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

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

Q. A local county commissioner has been texting during meetings and I plan to send her a public records request asking for copies of those texts. Does the texting violate the SL and are they public records?

A. The Sunshine Law requires boards to meet in public. They may not take action or engage in private discussions of board business via written correspondence, e-mails, text messages, or other electronic communications. See AGO 89-39 (members of a public board may not use computers to conduct private discussions among themselves about board business). Similarly, AGO 09-19 (members of a city board or commission may not engage on the city’s Facebook page in an exchange or discussion of matters that foreseeably will come before the board or commission for official action).

So, in this case, if the commissioner is texting directly with others on the board in a way that communicates info. among the commissioners relating to matters coming before the committee/council, this would be a violation of the open meetings law.

Further, if the texts relate to business coming before the committee/council or in connection with the transaction of official business, the texts should be public records subject to disclosure in the absence of an exemption. Electronic communications are covered just like communications on paper.

We also reached out to Virginia Hamrick, counsel at FAF. She agrees and suggests sending a public records request for the other commissioners’ text messages and/or emails sent during meetings to see if other commissioners have been on their phones during meetings and, if so, why.

What board is this? This is not an uncommon issue. There is currently another case involving a South Florida city council member’s text messages sent during a meeting. The commissioner in that case claims the records are personal and not public records.

Q. We have two men, ages 18 and 17, charged in the shooting death of a 14-year-old. The two were in court today, both pleading not guilty. The 18-year-old has named the 17-year-old as the shooter. Are we safe naming the 17-year-old?

A. Yes, this was a statement in open court. There is no prohibition on reporting the fact that a child is accused of a crime as long as the information is “lawfully obtained” and “truthfully” reported.

Q. I have a series of billing questions for legal ads. First, do you know what the requirements are for newspapers billing for legal ads they have accepted? Specifically, is there a requirement that the invoice have the publications physical address which has to be the remit-to address? Can the remit-to address be different from the physical address?

A. The billing provision in the Florida statutes is brief and is set in s. 50.061. Basically, the paper can charge the “regular established minimum commercial rate,” which can vary from paper to paper but is usually the lowest rate on the rate card. If you obtain the notices via a bid, the bid rate will trump that rate. For multiple government notices, there is a 15% discount for the second and subsequent insertions. I am not aware of any requirement relating to invoice addresses.

Q. Second, is billing different if it’s a government agency doing the advertising vs other legal advertising? Finally, do all legal ads require an affidavit and if an affidavit is required, are the billing requirements different /the same?

A. The rates for government agency legal notices (e.g., zoning, delinquent tax, etc.) and private party legal notices (foreclosures, fictitious names, etc.) should be the same. Regarding affidavits, yes, all legal ads require an affidavit in the form set out in statute. As for billing, you can charge up to $2 for preparing the affidavit.

Q. Are homeowners’ association board meetings covered by the Sunshine Law?

A. The SL does not generally apply to meetings of a homeowners’ association board of directors. Inf. Op. to Fasano, June 7, 1996. Other statutes govern access to records and meetings of homeowners’ association boards. See, e.g., ss. 720.301 and .303(2), F.S. These are quite detailed, for example minutes must be maintained and records must be available to parcel owners within a certain period of time, and there are penalties for denying access.

Q. Our small newspaper wrote a story about a commissioner that raised questions about her legal place of residence, which turns in part on information derived from the commissioner’s driver’s license. We obtained a copy of the driver’s license after we requested some of the official emails, and we were provided with an unredacted copy of the commissioner’s driver’s license. The emails and license, in turn, were published. Do we have any duty to redact after the fact? I don’t think there is any legal duty. Do you agree?

A. I agree. While this information is protected to the extent that Florida law requires the custodial agency to keep it confidential, if they release it, even accidentally, well that’s a different situation. Jim McGuire at Thomas LoCicero agrees. He notes that the county probably should have redacted before producing the public records, but its failure to do so is not the paper’s fault. On the other hand, if the paper is uncomfortable about having published the license or email addresses, it certainly is within its rights to take it down.

Q. It has been 14 days since we sent our request for emails between commissioners and the city attorney for one day, between 10 and 12 pm. Is this an unjustified delay?

A. The Public Records Act does not contain a specific time limit (such as 24 hours or 10 days) for compliance with public records requests. However, “delay in making public records available is permissible under very limited circumstances.” The only delay in producing records “is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.” Unjustified delay constitutes an unlawful refusal to provide access.

Here, your request is limited in nature, with one category of info. regarding a few individuals for a short time period, and for probably easily retrievable, and nonexempt info. I would argue that as time progresses past 14 days it will be harder and harder for the city to say this is reasonable under the circumstances.

Virginia Hamrick at FAF agrees that your request is for a limited timeframe and likely easy to retrieve and review for exempt or confidential information. The reasons for delay are limited. She suggests reminding the city of the limited permissible reasons for delay and ask for the city’s justification. If an agency says that it responds to records in the order received, then ask for your position in the que and how many requests are ahead of yours. You could ask the city to exclude any attachments or forwarded emails to cut down on the time if the city is still unresponsive.