On the very first day George Zimmerman faced a judge on charges of murdering Trayvon Martin, it appeared the special prosecutor and Zimmerman's attorney were working together to keep certain records secret.
Right when it appeared that April 12 hearing was over, Special Prosecutor Angela Corey whispered something to Zimmerman's attorney Mark O'Mara -- and the microphones picked it up.
"What about the sealing?" Corey asked O'Mara.
Immediately afterward, O'Mara raised his hand to get Seminole County Judge Mark Herr's attention, and then asked for "a complete sealing" of certain records.
Herr asked the state if it was in agreement. When the state said yes, the judge granted the sealing request.
After the hearing, Local 6's Tony Pipitone reported how the sealing was a violation of Florida law, according to longtime First Amendment attorney Richard Wilson.
"That order is so blatantly over broad that it will not stand any review by any court," Wilson said, adding that there should have been a motion setting forth the basis for sealing the document.
He was right.
Herr's order sealing records was later overturned by Seminole County Circuit Judge Kenneth Lester -- but it took several news organizations to hire attorneys to fight for the public's right to know before that happened.
Now there are new questions about whether Florida law allows Corey to keep the evidence she has in her custody from the public eye.
Lawyers disagree with Corey's position on Sunshine Law
When Corey is asked to disclose her evidence through a public records request, she says the law doesn't allow her to do so because O'Mara hasn't accepted discovery documents yet. Corey believes it's O'Mara's choice as to when she can let the documents become public before trial.
But several lawyers interviewed by Local 6 over the last several days disagree that Corey has the legal right to refuse to disclose more evidence to the public this far along in the process.
On top of that, Corey is required by Florida Sunshine Law to provide a written response when declining to release records, and a non-profit legal foundation told Local 6 the responses from Corey's office don't cut it.
For example, in response to a public records request to Corey for any evidence that "tends to negate the guilt of the defendant," known as exculpatory evidence, Corey's office told Local 6, "The records are exempt (from disclosure requirements) pursuant to Section 119.071(2)(c)1, Florida Statutes."
That statute allows active criminal investigative information to be exempt from public disclosure. But the special prosecutor's response didn't explain, in writing, the reasons why she believes the requested records actually meet the definition of "exempt" active criminal investigative information -- and several lawyers believe that's because they don't.
"The response does not comply with the statutory requirement that the custodian state with particularity the reason for the conclusion that the cited exemption applies to the Requested Records," said attorney Jon Kaney, the General Counsel of Florida's First Amendment Foundation.
Florida's Sunshine Law requires an agency denying access to records be specific about its reasoning, so the member of the public requesting records can challenge the agency's decision to withhold records, if its reasoning for claiming the record is exempt from disclosure requirements doesn't make sense.
Kaney, an expert in public record law, believes the type of records requested don't meet the definition of exempt active criminal investigative information -- and must be released even if Zimmerman's attorney hasn't yet gone to pick up the records himself.
"The records are not exempt because they are required to be given to the defendant at this time," Kaney said, referring to Section 119.011(3)(c)5, Florida Statutes, which explicitly excludes from the definition of criminal investigative information "[d]ocuments given or required by law or agency rule to be given to the person arrested..."
In other words, the Sunshine Law gives two avenues for the public to obtain information previously classified as criminal investigative information. The first avenue is when documents are actually given to a defendant, the second is when a law or agency rule requires the documents to be given.
That statutory definition of criminal investigative information, Kaney believes, when combined with Florida Rules of Criminal Procedure and its requirements that certain documents be given to the defendant, prevent Corey from being able to withhold the requested records as criminal investigative information -- because by definition they are not.
For example, Fla. R. Crim. P. 3.220(b)(4) states: "As soon as practicable after the filing of the charging document the prosecutor shall disclose to the defendant any material information ... that tends to negate the guilt of the defendant as to any offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations."
The charging document was signed and submitted by the special prosecutor on April 11, when Zimmerman was arrested. That means Corey was required to give any exculpatory evidence to Zimmerman as quickly as possible after that date, which prevents any such exculpatory evidence from being classified as exempt criminal investigative information, Kaney believes.
If a member of the public requests Corey disclose such evidence not classified as criminal investigative information, Kaney believes Corey can't deny the request on the basis that she's not required to disclose criminal investigative information.