Fall 2017


Is Your Office Private? The Eleventh Circuit Raises Questions about the Privacy of Meetings between Public Officials and Citizens By: J. David Marsey, Rumberger, Kirk and Caldwell


Florida’s Security of Communications Act, which contains the prohibition on the unlawful interception of pri- vate oral communications without the consent of all participants, has never been crystal clear. The applica- tion of the criminal statute has always hinged on whether the person being recorded had a reasonable ex- pectation of privacy. In the recent decisionMcConough v. Katherine Fernandez-Rundle, the Eleventh Circuit Court of Appeals suggested that public officials must take affirmative steps to voice their intent that a meeting be private questioned whether a public official can have an expectation of privacy when meeting with citizens within the course and scope of performing job duties.


In this case, a citizen met with a police chief to discuss his complaints about a police officer. The meeting was attended by another citizen and several police officials. None of the officials indicated that recording the meeting was prohibited, that the meeting was “off-the-record” or that it was intended to remain private. A citizen recorded a portion of the meeting. A later dispute about what occurred during the meeting resulted in the citizen posting a covertly obtained recording on the internet. The Office of the State Attorney sent the citizen a written warning that he had violated the law and that future postings of surreptitiously recorded conversations may result in prosecution. The citizen sued the Office of the State Attorney alleging a violation of his First Amendment rights. Instead of ruling on the First Amendment issue, the Court held that the stat- ute prohibiting the recording of oral communications did not apply to him, and therefore, the threat to pros- ecute himif he posted additional recordings was without legalmerit.


The Court analyzed the Florida Legislature’s intent when it defined “oral communications” and concluded that the Legislature intended for one to outwardly demonstrate their intent to have a private conversation before they could articulate a reasonable expectation of privacy. In other words, “[t]he Legislature did not want expectations of privacy to count that remained unexpressed.” However, the Florida Supreme Court’s interpretation of the same statute differs significantly. It has opined that a reasonable expectation of privacy depends on one’s actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable. State v. Inciarrano, 473 So. 2d 1272, 1275 (Fla. 1985) (emphasis added). Alt- hough Florida law allows consideration of the circumstances in which the communication occurred, neither the statute itself nor any Florida court interpretation of it requires an express invocation of privacy before the prohibition on covert recording attaches. The Eleventh Circuit’s rationale suggests that one may be rec- orded under any circumstance in which he or she does not expressly claim privacy. There is no known Florida authority supporting this proposition and this holding seems contrary to the intent of the statute.


Additionally, the Court found that the meeting between two citizens and several police officials was a “public meeting” and suggested that Florida’s broad public records and Sunshine laws undermined any argument that the government officials had a reasonable expectation of privacy. The presence of a non-involved, third- party mitigates against a claim of privacy, but it is not itself determinative. Additionally, Florida’s broad pub- lic records laws do not apply to oral communications nor does Florida’s Sunshine law apply to a police chief’s meeting with a citizen. There are no other known cases that interpret Florida law in such a way as to permit the recording of public officials during one-on-one or small group meetings in an official’s office. Indeed, Florida law is replete with exceptions permitting the lawful interception of oral communications, and the Leg- islature could have, but did not, include an exception to allow the recording of oral communications with government employees. See Section 934.03, Florida Statutes.


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