Bent v. State of Florida and Al Lamberti, as Sheriff of Broward County and Sun-Sentinel, as intervenor and 4D10-2727-Mendez v. State of Florida and Al Lamberti, as Sheriff of Broward County, and the Sun-Sentinel, as intervenor
Annotate this Case
Download PDF
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2010
MATTHEW BENT,
Petitioner,
v.
STATE OF FLORIDA, and AL LAMBERTI, as Sheriff of Broward County,
and the SUN-SENTINEL, as intervenor,
Respondents.
No. 4D10-2726
__________________
JESUS MENDEZ,
Petitioner,
v.
STATE OF FLORIDA, and AL LAMBERTI, as Sheriff of Broward County, and
the SUN-SENTINEL, as intervenor,
Respondents.
No. 4D10-2727
[ September 29, 2010 ]
PER CURIAM.
Mathew Bent and Jesus Mendez are minors charged as adults with
attempted second degree murder in a highly publicized case in Broward
County. They have each petitioned this court for a writ of certiorari
seeking review of an order allowing a local newspaper, the Sun-Sentinel,
access to recordings of phone conversations from the jail between the
defendants and their family members and other third parties, excluding
counsel. We have consolidated the cases for review and grant the
petitions.
The newspaper sent a public records request to the Broward Sheriff’s
Office (BSO), asking for recordings of all the defendants’ phone
conversations since their arrests, with the exception of calls made to
their attorneys. In response, defendants moved the trial court for a
protective order, arguing that the recorded calls are not subject to a
public records request. They also argued that releasing the calls would
prejudice their defense by increasing public scrutiny on issues collateral
to the case and would violate their rights to due process and a fair trial.
After hearing argument from defense counsel, the newspaper, and
BSO, and after allowing the attorneys to file memoranda of law, the trial
court granted the motion for a protective order in part. Citing the
definition of a public record in section 119.011(12), Florida Statutes, the
court concluded that although BSO is not required to record the phone
calls, it does so for legitimate security reasons and doing so makes the
recordings a public record. The court concluded an exemption to the
records request ma y apply if recordings include any confessions. §
119.071(2)(e), Fla. Stat. (2009). The court directed BSO to listen to the
tapes, and if any admissions were made on them, not to release them;
BSO was ordered to release any other recordings to the newspaper.
We agree with petitioners that the audio recordings of the defendants’
phone calls are not public records subject to release.
Article I, section 24 of the Florida Constitution gives every person “the
right to inspect or copy any public record made or received in connection
with the official business of any public body, officer, or employee of the
state, or persons acting on their behalf, except with respect to records
exempted pursuant to this section or specifically made confidential by
this Constitution.” Section 119.011(12), Florida Statutes defines public
records as “all documents, papers, letters, maps, books, tapes,
photographs, films, sound recordings, data processing software, or other
material, regardless of the physical form, characteristics, or means of
transmission, made or received pursuant to law or ordinance or in
connection with the transaction of official business b y an y agency.”
(emphasis added).
The determination of whether something is a public record is a
question of law subject to de novo review and is determined on a case-bycase basis. State v. City of Clearwater, 863 So. 2d 149, 151 (Fla. 2003);
Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So. 2d 633,
640 (Fla. 1980); Rogers v. Hood, 906 So. 2d 1220 (Fla. 1st DCA 2005).
The Florida Supreme Court has repeatedly rejected the notion that
“almost everything generated or received by a public agency” is a public
2
record. City of Clearwater, 863 So. 2d at 154 (quoting Shevin, 379 So. 2d
at 640 and holding that personal e-mails transmitted or received by
public employees on government-owned computer systems were not
public records). Although the Legislature has broadened the definition,
“public records” still refers to “records-that is, materials that have been
prepared with the intent of perpetuating or formalizing knowledge” in
connection with the transaction of official agency business. City of
Clearwater, 863 So. 2d at 154 (quoting Shevin). “The determining factor
is the nature of the record, not its physical location.” 863 So. 2d at 154.
See also Kight v. Dugger, 574 So. 2d 1066, 1068-69 (Fla. 1990) (holding
that defense counsel’s files in possession of the Office of the Capital
Collateral Representative were not subject to public disclosure even
though the records were received in connection with the transaction of
official business because these are the private records of the defendant);
Media General Operations, Inc. v. Feeney, 849 So. 2d 3 (Fla. 1st DCA
2003) (agreeing that cellular phone records of private calls of staff
employees did not constitute official business of the Florida House of
Representatives).
As we have previously recognized, the purpose of the Public Records
Act “is to open public records to allow Florida's citizens to discover the
actions of their government.” Christy v. Palm Beach Cnty. Sheriff’s Office,
698 So. 2d 1365, 1366 (Fla. 4th DCA 1997).
The newspaper argues the Public Records Act should b e liberally
construed in favor of access. Lightbourne v. McCollum, 969 So. 2d 326,
332-33 (Fla. 2007); Dade Aviation Consultants v. Knight Ridder, Inc., 800
So. 2d 302, 304 (Fla. 3d DCA 2001). However, none of the cases cited by
the newspaper involve any situation similar to the instant cases where
criminal defendants are seeking a protective order in response to a public
records request in order to ensure a fair trial and minimize prejudicial
pretrial publicity. The “records” in these cases are recordings of phone
calls minors made to family members and other third parties while the
minors were in jail awaiting prosecution. General presumptions in favor
of openness, which were intended to allow public oversight of government
business, do not apply in this context.
Here, the phone calls themselves are clearly not public records. The
issue before us is whether BSO’s recording of the calls converts them to
public records.
Although monitoring of inmate calls for security
purposes is related to official business of the jail, maintaining recordings
of purely personal calls is not. The recordings at issue are personal
phone calls, as opposed to records generated by BSO, such as mail logs
or logs of phone numbers called. See City of Clearwater, 863 So. 2d at
3
155. Unless the contents of the call involve a crime or security risk,
“perpetuating” or maintaining these sound recordings has no connection
to a n y official business of BSO. BSO is not using the content of
petitioners’ calls to friends and family in the transaction of public
business.
In addition to housing convicted defendants who are serving
sentences, the jail houses persons like petitioners, who are simply
accused of crimes. Although inmates may have little expectation of
privacy since they are informed the calls are subject to monitoring and
recording, a lack of expectation of privacy does not affect whether the
recordings are subject to disclosure under the Public Records Act. City
of Clearwater, 863 So. 2d at 154. Inmates receive no notice that calls
may be disclosed to the general public. The expectation that a deputy or
state attorney may listen to a call is very different from an expectation
that anyone and everyone could listen to the calls.
Sensitive or
embarrassing information, or information that would otherwise be
confidential, like financial information of the inmate or the person called,
could b e disclosed to the public. Treating the recordings as public
records allows anyone to request the recorded calls. Moreover, an
accused child should be able to consult with a parent without the
communication becoming a public record.
The s o u n d recordings of inmate p h o n e calls which are not
investigative material d o not perpetuate or formalize knowledge in
connection with official action. If the contents of the phone calls do not
actually involve criminal activity or a security breach, the recordings
maintained b y th e sheriff’s office are not “material prepared in
connection with official agency business which is intended to perpetuate,
communicate, or formalize knowledge.” Shevin, 379 So. 2d at 640. The
recordings of petitioners’ personal phone calls do not give the public
access to information about the operations of a government agency. An
inmate’s personal phone calls do not in any way reflect the actions of
government and releasing the calls would not further the purpose of the
Public Records Act.
Because the newspaper is not entitled to production of the recorded
phone calls pursuant to the Public Records Act, we grant the petitions,
quash th e trial court’s order, and remand these cases for further
proceedings consistent with this opinion.
POLEN, TAYLOR and MAY, JJ., concur.
4
*
*
*
Petitions for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos S. Rebollo, Judge; L.T. Case
Nos. 09-21239 CF10A and 09-20695 CF10A.
Howard Finkelstein, Public Defender and Diane M. Cuddihy, Assistant
Public Defender, Fort Lauderdale, for Petitioner-Matthew Bent (4D092726)
Philip J. Massa, Regional Counsel, and Melanie L. Casper, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for Petitioner-Jesus Mendez (4D09-2727).
Deanna K. Shullman, James B. Lake, and Rachel E. Fugate of
Thomas & Locicero PL, Lake Worth, and David S. Bralow, New York, for
respondent, Sun-Sentinel Publishing Company.
Frank R. Brady of Brady & Brady, P.A., Boca Raton, for interested
party Valerie J. Brewer.
Not final until disposition of timely filed motion for rehearing.
5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
