good yarn good morning your honour's may it please the court will call this case revolves around the d p p a the driver license protection privacy act and the district court did a generalized analysis and erred with regards to whether lobbying is a government function under their structure at the orange county sheriff's department and why do i say they erred they ignored the fact that one of the a police mr mcmahon who worked for the orange county sheriff's department was reprimanded for his behavior in this exact case the case revolves around a bill senate bill two three four inside yes i have a read the portion of mr mcveigh hands disciplinary slip and and i frankly don't see where he was reprimanded at the substance he was reprimanded he was disciplined for aha not being aware of the the law he was disciplined for other things that he did not and for not properly performing his duties and not being aware of the internal operation of the aam department i can't find where he was he was disciplined for the con dot that we're looking at in this case well the fact that he was disciplined for not being aware of the policy  procedure that's in effect dealt with the fact that we have driver license photos which are both protected under the deep e p a and as well as under a florida statute seven ninety or excuse me under chapter one  of the sunshine law in florida so the fact that he presented the driver license photos to captain fuel this and was unaware at that time is his contention that he was not allowed to do that and he was disciplined for being unaware not that he was not allowed to do it but he was disciplined for not being aware that they were considered confidential or that d p p a about the d p p a om he was disciplined for not being aware of the law which goes hand in hand with the conduct that occurred in this case had this conduct not occurred w three appellants photographs from their driver license unsuspected were delivered and presented to the senate judiciary committee intel haci including some of the aides of the senate judicia committee had that not been improper he would have been disciplined at all is our argument this case comes down to there is no nexus whatsoever to using both or all three of the  photographs from their driver's licenses in order to put a different picture a different face the statute this government function exception to the driver's privacy protection act is mighty broad very broadly written it allows the use of this personal information it says used by any government agency clued in any law enforcement agency in carrying on its functions period and i would agree with your honor that it is very broad where this is i'm sorry so where do you draw the line where do we draw the line the governor excuse me the  v globe direct l l c case it's a first circuit case two thousand and twelve in that case it talks about the pilcher case pilcher versus united five forty two f third three eighty it's a two thousand and eight third circuit case and the language that is cited in that downing case from pilcher is this the d p p a contains no language that would excuse an m permissible use merely because it was executed in conjunction with a permissible purpose you have permissible purpose versus is the law being a function of a ship sheriff's office the sheriff's office can lobby it like that's what this guy's job was  it steps over the line and and i'm asking for a narrow holding here because it is a broad issue where it steps over the line is when you use people's pictures driver license they are termed highly sensitive under this federal law highly sensitive meaning social security numbers photographs medical and social security number and that's why they had to should have been more careful here they can go up before the florida legislature all day long and talk about you're going to have bikers that look mean they're going to be carrying guns but once you present the photographs you've breached the d only that in florida we have under chapter seven ninety the concealed weapons permit statute where you're not permitted to disclose individuals who have those permits and what they did here by doing this is disclose those photographs which in essence ended up disclosing their identities because the media picked up on it and it was all over it was on the newspaper it's in the record and it was on the news and all three of the clients were identified so there has to be some sort of restriction on how far they can go and again permissible purpose we have lobbying here but the permissible use is what is missing here it was completely improper to divulge these three individuals had nothing whatsoever to do with this bill other than two of them had concealed weapon permits at the time in fact mr doyle napier whose picture was used his driver license picture before the committee he was a convicted felon he wasn't even allowed to carry a gun yet it was presented that people like him would be carrying guns outside no longer concealed if this bill were to pass  law enforcement is intrusted with public safety function yet they were up there politicizing an issue with regards to open carry they've conceded in their own statements that this was not a safety issue for their department this was an image issue that they did not want gentleman who perhaps live a different lifestyle than we do they dress differently they look differently they didn't want them having concealed or excuse me open carry guns in target areas such as orlando so council yet read that argument  one thing i thought was who as well is isn't helping people feel safe and secure one of the functions of law enforcement it is but how is it that an individual who is not a criminal who has a right to legally carry a gun concealed because they've gone through the process with the state of florida and they've stamped them as being eligible to carry how is it more safe that just because that individual is carrying it in when it is on the outside how does that make the public more safe this was a strict image issue this was something that perhaps the chamber of commerce for orange county should have gone up there and argue and i agree with your honor that sure image is something when it comes to  use three unsuspecting individuals driver license photographs that have no nexus whatsoever to this bill zero zero they didn't even know this was going on when it went down why use their pictures to embarrass them if we were talking about race would that issue be different would we look at it different i believe we would that they put the pictures in the orlando sentinel don't i don't believe the pictures but the names i believe were published your honor the only people who saw the pictures were members of the florida legislature and some of the aides when it was distributed that is correct that is correct and again my argument is is that a permissible purpose lobbying yes but they overstepped their boundaries by releasing highly sensitive information that the federal government  your honour's this case involves as you know the driver's privacy protection act and the plaintiff's appellant's argument is that my clients violated that act it is our position  that their actions quick background captain fuel is was in tallahassee at the time lobbying the florida legislature specifically the judicial judiciary committee for the senate and mr mcmahon was back in orlando working at the sheriff's office and he was a lot of sent the pictures by e mail up to captain phillips it is our position that both of them did not violate the statute because they were engaged in a lobbying function and  counsel has conceded lobbying function is a permissible excuse me no it is a function of the law enforcement agency in this case the orange county sheriff's office and i cited a lot of that affected my brief and counsel has conceded the point  but can you cross the line with the use of these photographs i mean do they have a license of these officers have license to use photographs on driver's licenses in any  way well your honor when you say in any way i'm not sure i suppose there could be some situation that's not before the court i don't know the answer to that but you know marcia in the jury decide whether or not they cross the line in this case rather than the judge decides if they cross on your honor the answer is because under the material facts presented in this case the and the application of a lot of the facts in this case the presents no material issue that a judge a jury can decide in other words under the facts of this case there were engaged in the digital legitimate government function they used driver's license photos and within the permissible use exception they met that exception and it was clear on it's so hot how you use the photo photos it could be proper or it could be improper that's an issue of fact right your honor ultimately yes but district courts are charged with reviewing issues of fact and finding whether or not the issue is material or not for purposes of presenting it to a jury that is the function of the rule fifty six summary judgment rule and i would submit under the facts of this case as we had front of us that issue of  judge said but i might disagree with the judge yes your honor you know if i were on the jury i might disagree you may your honor but is my position to the facts of this case that as you pointed out earlier with counsel the government function exception written by congress is brought well if it's so broad would it include this hypothetical let's say the these two officers in an effort to influence the florida legislature took these driver's license photographs and instead took them up to tallahassee they put them on billboards all over the states or if you're driving down the interstate you see these guys pictures on the billboards with the caption call your legislate or and tell them the vote against this statute because if it passes these guys are going to be able to carry their weapons open openly and their pictures are on the billboards but that the of violation of the driver's protection honor that's an interesting question i i would ask more time to consider it my first reaction would be it may cross the line because now you're putting billboards where members of the public can see it openly and people who know these people may see them and recognize them and that's a whole different fact pattern compared to we have here so i would concede your point that may cross the line but my response to ron would be that's not the facts of this case under the facts of this case captain fuel is presented to members of the mean this this was covered in the orlando sentinel here are the photos were not published in atlanta sentinel there was an article with no photos and i would add in this particular case photos were handed to members of the florida judiciary committee and their staff members i want to make this clear it wasn't presented in a public hearing was presented in their chambers in private may not be the right word but it was not a public hearing is my point and no identifying information other than their photos was provided no legislative record to help us so anybody could have gotten the lead your honor i honestly don't know the answer to that question it's not in the record whether or not these photos would became a major part of the legislative record i don't know the answer to that but i can say it's not in the record and i can only tell you what i know from the record which is they were handed to members of the senate judiciary committee in their chambers or in their offices and in some cases to their aides beyond that it we have a record of the hearing in which captain captain feel has made certain comments in the hearing and there's no record in the hearing that he presented them in the hearing that that's the record should the phrase governmental function be broadly narrowly interpreted i believe it should be broadly interpret it and there's case law which i cited that says when a word is used by congress but not otherwise defined use the common ordinary meaning of the word and that's the  construction which your honour's are very well aware of and under the normal and ordinary meaning of the word the function means the activity appropriate to the nature of position of a person or thing and i would argue that if you're lobbying the legislature and you present information directly to them that is a function that is appropriate to the nature of a thing and i would argue that under the wording that congress provided this meets that function but that but the exception is not without limits at least according to the seventh circuit who said that there was a violation when a law enforcement agency left a parking sign taishan containing private information exposed to the public court agrees that the lower court properly applied their judgment to say that the facts were not material enough to to move forward to a jury then this decision should be affirmed and ultimately it comes down to your decision one way or the other and that's that's what is who we're here for i would do you get a jury trial in a case like this summary judgment is denied you get a jury trial my general recollection is yes but i would have to research that issue on and i would point one case i cited in my brief which is more quarter versus city of montgomery i believe in alabama that was the middle district case now bama and briefly in that case the law enforcement agency in alabama did a prostitution sting and they showed a photo of a person in the therefore there was no violation i recognize a district court opinion and not a circuit court opinion but that i believe is an example of your honor i would say that that's another factor that certainly if they use someone's photo in publication to the public that that goes more broadly as you said earlier and that was found to be a permissible use in that particular case and i think i would point out to the court based on the facts of this case is the plaintiffs did not know that this happened until four months later article i asked them are you damage in any way they said i said were you embarrassed he said not initially because i didn't know about it but later when i found out about i felt embarrassed they had no other damages i would argue that all the facts of this case point to the fact that under the facts of this case the photos without names without other defying information were provided to the florida senate judiciary committee members not in an open public hearing but in their offices and no other disclosure was made and this i believe falls more in the less public less egregious side the more than the public egregious side that you're on to point out in the billboard example and i believe in the facts of this case it fits within the broad  permissible use set by congress and of these guys who photographs were exposed that ever been convicted of a crime i believe one was a felon as my general memory and two others were not which one was napier was a convicted felon he did not have a concealed weapons permit yet his picture was utilized before the senate judiciary committee saying people like him would be caring when in fact that wasn't t the word functions is ambiguous when it comes to this law and when you look at the congressional record one thirty nine congressional record s one fifteen seven sixty three  three it states in an acting the deep e p a congress intended to shrike a critical balance between legit emit governmental and business needs for this information and the fundamental right of our people to privacy and safety the right to privacy outweighs whatever legitimate governmental lobbying they claim here because that was not legitimate one it was an outright lie before the committee that doyle napier and his picture could carry a weapon he was a convicted felon the other two unsuspecting law abiding citizens who had concealed weapons they were exactly that unsuspecting no nexus to this and law abiding the quarter case which is a district court case that counsel  for the appellate police spoke about apples and oranges the mcwhorter case involved an individual who was arrested on a prostitution sting she gave the name of her one of her best friends even had her date of birth then they pulled her driver's license picture because there was a problem taking the booking photo and as part of a press release they would in order to bring the public up to speed publish the names and the photographs that is apples and oranges what occurred here the line was crossed your honor and it was underhanded in the manner it was done the record shows that the members of the senate judiciary committee in florida in fact received those photographs each one of them and some of their aides that is what is in the record was it distributed to the public no it was not but there is no senate judiciary committee exception to releasing these photographs to them it's not permitted again we have balancing the private interest of the three appellants versus this law enforcement function if we allow this today tomorrow it will be doctors lawyers and judges pictures perhaps and there's nothing anybody can do about that i want to leave you with this counsel for the police says that none of these people suffered any harm that's not the case tracy o'steen was a member of our military he was a marine and this is in the record he has p t s d because of his service he was in beirut lebanon one thousand nine hundred eighty three in his own b two hundred and forty one members of his bear were killed in a bombing what did he testified to that's in the record he sweated for several nights and he moved to north carolina because of the attention that was brought to him and that is wrong and i'm asking this court to right this wrong to put some parameters here thank you very much thank you counsel