A group of media companies—mostly publishers of Florida-based newspapers, as well as a few national outlets—filed a motion on Tuesday to intervene in more than a dozen cases of soliciting prostitution, whose defendants include New England Patriots owner Robert Kraft. The motion was necessary because the same group of defendants filed their own request last week to prevent the release of videos recorded by police inside Orchids of Asia Day Spa in Jupiter, Fla.
In their motion, lawyers for journalists at the Associated Press, ESPN, Gannett (owner of Treasure Coast Newspapers), GateHouse Media (owner of the Palm Beach Post), McClatchy (owner of the Miami Herald), the New York Times, Orlando Sentinel Communications, the Sun-Sentinel company, and TEGNA (owners of WTSP-TV and WTLV/WJXX) explain the many reasons why the massage parlor videos are public records. I’ll go into detail later in this post, but the gist is this—the law in Florida designates these videos (as well as many other police records) as public record and has done so for many years, long before Kraft’s AFC Championship pregame visit for what, according to police documents, sounds like oral sex, followed by a hand job at the same massage parlor the next day.
Here’s some quick catching up before getting into the details of Florida’s public record law, more regularly referred to within the state as the sunshine law: Jupiter police did a long investigation into the Orchids of Asia Day Spa, saying they suspected human trafficking. Advocates for sex workers continue to raise concerns that rates of human trafficking are exaggerated and that such mass arrests also function as anti-sex-work stings. For more on that, I suggest reading Hallie Lieberman’s excellent piece on those very issues. But that’s not the heart of the debate as it relates to public records, no matter how many times Kraft’s legal team brings it up.
As part of the investigation, according to police documents released (under the sunshine law), officers got warrants to place cameras inside the spa, and recorded clients of the spa receiving sexual acts, which the clients then paid for. Those recordings are now police evidence and, under the exact same sunshine law, pieces of police evidence at various stages in the legal process become public record. This is not true in all states—my current residence of California loves hiding police discipline records. Kraft’s home state of Massachusetts is infamously stingy about about making records public. But not Florida. This is true about Florida and has been for a long time. This might have been breaking news to Kraft, it is not if you’re a Floridian.
But as I’ve said before and will reiterate here, Kraft can’t afford to be embarrassed. Or rather, he can, he does have billions of dollars and still will, but he’d really rather not be, and isn’t the whole of having billions of dollars that you can buy your way out of being embarrassed? So Kraft, as well as 14 other men also caught in the investigation, filed a request for a protective order, asking a judge to keep all the evidence in the case—including any videos—from being released. Their arguments were basically that the videos are exempt because they are police intelligence and the court cases are ongoing. In the motion today, the collection of media organizations cite a lot of Florida case law, the state’s own constitution, and the fuller text of the statutes themselves to argue why that’s not how the sunshine law works.
And while lawyers can’t be so glib, I’d like to suggest that a lot of what follows from the legal arguments can be interpreted as: Welcome to Florida, Robert Kraft. Let us explain to you how we do business down here.
First point of order, Floridians are really into public records.
Second point of order: Not only does the law require “exacting scrutiny” to close off a record, it also requires that, if a portion is deemed exempt, that portion is redacted and then the rest of the record still must be released. Therefore, the lawyers wrote, “Under these well-established principles, Defendants have not—and indeed cannot—justify a blanket protective order preventing access to overbroad categories of public records.”
The exemption for criminal intelligence that Kraft and the other defendants tried to cite? This motion points out the exemption for criminal intelligence is ultimately up to “an agency at its discretion.” In other words, the sunshine law gives law enforcement the right to refuse to release certain information if they want to. Law enforcement can also go, nah, and release investigative information it deems necessary. The motion goes on to explain that: “In any event, the information cannot be withheld from the public once it is provided or required to be provided to the Defendants in discovery.”
Wait, there’s more! Previous rulings have held that this exemption is waived once “the information....already has been disclosed to the public.” From the motion:
Which, oh, hey, guess what? “Here, much of the information Defendants seek to protect has already been disclosed to the public,” the motion states. In other words: Welcome to motherfucking Florida, Robert Kraft.
As for Kraft and the other defendants’ concerns about a right to privacy, the arguments by the media refute that with this piece of sunshine law history. Florida’s own state constitution says that the right to privacy “shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” Florida courts also have, according to the motion, “rejected the notion that simply alleging embarrassment alone is sufficient grounds to defeat Public Records Act disclosure mandates.”
In other words: Guess what, Robert Kraft? There’s no exemption in the sunshine law for rich people. It applies to you, too.
The motion is full is below. The next hearing in the case is scheduled for April 9.