From the Legal Hotline (1-877-NEWS-LAW)
Q. We sent a public records request to our county manager asking for copies of any records related to county requests for Attorney General opinions concerning land development regulations. The CM responded that the estimated cost to compile and produce the records would be $500 and asked if we wanted to proceed as submitted or if we wanted to modify the scope to adjust the associated cost. We are considering paying this but would like a breakdown of how they reached the amount, in terms of the hourly charges and such.
My question is whether there’s a formula for how they are supposed to come up with a cost–the current amount seems a little excessive. We suspect the county may be trying to “overcharge” to deter us from trying to obtain the records. I just wanted to ask you to get your take on a figure that large.
A. The CM can impose, in addition to the cost of duplication, a special service charge for “extensive use” of clerical or supervisory labor or extensive information technology resources. The term “extensive use” is not defined (there’s no legal formula per se). The law simply says the fees must be reasonable and based on actual labor or computer costs actually incurred by the CM’s office. The courts have said there’s no automatic application of the extensive use fee so the county or CM must define it.
It’s hard to say whether $500 is reasonable (not excessive) without more information such as how many records are responsive to the request, the time spent reviewing them, etc. Looking at the CM’s response, I would note that he only refers to “estimated cost to compile and produce the requested records” and doesn’t specifically refer to what labor or technology is being “extensively used.”
I think it is good practice to raise these questions regarding breakdown of the cost. I would ask/look at who is doing the reviewing and the actual time spent. Is it the lowest paid person capable of performing the task? How many records are responsive to the request? What is the CM’s definition of “extensive?” If it’s 30 minutes or more, for example, and the request takes 3.5 hours, then the CM can charge only for 3 hours of extensive use time.
Those are the basic questions whenever an extensive use fee is being charged.
The CM’s response allows you to modify the scope to adjust the associated cost. You could take them up on this and narrow your request if you want.
Q. Are CDDs allowed to place their notices on the county website? I didn’t see that they were a notice type that was allowed. Can you confirm?
A. A “governmental agency” can use the county website. “Government agency” is defined to mean “a county, municipality, school board, or other unit of local government or political subdivision in this state.” “Community development districts” are defined as “a local unit of special-purpose government which is limited to the performance of specialized functions.” The AGO has opined that “under state law, [a CDD] is generally considered to constitute a political subdivision of the state.” See informal opinion issued June 27, 2012. As a result, I would think a CDD can use the county website.
Q. We received a letter to the editor that refers to sale of a family business from some “Smith” family members (Smith A) to other members of the Smith family (Smith B). In the letter, Smith A claims Smith B, who now manages/owns the business, is in “default on loans, which has embarrassment and tarnished the name of Smith A, which Smith A had nothing to do with, and feel the need to apologize for the actions of Smith B.” Everything in the letter seems accurate in that Smith B is currently in bankruptcy proceedings. Please let me know what you think.
A. Whether the letter is potentially libelous depends on whether the factual statements made about Smith B are completely true. So, if Smith B is indeed legally in “default” on his loans and lease agreement, and other factual statements are true, the letter is not libelous, regardless of how damaging it is to his reputation. However, if those statements are false or misleading, publishing the letter carries risks.
You indicate everything is accurate in that the company is in bankruptcy proceedings. Also, statements like being “aghast,” “embarrassed,” or feeling that the family name is “tarnished” are opinions, which are usually protected.
On the other hand, even if the default claim is accurate, you still might consider contacting Smith B before publishing. Let Smith B know that a letter has been submitted regarding the county lease/loans and ask for his perspective.
If Smith B provides a context-altering response (e.g., “The county made a clerical error, and we are actively resolving it”), you may choose to hold the letter, reject it, or ask the authors to amend it to reflect the full picture.
If the legal status of the “default” is at all muddy, you can ask the writers to alter the phrasing to something more verifiable, such as: “Recent public reports regarding the county lease agreements have embarrassed us…” or focus entirely on their desire to clarify that they no longer manage the company.
You can always turn this into a news story. You could have your reporter investigate the county records and write an objective article, giving both families a chance to comment on the record. Once the facts are public news, publishing the letter becomes much less risky.
Note that some papers have a letters-to-the-editor policy stating they will not publish personal family disputes or business grievances. You can reject the letter purely on the grounds that it violates your guidelines.
Finally, I reached out to Jim McGuire at Thomas & LoCicero in Tampa, our libel attorney. He advises caution and says: “The proposed letter gives me some pause. Among other things, it blames the company’s failures entirely on Smith B. Does the paper really know that that analysis is accurate? Perhaps the company was in financial trouble when it was sold to Smith B. And I don’t like the other family members apologizing for Smith B’s conduct. He might believe his conduct was entirely appropriate.”
I know this is a lot of info. but these types of letters can be problematic.
Q. I am looking to update our independent contractor forms for delivery, graphic designers, etc. Would you have anything updated that isn’t terribly long?
A. I will forward a couple of form agreements related to photographers that you could probably easily convert it to a graphics designer. The second longer one relates to delivery, which you could use in a simplified version.