By Robert J. Sniffen & Brian M. Sullivan

The Eleventh Circuit Court of Appeals’ decision in McDonough v. Fernandez-Rundle[1] has immediate and profound implications for public sector officials. On February 7, 2014, a local citizen, James McDonough, met with Homestead Police Department (“HPD”) Police Chief, Alexander Rolle, to discuss complaints he had regarding a HPD officer. Unknown to Chief Rolle, Mr. McDonough used his cell phone to secretly record the conversation, which he subsequently distributed through the Internet. McDonough did not provide advance notice of his intent, and did not seek Chief Rolle’s permission to record the conversation.

Subsequent to the distribution of the recorded conversation, the State Attorney for Miami-Dade County, Katherine Fernandez-Rundle, wrote McDonough a cease and desist letter, advising him that his actions violated the Florida Security of Communications Act (“FSCA”).[2] Fairly summarized, the FSCA requires that any person intending to record a conversation must receive approval from all participants. The letter also warned McDonough that any future violations would subject him to criminal prosecution.

McDonough sued in Federal District Court seeking declaratory and injunctive relief under 42 U.S.C. § 1983, alleging the State Attorney was prohibited from prosecuting him under the FSCA. McDonough claimed that the FSCA did not apply to him, and, even if it did, that it violated his First Amendment rights.

The District Court dismissed McDonough’s claim that the FSCA was, on its face, unconstitutional. McDonough’s alternative contention that, as applied, the FSCA infringed on his First Amendment rights went forward.

The District Court granted the State Attorney’s motion for summary judgment. The District Court applied the First Amendment’s non-public forum analysis and found that it was reasonable to prohibit surreptitious recordings in a police station. McDonough appealed to the Eleventh Circuit, which reviewed the decision de novo.

The Eleventh Circuit reversed the order granting summary judgment in favor of the State Attorney. Significantly, the Court applied a different analysis than that used by the District Court. Rather than treating the case as one involving First Amendment principles, the Court held that the State Attorney’s “threatened prosecution has no basis” under the FSCA itself because none of the participants at the meeting “exhibit any expectation of privacy.”[3] Thus, because the meeting participants did not suggest that the meeting was confidential or “off the record”, or provide notice of certain “ground rules” concerning the meeting, it was perfectly acceptable for McDonough to record the meeting.

The Court also found that the “public meeting” exception to the FSCA applied because McDonough and the individual who accompanied him to the meeting with Chief Rolle were members of the public and expressing a topic of public interest.[4] Chief Judge Carnes wrote a pointed dissent, chiding that the majority opinion “will come as news to the State Attorney and to some of us who have read the various (and varied) Florida appellate court decisions interpreting the [FSCA].”[5]

A petition for rehearing has been filed with the Eleventh Circuit. However, in the meantime, the decision dramatically impacts how public officials meet with members of the public. Was the FSCA designed to apply to one-on-one conversations between public officials and citizens? Is a one-on-one meeting with a member of the public a “public meeting” sufficient to trigger the exception to the requirements of the FSCA?

Until the Court rules on the request for rehearing, public officials and county attorneys are well advised to review the manner in which meetings with citizens are conducted. If the public official does not wish for the meeting to be recorded, he or she should be advised to place ground rules or advance notice of his or her objection to any recording. As awkward as it seems, the McDonough decision leaves little doubt that this type of announcement or forewarning is necessary to evidence the public official’s expectation of privacy.

In addition, the public nature of the meeting must be considered, as well as the subject matter of the meeting, less the public meeting exception to the FSCA apply. Again, seeking advice from the County Attorney’s Office is essential to understanding the public quality of the public official’s meeting.

 

[1] Case No. 15-14642, --- F. 3d ---, 2017 WL 2960724 (July 12, 2017)(link to decision found at http://media.ca11.uscourts.gov/opinions/pub/files/201514642.pdf)

 

[2] Fla. Stat. § 934.03.

 

[3] Opinion at p. 9.

 

[4] Opinion at p. 10.

 

[5] Opinion at p. 13.