Can you secretly record a conversation with an official in their office in Florida, or is that illegal wiretapping?

Plain-English summary

An assistant police chief in Lynn Haven asked the Attorney General's office whether a citizen could legally tape record a meeting with the mayor, held in the mayor's office, without the mayor knowing. He added that an officer in the next room could hear parts of the conversation, and he attached a court order from Bay County that had dismissed a complaint over someone recording a conversation with the state attorney in a public building's lobby.

The office answered informally, noting that opinion requests are supposed to come from an agency head with a memo of law and that this turned on facts rather than a pure question of law. On the substance, it walked through Florida's security-of-communications law. Section 934.03 makes it unlawful to intentionally intercept an "oral communication," and section 934.02(2) defines that term as a communication spoken by someone with an expectation that it is not being intercepted, under circumstances justifying that expectation. The Florida Supreme Court in State v. Inciarrano treated that test as basically the Fourth Amendment privacy analysis: the speaker must have an actual expectation of privacy, and society must accept that expectation as reasonable. Because the answer depends on the specific facts, the office did not declare the mayor's-office recording legal or illegal. It did offer two guideposts drawn from the case law: a conversation does not lose its privacy just because it happens in a public building, and the expectation of privacy is generally stronger in a private office than in the open lobby of a public building.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Is it illegal to secretly record someone in Florida?
A: It can be. Section 934.03 bars intentionally intercepting an "oral communication," which the statute and the courts define as a conversation where the speaker reasonably expects privacy. If there is no reasonable expectation of privacy, the recording is not barred by the statute.

Q: Does being inside a government building make a conversation fair game to record?
A: No, not automatically. The opinion stressed that a conversation occurring in a public building does not by itself defeat a reasonable expectation that the conversation is private and will not be recorded.

Q: Is recording in a private office different from recording in a lobby?
A: The opinion said the expectation of privacy would appear greater in a private office, even one inside a public building, than in the lobby of a public building. The outcome still depends on the particular facts.

Q: How do courts decide whether a conversation was private?
A: Under State v. Inciarrano and later cases, courts look at the speaker's actual expectation of privacy and whether society would treat it as reasonable, weighing factors like where the conversation happened, how it was conducted, and its nature.

Background and statutory framework

Chapter 934 was enacted to protect the privacy of oral and wire communications. The legislative findings in section 934.01 stress limiting interception to safeguard innocent people, and section 934.03 carries the core prohibition, backed by criminal penalties and the civil remedies in section 934.10. The definition that does the analytical work is in section 934.02(2): an "oral communication" is one uttered with a justified expectation against interception, and it expressly excludes communications at a public meeting.

The Florida Supreme Court aligned that statutory test with constitutional privacy doctrine. State v. Inciarrano and Shapiro v. State frame the two-part inquiry into subjective and societally reasonable expectations, and Article I, section 12 of the Florida Constitution supplies the parallel protection against unreasonable interception. Application is heavily fact-driven: courts have found no protected expectation in a police car (State v. Smith), outside a van on a public road (Stevenson v. State), and in a business office in some circumstances (Jatar v. Lamaletto), while Brandin v. State confirmed that conversations in public areas can still be private. The office had addressed similar recording questions before in a 2004 informal opinion to the Ocala City Attorney.

Citations and references

Statutes:

• Section 934.03, Florida Statutes (interception of oral communications)
• Section 934.01, Florida Statutes (legislative findings on privacy)
• Section 934.02(2), Florida Statutes (definition of oral communication)
• Section 934.10, Florida Statutes (civil remedies)
• Art. I, s. 12, Fla. Const. (right against unreasonable interception)

Cases:

• State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985), two-part expectation-of-privacy test
• Shapiro v. State, 390 So. 2d 344 (Fla. 1980), reasonable expectation of privacy
• State v. Smith, 641 So. 2d 849 (Fla. 1994), no privacy expectation in a police car
• Stevenson v. State, 667 So. 2d 410 (Fla. 1st DCA 1996), no privacy expectation on a public roadway
• Jatar v. Lamaletto, 758 So. 2d 1167 (Fla. 3d DCA 2000), business-office conversations
• Brandin v. State, 669 So. 2d 280 (Fla. 1st DCA 1996), privacy can exist in public areas

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/security-of-communication-recording-in-public-building
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8211

Original opinion text

Mr. Dennis L. Kiah

Assistant Chief

Lynn Haven Police Department

108 East 9th Street

Lynn Haven, Florida 32444

Dear Mr. Kiah:

You ask whether a citizen may legally tape record a meeting with the mayor in the mayor's office without the mayor's knowledge. You state that a law enforcement officer was seated in the adjacent room and could hear parts of the conversation although it is not clear from your letter whether the participants in the meeting were aware that their conversation could be overheard. You have also attached a copy of a court order from the Fourteenth Judicial Circuit for Bay County dismissing a complaint in which an individual taped a conversation that occurred between the individual and the state attorney in the lobby of a public building.

Initially, I would note that requests for opinions must come from the head of the agency, accompanied by a memorandum of law prepared by the agency attorney. Moreover, opinions of this office are designed to address questions of law, not questions of fact or mixed questions of law and fact. In an effort to be of assistance, however, the following informal comments are offered.

Section 934.03, Florida Statutes, generally prohibits the intentional interception of the contents of an oral communication. Chapter 934 was enacted by the Florida Legislature in order to assure personal rights of privacy in the area of oral and wire communications.[1] The legislative findings in section 934.01(4), Florida Statutes, reflect the Legislature's concern to protect the privacy rights of the state's citizens:

"To safeguard the privacy of innocent persons, the interception of wire or oral communications when none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurance that the interception is justified and that the information obtained thereby will not be misused."

Section 934.03(1), Florida Statutes, generally makes it unlawful for a person to willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire or oral communication.[2] "Oral communication" is defined by section 934.02(2), Florida Statutes, as

"any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication."

The Supreme Court of Florida has interpreted the test set forth in this definition as substantially the same test used in a Fourth Amendment right-to-privacy analysis.[3] For a conversation to qualify as "oral communication," the speaker must have an actual subjective expectation of privacy in his oral communication and that expectation of privacy must be recognized by society as reasonable under the circumstances.[4] As stated by the Supreme Court of Florida in State v. Inciarrano,[5]

"This expectation of privacy does not contemplate merely a subjective expectation on the part of the person making the uttered oral communication but rather contemplates a reasonable expectation of privacy. A reasonable expectation of privacy under a given set of circumstances depends upon one's actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable. Shapiro v. State, 390 So. 2d 344 (Fla. 1980), cert. denied, 450 U.S. 982, 67 L.Ed.2d 818, 101 S.Ct. 1519 (1981). . . . To prevail Inciarrano must not only have had a subjective expectation of privacy, but also his expectation under the circumstances must have been one that society is prepared to recognize as reasonable."

Such a determination, therefore, depends upon the particular facts. The courts have considered such factors determining whether intercepted communication qualifies as "oral communication" protected under security of communication statutes to include the location in which the conversation or communication occurs, the manner in which the communication is made, and the kind of communication.[6] This office has previously commented on the legality of making audio and video recordings of citizens transacting business at city offices.[7] In discussing whether a reasonable expectation of privacy may exist in a public building, this office noted the reduced expectation of privacy afforded a place of business open to the public as compared to the privacy of an individual’s home.[8]

As noted above, the determination of whether a reasonable expectation of privacy exists will depend upon the particular facts. The fact, however, that a conversation occurs in a public building does not preclude a reasonable expectation that the conversation is private and will not be recorded.[9] Moreover, the expectation of privacy would appear to be greater in a private office, albeit located in a public building, than in the lobby of a public building.

You may wish to discuss this attorney who advised the police department on legal issues. I hope, however, that the above informal comments may be of assistance.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/

[1] See s. 934.01, Fla. Stat., setting forth the legislative findings.

[2] See s. 934.03(4), Fla. Stat., prescribing penalties for violations of the statute. And see s. 934.10, Fla. Stat., prescribing civil remedies.

[3] See Mozo v. State, 632 So. 2d 623 (Fla. 4th DCA 1994), approved, 655 So. 2d 1115 (Fla. 1995); Stevenson v. State, 667 So. 2d 410 (Fla. 1st DCA 1996).

[4] Stevenson v. State, 667 So. 2d 410 (Fla. 1st DCA 1996). And see State v. Smith, 641 So. 2d 849, 852 (Fla. 1994). Cf. State v. Sarmiento, 397 So. 2d 643 (Fla. 1981) (definition of "interception of private communications," in context of prohibition under Art. I, s. 12, Fla. Const., against such interception, is a function of one's reasonable expectation of privacy).

[5] 473 So. 2d 1272, 1275 (Fla. 1985).

[6] See Stevenson v. State, 667 So.2d 410 (Fla. 1st DCA 1996) (defendant had no reasonable expectation of privacy in a conversation that took place outside a van stopped in a public roadway in a known drug trafficking area); Department of Agriculture and Consumer Services v. Edwards, 654 So. 2d 628 (Fla. 1st DCA 1995) (finding no justifiable expectation of privacy in statements due to number of persons present when statements were made, place chosen for persons present when statements were made, place chosen for interview, and very nature of interview); Adams v. State, 436 So. 2d 1132 (Fla. 5th DCA 1983), (audio and video recordings made by police officers in the course of a "sting" operation utilizing a storefront operation did not violate the defendant's right of privacy so as to preclude their admission into evidence, since the defendant came into the store and openly entered into a transaction with the undercover officer and he could have had no reasonable expectation of privacy in transacting his business in a place of business open to the public). See also State v. Smith, 641 So. 2d 849, 850 (Fla. 1994), holding that recording of conversation between motorist and companion sitting in rear of police vehicle for safety and comfort reasons during consensual search of automobile did not violate statute since motorist had no reasonable expectation of privacy in a police car.

[7] Informal Opinion to Mr. Patrick W. Gilligan, Ocala City Attorney, April 7, 2004.

[8] See, e.g., U.S. v. Reyes, 595 F.2d 275 (5th Cir. 1979); see also U.S. v. Glasgow, 658 F.2d 1036 (5th Cir. 1981); Jatar v. Lamaletto, 758 So. 2d 1167 (Fla. 3rd DCA 2000) (expectation of privacy in conversations conducted in a private home does not necessarily extend to conversations conducted in a business office where the intent of the speaker does not justify such an expectation). Compare, LaPorte v. State, 512 So. 2d 984 (Fla. 2nd DCA 1987) (audio and video taping of women in dressing room changing clothes for a "modeling-video" session violative of s. 934.03, Fla. Stat., since women were unaware they were being recorded and they had reasonable expectation of privacy in the dressing room).

[9] See Brandin v. State, 669 So. 2d 280, 281-282 (Fla. 1st DCA 1996) stating:

"We cannot agree with the state's assertion that conversations occurring in public areas can never be made with an expectation of privacy. Common experience teaches that the opposite may often be true. . . . The effort to decide whether or not a given 'area,' viewed in the abstract, is 'constitutionally protected' deflects attention from the problem presented . . . . For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection. [Citations omitted.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

And see Migut v. Flynn, 131 F. Appx. 262 (11th Cir. 2005) (under Florida law, public places are not necessarily excluded from s. 934.03, Fla. Stat., except when the public place is a public meeting).