where no notice of its entry was given to the parties, coupled with a requst that a new order be entered so that the right of appeal is preserved.”