Florida Appeals Court Rejects Unwritten Public Records Exemption

Florida Appeals Court Rejects Unwritten Public Records Exemption

Florida's Second District Court of Appeal reversed a judgment that had blocked release of Sarasota police investigative records and ordered most of them destroyed, holding on September 2, 2026 that courts cannot write exemptions into the Public Records Act that the Legislature never enacted.

Information last verified on September 11, 2026. This is a developing story; we update it as the record changes.

Jurisdiction scope: Florida only. This is a decision of the Second District Court of Appeal, which hears appeals from Sarasota and surrounding counties and binds Florida trial courts absent conflicting authority from another district court of appeal or the Florida Supreme Court. It interprets Florida's public records law and state constitution. It does not decide whether the three search warrants were valid, does not resolve whether digital data is property, and sets no rule for other states' records statutes. The opinion carries the notation that it is subject to revision prior to official publication.

What Happened

In late 2023 the Sarasota Police Department investigated Christian Ziegler, a former Sarasota County commissioner and former chair of the Republican Party of Florida, on a sexual battery allegation. During that investigation the department obtained three separate search warrants: one for Mr. Ziegler's cellphone, one directed to Google for the contents of his Google Drive, and a third served on Meta for his Instagram account (slip op. at 2 to 4). The cellphone extraction alone ran to more than a terabyte of data, including roughly 30,000 videos and 250,000 photographs, and took about five days to download.

No charge was ever filed on the sexual battery allegation. Investigators later refocused on an allegation of video voyeurism, referred that charge to the Office of the State Attorney for the Twelfth Judicial Circuit on January 19, 2024, and on March 6, 2024 the State Attorney's Office declined to file a formal charge, citing insufficient evidence (slip op. at 4). Mr. Ziegler was not charged with an offense arising from the investigation. The substance of the underlying allegations is not what this appeal decided, and this article does not recount it.

Presumably because of the Zieglers' public status (Bridget Ziegler serves on the Sarasota County School Board), several public records requests followed. The Zieglers sued the police department and the State Attorney's Office in Sarasota County circuit court in March 2024, seeking declaratory and injunctive relief to stop the release. Their amended complaint argued that the downloaded data were not public records, that the state constitutional and statutory right of privacy survived the records request, and that spousal communications were protected by section 90.504, Florida Statutes. Notably, the complaint said nothing about federal constitutional rights and did not challenge the legal sufficiency of the warrants (slip op. at 5).

The Florida Center for Government Accountability, Michael Barfield, Gannett, The McClatchy Company and Scripps Media intervened as defendants and became the appellants. By the final hearing in May 2024 they had narrowed their request to the electronically stored information investigators actually reviewed and deemed relevant, and the appellate panel confined its opinion and remand directions to that same scope (slip op. at 6 n.4). The day before that hearing, the Zieglers filed a bench brief raising, for the first time, a Fourth Amendment argument that Mr. Ziegler had a property interest in his personal data.

Circuit Judge Hunter W. Carroll entered a 46 page final judgment for the Zieglers on July 1, 2024. It held that all three warrants were general warrants that violated the Fourth Amendment, that Mr. Ziegler had a right to recover exclusive control over his data, that unconstitutionally obtained material could not be a public record, and, in the alternative, that the spousal privilege shielded the couple's text messages. The court permanently enjoined both agencies from disclosing the records and ordered the originals and all copies destroyed, with limited exceptions (slip op. at 7 to 11).

Chief Judge Lucas wrote for the panel on September 2, 2026. Judge Northcutt concurred and Judge Villanti concurred specially with a separate opinion. The reversal was unanimous.

What the Law Actually Says

Florida's access rule starts in the state constitution, not in a statute. Article I, section 24(a) of the Florida Constitution gives every person the right to inspect or copy "any public record made or received in connection with the official business of any public body, officer, or employee of the state," subject only to records "exempted pursuant to this section or specifically made confidential by this Constitution."

Section 24(c) then controls who may carve out an exception. The provision is self-executing, and the Legislature "may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a)," provided the law "state[s] with specificity the public necessity justifying the exemption" and is "no broader than necessary to accomplish the stated purpose." That is a deliberately narrow door: a supermajority, a stated public necessity, and a tailored scope. Nothing in the text lets a court open a different one.

Florida's privacy clause is explicitly subordinate to this. Article I, section 23 protects the right to be let alone from governmental intrusion, then adds that it "shall not be construed to limit the public's right of access to public records and meetings as provided by law." The panel relied on that structure, observing that regardless of how personal a record may be, general law determines whether it is a public record and whether an exemption applies (slip op. at 13).

The implementing statute is chapter 119, the Public Records Act. If you want the fuller picture of how requests, fees and appeals work in practice, our guide to Florida's Public Records Act and chapter 119 walks through the mechanics. Three pieces mattered here:

The definition. Section 119.011(12) defines public records as "all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." The panel held that material a law enforcement agency obtains and reviews during a criminal investigation will almost always satisfy that definition, and that the data the department copied, flagged and reviewed here were public records (slip op. at 13 to 14).

The exemptions, and how one ends. Section 119.071 carries the list. Subsection (2)(c)1. exempts "[a]ctive criminal intelligence information and active criminal investigative information," and the operative word is active. Section 119.011(3)(d)2. defines criminal investigative information as active only as long as it relates to an ongoing investigation continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future, and the closing sentence of section 119.011(3)(d) adds that such information also stays active while it is directly related to pending prosecutions or appeals. Once the State Attorney declined to charge and the matter closed, that exemption stopped doing any work. The panel put it plainly: the provision exempts active investigative information, "but not concluded investigations" (slip op. at 15).

The Act does contain real privacy protections, written by the Legislature rather than improvised by a court. The same section makes confidential and exempt any information that "may reveal the identity of a person who is a victim of any sexual offense" and any "photograph[s], videotape[s], or image[s] of any part of the body of the victim of a sexual offense," and section 119.071(2)(f) exempts information revealing the identity of a confidential informant or a confidential source. The panel noted that several more exemptions sit elsewhere in the Florida Statutes, citing section 119.0714(1)(i) for social security numbers in court records and section 394.4615(1) for clinical records (slip op. at 15).

The procedure. Section 119.07 tells custodians what to do. They must permit inspection, redact only the exempt portion and produce the rest, state the basis of any claimed exemption "including the statutory citation," and, if the requester asks, state in writing and with particularity why the record is exempt. Under section 119.07(1)(g), in camera inspection is mandatory for certain enumerated exemptions and discretionary when the active criminal investigative exemption is asserted. Section 119.07(1)(h) freezes disposal of a requested record for 30 days, and longer if a civil action is filed. And section 119.07(9) bars an agency from answering a records request by suing the requester for declaratory relief.

Why the Fourth Amendment Did Not Create an Exemption

The heart of the opinion is a short statutory observation with long consequences. "There is no statutory exemption for public records that were allegedly obtained in violation of a person's Fourth Amendment rights," the panel wrote. "Thus, there is no statutory authority to deem such records exempt from the Public Records Act," invoking the canon that specifying permissible exemptions excludes others. "Nor does the Fourth Amendment operate as a free-floating, unenacted public records exemption" (slip op. at 15).

The panel then explained why. The Fourth Amendment's text says nothing about remedies. Courts have recognized three avenues of redress for a violation: the exclusionary rule, a civil action under 42 U.S.C. section 1983, and, rarely, criminal prosecution of the state actor (slip op. at 16 to 17). The exclusionary rule is an evidentiary bar that applies in criminal trials, and the U.S. Supreme Court has repeatedly declined to extend it to other proceedings. "The case at bar is not a criminal trial; it is a civil dispute over public records," the panel wrote, and no statute directs the exclusionary rule into that kind of civil controversy (slip op. at 18).

The panel also pointed to the Florida Supreme Court's decision in State v. Times, 434 So. 3d 986 (Fla. 2026). As the panel described that case, the supreme court declined to infer an exclusionary remedy for violations of Florida's knock-and-announce statute, section 933.09, because that section contains no exclusionary rule of its own and a separate provision, section 933.17, already prescribes remedies for violating it, and the court receded from its prior precedent on the ground that it had "misunderstood" its role as a court. Stretching the exclusionary rule into a civil records case, the panel said, "extends well beyond what the Times court just rejected" (slip op. at 19).

Importantly, the panel did not say Mr. Ziegler was without recourse. It noted he could bring a section 1983 claim in federal or state court, or file a criminal complaint against the officers. What he could not do, under the authority of the Fourth Amendment, was defeat a public records request as a third party through extraordinary equitable relief in a civil action (slip op. at 19 to 20). A footnote records that the Zieglers have filed a civil suit in the U.S. District Court for the Middle District of Florida concerning the execution of the warrants.

The Court Decided an Issue Nobody Pled

The Fourth Amendment theory, and the related theory that Mr. Ziegler held a protected property interest in the exclusive use of his data, appeared nowhere in either complaint. The panel reviewed the record and found the issue was not tried by consent either: the intervenors objected, insisted at the close of trial that federal constitutional questions were outside the pleadings, and the Zieglers never moved to conform the pleadings to the evidence (slip op. at 20 to 21).

That matters beyond formality. The panel noted that whether data held on third party platforms is "property" is far from settled, pointing to a sharp disagreement between two justices in a recent U.S. Supreme Court decision involving electronically stored location information, and observed that a properly pled case would have produced an adversarial record on the terms of service governing the accounts, how the data was used and how third parties accessed it (slip op. at 23 to 24). The circuit court also never conducted a comprehensive in camera review of the records before treating them as Mr. Ziegler's property; it reviewed only the text messages (slip op. at 6 n.4, 24).

Who Can Object to a Records Request

The standing discussion is the part the panel expressly left open, and it flagged the law here as unsettled. Chapter 119 builds a dispute mechanism for two parties: the custodian, who may assert an exemption, and the requester, who may sue to enforce access. There is no statutory mechanism for anyone else. The panel quoted Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984): "The only person with the power to raise such a challenge is the custodian" (slip op. at 27).

The one significant crack in that rule is Times Publishing Co. v. A.J., 626 So. 2d 1314 (Fla. 1993), where the Florida Supreme Court held that Florida's child protection statutes and the accompanying public records exceptions give a noncustodian of a public record standing to assert a statutory exception, provided the noncustodian is a member of a class the exception was intended to protect. That case involved child abuse investigation records and minor children, and a footnote appeared to limit the holding, observing that if the subject of the record were "a politician or other public figure and not children, for example, it is clear that the privacy interests would be considerably diminished" (slip op. at 28).

Applying that, the panel wrote that "[n]o Florida court has ever held that a third party has standing to contest a public records request by virtue of a purported property right in their digital information that was allegedly obtained in violation of the Fourth Amendment. We are hesitant to be the first to do so." It added a structural oddity: recognizing such standing would sit awkwardly beside section 119.07(9), which forbids a custodian from filing a declaratory action against a requester. The panel then assumed without deciding that the Zieglers could bring the suit and rejected their arguments on the merits anyway (slip op. at 28 to 29). That is why this is described as questionable standing rather than a holding of no standing.

The Spousal Privilege Alternative Holding

The circuit court had alternatively held that section 90.504, the husband and wife privilege, barred disclosure of more than 1,200 text messages, reasoning that the privilege predated July 1, 1993 and so was preserved by article I, section 24(d) of the Florida Constitution, which keeps in force laws in effect on that date "that limit public access to records or meetings."

The panel disagreed on the text. Section 90.504 sits in the Florida Evidence Code, which applies to the same proceedings the general law of evidence applied to. "[T]he spousal privilege is a law that governs the admissibility of evidence in legal proceedings; it is not a law that 'limit[s] public access to records or meetings,'" the panel wrote, and no Florida statute recognizes marital communications as a public records exemption (slip op. at 30). The judgment had "improperly grafted a new exemption into the Public Records Act that was unsupported by any law." Whether such an exemption would be good policy was beside the point: "the judiciary has no power to make public policy" (slip op. at 31).

Part V of the opinion summarized the whole case in one sentence: the circuit court "machinated unwritten exemptions into the Public Records Act out of unpled, inapplicable Fourth Amendment arguments and an equally inapplicable rule of evidence, all of which were raised by parties with questionable standing." The panel added that it had "no doubt the court did so out of genuine concern for the Zieglers' constitutional rights," but that "its rulings were no less erroneous." It reversed the final judgment and remanded for further proceedings consistent with the opinion (slip op. at 32).

Judge Villanti concurred specially to credit the trial judge's effort on facts of first impression, while noting that "doing what seems correct is not permitted when in conflict with the law courts are required to apply" (slip op. at 32).

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The durable lesson here has nothing to do with the people named in the caption. It is that Florida's access regime is a closed system by design, and the closure is the feature. Article I, section 24 does not merely presume access; it specifies the only machinery for taking access away, and that machinery is a two-thirds vote in each house plus a written statement of public necessity. Every time a court supplies an exemption from outside that machinery, however sympathetically, it converts a rule the public can read into a rule the public has to litigate.

The destruction order is the part that should give records requesters and agencies alike the most pause. An injunction against release can be undone on appeal. Destroyed records cannot. Section 119.07(1)(h) exists precisely because the Legislature anticipated that disposal pressure follows a request, and it freezes disposal while a dispute is pending, permitting it after that only by order of a court of competent jurisdiction after notice to all affected parties. The panel did not address that provision, and a destruction order entered by a court is not on its face outside it. Even so, a judgment ordering the originals and all copies destroyed at the end of a civil case brought by the record's subject sits uneasily beside an Act whose own remedy structure contemplates production with redaction rather than deletion.

The standing discussion is the one to watch. The panel plainly signaled discomfort with third party suits to block release, invoking Cannella and reading A.J. narrowly, then declined to resolve it because the merits disposed of the case. That leaves a live question: how far beyond child protection records does noncustodian standing reach? A.J.'s own footnote suggests the answer shrinks when the subject is a public figure rather than a child. Until a Florida court squarely answers, the practical effect is that a subject can still file such a suit and force the requester to intervene and litigate, which imposes real cost on access even where the legal theory ultimately fails. That cost dynamic is a recurring theme in press access disputes generally, including the Ninth Circuit's ruling on delayed access to newly filed court complaints, where the fight was about timing rather than entitlement.

Finally, the opinion is careful in ways that are easy to miss. It confines itself to the flagged and reviewed records, not the terabyte. It expressly declines to decide whether the copied data could constitute some form of property interest. It does not hold the warrants valid. Readers looking for a ruling that police may keep and publish everything they seize will not find it here. What they will find is a rule about who writes exemptions.

How This Affects You

If you request records in Florida and a custodian refuses, the statute gives you specific leverage. The custodian must state the basis of the claimed exemption, including the statutory citation, and if you ask, must put the reasons in writing and with particularity. A response that gestures at privacy, an ongoing matter or constitutional concerns without naming a statute is not a compliant response under section 119.07(1)(e). Where an investigation has genuinely concluded, the active criminal investigative information exemption in section 119.071(2)(c)1. turns on the statutory definition of active in section 119.011(3)(d), not on the agency's preference, though other exemptions, such as those protecting the identity and images of a sexual offense victim, can still require redaction of parts of a file.

If you are the subject of records held by a Florida agency, the opinion identifies where your remedies actually live. A claim that a search was unconstitutional belongs in a suit against the government, in federal or state court, not in a civil action to block a stranger's records request. Whether spousal communications, or material obtained through a challenged search, should be exempt at all is a question for the Legislature, which is the only body the constitution authorizes to answer it.

Rules differ sharply from state to state, and the Florida analysis does not transfer. Every state writes its own definition of a public record, its own exception list and its own procedure for contesting a denial, which is why the Texas Public Information Act and Florida's chapter 119 can produce different answers on similar facts. Comparing the statute where your records sit against our state by state public records guides is the practical first step, and if the material you want is filed with a court rather than held by an agency, the access rules run through court records procedures instead of the records act.

This is general legal information, not legal advice. It covers Florida and the Second District Court of Appeal and reflects sources verified on September 11, 2026. Laws change and this story is developing; consult a lawyer licensed in your jurisdiction about your specific situation.

Related articles

• Florida Public Records Laws: The Public Records Act, Chapter 119
• Public Records Laws by State: FOIA Guide for All 50 States
• Georgia Open Records Act

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Last updated: 2026-09-11. This is a developing story; details verified as of 2026-09-11.