From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. We are thinking about bringing on an associate editor and whether or not this person would be an exempt employee. His duties would involve editorial control but not management of personnel. I am aware of the FLSA overtime rule. There is an exemption for small market outlets, but the definition is markets with a population below 100,000 does not apply to us. I was wondering if the position would be exempt from FLSA overtime/minimum wage requirements based on the creative control this person would have.

A. To qualify for the creative professional employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must be compensated on a salary or fee basis at a rate not less than $684 per week ($35,568 annually), and meet the exemption requirements.

For journalists to be considered a creative professional, their “primary duty” must be to “conduct investigative interviews; analyze or interpret public events; to write editorial, opinion columns or other commentary.” Journalists and editors are not likely to be considered “creative professionals” if they “rewrite press releases or write standard recounts of public information by gathering facts on routine community events.” On the other hand, if the journalist’s/editor’s “primary duty is to conduct investigative interviews; analyze or interpret public events; to write editorial, opinion columns or other commentary,” then he/she may be exempt. In sum, the more creativity and originality involved in your new editor’s position, and the less control exercised by you, the employer, the more likely he/she will be considered exempt.

Here is a fact sheet issued by the DOL Wage and Hour Division with more info.:

Q. We wrote a story about the arrest of John Q. Citizen. Charges were dropped against Mr. Citizen last year, and an order to seal the records was signed by a judge. Mr. Citizen is now asking that we unpublish his story on our website for his “safety and protection” due to death threats, notes and letters mailed to him. His attorney says the order requires all public records, newspapers, news media, and all websites that have posted all negative comments and information including photos be removed.

Are we legally required to do that?

A. You are not legally required to take down accurate news stories. However, you do have the editorial discretion to do so if you think the situation warrants take down. Attached is a white paper discussing some considerations in determining whether to delete information or add to or amend a news report.

Q. We’re working diligently to get more information on the homicide of Gabby Petito, but the police redacted everything. We understand that it’s an active investigation, but everything redacted. As you may have read, the “person of interest” has escaped. Technically, the parents reported him missing. They are searching for him now. I don’t think they’ve named him a suspect at this point. What should they have shared with us? [Note: this question was posed in September of last year before other events unfolded, but this was the fact situation at the time.]

A. The following information alone cannot be considered criminal investigative or intelligence information; it must be released unless some other exemption applies:

  1. The time, date, location and nature of a reported crime
  2. The name, sex, age, and address of a person arrested (except regarding confidentiality of certain juvenile crime records) or the name, sex, age and address of the victim of a crime (except for information revealing the identity of a victim of a sexual offense, child abuse, or a child victim of human trafficking.)
  3. The time, date and location of the incident and of the arrest
  4. The crime charged
  5. Documents given or required to be given to the person arrested, unless the court finds that release of the information prior to trial would be defamatory to the good name of a victim or witness or jeopardize the safety of such victim or witness; and would impair the ability of the state attorney to locate or prosecute a codefendant

I am unsure exactly what type of information appears in the reports forwarded but if they contain the above info., it cannot be redacted based on the investigative info. exemption alone. If they are relying on another exemption besides investigative, they should be citing to the particular exemption.

We also reached out to Virginia Hamrick, legal counsel at FAF. She agrees with the above. She doesn’t see how the entire report can be redacted. She advises asking for the reason for the conclusion the records are redacted, required by Fla. Stat. § 119.07(1)(f).

Regarding the criminal investigative exemption, it extends to “information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission.” Fla. Stat. § 119.011(3)(b). A record does not become exempt merely because it is used in an investigation. If a record exists prior to and separately from any investigation, it does not become exempt because it becomes part of an investigative file.

So, Virginia asks an important question: was this a criminal investigation before Gabby Petito’s death was ruled a homicide? Does that mean the records could be viewed as separate from the current investigation? Finally, the purpose of the investigation information exemption is to prevent premature release of records that could allow a suspect to avoid arrest or escape detection. Hasn’t that already happened?

Q. Can you direct me to best practices to use to ensure we are running public notices in the most efficient, law abiding, and consumer-friendly fashion to best apprise the public?

A. A BP memo can be found here addressing compliance, readability, archiving and other areas. These are not legal obligations for the most part but are good guidance for your staff and help keep the notices in the local paper where they belong.

Q. I hope this finds you doing well. Recently, a high school athlete died during practice. We requested a document from our county school district based on Florida High School Activities Association guidelines. This is FHSAA’s football rulebook: Per the 2021-22 Florida High School Activities Association (FHSAA) football sports manual, a written practice plan must be prepared in advance by the head coach prior to every practice and maintained by the school for at least 12 months. In addition, FHSAA guidelines state practice plans shall be made available upon public request.

Our request asked for the following information regarding the death of the athlete: a) the written practice plan of the football team; b) personnel file of the coach, including all disciplinary actions and complaints filed; and c) confirmation of the student’s name–a GoFundMe page created by a coach cites the student’s name as “Billy Smith.” Per the football roster, the only Billy listed is Billy Smits. With this information, we have decided to publish the student’s name. Would the school district like to confirm the name as Billy Smits?

The school district’s response and the law it cites in not releasing the document is as follows:

We are not releasing at this time as we have an open and active investigation. Please know information of this nature is protected from public record (at this time) pursuant to Florida state statute 768.28 (16)(B). Here is the link to this statute: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.28.html

Can you provide feedback?

A. Section 768.28(16)(b), F.S., provides an exemption for “claims files maintained” by agencies pursuant to a risk management program for tort liability until the termination of all litigation and settlement of all claims arising out of the same incident. The exact language is as follows:

(b) Claims files maintained by any risk management program administered by the state, its agencies, and its subdivisions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident, although portions of the claims files may remain exempt, as otherwise provided by law. Claims files records may be released to other governmental agencies upon written request and demonstration of need; such records held by the receiving agency remain confidential and exempt as provided for in this paragraph.

In this case, the requested record is the “written practice plan of the county high school’s football team.” My understanding is that such practice plans are compiled by the coaching staff and break out times, drills, coaching tips, etc. relating to warm-up, conditioning, technique, special teams, game prep, cool down etc.

If such a written plan is an essential record “relevant to the assessment and evaluation of the [tort] claim,” it would be exempt. See AG opinion AGO 2000-07. Since the football coach or coaches apparently compiled the information in the subject plan and it presumably outlines the activities for the team that day, my initial feeling is that this would be relevant to the claim and is exempt. Unfortunately, it is a pretty broad exemption for the entire claim file until the resolution of a claim.

We asked Virginia a FAF and she suggested that if FHSAA possibly has a copy of the written practice plan, you could ask them.