Filing # 43138850 E-Filed 06/23/2016 12:13:06 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
ABC, INC.; THE ASSOCIATED PRESS; CBS
CORP.; CHICAGO TRIBUNE COMPANY, LLC;
CABLE NEWS NETWORK, INC.; DOW JONES &
COMPANY; THE FIRST AMENDMENT
FOUNDATION; THE FLORIDA PRESS
Case No.: ________________
ASSOCIATION; GANNETT CO., INC.;
GATEHOUSE MEDIA, LLC; GRAHAM MEDIA
IMMEDIATE HEARING
GROUP, FLORIDA, INC.; KNIGHT NEWS, INC.;
REQUESTED PURSUANT TO
LOS ANGELES TIMES COMMUNICATIONS
SECTION 119.11(1), FLA. STAT.
LLC; THE MCCLATCHY COMPANY; THE NEW
YORK TIMES COMPANY; ORLANDO SENTINEL
COMMUNICATIONS COMPANY, LLC; THE PALM
BEACH POST; POLITICO, LLC; THE REPORTERS
COMMITTEE FOR FREEDOM OF THE PRESS;
SCRIPPS MEDIA, INC.; SUN-SENTINEL COMPANY,
LLC; WFTV, INC.; WOFL FOX 35; WP COMPANY LLC
d/b/a THE WASHINGTON POST; and WTVT FOX 13,
Plaintiffs/Petitioners,
v.
CITY OF ORLANDO,
Defendant/Respondent.
_____________________________________________/
COMPLAINT TO ENFORCE PUBLIC RECORDS ACT OR IN THE
ALTERNATIVE PETITION FOR ACCESS TO 911 RECORDINGS
AND OTHER PHONE CALL RECORDINGS OF THE CITY OF
ORLANDO REGARDING PULSE NIGHTCLUB SHOOTING
Pursuant to Article I, Section 24 of the Florida Constitution Section, Chapter 119, Florida
Statutes, and Section 406.136(4), Florida Statutes, ABC, Inc.; The Associated Press; CBS Corp.;
Chicago Tribune Company, LLC; Cable News Network, Inc. (“CNN”); Dow Jones & Company;
the First Amendment Foundation; the Florida Press Association; Gannett Co., Inc.; GateHouse
Media, LLC; Graham Media Group, Florida, Inc.; Knight News, Inc.; Los Angeles Times

 Communications LLC; The McClatchy Company; The New York Times Company; Orlando
Sentinel Communications Company, LLC; The Palm Beach Post; Politico, LLC; The Reporters
Committee for Freedom of the Press; Scripps Media, Inc.; Sun-Sentinel Company, LLC; WFTV,
Inc.; WOFL FOX 35; WP Company LLC d/b/a The Washington Post; and WTVT FOX 13
(collectively, the “News Media”), file this action to enforce the Florida Public Records Act
against the City of Orlando (“City”). Specifically, the News Media seek access to and copies of
certain City 911 and other phone call recordings, related to the June 12, 2016, mass shooting at
Pulse nightclub (“Pulse”). In the alternative, if this Court finds that any of the records at issue
(or portions thereof) qualify for withholding pursuant to Section 406.136(2), Florida Statutes, the
News Media petition this Court for a finding that they have established good cause as set forth in
Section 406.136(4), Florida Statutes, to overcome the exemption. As grounds for this
Complaint/Petition, the News Media state:
INTRODUCTION
1.

For ease, the records at issue in this action are separated into two categories, both

of which the City refuses to release in their entirety. The first set of public records the News
Media seek concerns City phone recordings comprising all audio communications between local
911 emergency services and/or the Orlando Police Department (“OPD”), and the deceased Pulse
shooter, Omar Mateen (the “Mateen Conversations”). Upon information and belief, four (4)
distinct audio recordings exist that would comprise the Mateen Conversations.
2.

The second set of public records at issue comprises audio recordings documenting

all other 911 emergency calls, as well as all emergency calls made directly to local police and
fire authorities, related to the Pulse incident (the “Emergency Calls”). The City has advised that
six hundred and three (603) total calls were made to 911 and police/fire authorities during the
2

 approximately three-hour incident. Upon information and belief, the City has yet to determine
exactly how many of those calls actually relate to the Pulse shooting but all parties assume a
large portion do in fact relate to the incident.1
3.

There is a strong public interest in fully evaluating how first responders and

police reacted during the most critical phases of this incredible tragedy. Information gleaned
from the actual conversations with Mateen and others lies at the core of understanding exactly
how events unfolded and will provide critical insight into the propriety of the government’s
tactical response. The purpose of this action, therefore, is to obtain these records to permit the
public to scrutinize and evaluate government behavior. In other words, to realize the central goal
of open government laws.
4.

As discussed in greater detail below, the public records exemption the City

primarily relies upon in withholding the records at issue from the public (Section 406.136,
Florida Statutes) does not apply. Further, even if that exemption were to apply, there exists
“good cause” under the exception to the exemption found at Section 406.136(4), Florida Statutes,
to warrant public disclosure.
5.

The remaining exemptions cited by the City (those concerning exemptions for

active criminal investigative material and personally identifying information contained within
emergency response recordings) are either wholly inapplicable, or at best serve to only exempt
discrete portions of the records at issue.
6.

For their Complaint, the News Media therefore seek an order compelling the City

1

There exists a potential third set of disputed records, those relating to pending requests for all
dispatch or police scanner records, and related database records, regarding the Pulse shooting.
To the extent the City ultimately denies those requests, by either unreasonable delay or citation
to exemption, such records denials should also be considered by this Court at the appropriate
time.
3

 to provide copies of all non-exempt portions of the public records at issue, and to award them
attorneys’ fees, costs, and expenses. As detailed below, the News Media also request in camera
inspection of the records at issue to determine if and to what extent any exemptions cited by the
City may apply. Finally, the News Media request that this matter be set for expedited hearing
pursuant to Section 119.11(1) of the Public Records Act.
7.

For their alternative Petition, were this Court to find that any of the records at

issue (or portions thereof) qualify for exemption under Section 406.136(2), Florida Statutes, the
News Media request that this Court enter an order finding (1) that good cause exists under
Section 406.136(4), Florida Statutes, for the inspection and copying of such records and (2)
compelling the disclosure of those records in accordance with Section 406.136(4)(c), Florida
Statutes.
8.

All conditions precedent to this action have occurred or have been excused or

waived.
JURISDICTION AND VENUE
9.

This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of

the Florida Constitution and Sections 119.11 and 406.136(4), Florida Statutes.
10.

Venue is appropriate in Orange County because the records at issue are located

here.
PARTIES
11.

Plaintiffs/Petitioners comprise local and national media (along with certain

organizations that support free press and open government interests) that have and continue to
cover the Pulse mass shooting. They include: ABC, Inc.; The Associated Press; CBS Corp.;
Chicago Tribune Company, LLC (publisher of the Chicago Tribune); CNN; Dow Jones &
4

 Company (publisher of The Wall Street Journal); the First Amendment Foundation; the Florida
Press Association; Gannett Co., Inc. (publisher of Florida Today, the Fort Myers News-Press, the
Pensacola News Journal, the Tallahassee Democrat, and USA TODAY); GateHouse Media, LLC
(publisher of The Daytona Beach News Journal, The Gainesville Sun, The (Lakeland) Ledger,
the Ocala StarBanner, and the (Sarasota) Herald-Tribune); Graham Media Group, Florida, Inc.
(owner of WKMG-TV6 (Orlando) and WJXT-TV4 (Jacksonville)); Knight News, Inc.; Los
Angeles Times Communications LLC (publisher of the Los Angeles Times); The McClatchy
Company (publisher of The Miami Herald and The Bradenton Herald); The New York Times
Company (publisher of The New York Times); Orlando Sentinel Communications Company,
LLC (publisher of the Orlando Sentinel); The Palm Beach Post; Politico, LLC (publisher of
POLITICO); The Reporters Committee for Freedom of the Press; Scripps Media, Inc. (owner of
WFTS-TV (Tampa), WPTV-TV (West Palm Beach), and WFTX-TV (Fort Myers)); SunSentinel Company, LLC (publisher of the South Florida Sun-Sentinel); WFTV, Inc. (Orlando);
WOFL FOX 35 (Orlando); WP Company LLC d/b/a The Washington Post; and WTVT FOX 13
(Tampa). In covering this attack, these parties continue to rely upon public records as principal
sources for newsgathering, including 911 records and related phone records.
12.

The City is an agency subject to the Florida Public Records Act. Among other

things, the City is charged with operating local 911 emergency call services and OPD.
13.

The City of Orlando created the Mateen Conversations and the Emergency Calls,

and has custody of those records.

5

 FACTUAL BACKGROUND
The Pulse Attack
14.

As most Americans are by now aware, in the early morning hours of June 12,

2016, Omar Mateen, armed with a semi-automatic rifle and semi-automatic pistol, entered Pulse
and began randomly shooting patrons. All told, forty-nine people lost their lives that tragic
night. Another fifty three people were seriously injured. After an approximate three-hour
hostage standoff, OPD stormed the nightclub. Remaining patrons were soon freed and Mateen
was shot and killed by OPD. The incident now stands as the deadliest mass shooting in modern
United States history.
15.

The Pulse tragedy is, unfortunately, the latest in a series of mass shootings that

have befallen this country over the last several years. Combined with the unprecedented death
toll, Mateen’s targeting of a gay nightclub and his professed allegiance to the Islamic State have
further stoked national debate regarding, among other things, preventing “lone-wolf” attacks,
combating religious extremism and “self-radicalization,” federal immigration policy, and gun
control. It has also garnered debate over how to properly respond to such attacks.
16.

The events have also, among other things, elicited sharp responses from the

federal executive branch (including a visit to Orlando by President Obama and Attorney General
Loretta Lynch), both major-party presumptive Presidential candidates, and members of
Congress. State and local reaction has naturally been robust as well.
17.

Because of the apparent terrorism link, the Federal Bureau of Investigation

(“FBI”) is now the lead investigating authority in this matter. That investigation is ongoing and
this tragedy continues to be at the center of public debate, national mourning, and daily news
coverage.
6

 The Media’s Public Records Requests and the City’s Responses
18.

In an attempt to better understand how the shooting unfolded and how City

personnel responded to the incident, various media organizations made public records requests
for, among other things, 911 recordings, recordings of conversations between authorities and
Mateen, dispatch/scanner recordings, and other related records. Those requests were, and
remain, denied.2
19.

On behalf of various media organizations, Thomas & LoCicero sent a June 14,

2016, letter to the City of Orlando’s counsel, Mayanne Downs. A true and correct copy of that
letter is attached as Exhibit A. The letter responded to the City’s claim that the requested
information constituted exempt active criminal investigative information.
20.

The City responded by letter later that same day. A true and correct copy of that

one-page letter is attached as Exhibit B. The City maintained that the requested records
constituted exempt active criminal investigative information. It also cited two additional
exemptions found at Section 365.171(12), Florida Statutes (exempting the name, address,
telephone number, and personal or identifying information contained in certain emergency
services records), and Section 406.136, Florida Statutes (exempting photographs, videos or audio
recordings depicting the “killing of a person”). Additionally, the letter states that some records
“will no doubt be protected by federal law,” but fails to cite any particular federal law. The cited
state statutory exemptions and general reference to “federal law” were the basis for withholding
the requested records in their entirety.
2

Although not the subject of this action, the News Media note that the City has also not released
any transcripts of the recordings at issue. The News Media assert, however, that to the extent
this Court grants access to any of the audio versions of the records, any companion transcripts
would also be subject to disclosure.
7

 21.

Section 365.171(12), Florida Statutes, exempts from disclosure under the Florida

public records law the name, address, telephone number, and personal or identifying information
contained in certain emergency services records that were “obtained by a public agency or a
public safety agency for the purpose of providing services in an emergency.” The exemption
further states that it “applies only to the name, address, telephone number or personal
information about, or information which may identify any person requesting emergency services
or reporting an emergency while such information is in the custody of the public agency or
public safety agency providing emergency services.”
22.

Section 406.136(2) exempts from disclosure under the Florida public records law

photographs or videos or audio recordings that depict or record the “killing of a person.”3
23.

Section 406.136(4) states that upon a showing of good cause a court may order

the disclosure of records otherwise exempt under 406.136(2). Additionally, on April 8, 2016,
Governor Rick Scott signed into law a measure that significantly narrows the application of
Section 406.136(2) to those records that depict the killing of a “law enforcement officer who was
acting in accordance with his or her official duties” (Florida Session Law 2016-214). It becomes
effective, October 1, 2016.
24.

On June 15, 2016, Thomas & LoCicero responded to the City’s June 14 letter. A

true and correct copy of that response is attached as Exhibit C. That letter sets forth why the
City’s claimed exemptions relating to identifying information in 911 calls, and the exemption
regarding the “killing of a person” are either wholly inapplicable or potentially only apply to
3

The “killing of a person” is defined as “all acts or events that cause or otherwise relate to the
death of any human being, including any related acts or events immediately preceding or
subsequent to the acts or events that were the proximate cause of death.” § 406.136(1), Fla. Stat.
(2015).
8

 discrete portions of the subject records. The letter also reiterates the point that it would appear
highly unlikely that the entirety of the recordings could constitute active criminal investigative
information. It also notes that controlling law is clear that an active federal investigation does
not serve to preclude the public’s right of access to state records.
25.

On June 16 the City sent a further response. A copy of that letter is attached as

Exhibit D. That letter reiterates the City’s legal position as expressed in its prior
correspondence. It also notes the potential large volume of 911 and police/fire calls (up to 603
calls) that were received while the Pulse incident was ongoing.
Disclosures and Official Calls for Greater Transparency
26.

In the wake of the shooting, certain information has been made public that bears

directly upon the validity and strength of exemptions claimed by the City.
27.

Identifying information about the shooter, Omar Mateen, has already been made

28.

On June 20, 2016, the U.S. Department of Justice and the FBI released a partial

public.

transcript of Mateen’s 2:35 a.m. call to OPD 911 services. A true and correct copy of the news
release is attached as Exhibit E. That release also presents a number of details about the
timeline of events.
29.

For example, it chronicles four (4) calls Mateen made to 911 and the OPD crisis

negotiation team. The 3:24 a.m. call provides significant narrative details as to the contents of
the call and reveals that the caller claimed responsibility for the shootings.
30.

That same release also reveals the substance of certain communications between

victims and OPD. Specifically, it states that victims who were being rescued informed OPD that
Mateen “said he was going to put four vests with bombs on victims within 15 minutes.”
9

 31.

Finally, the release stated that “there were no reports of shots being fired inside

Pulse between the initial [2:08 a.m.] exchange of gunfire between responding officers and
shooter, and the time of the [5:02 a.m.] final breach. This was the time during which “the
shooter communicated with an OPD 911 operator and an OPD crisis negotiator.”
32.

Based on the federal government’s own timeline of events, there were no shots

fired during the approximately three-hour standoff with Mateen, the time during which the
Mateen Conversations took place and the bulk of the Emergency Calls would have occurred.
33.

In response to numerous public calls to release the entire transcript from, for

example, members of Congress and Governor Rick Scott (see a true and correct copy of a June
20, 2016, Washington Post article, FBI reversed initial decision to redact ISIS mentions from
Orlando 911 transcript, at Exhibit F), coupled with the fact that President Obama had on prior
occasions publicly acknowledged that Mateen had made a pledge of loyalty to the Islamic State,
complete transcript of the 911 call was released later that same day. A true and correct copy of
the related news release is attached as Exhibit G.
34.

Governor Scott is also on record as saying he believes the audio of such

recordings should be released. See WKMG news video, June 21, 2016, AG to meet at Pulse
nightclub, available at: http://www.clickorlando.com/video/ag-to-meet-at-pulse-nightclub.
35.

Despite the federal government’s current reticence to release audio of the Mateen

Conversations that are now in its possession, it has gone on record to detail the tenor of those
recordings, describing Mateen making “statements in a chilling, calm and deliberate manner.”
Attached as Exhibit H is a true and correct copy of a June 20, 2016, Palm Beach Post article in
which FBI Special Agent in Charge Ron Hopper described Mateen’s demeanor on the
recordings.
10

 36.

However, signaling a federal recognition that the audio recordings should be

made public, in a June 21, 2016, press conference, Attorney General Loretta Lynch stated that
the federal government would be open to releasing audio of the 911 calls with Mateen at some
point in the future. See WKMG news video, Attorney General: Act of terror, violence, available
at: http://www.clickorlando.com/video/attorney-general-act-of-terror-violence-1466539891054.
Attorney General Lynch noted that the fact that Mateen is deceased allows the government to be
more transparent earlier than it would have been otherwise because there will be no court
proceedings involving Mateen. See id.
37.

Finally, Mateen’s father has given multiple media interviews in which he has

expressed shock and discussed his son’s possible motivations for the shooting. A true and
correct copy of an Orlando Sentinel article quoting Mateen’s father in this regard is attached as
Exhibit I.4
38.

At bottom, a wealth of information has already been publicly disclosed with

respect to the Mateen Conversations and the Emergency Calls. Moreover, it is clear that there is
significant public interest in the disclosure of the audio at issue. Both the News Media and the
government appear to agree on this point. Yet the City continues to cite public records
exemptions that do not apply, or at best only apply in limited situations. A wholesale
withholding of these critical records, however, is inappropriate.
COMPLAINT – COUNT I (Unlawful Withholding of Public Records)
39.

The News Media incorporate the allegations contained in paragraphs 1 through

38, as well as all referenced exhibits, as if fully set forth herein.
4

The article is supplemented by a video interview with Mateen’s father. It is available at:
http://www.orlandosentinel.com/news/pulse-orlando-nightclub-shooting/os-orlando-massshooting-omar-mateen-father-20160612-story.html.
11

 40.

The Mateen Conversations and the Emergency Calls are public records as defined

in Section 119.011(12), Florida Statutes, and as interpreted by Florida courts, and are
encompassed within Article I, Section 24 of the Florida Constitution.
41.

The constitutional right of access to public records applies to “any public body,

officer, or employee of the state, or persons acting on their behalf . . .” Art. I, § 24, Fla. Const.
The City is a “public body” under Article I, Section 24 of the Florida Constitution.
42.

The City is an “agency” under Section 119.011(2), Florida Statutes, and has a

legal obligation to provide access to any non-exempt public records upon request
43.

No public records law exemptions exist that would prevent the inspection or

copying of the Mateen Conversations or the Emergency Calls in their entirety.
44.

To the extent any select portions of the public records at issue do qualify for

exemption, the City has a legal obligation under Section 119.07(d), Florida Statutes, to redact the
exempt portion and disclose the remainder of the record.
45.

The City has failed and refused to provide the Mateen Conversations and the

Emergency Calls in total or even redacted form pursuant to Section 119.07(d), Florida Statutes.
46.

The City’s failure and refusal to provide the Mateen Conversations and the

Emergency Calls in total or even redacted form pursuant to Section 119.07(d), Florida Statutes,
violates Chapter 119, Florida Statutes, and Article I, Section 24(a) of the Florida Constitution,
and is unlawful.
ALTERNATIVE GOOD CAUSE PETITION PURSUANT
TO SECTION 406.136(4), FLORIDA STATUTES
47.

The News Media incorporate the allegations contained in paragraphs 1 through

38, as well as all referenced exhibits, as if fully set forth herein.
12

 48.

To be clear, the News Media contend that neither the Mateen Conversations nor

the Emergency Calls qualify for withholding under Section 406.136(2), Florida Statutes. As set
forth in correspondence attached to this Complaint/Petition, the City has not met its burden to
overcome the narrow construction that must be given to public records exemptions and otherwise
demonstrate that these records depict or record the “killing of a person.” Much like the
Connecticut Superior Court found that 911 audio recordings related to the Sandy Hook mass
shooting were not confidential under a Connecticut law governing child abuse records, this Court
should not credit strained, overbroad interpretations of Florida public records law exemptions.
See Sedensky v. Freedom of Information Comm’n, No. HHBVCV136022849S, 2013 WL
6698055, at *12 (Conn. Super. Ct. Nov. 26, 2013).
49.

Moreover, the facts now conclusively establish that such records could not

possibly fall within the exemption because the federal government has stated that there were no
reports of gunfire during the three-hour standoff. Thus, no recordings created during that time
could have captured any killings. Nonetheless, were this Court to credit the City’s arguments in
this regard and find that some or all of the records contain information that must be withheld
under Section 406.136(2), the News Media have established good cause for their disclosure
under Section 406.136(4).
50.

Florida law has long recognized that records made or received in connection with

public agency business are presumptively open to the public, unless a specifically stated
exemption applies. See Fla. Const. art. I, § 24(c); Fla. Stat. §§ 119.01, 119.07. Ordinarily—and
until the amended law narrowing the exemption’s application to the killing of a law enforcement
officer becomes effective October 1 of this year—photographs, video, and audio that depict the
“killing of a person” are exempt and confidential. See Fla. Stat. § 406.136(2). But the
13

 Legislature has created a path for the public to access such ordinarily confidential records upon a
showing of good cause5
51.

That path, which is found in Section 406.136(4), Florida Statutes, recognizes that

the values of open government can at times override the government’s interest in keeping certain
records confidential. Thus, in determining whether good cause exists to overcome the
exemption, a Court must consider: (1) “whether such disclosure is necessary for the public
evaluation of governmental performance,” (2) “the seriousness of the intrusion into the family’s
right to privacy and whether such disclosure is the least intrusive means available,” and (3) “the
availability of similar information in other public records, regardless of form.” § 406.136(4)(b),
Fla. Stat. (2015).
A. Disclosure is Necessary for the Public Evaluation of Governmental Performance.
52.

It is at times when tragedy strikes that the public’s interest in complete and timely

information is often at its zenith. The Pulse incident epitomizes such an instance.
53.

Disclosure of the records at issue will serve to better inform the public about how

City emergency services and crisis negotiation teams interacted with and responded to Mateen
and other callers. They will help shed light on the timeline of events, the circumstances within
5

The News Media are not aware of any Florida court that has considered the good cause
standard under Section 406.136(4). However, numerous Florida courts have adjudicated similar
good cause exceptions relating to confidential records in the custody of other Florida agencies.
See, e.g., In re Records of Dept. of Children & Family Servs., 873 So. 2d 506 (Fla. 2d DCA
2004); Dept. of HRS v. Gainesville Sun Pub. Co., 582 So. 2d 725, 727 (Fla. 1st DCA 1991);
A.M.R. v. Florida Dept. of Health & Rehab. Servs., Nos. 91-0325-CA-01, 90-1051-CJ, 1991 WL
253809 (Fla. 5th Cir. Ct. Sept. 20, 1991) (granting petition for access to HRS records; noting the
“need for citizens to know of and adequately evaluate the actions of HRS in fulfilling its duties”
to children); Tribune Co. v. Dept. of Health & Rehab. Servs., 19 Media L. Rptr. 1088 (Fla. 13th
Cir. Ct. 1991) (granting newspaper’s petition for inspection of records related to deaths of
children and disabled adult due to alleged abuse); In the Interest of: E.J., 34 Media L. Rptr. 1251,
1253-54 (Fla. 20th Cir. Ct. Sept. 7, 2005). Such cases serve as instructive parallels.
14

 Pulse and corresponding police action or inaction, help better define any sense of urgency during
those events, and ultimately enable the public to better evaluate the appropriateness of City
action.
54.

To be sure, the News Media do not approach this Petition with any pre-conceived

notion that the City somehow acted inappropriately. Indeed, the audio recordings may well serve
to substantiate and justify any action taken. The salient point, however, is that the public loses
the opportunity to make any assessment, be it positive, negative, or inconclusive, absent
disclosure.
55.

Additionally, public oversight functions would be served because absent the full

benefit of knowing what occurred here, it would be difficult to gauge whether government
entities throughout the country are in any way evolving or otherwise improving upon response
methods and tactics. At the risk of being ill-prepared in the event of a future attack of such scale,
such conversations and deliberations should not be further delayed or impaired.
56.

Finally, as detailed above, the federal government has clearly recognized there is

an interest in disclosing the contents of communications between Mateen and the government
has already released certain related records. This sentiment has been echoed by Governor Scott
(both in official statements to the media and through formal executive action) and the Florida
Legislature. By amending and severely narrowing the exemption at issue (see Florida Session
Law 2016-214, effective October 1, 2016), our state has already recognized that the interests to
be protected under the current version of the exemption are no longer compelling and
outweighed by the public’s interest in access to records that often relate to tragic events.

15

 B. Any Intrusion into Family Privacy Rights is Minimal and No More Intrusive
Than Necessary.
57.

As to the Mateen Conversations, it is beyond serious question that the public has

an overwhelming interest in understanding every facet of his life and how he carried himself
during the attack. Moreover, Mateen’s father has given multiple interviews in the wake of the
shooting in which he openly discusses Mateen and the shooting. As to them any privacy
intrusion is minimal and pales in comparison to the public’s right to know as much as they can
about Mateen. Without the full benefit of knowing what occurred here, it would be difficult to
gauge whether government is in any way evolving or otherwise improving upon response
methods and tactics. Florida law recognizes in cases applying good cause standards, the weight
of the privacy interests at stake is “affected by the fact that information contained in the records
is already known to the public.” In re Records of Dept. of Children and Family Servs., 873 So.
2d 506, 513-14 (Fla. 2d DCA 2004).
58.

As to any Emergency Calls depicting or recording the killing of a human being, at

this point it still remains unclear how many of the Emergency Calls actually emanated from an
actual victim who died. For those calls which did not, they would have minimal impact on
individual family privacy rights as they would not likely be discussing particular victims.
59.

Additionally, this Court must weigh the fact that given the established timeline

shows no shots were fired during the standoff, at best any records qualifying for exemption
would depict either events leading up to or following the killing of a person. Thus the core
privacy concerns the exemption seeks to protect (the depiction or recording of the killing itself)
would not be present. Hence, any related privacy interest would be of a diminished nature.

16

 60.

Moreover, it appears some Emergency Calls demonstrate that hostages were

actively communicating with law enforcement in a heroic fashion. The exact qualitative nature
of the calls must therefore also be considered by this Court in making a good cause
determination.
61.

Finally, the Court should take into account the fact that any privacy intrusion is

indeed temporary and waning given the exemption’s impending narrowing. Thus this entire
inquiry becomes irrelevant in approximately three months. The public should not be foreclosed
from access now—at the moment when the public and government are grappling with this
tragedy—when these records will inevitably become public anyway.
62.

Victims’ families undoubtedly now find themselves deeply invested in knowing

what motivates Mateen and others to commit such horrible acts and how they can apparently
remain calm and focused amid such a chaotic scene of devastation. This Court should be
mindful that disclosure may in fact help prevent future attacks or minimize casualties.
C. Similar Information is Not Available in other Forms.
63.

As previously noted, the information that has thus far been publicly released

regarding the Mateen Conversations and the Emergency Calls are the single transcript 2:35 a.m.
911 call, and certain call summary information found in the FBI’s June 20, 2016, news release.
Hence, the public has been shut out from the overwhelming majority of records detailing calls
received by the City during the incident. The public has no adequate substitute for such firsthand, unmediated information. Indeed, it is access to such “primary source” information that
enables the public to make independent judgments about what occurred.
64.

Additionally, it cannot be denied that there is a distinct qualitative difference

between call transcripts and the actual audio recordings. Transcripts give no indication as to a
17

 speaker’s demeanor, any related sense of urgency in a speaker’s voice, or the tone and timing of
the interactions between the parties. Such verbal cues can be just as vital to understanding the
parties’ interactions as the actual words uttered.
65.

In short, no alternative forms of records will provide the same level of layered

detail as the actual audio recordings.
D. Conclusion.
66.

For the foregoing reasons, the News Media have established good cause pursuant

to Section 406.136(4) and are therefore entitled to access to any records this Court deems
covered by the applicable exemption.
REQUEST FOR IN CAMERA REVIEW
67.

In order to (1) determine whether and to what extent the Mateen Conversations and

the Emergency Calls implicate the exemptions advanced by the City, and (2) if necessary, conduct a
good cause analysis under Section 406.136(4), the News Media request that this Court conduct an in
camera review of the records. Complete and proper analysis in part hinges on the particular
information contained in records. See In re Records of DCF, 873 So. 2d at 513. Indeed, “[i]t is
impossible to judge the potential impact of the disclosure of information contained in records
without knowing what the information is.” Id. at 514.
68.

Given that the Mateen Conversations constitute a significantly smaller portion of the

records at issue, the News Media further request that this Court prioritize in camera review and
adjudication of those records over the Emergency Calls. The News Media submit that the
Emergency Calls can thereafter be reviewed in camera and released, as the Court deems
appropriate, on a rolling basis.

18

 69.

The City can assist in the process by grouping or categorizing the records and

highlighting purportedly sensitive portions for the Court’s review. Alternatively, the City could
create a log that identifies purportedly sensitive portions of the recordings but does not disclose
exempt information.
70.

Such an inspection is necessary for this Court to properly exercise its authority under

Chapter 119, Florida Statutes, and its discretion under Section 406.136(4), Florida Statutes.
REQUEST FOR EXPEDITED HEARING
71.

Section 119.11, Florida Statutes, provides that courts are to set immediate hearings

in actions to enforce the provisions of the Public Records Act and are to give such cases priority
over other pending cases. See Salvador v. Fennelly, 593 So. 2d 1091, 1094 (Fla. 4th DCA 1992)
(recognizing the importance of the statutory provision for immediate hearings in Public Records Act
cases because “time can be an important element in the right of access to public records”).
72.

As the Florida Supreme Court has recognized: “News delayed is news denied.”

State ex. Rel. Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904, 910 (Fla. 1976). The News
Media therefore request an immediate hearing and that this case be given priority over other
pending cases.
73.

Specifically, the News Media request that an initial hearing in this matter be

immediately set to determine certain logistics, mainly how the City will provide reasonable notice
that a good cause petition has been filed to deceased victims’ surviving spouses, parents, and/or
adult children pursuant to Section 406.136(5), Florida Statutes. The initial hearing can also set
review procedures that prioritize adjudication of the Mateen Conversations and, to the extent the
Court orders disclosure upon in camera review, provide for rolling productions of the Emergency
Calls.
19

 74.

Thereafter, this Court should proceed to quickly set this matter for hearing on the

merits.
ATTORNEYS’ FEES
75.

Section 119.12, Florida Statutes, provides that “[i]f a civil action is filed against

an agency to enforce the provisions of this chapter and if the court determines that such agency
unlawfully refused to permit a public record to be inspected or copied, the court shall assess and
award, against the agency responsible, the reasonable costs of enforcement including reasonable
attorneys' fees.”
76.

The News Media have retained the undersigned counsel in this matter and are

obligated to pay to counsel attorneys’ fees, costs, and expenses in connection with this matter.
RELIEF REQUESTED
WHEREFORE, the News Media request that this Court:
(a)

Set an immediate hearing pursuant to Section 119.11, Florida Statutes, to discuss

how reasonable notice will be given under Section 406.136(5), Florida Statutes, an expedited
hearing schedule, and how the Court will prioritize in camera review of the disputed records;
(b)

Set an additional hearing soon thereafter pursuant to Section 119.11, Florida

Statutes, to address the merits;
(c)

Conduct in camera inspections of the records at issue in accordance with the

priority procedures requested herein;
(d)

Find that the records at issue are public records subject to disclosure under the

Public Records Act to which no valid exemption applies, or to which exemptions may apply in a
limited fashion;

20

 (e)

Find the City unlawfully refused to permit access to the records at issue in

violation of the Public Records Act and Article I, Section 24 of the Florida Constitution;
(f)

Order the City to immediately provide all records at issue, or non-exempt portions

thereof, to the News Media;
(g)

Award the News Media their reasonable attorneys’ fees, costs, and expenses

incurred in this action, as provided in Section 119.12, Florida Statutes; and
(h)

Grant the News Media such further relief as the Court deems just and proper.

Alternatively, to the extent this Court determines that any records at issue are in whole or
in part covered by the exemption found at Section 406.136(2), Florida Statutes, the News Media
request that this Court:
(a)

Find that the News Media have established good cause pursuant to Section

406.136(4), Florida Statutes;
(b)

Issue an order compelling the City to immediately provide the News Media access

to and copies of such records in accordance with Section 406.136(4)(c), Florida Statutes; and
(c)

Grant the News Media such further relief as the Court deems just and proper.

Dated: June 23, 2016.
Respectfully submitted,
THOMAS & LOCICERO PL
/s/ Carol Jean LoCicero _____________
Carol Jean LoCicero
Florida Bar No. 603030
Rachel E. Fugate
Florida Bar No. 0144029
Mark R. Caramanica
Florida Bar No. 110581
601 South Boulevard
Tampa, FL 33606
21

 (813) 984-3060
(813) 984-3070 (fax)
clocicero@tlolawfirm.com
rfugate@tlolawfirm.com
mcaramanica@tlolawfirm.com
Attorneys for Plaintiffs/Petitioners

22