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April 18, 2000
Via facsimile and overnight mail
The Honorable Daniel Meritt
Re: Case No. 2000-926CA, Freedom for Life v. Michael Moore, Department of Corrections. Dear Judge Meritt: The Reporters Committee for Freedom of the Press writes to urge the Court to deny Freedom for Life's motion for a temporary injunction stopping the Department of Corrections from posting photographs of probationers on the Internet. The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of news reporters and editors dedicated to protecting the First Amendment interests and access rights of the news media. The Reporters Committee has provided information, representation, legal guidance, and research for most significant federal and state appellate press- freedom cases in the past 30 years. As a special project, the Reporters Committee sponsors the Freedom of Information Service Center, which advises reporters on issues of access to government records and proceedings. The Reporters Committee does not seek to intervene in the case. It writes only to emphasize to the Court the broad First Amendment principles at stake. The injunction Freedom for Life seeks would prevent the otherwise lawful distribution of public records in an efficient and timely manner. Granting the injunction would frustrate Florida's public records law and violate the U.S. Constitution's ban on prior restraints. The general policy of the Florida public record's law is to provide an expansive right of access to public documents. "It is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person." Fla. Stat. § 119.01(1). The law specifically mandates that government agencies such as the Department of Corrections allow the public to inspect and examine any public record. Fla. Stat. § 119.07(1)(a). The definition of public record includes "all ... photographs ... made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." Fla. Stat. § 119.011(1). Exemptions to the mandatory access provisions are to be narrowly interpreted. See e.g., Seminole County v. Wood, 512 So.2d 1000, 1003 (Fla. 5th DCA 1987). No exemption applies in this case. Freedom for Life claims that publishing mug shot photographs, and presumably other public records of probationers, on the Internet violates the probationers' privacy rights. This simply is not so. First, Florida law encourages the publishing of public records on the Internet. "The Legislature finds that, given advancements in technology, providing access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible." Fla. Stat. § 119.01(2). Second, other courts have ruled that distributing public information about ex-convicts on the Internet or elsewhere violates neither the ex-convict's right to privacy nor constitutional protections against double jeopardy. For example, two different state courts last fall ruled that sex-offender registry programs requiring public dissemination of ex-convict information were constitutional. See e.g., Kansas v. Stevens, 1999 Kan. App. Lexis 1135 (Kan. Ct. App. 1999)(Internet distribution of sex-offender registry does not violate the privacy of ex-convicts listed on registry); Meinders v. Weber, 2000 S.D. 2 (2000)(making sex-offender registry accessible under state records law does not violate ex-convicts' privacy). Third, Florida's Constitution says that a citizen's constitutional right to privacy may not by itself be used to exempt a public record from disclosure. Art. I, § 23. In addition to asking this court to ignore the public records law, Freedom for Life also asks this court to violate constitutional bans against prior restraints on speech. An injunction barring dissemination of photographs of probationers on the Internet amounts to a prior restraint on the Department of Corrections' right to publish the photographs. The U.S. Supreme Court has ruled that such government attempts to censor speech are presumed unconstitutional. Near v. Minnesota, 283 U.S. 697 (1931). Government may censor the press, for example, only when its dissemination of information presents a clear and present danger or a serious and imminent threat to the administration of justice; the only cited example of when government would likely be allowed to censor the press is an order barring publication of military troop movements during war. Id. The Supreme Court has described a prior restraint as "the most serious and least tolerable infringement on First Amendment rights" and "one of the most extraordinary remedies known to our jurisprudence." Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). Florida courts have been similarly hostile to prior restraints and other orders not to disseminate information. See Republican Party of Florida v. Florida Elections Comm'n, 658 So. 2d 653 (Fla. 1st DCA 1995); Jacksonville Television, Inc. v. Florida Department of Health and Rehabilitative Services, 20 Fla. Law Weekly D146 (Fla. 1st DCA 1994). Disseminating a probationer's photograph on the Internet may prove embarrassing to the probationer, but an order enjoining the Department of Corrections from publishing such information would be an extraordinary and unwarranted remedy in light of the public records law's mandatory disclosure provisions and the U.S. Constitution's ban on prior restraints. The Reporters Committee for Freedom of the Press urges this court to deny Freedom for Life's motion asking for a temporary injunction against the Department of Corrections. Respectfully,
Lucy A. Dalglish, Esq.
Byron R. Brown, Esq.
cc: Michael Moore (via facsimile)
Michael Wolf (via facsimile)
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