Legal Update

From the Legal Hotline (877-NEWS-LAW)

Surrogacy ads, delay of public records requests and more in today’s Legal Hotline recap.

Q. Any issues running the following in the classified section? “A professional couple is looking for a surrogate to conceive and to birth their baby. Must be healthy, no bad habits, up to 30 years of age. Very high compensation + medical & legal expenses. [Jane Doe (phone)]”.

A. Gestational surrogacy contracts are legal in Florida although there are some limitations—must be legally married, over 18 years of age, etc. Also, the contract can allow payment by the commissioning couple of “only” the “reasonable living, legal, medical…expenses” of the surrogate directly related to the prenatal to post-partal period. See 742.15.

Based on this, I don’t like the part of the ad that says “very high compensation” (in addition to payment of the expenses.) Although this would not be a risk to the paper, you might still advise them to take out “very high compensation.” Maybe the ad could just say– “Very reasonable allowance for living, medical, legal and other expenses,” or some variation of that.

Q. We have ongoing public records requests for text messages from city council members and from the city attorney. It has been two months and I have yet to receive these records which are, by law, public records. The response from one council member is that he gave his text messages to the sheriff’s office but he does not give any indication as to when I am to expect these records from the city. Does state law require I chase the records down with the sheriff’s dept. for him?

Also, is it normal for an entity to wait more than three months for their public records request to be completed? What about asking the city for a list of requests in which it took more than 60 days to respond? I feel they are intentionally trying to wear us down in the hopes we will ‘go away’.

A.The fact that a record is also maintained by another agency (sheriff’s dept.) does not relieve the city of the obligation to permit inspection and copying (absent an applicable exemption). Similarly, the city cannot refuse to allow inspection of records it made or received on the grounds that the documents are in the actual possession of another agency, the sheriff’s dept. (this latter rule seems to harken back to the days of paper but it is still valid).

As for timing, although the Sunshine Law does not contain a specific time limit for compliance, delay is permissible under very limited circumstances (e.g. determining if records exist, some of the record is exempt, fee not provided, etc.). Otherwise, the only delay is the limited reasonable time allowed to retrieve the record and delete what is claimed exempt. If the delay is unjustified (over 3 months is quite a delay), the agency has unlawfully refused access. Also, they cannot cure this by magically producing the records after you complain about the delay.

I like that you sent a records request for delayed responses—you might be able to show a “pattern of delays” and show a willful violation.

Q. What would you do, if anything, when you have a local government candidate who tries to curry favor with Trump voters by labeling anything in local paper as “fake news” and separate himself from his military veteran opponent. Nothing is provided of course as to why it is fake. This is getting very annoying! Almost want to advise a lawyer libel letter but maybe that would backfire. Any thoughts?

A. We asked a seasoned publisher who has dealt with this to weigh in. His local sheriff loves President Trump but hates the newspaper and the news in general (except the photos of him his department puts up on Facebook). He actually stopped one of the newspaper’s reporters from entering a press conference the other day.

Anyway, this publisher says you might consider having a reporter call the candidate and ask him to be specific. Or, have the editorial board invite the candidate in for a talk and then ask him to get specific. Or, you could write a story on his lack of specifics. Of course, you could always refuse to endorse the candidate. At some point, the public should know about his background, including any bankruptcies, nonpayment to employees based on public records/interviews, etc. You could also do a story on his opponent.

In general, we are hearing a lot about the “fake news” label being thrown about in other areas of the state—sometimes, like here, in an attempt by commissioners or candidates to curry favor with their base or because of their hatred of their paper for critical reporting. I think many people get that and, like you said, when Trump uses it he usually says why he thinks its fake. After the Annapolis shootings, there seemed to be a lot of sympathy for the paper, which, like other local papers, tries to bring news to their audience despite adversity.

I do have reservations about a libel letter directed to the candidate. My worry is that if you go after him, he makes himself out to his base to be a “martyr”, and it backfires on you and the veteran opponent. Specifically, I would anticipate that if a letter is sent, he will then publish it in his “postcard,” website, or other campaign materials and say “see, these are bullies,” or something like that. Maybe that is not a problem far as you are concerned but I just raise it as a possibility.

Finally, FAF has collected various Florida editorials about FAF and newspaper efforts to protect open government and press freedoms in Florida. The News Media Alliance has shared a coordinated response headed up by the The Globe—see their website.

Q. Do you look at story drafts to help ensure the paper is not trolling in libel waters? My article involves a city commissioner who was forced to quit her job with an employer due to the employer’s policy prohibiting employees from holding public office while working at the company (unless pre-cleared). Most of the comments in the article have been confirmed via email from the commissioner and the city commission has discussed the issue, further fortifying that the issue is of public concern. But will you look it over?

A. Yes. We regularly review drafts and in doing so often reach out to Jim McGuire at Thomas LoCicero firm, who is an expert in libel law. In this case, Jim looked over the copy and he agrees in general that the company’s policy may not make sense to a lot of people including the commissioner, but the company obviously stands by its policy. In any event, Jim doesn’t think much needs to be changed but perhaps to make it little safer, you could revise it slightly and take out the quote attributed to the company’s rep and instead attribute it to the company more generally. We can help you regarding future stories if the need arises.