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

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

Q. How long do newspapers need to save physical copies of public notices published? We’ve been archiving them physically for 18 months. This includes private, government, and tax deed notices.

A. I am not aware of any archiving requirement for printed notices. (There is an 18-month period for the online FPA site notices). We have suggested “best practices” for archiving notices, namely keeping them for an “indefinite” time but if you cannot, you could see if anyone is interested in receiving them as a donation.

Q. Can I check for new complaints in lawsuits as they are filed in real time? We publish as news of record a listing of all small-claims, county civil, and circuit civil cases filed locally in the preceding week. Often, discovery of those cases are important stories: the school district being sued for a bus accident, a negligence complaint against the county, or a foreclosure filed against a major business. The ability to access that information is critical to our ability to inform our community and provide transparency.

A. In December of last year, a federal judge in Tallahassee entered an order requiring the implementation of a single statewide public access point for obtaining images of newly filed circuit civil complaints. The order reinstated what was once the common practice in Florida during the print era, whereby journalists could check new printed complaints as soon as they were filed, often revealing breaking stories about fraudulent business practices, political graft, environmental impacts and other areas of public concern. [This older process had been gradually discarded as the digital revolution took root in the courts, leaving paper behind and requiring complaints in electronic form.] The order, by Chief U.S. Judge Mark Walker, directed to Florida’s e-filing authority, requires public access to new complaints when they cross the virtual counter “on receipt,” and bringing the state courts back in line with how they used to be in the time of paper.

The case was shepherded through the process by its attorneys, Carol LoCicero, Mark Caramanica, James Maguire, and Daniela Abratt, with the law firm of Thomas & LoCicero. This access method should be helpful to journalists trying to obtain access to new complaints, which are now viewable in near real time. They will need to register for a free account. Here’s how it works:

1. Use this link: https://www.myflcourtaccess.com/default.aspx
2. Scroll down to Do not have an account – Register Now!
3. Select the media role from the drop-down menu.
4. Create your account.
5. Log into the Portal.
6. Click on the Filings Access link/icon at the top right of the screen with the map.
7. You should see statewide filings populate in reverse chron order. You can filter by date and court. The search options will automatically populate for the current day’s date.
8. To access imaged documents, click on the arrow icon in the far left. (You’ll get links to imaged documents from the plaintiff’s initial submission, including the complaint.)
9. To get updated filings, refresh the page if you’ve logged in.

Here is a more detailed story on the case: https://www.courthousenews.com/first-amendment-access-returned-to-court-records-throughout-florida/

Q. Here’s a new one for you …. I can only hope you’ve already dealt with it and have a quick response. We have a county commissioner serving a first two-year term, who is thought to be “skirting” the law on her home residence. She is at the end of her term and filed for reelection, but later announced she was withdrawing from a three-way race for two seats. That would leave the two newcomers in the race for the seats, but she has not officially notified the supervisor of elections in writing that she is withdrawing. The elections supervisor will not accept her written statement from the meeting, saying it is not signed.

Meanwhile, we went to the supervisor’s website to verify her candidate forms and filing date and discovered her address and other information redacted on all the forms. And we learned she had filed for Department of State address protection. She claims a job she does not hold as an HR manager or personnel supervisor for a governmental agency—she is in fact privately employed.

As a city commissioner her role is purely legislative — not administrative. She does not have hire/fire power as a commissioner, and she manages no staff. So, on questioning the supervisor, we learned they accept the form on face value, as it is signed under a statement of perjury.

One of the two candidates for the city commission seat took the form to the sheriff’s office to complain of a Sunshine Law violation — and the complaint was rejected as they accept whatever the supervisor told them— but the DOS form is not truthful. The MCSO will not send the report to the local state attorney office. Any advice on how to proceed?

A. The language in section (119.071(4)(D)2.h.) states “the home addresses, telephone numbers, dates of birth, and photographs of current or former human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district whose duties include hiring and firing employees, labor contract negotiation, administration, or other personnel-related duties….[are exempt from the open records laws.]”

In this case, the SOE apparently has redacted the address, DOB, and phone number of the commissioner based on the information provided by her in the notarized exemption request form. So, I think the agency can legitimately redact that information in reliance on the info. provided.
But what if, as you point out, other information comes to light questioning whether the commissioner is what she claims to be in the notarized form? What can be done?

We asked Jim McGuire at Thomas LoCicero to weigh in. Jim says based on the facts, the commissioner clearly does not fall within the scope of the exemption and the sheriff misunderstands what the exemption says. It does not apply to every “manager or assistant manager of any local government agency.” Rather, as highlighted, it applies to “human resource, labor relations, or employee relations” managers OR assistant managers, and only if their duties include hiring and firing, labor contract negotiations, administration or other personnel-related duties. So, the exemption is being wrongly enforced.

He suggests you might write the SOE to explain what the statute actually says and to say that the SOE should not accept at face value an affidavit that is demonstrably false, since this person’s only public position is as commissioner, which is not a position covered by the exemption. The paper could threaten a lawsuit if the SOE continues to assert an exemption that demonstrably does not apply. Of course, it’s not clear the paper would actually want to sue. And there does not appear to be case law addressing whether an agency can rely upon an affidavit, or whether, when challenged, it must make its own inquiry into the facts. Those issues could be somewhat costly to litigate.

At the same time, there might be a good story here about how the commissioner’s exemption claim is wrong and about how the SOE is not effectively complying with the public records act.