When one investigates his or her case for potential postconviction claims he typically reviews pretrial discovery documents, trial transcripts, the record on appeal, and correspondence from the trial attorney. All of these documents are valuable and, when properly reviewed, can present viable postconviction claims. But, an often of overlooked source of potential claims is the State Attorney’s file. Said file is, for the most part, a public record and can be viewed by anyone who makes a request. The purpose of this article is to direct interested persons on how to obtain public records such as a prosecutor’s file on a criminal case.
Article I, §24(a) of the Florida Constitution provides that: “every person has the right to inspect or copy any public record madeor received in connection with the official business of any public body, officer or employee of the state...”. In addition to the Florida Constitution, Florida Statutes §119, the Public Records Act, is the vehicle which affords the public access to most public information. §119.011 defines public records as “...all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data 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 by any agency.” In other words, public documents include all materials made or received by an agency in connection with official business that are used to perpetuate, communicate, or formalize knowledge. See, Shevin v. Byron, et.al., 379 So. 640 (Fla. 1980). For the most part, any and all records received by a public agency are public records unless they are subject to an exception provided by Chapter 119. For the purposes of this article, important exceptions to be aware of are:
* Activecriminal investigative and intelligence information
* Attorney “work product” in an active case
* Identity of crime victims
* Addresses and phone numbers of law enforcement officers and former officers and their families
Other exemptions from Chapter 119 can be found in §119.071. But, for the most part, Chapter 119 is based upon the premise that all records of a public agency are public records unless excluded by a specific exemption. The public records law is to be construed liberally in favor of openness, and all exemptions from disclosure are to be construed narrowly and limited to their designated purpose. See, City of St. Petersburg v. Romine ex rel. Dillinger,719 So.2d 19, 23 (Fla. 2nd DCA 1998).
It is important to know that a prosecutor’s case file is a public record that can be reviewed by any person who so requests. Of course, State Attorney case files on active cases will be considered to come under the active criminal investigative or criminal intelligenceexemptions of Chapter 119. But, once a criminal case is disposed of and the disposition is final, the entire State Attorney’s file on the case becomes a public record under Chapter 119. This means that the entire file (excluding any portions that are covered by a specific exemption) is open to viewing by anybody who makes a public records request.
Of course it is quite possible that the State Attorney’s Office may claim that a prosecutor’s notes come under the work productexception. However, this is frequently not a valid exemption for the State to claim as Florida Statute §119.071(d)(1), provides:" A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings." (Emphasis added).
In reviewing public records, be sure to be alert for information and or evidence that is noted in the files and was never disclosed to you or your attorney. If any such nuggets should appear, they could potentially provide grounds for a 3.850 motion based upon newly discovered evidence, Bradyviolations, etc. While it is not possible to list every potential issue that could arise upon the viewing of the prosecutor’s files, it is important to note that such a public records request may be very helpful in preparing a postconviction attack on a Judgment and Sentence.
If you are incarcerated and will be unable to conduct a review of a prosecutor’s files on your own, then I recommend, if possible, that an attorney experienced in such matters be retained to assist with the request and review of the prosecutor’s files. In the alternative, a friend or family member could conduct the search on an incarcerated person’s behalf. But, it will be important for the reviewer to be extremely familiar with the facts of the case being reviewed so as to know when something interesting/helpful appears in the prosecutor’s file.
Chapter 119 provides that: “Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian’s designee. The custodian shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law... and for all other copies, upon payment of the actual cost of duplication of the record.” §119.07(1)(a) provides more information on the costs of copies and duplication of records. Be aware that one may incur costs when performing a public records review.
To make a public records request, one must contact the records custodian for the public agency and ask to view specific records. The request does not have to be in writing. See§119.07(1)(a). Nevertheless, it is always beneficial to put the request in writing and ask that the custodian specify, in writing, any §119 exemptions it is claiming. It will behoove the public records requestor to make a paper trail in case he or she needs to bring a civil action to enforce public records viewing rights. Therefore, it is best to make a specificwritten request for the records one wishes to see. Once the request is made the records custodian must be given a “reasonable time” to retrieve the records and delete any portions that the custodian claims are exempt. Said “reasonable time” is the only delay that is permitted for producing the public records for inspection. The Tribune Company v. Cannella, 458 So.2d 1075 (Fla. 1984).
Once a public records request is made the custodian must permit the inspection at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or the custodian’s designee. See§119.07(1)(a). The custodian cannot refuse to produce the requested records just because some parts of the record are exempted. Instead, the custodian shall delete or excise the exempted portions and produce the nonexempted record portions. See§119.07)(2)(a). Once again, when making public records requests, it is wise to be aware that the custodian can charge for copies and for extensive use of technology and clerical or supervisory costs. §119.07(1)(b).
If, for some reason, the custodian fails to act on a public records request, the proper remedy is a petition for a writ of mandamus in the appropriate circuit court. Staton v. McMillan, 597 So.2d 940 (Fla.1st DCA 1992). Such a petition should seek to compel the custodian of the records to comply with the public records request. But, before filing a mandamus petition the petitioner must first furnish a public records request to the agency involved. It will help to attach your written public records request as an exhibit to the petition. It is also important to note that if a mandamus petitioner succeeds in obtaining the records via a civil action (mandamus petition) §119.12 provides for attorneys fees. §119.12 specifically provides that “[i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees.”
A public records search of the prosecutor’s file may not always turn up information helpful to a postconviction case. On the other hand, one never knows, the file could be rife with newly discovered evidence claims. Therefore, it is important to consider conducting such a public records search to discover, support or supplement a postconviction claim.