From the Legal Hotline (1-877-NEWS-LAW)
Q. We received a request from a lady to remove her name from the sheriff’s “jail report” i.e., list of arrests published in our digital newspaper. We did not run a story on her, and her mugshot is not in our newspaper. She is stating that by court order we must remove her name from all of the jail reports she has been listed in.
A. Newspapers generally are not legally required to remove accurate jail reports or arrest stories from their archives or websites, even if the subject has obtained a court-ordered expungement. Expungement orders typically apply only to government agencies and court records, not private entities like the press, which are protected by the First Amendment.
However, although you are not legally obligated, you still may, upon request, remove or update articles if shown a copy of the expungement order.
So, it’s really up to your own editorial discretion.
Q. When you have a moment, one of our city police officers was arrested while off-duty for misdemeanor battery of spouse. We have requested the arrest report and booking log from the city police department and have included a request for the 911 call so we don’t have to make a second request if we decided we wanted more after reviewing the documents.
The city is refusing to release the requested records citing F.S. s.112.533 relating to receipt and processing of complaints. There is an administrative investigation underway.
Does an internal investigation exempt the public record documents requested while it is taking place?
A. The section cited by the city says complaints against law enforcement officers and the information actively gathered during an agency’s internal or administrative investigation are confidential and exempt from public records requests until the investigation is concluded. However, transferring a public record (like an arrest report) to an internal affairs file does not magically make the original document confidential. If the arrest report was a public record when it was generated, it remains a public record regardless of whether it is being used in an ongoing administrative inquiry.
The Sunshine Manual says basically the same:
“While s. 112.533, F.S., applies to complaints and records obtained pursuant to the law enforcement agency’s investigation of the complaint, it does not transform otherwise public records (such as crime or incident reports) into confidential records simply because the actions which are described in the crime report later form the basis of a complaint filed pursuant to s. 112.533, F.S. AGO 96-27.”
So, I would think these documents should be available with any allowed redactions.
Q. Can I print this if it is true? “He has drawn controversy due to his criminal history, parole status and reports that he charges up to $900 per day for equipment rentals while organizing nighttime beach gatherings for social media content.”
A. There may be some risk if the person turns out to not have a criminal record or does not charge those fees. However, since you think the details are accurate, it is likely protected speech since it relies on truthful or substantially true factual assertions, avoids false statements of fact, and reports on public information without malicious falsity. If this person is a public figure, you will have added protection because there will be a higher burden of proof. That said, from a practical standpoint, it is usually hard to predict what will motivate a person to sue regardless of the merits of the case.
Q. Our new advertising director, along with our publisher, are asking if it is OK to take photos from MLS listings and use those in advertisements. If the photos and MLS listing are provided to us by the agent, then is it OK for them to use it?
A. Copying an agent’s active listing or photos without permission may be a copyright violation. However, if the agent provides the photo, tells you that he/she owns the photo (in other words, took the photo), and specifically says you can use the photo, then it should be OK. Jim McGurie at Thomas & LoCicero notes to be cautious if you are unsure about the agent’s ownership of the photo, and if so, to seek confirmation.