From the Legal Hotline (1-877-NEWS-LAW)
Q. We have a story going to press tonight over some records issues we are dealing with in our county. Short version: the sheriff’s office is refusing to provide us with affidavits presented at the time of arrest for three suspects. The first appearance judge found no probable cause based on the documents and provided 24 hours to make probable cause. The sheriff has refused our requests for the original documents and said they would provide the amended documents.
It is our stance the original document presented at first appearance is a public record and should be provided. Thoughts?
A.I agree the original records should be provided unless they are exempt under an exception which they need to identify. Also, some arrest information is never exempt. Pamela Marsh, FAF ED, agrees. She points out that at the initial appearance, the affidavits should have been provided to defense counsel. As such, they have already been released to the public, and should be turned over. Once released usually means always released.
Q. Marsy’s Law provisions relating to protecting “victim” identities is being interpreted very broadly here by some agencies. Our sheriff’s office is not releasing the names of “victims” in fatal car crashes; the state attorney’s office is not releasing the names of victims in subsequent sentencing releases although the names of, for example, a homicide victim, are part of the court proceedings. FHP no longer includes names in its released narratives. Is there any definitive determination as how the law relates to public records?
A. Unfortunately, I am not aware of any definitive determination. I do know the Fla Supreme Court has decided to hear the Marcy’s Law issue relating to identities of law enforcement personnel who claim to be “victims” during arrests. We are hoping that any decision will provide some clarity in the area. I do know that FHP broadly construes the law and that has resulted in criticism and push-back, but to no avail.
Virginia Hamrick at FAF notes that Marsy’s Law (Art. I, sec. 16(e) of the Florida Constitution) defines victim as “a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” If the traffic crash did not involve a crime or delinquent act, Marsy’s Law shouldn’t apply. Plus, Marsy’s Law gives victims the right to keep confidential information that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential information of the victim. Art. I, s. 16(b)(5). If the victim’s name is already accessible in court proceedings, Virginia asks how can withholding the name from other documents protect the victim’s confidential information? The information is already in the public domain.
Q. Here’s a question about an area I am a little rusty on. When a business hires a professional photographer and pays for the photos, does that business then own the rights to the photos? In other words, if they send us a photograph, can we publish them with the business’s permission or do we need to still seek the photographer’s permission?
A. It depends on the arrangement between the business and the photographer. For example, if the business hired the photographer as an independent contractor, it would depend on what the contract provides. On the other hand, if the photographer was hired as an employee of the business to create photographs, then the employer likely owns the copyright. In sum, I think generally you should not assume the business has the rights to the photos unless they confirm such ownership.
Q. We’ve spoken before about our struggles with our county not responding to public records requests from our reporter, but it has been a while, so I’m retouching base.
In October, my reporter made a public records request to county government regarding a contract they had signed. The custodian has yet to get the results of that request. I believe sufficient time has passed, from October to April, for this to be fulfilled. The county is also not returning emails or phone calls from our publisher. We need guidance on where to proceed from here – do we need an attorney-drafted letter sent to the person-of-contact with the county?
A. The time delay seems unreasonable, particularly in light of the narrow request—a contract should not be that hard to produce. I could point out the sanctions available for nonresponse. Also, I know there is the mediation program in the AG’s office that you might take advantage of. If you need contact info., let me know. Also, attached here is a letter from a while back that you or your attorney might use as a resource in some way. I can also recommend an expert attorney expert in the area who can help on a cost-effective basis to free up the log jam.
Finally, Virginia Hamrick at FAF points to the case law on delays. She’s had success using this language with DEO to get records for a report and she knows reporters have used this language to get records from police departments. “A delay in making records available is permissible only under limited circumstances. A delay is permitted to determine whether the records exists; whether the records or any part of the records are exempt; or if the requesting party does not pay the appropriate fees. Otherwise, the only delay allowed is the “limited reasonable time” to retrieve the records and delete any exempt portion. Unjustified delay in making public records available violates the public records law. Promenade D’Iberville, LLC v. Sundy, 145 So. 3d 980, 983 (Fla. 1st DCA 2014). A delay in disclosing records can rise to the level of a refusal if “there was no good reason for the delay.” Consumer Rights, LLC v. Union County, 159 So. 3d 882, 885 (Fla. 1st DCA 2015). Please provide the justification for delaying the release of ___.”
Q. We have two questions. 1) How long do we have to leave legal notices up (archived) on our newspaper website? I believe there is a time for archiving on the FPA site, floridapublicnotices.com, but how about us? 2) How do we know which notices’ affidavit has to be notarized versus not?
A. There is no time requirement for the notices on your website. Fla. law requires our statewide/FPA website to keep an 18-month archive of the notices. Regarding the affidavit, if there is an affidavit, it usually requires the signature of the affiant be notarized.