Satz v. BlankenshipSatz v. Blankenship
Appellant is the State Attorney of the Seventeenth Judicial Circuit of Florida and was appointed by the Governor‘s office as special prosecutor in the case оf State v. David L. Reid, now pending in the Fifteenth Judicial Circuit. In the course of the investigation of Reid, he came into possession of certain tape recorded conversations. Following demand for discovery by Reid, appellant allowed Reid‘s attorney to copy the tape recordings.
Appellee is a newspaper reporter. Pursuant to
Our inquiry focuses on whether tape recordings are “documents” within the meaning of
Appellant argues that tape recordings are not documents; therefore, he has no duty to release them. By definition, he contends, a document is “[a]n instrumеnt on which is recorded, by means of letters, figures, or marks, the original, official or legal form of something, which may be evidentially used.” Black‘s Law Dictionary 432 (5th ed. 1979). He asks us, when engaged in our task of interpreting this statute, to be guided by two principles of construction: the plain meaning rule, and expressio unius est exclusio alterius; that is, the expression of one thing (documents) implies the exclusion of another.
Although we recognize these canons of constructiоn, we believe the principle enunciated in State v. Webb, 398 So.2d 820 (Fla. 1981), governs here. In that case, the Supreme Court of Florida wrote:
[I]t is a fundamental rule of statutory cоnstruction that legislative intent is the
polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statutе.
First, in ascertaining the intent of the Legislature in this case, we look to the general policy behind the Public Records Act. As articulated in
Second, we consider the purpose behind the enactment of the exemptions dealing with criminal intelligence and investigative information in light of the exclusion of certain types of documents from thesе two exemptions. As defined in
On the other hand, “[d]ocuments given or required by law or agency rulе to be given to the person arrested”6 are open for public inspection. This provision reveals that once documents are releаsed, the Legislature believed there is no longer a need for secrecy.
Following this analysis, it can be seen that once the tape recоrdings were given to Reid the information no longer carried with it the legitimacy of law enforcement secrecy. At the point of disclosure, the informatiоn became public in a sense and as public information, it lost its efficacy in deterring criminal activity. Accordingly, the trial court acted properly in releasing the tapes to appellee.
A second point was raised on appeal but only by Reid as an amicus curiae. The major portion of his brief argues that the trial judge erred by permitting disclosure of the tapes, thus failing to minimize the effects of prejudicial pretrial publicity. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).
Because this second point was never raised at trial, we think it inappropriate for an amicus curiae to interject a new issue on appeal. See Robertson v. Hert‘s Administrators, 312 Ky. 405, 227 S.W.2d 899 (1950). We also recognize that the trial judge in Reid‘s case is the one who should first consider and deal with the competing considerations involvеd in limiting pretrial publicity. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). Moreover, this court is unaware of the text of the tape recordings and is similarly unaware of any action taken or relief sought by Reid in the pending criminal case upon the issue he raises here. Accordingly, we affirm and because Reid‘s criminal trial is scheduled for January 5, 1982, any motion for rehearing shall be filed by December 29, 1981.
AFFIRMED.
DOWNEY and HERSEY, JJ., concur.
Notes
(1)(a) Every person who has custody of public records shall permit the records to be inspected and еxamined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of the records or his designee. The custodian shall furnish copies or certified copies of the records upon payment of fees as prescribed by law or, if fеes are not prescribed by law, upon payment of the actual cost of duplication of the copies. Unless otherwise provided by law, the fees to be charged for duplication of public records shall be collected, deposited, and accounted for in the manner prescribed for other operating funds of the agency.
(b) In the case of records produced under this act, when the nature or volume of records is suсh as to require extensive clerical or supervisory assistance by personnel of the agency involved, the agency may charge, in addition to the actual cost of duplication, a reasonable charge, approved by the Department of Administration, for the provision of such clerical or supervisory personnel.