Florida/Georgia Personal Injury & Workers Compensation

...§ 943.23 (1982), repealed by Laws 1984, c. 84-258 § 25, eff. Oct. 1, 1984, required an employing law enforcement agency to give notice of employment, termination, inactive status and reinstatement. 2 . The release was not necessary to obtain Bux-ton’s personnel files. Fla.Stat. § 112.533 (1987) (substantively the same as Fla.Stat. § 112.533 (1983), in effect at the time of Buxton’s signed release), provides, in pertinent part: 112.533....

...s Constitution. Because the statute is a content-based restriction which chills speech that “lies near the core of the First Amendment,” Landmark Communications, Inc. v. Virginia, 1 The statute in question, FLA . STAT . ch. 112.533(4), reads as follows: Any person who is a participant in an internal investigation, including the complainant, the subject of the investigation and the subject’s legal counsel or a representative of his or her choice...

...Additionally, a sheriff, police chief, or other head of a law enforcement agency, or his or her designee, is not precluded by this section from acknowledging the existence of a complaint and the fact that an investigation is underway. FLA . STAT . ch. 112.533(4). The proscription of disclosure in this statute applies as long as an investigation is “active.” See id. at ch. 112.533(2)....

...ere they may.” R2-55 at 3. On 22 June 2001, the same day that Cooper’s “Commentary” was published, Dillon swore an affidavit and obtained a warrant for Cooper’s arrest. The affidavit alleged that Cooper violated F LA. S TAT. ch. 112.533(3)4 by disclosing in his 4 Because the version of FLA . STAT . ch. 112.533(3) that was in place when Dillon obtained the warrant gave a law enforcement officer the right to inspect his or her own personnel file at any time, the district court found that the citation to § 112.533(3) in Dillon’s affidavit was a “scrivener’s error” and that Dillon meant to charge Cooper with a violation of § 112.533(4). 4 articles two items of information he obtained as a participant in an internal investigation—that Christensen was the subject of an official investigation and that Dillon had forty-five days to respond to the FDLE....

...Following his arrest, Cooper was held in the county jail for approximately three hours and then released on his own recognizance. The State Attorney subsequently declined to pursue the charges against Cooper because the statute under which Cooper was charged, F LA. S TAT. ch. 112.533(3), had been declared unconstitutional. On 21 December 2001, Cooper filed suit for declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983 for Dillon’s enforcement of F LA. S TAT. ch. 112.533(4) allegedly in violation of his First, Fourth, and Fourteenth Amendment rights....

...He also asserted he was entitled to summary judgment in his official capacity because Cooper had failed to show that Dillon’s enforcement of the statute constituted a deprivation of constitutional rights. Cooper then moved R2-70 at 3 n.11. Prior to 1990, FLA . STAT . ch. 112.533(3) outlawed in broader terms the conduct outlawed by the current version of FLA . STAT . ch. 112.533(4). This pre-1990 version of § 112.533(3) was found unconstitutional in Hickox v. Tyre, No. 87-8324, slip op. at 1 (S.D. Fla. Oct. 15, 1990). On appeal, Cooper argues as he did before the district court that Dillon was in fact attempting to charge him with violating the pre-1990 version of § 112.533(3) even though it had been found unconstitutional. 5 for partial summary judgment on the ground that F LA. S TAT. ch. 112.533(4) was unconstitutional. The magistrate judge’s recommendation and report recommended that Cooper’s motion for partial summary judgment be granted because F LA. S TAT. ch. 112.533(4) was an unconstitutional content-based restriction on speech....

...On appeal, Cooper argues that the statute is unconstitutional and that Dillon’s enforcement of it subjected Dillon in his individual and official capacities to liability under 42 U.S.C. § 1983. II. DISCUSSION A. Constitutionality of F LA. S TAT. ch. 112.533(4) “The constitutionality of a statute is a question of law subject to de novo review.” Doe v....

...has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791, 109 S. Ct. at 2754. 11  Based on the foregoing, contrary to Cooper’s contentions, F LA. S TAT. ch. 112.533(4) cannot be characterized as a prior restraint on speech because the threat of criminal sanctions imposed after publication is precisely the kind of restriction that the Court has deemed insufficient to constitute a prior restraint....

...participant of an investigation of a judge to be content-based); Baugh v. Judicial Inquiry & Review Comm’n, 907 F.2d 440, 444 (4th Cir. 1990) (same). 2. Application of Strict Scrutiny Based on our characterization of F LA. S TAT. ch. 112.533(4) as a content- based restriction, it must be subjected to strict scrutiny....

...Based on our review of Supreme Court precedent, the state interests proposed by Dillon are not sufficiently compelling to justify the statute’s abridgment of First Amendment freedoms.5 We examine each of the state interests 5 Because FLA . STAT . ch. 112.533(4) is constitutionally deficient for lack of compelling state interests, we need not decide whether the statute is narrowly tailored to serve those interests....

...First, the Court has rejected the proposition that the maintenance of the integrity of an investigative process constitutes a sufficiently compelling justification for a content-based restriction on speech such as imposed by F LA. S TAT. ch. 112.533(4)....

...While the Court has recognized that secrecy and confidentiality may be constitutionally permissible in the context of grand jury proceedings, see Butterworth, 494 U.S. at 629-30, 110 S. Ct. at 1380 (noting the importance of secrecy in grand jury proceedings while the grand jury is STAT . ch. 112.533(2)(b)....

...Judicial Inquiry & Review Bd., 784 F.2d 467, 478 (3rd Cir. 1986) (finding potential for permanent ban on speech where a participant in a judicial misconduct proceeding could not divulge certain information until the government chose to make the charges public). Because FLA . STAT . ch. 112.533(4) is not supported by a compelling state interest, however, we need not decide whether this dynamic renders the statute constitutionally infirm. 15 impaneled), or in a trial setting, see Seattle Times Co., 467 U.S....

...keep matters confidential if they do not want them to be disseminated). Accordingly, the proposed interest in safeguarding the integrity of the investigative process does not constitute a sufficiently compelling state interest to justify the proscriptions in F LA. S TAT. ch. 112.533(4). Second, the interest in protecting wrongfully accused officers from defamation is insufficient to sustain the statute....

...Sullivan, 376 U.S. at 279-80, 84 S. Ct. at 726 (detailing the standard for a libel action that should be used for redress of injury to 17 official reputation). Moreover, the argument that F LA. S TAT. ch. 112.533(4) can protect the reputations of law enforcement officials is illusory: Cooper could have connected Christensen’s name with calumny without violating the statute by simply publishing the reasons for which he filed a complaint against Ch...

...190, 197 (1941). In a free society, the public’s trust in an official’s reputation is won by greater transparency, not the silencing of criticism. Thus, the interest of safeguarding the reputations of accused officers purportedly served by F LA. S TAT. ch. 112.533(4) is not sufficiently compelling to justify the statute’s restrictions. Third, Dillon cites safeguarding the privacy interests of targets, witnesses, and complainants in the investigation as a compelling state interest....

...public documentation or other exposure of private information.” Cox Broad. Corp., 420 U.S. at 496, 95 S. Ct. at 1047. Accordingly, the privacy interests of targets, witnesses, and complainants are not sufficiently compelling to uphold the restrictions in F LA. S TAT. ch. 112.533(4). Because the curtailment of First Amendment freedoms by F LA. S TAT. ch. 112.533(4) is not supported by a compelling state interest, the statute fails to satisfy strict scrutiny and unconstitutionally abridges the rights to speak, publish, and petition government....

...muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. 384 U.S. 214, 219, 86 S. Ct. 1434, 1437 (1966). By criminalizing the disclosures made in Cooper’s articles, F LA. S TAT. ch. 112.533(4) succeeded in penalizing the very kind of expression which the Mills Court declared was constitutionally 19 essential....

...at 392, 82 S. Ct. at 1374. We do not lightly invalidate an act of a state legislature. See Georgia Cemetery Ass’n v. Cox, 353 F.3d 1319, 1321 (11th Cir. 2003) (per curiam). But, by proscribing speech critical of government officials, F LA. S TAT. ch. 112.533(4) purports to regulate speech which “lies near the core of the First Amendment” without a compelling justification for doing so. Landmark Communications, Inc., 435 U.S. at 838, 98 S. Ct. at 1541. As such, we find F LA. S TAT. ch. 112.533(4) to be an unconstitutional abridgment of core First Amendment rights. 20 B. Cooper’s § 1983 Claims Now that we have determined that F LA. S TAT. ch. 112.533(4) is unconstitutional, we turn to Cooper’s claims that Dillon’s enforcement of the statute subjected him to liability under § 1983 6 in his individual and official capacities....

...suit, officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121 S. Ct. at 2158. Based on the foregoing, Dillon was eligible for qualified immunity because he was acting under his discretionary authority in enforcing F LA. S TAT. ch. 112.533(4) and its unlawfulness was not clearly established....

...Moreover, Cooper’s alternative argument—that Dillon actually meant to charge him with a violation of the pre-1990 statute after it had been declared unconstitutional—similarly fails because the district court found, and we agree, that the reference to § 112.533(3) in Dillon’s affidavit was a “scrivener’s error” and therefore not a reference to the pre-1990 statute.7 Accordingly, Dillon is entitled to qualified immunity in his individual capacity as to Cooper’s § 1983 claims. 2....

...plaintiff has the burden to show that a deprivation of constitutional rights occurred 7 As Cooper notes on appeal, the district court held a hearing to resolve a factual dispute on this issue. Because the pre-1990 version of the statute was numbered at § 112.533(3) and outlawed similar conduct as the current § 112.533(4), the district court found that Dillon inadvertently entered the wrong statute number on his affidavit. The State Attorney, however, was apparently under the impression that Dillon meant to charge Cooper with a violation of the pre-1990 version of § 112.533(3) because he declined to prosecute on the grounds that the statute was deemed unconstitutional in Hickox....

...embaur, 475 U.S. at 480, 106 S. Ct. at 1298. Based on the foregoing, we must determine whether Dillon had final policymaking authority for the City of Key West in law enforcement matters and whether his decision to enforce F LA. S TAT. ch. 112.533(4) against Cooper was an 25 adoption of “policy” sufficient to trigger § 1983 liability....

...ity for the City of Key West in matters of police procedure and law enforcement and thus his actions could subject the city to § 1983 liability. Second, based on this authority, we find that Dillon’s decision to enforce F LA. S TAT. ch. 112.533(4) constituted a deprivation of constitutional rights sufficient for § 1983 liability....

...1991), Key West cannot be liable for enforcing an unconstitutional state statute which the municipality did not promulgate or adopt. First, § 1983 liability is appropriate because Key West did adopt the unconstitutional proscriptions in F LA. S TAT. ch. 112.533(4) as its own. See K EY W EST, F LA., C ODE OF O RDINANCES § 42-1 (“It shall be unlawful for any person to commit, within the city limits, any act which is or shall be recognized by the laws of the state as an offense.”)....

...ivation of Cooper’s constitutional rights which rendered the municipality liable under § 1983. III. CONCLUSION In this appeal, Cooper argued that the district court erred in finding that F LA. S TAT. ch. 112.533(4) was a permissible time, place, and manner regulation of the freedoms of speech and of the press and the right to petition government. As we have explained, however, F LA. S TAT. ch. 112.533(4) is a content-based restriction that chills the exercise of fundamental First Amendment rights without a compelling justification for doing so and accordingly is unconstitutional....

...However, neither the statute nor any other applicable law explicates the function of the board and there is nothing to indicate that a policeman has a right to have his dismissal reviewed by the board. In fact, the only statutory provision containing a possible explanation of the duties of the complaint review board is Section 112.533, which provides: "Receipt and processing of complaints....

...int review board be available to the officer under such circumstances, to make reference to Subsection 112.532(2), Florida Statutes, in that regard. The lack of such a reference is but one additional factor that inclines us to the view that Sections 112.533 and 112.532(2) are to be utilized for disposition of complaints made by outside persons and are not intended to provide a forum for any issue other than whether a particular complaint has a basis in fact....

...Appellants sought as an alternative to mandamus, injunctive relief, in reliance on Section 112.534. This section operates only to immediately restrain violation of the rights of police officers by compelling performance of the duties imposed by Sections 112.531 to 112.533....

...(1)." Subsections (b) through (n) of section 119.07(3) provide for specific exemptions from disclosure. The legislature has enacted many other exceptions now contained in the 1983 Florida statutes. See, e.g. § 63.162 (adoption proceeding records); § 112.533(2) (law enforcement complaint records); § 213.053(2) (tax records); § 229.551(3)(k) (student achievement test records); § 230.2315(3) (educational alternative program records); § 231.262(4) (teacher and administration complaint records...

...As to the leaking of allegedly harmful and misleading statements to the media prior to completion of the Internal Security investigation, no immunity lies. Information concerning an ongoing investigation of a law enforcement officer, by legislative mandate, is to remain confidential. Florida Statutes § 112.533(2)(a)....

...Florida courts have applied section 90.304 to a statutory presumption, absent explicit language in the statute, in the interpretation of only three statutes: section 658.56(2), Florida Statutes (1987), (which has since been repealed), section 61.075(5)(a)5, Florida Statutes (1997), and section 112.533, Florida Statutes (Supp....

...90.303, or one affecting the burden of proof, governed by section 90.304. The final instance of a Florida Court applying section 90.304 to a statutory presumption absent explicit language in the statute occurred with regard to the interpretation of section 112.533, Florida Statutes (Supp.1990). In City of Delray Beach v. Barfield, 579 So.2d 315, 317 (Fla. 4th DCA 1991), the Fourth District interpreted section 112.533(2)(b), governing complaints against a law enforcement officer, which provided: The text of this statutory presumption is: For the purposes of this subsection, an investigation shall be considered active as long as it is continuing with a reasonable, good faith anticipation that an administrative finding will be made in the foreseeable future. An investigation shall be 'presumed to be inactive if no finding is made within ⅛5 days after the complaint is. filed. § 112.533(2)(b), Fla....

...Insurance Company of the State of Pennsylvania v. Estate of Guzman, 421 So.2d 597, 601 (Fla. 4th DCA 1982). Barfield, 579 So.2d at 318 . The Fourth District, however, failed to provide any rationale or reasoning to support its conclusion that section 90.304 was applicable to section 112.533(2)(b)....

...Section 112.532(3) gives an officer the right to bring a civil suit against another. Section 112.532(4), (5) requires notice of disciplinary action as well as a prohibition against disciplinary action as a result of an officer exercising his rights under Part VI. Section 112.533 establishes a system for the receipt and processing of outside complaints made against an officer....

...The legislature requires police officers to take continuing education courses to retain their officer status. § 943.135, Fla. Stat. (1989). It also requires every law enforcement agency to have a system to receive and review complaints concerning officer misconduct. § 112.533, Fla....

...possesses the authority to receive, investigate, and dispose of complaints against his personnel. Section 30.53, Florida Statutes, also preserves the Sheriff's independence in selecting, retaining, or firing personnel and setting salaries. Finally, section 112.533 requires the Sheriff to establish and operate a system for receiving and investigating complaints against his deputies that fully complies with the procedures set forth in section 112.532, Florida Statutes. These latter statutes, together with the other provisions in part VI of chapter 112, are commonly referred to as the Law Enforcement Officer Bill of Rights. Hinn v. Beary, 701 So.2d 579, 580 (Fla. 5th DCA 1997). Enacted in 1974, section 112.533 was amended in chapter 2003-149, Laws of Florida, which explains in the title that the procedure set forth in these statutes *608 "shall be the exclusive procedure used by law enforcement and correctional agencies for investigation of complaints against law enforcement ......

...edure for investigating a complaint against a law enforcement and correctional officer and for determining whether to proceed with disciplinary action or to file disciplinary charges, notwithstanding any other law or ordinance to the contrary. " [3] § 112.533(1)(a), Fla....

...r correctional officer" to "forward the complaint to the employing agency of the officer who is the subject of the complaint for review or investigation" within five business days of initiating or receiving the complaint. Ch. 2007-110, Laws of Fla.; § 112.533(1)(b)1., Fla. Stat. (2008). "Political subdivision" is expressly defined to include counties and any board, commission or other "agency or unit of local government created or established by law or ordinance" by a local government. § 112.533(1)(b)2., Fla. Stat. (2008). Legal Analysis A. Plain Meaning of Section 112.533, Florida Statutes....

...5th DCA 2008): The courts' job in construing a statute is to give effect to the Legislature's intent. State v. J.M., 824 So.2d 105, 109 (Fla. 2002). To determine legislative intent, courts look first to the plain language of the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). Section 112.533, as amended in 2003 and 2007, is unambiguous....

...entity authorized to investigate that complaint. [4] This *609 is clear from: (1) the title language of chapter 2003-149, designating the investigation required by chapter 112 as the "exclusive procedure" for investigation; (2) the language added to section 112.533 in 2003, mandating that the investigation authorized by chapter 112 "shall be the procedure" for investigating complaints against local law enforcement "notwithstanding any other law or ordinance to the contrary;" and (3) the language added to section 112.533 in 2007, directing any local governmental entity that receives or initiates a complaint against a local law enforcement officer to forward it to the employing agency for investigation in accordance with chapter 112....

...g an independent board to review citizen complaints against the Sheriff's deputies, without first abolishing the constitutional office of sheriff, is "inconsistent" with general law. [5] The answer seems clear to us in light of the plain language of section 112.533, Florida Statutes. Because section 112.533 limits the investigation of complaints against law enforcement officers by local government to the employing agency's investigation, the charter provisions and ordinance that establish an additional procedure for investigating these complaints necessarily and directly conflict with the statute....

...er the city could create a board with the authority to "receive, investigate and make recommendations regarding complaints of police officer misconduct independent of the internal affairs procedures established by the [police department] pursuant to section 112.533(1), Florida Statutes." Beginning with the presumption that such ordinances and charters were valid, the Attorney General concluded that the statute provided the "exclusive means to investigate complaints against law enforcement office...

...*610 Subsequently, in Opinion of the Attorney General of Florida 2006-35 (2006), the Attorney General reached the same conclusion in a formal opinion, finding that the Miami-Dade Police Department was the "exclusive" agency responsible for receiving, investigating and determining complaints against its officers pursuant to section 112.533. Although the County cites to two older opinions of the Attorney General, [7] they both predate the 2003 and 2007 amendments to section 112.533, and can therefore offer no insight on a county's authority under current law....

...Timoney dealt with a city police chief, a law enforcement officer expressly exempted from the chapter 112 investigation. See § 112.531(1), Fla. Stat. (2008). Accordingly, from our reading of Timoney, it seems clear that the local board's authority to investigate a complaint in light of section 112.533 was never raised as an issue in that case. In fact, section 112.533 is neither cited nor discussed in Timoney....

...677, 10 So.2d 307, 309 (1942) ("Municipalities in Florida are not subdivisions of the state as are counties."). [3] The statute does, however, provide an express exception authorizing investigation by the Criminal Justice Standards and Training Commission. § 112.533(1)(a), Fla....

...ty cannot enact an ordinance that directly conflicts with a state statute." Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (Fla.2008). [6] Based on our finding that the charter and ordinance directly conflict with the plain language of section 112.533, we need not conduct a separate preemption analysis....

...[8] Timoney does contain language suggesting that nothing in chapter 112 prohibits an "independent, external investigation" by a local governing board of a complaint against a law enforcement officer. If this was an intended conclusion in Timoney, we believe it to be in error—as inconsistent with the plain language of section 112.533. Again, however, the argument based upon section 112.533 does not appear to have been made in Timoney....

...ion. [Id. ¶ 227]. 4 Plaintiff has alleged that his speech was chilled because he understood the letter and intake form to mean that he' could not talk to anyone about what happened. [DE 99 ¶ 234], In 2005, the Eleventh Circuit held that Fla. Stat. § 112.533 (4) is an “unconstitutional abridgement of core First Amendment Rights.” [Id. ¶ 229]; Cooper v. Dillon, 403 F.3d 1208, 1219 (11th Cir.2005). Even so, the statute remains on the books as it has not been repealed. Fla. Stat. § 112.533 (4)....

...er detention or search based upon gender identity], or retaliated against because they have filed a complaint.” [DE 109 ¶ 54]. It is also undisputed that the Department, never took any steps to charge or prosecute Plaintiff pursuant to Fla. Stat. § 112.533 ....

...of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed.R.Evid. 702. . The statute states that violation constitutes only a "misdemeanor of the first degree.” Fla, Stat. § 112.533(4).

...on, 871 F.2d at 1045-46. In Buxton, the state agency had not gone out of its way to publicize the events surrounding Buxton's discharge; instead, the agency had released Buxton's personnel records as it was required under Florida Statutes § 119 and § 112.533....

...re to follow the statute was intended. Any reliance Plaintiff has on Fla. Stat. § 112.532 is entirely erroneous as Fla. Stat. § 112.534 makes it clear that injunctive relief is the only remedy for violations of § 112.532. Additionally, Fla. Stat. § 112.533(1) directs every law enforcement agency to create a system for the "receipt, investigation, and determination of complaints received by such agency from any person ...." It then goes on to establish certain procedures that each agency must incorporate into its investigatory process. Additionally, Fla. Stat. § 112.533(4) creates criminal liability for anyone who violates the privacy requirements of this statute....

...Palm Beach County, 877 So.2d 8, 12 (Fla. 4th DCA 2004) (holding that pre-termination panel was a "board" pursuant to the Sunshine Law because it exercised decision-making authority). Further, because the memoranda were related to an IA investigation, they were confidential. Section 112.533(2)(a), Florida Statutes (2008), discusses IA investigations and states as follows: A complaint filed against a law enforcement officer or correctional officer with a law enforcement agency or correctional agency and all information ob...

...indicate that a policeman ha[d] a right to have his dismissal reviewed by the board." Id. at 64. The Migliore court then concluded that "the only statutory provision containing a possible explanation of the duties of the complaint review board" was section 112.533, Florida Statutes (1981), which provided, "Receipt and processing of complaints.—Every agency employing law enforcement officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person." 415 So.2d at 64 (quoting § 112.533, Fla....

...] a law enforcement officer with a means of vindicating his actions and his reputation against unjust and unjustifiable claims made against him by persons outside the agency which employ[ed] him." Id. The court explained that sections 112.532(2) and 112.533, Florida Statutes (1981), were "to be utilized for disposition of complaints made by outside persons and [were] not intended to provide a forum for any issue other than whether a complaint has a basis in fact." Id....

...an action for damages." Id. at 1128. The Migliore court also addressed this provision, observing that it "operate[d] only to immediately restrain violation of the rights of police officers by compelling the performance of the duties imposed by [s]ections 112.531 to 112.533." 415 So.2d at 65....

...There, when speculating as to the function of a complaint review board as described in section 112.532(2), the District Court of Appeal looked to the phrase "receipt, investigation, and determination of complaints received by such employing agency from any person." § 112.533(1)(a), Fla....

...f Rights enacted in sections 112.531-.535, Florida Statutes, during its investigation of the instant matter. Mr. Mullins argues that the Sanford Police Department commenced an internal investigation of him in the absence of a formal complaint. While section 112.533(1), Florida Statutes (2003), provides that every law enforcement agency shall establish a system for the receipt, investigation, and determination of complaints received by the agency, it does not mandate the receipt of a formal citizen complaint before initiating an internal investigation of a law enforcement officer. See generally Op. Atty. Gen. Fla. 93-61 (1993) (opining that section 112.533 applies to complaint filed with employing agency by any person, whether within or outside the agency)....

...John Lewis Public Safety Director Department of Public Safety One Beach Drive, Southeast Suite 210 St. Petersburg, Florida 33701 Dear Mr. Lewis: On behalf of the City of Sarasota Public Safety Department you ask substantially the following question: Do the provisions of s. 112.533 , F.S., apply to an investigation of a police officer who is the subject of a complaint by someone within the employing agency? In sum: Section 112.533 , F.S., would appear to apply to complaints filed with the employing agency by any person, whether within or outside the agency. Section 112.533 , F.S., as amended by s....

...ing outside the law enforcement agency or may be read to include complaints from a person within the agency. You have brought to this office's attention the case of Migliore v. City of Lauderhill, 1 in which The Supreme Court of Florida, considering s. 112.533 , F.S....

...112.532 (2), concluded that such boards were not created to review disciplinary action against police officers. In Migliore, The Supreme Court of Florida adopted as its own an opinion from the Fourth District Court of Appeal in which that court concluded "[s]ections 112.533 and 112.532 (2) are to be utilized for disposition of complaints made by outside persons and are not intended to provide a forum for an issue other than whether a particular complaint has a basis in fact." 2 The district court in Migliore considered whether two police officers could use the complaint review board process in s. 112.532 (2), F.S., to review their dismissals from the force. The court concluded that s. 112.533 , F.S....

...112.532 (2), F.S. As stated by the court, the statute provides a law enforcement officer with "a means of vindicating his actions and his reputation against unjust and unjustifiable claims made against him by persons outside the agency which employs him." 3 Section 112.533 , F.S....

...(1981), contained only the following provision: "Every agency employing law enforcement officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person." Subsequently, s. 112.533 , F.S., was amended to make the complaint and all information obtained as a result of the investigation exempt from public disclosure under s. 119.07 , F.S. 4 These amendments are the later expression of the Legislature and would control. 5 While the district court read ss. 112.532 (2) and 112.533 , F.S....

...6 Thus, as has been subsequently determined by this office, complaint review boards may be used only for the disposition of complaints made by persons outside the agency. 7 You refer to AGO 83-90, in which this office concluded that the confidentiality provisions in s. 112.533 , F.S., applied to complaints filed by anyone, regardless of whether the complainant is a member of the public or of another agency or of the employing agency. In AGO 83-90, this office considered the language in s. 112.533 , F.S., as amended by Ch....

...was sustained. 8 Clearly, the Legislature was aware of the distinction between complaints filed by citizens outside a law enforcement agency and those filed by members of the agency, and decided to treat them the same under the amended provisions of s. 112.533 , F.S. The amended provisions in s. 112.533 , F.S., have not been addressed by the judiciary, making it unclear as to how this statute, since its amendment, might be interpreted by the Supreme Court of Florida. Given the history of the amendments to the statute, however, it would appear that s. 112.533 , F.S., is applicable to all complaints, whether they originate from within or outside the agency. Accordingly, as a result of amendments subsequent to the Migliore decision, s. 112.533 , F.S., may apply to investigations of complaints made by persons outside or inside the employing agency. Sincerely, Robert A. Butterworth Attorney General RAB/tls 1 431 So.2d 986 (Fla. 1983). 2 Migliore v. City of Lauderhill, 415 So.2d 62 , 64 (4 D.C.A. Fla., 1982). 3 415 So.2d at 64 . 4 Section 112.533 (2), F.S....

...ction, demotion, or dismissal, shall be informed of the nature of the investigation prior to any interrogation and shall be informed of the names of all complainants. This statutory provision has remained unchanged since the Migliore decision, while s. 112.533 , F.S., has been expanded to include both internal as well as external complaints, as evidenced by s. 112.533 (3), F.S., stating: Any person who participates in an internal investigation ....

complaint filed against the officer pursuant to section 112.533, Florida Statutes, does that notice signal

law enforcement and correctional officers. Section 112.533(1), F.S. (1990 Supp.), requires every agency

...ersion of the Florida Statutes unless otherwise indicated. 2 The parties agreed below to refer to the officers by these pseudonyms even though the City disputed the Union’s claim that the identity of the officers was confidential under sections 112.533(2)(a) or 112.534(1)(e)....

...refer to the officers by pseudonyms under the circumstances of this case because that issue is not before us. 3 112.534” to the police chief. The notice alleged that, in violation of sections 112.532 and 112.533, Officer A was not provided a complete copy of the investigative file and that non-law enforcement personnel (namely the HR department employee) participated in the internal affairs investigation....

... Several days later, Officer B submitted a written “Notice of Intentional Violation and Demand for Compliance Review Hearing Pursuant to Florida Statute 112.534” to the police chief. The notice alleged that, in violation of sections 112.532 and 112.533, Officer B was not provided a complete copy of the investigative file (namely, the polygraph examination results) and that the investigation exceeded 180 days....

...Specifically, the court observed that: This section [section 112.534, Florida Statutes (1981)] operates only to immediately restrain violation of the rights of police officers by compelling performance of the duties imposed by Sections 112.531 to 112.533. Thus, where an officer under investigation is being interrogated without benefit of counsel, the agency may 13  be restrained from violating his right to counse...

...complaints because the source of the complaint has no bearing on most of the rights afforded by the LEO Bill of Rights. See, e.g., § 112.532(1) (rights during interrogation), (4) (right to advance notice of disciplinary action), (5) (protection against retaliation), Fla. Stat.; § 112.533(2) (confidentiality of complaints),6 (3) (right to inspect personnel file), Fla....

...boards provided for in section 112.532(2), Florida Statutes (1981), was to review disciplinary action against a law enforcement officer. See 415 So. 2d at 64. The court explained that the only statute providing a possible explanation of the function of the boards is section 112.533, Florida Statutes (1981), which requires each law enforcement agency to have a system to investigate and determine “complaints received by such employing agency.” Id....

...outside the agency.” Id. at 494-95.8 The court also explained that PERC lacked 7 This reference to section 112.534 is an apparent scrivener’s error because the Migliore court was construing the phrase “complaints received by such employing agency” in section 112.533....

...See 415 So. 2d at 64. 8 We recognize that McQuade’s reliance on Migliore for this proposition is inconsistent with several opinions in which the Attorney General relied on statutory amendments adopted after Migliore to conclude that the language in section 112.533 referring to the receipt of complaints applies to both internal and external complaints....

...5th DCA 2006) (citing Attorney General Opinion 93-61 for the proposition that the LEO Bill of Rights applies to both internal and external complaints). However, the amendments referred to by the Attorney General did not modify the specific statutory language relied upon by the court in Migliore. Compare § 112.533, Fla....

...the subject of an internal complaint. We recognize that the McQuade court stated that “Migliore has been cited for receipt, investigation, and determination of complaints received by such employing agency from any person.”) (emphasis added) with § 112.533(1)(a), Fla. Stattute (2009) (“Every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person, w...

...s applies only when the officer is under investigation based upon an external complaint. 21 violation of the rights of police officers by compelling performance of the duties imposed by Sections 112.531 to 112.533”). Likewise, the issue in Kelly was not whether the LEO Bill of Rights applies to internal complaints....

substantially the following question: Does section 112.533(3), Florida Statutes, prohibit a chief of police

...e right of law enforcement officers or correctional officers to have notice of disciplinary action; 9 and the prohibition against retaliatory action being taken against law enforcement officers and correctional officers who exercise their rights. 10 Section 112.533 (1), Florida Statutes (1996 Supplement), provides that "[e]very law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by...

...ed system for resolving complaints against law enforcement officers: receipt of the incoming complaint, an investigation of the substance of that complaint, and a determination of whether to proceed with disciplinary action or file charges. Although section 112.533 (2), Florida Statutes, establishes the composition of complaint review boards, it does not state when and how such boards should function....

...'s employing agency has made its initial findings. Part VI, Chapter 112 , Florida Statutes, is silent as to the procedures to be followed once an employing agency has made a finding regarding a complaint filed against a law enforcement officer under section 112.533 (1), Florida Statutes....

...86-26 (1986). 6 See , Ops. Att'y Gen. Fla. 86-91 (1986) and 75-41 (1975). 7 Section 112.532 (2), Fla. Stat. 8 Section 112.532 (3), Fla. Stat. 9 Section 112.532 (4), Fla. Stat. 10 Section 112.532 (5), Fla. Stat. 11 See , Op. Att'y Gen. Fla. 93-61 (1993). 12 Section 112.533 (2)(a), Fla. Stat. (1996 Supp.). 13 The courts and the Attorney General's Office have expressed frustration over the absence of any legislative direction regarding the type of system required by s. 112.533 , Fla....

...ablished to carry out the statutory responsibility delegated by the statute. See, e.g ., Ujcic v. City of Apopka , 581 So.2d 218 (Fla. 5th DCA 1991); Op. Att'y Gen. Fla. 76-38 (1976); Inf. Op. of February 28, 1997, to Chief Dennis R. White. 14 See , s. 112.533 (2)(c), Fla....

...During cross-examination of the arresting officer, defense counsel asked whether the officer was under internal review investigation for actions in other cases. Before the witness could respond, the judge dismissed the jury and declared a mistrial, finding that the question violated section 112.533(2), Florida Statutes (1987)....

...Under these circumstances, the mistrial was inappropriate and a new trial would place Hernandez in renewed jeopardy. Consequently, the trial court should have granted the motion to dismiss, and because it failed to do so, the circuit court should have granted the petition for writ of prohibition. Reversed and remanded. . Section 112.533(2), Florida Statutes (1987), makes the disclosure of information concerning an internal investigation by a law enforcement agency a misdemeanor....

the duties of the complaint review board is Section 112.533. . . ."415 So.2d at 64. The court thus interpreted

...ions for writ of mandamus to obtain copies of investigative files on two Palm Beach Sheriffs Office (“PBSO”) deputies. In both cases, the PBSO contended that its internal investigation had not concluded and, therefore, disclosure was exempted by section 112.533(2)(a), Florida Statutes (2000)....

...ic records. The PBSO responded that their internal investigation was not complete. Appellant then filed a petition for writ of mandamus, alleging that the investigation had reached a point where disclosure was required, and the exemption provided by section 112.533(2)(a) no longer applied....

...fficer regarding the pre-disciplinary hearing, the investigation stage was concluded and the exemption from public disclosure ceased to exist. We agree with the court’s conclusion. With respect to complaints filed against law enforcement officers, section 112.533(2)(a) provides an exemption from the required disclosure of public records under Chapter 119, Florida Statutes (2000), until the investigation is complete: A complaint filed against a law enforcement officer ......

...Notwithstanding the foregoing provisions, the officer who is the subject of the complaint may review the complaint and all statements regardless of form made by the complainant and witness immediately prior to the beginning of the investigative interview. § 112.533(2)(a), Fla....

...It then gave notice of the opportunity for a hearing prior to any disciplinary action being taken as a result of the investigation. We affirmed the trial court’s order requiring disclosure of the investigation records, concluding that the use of the word “completed” met the requirements of section 112.533(2)(a)2....

...Discipline is not an accepted fact at this point. There is no “finding to proceed with disciplinary action or to file charges.” Therefore, we conclude that the trial court correctly determined that the internal investigation file was still subject to the exemption of section 112.533(2)....

...General (“OIG”) appeal from an order granting summary final judgment in favor of the Dade County Police Benevolent Association (“PBA”) on its claims for declaratory relief and mandatory injunction. Specifically, the court below found that section 112.533 of the Florida Statutes confers exclusive authority on the Miami-Dade County Police Department (“MDPD”) to investigate any and all complaints against its police officers thereby precluding the OIG from conducting an independent...

...t an investigation into the activities 4 of MDPD officers as the MDPD “was the ‘exclusive’ agency responsible for receiving, investigating and determining complaints against its officers pursuant to Section 112.533, Florida Statutes.” The trial court ultimately agreed, and relying on the decision of our sister court in Demings v....

...5th DCA 2009), granted summary judgment precluding issuance of the OIG’s report: 1. The Miami-Dade Police Department is the exclusive agency responsible for receiving, investigating and determining complaints against its sworn police officers pursuant to Section 112.533, Florida Statutes. 2....

...5th DCA 2009). 3. The Miami-Dade County Office of the Inspector General shall remove OIG Report IG09-96 from its website and shall refrain from prospectively publishing said report in its current form. . . . Because we find that section 112.533 does not preclude an agency other than the MDPD from investigating MDPD police officers for non-disciplinary complaints, and decline to find that Demings requires us to hold otherwise, we disagree and we reverse....

...01A(20) of the Miami-Dade County Home Rule Charter and section 2-1076 of the Miami-Dade County Code). The PBA’s claim here is that the OIG’s investigative authority is unenforceable as to investigations involving police officers because section 112.533 of the Florida Statutes provides the exclusive means for receiving, investigating and determining any and all complaints against MDPD personnel. We disagree. Section 112.533 is not the exclusive means for investigating and determining complaints against the MDPD because neither the charter provision creating the OIG nor the ordinance according it investigative powers is preempted by or conflicts with that provision. In Phantom of Brevard, Inc....

...In cases where the Legislature expressly or specifically preempts an area, there is no problem with ascertaining what the Legislature intended. Tallahassee Mem’l, 681 So. 2d at 831. Id. No such intention is evidenced here. To the contrary, while section 112.533(1)(a) does require every law enforcement agency to establish a “system” for receiving, investigating and determining complaints against law enforcement officers and states that this system is to constitute “the” procedure f...

...complaints received by such agency from any person, which shall be the procedure for investigating a complaint against a law enforcement . . . officer and for determining whether to proceed with disciplinary action or to file disciplinary charges. § 112.533(1)(a), Fla....

...(2012) (providing that no law enforcement officer may be “discharged; disciplined; demoted; denied promotion, transfer, or reassignment” in retaliation for exercising his or her rights under the PBR); § 112.532(6), Fla. Stat. (2012) (titled “Limitations period for disciplinary actions”); 112.533(1)(a), Fla. Stat....

...(2012) (stating that after a complaint is received for investigation by “the” procedure established by the PBR, a number of requirements must be met “prior to 11 the determination as to whether to proceed with disciplinary action or to file disciplinary charges”); § 112.533(2)(a)1-2, Fla....

...2d DCA 2007) (quoting Phantom of Clearwater, 894 So. 2d at 1020), review granted, No. SC07-2074 (Fla. Nov. 29, 2007). Phantom of Brevard, Inc., 3 So. 3d at 314. We find nothing in section 2-1076(d)(1) of the Miami-Dade County Code that conflicts with section 112.533 or any other portion of the PBR....

...The ordinance generally authorizes the OIG to conduct investigations of County employees; it does not confer authority to conduct investigations of police officers for imposition of discipline, nor does it attempt to override the authority to do so conferred upon an officer’s employing agency under the PBR. And, while section 112.533(1)(b)1 13 does require the County to forward a copy of complaints against law enforcement officers to the MDPD, it does not require the County to abandon its investigation into non-discipl...

...disciplinary investigation. We therefore find that the ordinance and the PBR may be reconciled and are not inconsistent with one another. In short, and as this court under an admittedly different set of facts and circumstances has already confirmed, section 112.533 does not apply to an independent, external investigation when that investigation is not being conducted for any reason which could lead to disciplinary action, demotion or dismissal....

governing the use of force in making arrests. Section 112.533(1), F.S. (1982 Supp.) provides: Every

...Daragjati, Jacksonville, for Appellant. Howard M. Maltz, Deputy General Counsel, Jacksonville, for Appellee. PER CURIAM. Appellant, the Fraternal Order of Police (FOP), appeals a final judgment determining that the confidentiality requirements in sections 112.532(4)(b) and 112.533(2)(a), Florida Statutes (2008), commonly referred to as the Law Enforcement Officers' Bill of Rights, are inapplicable to investigations conducted by the Response to Resistance Board (Board) within the Jacksonville Sheriff's Office's (JSO). Because we conclude that the Board's investigations are subject to the confidentiality provisions in sections 112.532(4)(b) and 112.533(2)(a), we reverse....

...officer's use of force. FOP petitioned the Circuit Court of Duval County for declaratory and injunctive relief, asking the court to declare that the Board's open meeting format violates the confidentiality requirements of sections 112.532(4)(b) and 112.533(2)(a), Florida Statutes. Section 112.532(4)(b) provides for confidentiality during an ongoing disciplinary investigation "[n]otwithstanding the provisions of s. 112.533(2)" when a law enforcement officer is subject to disciplinary action *487 which could result in suspension with loss of pay, demotion, or dismissal: The contents of the complaint and investigation shall remain confidential until such time as the employing law enforcement agency makes a final determination whether or not to issue a notice of disciplinary action.... Section 112.533(2)(a) provides for confidentiality during the processing of a complaint: A complaint filed against a law enforcement officer ......

...and all information obtained pursuant to the investigation by the agency of such complaint shall be confidential and exempt from the provisions of s. 119.07(1) until the investigation ceases to be active.... The circuit court found that the confidentiality provision in section 112.533(2)(a) applies only when a police agency receives a written complaint and commences an investigation based on that written complaint, not when a law enforcement agency conducts an investigation pursuant to its internal operating procedures....

...d's investigation may result in such discipline, the investigation triggers the confidentiality protections in section 112.532(4)(b). Appellees, Sheriff John Rutherford and the City of Jacksonville, argue that because both sections 112.532(4)(b) and 112.533(2)(a) use the term "complaint" and the Board convenes based on a standing general order, not a complaint, confidentiality need not be afforded to Board investigations....

...from a dispatcher. Id. No written external or internal complaint was filed. Id. A citizen requested copies of documents relating to the investigation, but the police department declined to furnish the copies, citing the confidentiality provision in section 112.533(2)(a)....

...The Fourth District upheld the issuance of a writ of mandamus requiring the department to release the records. Id. The court in Barfield found that although nothing in the statute requires complaints to be in writing, the use of the word "complaints" in the title of section 112.533 and the use of the word "filed" in subsection (2)(a) imply that the confidentiality provision is triggered only by a written complaint filed with a law enforcement agency. Id. at 317-18. We conclude that the rationale of Barfield inapplicable here. At the time the Fourth District decided Barfield, it construed only section 112.533(2)(a) because the confidentiality provision in section 112.532 had not been enacted yet. [2] When the two sections are read in pari materia, *488 as emphasized by the clause "[n]otwithstanding the provisions of s. 112.533(2)" at the beginning of section 112.532(4)(b), we conclude that the confidentiality rights afforded by section 112.532(4)(b) are broader than those provided by section 112.533(2)(a), and apply to ongoing investigations whenever a law enforcement or correctional officer faces possible dismissal, demotion, or suspension without pay. Because we conclude that section 112.532(4)(b) requires confidentiality of ongoing Board investigations, we do not reach the issue of whether a written complaint is required in order to trigger confidentiality under section 112.533(2)(a). We recognize that the confidentiality provisions in sections 112.532(4)(b) and 112.533(2)(a) are exemptions from the public's general right to access public records and meetings, see Art. I, § 24, Fla. Const.; § 119.01(1), Fla. Stat., and must be narrowly construed in favor of disclosure. Lightbourne v. McCollum, 969 So.2d 326, 332-33 (Fla.2007). However, we conclude that under the plain language of sections 112.532(4)(b) and 112.533(2)(a), the confidentiality of those sections applies only during the period of investigation, and public scrutiny is afforded as soon as "the employing law enforcement agency makes a final determination whether or not to issue a notice of disciplinary action," § 112.532(4)(b), Fla. Stat., or when "the investigation ceases to be active," § 112.533(2)(a), Fla....

The Honorable Katherine Fernandez Rundle State Attorney Eleventh Judicial Circuit of Florida 1350 Northwest 12th Avenue Miami, Florida 33136-2111 Dear Ms. Rundle: You have asked for my opinion on substantially the following question: Does section 112.533 (2)(a), Florida Statutes, which provides for the confidentiality of pending police internal affairs investigations, apply to an inactive criminal investigative file maintained by the state attorney's office during the pendency of a police internal affairs investigation concerning the same complaint? In sum: The confidentiality provisions of section 112.533 , Florida Statutes, do not exempt an inactive criminal investigative file from inspection and copying pursuant to section 119.07 , Florida Statutes, while an active internal affairs investigation is pending concerning the same complaint....

...Prior to his doing so, the officer obtained a copy of the closed criminal investigative file from the state attorney's office, and thereby, had the benefit of all statements, reports and other information contained therein. Initially, I would note that pursuant to section 112.533 (2)(c), Florida Statutes, the complaint and information relating to an internal investigation of a law enforcement officer must be made available to state attorneys "in the conduct of a lawful criminal investigation." Further, under the provisions of section 112.533 , Florida Statutes, a law enforcement officer who is the subject of a complaint "may review the complaint and all statements regardless of form made by the complainant and witnesses immediately prior to the beginning of the investigat...

...rectional officers while they are under investigation, establishes the composition of complaint review boards, requires that officers receive notice of disciplinary action, and prohibits retaliation against officers for the exercise of these rights. Section 112.533 (1), Florida Statutes, requires that "[e]very law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints" against law enforcement or correctional officers....

...h a reasonable, good faith anticipation that an administrative finding will be made in the foreseeable future. An investigation shall be presumed to be inactive if no finding is made within 45 days after the complaint is filed." Subsection (2)(c) of section 112.533 , Florida Statutes, provides: "Notwithstanding other provisions of this section, the complaint and information shall be available to law enforcement agencies, correctional agencies, and state attorneys in the conduct of a lawful criminal investigation." Any person who is a participant in an internal affairs investigation and willfully discloses any information obtained pursuant to the agency's investigation under section 112.533 before the information becomes public commits a first degree misdemeanor....

...4 As the Fourth District Court of Appeal noted in City of Delray Beach v. Barfield, 5 when dealing with a question relating to confidentiality of internal affairs investigations and the Public Records Law: "The primary intent voiced by the legislature in section 112.533 , as indeed in chapter 119, is openness and the availability of public records....

...s." 6 Thus, the confidentiality provisions for internal affairs investigations conducted pursuant to Part IV, Chapter 112 , Florida Statutes, must be read narrowly and may not be extended beyond the scope of those statutes. The exemption afforded by section 112.533 , Florida Statutes, is limited to information obtained during the agency's investigation of the complaint against the officer. 7 The provisions of this statute concern the handling of complaints against law enforcement and correctional officers by their employing agencies. While the protection afforded by section 112.533 (2), Florida Statutes, relates to the complaint and ensuing investigation that may lead to disciplinary action, it does not cover information gathered during a criminal investigatory process such as criminal investigative or intelligence information....

...d the rest of the document must be made available. 13 Further, references to other criminal or internal investigations that may be ongoing and involve other individuals must be evaluated to determine whether release of such information would violate section 112.533 (4) or section 119.07 (3), Florida Statutes. Therefore, it is my opinion that the confidentiality provisions of section 112.533 , Florida Statutes, do not exempt an inactive criminal investigative file from inspection and copying pursuant to section 119.07 , Florida Statutes, while an active internal affairs investigation is pending concerning the same complaint. Sincerely, Robert A. Butterworth Attorney General RAB/tgh 1 Section 112.533 (1), Fla. Stat. And see , Op. Att'y Gen. Fla. 96-27 (1996) (s. 112.533 [2][a], Fla....

...Stat., does not restrict a law enforcement officer's access to reports and writings that are public records and not otherwise made confidential; the statute allows an officer who is the subject of a complaint to have access to the complaint and written statements that would otherwise be confidential under s. 112.533 , Fla. Stat., as a part of the investigation). 2 See, e.g., Op. Att'y Gen. Fla. 91-73 (1991). 3 Section 112.533 (1), Fla. Stat. 4 Section 112.533 (4), Fla....

...96-05 (1996), concluding that a police report of the agency's criminal investigation of an officer is a public record after the investigation has been concluded regardless of whether a copy of the report is forwarded to the Criminal Justice Standards and Training Commission. 10 See, Op. Att'y Gen. Fla. 96-27 (1996) (s. 112.533 [2][a], Fla....

...Stat., does not restrict a law enforcement officer's access to reports and writings that are public records and not otherwise made confidential; the statute allows an officer who is the subject of a complaint to have access to the complaint and written statements that would otherwise be confidential under s. 112.533 , Fla....

Chief Jerry L. Demings Orlando Police Department 100 South Hughey Avenue Orlando, Florida 32801 Dear Chief Demings: You ask substantially the following questions: 1. In light of the recent amendments to section 112.533 (2)(a), Florida Statutes, by Chapter 2000-184 , Laws of Florida, is the statute violated by a policy providing that the law enforcement officer who is the subject of a complaint be interviewed first? 2. Does section 112.533 , Florida Statutes, as amended, apply only to the receipt and processing of citizen complaints? In sum: 1. Section 112.533 (2)(a), Florida Statutes, as amended, which provides that the officer who is the subject of a complaint may review all statements, regardless of form, made by the complainant and witnesses immediately prior to the beginning of the investigative interview, does not prescribe the order in which interviews during the investigation must be conducted. Thus, a policy whereby the officer is interviewed first would not violate this subsection. 2. Section 112.533 , Florida Statutes, applies to the receipt and processing of all complaints by any person, whether within or outside the agency. Question One Section 112.533 (1), Florida Statutes, requires every law enforcement agency and correctional agency to establish and put into operation a system for the receipt, investigation, and determination of complaints received by such agency from any person. Pursuant to section 112.533 (2)(a), Florida Statutes, complaints filed against such officers and all information obtained during the agency's investigation of the complaint are confidential and exempt from section 119.07 (1), Florida Statutes, until the investig...

...1) concluded the investigation with a finding not to proceed with disciplinary action or to file charges, or 2) concluded the investigation with a finding to proceed with disciplinary action or to file charges. Prior to the 2000 legislative session, section 112.533 (2)(a), Florida Statutes, authorized the law enforcement officer or correctional officer who is the subject of the complaint to review the complaint and all written statements made by the complainant and witnesses immediately prior to the beginning of the investigative interview. In considering this language, this office stated that section 112.533 (2)(a) did not authorize a law enforcement officer who is the subject of a complaint to review audio cassettes of oral statements that had not been reduced to writing....

...s, precluded an agency from reducing all oral statements to writing before the officer under investigation is interviewed, the Law Enforcement Officers' Bill of Rights did not require that such action be taken. 2 During the 2000 legislative session, section 112.533 (2)(a), Florida Statutes, was amended to provide in part that "the officer who is the subject of the complaint may review the complaint and all statements regardless of form made by the complainant and witnesses immediately prior to t...

...ended, the statute allows the officer under investigation to review all statements, whether written or recorded, made by the complainant or on behalf of the complainant and witnesses, immediately prior to any investigative interview. No provision of section 112.533 , Florida Statutes, either before or after the 2000 amendment, dictated when the interview of the officer under investigation must be conducted....

...t address the order in which witnesses and the officer must be interviewed. In the absence of legislative direction in this regard, I cannot conclude that such a requirement may be inferred from the terms of the statute. Prior to a change in 1989, 4 section 112.533 (2)(a), Florida Statutes, did not provide a law enforcement officer or correctional officer who was the subject of a complaint with the right to review the complaint and any written witness statements....

...r to being interviewed by the officer's employing agency. The officer is now entitled to review the complaint and all statements, regardless of form, made by the complainant and witnesses immediately prior to the officer's investigative interview. 7 Section 112.533 (2)(a), Florida Statutes, however, does not entitle the officer to review all evidence or information obtained during the investigative process; rather it only ensures that the officer who is about to be questioned by the employing ag...

...contents of the complaint and any existing statements by the complainant and witnesses. Accordingly, I am of the view that a policy providing that the law enforcement officer who is the subject of the complaint be interviewed first does not violate section 112.533 (2)(a), Florida Statutes. Question Two You refer to the decision in Migliore v. City of Lauderhill 8 for the proposition that section 112.533 (2)(a), Florida Statutes, applies only to "external" complaints received from persons outside the law enforcement agency. In Attorney General Opinion 93-61, this office considered several statutory changes made to section 112.533 , Florida Statutes, in 1982 and 1983 that were not considered by the Migliore court. Although the Migliore decision was rendered in 1983, the court was interpreting the 1981 version of section 112.533 . Based upon the statutory changes, 9 this office concluded that the provisions of section 112.533 , Florida Statutes, were applicable to any complaint against a law enforcement officer filed with the employing agency by any person, whether within or outside the agency....

...d the convening of complaint review boards. This office concluded that complaint review boards may be used only for the disposition of complaints made by persons outside the agency employing the law enforcement officer in question. The provisions of section 112.533 , Florida Statutes, however, are broader in scope, requiring an agency employing law enforcement officers or correctional officers to establish a system for the receipt and processing of outside complaints made against such officers by "any person." This office on several occasions has reiterated its position that the provisions of section 112.533 , Florida Statutes, referring to complaints filed by "any person" refer to complaints filed by persons within the law enforcement agency as well as those filed by persons outside the agency. 11 Accordingly, I am of the opinion that section 112.533 , Florida Statutes, applies to the receipt and processing of all complaints by any person, whether within or outside the agency....

...112.532 (1)(d) does not require affirmative disclosure of specific items of evidence or specific statements of complainants and officer's right to be informed of the name of all complainants requires nothing more than that he or she be furnished with such names). 6 See , Op. Att'y Gen. Fla. 95-41 (1995), stating that s. 112.533 (2)(a), Fla....

...been filed to review audio cassettes of oral statements which have not been reduced to writing. 7 See, Staff Analysis of the House of Representatives as revised by the Committee on Judiciary on HB 937, dated April 11, 2000, stating: "The bill amends s. 112.533 , F.S., which allows law enforcement officers and correctional officers to review all written statements made pertaining to any complaint against the officer....

...and witnesses, immediately prior to any investigative interview." 8 415 So.2d 62 (Fla. 4th DCA 1982), approved , 431 So.2d 986 (Fla. 1983). 9 See, Chs. 82-405 and 83-136, Laws of Florida. 10 And see , Op. Att'y Gen. Fla. 83-90 (1983) (provisions of s. 112.533 [1] apply to complaints filed by any person, regardless of whether that person is a member of the public or another agency or of the employing agency). 11 See , Op. Att'y Gen. Fla. 97-62 (1997); and Inf. Op. to the Honorable Frank Farkas, dated May 5, 1999. If the provisions of section 112.533 were applicable only to complaints filed by persons outside the employing agency, the records relating to the internal investigation of an in-house complaint would not be subject to the exemption afforded by section 112.533 ....

...ion, including all statements relating to the death and a videotaped re-enactment of the shooting. The Department promptly responded in writing permitting inspection of the requested documents except for the statements and the re-enactment. It cited section 112.533, Fla.Stat....

...(Supp.1990), provides for an in camera inspection of certain specified kinds of documents, the court later found that the requested documents were not of the kinds specified in section 119.07. The court also found that the City had not timely requested such an inspection. On the merits, the court read section 112.533(2)(a) to require that a written complaint be actually filed with the agency [city] and found that none had ever been filed here, thereby eliminating the exemption from disclosure. And even if the section 112.533 exemption were applicable, the court held that the city had failed to rebut the section 112.533(2)(b) 2 presumption that an investigation is inactive if no finding is made within 45 days after the filing of the complaint....

...forego adducing substantive testimony showing what its allegedly “ongoing” investigation was producing. Weighing the testimony against the presumption, the court found no active investigation. There is no error in the trial judge’s reading of section 112.533....

...The statute is headlined “receipt and processing of complaints” and begins by requiring every law enforcement agency to adopt and use a system for the “receipt, investigation, and determination of complaints received by such employing agency from any person.” [e.s.] In contrast, section 112.533(2) begins with the words, “A complaint filed against a law enforcement officer * * *.” [e.s.] As Judge Fine himself noted, the legislature appears to have drawn a distinction in this statute between the receipt of a complaint and the filing of one....

...But there is nothing in the statute that requires all complaints to be in writing or precludes the agency from reducing them to writing upon “receipt”. 3 When, however, a complaint is in writing and has been formally filed with the agency by someone, then (and only then) the exemption of subsection (2) of § 112.533 may be applicable and prevent disclosure before a conclusion of the investigation and the issuance of a formal finding by the employing agency....

...We see no basis on what the City has brought us to go behind the trial judge’s findings of fact and quibble with the quantum of evidence. It seems to us, as it did to Judge Fine, that the City’s unrelenting focus on the exemption sets the statute against its stated purpose. The primary intent voiced by the legislature in section 112.533, as indeed in chapter 119, is openness and the availability of public records....

...An investigation shall be presumed to be inactive if no finding is made within 45 days after the complaint is filed. .In fact, in this case Lt. Wilson, the internal affairs investigating officer, testified that the city’s written policy, presumably adopted to carry out section 112.533(1), required that the watch commander receiving the complaint "will render into writing the individual’s complaint and forward it up through the chain of command to normally the captain of the affected employee.” Hence if the city...

...dicate that a policeman [law enforcement officer or correctional officer] has a right to have his dismissal reviewed by the board. In fact, the only statutory provision containing a possible explanation of the duties of the complaint review board is Section 112.533 ." 9 The court thus interpreted section 112.533 , Florida Statutes, as "providing a law enforcement officer with a means of vindicating his actions and his reputation against unjust and unjustifiable claims made against him by persons outside the agency which employs him." 10 The court concluded: "Sections 112.533 and 112.532 (2) are to be utilized for disposition of complaints made by outside persons and are not intended to provide a forum for any issue other than whether a particular complaint has a basis in fact." 11 Since the appellants in Migliore...

...hich could lead to disciplinary action, demotion, or dismissal" would be subject to the safeguards of the Law Enforcement Officers' Bill of Rights. Moreover, in Attorney General Opinion 93-61, this office considered several statutory changes made to section 112.533 , Florida Statutes, in 1982 and 1983 that were not considered by the Migliore court. Although the Migliore decision was rendered in 1983, the court was interpreting the 1981 version of section 112.533 . Based upon the statutory changes, 14 this office concluded that the provisions of section 112.533 , Florida Statutes, were applicable to any complaint against a law enforcement officer filed with the employing agency by any person, whether within or outside the agency....

...rt VI, Ch. 112, Fla. Const., Part VI does not limit the right of an agency to discipline or to pursue criminal charges against an officer. 14 See, Chs. 82-405 and 83-136, Laws of Florida. 15 And see , Ops. Att'y Gen. Fla. 83-90 (1983) (provisions of s. 112.533 [1] apply to complaints filed by any person, regardless of whether that person is a member of the public or another agency or of the employing agency); 00-64 (2000).

substantially the following question: Does section 112.533(3), Florida Statutes, prohibit a chief of police

...The parties also disagree over whether the investigation was "active" from its inception until July 2007, when the Department notified Plaintiff Avila and attempted to notify Plaintiff Perez. The Plaintiffs believe it should not have taken so long to investigate the complainant's allegations and point to Fla. Stat. § 112.533(2)(b) for the proposition that an "investigation will be presumed to be inactive if no finding is made within 45 days after the complaint is filed." [2] This provision is inapplicable to this case for two reasons. First, this case is governed by Fla. Stat. § 112.532(6)(a)(2), dealing with the tolling of the 180-day time limitation, not by § 112.533(2)(b), which deals with the exemption of internal affairs investigative information from the public records laws....

...see also Beach v. Great W. Bank, 692 So.2d 146, 152 (Fla.1997) (quoting Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995). Because the legislature used the term "active" and included a 45-day presumption of inactivity in § 112.533(2)(b), but not in § 112.532(6)(a), the court cannot insert the term or the presumption by implication into the latter section....

...uire a police department to release records if it delays more than 45 days in conducting an investigation, it is quite another to require that same department to retain an officer who engaged in serious misconduct based on the same delay. Second, subsection 112.533(2)(b), by its terms, "does not apply to any public record which is exempt from public disclosure pursuant to chapter 119." Fla. Stat. § 119.071(2)(c) exempts "active criminal investigative information" from disclosure under the public records act. Thus, subsection 112.533(2)(b) and the limits it imposes do not apply to active criminal investigations....

...investigation which is continuing with a reasonable, good faith anticipation *406 of securing an arrest or prosecution in the foreseeable future." Unlike non-criminal internal affairs investigations, which are subject to the 45-day presumption in subsection 112.533(2)(b), there is no 45-day presumption of inactivity for criminal investigations in subsection 119.011(3)(d)(2). Because the investigation in this case was criminal in nature, subsection 112.533(2)(b) by its express terms does not apply....

...Given the number of incidents (over 50), the number of witnesses (25), the number of documents (hundreds), and the amount of work necessary to ensure a fair and thorough investigation, the court must conclude that the Department, in accordance with Fla. Stat. § 112.533(2)(b), "continued the investigation in reasonable, good faith anticipation of reaching an administrative finding in a foreseeable" amount of time....

...time limit. CONCLUSIONS Having considered the evidence and arguments presented at the evidentiary hearing, the Court concludes that the Department notified the Plaintiffs of potential discipline within the 180-day time period set forth in Fla. Stat. § 112.533....

...tinuing with a reasonable, good faith anticipation that an administrative finding will be made in the foreseeable future. An investigation shall be presumed to be inactive if no finding is made within 45 days after the complaint is filed. Fla. Stat. § 112.533(2)(b).

...ternal affairs investigation from the employing agency" as that phrase is used in section 943.1395 (6)(a), Florida Statutes, refers to the report submitted by the employing agency to the Criminal Justice Standards and Training Commission pursuant to section 112.533 (2)(a), Florida Statutes. This statute establishes a procedure for the receipt and investigation of complaints by an employing agency. Reading section 112.533 , Florida Statutes, together with section 943.139 , Florida Statutes, would require the employing agency to immediately notify the commission in writing, on a form adopted by the commission, of the firing, termination, resignation, retirement, or voluntary or involuntary extended leave of absence of the officer....

...Stat., require that an officer not have been convicted of any felony or of a misdemeanor involving perjury or a false statement, or have received a dishonorable discharge from any of the Armed Forces of the United States; subsection (7) requires that an officer have a good moral character. 4 And see s. 112.533 (2)(a), Fla....

is expressly preempted by, Florida Statute Section 112.533, enacted in 1974, was amended in 2003 to add

...[Appellee], by refusing to permit inspection because of the subpoena, was obviously not engaged in an inter-agency “shell game” in order to avoid compliance with the Public Records Law. Cf, Tribune Co. v. Cannella, 438 So.2d 516 (Fla. 2d DCA 1983). 4. The subject documents are public records, pursuant to Section 112.533(2)(a) Fla.Stats....

chosen representative is not authorized by section 112.533, Florida Statutes, to review the complaint

Florida. 4 See s. 112.532, Fla. Stat. (2004). 5 Section 112.533(1), Fla. Stat. 6 See Op. Att'y Gen. Fla. 97-62

contained in such a list confidential pursuant to section 112.533(2)(a) and (4),1 Florida Statutes, if the information

substantially the following questions: 1. Does section 112.533(2)(a), Florida Statutes, entitle a law enforcement

...The PBA sought release of the information on the ground that it was a public record under section 119.07(1), Florida Statutes (1997). The sheriffs position was that the investigation of the officer was still ongoing, and accordingly the records were confidential under section 112.533(2)(a), which provides in part: A complaint filed against a law enforcement officer ......

...The first paragraph of the letter, stating that the investigation has been “completed” and that the “allegations have been sustained,” reflects that the investigation was “concluded.” The last paragraph of the letter is “notification,” as required by section 112.533(2)(a), of the agency’s finding to proceed with disciplinary action....

...hat any action to be taken would be disciplinary in nature. By modifying “action” with “disciplinary,” the agency has indicated that any action taken will only be in the form of punishment. Taken together they clearly meet the requirement of section 112.533(2)(a)2....

...We cannot agree with the sheriff that the letter was merely notice of an “intervening” action, in light of the language contained in the first paragraph of the letter. His argument that these records are still confidential because discipline has not been determined is without merit in light of section 112.533(2)(a), which clearly contemplates that an investigation is completed prior to disciplinary action being taken....

...A police report of the agency's criminal investigation of an officer is a public record after the investigation has been concluded regardless of whether a copy of the report is forwarded to the Criminal Justice Standards and Training Commission pursuant to section 943.1395 , Florida Statutes. 5. Section 112.533 (2), Florida Statutes, does not apply to any public record that is exempt from public disclosure pursuant to section 119.07 (3), Florida Statutes, such as active criminal investigative or intelligence information....

...police department. Your last question deals with an internal investigation of a police officer by his or her employing agency and whether the information developed during the course of the investigation is public once the investigation is concluded. Section 112.533 , Florida Statutes, provides for the receipt and processing of complaints against law enforcement officers....

...agencies may share this information in order to pursue independent criminal investigations, nothing in the statute extends the confidentiality of the complaint and information related thereto after conclusion of the internal investigation. However, section 112.533 (2), Florida Statutes, does not apply to any public record that is exempt from public disclosure pursuant to section 119.07 (3), Florida Statutes, such as active criminal investigative or intelligence information....

...ion 119.07 (3), Florida Statutes, the Public Records Law would control. 13 In Attorney General's Opinion 91-73 this office considered the applicability of Public Records Law exemptions to the information developed during an investigation pursuant to section 112.533 , Florida Statutes....

...During the course of the investigation of the complaint, the officer voluntarily resigned from the marine patrol. This office was asked whether the investigation would cease to be active at the time of the officer's resignation and whether the exemption contained in section 112.533 would continue despite that resignation until the conclusion of the investigation....

...tion provided in that statute would no longer be applicable. However, the opinion stated that "any information generated which qualified as exempt pursuant to s. 119.07 (3), F.S. (1990 Supp.), would be governed by the provisions of that section, not s. 112.533 , F.S....

...nvestigation is continuing with a good faith anticipation of securing an arrest or prosecution in the foreseeable future." Thus, if active criminal investigative information is contained in a report of an internal investigation conducted pursuant to section 112.533 , Florida Statutes, the disclosure of such information is governed by provisions of the Public Records Law....

...943.139 (2)[;]" and (6)(a), stating that "[t]he commission shall cause to be investigated any ground for revocation from the employing agency pursuant to s. 943.139 or from the Governor, and the commission may investigate verifiable complaints." 9 Section 112.533 (2)(b), Fla....

...tion is concluded in either of two ways: the investigation may be concluded with a finding not to proceed with disciplinary action or to file charges; or it may be concluded with a finding to proceed with disciplinary action or to file charges. See, s. 112.533 (2)(a), Fla. Stat. 11 See, s. 112.533 (2)(c), Fla. Stat. 12 See, AGO 91-73 (An investigation of a law enforcement officer under s. 112.533 , F.S. (1990 Supp.), ceases to be active at the time the officer resigns, and the exemption provided in s. 112.533 , F.S....

...ight does not require affirmative disclosure of specific items of evidence or specific statements of complainants. 2 I am not aware of any legislative action or judicial determination which would alter the conclusions reached in AGO 86-26. Moreover, s. 112.533 (2)(a), F.S., provides that a complaint filed against a law enforcement officer and all information obtained pursuant to the investigation of such complaint "shall be confidential until the conclusion of the internal investigation or at su...

...diately prior to the beginning of the investigative interview. 2 Attorney General Opinion 86-26 concludes that an officer under investigation is not legally entitled to review evidence or specific statements of complainants prior to interrogation. 3 Section 112.533 (2)(a), F.S. 4 Section 112.533 (2)(c), F.S....

before other witnesses? 2. Do the provisions of section 112.533(4), Florida Statutes, as amended by Chapter

Miami-Dade Police Department, as stated in section 112.533, Florida Statutes, the exclusive agency responsible

substantially the following question: Does section 112.533(2)(a), Florida Statutes, limit access by a