Filing 76045305 E?Filed 08/06/2018 04:46:55 PM IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA THE SCHOOL BOARD OF BROWARD COUNTY Case Number: 18014554 (26) Judge: Henning Petitioner, vs. NIKOLAS CRUZ, Respondent STATE OF FLORIDA, Plaintiff, Case Number: 18001958CF10A Judge: Scherer vs. NIKOLAS JACOB CRUZ, Defendant. VERIFIED PETITION TO INVOKE CONTEMPT PROCEEDINGS AGAINST SUN-SENTINEL COMPANY, LLP. AND REPORTERS, PAULA MCMAHON AND BRITTANY WALLMAN COMES NOW, the School Board Of Broward County, Florida, by and through its undersigned attorneys and ?les this, its Veri?ed Petition to Invoke Contempt Proceedings and, in support thereof, states as follows: 1. Under Florida law, ?a refusal to obey any legal order, mandate or decree, made or given by any judge relative to any business of the court, after due notice thereof, is a contempt, punishable accordingly.? See 38.23, Fla. Stat. I-IALICZER PETTIS 8e P.A., ATTORNEYS AT LAW ONE PLAZA SEVENTH FLOOR 4 FORT MUDERDAIE, FLORIDA 33394 I TEL. (954) 523-99222 FAX (954) 522-2312 1 FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 8/6/2018 4:46:55 2. The criminal and civil courts before whom this issue has been addressed, ?may punish contempts against it.? See ?3 8.22, Fla. Stat. See also, ?900.04, Fla. Stat. 3. After receiving public records requests for the subject Report, and being noti?ed of Cruz?s objections to the disclosure of any educational records, the School Board filed a declaratory judgment action so that it could be determined, legally, What portions of the report could be released to the public and what portions needed to be redacted. 4. The Sun-Sentinel actively intervened into that lawsuit and was, and is, a party to the proceedings. 5. In its court ?lings (Exhibit A, Memorandum in Support of Motion to Intervene) and at the hearing before Judge Henning on July 11, 2018 (Exhibit B, Hearing Transcript), the Sun-?Sentinel readily acknowledged that certain information contained in the Report was protected under Florida and federal laws. 6. More speci?cally, counsel for the Sun Sentinel stated, . . we do acknowledge there is HIPPA, there is FERPA, there is a number of statutes in Florida and federally that make certain records con?dential.? See Exhibit B, p. 10. 7. The Sun Sentinel further asked the Court to only withhold the information necessary to not ?run afoul of FERPA, and HIPAA, and the other statutes.? p. 11. 8. The Sun Sentinel readily recognized that the objections to the disclosure of this information were ?validly made? under FERPA and HIPAA and counsel more pointedly stated that ?to the extent that there are records that fall within that category, PETTIS 19.51., ATTORNEYS AT LAW ONE PLAZA . SEVENTH FLOOR I FORT IAUDERDM, FLORIDA 33394 TEL. {954) 525-9922 FAX (954) 5222512 2 then I would be foolish to say that they shouldn?t be exempt. The law is clear on that.? 1d,, p. 27. 9. Ultimately, Judge Henning issued an order agreeing that much of the report should be redacted in order to comply with both Florida and federal law. See Exhibit C, Henning Order dated July 26, 2018. That order applied not only to the School Board and Mr. Cruz, who were the named parties to the case, but also to the Sun Sentinel and the Miami Herald who had intervened in the proceedings. See Exhibit D, Order Granting Intervention. 10. Judge Henning?s order made abundantly clear What all parties had already agreed upon that much of the material in the report that referenced Nikolas Cruz?s educational records needed to be redacted pursuant to ?the requirements of the Family Educational Rights and Privacy Act 20 USC ?1323 g, the Health Insurance Portability and Accountability Act [42] USC ?1320d, Florida Statutes protecting educational records, student placement records and academic assessment records and material, and con?dential exemptions under Florida Statutes ?119.07.? See Exhibit C. 11. Thus, the Sun Sentinel was clearly aware of this order, and within the jurisdiction of the Court. 12. Following the entry of Judge Henning?s order, Nikolas Cruz sought further review in the criminal proceeding before Judge Scherer. PETTIS P.A., ATTORNEYS AT LAW ONE marten}. PLAZA SEVENTH FLOOR FORT EAUDERDALE, FLORIDA 36394 TEL. (954) 523-9922 FAX (934) 522?2312 3 13. More speci?cally, Cruz, through counsel, argued that the release of the subject Report would implicate his right to a fair trial. See Exhibit E, Emergency Motion for Protective Order. 14. Judge Scherer heard argument on Friday, August 3, 2018. 15. Counsel for the Sun Sentinel also appeared and argued at this hearing. 16. Judge Scherer ultimately agreed with Judge Henning that because the critical information pertinent to Nikolas Cruz?s personal educational records had been redacted, it would not impact his right to a fair trial. See Exhibit F. 17. Accordingly, Judge Scherer agreed with the redactions and denied the request for a protective order. copy of the transcript of this hearing has been requested and will be supplemented to the Court as Exhibit to this Petition] 18. After being advised that Nikolas Cruz did not intend to appeal, the School Board uploaded a copy of the redacted report to its website in Portable Document Format (PDF). PDF is a ?le format that provides an electronic image of text that looks like a printed document and can be viewed, printed, and electronically transmitted.? 19. That evening, the Sun Sentinel published an article authored by Paula McMahon and Brittany Wallinan, which detailed redacted and admittedly protected portions of the Report. See Exhibit H, Sun Sentinel Article. 20. Regardless of how they obtained the unredacted version of the Report, the Sun Sentinel and its reporters, Paula McMahon and Brittany Wallman, were on notice HALICZER PETTIS REL, ATTORNEYS AT ONE PLAZA SWH FLOOR I FEET IAUDERDALE, FLORIDA. 3.3394 TEL. (954) 523-9933 FAX 532?2313 4 that: there were court orders in place subject to this Report; and that those orders required the references to Nikolas Cruz?s educational records to be redacted. 21. The Sun Sentinel was on notice by Virtue of the fact that its legal representative appeared and participated in the hearings related to this issue. Likewise, in their written correspondence to the School Board, reporters Paula McMahon and Brittany Wallman have admitted that they, too, know of the court orders protecting the information they subsequently utilized in their article. See Exhibit I (email correspondence). 22. Notwithstanding the Sun Sentinel and its reporters? knowledge of the orders and rulings of both Judge Henning and Judge Scherer, they opted to report, publicly, information that this Court had ordered to be redacted deSpite agreeing, on the record, that this information was protected by both Florida and federal law. 23. This is a clear violation of Court orders, and constitutes contempt of court. 24. More speci?cally, the Sun Sentinel, Paula McMahon and Brittany Wallman have engaged in indirect criminal contempt. 25. Pursuant to Florida Rule of Criminal Procedure 3.840, either of the judges to whom this Petition is directed, on her own motion or on af?davit of any person having knowledge of the facts, may issue an order to Show cause why the Sun Sentinel and the named reporters should not be held in contempt of court. HALICZER PETTIS 8c P.A., AT ONE FmiiNCLu Pia-12.5; SEVENTH FLOOR 4' FORT IAUDERDAIE, FLORIDA 3335M TEL. (954} 533.9923 I FAX {934} 522-2312 5 26. Contempt is an act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen its authority or dignity. See, Haas v. State, 196 So. 2d 515 (Fla. 2d DCA 2016)(e1nphasis by court). 27. ?Courts and judges have inherent power to punish for contempt. . . to appropriately punish by ?ne or imprisonment or otherwise, any conduct that in law constitutes an offense against the authority and dignity of a court or judicial of?cer in the performance of judicial functions. And an appropriate punishment may be imposed by the court or judge whose authority or dignity has been unlawfully assailed.? Ex parte Earman, 85 Fla. 297, 95 So. 755 (Fla. 1923). 28. The Sun Sentinel and its named reporters clearly had knowledge of, and violated, the written and oral pronouncements made by Judge Henning and Judge Scherer. They conceded that the information was protected and confidential. And they knew that the Public Defender had taken the position that its disclosure would not only Violate con?dentiality provisions, but that it would impact Nikolas Cruz?s constitutional right to a fair trial. Yet they intentionally disclosed the information. 29. The Sun Sentinel, as a party to the proceedings, is clearly within the jurisdiction of this Court. Likewise, even as non-parties, Paula McMahon and Brittany Wallman can also be subject to indirect criminal contempt proceedings. See Lindman v. Ellis, 658 So. 2d 632 (Fla. 2d DCA 1995); In re Elrod, 455 So. 2d 1325 (Fla. 4ih DCA 1984)(a court can exercise its contempt powers and punish any person interfering with the administration of justice). PETTIS SCHWALHJ, P.A., ATTORNEYS AT LAW ONE PLAZA I 553va FLOOR i FORT IAUDERDAE, FLORIDA 33394 TEL. (954) 523-9922 FAX (954) 522?2512 6 30. Respectfully, the School Board submits that Judge Henning and/or Judge Scherer should initiate contempt proceedings (either on their own motion or based on this Verified Petition) against the Sun Sentinel Company, LLC, Paula McMahon and Brittany Wallman and impose proper sanctions as deemed appropriate. see, eg, Mayer v, State, 523 So. 2d 1171 (Fla. 2d DCA the adjudication ofa newspaper reporter guilty of indirect criminal contempt for reporting about information she obtained at a hearing afier being advised not to disclose lhe information)(also rejecting reporter's argument that once she had the information in the public domain she was free to publish it) See also. Creative Choice Homes, 11, Ltd. v. Keystone Guard Sven, Inc, 127 So. 3d 1144 (Fla. 3d DCA Parilri v. Browara' Cray, 769 So. 2d 359 (Fla. 2000)(discussing the distinction between criminal and civil contempt and the sanctions available thereunder>>, WHEREFORE, the School Board of Broward County wanted to place this Court on notice of these actions, respectfully submits that contempt proceedings and sanctions would be appropriate under the circumstances, and requests such other and further relief as the Court may deem proper. SCHOOL BOARD OF BROWARD COUNTY Office ofthe General Counsel E-MAIL: 'L'hoolsfiom Under penalties ur perjury, I declare that have read the foregoing Petition and that the facts stated in it are true to Ihe best of knowled FBN: 0496014 FETTIS a; P.A., ATTORNEYS AT LAW om: murmur. sizva mu "woman: mum me: :51. (934) mm am: (954) man 7 HALICLER, PETTIS SCHWAMM, Under penalties of perjury, I declare that 1 have read the foregoing Petition and that the facts stated in it are true to the best of my knowledge and belief. EUGEfilz K, PETTIS FBN: 508454 Under penalties nl'perj ury, I declare that I have read the foregoing Petition and that the facts stated in it are true to the best cfiny knowledge and belief. EBRA POTTER KLAUBER FBN: 055646 HALICZER tut, ATTORNEYS AT LAW ox: FINANCIAL 1mm - st:th Ftoox- Emu my: - TEL (v34) sum:- nu (ng 32.23:; 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10:" day of August, 2018, I electronically filed the foreguiong document with the Clerk of the Court using 1 also certify that the foregoing document with the Clerk of the Court using I also certify that the foregoing document is being served this day on all counsel of record and parties identified on the Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Electronic Filing Respectfully submitted, HALICZER PETTIS SCHWAMM scrvicc@hpsle2ul .com EUGQE K. Florida Bar Number: 508454 muczm FEITIS scumum, 1-3., ATTORNEYS AT LAW cave yuz a- szvavm noux- FORT stoma n39:- rm, 3mm - (954) 521.1512 9 . Filing if 74581454 13~l3iled 0720612018 03:31:41 PM IN THE CIRCUIT OF THE SEVENTEENTH JUDICIAL CIRCUIT 13? AND FCR BROWARD COUNTY, FLORIDA THE SCHOOL BOARD OF BROWARD COUNTY, Case ?Na; (26) Petitioner, v. lK OLAS CR U23. Respondent. MEMORANIEUM OF LAW IN SUPPORT OF NEWS MOTION TO INTERVENE 15% OPPOSITION TO NIKOLAS REQUEST TO ASSUME JURISBICTIOEQ The Miami lilcrald Media Company and Sum-Sentinel ?30111pany, LLC (collectively the ?News Media?) hereby ?le this memorandum 0f law in aupporl Gl?their medium to intervals and in opposition to; Nikolas C?ruz?s request that this matter be transferred to the criminal court ovcx'sctzing Cruz?s prosecutlan. As detailed below: Petitioner, the School, Board of Broward County (?Schmul Beard") filed its Petitien for Declaratory .ludgment seeking this Court?s guidance concerning public rclcagc of a report and related materials prepared by an outside consultant. Speci?cally, the. Schuol Beam retained Collaborative Educational Netwmk, lnc. t0 conduct; ?an indepeaadenn comprehensive review" of the district?s ?policies and procedures in place (luring [Cruz?s] academic. journey.? The News Media made a public records request for a copy of this report and any drafts. The: Board has indicated in its Petitioa ?1131 it wishes to release the report to the public but believes it is constrained by varieug federal and state statutes. Cruz has {:bjcutcd to release. alleging that the criminal court should deten?nine this civil matter. As detailed below, request shoulc?l bars: denied and ihe mport released after in camera review. BROWARD COUNTY. FL . i . TLIERK WGXZUES 3:3 lz?39 FACTSAL BACKGROUND A. The (ZEN Regen? On March 6, 2038, .Broward Schools Superintendent Robert Runeie announced that ?to underetaod the conditions ihai may have led to [the Mozjory Stoneman Douglas shooting] tragedy? and ?consistent with one o?fthe [District?s] three strategic pillars? Continuous E?mpmvemont, where we Strive to get better in delivering services and achieving best in class outcomes for our children and community,? the School Board reiained (TEN to, among oihor things, conduct ?an independent, comprehensive review? of the district?s ?policies and procedures in place during [Cruz?e] academic journey.? See Exhibit A at 2 (a true and correct copy of the minutes ??om the March 6, .2018 School Board Opemtional Meeting), attached to Newe Media?s Motion to Intervene. Superintendent Runoie also noted that the ?quest for such understanding most be done with both transparency and a sense oforgeney? and reiterated the School Board?s commitment to preventing fuiure tragedies, noting, can aod must do what we can to understand the conditions the? led to such acts, in hopes of avoiding them in the future as we continue to strive To get better as an organization to serve our students and community to the best of 031' ability.? id. The School Board?s contract wi?h GEN indicates that the overarching purpoee of the review was; to analyze the student education] ESE program in general and Marjory Stooemau Douglas in particular? and to ?identify[] areas of concern and recommendations for future action. as appropriofe.? Exhibit B, at true and correct eopy of the centres-L attached to News Media?s Motion to lniewene. Clearly, the scope of review indicated a purpose beyond mei'ely reviewing Cruz and how he was handled, and accordingly, the report most certainly contains infomotion regarding A district policy generally and any analyecs on iueritutioual failures and bow to prevent? future shootingswinfom?iation not: protected by any exemption to {he Public Records Act. B. Elle Public Records Request and this Action behalf of the News Media, undersigned. counsel made public records requests to the School Board for copies; of ?any and all draft summaries or reports submitted to Haliczcr l?cltis Scbwamm for review from Collaborative {Education Network, Inc, per the scope of work. outlined in its consulting {services agreement dated March 2L 20l8.? A rruo and correct copy of that request is enriched as Exhibit to News Media?s Motion to luteweue. The News Media also requested a copy of the final report and it's attachments. 1g,? at Exhibit E). On June 4, 2018, that request was denied based on the claim that the. report contaiued exemptions. restricting access to student education and medical information. The School Board subsequently filed the Petition at issue in this case. Cruz?s Request: to Assume Jurisdiction On June 26, 202.3, counsel for Crux in the criminal case (the Public Defender?s Of?ce) noti?ed fliiu Court: of his filing in Suite Qf'Florido 1-: Nikolas Cruz, Case No. 18- of 2: ?Motion for Protective Order to Enjoin the Release of the Defendant?s School Records and Independent Review of ?Def?eudant?s Education Records; and Request to Aseunie Jurigdicrion Over the School Board?e Petition for Declaratory Judgment and Request for Oral Argument.? In the motionl Cruz reducers the criminal court to ?assume jurisdiction over this declaratory relief aetionl" gee Attachment to Notice of Filing at 13?; 4, As described in greater detail below, C1127. essentially argues that the release of these records will impact his right to a fair trial and that consequently, the decision should be made in the criminal courr. LEGAL ARGUMENT This matter is a civil action for a declaratory judgment which should not be transferred to the criminal court overseeing the prosecution. of Nikolas Cruz. To do so would contravene both the civil statutory scheme created for declaratory actions? and the administrative orders iesued by the Chief? Judge. Aecordingly, neither this Court nor the criminal, court should grant Cruz?s request rm such extraordinary action. Moreover, Florida public policy favors broad disclo?ure of public records, 23ml applicable law requires tiiat any information containecl wiiliin the GEN report be released to the public. i. The Deciaratorv Action Should be Heard be this Court. Florida Statute Section 86.011 grants: circuit and county courts jurisdictioo to render declaratory judgments. A petition fer a declaratory judgment is inherently a civil cause of actiom hence why Chapter 86 of the Florida Statutes arises under Title Vi, Civil Practice and Procedure. The purpose of declaratoryjudgment is: to afford parties relief iron": insecurity and uncertainty with respect to rights, status, and other equitable or legal relations, Coalition ?For Adequacy 8: Fairness in School Funding. I'ric. v. Chillers? 680 So. 2d 400, 404 (Fla. 1996). ?While the existence of an actual controverey is not arecessorily a prerequisite to the activarion of the. court?s juriediction over a declaratory judgment action. it is clear the: there must be a bone :?de dispute between cooteoriiog parties as to 21 present justiciable issue in order to invoke the declaratory judgment act." Olialoosa Island Leaseliolders Acs?n v. Okaloosa island Auti?r, 308 So. Ed 120, DP. (Fla, 1st DCA Generally, criminal and civil suits serve different purposes, arid consequently, no case in Florida indicates any crossover of jurisdiction just because a criminal and civil case arise from the some incident. In Fact, the oppesite is true, and comic have explained that what occurs; in one has no effect 011 ihn other. For exampie? in Kirh}r v, State, 863 So. 2d 233 (Fla. 2003), the State charged the defendant with driving under the in?uence, and prior t0 the jury annduncing its guilty verdict, the injured victim entered into a agreement with the defendant releasing him frdn?; civil liability for the accident. "lg; at 241. The State was not a. party to the settlement agreement. Li The Florida Supreme Court .hcid that because civii damages and criminai restitution are distinct remedies and ""iitrther distinct societal 302113,? ?the defendant cannot defeat ihn trial court?s statutory obiigation to impede [criminal] restitutien as part of the criminal sanctidn by virtue di? a settlement agreement and reieage in the civii case?? 151.. at 2412, 244; disc) Yacucci v. I?r-lershev, 549 So. 2d 782, 784 (Fla. 4th DCA 1989) (where. the trial court appnintnd the. p?ubiic defender handling a criminal child abuse case in also handle the civil matter the ?interdependency and interrelationship of the cases,? the appellate court because public defenders art not authorized for such civil representation). Similarly here, just because the declaratory judgment action fer accesn to public records is related to the shooting for which Cruz has been criminally charged, does mean the criminal divisidn should assume jurisdictidn river a related civil actidn. The declaratory action affects the ptihlic?s and statutdry access rights and thus Serves an entirely different purpdse from the criminal pmsecutidn. Moraover, there is lit} indication that this GEN report is even within the ambit of the criminal investigaiidn. Cruz argues in his motidn that ?it would he emisistent with judicial economy and effective judicial managemant given the 01? this matter and impact of the School Board?s patition 0n the criminal case to insiSt that a single judge preside over all matters related to this case.? ?gg Attachment to of Filing at ?ll 18 (emphasds added). Under Cruz?s misguided jlli?iSdiCliOllzil analysis, any future civii aaticm that sonmwhai relates to the shooting incident slid?did be transferred to the criminal mart. Not only wiil this dream an immense burdeii on. the criminal mini and diminish judicial efficiency: bat it wiil aiso automatically and improperly deem Cruz, :1 party to ail civil actions. In this. regard. two Broward cii'mit Civii cases inmlving release of recards relating to the Shooting already have proceeded withdut intdwentidn by Cruz. 33 In re Records of the Den?: Bf Children Families. Case No. and Cabin: News Nciwork. al. v. Bmwai?d Cmm?iv Sheriff?s Office. School Bd. of Broward Cw. 3: Robert. W, Rimcie, Case No. (09). i1'st, Cruz relies upon Administrative Order No. 2018?14'Crim, which states Ihaf. 1116 case ofS?ram Q/?Fiarida v. Midas Jacab Cruz, Case Nd: excluding the requedt far wai?ranm, shall be heard by Judge Sciierer, Divisidu (WV :3ng Admin. Order 20i8-l4~Crim (exiiphasis added), a copy of which is attached as Exhibit A to this mandraiidum. This order unequivcicaily trailers to matters Within the criminal case. In this regard, Chiefiudge Tater eniered that duly three days after a motion in the criminal case was heard before and decided by Judge Rebolid, instead of Judge As Cruz?s counsel well knows, this order was intended :0 make clear that all matters involving the criminal case Shm?d be heard eddy by Judge Schema Seediid, Cruz. {Sii?? to Order 2018?30?Civ, which provides that ?Teddy and all new civii actimzs arising/ham the Febmazjv 14, 2018 incident at Sidneman Douglas High Schdol shall be agsig?ed by the clerk ii) the Court 0f Circuit: Civil Divisimz 26"? and and all {men and aciiva civil actions {he Fae/77mm)? 14, 20h? incident . . . shall he. transferred by the Clerk 0f the Cam: in Circuit. Civil Division 36.? Admin Order Civ (emphasis- added), a cepy Of which is attached. as Exhibii to this memorandmn. 6 But this order is equally unavailing. Although Cruz asso?s that the School Board?s potilion ?directly impacts the criminal court proceedings? because the ?release [of] Dofoodani?? (school records will sigoi?oaotly impair his right to a fair trial,? he attempts to evade the application of the civil adminigimfivo order by arguing that tho ?isouo of WllCEl?I?l? to release Defendant?s records not direcziv arise out of the incident. at Marjory Siooeman Douglas: but is rather a collateral issue to the February Ma 2018 incident. As a result, [Administrative Order 2018~30~Ci? does not govern? petition. Egg Attachment to Notice of Filing Ell. 19430 (emphasis add?d). Thoso argumeotg make. no some and should. be rc?iocted. Chief Judge Tutor entered two sopzn?ato oi?h?ninistfativo orders, each expressly doliooatiog and. civil matters related to the shooting. Cleariy? Judge Tutor could have entered one adminigtroti'vo order rofem?ing any and all mottors. Whether criminal or civil, to the some division. He chose to keep the divisions separato? as they should be. Here. the School Board is the records custodian of a report prepared to analyze policies and procedures in place at the time of the Shooting and to identify ways to increase safety and security -- it was never intended as a criminal investigative report, This Court can and should review the report and determine whether, and to what extent, various exemptions;- may apply under Florida?s- and statutory rights of public. access. 11. Florida Public Policy Favors Broad Disclosure. The Florida Coostiiotioo provides; a broad right to iospoct and copy the records of any stato or local agency. Specifioally, Article 1, Section 24(3) of the Florida Constitution grants ?[ojvoiy person . i . the right to inspect or copy any public record made or received in connection with the official buoinoos of any public body, of?cer or employee of the state, or persons acting on their behalf.? Chapter 119 of the Florida Statuteswthe Public; Records Act-ent?orees and furthers this important state policy. lodeod, the first sentence of the law declares that: ?[ilt is the policy in this state that all State, county and municipal records are open for personal inepeotion and copying by any person" and that ?[pliroviding access to public records; is a duty of each agency.? Fla. Stat. (20.18). The right of access to peblic records is a ?cornerstone of our political culture.? Bo. of Trustees. Jacksonville Police 8: Fire Pension Food v. Lee, .189 So. 3cl 120. 124 (11016) (citation omitted). This right is not diminished when a state agency contracts with a private entity, as; the School Board. has done with. CEN. Fla. Stat. see also Fla? Stat. (every public: agency contract shall include a. provision ?[a1110wing unilateral cancellation by the ago-toy for refusal by the contractor to allow public: access to all documents, papers, letters, or other material made or received by the contractor in conjunction with the contract, unless the records are exempt from 3. 24(3) of Art. I of the State Constitution and. s. 119.07U Nat?l Collegiate Athletic .Ass?n v. Associated Press, 18 So. 3d 1201, 1207 (F121. let DCA 2009) document may qualify as a public record under the statute if it was prepared by a private petty, so long as it vets by a govemment agent and used in the transaction of public business?). Consistent with the Florida Constitution. and. p?ttblio policy, the Public Records Act is liberally construed in favor of access to records, and. exemptions from discloeure muet be narrowly so that they remain limited to their stated purpose. ?g Nat?l Collegiate Athletic Ass?n, 18 So. 3d at 1206; .Blodwortl: v. Palm Beach Newspapers. Inc? 476 So. 2d 77:5, 779 11.1 (Fla. 4th UCLA 1985). lf 3 public record contains some information that is exempt, the remainder 0f the retard must be with the exertipt material claimed or redacted- Fla. Stat. Tribune Cr). v. Carmella, 458 So. 26 1075, 1078 (Fla. 1984). Additicnally, an agency claiming an exemption bears the burden 3f proving the right to such exemption. Bar??ld v. Sch. Bd. 01? Manama Grim, 135 So. 3d 560, 562 (Fla. 2d SSA Marris Publ?g (3mm LLC v. Fla. Dep?t ot?Educ., 133 So. 3d 957, 960 (Fla. 1311 DCA 2013). Any asserted is to be construed and. limited to its stated purpose. Downs v. ?A?tistiin, 522 So. 2d 93], 933 (Flat DCA 1988). And ?nally, ?when in doubt the courts shattld 'f'md in favor of disclosure rather than secrecy.? Tribune- Co. v. Public 493 So. 26 480, 483 (Fla. 2d DCA 1986) (?citation In 50 doing, ?[th is always the better practice-3? for at trial court to conduct Elf} in? camera review. 15; at 484. It is; against this; backdrop-Ma liberal constructien in raver 0t" acceSs that qtiasheg evasive devices and flavors disclasure when in this C?urt consider the Media?s motinn to intervene and require the disclasure of the report, or partisans thereof. Here} to the extent any puritans of the GEN report implicate the Statutory exeaziptihns detailed in Paragraph 13 {if the Board?s Petition, those exemptienrs must ha narrewly construed. Fer example, Florida and federal law make clear that grit all records that relate to Estuclent ?ctivity qualify as FERPA?pmtected records. See. Nat?l Collegiate Athletic Asr?n, l8 So. 3d at 1211 (Wham. personally infrirmation abmit students i3 redacted from a record, ?it rm lenger contains directly related to a student? and is theretbre not an ?education r?cord? [pmtected] under '20 (2018) (records maintained by law enforcement camponent writ of an educational agency for law enforcement purpeses are not FERPA~pr'0tected records). Similarly, places :10 disclesure restrictiens {in tie-identi?ed health. infarmation. Set: 45 CPR. Molcuhcr. me n'pm'l null and any umm do nul by qnalily ln .nnlenl or mun recordx ln regard' of me infunnallon prenulnably conlamcd lln>> lcporl has hm detailed and discussed 4 'ws Media's Nounreview arm: cw the wa Media respectfully lhis Conn narrowly construe any nl any uncn mm purposl: of cw; rcwicll included nn or lln>> lse ln as well or MSD [1w mpon nul be [u ungulng public debate Ihe safely of :chno}: ln \wkc ll dy. such, bc SID ('l'uz's filmed rtlluesl lhe mm! mnne be denied lhl: Court ordcl lcleusc om: repol'r an lillcludnlg nny dram uficr an n. umvm illspucllun to any THOMAS 84 LOCICERO FL By: Nnunn Mr l/m rund- Mqu Florida BAT No. 11053] rural-"g (he New Merlin RVICE [hat on this (rlh day ul' Jul)" ZUIXV elec ronicully filed he fursguing (Incumcnl mm Clerk mhe ('aun i" 111:: I aim cemry that the [magnng document IS being 5chde this day an all counsel or mom-d and p.\l1ies idcmified an m: Sen'ice Lisl the manner Sprufied. either \m lrunamlssion m' Muses generated by the Emma] ur in some manner rm comm] m' pamcs who are run :mlhorl'zcd l0 racewc Noliccs ol'lilccu'onic iling. By Mlln'llm Anomey . IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ?tdmimstrative Order No. 2018~14~Crim SECOND AMENDED ADMINISTRATIVE ORDER REGARDING STATE OF FLORIDA V. NIKOLAS JACOB CRUZ, CASE- NO. ?ill?001.958 CF 10A (3) Pursuant t0 Article V, section 2(d) of the Florida Constitution and section 43.26, Florida Statutes? the Chiefludge of each judicial Circuit is charged with the authority and the power ie do everything necessary to premete the prompt and. efl?lclent administration ot?justice. (13) Florida Rule of Judicial Administre?ion 2.215 state-:3 the Chief Judge ?shell, censlderieg available resources, eneure the ef?cient and proper administretien of all (301.1113 within [this] circuit.? (C) The Ce?urt finds that the recently filed matter of State v. Nikolas Jew]; Cruz} Case Number 18-001958 CFIOA is a high~pr0?le case requiring effective judicial management, eversight by a single judge, and the implementation of the Procedures fer Special Interest/High Pref'tle set forth in Administrative Order 20'18-3-Ge11 Governing Media. The aboveetyled case was assigned t0 The Honorable Elizabeth Seherer (Circuit Criminal Division Fl) as a result of random assignment by? the Clerk of the Courts. In accordance with the eetherity' vested in the Chief Judge by Article section 2(d) of the Florida Constitution? sectien 43.26, Florida Statutes, and Florida Rule of Judicial Administration 2215, it is hereby ORDERED: The case Stare efFferida v. Nikolas Jacob Cruz, Caste N0. 1.8?001958 CFIOA shell ?th be reassigned to any other judge for any reason except upon the following circumstances: disqualification of the triel judge pursuant to Florida Rule of Judicial Administration 2.330; (if) we Spom?e order of recusel by the presiding judge; or an order from the Chief Judge. Page (1 0?52 (2) All mailers in the case ef Suzie cngiorida v. Nikolas Jae-0b Cruz, Case No. 18?001958 excluding the request for wen'ants, shall be heard by Judge Scherer, Division (3) In the event Judge Seherer is unavailable, the matter shall be presented to one efludge Sehererk alternates :lhr resoletion, if available. Ilfall of Judge Seherer?s altemates are unavailable, the matter shall be presented it) the Administrative Judge ofthe Circuit Criminal Divisien fer resolution. If the Administrative Judge of the Circuit Criminal Divieien is; unavailable, the matter shall be presenled to the Chief Judge. (4) Any law enfereement agency requesting a wai'rent in this case shall contact the Administrative Judge of the Circuit Criminal Division. The Administrative Judge 0f the Circuit Criminal Division or his designee shall handle requests fer wen-ants in this case. The Trial Court Adminihtrater or her designee may implement the Procedures for Special IntereSt/High Pro?le Proceedings as set forth in Administrative Order 20: 8~3~Gen Gevemihg Media. (6) This Administrative Order supersedes and vacates any administrative order that is in conflict with the previeiehs stated herein. (7) This Adminishfeiive Order is effective immediately and shall remain, in effect until further erder ef'this Ceurt. DONE AND ORDERED in Chambers, Fort Lauderdalea Florida, this 20th day efFebruary 20l 8 nuncpm (me te Febmm?y? 9, 2018. leek Tuter Jae-k Tuler, Chief Judge Page 2 (:92 EXHIBIT IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA 2018?30?C?i?v ADMINISTRATIVE ORDER ASSIGNING MARJORY STONEMAN DOUGLAS HIGH SCHOOL CIVIL CASES (3) Pursuant to Article V, section 2(d) of the Florida Constitution, and section 43.26} Florida Statutes: the oljiiefjudgo of each judicial. circuit is charged with the authority and the power to do ovarything necessary to promote the prompt and efficient: administration ofjuatioo. Florida Rule of udi?cial Administration stafes the chief judge ?shall, considering available resources. ensure the ef?cient and proper administration of all courts within [this] circuit.? (0) Florida Rule of Judicial Administration the chief judge ia authorized to assign cases to a judge or judges. The cases arising from the Februaay 14, 2018 incident at Marjory Stonoman l7}ouglaa High School are oomplox and should be hoard by a single judge for judicial economy. in accordance with tho authority vested in the chiufjudge by Article V, section 2(d) oftho Florida Constitutiom section 43.26, Florida Statutes? and Florida Rule of Judicial Administration 2.2l5, it is hereby ORDERED: (1) Any and all new civil aotious arising from the February .14, 2018 incident at Marjory Std-nomad Douglas High School shall be assigned by the Clark of the Court to ircuit Civil Division 26. (2) Any and all open and active civil actions arising from the February 14, 201.8 incident at Maxjory Stonoman Douglas High School, excluding Cable News Non-work, lilo, of v. .Browoi'd le>zlsizt3931mriffs ()j?oa at Case No. lull?004429 CAGE (09L shall he transferred by the Clark of the Court to Circuit Civil Division :26. BONE AND ORDERED in Chambers, Lauderdale, Florida, this 18th day of April, 20E 8. Jack Tutor Jack Tater, Chief Judge Page 1 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL TN AND FOR BROWARD COUNTY, FLORIDA CASE NO: l8m014554 (26) THE SCHOOL BOARD OF BROWARD COUNTY, Petitioner, vs. NIKOLAS CRUZ, Respondent, Petitioner's Petition for Declaratory Judgment AND Defendant Cruz' Motion for Protective Order to Enjoin the Release of School Records and Independent Review of Education Records and Request to Assume Jurisdiction Over the School Board's Petition for Declaratory Judgment and Request for Oral Argument AN Miami Herald and Sun Sentinel's Motion to Intervene THIS CAUSE CAME ON TO BE HEARD on Wednesday, July 11, 2018, commencing at 11:00 a.m. at the Broward County Courthouse, 201 S.E. 6th Street, Fort Lauderdale, Florida, BEFORE THE HONORABLE PATTI ENGLANDER HENNING. REPORTED BY: LEE LYNOTT, CMR, RPR, CSR 1218 SE Third Avenue, Fort Lauderdale, FL 33316 Tele: (954) 523?0915 Electronically signed by Lee Lynott (201-415-759-9874) Unv,gp,nu_m_ c- ., Inc. (954) 525?2221 9 Elsdrumcally signed by Lee Lymu (201-415759--9514) Page 2 COUNSEL FUR TEE ?4 HWAIM, BY: DEBRA ESQUI EUGENE K. ESCUIRE mind COL BOARD OF BRCWARD CCUNTY OF THE COUNSEL BY: BARBARA MYRICK, SEQUIRE COUNSEL FOR SUN NFL MIAMI LAW OFFICE OF THOMAS LOCICTRO, LSQUIRE ESQUIRE BY: DANA . EANIELJ COUNSEL FOR THE ERCWARL COUNTY I BY: MELISA GORDON WEE DIANE CUDD JZJSEPH BURKE, Esqulrc 59-4c94-3538-939ueeam sh Electronicalty signed by Lee Lynott (201-415-759-9874) Page 3 THEREUPON, (The following hearing proceedings were had): THE COURT: Good morning, ladies and gentlemen. We're here on Plaintiff's petition for declaratory judgment. I have read through that, I have read through the response of the Public Defender?s Office. I'm going to ask everyone to state their names so that we have it on the record and who you are here for. So I've read that and I?ve also read the request for intervention as well. And if there are any other documents, those have not yet been presented to me. So just tell me if those are there. Why don't we start off with the Plaintiff on this for the School Board and you can announce yourselves. MRS. KLAUBER: Good morning, Your Honor. Debra Klauber from Haliczer, Pettis Schwamm on behalf of the School Board. I'm here today with Barbara Myrick, the General Counsel for the School Board of Broward County, and my partner, Eugene Pettis. MRS. MYRICK: Good morning. MR. PETTIS: Good morning. MRS. Morning, Your Honor. Dana McElroy with Thomas LoCicero on behalf of the Intervenors, the Miami Herald and the SunmSentinel. I?m here today with my associate, Daniela Abratt. United Reporting, Inc. (954) 525m2221 Page 4 THE COURT: Thank you. MRS. MCNEIL: Good morning, Your Honor. Melisa McNeil on behalf of the Broward Public Defender's Office. I'm here with Diane Cuddihy, Erin Veit, Gordon Weekes and Joseph Burke. We represent Mr. Cruz on the criminal matter before Judge Scherer. THE COURT: The State Attorney?s Office was noticed of the hearing as well. MR. KLINGER: Yes, we were, Your Honor. Steven Klinger and Joel Silvershein here on behalf of the state. THE COURT: And you have Chosen to observe as opposed to participate? MR. KLINGER: At this point, yes, Your Honor. THE COURT: Thank you. MRS. Your Honor, before we begin, may I state something for the record, please? THE COURT: Yes. MRS. MCNEIL: I just want the Court to be aware and all parties that Mr. Nikolas Cruz, who is the Respondent in this case, is not present and he is entitled to be present since he is to answer to this motion. And we are speaking on his behalf, but we do object to the fact that he is not present for a civil motion that could directly impact his constitutional rights to due process in his criminal case, as well as his Sixth Amendment right to a fair trial. United Reporting, Inc. (954) 525?2221 Electronica?y signed by Lee (201-415-759?9874) Page 5 1 THE COURT: And you are well aware that in a civil 2 proceeding there is no party that is required to be in the 3 courtroom and that I did make sure that there was 4 representation? Even though I understand that you are not 5 representing him on the civil matter, unless you tell me that 5 you are and I don't know that you can do that, but I did want 7 to make sure that his views were presented here in court but 8 there is no obligation for any party to appear in the court 9 in a civil matter. 10 MRS. Your Honor, we do not represent him ll. on the civil matter. We're his criminal defense team, which 12 would mean that Mr. Cruz is not represented in the civil 13 inatter; and he doesn't have the ability to actually travel to 14 this courtroom, because he?s in the custody of the Broward 15 Sheriff's Office. 16 THE COURT: Thank you. 17 MRS. KLAUBER: Good morning, Your Honor. I know 18 'that you've reviewed the papers and are generally familiar 19 with why we're here. As you know, following the tragic 20 shooting at Marjory Stoneman Douglas on February 14th of this 21? year there has and continues to he public inquiry into the 22 issues surrounding Mr. Cruz, the shooter, including inquiry 23 into his education with the Broward County School Board, his 24 involvement with law enforcement agencies like 880 and the 25 FBI, and the response to the shooting that day. United Reporting, Inc. (954) 525?2221 Eiectronicaiiy signed by Lee Lynott (201-415-759-9874) ., Electronicaily signed by Lee Lynott (201-415-759-9874Ullib Page 6 The School Board has currently been put on notice of El potential claims arising out of this incident and we?re only six months out from the shooting. That leaves us another two and a half years for these families to provide notice under the Sovereign Immunity statute. One of the first things that we did on behalf of the School Board was to retain some experts to take a look at this incident from a number of different perspectives. Our law firm retained a consultant to take a look at the educational services that were provided to Mr. Cruz during his time as a student in Broward County's public school system. That consultant has now completed its review and prepared a report which includes, generally speaking, an overview of the applicable law, a summary of the student's educational and other records, and some recommendations to the School Board. The Superintendent has expressed a desire to be transparent with this information that we are being provided and the School Board has also received public records requests for this report, but the Superintendent, the School Board, and I believe the media all fully recognize that there are some protections that apply to this report. We made some preliminary attempts to see if Mr. Cruz, through his criminal attorneys, would be willing to United Reporting, Inc. (954) 525?2221 Ex) Page 7 agree to consent to the release of the report, which he has not, and they?ve objected to the disclosure and that's why we're here. We'd like the Court's guidance as to which portions of the report can be released and which portions are protected, exempt or, otherwise, remain confidential. I have had some preliminary conversations with both Mrs. McElroy for the media intervenors and Mrs. McNeil on behalf of the Public Defender?s Office and E'm sure they?ll have some things to address with the Court, but I think generally we are all in agreement with what is our proposal: That we provide the report to the Court for an inmcamera review so that the Court can redact those portions that directly relate to the educational and other records that are protected under Florida and federal law. I would also submit that that version should first be provided to his counsel so that they have an opportunity to review what the Court intends to provide to the media in response to the public or allow us to provide to the media. So, again, I think we all agree that some portion of this report needs to be redacted. I do have a copy of the various statutes that we believe apply so that the Court would have those available, but what we're requesting is a Court Order allowing us to release whatever portions of the report the Court finds are not subject to the protection. United Reporting, lno. (954) 525e2221 Electronicaily signed by Lee Lyno? (201-415-759-9874) C0 10 ll l2 13 14 Page 8 Thank you, Judge. THE COURT: What I would like to hear from now is the requested intervenors, because my reading of your motion to intervene is for the report that was done by the School Board as to the review in the future and not requesting any records and indeed admitting that you realized that there are rights and confidentiality rights at this point that Mr. Cruz has. Now, I don't know that you are necessarily at cross?purposes or even appropriately asking for what it is that the School Board is asking for. So that's the difficulty I have with the intervention. You can respond to all, but that?s my concern right now. I would like you to answer as to that, because I want to make sure it?s specifically as to what it is you're intervening for because, as I said, the request was for the report with redactions as to Mr. Cruz. MRS. MCELROY: Yes, Your Honor. Dana MoElroy on behalf of the Miami Herald and the Sun~Sentinel. To specifically address your question as to the intervention, does the Court have concerns that we don't have standing to intervene or just moving on to the substance? THE COURT: Well, if you?re not interested or have agreed that you're not entitled to what their issue is in here, then I don't know about the motion to intervene. United Reporting, Inc. (954) 525?2221 Efectronically signed hy Lee (201?415-759-9874) Page 9 1 MRS. Okay. 2 THE COURT: So that's what it is. They are asking 3 and I thought that they were asking specifically as to the 4 records under FERPA, the placement records that they had and 5 his health records, correct? 6 Am I correct, from the School Board, that that's 7 what your issues are as to only those three? C0 MRS. KLAUBER: There are a number of statutes that 9 potentially apply to this information, Your Honor. But 10 generally speaking, yes, educational records, mental health 11 records. 12 THE COURT: Well, I'm looking at paragraph 13 13 which if I am incorrect, tell me now my understanding is 14 that?s all that you're asking me to review? 15 MRS. KLAUBER: Correct. 16 THE COURT: Not the report we 17 MRS. KLAUBER: No. No. I'm sorry. 18 THE COURT: that the School Board asked for? 19 MRS. KLAUBER: I'm sorry. We are asking Your Honor 20 to review the report to redact references to those things, 21 not the underlying records themselves. Those are not being 22 addressed, those have not been requested by the media and we 23 are not intending to release any underlying educational 24 records, counseling records, anything of the sort. 25 MR. PETTIS: Just the report. United Reporting, Inc. (954) 525m2221 Electronica?y signed by Lee Lynott (201-415-759-9874) 0688262b-? 59-4c94-85a8-939ec09ac1 8b Page 10 1 MRS. KLAUBER: Just the report. 2 THE COURT: And just those portions of the report 3 'that discuss 4 MRS. KLAUBER: We'd like to release those portions 5 that do not address Mr. Cruz? educational records. 5 MR. PETTIS: And history. 7 MRS. Yes. We believe we have standing on 8 behalf of the public as a surrogate under the case law that 9 we've provided. These two particular media companies have 10 Inade public records requests for the report at issue here and drafts of the report. 12 What we've tried to explain in our memorandum in 13 support is that we are seeking the report. And to the extent 14 that there are records We haven't seen the report or the 15 records. So we're arguing in a vacuum in that respect. So 16 there are w? we do acknowledge there is HIPPA, there is 17 FERPA, there is a number of statutes in Florida and federally 18 'that make certain records confidential. 19 Our position is, though, that the report itself, to 20 the extent it has attachments that don't come narrowly within 21 'the definition; in other words, don't qualify under the 22 exemption: For example, an education record needs to be read 23 narrowly or a medical record. 24 So the report itself, we would request that the 25 Court look at the report and any attachments in that View. United Reporting, Inc. (954) 525?2221 Electronically signed by Lee Lynott (201 -41 5759-9874) Page ll 1 In other words, to narrowly, to narrowly apply the exemptions as Article 1, Section 24 and Chapter 119 provide. (JON And so if the report discusses things, that isn't 4 necessarily exempt. And so we would ask that the Court 5 review the report and any drafts and any attachments with an 6 to specifically only withholding to the extent that?s 7 provided for under a narrow interpretation as is required by 3 Florida law. 9 Secondly the And there may be some debate about 10 that and so I think that's perhaps where our position may be 11' broader than the School Board?s, I'm not sure, because when I 12 read their petition my impression was that they wanted to be 13 as transparent as possible and release as much as possible 14 without running afoul of FERPA, and HIPPA, and the other 15 statutes. 16 In terms of the aw So we have a direct, "we" being 17 the media intervenors, have a direct interest in this 18 proceeding. in fact, our public records requests may have 19 'triggered the dec action, I'm not sure. That?s typically 20 what happens sometimes; they beat us to the courthouse on 21_ that. And so we definitely have requested the report, 2g drafts, and any attachments to the extent that they aren?t 23 otherwise exempt. 24 We don't agree, however, that the Court should allow 25 'the defense counsel, who?s defense counsel in the criminal United Reporting, Inc. (954) 525w2221 Electronica?y signed by Lee Lyno? (201?415?759?9874) RCLu) .45 Page 12 case, to review the report and then come to some agreement with the School Board. I may have misunderstood their position, but we believe that the Court should look at the report and decide what portion should be released under Chapter 119, taking into account the other exemptions, and then order that release. We don't think that the Defendant should be able to review the School Board's record and then come in and say, Well, I don't think this should be released or that should he released. And the same argument was made in the criminal court concerning the Defendant's statements, which are a part of discovery in the criminal case. The state attorney - and they can correct me if I'm wrong has indicated that they will be releasing those under Chapter ll9. The Defendant has moved for a protective order. The Court, Judge Scherer, held a preliminary hearing a few weeks back in which she said, I'm going to review all of the statements in their unredacted format and then I will decide from there what should be released and what shouldn't be released. And if I'm incorrect, please let me know, but that was my understanding. And so we definitely believe an inecamera view by this Court is appropriate. We request that. That's absolutely the procedure, but we would request that the Court review the report as it is currently in its current state by United Reporting, Inc. (954) 525~2221 Electronicaily signed by Lee (201-415-759-9874) Page 13 the School Board and then make its ruling. I'm just, I'm a little confused as well about the MUCH Defendant's position in this case. I don't know if you want 4 He to address the request that this be heard by the criminal 5 court or not at this point. 6 THE COURT: I?m here, so I think that I responded to 7 that. I've asked them to be here and allowed them the 8 opportunity to place themselves in here. I'm obviously aware 9 of the criminal matter that also takes place, but I think 10 ?that there are specific guidelines as to the civil court that 11 can be handled here. 12 MRS. Then our position has been laid out 13 in our memorandum. These records, they were prepared by and 14 are in the hands of the School Board. To the extent there is 15 any in the criminal case, for example, some of the underlying 16 records that may or may not be attached to the report, some 17 of the disciplinary records or the health records, those have 18 been made available by the state in discovery and I'm sure 19 will be the subject of motions moving forward in the criminal 20 case. 21 I would anticipate motions for protective order on 22 fair trial rights, but all of that has to do with records 23 'that are in the hands of the State Attorney's Office or 24 otherwise become judicial public records in that case and not 25 reports here that are prepared by the School Board for use by United Reporting, Inc. (954) 525~2221 Electronically signed by Lee Lyno? (201-415-759-9874) 59-4c94-85a8?939ec?eac1 8b Page 14 1 the School Board. 2 So we would request that this Court, under Chapter 3 119 and the dec action, review the report in its unredacted 4 format and then go from there in terms of any rulings. TEE COURT: You all wish to be heard? 6 MRS. MCELROY: Thank you, Your Honor. 7 MRS. Your Honor, may I address the Court 8 from the table? 9 THE COURT: From wherever you?re comfortable. 10 MRS. MCNEIL: Thank you for granting the defense 137 team in the criminal matter an opportunity to address the 12 Court, because it is our position that, although this is 13 being heard before a civil judge, whatever remedy that the 14 Court issues will have a direct impact on Mr. Cruz' 15 constitutional rights to a fair trial as well as his due :16 process rights. 17 As the Court may or may not be aware, the state of 18 Florida is seeking the death penalty in this case and one of 19 the reasons why this case is in front of Judge Scherer is 20 because she is death qualified under the Trial Court Administration which requires that in order 22 for a judge to sit in a matter involving a death penalty case 33 they must be qualified. 24 And I'm sure that the Court is familiar with this 35 rule, because I've also been advised that you sat many years United Reporting, Inc. (954) 525?2221 Electronically signed by Lee Lynott (201-415-759-9874) 0588262b-? 59-4094-8538-93Qec0eac18b Page 15 1 in a criminal capacity and that you also heard and presided 2 over death penalty cases. 3 So I'm not sure, in light of the fact that whatever 4 is decided here could have an impact on the criminal death 5 penalty case, whether or not the Court has had an opportunity 6 while sitting on the civil bench to re?qualify to preside ?7 over matters relating to a capital case. I'm not sure if you 8 have or have not? So, I ask the Court that. If the Court is 9 not inclined to answer, we would just make any objections if 10 the Court is at this present time not qualified to handle 11_ issues relating to a capital case. 12 THE COURT: The specific issues as to the death 13 penalty, I have not. I have been on the civil bench for I 14 think it's the last 20 years at this point. 15 MRS. MCNEIL: So in light of the fact that, as you 16 know because you have presided over capital cases, judges 17 that preside over capital cases have special training because 18 death is different and there's a higher standard of due 19 process as it relates to death penalty cases, so that's why 20 we stand before Your Honor. 21 Because if this report is released, it would be 22 released through the media which would be the same issues 23 'that we?re having in the criminal case where we're trying to 24 Inove for a protective order for Mr? Cruz? confession, we 25 would be dealing with the media trying the case in the public United Reporting, Inc. (954) 525n2221 Electronicauy signed by Lee Lynott (201?415-759-9874) 06882621341 59?4c94-85a8-9399009ac1 8b Page 16 1 and not in a courtroom. So we deeply believe that the release of any school records at this point would negatively 3 impact his criminal case. 4 As the Court is aware, on June 14th of this year we 5 filed defense?s motion objecting to the report that was 6 presented to us by the School Board. On June ist of 2018 7 they did in fact meet with us. Met with members of the team 8 and asked us if we would in fact consent. We reviewed the 9 report and it was our position that we could not agree to the 10 release of the records. 11 i understand and respect the intention of the School 12 Board and their need for transparency in investigating what 13 happened on February l4th of 20l8. However, the 14 Superintendent made a statement to the people of Broward j15 County that he wouid release this information; and in 16 releasing that information he would violate federal statutes 1j7 and Florida statutes. The state actually concedes that in 18 their motion. 19 THE COURT: Let me ask you: You?re not stating that 20 'the report in and of itself in total should not be released? 21 MRS. Actuaily, I am, Judge. 22 THE COURT: Okay, but that wasn't clear in anything 23 you said. 24 MRS. I?m sorry I didn't make my position 25 clear. The formation of this report is because of the United Reporting, Inc. (954) 525w2221 Eiectronica?y signed by Lee Lynott (201?415?759-9874) 1 involvement of Nikolas Cruz. 2 draft of the report, 3 4 a student through the Broward County school system. 5 statutes his educational plan fall under relates specifically 6 to Nikolas Cruz. 7 So if we cite to the law, then we're essentially 8 telling the community not a courtroom, ?0 10 them these statutes apply to Nikolas Cruz because he received I have reviewed the most recent and the statutes and the law that is cited in those reports directly relate to a classification of trying this case on a lifeuandwdeath matter we?re telling these services through the School Board. 12 So it's our position that even citing the law 13 contained within that memorandum is a violation of the Public 14 Records Act, as well as a violation of FERPA. 15 THE COURT: 15 MRS. KLAUBER: 17 Educational Record." 18 MRS. MCNEIL: 19 THE COURT: 20 MRS. KLAUBER: initials, "Educational Record." 22 THE COURT: 23 MRS. MCNEIL: 24 THE COURT: 25 MRS. MCNEIL: I'm sorry. Okay. You may. What's the title of the report? It is "An Independent Review of NC's And if the Court does take Excuse me. "An Independent Review of Your Honor, may I continue? The report itself makes mention So what right, where we're what? Page 17 United Reporting, Inc. Electronically signed by Lee Lynott (201-415-759-9874) (954) 525?2221 06382621341 59-4c94?8538?939ec0eac1 8b Page 18 1 several times that this report is for a specific student, 2 meaning Nikolas Cruz. It also references "this student" and 3 "this review." 4 So although I believe the media believes that it's a mixed combination of statutes that perhaps is information 6 that may not be protected by the Public Records Act and FERPA 7 and some information I believe they're conceding may be 8 covered by statute, Florida statute and FERPA, it's our 9 position that everything contained within the 70 pages of 10 this report in its entirety relates to Nikolas Cruz and, 11_ therefore, should not be released at all in any portion, 12 because there wouldn't be a report if there wasn't a Nikolas 13 Cruz. 14 As to the request for a petition for declaratory 15 judgment, we would submit to the Court that the purpose of 16 'that relief is when there is uncertainty and insecurity with 1?7 respect to the rights, status, and other equitable or legal 18 :relations. Your Honor, I believe that the law is perfectly 19 clear that educational records are exempt from public record 20 and they're also exempt under federal law. 21 So it's the defense?s position, on behalf of Mr. 22 Cruz, speaking in the criminal capacity, that none of the 7D 23 pages of this report should be released because any 24 references in that report stem from the fact that they?re 25 investigating Nikolas Cruz' educational records. United Reporting, Inc. (954) 525?2221 Electronically signed by Lee Lynott (201-4157599874) Page 19 1 May I have a moment, please? 2 THE COURT: Of course. 3 MRS. And we have also asked for a hearing 4 on the same matter before the criminal court. It has not 5 been set down just so the Court is aware. 5 As to the protective order that we filed for Mr. 7 Cruz' statement to law enforcement, we had initially narrowly 8 tailored our requests for redactions, but we have now 9 expanded our request to include the entire statement and that 10 is based on fair trial rights and the fact that there has 11_ been an extraordinary amount of media attention in this case. 12 The release of those records would also contribute to the 13 extraordinary media attention that this case has received. 14 And the fact that this case is pending before Judge j15 Scherer could cause the motion ?m I'm sorry m? the fact that 16 ?this motion is pending before Judge Scherer couid cause two different judges within the same circuit to have contrary 18 rulings, so that could potentially be an issue. 19 I have nothing else for the Court. Thank you. 20 MRS. KLAUBER: Couple of brief points, Your Honor. 21_ First, I'd like to address the fact that we are only seeking 22 the Court's review of the final report that was prepared by 23 ?the expert, not a draft. It is the School Board's position 24 that the draft is not a public record and that it constitutes 25 work product, because it was prepared pursuant to an United Reporting, Inc. (954) 525w2221 Electronicaity signed by Lee Lynott (201-415-759~9874) Page 20 agreement with us as counsel involved in a number of civil proceedings. There are no attachments to the report. So for the purposes of today, we're dealing with a final report, not a draft, and there are no attachments to be considered that we need to address or deal with. GhUld?awNH 7 As I understand it, it seems everyone is in 8 agreement with an in?camera review by the Court. We have no 9 objection to the Public Defender?s ability or Mr. Cruz? 10 ability to see what the Court intends or agrees can he released so that they can have an opportunity to appeal it or 12 address it in any way. I think that?s the one place where we 13 :night he in disagreement with the media. 14 I would agree with the media, however, that this 15 does not need to be heard in the criminal court. I 16 ?understand that they're trying to have it heard I think on 1?7 next week sometime there's a hearing in front of the judge, 18 but these are School Board records. These aren't records 19 that are being produced or exchanged in discovery in the 20 criminal proceeding. These are the School Board?s records and the Public Defender has already taken the position that 2g ?the School Board has no standing to seek relief in the 23 criminal court. So we think it was appropriate and that?s 24 why we brought it here in the civil court. 25 With respect to the content of the report itself, United Reporting, Inc. (954) 525?2221 Electronically signed by Lee Lynott (201-4153599874) 0688262b-f1 59-4c94-85a8-939ec0eac18b Page 21 1 without getting into any detail of it, there is a detailed discussion of general law and there are portions of statutes (MN that are in the report. We think those are not protected, 4 but we will be guided by the Court's advice on that. There 5 are also some recommendations to the School Board about ways 6 we can improve things based on what we?ve learned from this '7 tragedy that we would request that don?t specifically have 8 anything to do with Mr. Cruz. 9 Again, I've got a copy. If there aren?t any 10 objections, I do have a copy for the Court's in?camera inspection that I can provide the Court. 12 THE COURT: Usually at an inwcamera inspection the 13 parties have gone and provided me with a redacted m? or any 14: concerns to what was redacted and I review what needs to be 15 redacted as opposed to the entire 70 pages. I would imagine 16 ?that that would be done in this case. 17 My only concern is what you all believe should not 18 be made public, and for me to review that and make the ?19 determination whether the press and the public has a right to 20 have that in weighing Mr. Cruz' rights for his criminal trial as well. So do we 22 MR. PETTIS: We tried to have that discussion. 23 MRS. KLAUBER: Well, I think we can do that. We can 24 attempt to do that. I think what the Court will probably 25 receive is a proposal by the School Board and a different United Reporting, Inc. (954) 525~2221 Electronically signed by Lee Lynoti (201-415n759-9874) Page 22 1 proposal by Mr. Cruz, who's objecting to the report in its entirety, but you might have a happy medium where if you're WM going to do it, this would be accepted by them. We have not 4 gone through that process yet, but we would be happy to work 5 with the Public Defender to do that so we can provide the 6 Court with our suggestions. 7 THE COURT: Because I would imagine mm because I was CO provided in another case in another civil matter an Agreed 9 Order regarding his Henderson records, that the Order says :10 that the Public Defender was in agreement with what's in that 11 0rder. 12 MRS. MCNEIL: May I speak to that, Your Honor? 13 THE COURT: Well, no, because I don't intend to do 14 anything with that without a hearing. I was not signing an 15 Agreed Order on that. So I have some concerns, though, as to 15 the issues as to the civil court does have a right to hear j17 things and please sign this Order I?ve agreed to and the 18 civil court doesn't have a right to hear this because of the 19 criminal matter that's involved. 20 So I'm not really sure as to the Public Defender's position on this or Mr. Cruz' position on this, but that's 22 separate as to what needs to be reviewed. But I do think 23 that rather than handing me a 70?page document and saying, 24 you know, Look at it, the issue for the Court to decide is 25 'those issues that you don't think should be provided and for United Reporting, Inc. (954) 525w2221 Electronically signed by Lee Lynott (201-415-759-9874) Page 23 1 me to make a determination and weighing it as I've stated. 2 I understand the press is concerned about Mr. Cruz 3 having a View of it and that you hinted about. l'm going to 4 ask you to state your position again on that, because I'm not 5 really sure that I understand that that sufficiently. But I 6 would ask in any event that at least the School Board would 7 come to me and not say, Here. Here is the, you know, here is 8 the report; do something with it. 9 I think that you have been asked for records and 10 that you need to say, Okay, Judge. I?d like your, you know, 11_ your Order as to what needs to be done on these few things or 12 Jnany things that we have issues or concerns with. 13 MRS. KLAUBER: We'll be happy to do that, Judge. 14 THE COURT: Okay. 15 MRS. MCELROY: Your Honor? 16 THE COURT: Yes. 17 MRS. May it please the Court. Dana 18 McElroy. 19 A couple of things that I think I?ve gotten a little 20 confused. It?s highly important going forward under Chapter 21. 119 and any civil actions to enforce the public's right under g2 .Article l, Section 24, and Chapter 119 that there is likely 23 ?to be, there already has been one case, and there will be 24 cases going forward on public records matters that involve 25 Nikolas Cruz. Those are civil cases. They do not United Reporting, Inc. (954) 525?2221 Electronically signed by Lee Lynott (201-4154599874) Page 24 1 If Mr. Cruz wants to come in and represent get a 2 civil lawyer, I think he?s entitled to do that, but I don't 3 believe the Public Defender's Office has standing. And 4 they've specifically said that they're not here as his civil 5 attorney in this dec action case. I believe he was served, 6 if I'm not incorrect, with a summons. Mr. Cruz needs to 7 either get a civil lawyer or have someone come in on the mm 8 The reason that's important is, that in the criminal 9 trial he does have fair trial rights and we will litigate 10 those rights in a criminal trial as to records that are filed in the criminal case, as to records under Chapter 119 that 12 become public records. The test for those records are the 13 Lewis case, the McCrary case. 14 The Court in the criminal case will hear testimony 15 about how it is that the release of judicial public records, 16 either records that come into the criminal case or records 17 that are turned over by the State Attorney's Office or other 18 criminal justice agencies, those are separate issues. That?s 19 pre?trial. 20 When we get to the trial we'll have a whole nother 21_ set of issues as to what the public's First Amendment rights 22 of access are to the criminal trial and to the underlying 23 proceedings. That's a First Amendment right of access. But 24 'those should never be confused with Chapter 119 just because 25 they involve the same subject matter. I think what the United Reporting, Inc. (954) 525?2221 Electronically signed by Lee Lynutt (201-4154599874) O?mthw 1b.. LA) Page 25 Public Defender is saying and perhaps will say in every public records action to come is, that this should be decided by the criminal court because it involves Mr. Cruz and his fair trial rights. That?s simply not the case and it?s not the law. Chapter 119 is separate. It provides for civil actions. There are often overlaps. We often have overlaps between civil and criminal cases. It happens every day. DCF is sometimes involved. There are often cases. And so to set a precedent that says that Mr. Cruz can come into this 119 or this dec action asserting rights under 119 is in error to do that and shouldn't go that way. Not to say that he can't come in as a litigant and object to the release of educational records that may be a part of the School Board's record, but the reality is the School Board's record here and the complaint by the way does say "drafts," but I guess that's for another day the record at issue, the final report, was prepared by the School Board. They are the records custodian. it is subject to Chapter 119 for this Court's review. The fair trial rights are not relevant to this Court?s review. THE COURT: Except that when the Court reviews matters under 119 it can take other issues under consideration other than just what?s there. And I would think that while the Court is supposed to be blind, it does United Reporting, Inc. (954) 525m2221 Electronicaily signed by Lee Lynott (201-4157598874) Electronically signed by Lee Lynott (201-415-759~9874Page 26 not put a blind to the fact that one of the parties in this case is facing the death penalty on 17 different counts. MRS. Well, i would disagree with the Court only to this respect. If you read the case law carefully, the case law under Chapter 119 is 100% clear. I can provide briefing on this, because we deal with it in many, many cases. The Court is not permitted to have policy considerations determine its rulings under 119. Only the legislature and its strict constraints can do so that's the Wade case, Your Honor because courts often, as you have suggested, would like to overlay policy. But the way that the case law is developed and I can provide additional briefing if Your Honor would like is that policy considerations are absolutely not appropriate under a Chapter 119 request. To allay your concern, however, to the extent that Mr. Cruz' educational records, the actual records the medical records, the Henderson records, the records they will be addressed by the criminal court those actual records. That?s not what we're talking about here today. We're talking about a 119 record that is either a public record or it's not. And to the extent there may be inconsistent rulings, the same law will apply. In other words THE COURT: Well, but what you seem to be telling me United Reporting, Inc. (954) 525?2221 8b . Page 27 now is that you believe the entire report either is given to 2 you under 119 or not, and that's not the position you took in 3 your brief. 4 MRS. What I have asked for and we?re 5 arguing, again, without having seen the report the position 6 that I took in the brief 7 THE COURT: And I'm listening without having seen 8 the report. 2.0 MRS. Yes. The position that I took in the 10 .hrief is that there are certain exemptions that the School Board has validly made that apply to those specific records 12 under FERPA, under HIPPA. You know, they've provided you with every single one of those statutes and every single one 14 of those statutes says that the particular record that would 15 come within the definition of that statute is confidential 16 and exempt from Article 1, Section 24, and Chapter 119. 17 And so to the extent that there are records that 18 fall within that category, then I would be foolish to say 19 'that they shouldn't be exempt. The law is clear on that. 30 Where the iaw is not so clear is that, for example, 21_ in FERPA cases - and we've cited the NCAA case to you so that 22 you can see how courts have addressed this; the First 23 District Court of Appeal, Judge Padovano where even under 24: FERPA there is some dispute as to what is an education record 25 'that would be protected. United Reporting, Inc. (954) 525w2221 Electronically signed by Lee Lynott (201415759-9874) Electronically signed by Lee Lynott (201-41 53159-9874Page 28 And so our position is that these statutes exist. And to the extent that when the Court reviews this report that it contains direct or verbatim or We thought there were attachments that would have included Mr. Cruz' education records. And so in guessing what it might be, we now know there are no attachments. So I?m assuming that in the report itself there may be some discussion. And to the extent there's discussion or analysis or review that doesn't verbatim quote those records, we would assert that under Chapter 119 and a narrow reading, which is required, narrowly, any exemptions must be narrowly construed and disclosure must be broad. And that's by virtue of Article 1, Section 24, which was passed by the voters in 1992. And so I'm glad I've had the opportunity to clarify, because when we first filed our motion to intervene, we don?t know what the report looks like. And now that we know that the only thing that?s before this Court is a 70?page final draft, we would ask the Court to review the report in light of the standards that we've provided in terms of what is preciseiy exempt, precisely and narrowly exempt under any of the cited statutes. And since the report itself does not contain those records, I think the Court has to view it within that paradigm. The records that are in the criminal case, unless I'm not correct, are the actual records themselves. But United Reporting, Inc. (954) 525?2221 Page 29 1 again, if we were to rule or if this Court were to rule that 2 every 119 action that involves a criminal case can only he 3 heard by the criminal court and/or fair trial rights are at 4 stake, that's just simply not the law. 5 It's been clarified several times, because of course 6 it's intuitively correct. But that?s why the Supreme Court 7 on many occasions has ruled that courts determining public 8 records actions are constrained by the language of the 9 exemptions themselves and not by policy considerations. 10 THE COURT: Thank you. Anything further from 11 anybody? 12 MRS. KLAUBER: Nothing here, Your Honor. 13 MR. PETTIS: Is there a timeframe? Do you want to 14: give a timeframe when we can get this to you, Your Honor? 15 THE COURT: Well, what I need and I need it sooner 16 rather than later, obviously is for the School Board to 1f7 provide me with a redacted report and, obviously, with the 18 .redactions legible to me so I can see what is being redacted. 19 Sometimes I get them when they're blocking it from me as 20 well. 21 MR. PETTIS: We said it was redacted! 23 THE COURT: That's exactly right. So I need that. 23 I also want specific reasons for the redaction that 24 you have, whether there was a specific statute that you 25 not just generally these are all referenced. As to each United Reporting, Inc. (954) 525~2221 Electronically signed by Lee Lyno? (201-415?759-9874) 0688262b-? 59~4c94-85a8-939e00eac18b Wmm,ww_w (Page 30 specific redaction that you're making as to why it's requested to be redacted. I think from that I should be able to determine whether I need another hearing on the matter with you all. I think I can allay some concerns in here by also telling you that I don?t necessarily believe that what I review while I also can keep an and I do believe that the law allows me and requires me to keep an on everything else that may come through for other purposes that what I look at is different than what the criminal court may be looking at. But what I will do as I said, I think I should allay some concerns is to place in an Order that I have that there be five days before there's release so that they can seek relief on any specific matters from the criminal court as opposed to a hearing or anything like that. I would imagine that that is sufficient for you all. MRS. MCNEIL: Mrs. Cuddihy? MRS. CUDDIHY: Yes. MRS. Judge, without revealing the content of the report, the title of this report is Independent Review of Nikolas Cruz' Educational Records. So if there were no educational records, there would be no review of his educational records. So it's our position, even though Mrs. McElroy says United Reporting, Inc. (954) 525m222l Eiectronicaily signed by Lee Lynott (201-415-759~9874) 8b Page 31 1 this is separate and apart from the school records, it's 100% 2 based on Nikolas Cruz' school records and they have in fact 3 ibeen provided to the defense in discovery by the state of 4 Florida. I contacted a member of the state of Florida to 5 verify that they were not going to be releasing these 6 documents and they were exempt from public record and 7 they're, in fact, in agreement with that. 8 So our motion for protective order 9 THE COURT: I'm sorry. You contacted who? 10 MRS. MCNEIL: I actually spoke with Mrs. McCann 11_ (phonetic), to verify that 12 THE COURT: From the State Attorney's Office? 13 MRS. Yes, ma'am. 1 .41 THE COURT: Okay . 15 MRS. MCNEIL: So it's our position that the report 16 relies 100% on Nikolas Cruz' educational records, including 17 ?the statutes that he falls under as an exceptional student, 18 if he in fact does. That's our position. 19 We'll respect any ruling that the Court makes and we 20 appreciate your time. 21 THE COURT: Thank you. When do you think you can 2g get it to me? 23 MRS. KLAUBER: A week from today acceptable to the 24 Court? End of the week? 25 THE COURT: I like giving dates. United Reporting, Inc. (954) 525w2221 Electronicaity signed by Lee Lynott (201-415-759-9874) 1 MRS. KLAUBER: Seven days from today or five working 2 days from today? 3 MRS. Judge, 4 we have a hearing before the criminal court judge on the 16th 5 as it relates to a protective order for Mr. Cruz' statement. 6 We have asked that the motion for protective order as it 7 relates to the report and educational records also be heard 8 before her on that date, which is the 16th, which I believe 9 is next Monday. 10 MR. PETTIS: Have we got notice of that? Is that 11 intended to usurp your decision and your review? 12 THE COURT: Well, what I would like now is someone 13 ?to prepare what I?ve stated that I want from the School 14 Board, and also, as well that there will be a five?day delay 15 so that they have an opportunity to seek further review from 16 the criminal court. 17 MR. PETTIS: We'll get that to you ASAP. As we get 18 back to the office, we?ll send it to counsel and get it to 19 'the Court by the end of the day. 20 THE COURT: You said you think you can have it to me 21? by the 18th? 22 MRS. KLAUBER: Correct, Your Honor. 23 MRS. May I clarify, Your Honor? Have we 24 ibeen permitted to intervene? 25 THE COURT: Yes, on the basis that you Yes. in a matter of full disclosure, Page 32 United Reporting, Inc. {954) Electronicaiiy signed by Lee Lynott (201-41 53159-9874) 525~2221 1 MR. PETTIS: Thank you, Your Honor. 2 MRS. MCELROY: Thank you, Your Honor. 3 MR. MCNEIL: Thank you, Your Honor. 4 (THEREUPONthe hearing concluded at 11:45 Page 33 Eiectronicaily signed by Lee Lynott (201?415-759-9874) United Reporting, Inc. (954) 525?2221 Eiectronically signed by Lee Lynott (201-415-759-9874Page 34 I I A STATE OF FLORIDA ss: COUNTY OF BROWARD I, Lee Lynott, Certified Court Reporter, Registered Professional Reporter, Certified Merit Reporter and a notary public in and for the aforesaid county and state, do hereby certify that the hearing proceedings were taken by me in machine shorthand and was thereafter reduced to typewritten form by me or under my direction and supervision, that the foregoing transcript is a true and accurate record of the proceedings to the best of my understanding and ability. I FURTHER CERTIFY that I am neither counsel for, related to, nor employed by any of the parties to the action in which this proceeding was taken; and, further, that I am not a relative or employee of any attorney or counsel employed by the parties hereto, nor financially interested, or otherwise, in the outcome of this action; and that I have no contract with the parties, attorneys, or persons with an interest in the action that affects or has a substantial tendency to affect impartiality, that requires me to relinquish control of an original deposition transcription or copies of the transcript attorney, or that requires me to provide any service not made available to all parties to the action. IN WITNESS WHEREOF, I have hereunto subscribed_my,name this 11th day of July 2018. 2 153111.. '?Si'?ds Lee Lynott, Notary Public Registered Merit Reporter MY GG 234909 EXPIRES: July 4, 2022 Bonded Thru Notary Public Underwriters United Reporting, Inc. (954) 525?2221 Page 35 34:7 abie 12:7 30:2 Abratt 2:12 3:25 absolutely 12:24 26:15 acceptable 31 :23 accepted 22:3 access 2422223 account 12:5 accurate 34:7 acknowledge 10: .16 Act 17:14 18:6 action 11:19 14:3 24:5 25:2,11 29:2 34:9,11,12,14 actions 23:21 25:7 29:8 actua126:18,20 28:25 additional 26: 14 address 7:9 8:20 10:5 13:414:7,1119:21 20:6,12 addressed 9:22 26:20 27:22 Administration 14:21 admitting 8:6 advice 21 :4 advised 14:25 affect 34:12 aforesaid 34:5 afoul 11:14 agencies 5:24 24: 18 agree 7:1,20 11:24 16:9 20:14 agreed 8:24 2218,15 22:17 agreement 7:10 12:1 20:18 22:10 31:7 agrees 20:10 26:17 30:5,13 allow 7:18 11:24 ailowed 13:7 allowing 7:24 allows 30:8 Amendment 4:25 2421,23 amount19r1 1 analysis 28:8 and/or 29:3 announce 3: 13 answer 4:21 8:14 15:9 anticipate 13 :21 anybody 29:1 1 apart 31 :1 appeal 20:11 27:23 appear 5:8 APPEARANCES 2: 1 applicable 6: 15 apply 6:23 7:22 9:9 11:1 17:10 26:24 27:11 appreciate 31:20 appropriate 12:23 20:23 26:15 appropriately 8: 10 arguing 10:15 27:5 argument 1:14 12:10 arising 6:2 Article 11:2 23:22 27:16 28:12 ASAP 32:17 asked9z18 13:7 16:8 19:3 23:9 27:4 32:6 asking 8110,11 9:23 9: 14,19 assert 28:9 asserting 25:1 1 associate 3:25 Assume 1:13 assuming 28:6 attached 13: 1.6 attachments 10:20 10:25 1125,22 20:3 20:5 28:46 attempt 21 :24 attempts 6:24 attention 19:11.13 attorney 12:13 24:5 34: 10,1 3 attorneys 6:25 34:1 1 Attorney's 4:7 13:23 24:17 31:12 available 7:23 13:18 34:14 Avenue 1:24 224,8 aware 4:1 8 5:1 13:8 14:1716:4 19:5 2cm 1:18 33:4 '3 back12117 32:18 Barbara 2:8 3:17 based 19:10 21:6 31 :2 basis 32:25 beat 11:20 423,10 4:22 6:6 7:8 8:19 10:8 18:21 believe 6:22 7:22 10:7 1223,22 16:1 18:4,7,18 21:17 24:35 27:1 30:67 32:8 believes 18:4 bench 15:6,13 best 34:7 biind 25:25 26:] blocking 29:19 Board 1:4 2:7 3:13 3:17,18 5:23 6:1,7 6:17,20,22 8:5.11 9:6,1812:213:1,14 13:2514:1 16:6,12 17:11 201822 21:5,25 23:6 25:19 27:11 29:16 32:14 Board's1:1311:11 12:8 19:23 20:20 Bonded 34:20 brief19:20 2736,10 briefing 26:7,14 broad 28:12 broader 11:11 brought 20:24 Broward1:1,4,18 2:7 2:15 3:18 4:3 5:14 5:23 6:1116:14 17:4 34:3 BSO 5:24 Burke 2:17 4:5 34: 1 ,1 capacity1521 18:22 capital 15:7,1 1,16,17 carefully 26:5 case 1:3 4:20.24 10:8 13:24 142181922 15:5,7,11,23,25 16:317:919:11,13 19:14 21 :16 22:8 23:23 24:5,1 1,13,13 24:14,16 25:4 26:2 2615,61 1,13 27:21 28:24 29:2 2324,25 2528.9 26:8 27:21 category 27:18 cause 1:18 19:15.16 certain 10:18 27:10 Certi?ed 34:4,4 certify 34:5,8 Chapter 1 1:2 1215,15 14:2 2320,22 24:11,24 25:6,20 26:6,16 27:16 28:10 chosen 4:11 circuit 19:17 cite 17:7 cited 17:3 27:21 28:21 citing 17:12 civil4223 5:1,5,9,1 '1 5:1213:1014:13 15:6,13 20:1,24 22:8,1 618 2321,25 2422,47 25:6,8 claims 6:2 clari?ed 29:5 clarify 28:14 32:23 ctassi?cation 17:3 c1ear16:22,25 18:19 26:6 27: 19,20 CMR 1:23 combination 18:5 come 10:20 12:18 23:7 2421716 25:2 25:10,13 27:15 30:9 comfortabie 14:9 commencing 1:1 8 COMMISSION 34:19 community 17:8 companies 10:9 complaint 25: 16 completed 6: 13 concedes 16:17 conceding 18:7 concern 8:13 21 :17 26: 17 concerned 23:2 concerning 12:1 1 concerns 8:21 21:14 22:15 23:12 30:5 30:13 concluded 33:4 confession 15:24 con?dential 7:5 10:18 27:15 con?dentiality 8:7 confused 13:2 23:20 24:24 consent7:1 16:8 consideration 25:24 considerations 26:9 26:15 29:9 considered 20:5 constitutes 19:24 4:24 14: 15 constrained 29:8 constraints 26: 10 construed 28:1 1 consultant 3 contacted 31 :4,9 contain 28:22 contained 17:13 18:9 contains 28:3 content 20:25 30:20 continue 17:23 continues 5:21 contract 34:1 1 contrary 19:17 contribute 19: 12 control 34: 12 conversations 7:6 copies 34: 13 copy 7:21 21:9,10 correct9:5,6,15 12:13 28:25 29:6 32:22 counsel 2:2,7,10,14 3:18 7:1611:25,25 20:1 32: 1.8 34:8,10 counseling 9:24 counts 26:3 United Reporting, (954) 5252221 Inc. 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Page 39 29:8 30:22,23,24 31:1,2,16 32:7 redact7212 9:20 redacted7z21 21:13 2121435 29:17.18 29:21 30:2 redaction 29:23 30:1 redactions 8:16 19:8 29:18 reduced 34:6 referenced 29:25 references 9:20 18:2 18:24 regarding 22:9 Registered 34:4,18 relate7:13 17:3 reiated 34:8 reiates 15:19 17:5 18:10 32:57 relating 15:7,11 relations 18:18 relative 34:10 release 1:12 721.24 9:23 10:411:13 12:616:2,10,15 19:12 24:15 25:14 30:14 released 7:4 12:4,9 12:10,19,20 15:21 15:22 16:20 18:1 .1 18:23 20:1 1 releasing 12:14 16:16 31:5 relevant 25:21 reiief 18:16 20:22 30:15 reiies 31 :16 relinquish 34: 12 remain 7:5 remedy 14:13 report 6:14,21,23 7:1 8:4,16 92162025 10:12 1024,25 11:3,5,21 12:1,4,2513:16 14:3 15:21 16:59 1622025 17:2,15,25 18:1,10,12,23,24 19:22 20:34.25 21:3 22:123:8 25:18 27:1,5,8 28:2 28:6,16,18,21 29:17 32:7 REPORTED 1:23 Reporter 34:4,4,4,18 reports 13:25 17:3 represent 4:5 5:10 24:1 representation 5:4 represented 5: 12 representing 5:5 request 1:13.13 3:9 8:16 10:24 12:23 12:2413:4 14:2 18:1419z9 21:7 26:16 requested 8:3 9:22 11:21 30:2 requesting 7:23 8:5 requests 6:21 10:10 11:18 19:8 required 5:2 11:7 28:10 requires 14:21 30:8 34:12,13 respect 10:15 16:1 1 18:17 20:25 26:5 31:19 respond 8:12 responded 13:6 Respondent 1:8 2:14 4:19 response 3:6 5:25 7:18 retain 6:7 retained 6:9 revealing 30:20 review 1:12 6:13 7112,17 8:5 9:14.20 11:512:1,8,17,25 14:3 17:16.2018:3 19:22 20:8 21:14 21:18 25:20,21 28:8,18 32:1 1,15 reviewed 5:1 8 16:8 17:1 22:22 reviews 25:22 28:2 re-qualit?y 15:6 right4:25 8:13 17:8 21:19 22:16,18 23:21 24:23 29:22 rights 4:24 8:7,7 13:22 14:15,16 18:1719:10 21:20 25:4,11 25:20 29:3 River 2:12 RPR 1:23 rule 14:25 29:1,1 ruied 29:7 ru11ng13:1 31:19 rulings 14:4 19:18 26:9,24 running 11:14 sat 14:25 saying 22:23 25:1 says 22:9 25:10 27:14 30:25 Scherer4z6 12:16 14219191516 school 1:4,12,13 2:7 5:23 6:1 6:7,12,17,20,21 8:4 8:119:6,1811:11 12:2,8 13:1,14,25 14: 1 1626,11 17:4 17:11 19:23 20:18 203022 21 :5,25 23:6 27:10 29:16 31:12 32:13 Schwamm 2:2 3:16 SE 1:24 Secondly 1 1:9 Section 11:2 23:22 27:16 28:13 see 6:24 20: 10 27:22 29:18 seek 20:22 30:15 32:15 seeking 10:13 14:18 19:21 seen 10:14 27:5,7 send 32:18 SENTINEL 2:10 Sentinel's 1:16 separate 22:22 24:18 25:6 31:1 served 24:5 service 34:14 services 6:10 17:11 set 19:5 24:21 25:9 Seven 32:1 Sheritf?s 5:15 shooter 5:22 shooting 5 :20,25 6:3 shorthand 34:6 sign 22:17 signing 22:14 Silvershein 2:22 4:10 simply 25:4 29:4 single 27:13.13 sit 14:22 sitting '1 5 :6 six 6:3 Sixth 4:25 sooner 29:15 sorry 9:17, 1 9 16:24 17:1919:15 31:9 sort 9:24 Sovereign 6:5 speak 22:12 speaking 4:21 6: 14 9:10 18:22 special 15:17 speci?c 13:10 15:12 18:1 27:11 29:23 29:24 30:1.15 specificaiiy 8: 1 5.20 9:311:61725 21 :7 24:4 spoke 3 1.: 10 ss 34:2 stake 29:4 stand 15:20 standard 15:18 standards 28: 19 standing 8:21 10:7 20:22 24:3 start 3:12 state 3:7 42730.16 12:13,25 13:18,23 14:1716:17 23:4 24:17 3123.4,12 3422.5 stated 23:1 32:13 statement 16:14 19:7 19:9 32:5 statements 12:1 1,18 stating 16:19 status 18:17 statute 6:5 18:8,8 27:15 29:24 statutes 7:22 9:8 10:1711:1516:16 16:1717:2,5,10 18:5 21:2 27:13.14 28:1.2131:17 Stem 18:24 Steven 2:22 4:9 Stoneman 5:20 Street 1 :19 2:18 strict 26:10 student 6:11 17:4 18:12 31:17 student's 6:15 sobject7z25 13:19 24:25 25:19 submit7:1518:15 subscribed 34:15 substance 8:22 substantial 34: 12 sufficient 30: 17 sufficiently 23:5 suggested 26: 12 suggestions 22:6 Suite 2:12 summary 6: 15 summons 24:6 Sun 1:16 2:10 Sun-Sentinel 3:24 8:19 Soperintendent 6: 1 8 6:21 16:14 supervision 34:6 support 10:13 supposed 25:25 Supreme 29:6 sure 523.7 7:8 8:14 11:11,1913:18 14:24 15:3,7 22:20 23:5 surrogate 10:8 surrounding 5:22 system 6:12 17:4 S.E 1:19 224,8,18 34: 1,1 tab1e 14:8 United Reporting, (954) 52542221 Inc. Page 40 tailored 19:8 take 6:79 17:18 25:23 taken 20:21 34:5,9 takes 13:9 talking 2621,22 team 5:11 14:11 16:7 Teie 1:25 tell3:12 5:5 9:13 telling 17:89 26:25 30:6 tendency 34:12 terms 11:16 14:4 28:19 test 24: 1 2 testimony 24: 1 4 Thank 421,14 5:16 8:1 1426,1019z19 29:10 3122133212 33:3 thing 28:17 things 6:6 7:9 9:20 11:3 21:6 22:17 23:11,12,19 think 7:9,20 11:10 12:7.9 13:69 15:14 21:3,23 21:24 22:22,25 23:9,19 24:2,25 25:25 28:22 30:25 30:12 31:21 32:20 Third 1:24 2:48 Thomas 2:11 3:23 thought 9:3 28:3 three 9:7 time 6:11 15:10 31 :20 timeframe 29: 13,14 times 18:1 29:5 title 17:15 30:21 today 3: 17,24 20:4 26:21 31:23 32:12 total 16:20 tragedy21 :7 tragic 5: 19 training 1 5:17 transcript 34:7,1 3 transcription 34:13 transparency 16: 12 transparent 6: 19 1 1:13 travel 5:13 triai4225 13:22 14:15 14:2019:10 21:20 24:9,9,10,20,22 25:4,20 29:3 tried 10:12 21:22 triggered 11:19 true 34:7 trying 15:23:25 17:9 20:16 turned 24: 1 7 two6:4 10:9 19:16 typewritten 34:6 11:19 uncertainty .18: 16 underlying 9:21,,23 13:15 24:22 understand 5:4 16: 11 20:7,16 23:2,5 understanding 9: 13 12:21 34:7 Underwriters 34:20 unredacted 12: 18 14:3 use 13:25 Usually 21 :12 usurp 32: 1 1 vacuum 10:15 vaiidly 27: 1 1 various 7:22 Veit2z16 4:4 verbatim 28:3,9 verify 31:5.11 version 7:15 View 10:25 12:22 23:3 28:22 views 5:7 violate 16:16 violation 17:13:14 virtue 28: 12 voters 28:13 vs 1 :6 Wade 26:1 1 want4zl8 5:6 8:14 13:3 29:13,23 32:13 wanted 11:12 wants 24: 1. wasn't 16:22 18:12 way20zl2 2512,16 26:13 ways 21 :5 Wednesday 1:18 week 20:17 3123,24 Weekes 2:16 4:4 weeks 12: 17 weighing 21:20 23:1 we'll 23:13 24:20 31 :19 we're 3:4 5211,19 6:2 7:3,23 10:15 15:23 15:23 17:7,8,9 20:4 2621,21 27:4 we've 10:9,12 21:6 27:21 28:19 WHEREOF 34:15 willing 6:25 wish 14:5 withholding 1 1:6 WITNESS 34:15 words 10:21 11:1 26:24 work 19:25 22:4 working 32:1 wouldn't 18: 12 wrong 12: 1 4 WW16150 1 :19 year5z21 16:4 years 6:4 14:25 15:14 111223222716 28:12 16:6 1002z4 100% 26:6 31:1,16 11 1:18 1111] 34:15 11:00 1:18 11:45 33:4 "119112212515 14:3 24:1 .1 ,24 25:6,10,11,20,23 26:6,9,16,22 27:2 27:16 28:10 29:2 1218 1:24 13 9:12 141:: 5:20 1624,13 16th 32:48 17 26:2 17TH 1:1 18th 32:21 184114554 1 :3 1992 28:13 ?1 14:21 20 15:14 2011:19 2:18 20181218 16:6,13 34:15 2022 34:19 234909 34:19 24112 23:22 27:16 28:13 261:3 3 309 2:12 33301. 229,18 33304 2:13 33316 1 :24 33394 2:4 4 434:19 5 51 6:2 523-41915 1:25 601119 218 600 2:8 7 7th 2:4 7018:1922 21:15 70-page 22:23 28:17 9 915 2:12 954 1:25 954.321.2150 2:9 954.523.9922 2:5 954.703.3416 2: 13 954.831.8650 2:19 United Reporting, (954) 525?2221 1:10. FILED: BROWARD COUNTY, FL Brenda D, Femtan, CLERK 7/261?2018 4:30:00 IN THE CIRCUIT COURT OF THE JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA THE SCHOOL BOARD OF BROWARD CASE NO. 18-14554 (26) COUNTY, Plaintiff, JUDGE: PATTI ENGLANBER HENNING VS. COMPLEX CIVIL DIVISION NIKOLAS CRUZ, Defendant(s). I ORDER ON BROWARD COUNTY PETITION FOR DECLARATORY JUDGMENT THIS CAUSE came before the Court on The School Board of lBroward Coenty?s Petition for Declaratory Judgment as to the release of a report following the shooting at Meriory Stonemen Douglas High Sohoot. This matter was previously heard by this Court and all parties with interest therein were given an opportunity to be heard. A preliminary order was entered by this Court on July12. 2018. After a toll and oomptete to, gem review of the June 16, 2018 ?Independent Review of Educational Record? with suggested redactions by the School Board, and review of the appropriate statutes concerning any privacy of these records as were argued JUL 28 2018 CASE NO. 18-14554 (26) by the School Board, Nikolas Cruz through counsel representing him in the criminal matter, and the Miami Herald and Sun Sentinel. the sport makes the following ?ndings: 1. The report as redacted by the Broward County School Board is hereby approved to be released with the following exceptions: A) Redactions on page 19 of the report are to be released. 8) On page 29 in the ?rst full paragraph, the first two sentences are to be released. C) On page 29, the third full paragraph is to be released. D) On page 31 tn the first full paragraph the language beginning with the second sentence is to be released EXCEPT the last sentence of the paragraph is to rematn redacted. The Court ?nds the redacted material is consistent with the requirements of the Family Educationai Rights and Privacy Act 20 USC 1323g, the Health insurance Portabitity and Accountability Act USC 1320d, Florida Statutes protecting educational records, student placement records and academic assessment records and materiat, and confidential exemptions under Florida Statutes ?119.07. CASE NO. 18-14554 (26) 2. Pursuant to the Court?s July 12, 2018 Order, this court hereby stays the effect of this Order for 5 days and accordingly the release of the report for 5 days to aiiow Mr. Cruz arr Opportunity to seek additional relief. DONE AND ORDERED, in Chambers, on this ii day of July, 2018, in Fort Lauderdaie, Broward County, Florida. @5211de PATTI Ehothrroea HENNING crncurr JUDGE COMPLEX crer Copies furnished to: Eugene K. Pettis, Esq., Debra Kiaaber, Esq., DKleuber@hpsleqai.com Dana J. McEiroy, Esq., dmclerovtr?tiolewtirmcom Mark R. Caramica, Esq., moarernanica@tloiawfirm.com Gordon Weekes, Esq., eveit@browarddefencieroro Elizabeth Scherer, Circuit Judge, escherer@17th.ficourts.org CCD 72618 ORE) 1814554 If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the ABA Coordinator, Room 470, 201 SE. Sixth Street, Fort Lauderdaie, Florida 33301, 954-831-7721 at least 7 days before your scheduled court appearance, or immediately upon receiving this noti?cation if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, cail 711. *Wl? FILED: BROWARD COUNTY. FL Brenda D. Formal]. CLERK. 7f12/20l8 4:30:00 IN THE CIRCUIT COURT OF THE 17?? JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA THE SCHOOL BOARD OF BROWARD COUNTY CASE N0.: 18?014554 (26) Petitioner, EC IVE vs. NIKOLAS CRUZ, JUL 12 2018 Respondent. THIS CAUSE, having come before the Court on the Petitioner, THE SCHOOL BOARD OF BROWARD Petition for Declaratory Judgment and its request for this Court to review, in camera, the ?Independent Review of Educational Record? (the Report), and the Court having reviewed the materials submitted by the parties and having heard argument of counsel, it is ORDERED AND ADJUDGED as follows: 1. The Motion to Intervene ?led by the Miami Herald Media Company and Sun-Sentinel Company, LLC, is GRANTED. 2. This Court ?nds that the questions raised in this declaratory judgment action -.. related to the application of Florida?s public records laws to the release of the Report -- is properly before the Court. 3. The School Board is ordered to provide the Court with a proposed redacted (but readable) version of the Report on or before July 18, 2018. The redacted version shall also include the speci?c reasons or legal basis for the redaction. 4. Upon review of the proposed redacted version of the Report, the Court will determine if another hearing is necessary, or will issue an order. 5. Should this Court order the release of any portion of the Report, it will allow five (5) days before the Report can be released to any third parties in order to allow Mr. Cree an opportunity to seek additional relief. DONE AND ORDERED in Chambers at Ft. Lauderdale, Broward County, Florida on this 1% day of July, 2018. Copies ?lmislted: PATTI ENGLANDER . Eugene K. Penis, Esq. CIRCUIT GE Melisa Esq. -- - - Darla J. McEiroy, Esq. Ronorabie Elizabeth Scherer, Circuit Judge Filing 75684787 E~Filed 07/30/2018 01:16:28 PM EN THE CIRCUIT COURT OF THE 17TH JUDICEAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA STATE OF FLORIDA, CASE NO. VS. NIKOLAS CRUZ JUDGE: SCHERER Defendant. MOTION FOR PROTECTIVE ORDER TO ENJOIN THE RELEASE OF ANY PORTION OF THE INDEPENDENT REVIEW OF EDUCATSON RECORDS (D41). THIS MOTION SUPERSEOES (13-9). COMES NOW the Defendant NIKOLAS CRUZ, by and through the undersigned attorney, and ?les this Motion for Protective Order, which supersedes Defendant?s motion, pursuant to Rule 3.220 of the Florida Rules of Criminal Procedure, Florida Statutes 19.011, 119.071, and {002.2210}, the Fifth, Sixth and Fomteenth Amendments to the United States Constitution and Article 1, Sections 9, 16, 21, and 22 of the Florida Constitution. As grounds for this Motion, the Defendant states as follews: 1 I. The Defendant is charged with seventeen counts of murder: in the ?rst degree and seventeen counts of attempted murder in the ?rst degree. The State has ?led its Notice of Intent to Seek the Death Penalty, 2. The School Board of Broward County initiated a review of Defendant?s educational htstory and support services provided by Browerd Schoois. The review culminated in a 1 This motion is an emergency because the civil court allowed the Defendant ?ve days to seek eddittonal relief from its Joty 26, 2018 order releasing a redacted version of the Scheol Board of Steward County?s ?Independent Review of Educatiooal ?cords.? Page I of 1 a I XIT tabbles' We men: BROWARD COUNTY, BRENDA 1). FOR. 5- :2 1. 6. report formally titled. ?independent Review of Educational Records? (hereinafter, ??Report") the School Board of Broward County intends to release for public inspection. On June 143 2018, the Defendant through counsel speci?cally objected to the release of the ?Report.? On June 18, 208., the School Board ?led a ?Petition for Declaratory Judgment? (hereinafter referred to as ?Petition?) in the Circuit Civil Division of the Broward Coucty Courts to determine Whether any part of the ?Report? can be released to the public or whether the information contained in the report should remain con?dential. On July ll, 2018, On July 26, 2018, the civil court issued its ?Order on Broward County School Board?s Petition for Declaratory Judgement?. The civil court approved the School Board?s proposed redactioos with a few exceptions and those exceptions were listed in the order. The civil court the civil court heard arguments from the School Board, counsel representing Nikolas Cruz in the criminal matter and the Miami Herald and Sun Sentinel relating to the ?Petition?. Nikolas Cruz was not present or represented in the civil proceeding. A preliminary order was entered. by the Court on July l2: 2018. The civil court conducted an in camera review of the ?Report? with suggested rcdactions by the School Board and reviewed the appropriate statutes concerning privacy of those records. found that the School Board?s proposed redactioos were consistent with the requirements of the Family Educational Rights and Privacy Act 20 USC l323g, the Health Insurance Portability and Accountability Act USC 13206, Florida Statutes protecting educational records, student placement records and academic assessment records and material, and con?dential exemptions coder Florida Statutes Fargo 2 01?12 8. H). U. the court?s ordor did not: address the effect: tho release of the ?Report" would have on Mr. Cruz?s due process rights or fair trial rights in the criminal case. The civil court stayed tho release of the report for five days ?to allow Mr. Cruz an opportunity to soot: additional relief.? The Defendant now seeks a protective order from this Court. It it; this Court?s responsibility to oosure the Defendant?s due process rights to a fair trial. That was not the issue before the civil judge. Judge Homing?s mling was haired only on federal and state octucation laws and Florida?s public record law. The civil court?s order did not address Defendant?s due process rights and whether the release of the report would impact those rights. The release of any portion ot.? the ?Report?, even with Judge Herming?s approved redactions, will Significantly impair the Defendant?s right to a fair trial before an impartial jury in Broward County. safeguard the due process rights of the accused, trial judge has; an af?rmative constitutional duty to minimize the effects of prejudicial pretrial publicity." Florida [irritations Ntauispapwis, 1m. ?13. 520 2d 3'2, 33 (Fla. 1988) quoting Gunner? Co. v. DePcmquaig, 443 368, 378, 9.9 2898, 29043 61 L.Ed.2d 60$ 0979). The purpose ofthe Public Records Act "is to open public records to allow Florida?s oitizorrs to discover the actions of their government," Chrixty Palm Beach 0213:. Sheriff?s (Mice, 698 So. 2d 1363, 13660513. ilth DCA 1997). However, ?where- a dofondant?g right to a fair trial con?icts with the public's right of access, it is the right of access which most yield.? Palm Beach Newspapers; Inc. v. Bur/c, 504 80.26 378, 380 (Fla. 1987); MoCmry-g 520 So.2d at 34-35. There is no First Amendment right ot?acceso to discovery infonnatiorr. See Page 3 of 1 2 l2. 13. I4. AafoC?raijig 520 So?d at 35, relying on Seattle Times Co. v. liltinefiart137, 104 S. Ct. 2199 The media has extensively covered this case and has suggested that a number of ?red 51? flags, warnings? and ?crics for help? wore overlooked by school administrators and cducatcrs. It is essential that this Court take safeguards to ensure that Defendant?s educational history and scwiccs received while attending Broward Schools is not litigated in the press. This case has received extensive media coverage frustrating the power of this Court to provide a fair trial before. an impartial jury in Browarcl County or anywhere also. The remedies previously relied. upon by courts to limit the. impact of adverse pretrial ccveragom including granting motions to continue or changing vcnucmarc insuf?cient and antiquated in light of the national attention on this case and the rise of digital media accessible to in the Statc of Florida. Neither the passage of time, not a change in venue will. make the digital publicity covering thio case less accecciblc or contemporary to potential jurors. This; Court must act to encore that the Defendant receives a fair trial in this case. solo-guard the due process rights of the accused, a trial judge has an a??ii?inanvc constitutional duty to minimize the effects of preju?icial pro-trial publicity.? Florida Freedom g?leiarlsyictgaeei?lS', Inc. v. 5'20 80. 2d 32, 33 (Fla. 1983) quoting Gonnett Co. v. DePasquaM, 443 US. 368, 378. 99 Silt, 2898? 2904, 61 L.Ed.2d 608 (I979). The purpose of the Public Records Act ?is to open public records to allow Florida's citizens to discover the actions of their government.? Christi? 12. Palm Beach Cog-z Sheriff?s Office, 698 So. 2d 3365, l366 (Fla. ?3111 DCA 1997) However, ?where a defendant's right to a fair Page 4 (?12 IS. 16. trial conflicts; with the publi?s right of access} if is the right of access which must yield." Palm Beach Nelm?paperzs?, Batik, 504 So.2d 378, 380 (Fla. l987); 520 $0.26. at 34-35. There is no First Amenclment right ofaccess to discovery inforimtion. Sec?: 520 So.2d at 35, rolying on Smitle [Times CoEd.2dl7l104 S. Ct. 2199 (1.984). The United States Supreme Court has characterized the right to a fair trial. as the most fundamental of all froedoms and one must be preserved at: all costs.? Id. (citing Estes v. Texas; 381 LLS. 532 (1965)). The public?s interest and right to u?ansporency through section is no? absolute: ?if, as the press urges, Chaplet 'l19 was read and applied so as to violate the constitutional separation ol'powers doctrine or the righi to a fair trial, we would be obliged to declare the statute unconstitutional.? 520 So. 2d 21:34. "The trial judge is directly and personally regpomible for maintaining the dignity anal decorum of?the courtroom proceeding. The media's interests do not involve issues of fair trial and due process. Rather, the media?g interests involve issues of public ratings, and ?nancial bene?fg ??om coverage of a particular trial. . . . Therefore, the trial judge must be aggressively involved in media management to ensure the constitutionally promoted rights oftht: defendant to a fair trial. mad the societal. right to justice ii: a properly conducted trial." Hon. Stevens Kent (roll) and Hon. Sharon Wilson, Chapter 4 Media and the Counts, Presiding over a Capital. Case: A LBenchbook for Judges, Fagc f? of 12 17. Criminal carrot; must be: triod in court and not tho modia; tho Supreme Court of Florida equipped trial courts with the ability to limit the disclosure of court records with Florida Ruloof Judicial Administration in situations where: (A) con?dentiality is required to: prevent and imminent threat to the fair, impartial, and orderly administration ofjustico; . . . ii i) protect a oompolliog governmental intoroot; . . . (Vi) avoid sobstaotia?l injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in tho speci?c type of proceeding sought to be closed; (vii) comply with ootablishod public policy sot forth in tho Florida or United States Constitution or statutes or Florida rules or case Iow[.] 18. In deciding whether to temporarily restrict public: access to discovery material this Court should consider the following: (I) A temporary restriction is ?necessary to prevent a serious and imminent threat to the administration ot?justico; (2) No alternatives are available, other than change of venue, which would protect a defendant?s right to a fair trial; and (3) temporary restriction] would be effective: in protecting the right of the accused, without boiog broader than to accomplish this purpose.? lit/[front Hamid Pub Co. 13. Law?s, 426 So.2d 1S 3 (Fla. 1982); Florida Freedom Neiiopapers, Inc. v. 520 So.2d '32, 35 (Fla. 1988) (holding that ?the factors set out, in Lewis are: relevant to a ?nding of cause and should be considered in determining whether public access to a judicial thiblic record should be restricted or deferred?). Page 6 ot?lz WV 19. 20. 2i. In Mchran/i, the trial court temporarily prohibited public release of existing discovery materials after finding that the material was ?graphically incriminating containing materials which might not be admissible at 520 So.2d at 33. The trial court recognized that there was prior prejudicial publicity suiro'uuding the case and that disclosure would further aggravate the prejudicial publicity; it found that the only measure available, until a jury could be selected and sequeatered, ?was to cut c??ti?rc prejudicial publicity at its source before the discovery became lmown to the press and public. 1d. at 35. In upholding this decision, the Florida Supreme Court disagreed with the media?s position that the court was writing a new public record exemption into chapter li9 without authority: the legislature recognized in that there are occasions where. court ?les containing public records must be. closed to the public and that ?under the. separation of powers doctririe, it is the responsibility oi?thc judicial branch to ensure that parties receive a fair trial.? 1d. at 34. Similarly, the trial court in Miami Herald Media Co. v. State, 21.8 So.3d 460 (Fla. 3rd DCA 2017), was cooli'oritcd with a murder case involving prejudicial pretrial publicity and impaclful discovery materials; with undetemiiucd admisaihility. The Third Dictrict Court of Appeals upheld the trial court?s; decision to temporarily rertrict public access to certain discovery materials in order to ensure the defendant?s rights to a fair trial. Id. at 463. in evaluating the decision, the court cited to the circumstances a court should consider in connection with a motion for a change of venue, which. include the following: when the publicity occurred in relation to the time ol?thc crime and the trial; (2) whether the publicity was made up of factual or iriflammatory stories; (3) whether the publicity favor the prosecutiozfs side oi?tho story; [and] Fargo 7 ole (4) the size of the cammuniry exposed to that publicit?] 1d. at 4634 citing 51mm}. Knight, 866 $0.2d 195, 1209 (Fla. 2003.). 22. ?[E]ach iteratirm of publicizy occurs closer to the ultimate trial of the case.? 218 80.36 at, 464. The discovery material temparmily withheld from disclosure were in?ammatory. 14!. Its release cauld cause potential jurors to prejudge guilt, but the court had not yet decided whether they would be admin-ed during the trial. 1d. And ?nally, although Miami?Dads Ceunty is home tr) appraximately 2?6 million residents, neither $ide relating t0 the effects 0f$0?l?l media.? [at 23.11} supper}; fll? mart recognized ?[Cf]ertain typas 0f pretrial publicity have a statistically signi?cant prejudicial effect on juries.? Id. at 464 citizzg Margret Lost in Campmmixe.? Free Speech, Criminal Justice, and Attorney Pretrial 66 U. Fla. L. Rev. .1873, {917-18 (2014). These include ?a confessimr of the accused (even if retracied)..inadmissible incriminating evidence, and statements regarding the character of the ace-used.? 162. ?Such infomiatien has a cumulative e'l'lhct: the more of it an individual receivag, the more likely she is to acti'udge the: accusmi guilty.? 1d. 24. Particularly apposite to this case, the court recognized ?Extraordinary media interest.? today is a far cry from pretrial publicity, as it existed [in the past]. Social media and the dissemination 0f iil?ammatary images and incidents at: the Speed 0f light ("going viral? rather than reaching an audience in :1 2441011): news cycle) have. gown. exponentially. This level of media saturatien expases a larger number of prespective jumrs to peteutially prejudicial information abant more upwming trials than ever helhrc in. history, making it more difficult to select impartial jurors for trial and to liiaintain their impartiality during trial. Id. 31463 internal citations omitted). Page 8 all?) 25. {lore} the media coverage is overwhelming, it is routinely referred to as one ol?tho deadliest 26. at mass shootings in modern American history. The case has reached the front pages ofmedia outlets since the date of incident, covering the facts, of the case, how the surviving victims and their ?l'amilios are coping with the: trauma and their advocacy on issuos related to the cast: at the state and national lavol. The ?Report" was pz?opnred batted upon a review of the Detbndant?s educational records mado available to Collaborative Educational Networks, 'lno. lodge Fleming?s order dated July 26, 2018 redaots a significant amount of the Dotonoant?s private protected educational information pursuant to legislatively otoatcd privileges to educational records, . Nonetheless, the ?Report? in its entirety, including the nonwodactod portions on tho votgo of release, relies on information from the Defendant?o educational records citing, specific state and federal statutes govoming placement of students Within the Broward County school System. Because the ?Report" solely concerns the and the ?Report" is solely based on a review of the Defendant?s records, the redacted report through its Citation to rules and statutes inovitobly discloses information about tho Defendant. Tho ?Report? wouldn?t cite the statutes and rules if they did not pertain. to the Defendant. . The Defendant has a pending criminal matter and. the media?s reporting on (toy information pertaining to Mr. Cruz is unrelenting. If the "Report? is released subject solely to lodge Honoing?s redaction-z; the media will immediately disseminate the ?Report? to the public and concomitantly provide their own conclusions about the Defondant. However, the information the redacted ropon convoys explicitly and implicitly to tho Defendant?s potential jurors through its publication is prejudiciah and this court has not yet: detonnined whether any of it will be admissible in trial. Page 9 ol?lz 29. Any portion of the ?Report? sheuld net be released until the reselutiun of the Defendant?s criminal case in order to ensure that his censtitutional rights to due process and a fair trial are. not violated. 30. Finally, heightened standards of due process apply because the Defendant is facing a death sentence. See Mills ilfliftl?jfia?d, 486 US. 367, 376 (1988) (stating ?Mn reviewing death eeriterices, the Court has denmnded even greater certainty that the jury's ceiielusions rested on proper Prqu?itt ii. il?aimw?ighf, 685 F. 2d i227, 1253 (1th Cir. 1982.) (stating ?[r]e1iability in the teet?ziding aspect of sentencing has been a cornerstone or [the Supreme Cd?urt?s death penalty] decisions?), and Beck v. Alabamm 447 US. 625, 638 (1980) (concluding that the same principles apply to guilt determinations). "When a defendant?s life is at stake the Court has been particularly sensitive to insure that every safeguard is observed.? Gregg v. Geargia, 428 US. 153, 187 (1976) (plurality opinien) (Citing eases). ?[D]eath is a different kind of punishment {rem any other which may be impesed in this country.? Gardner v. Florida, 430 US. 349, 357 ("1977). 31. Relieeging the ?Independent Review of Educational Record", would violate the Defendant?s tights to due process guaranteed by the Fifth and Fourteenth Amendmeuts of the United States Constitution and Article 1, Section 9 0f the Florida Coustitutiom a fair trial in the venue, Brewai?d County, Florida guaranteed by the Sixth and Fourteenth Amendments the United States Constitutien and Article 1, Sections 16 and 22 of the Florida Constitution, privacy guaranteed by the quth, Ninth, and Fourteenth Amendmeats of the United States Constitution and Article Section 23 of the Flerida Censtitution. equal pretectiou or baeic rights guaranteed by the Fouitceuth Amendment 01? Page If) 01?12 United Slum Cnnuiumun :anl Amulu I. 2 ul'lhc Florida ('mlslihuinm and be 1m l'mm c..er and or excemve punishment us guaramccd by the and l'ouxk'cnth orthc Unncd Slums Consmmiun and Amch Scurlon l7 nfllu: Huridu culhlilullnn, 32' If court finds oil/15mm: Defense counsul quuesli that this ('0an 11cm oral argument on disclosure ul'uny pornon ui' [ht repon and school records Illa! mu Sclmol Board WHEREFORE 1h: Dcl'cudml requcsl: Hmwrablc ('mul gram his Amended nmuun urdcr l\c rc or an) pol'uon of Rcwcu or Lnlumlmn prepared L'ullubm'dlnu Enlumnouzll Nulwmk. Inc upnn than rm 1c" ul'lhc school records and [CunM Ural arguman "If' I HEREBY CERTIFY mm mm is being mm good lex and nm for purposes ur delay. Page 11 um HOWARD Defender 17l111udicm1Cimuil xsu 5a laml Public Flu. Bar No 475408 HOWARD TINKELSTKIN Publlc I711 JudiumlC1rcun 15/ (imdun Ewtulivc ('hic' I'uhhc Dcibndur 120677 STEIN Public 1) 17m Judmlal ('H'cuil 1) 1m: VI Dunc M. cunvc ('hxel'Av'isldut Public Defends; Flu Bill \10. 434700 HOWARD Publm 17l111ndlciu1l'ncmt yin \'cn le As Puhhc 1111 BM \10, (11117917 Page 12 "Hz WM FILED: BROWARD Brenda 1.1 Forman, CLERK 8i3f2018 1:12:17 1 17th Judicial C?rcuit in and for Broward County In the County Com-t in and for Broward County Filed In Open Court, CLERKOFTHECI 'um MW 1 Crimina: BY - . . 1 Traffic ORDER - [1 Other THE sm?rE OF FLORIDA vs. EKG ?83 CASE DEFENDANT F8- 58 CF [Qpr Wmoroa the: CHARGE 18234 Omimpwoketme mm? H) mm mm: New We mwmgem mm mmes CI 018 eduoghon ?s armed masons med 0? m6: record BONE AND ORDERED ms . DAY OF AUG 03 2018 ,m BROWARD counm FLORIDA. JUDGE Elizabeth Scherer :2 WW COPIES: BSD - BAG 1! 262 BIAHK GREEK 8/6/2018 Here's what Broward schools knew about Parkland shooter details revealed by mistake - Sun Sentinel I Here's what Broward schools knew about Parkland shooter details revealed by mistake in a report released Friday, the ?rst detailed account emerged of the Parkland shooter's years in the school system, what the school district knew about him and what mistakes were made. Nearly twouthirds of the content was blacked out, but the method the district used to conceal the text failed, and the text became visible when pasted into another computer file. By Brittany Wallman and Paula McMahon South Florida Sun Sentinel AUGUST 4, 2018, 9:25 AM I 11 the year leading up to the mass shooting at Marjory Stoneman Douglas High School, killer Nikolas Cruz was stripped of the therapeutic services disabled students need, leaving him to navigate his schooling as a regular student despite mounds of evidence that he wasn?t. When he asked to return to a special education campus, school of?cials fumbled his request. Those conclusions were revealed Friday in a consultant?s report commissioned by the Broward public school system. Broward Circuit Judge Elizabeth Scherer ordered that the report be released publicly, but with nearly AF 1411:: n11+ St: or: mis?t Joerra??sm EXHIBIT Sugfrfibr far with l" 1! with the shooter?s privacy rights, but the method - became visible when pasted into another - 1/8 8/6/2018 Here's what Broward schools knew about Parkland shooter details revealed by mistake - Sun Sentinel computer file. What emerged was the ?rst detailed account of Cruz?s years in the school system, what the school district knew about him and what mistakes were made. Without directly criticizing the schools, the consultant, the Collaborative Educational Network of Tallahassee, recommended that the district reconsider how cases like Cruz?s are handled. The recommendations suggest that Cruz could have been offered more help in his ?nal two years in high school, leading up to the Feb. 14 shooting. Whether that would have changed the outcome is impossible to know. The consultant found that the district largely followed the laws, providing special education to the shooter starting when he was 3 years old and had already been kicked out of day care. But ?two speci?c instances were identified,? the report says, where school of?cials did not follow the requirements of Florida statute or federal laws governing students with disabilities. Those instances: School of?cials misstated Cruz?s options when he was faced with being removed from Marjory Stoneman Douglas High School his junior year, leading him to refuse special education services. When Cruz asked to return to the therapeutic environment of Cross Creek School for special education students, the district ?did not follow through,? the report reveals. In part because of the errors, Cruz had no school counseling or other special education services in the 14 months leading up to the shooting on Feb. 14, the report says. In an interview late Friday night, Broward Schools Superintendent Robert Runcie said that district of?cials had wanted to release the full report but did not intentionally post it in a way that allowed the blacked-out portions to be read. didn?t even know that was possible,? he said. Runcie said the redaction of parts of the report was to comply with judges? orders and the defense?s objections to the report being made public: ?It should not be insinuated or suggested at all that we wanted to redact or hide portions from the public.? He said the purpose of the report was to explain to the public what happened, to ?x any problems identi?ed by the experts and to provide better training for staff in the future. The details accidentally revealed do not alter any of the conclusions, Runcie said. ?Nobody ever said this was an average child,? Runcie said of Cruz. ?The district was the one out of all the unvn? flu-TAT n4: ?nmv?nn 'lwn +1511 nl-Iild . Sunnurt Quanta ?tti?iri?it?ii? Streetwise tar as a; gate. ?wralt ?r?t?3k 2% ?a 7' 3d special education placement, the district could 1h emotional and behavioral disabilities. But the 80803-story.html 2/8 8/612018 Here's what Broward schools knew about Parkland shooter details revealed by mistake - Sun Sentinel cons?ultant?s report reveals for the ?rst time that Cruz himself requested to return to special education, and his request went nowhere. Three days after he was forced by the district to withdraw from Marjory Stoneman Douglas High, he purchased an AR-15 ri?e. A year after his ejection from Marjory Stoneman Douglas, a school he insisted he would graduate from, he returned and murdered 14 students and three coaches. Some special education experts have told the South Florida Sun Sentinel that the district should have looked for other ways to help him in his final two years of school, before the shooting. The district treated him like a general education student for his ?nal two years. Cruz left Stoneman Douglas two or three months after giving up his special education services. The long-awaited analysis largely absolves the district of culpability, minimizing mistakes as ?compliance concerns? and noting the analysis was not done ?through the lens of hindsight.? ?Remembering that throughout the student's school career his teams were acting without bene?t of foresight regarding the incident that occurred in February 2018, the decisions they made were reasonable given the available information at the time,? the consultant concluded. ?With few exceptions, the district adhered to [federal law].? Runcie said the review shows that the district?s ?systems are appropriate? and that the district worked consistently ?to provide an education and ongoing, changing behavioral care for Cruz throughout his time in the Broward school system.? Cruz?s attorneys called the report a ?whitewash? commissioned by the school district to clear it of responsibility for how it handled Cruz?s complex problems. think that the report is an attempt by the school board to absolve itself of any liability or reSponsibility for all the missed opportunities that they had in this matter,? said Gordon Weekes, the chief assistant public defender who is the spokesman for the defense team. The report does recommend changes, but many are not specific and don?t say how the case brought the weaknesses to light. For example: ?Review existing data systems to identify redundancies and inef?ciencies and determine the most effective way to integrate multiple systems, maximizing accuracy and shareability across users.? The district paid the Tallahasseewbased consultant $60,000 for the review. Animal fantasies :onsulted for the report. Roger Cruz died of a heart 32% tanning antennae gm, ed of pneumonia last November. ?nnaerii?m tar rarity rite an 3/8 8/6/2018 Here's what Broward schools knew about Parkland shooter details revealed by mistake Sun Sentinel But?the consultant found that Cruz, by the time he was 3, had already been kicked out of a pre-kindergarten program and was identi?ed as a developmentally delayed student needing Special education. He was aggressive biting, pinching, scratching and pulling hair. He had trouble communicating and following instructions. And he exhibited ?animal fantasies? that led to a parent-teacher conference and the assignment of a family counselor in the home. Despite ?high levels of reinforcement,? his aggressive animal-like behaviors ?appeared to be unpredictable,? the report says, citing school records. ?It must be noted that in particular, [the student] seems to identify as an animal,? the report says, citing an evaluation completed when Cruz was 5. ?He often crawls on the ?oor or ground, pounces on another student, makes seemingly animal-like growling sounds and grimaces while holding his hands in a paw-like manner.? He eventually dropped the predatory animal ?xation, but his behavior continued to be tinged with physical violence. The special education designation brought extra care and attention in-home family counseling, speech therapy, a peer counselor, extra time to do his work, waivers from some testing, continual reviews of his progress and his struggles, meetings with family. But each attempt to transition him to a regular classroom failed. His outbursts and physical aggression in ?rst grade required him to be removed from class at least four of ?ve days, and several times a day on certain days, for example. His third?grade teacher reported that he was ?often sad and pessimistic? and apologized unnecessarily. He needed structure and predictability. ?The results of the evaluation revealed clinically signi?cant levels of hyperactivity, aggression, anxiety, and depression behaviors and feelings at school,? the report states. Some of the school interventions drew attention to his differentness. He had a harness on the school bus in pre? kindergarten. And at the start of his eighth?grade year, he was placed on ?escort only? status at Westglades Middle School in Parkland. He was to be accompanied by a security specialist or staff member wherever he Went, including the restroom or when moving from one class to another. Over the years, his behavior patterns did not change, except to worsen. Though he didn?t want to be in a school for kids with troubles, he excelled when during his eighth?grade year, he was moved back to a full-time special education campus at Cross Creek School, a Pompano Beach school for children with severe emotional and behavioral disorders. ?By all reports the placement at Cross Creek was effective,? the report says. :cided to give him a chance at Marjory Stoneman ?enpori searnaiianz dementia in? snip eiir (4/8 8/6/2018 Here's what Broward schools knew about Parkiand shooter details revealed by mistake Sun Sentinel Send him to MSD He still exhibited emotional and behavioral problems, but in May 2015, duringhis ninth?grade year, when he was 16, school of?cials recommended he return to a ?mainstream setting,? at least for part of the day. ?Although [the student] has made behavioral progress he continues to lack impulse control. He needs to be monitored while in both the school and neighborhood communities,? a report in March 2015 said. He would attend Marjory Stoneman Douglas High for ROTC and intensive reading, they decided. In addition, they agreed to ?discontinue the behavior intervention plan. During interviews school staff explained that this decision was based on the fact that the target behaviors were no longer in evidence and the plan was no longer needed.? Behavior intervention plans ensure that everyone dealing with a student knows what sets him off and how to reinforce better behavior. In January 2016, during his 10th-grade year, he became a full?time student there. Just three weeks later, the Broward Sheriff?s Office got a tip that he posted on Instagram that he planned to shoot up a school. Collaborative Educational Network determined that the decision to send him there was the right one. ?Based on the available evidence, the student's transition to the less restrictive environment of a traditional school campus was apprOpriate,? the report says. His only discipline that semester was a two?day in-school suspension for ?inappropriate comments.? He had a girlfriend, the report says, and still strongly desired to join the military after graduating. Time to go As had been the case in the past, his success was short~lived. He had an emotional meltdown in September of his junior year. And on Nov. 3 that year, a meeting of Stonernan and Cross Creek specialists was convened. Lynda Cruz was present. With her son not in the room, those in attendance agreed he should return to Cross Creek school. They knew he?d be upset. His mother agreed with the transfer, but she told those in the room that she thought he would reject the idea. It was up to him, they said. He had turned 18 on Sept. 24. ?Upon entering the room and seeing the Cross Creek representatives, the student immediately became upset and verbally aggressive. He refused to sit at the table, angrily repeating that he would not go back to Cross Creek and that he wanted only to stay at Stoneman. He intended to graduate from the school,? the report says, summarizing what those in the meeting said in interviews with the consultant. ?ananrt tanning in; {is 9 . We?? egg,? ,iei luring the meeting and in their distress at the antagonists for ante ?3 5/8 8/6/2018 Here?s what Broward schools knew about Parkland shooter detaiis revealed by mistake - Sun Sentinel Two?Cross Creek personnel took him aside and told him his options: He could return to Cross Creek to work on his behavior, he could sue the district to try to reverse the decision, or he could remain at Douglas as a regular student, rejecting all special treatment and services for kids with challenges. He told them he wasn?t going to Cross Creek. Still, he didn?t put the decision in writing. Douglas staff nudged him about it and wrote it up for him. The moment he signed the form, he lost all protections for disabled students under federal law. Though the district knew he needed services and had put in writing just two weeks prior that he ?requires access to therapeutic support as needed through-out the school day at this time,? they began treating him ?in the same way as any general education student.? The consultant said the options laid out for Cruz were incorrect. Cruz could have remained at Douglas with his current rights and services, and the district had the burden of proving he should be transferred to Cross Creek. The consultant recommended the district review and revise guidelines governing cases like this, including cases Where the student doesn?t follow through by signing paperwork to revoke special education. Staff should ?remain neutral and [be] able to act without either promoting or hindering the revocation? of services, the consultant recommended. The recommendations also suggest that Cruz wasn?t offered help that general education students are entitled to. The district should review and revise current training, the report says, for when ?a student is known to have social/ emotional or behavioral needs and therefore, as a general education student, should have access to the counseling and mental health services available to all students through the district?s multi?tiered system of supports.? By February, without the extra protections, he was failing most classes and administrators told him it was time to go. He was referred to Riverside Off Campus Learning Center at Taravella High School, where students work independently online. There is supervision, but there is no one teaching course content, though Cruz struggled with academics his entire life. ?On February 8, 2017, the student withdrew from Stoneman,? the report says. ?He did not return to the school until the day of the incident, just over one year later,? the report says, obliquely referring to the murders. He was on track to graduate during the time he received special education services, the report says. After he signed the paperwork to leave special education, he earned only two credits over a year and a half i - 3d. ?anpert Quaintfor-?air Sunscreen fer out}: titre 618 8/6/2018 Here's what Broward schools knew about Parkland shooter details reveaied by mistake - Sun Sentinel Twolmonths after he was kicked out of the high school, his mother called to say he had changed his mind. He wanted to return to Cross Creek. ?She said he had come to realize that the only way he would achieve his goal of graduating from high school would be to return to Cross Creek,? the report says. The district had 15 years of paperwork on Cruz but determined he would have to be evaluated and found eligible for exceptional student education services, a process Douglas High estimated would take six weeks. On that point, the consultant again refrained from criticizing directly, but suggested the district revise its rules in cases where the evidence that the student needs special education is already ?rmly in place. Special education specialists at Cross Creek, Stoneman Douglas and at Riverside, where he was a student, all were involved in his request to return to Cross Creek?s special education campus. Ultimately, the administrators at Stoneman Douglas, where he was to re?enroll for a new evaluation, refused to accept him back. The consultant gave a light touch to the mistake, saying the district had an obligation to respond to the student?s request for special education services within 30 days and ?this did not occur.? Senior year At the beginning of his senior year in September 2017, back at Riverside school, he was taking a standardized test that, as a general education student, he needed in order to graduate. The proctor told him his test would be invalidated because he had a cellphone. He became upset, saying, ?No, this can?t be.? He shouted hate this school!? and threw a chair across the room. He transferred to another alternative public high school, the Dave Thomas Education Center, where teachers ?described him as a quiet, polite student who tried to do well but struggled academically. They made a point to saying that he did not exhibit any of the aggressive or dangerous behaviors reported elsewhere, nor, despite the fact that almost all of his teachers were minorities, did he show any of the racial or ethnic bias they had heard about in the news.? On Nov. 1, his mother, an advocate throughout his schooling, unexpectedly died. Staff at Dave Thomas encouraged him to return to the school, but he and his brother Zachary had moved to the Lantana Cascade Mobile Home Park in Palm Beach County to live with a former Parkland neighbor, Rocxanne Deschamps. Deschamps kicked him out several weeks later. In mid?December, after moving in with a Parkland family, he enrolled at another school, the Off Campus Learning Center at Rock Island. He remained there, the report says, until ?the incident.? ?fteen-nit ginning intermittent -sentmel.com or 954'356'4541- 1nd her on iiniaseriire int ante 7/8 From: McMahon, Paula Sent: Friday, August 03, 2.018 11:41 AM To: Nadine Drew; Cathleen G. Brennan; Tracy A. Clark; Debbie Klauber Cc: Wallman, Brittany Subiect: Release of school district report on Nikolas Cruz Hi all, Paula from the Sun Sentinel here. As you know the judge ruled the report should be made public. The public defender?s office told the media outside court that they will not appeal that ruling. Can you please provide us with the report or let us know when you anticipate it will be tea-leased? I am cc?lng my colleague, Brittany Wailman here. My cell is 5 Thank you for your help, Paula Paula McMahon Staff Writer - Sun 954?356~?533 ?twitter: @By?aulaMcMahon SanSmtinel 333 SW 12th Avenue Deel?fieid Beach, Florida, 83442 From: McMahon, Paula Sent: Friday; August GS, 2018 12:32 PM To: Nadine Drew; Cathleen G. Brennan; Tracy A, Clark; Debbie Klauber; Raquel L. Bell; Theresa V. Coleman Cc: Wallman, Brittany Subject: RE: Release of school district report on Nikolas Cruz Since the redactions are already done and thajudge ordered the report should be released, can you please provide it today? The public defender?s office said they are not appealing so there is no stay on releasing it. Thank you so much, Paula From: Nadine Drew Sent: Friday, August 3, 2018 12:30 PM To: McMahon, Paula Cathleen G. Brennan Tracy A. Clark dklauber@hosleaai.com: Raquel L. Bell Theresa V. Coleman Cc: Wallman, Brittany Subiect: Re: Release of school district report on Nikolas Cruz Paula, schools and District of?ces are closed today, but forwarding your request to our Public: Records Of?ce. Nadine Get Outlook for ?08 From: McMahon, Paula Sent: Friday, August 3, 2018 11:41:19 AM To: Nadine Drew; Cathleen G. Brennan; Tracy A. Clark; dklaubert?ihoslegelcom Cc: Wallman, Brittany Subject: Release of school district report or: Nikolas Cruz Hi all, Paula from the Sun Sentinel here. As you know the judge ruled the report should be made public. The public defender?s of?ce told the media outside court that they will not appeal that ruling. Can you please provide us with the report or let us know when you anticipate it will be released? i am cc-ing my coileague, Brittany Wallman here. My cell is Thank you for your help, Paula Paula McMahon Staff Writer - Sun Sentinel/SunSentinei.corn Office: Twitter: @Byi?eula McMa hon EunSemzinel 333 SW 12th Avenue Deerfieid Beach, Florida, 33442