Right to privacy, GPS tracking of independent contractors and more in today’s Legal Hotline recap.
Q. This is not a pressing matter although I think you will find it more “head shaking” than anything else. We ran a story regarding a public event to educate the public on human trafficking…and the piece included a couple of references to the word “mafia.” An elderly reader of Italian heritage complained and threatened to sue us for using this term claiming it defames him. Don’t suppose there is any grounds for this, is there?
A. No. The story clearly uses “mafia” to refer to organized crime (see Webster’s dictionary: “a similarly conceived criminal organization or one associated with a particular traffic”) not the actual secret criminal society of Sicily. Further, even if it did, that would not be any ground for defamation.
Q. I have been experiencing repeated difficulties in obtaining information from our local police department. This latest leaves me speechless. I requested the department’s arrest report/complaint affidavit for a man who was booked into the local jail on an aggravated battery charge (this was followed by an information/indictment filed by the state attorney). In response to my request, the department rep. said he had spoken to the state attorney and was told the information document is not available due to the criminal investigation exemption and once the investigation ends they will contact us. Please advise.
A. The department can deny a public record request only if there is a specific statutory exemption. The same is true of the state attorney. Technically, criminal investigative information is considered “active” so long as it is continuing with a reasonable, good faith anticipation of an arrest or prosecution. However, s. 119.011(3)(c) says the following information is NOT active criminal investigative information – basically the information in your basic incident report:
(c) “Criminal intelligence information” and “criminal investigative information” shall not include:
1. The time, date, location, and nature of a reported crime.
2. The name, sex, age, and address of a person arrested or of the victim of a crime except as provided in s. 119.071(2)(h) or (o).
3. The time, date, and location of the incident and of the arrest.
4. The crime charged.
5. Documents given or required by law or agency rule to be given to the person arrested, except as provided in s. 119.071(2)(h) or (m), and, except that the court in a criminal case may order that certain information required by law or agency rule to be given to the person arrested be maintained in a confidential manner and exempt from the provisions of s. 119.07(1) until released at trial if it is found that the release of such information would:
a. Be defamatory to the good name of a victim or witness or would jeopardize the safety of such victim or witness; and
b. Impair the ability of a state attorney to locate or prosecute a codefendant.
6. Informations and indictments except as provided in s. 905.26.
Q. Following up on the above question, as it turns out, I obtained the records from the sheriff’s office, which served the arrest warrant. This is good news, however, the sheriff’s office records contain victim statements. How much of these am I clear to use?
A. As a rule, a governmental entity cannot prohibit publication of information lawfully obtained. So, as far as potential defamation liability to the arrested person is concerned, once the sheriff’s office releases information, it’s generally safe to use. We also reached out to Jim Lake, our expert at Thomas & LoCicero, and he adds that the paper might just make sure to mention the arrested person’s not-guilty plea (if one has been entered) or a response from the arrested person (if provided). That will help if assertion of the fair-report privilege is necessary.
Q. We have a situation in our city where a man (let’s call him “Bob”) has been a fixture in our downtown, living on the streets, for at least a decade. According to those who know him, he was diagnosed as a paranoid schizophrenic, and he’s been on a merry-go-round of: living on a bench on the street, eventually getting arrested, getting out of jail on probation, getting arrested again, disappearing for a while, reappearing on the bench, etc. He has numerous court cases in the public record, including many Baker Act commitments and a laundry list of stalking, theft, battery on LEO, assaults, etc. But in spite of all this, believe it or not, many in the community vouch that he’s an intelligent and usually pretty nice guy (which is why so many people have been tempted to try to help him).
Anyway, it has now gotten to the point that the city is crafting a new ordinance directly targeted at Bob so he can be forced, more or less, to either accept help and toe the line, or go back to jail. So, here’s why I’m telling you. With this new law coming up, I’m thinking it’s past time that we write about Bob. I’m thinking he is now a public figure. Nevertheless, I’m concerned about how far we can go without violating his right to privacy. Our stories depend largely on the public record and comments at the recent city meeting, but also include interviews with his family and others who tried to be help him, and Bob himself.
Bottom line: Do you vet these type of stories? What do you think?
A. Yes. I’ve looked at them and they are well written, balanced, and illustrate the complicated social challenges faced by both the community and the subject in cases like this. I have a few comments which I will share that are fairly technical in nature. In sum, we are happy to help vet these types of stories and point out areas where liability risk can be reduced. We can also tap into the helpful expertise of our colleagues at the TLO firm.
Q. There is a GPS app for smart phones that would allow us to monitor the timing and actual coverage of our delivery independent contractors. Since we have penalties for late and non-delivery, I see this as much a protection for them as support for us…but not sure we can “require” it since they are contractors. We are delivering a large number of papers and have to find a way to improve overall quality of delivery.
The app in this case would be on their personal iPhones. My understanding is they can disable it when not running the route. The benefit is both to the contractor and us. We have seen a significant increase in late delivery over the past year (to the point of why deliver it at all) and to that end the contracts now provide a window delivery time. Anything after that and we start to impose penalties. Same goes with missed deliveries. This app provides some protection to the IC because as of now, the caller is “correct.”
Does this threaten the IC status–say, if a labor department inquired about the arrangement? What about privacy issues?
A. I was unaware of this app but it sounds like it has tremendous benefits for both the newspaper and carrier. However, I do think you are wise to hone in on the legal issues you raise.
First, will this have any effect on the IC status or increase the risk of any possible labor claims or actions by labor agencies? The main criteria Florida uses in analyzing IC arrangements is the extent of the right of control by the employer over the details of the work. Here, you would be requiring ICs (or their employees) to use the app, so this would seem to be more control. However, if the app is used in a way that does not involve the supervision of delivery, then it seems it would not be a problem. In other words, if possible, you would want to structure any agreement so that the app is used to verify the end result of the contract that the publication actually gets delivered but not to directly control how the carrier delivers the paper.
The second area is the privacy area. Courts have generally upheld an employer’s right to monitor their employees through the use of GPS and other tracking devices on company-owned equipment. The law is less clear about employee/contractor-owned devices. The problem with tracking contractors (or employees) via GPS, is that they might as some point feel their privacy has been violated and commence litigation. I would think that in this case, if you could require the ICs to upload a GPS-app on their devices which would be enabled only during working/delivery hours, and if they can disable it before and after, then they do not have an expectation of privacy during working hours, and there is less risk of an invasion claim.
If you do move forward, I agree that it is important to get their buy-in/permission. Getting their explicit permission to be tracked is critical because that is the way the law is evolving (e.g., EU’s General Data Protection Regulation where employers must be able to provide a valid reason for your desire to record workers’ activities and gather related data and to explain why they think doing so will be beneficial).
Here is a good article– https://www.theatlantic.com/technology/archive/2017/01/employer-gps-tracking/512294/