POST-NEWSWEEK STATIONS v. JOHN DOE, et al.,

SUPREME COURT OF FLORIDA

612 So. 2d 549

November 25, 1992, Decided

McDONALD, Justice

In July 1991, the Broward County Sheriff's Office investigated allegations that Kathy Willets and her husband, Deputy Sheriff Jeffrey Willets, were involved in a criminal prostitution scheme. On July 23, 1991, the police obtained a search warrant and searched the Willets' home. Various pieces of evidence were seized, including cassette tapes containing recorded telephone conversations, business cards of alleged customers of Kathy Willets, a Rolodex. containing names and addresses, and other lists stating the names, amounts paid, and sexual notations regarding her customers.

The state charged Kathy Willets with one count of prostitution, Jeffrey Willets with one count of living off the proceeds of prostitution, and charged both with illegal wiretapping. On August 31, 199 1, the Willets filed a discovery request under rule 3.220 of the Florida Rules of Criminal Procedure asking the state to turn over all of the material seized from their home, including the documents identifying the John Does. Numerous John Does, styled as interested parties/witnesses, filed a motion in the trial court to deny public access to pretrial discovery materials. The trial court denied the Does' motion and declared that, once the state attorney provided the discovery documents to the Willets, the documents became records available for public inspection. When the state announced that it was prepared to disclose the material in its possession as required by rule 3.220, the Does moved for a stay of release of the discovery materials.

Five John Does initially submitted sworn affidavits in support of their motions for closure. The affidavits asserted that the affiants were "private" individuals and that release of the information would be defamatory to the Does' personal and professional reputations. All of the affidavits were identical in form and content, except for one which adds a paragraph stating that he sent a letter and his business card to Kathy Willets and spoke to her on the telephone, but claiming that be did not "meet Kathy Willets, travel to her house, or engage or attempt to engage in any illegal activity with her."  The trial judge concluded that people named on the "client list" of a prostitute have no reasonable expectation of privacy as to their identity and ordered the release of the names and addresses contained in the documents.

 The media contends that the Public Records Act establishes a statutory right of access to the pretrial discovery information. The Does, on the other hand, argue that disclosure of the discovery information will violate their right of privacy and that the information should be exempted from the disclosure requirements of the public records law, chapter 119, Florida Statutes (1989).

The Does bear the burden of proving that closure is necessary to prevent an imminent threat to their privacy rights.
Barron recognized that "it is generally the content of the subject matter" that determines whether a privacy interest exists that might override the public's right to inspect the records. The Does assert that the materials at issue include intimate information relating to genital size and sexual performance. Although documents containing such information were seized from the Willets' home, the trial court limited its order to the release of only the names and addresses on the state's witness list. Therefore, the matter we address here is limited strictly to the names and addresses contained on the same list.

According to the Does' reasoning, Florida's constitutional right to privacy protects them from having their names and addresses released to the public: Every natural person has the- right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to firnit the public's right of access to public records and ineetings as provided by law.

Art. 1, § 23, Fla. Const. Since its adoption by the voters of Florida in 1980, the privacy amendment has provided the basis for protecting several types of information and activities from public disclosure. The privacy amendment has not been interpreted to protect names and addresses contained in public records, and we reject the Does' suggestion that the privacy right should be extended that far based on the facts of this case. The Does in the instant case had their names and addresses associated with a criminal prostitution scheme. Any right of privacy that the Does might have is limited by the circumstances which they assert that right.

Even though the names and addresses of people on the witness list of a criminal prosecution may be disclosed to the public, we emphasize that the public does not have a universal right to all discovery materials. Depending on the circumstances and the subject matter, discovery may ôseriously implicate privacy interests of litigants and third parties." Discovery is not intended to be a vehicle for the media to use in its search for newsworthy information. This Court is wary of an outcome that will cause victims and witnesses to withhold valuable discovery information because they fear that personal information will be divulged without discretion. However, we also recognize that this state's open government policy requires that information be available for public inspection unless the information fits under a legislatively created exemption.

For the reasons stated, we find that the Does have failed to show good cause for prohibiting the disclosure of the names and addresses on the witness list. We therefore approve the district court's decision affirming the trial Court's order.

KOGAN, J., dissenting.

In many years as a trial judge I personally had the opportunity to see a large number of cases in which unfounded innuendo, malicious gossip, and irrelevant speculation about private lives found their way into the State's discovery materials. There may be a case for allowing public access to such materials when they only affect the parties to the proceeding itself, public figures, or persons actually charged with a related crime. But the same conclusion is far less supportable when the material affects private persons who are not parties to the proceeding and are not charged with criminal wrongdoing.

The various John Does in this case are not presently charged with any crime. For all we know, any information about them now in the State's possession may be unfounded, distorted, or even contrived. There has been no information or indictment issued against them. That being the case, I cannot conclude that the public records laws ever were meant to subject at least some of these John Does to public scrutiny of their private lives. People have a constitutionally protected interest in their good names.
The Florida Constitution recognizes that people cannot be stripped of such an interest without good and just reason. Art. 1, § 9, Fla. Const. We have recognized, as the majority notes, that the public records laws themselves allow courts to order that discovery documents be withheld if this is the only way to preserve other constitutional rights.

For these reasons, I dissent from the majority's analysis and conclusion. I would remand to the trial court for a determination of whether there is any legitimate public concern in the names, addresses, and other information contained in the State's discovery materials as to each John Doe. I strongly doubt that any legitimate public concern would exist with regard to private individuals not charged with a crime, although there could be a legitimate public interest if any of the material reflects on public figures or persons actually charged with a crime arising from this or a related case.

I am especially troubled by the majority's tacit assumption that people's interest in their good names evaporates merely because of unfounded, unproven, and possibly erroneous information that they have participated in criminal activity. At the very least, I believe that private individuals have a right to require the State at least to commence a criminal prosecution against them before it can release scandalous material the State itself has collected alleging criminal wrongdoing. In effect, the majority authorizes the State to brand such persons as criminals without even offering them the procedural protections guaranteed by our Constitution or a forum for vindication. This is a process more reminiscent of Nathaniel Hawthorne's scarlet letter than modern constitutional law.

I also emphasize that the right to one's good name does not provide any basis for a person to refuse a lawful summons to appear at a deposition or testify at a trial. Rather, the right prohibits the news media and others from using a state-created method of gathering information as a means of prying into the personal lives of private individuals or of transforming unsubstantiated rumor into tabloid headlines.

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