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