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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE ATTORNEY’S OFFICE OF THE SEVENTEENTH JUDICIAL CIRCUIT 

and SCHOOL BOARD OF BROWARD COUNTY,

Appellants,

v.

CABLE NEWS NETWORK, INC., MIAMI HERALD MEDIA COMPANY, SUNSENTINEL COMPANY, LLC, ABC, INC., THE ASSOCIATED PRESS, THE 

BRADENTON HERALD, THE FIRST AMENDMENT FOUNDATION, FLORIDA 

PRESS ASSOCIATION, GANNETT COMPANY, INC., LOS ANGELES TIMES 

COMMUNICATIONS LLC, THE NEW YORK TIMES COMPANY, ORLANDO 

SENTINEL COMMUNICATIONS COMPANY, LLC, BROWARD COUNTY 

SHERIFF’S OFFICE, and

SCOTT ISRAEL, in his official capacity as Broward County Sheriff,

Appellees.

Nos. 4D18-1335

and 4D18-1336

[August 8, 2018]

ON APPELLEES’ MOTION FOR ATTORNEY’S FEES

Consolidated appeals from the Circuit Court for the Seventeenth Judicial 

Circuit, Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. CACE 18-

004429 (09).

Michael J. Satz, State Attorney, and Joel Silvershein, Assistant State 

Attorney, Fort Lauderdale, for appellant, State Attorney’s Office of the 

Seventeenth Judicial Circuit.

Eugene K. Pettis and Debra Potter Klauber of Haliczer, Pettis & Schwamm, 

P.A., Fort Lauderdale, for appellant, School Board of Broward County.

Dana J. McElroy, James J. McGuire, and Jon M. Philipson of Thomas & 

LoCicero, PL, Fort Lauderdale, for appellees, Cable News Network, Inc.; Miami 

Herald Media Company; and Sun-Sentinel Company, LLC, ABC, Inc.; The 

Associated Press; The Bradenton Herald; the First Amendment Foundation; the 

Florida Press Association; Gannett Co., Inc.; Los Angeles Times Communications 

LLC; The New York Times Company; and Orlando Sentinel Communications 

Company, LLC. 
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GROSS, J.

Various media appellants (the “Media”) have filed a motion for appellate 

attorney’s fees under the Public Records Act, Chapter 119, Florida Statutes 

(2018). In a separate opinion, we affirmed the circuit court order requiring 

production of certain video footage taken by security cameras at Marjory 

Stoneman Douglas High School. See State Attorney’s Office v. Cable News 

Network, Inc., No. 4D18-1335 (Fla. 4th DCA July 25, 2018). The motion seeks 

to recover fees from appellants, the State Attorney’s Office of the Seventeenth 

Judicial Circuit and the School Board of Broward County.

We deny the motion for attorney’s fees because neither defendant “unlawfully 

refused to permit a public record to be inspected or copied” within the meaning 

of section 119.12(1)(a), Florida Statutes (2018).

Section 119.12 provides:

(1) If a civil action is filed against an agency to enforce the provisions 

of this chapter, the court shall assess and award the reasonable 

costs of enforcement, including reasonable attorney fees, against the 

responsible agency if the court determines that:

(a) The agency unlawfully refused to permit a public record to be 

inspected or copied; and 

(b) The complainant provided written notice identifying the public 

record request to the agency’s custodian of public records at least 

5 business days before filing the civil action. . . .

(Emphasis added).

This section “is designed to encourage public agencies to voluntarily comply 

with the requirements of chapter 119, thereby ensuring that the state’s general 

policy is followed. If public agencies are required to pay attorney’s fees and costs 

to parties who are wrongfully denied access to the records of such agencies, then 

the agencies are less likely to deny proper requests for documents.” New York 

Times Co. v. PHH Mental Health Servs., Inc., 616 So. 2d 27, 29 (Fla. 1993). “[A] 

prevailing party is entitled to statutory attorney’s fees under the Public Records 

Act when the trial court finds that the public agency violated a provision of the 

Public Records Act in failing to permit a public record to be inspected or copied.” 

Bd. of Trustees, Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120, 

128 (Fla. 2016).

The School Board’s objection to the video footage was not “unlawful” because 

it was based on the “security plan” exemption from disclosure contained at 

section 119.071(3)(a), Fla. Stat. (2018). As we wrote in State Attorney’s Office:
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Because the footage from the surveillance cameras “relates directly” 

to the security system at Douglas, including both its capabilities and 

its vulnerabilities, the footage is confidential and exempt from 

disclosure to the public under sections 119.071(3)(a) and 

281.301(1), unless an exception to the exemption applies.

The School Board’s refusal to permit disclosure was required by statute; it could 

not therefore be “unlawful” within the meaning of section 119.12(1)(a). Only a 

“court of competent jurisdiction” may determine whether the “good cause” 

statutory exception applied to require disclosure. § 119.071(3)(a)3, Fla. Stat. 

(2018). The School Board’s conduct did not become “unlawful” because it 

pursued this unsettled area of the law on appeal.

The Media is not entitled to an award of fees against the State Attorney 

because the State Attorney was never the custodian of the public records here 

at issue. The State Attorney intervened in the action to give voice to the criminal 

investigation information exemption to disclosure. The State Attorney did not 

violate a provision of the Public Records Act in failing to permit a public record 

to be inspected or copied because the State Attorney was never the agency 

responsible for maintaining the public record or complying with Public Records 

requests.

The motion for attorney’s fees is denied.

CONNER and KLINGENSMITH, JJ., concur.

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