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

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

Q. In our county, we have had multiple instances where you can see county commissioners texting each other while on the dais and one county commissioner who is taking voting advice through text messages from someone in the audience.

I did a public records request for the commissioners’ text messages during the time of the meeting. It produced nothing, which indicates they are using their personal cell phones. I followed up with a more specific request for text messages on their cell phones – so as not to include any personal/family messages. My request was met with the statement that the county has no access or control over personal cell phones.

I pushed the issue by saying that personal cell phones can hold public records and if a commissioner uses his cell phone for county business, it becomes a matter of public record. She then emailed me back and said, the commissioner says he does not have anything pertaining to your request.

Of course he said that…I guess my question is, how does the sunshine law get enforced on a personal cell phone or laptop. How do we prevent these types of violations from happening? How can we be sure there is no sunshine violation if we can’t have them turn over their phone to the records keeper for specific requests?

A. This is a challenging area because it is hard to enforce Florida’s sunshine law against cell phone violators outside of a lawsuit. It is interesting that the commissioners were texting during a public meeting. An argument could be made that they were working on county business, so any communications they were having at that time (regardless of who owned the phone) is necessarily a public record.

In any event, writing about what happened might have some value. Also, we reached out to Jim McGuire in Tampa. When Jim’s firm (Thomas LoCicero) makes a public records request, they often at least hint about the prospect of litigation if the request is not complied with. That sometimes helps.

If a lawsuit is filed, there are strong judicial remedies available to private plaintiffs to force disclosure. For example, a court can issue an injunction where there is a demonstrated pattern of noncompliance. Obviously, a lawsuit entails attorney time and resources but there are law firms that pursue such cases as attorney’s fees can be recovered if the court finds the records were unlawfully withheld. The case must be strong because “bare allegations” that additional records “should” exist won’t suffice. On the other hand, if a lawsuit is filed, the commissioners can’t then produce the records and avoid fees.

There are also penalties for commissioners who “knowingly” violate the open records provisions. These include being subject to suspension and removal and a misdemeanor offense. So that is available if there is evidence from, say, third parties that private cell phones contain texts that are public records or conversations that create a sunshine violation. Of course, it usually would be the state attorney ‘s call to bring such charges and those are rare.

Q. I am looking for resources and materials to use in developing policies and procedures to help our journalists and newsroom deal with law enforcement trying to execute search warrants to seize evidence in pursuit of criminal malfeasance. As we’ve seen from recent law enforcement raids on the Marion County Record in Kansas and the home office of Timothy Burke in Tampa, local police and federal agents seem somewhat remiss when it comes to executing search warrants on journalists to access documents and equipment like computers, hard drives and phones. So, what should reporters and newsrooms do to prepare for these events? How should we behave if officers arrive on our doorstep? What do you say?

A. To help answer your questions, Florida’s First Amendment Foundation and Freedom of the Press Foundation, building on previous efforts of others in earlier years, including the law offices of McGuire Woods, Thomas and LoCicero, as well as the Student Press Law Center, have created a short guide to help you if you ever find yourself staring at a warrant. It is broken into four topic areas: the first is a brief pragmatic 10 step guide of what to do if law enforcement shows up at your newsroom or residence with a warrant. The second is information on using encryption to protect your most important files and source contacts. The third is a primer on the provisions of the 1980 Privacy Protection Act. And the final section is about state shield laws, using the Florida Shield Law as an example—here is the link: https://media.freedom.press/media/documents/SEARCH_WARRANTS_AND_JOURNALISTS.pdf

Q. We’ve collected information on the counties in Florida that have a website dedicated to public notices in connection with an academic study. We were able to identify 30 counties that have public notice websites. This is a bit more than we (and perhaps you) expected. Out of these 30 counties, a half dozen or so explicitly moved to the new public notice regime. Does this make sense to you? Should we interpret it as 24 counties are preparing to move to a new regime? Additionally, we were only able to find information on one public hearing, in Sarasota. Does this match your records?

A. I believe many of Florida’s 67 counties will have “public notice” sites, just as you have found. These sites would be for the public to peruse various activities/projects/new regulations, etc. by their local government. For example, a run of the mill notice of a county commission hearing could be posted on their public notice site. I would not automatically assume those counties with such sites will be moving to the new county website-only option. That is because the types of legal notices we are talking about must meet Chapter 50 requirements which include an affidavit by the newspaper (or the county website administrator, if that option has been officially adopted). If in a newspaper, only certain types of newspaper can run the ads. If in the new county option, the requirements that apply to that option must be met by the county, again, for example affidavits must be kept and mailed notice must be offered if requested.

As far as we know, a dozen or so counties have actually formally opted to place these type of “Chapter 50” notices pursuant to the new law’s county website-only option. Some of these counties have held hearings in that regard, such as Alachua, Citrus, Leon, Polk, Sarasota and Volusia. There may be others. The smaller counties must have a hearing, but technically the larger counties are not required to do this.

Q. We’ve seen a few email sales scams lately. Have other members run into this problem?

A. A few months ago, there was a scam hitting radio stations which later apparently spread to target other formats including newspapers. The scam involves what appears to be a fake consulting/advertising agency in Canada that wants to purchase advertising on behalf of a client, even providing advertising copy and asking for an agreement for a certain sum. Later, the scammer attempts to steal funds through electronic fund transfers and stopping check payments. Members are advised to vet ad agencies/consultants they are unfamiliar with. Here is the link. https://www.hometownstation.com/santa-clarita-news/crime/a-devious-scam-hitting-radio-stations-476465