From the Legal Hotline (877-NEWS-LAW)
Public record issues, medics arrested and more in today’s Legal Hotline recap
Q. We had two local EMS/medics arrested for buying prescriptions for Adderall through someone’s name and then selling them to other people. The press release identified the arrested persons and the charges and included this sentence: “In accordance with F.S 119.071, certain information relating to current or former medical technicians and paramedics is exempt from public release.” They did not include mugshots, saying they would not send them according to that statute.
My question …. If we have their pictures on file, from where we took their pictures back in May during National EMS week (we ran two full pages of all the EMS personnel and a mini-spotlight on them), can we run our own picture – that is our picture that we took with our cameras?
This, of course, is a front-page story about their arrest.
A.We asked Jim McGuire to weigh in on this question. His view is that you can certainly use the photographs previously taken, with one caveat: When the photos were taken, did the EMS techs sign some sort of release with the paper describing how the paper would/would not use the photos? If so, the paper will want to make sure it acts consistent with that release. If there was no release that limits the paper, you can go ahead and use them.
Q. We need some guidance on a public records issue. In a nutshell, our local sheriff’s office arrested an individual over the weekend on multiple charges including battery on a law enforcement officer. The pass-down log from our city’s police department from the weekend noted their assistance in the arrest and in tasing the individual (and noted sheriff’s deputies had already tased him before they arrived on scene).
We have pulled the arrest affidavit and not once did the affidavit mention the tasing. We requested all supporting reports including use of force. The sheriff’s office denied the request. The police department complied with our request and provided three related incident reports to the use of force.
This afternoon I was summoned by the major of the sheriff’s office and during the hour-long sit down he claimed emphatically and repeatedly that the sheriff’s office would not release any supplemental reports in the case here on out per instruction from the state attorney. The major alleged the SAO ordered only the release of arrest affidavits and no other documents on ANY cases in the future until such time as they go to discovery.
We need some guidance on our next step.
A. First, keep in mind that Florida law lists certain information that cannot be kept secret under the criminal investigation exemption, and it is always subject to disclosure unless some other specific exemption applies. Section 119.011(3)(c). For example, the statute expressly excludes “the time, date, location, and nature of a reported crime” from the exemption. So that sort of information must be produced.
Second, on the flip side, the criminal investigatory exemption will last as long as there is an “active” investigation, “active” being defined quite broadly. Thus, for example, a police department’s criminal investigation into a shooting involving its officers continues to be “active” even though the cases were sent to the state attorney’s office and the department did not know if there would be an arrest in a particular case. That example would appear to apply here, as well.
Q. We requested, and received, the city’s environmental consultant’s draft report concerning a state/city mitigation plan for restoration of improperly removed mangroves from city property. The report includes the following copyright language: “the whole and every part of this document belongs to [consultant] and may not be used, sold, transferred, copied or reproduced in whole or in part in any manner or form or in or on any media to any person other than by agreement with [consultant].”
Are there any issues quoting from the report for a news story or any other use?
A. I think you can quote from the contents of the draft report in your article as it appears to be a public record. Further, even if it has copyright protection, quoting or using its content should fall under the fair use exception to the copyright law as the draft is the heart of a current news event (detailing the assessment, monitoring and maintenance restoration that the city is potentially proposing to implement).
However, I would not print any photograph/video/visual material contained in the report. Finally, I would not advise linking the online story directly to the entire report. Jim McGuire agrees with this assessment. He advises that if you want to link the report, link to the city’s website if the plan is linked there, as that is probably the safest approach
Q. We received a draft invoice from our county school district regarding our recent PRR, in which the city estimated its cost to respond. They intend to bill us for a total of 58 hours of “clerical assistance” to “prepare, review, and redact” documents found in 20 “cases” of documents. Given the cost involved ($1,861), the city is requiring our preapproval before proceeding and no further action will be taken until they receive our response.
Can you look at this? The cost seems pretty high.
A.The open records law allows agencies to impose a service charge for “extensive use” of resources and personnel but it does not define that term. Generally, the charge must be “reasonable,” and it must be based on the “actual labor costs incurred” or attributable to the agency.
I think you could ask them to explain the breakdown –for example, how did they calculate the labor cost and the time for the review (in particular, the 40 hours for review of 8 of the cases seems high where others take a much shorter time; same point for 8 hours for 2 cases.).
Courts have said “excessive, unwarranted special service charges deter individuals seeking public records from gaining access to the records to which they are entitled.”
Barbara Petersen also weighed in on this. She advises that you ask for the agency’s definition of “extensive” and check to make sure it’s been correctly applied. For example, if the definition is 30 minutes or more and your request takes 20 minutes, you should pay only the actual cost of duplication. If your request takes an hour, it’s the actual cost of duplication plus an extensive use fee. She agrees the fee must be reasonable and must be based on actual costs incurred.
If the agency charges for personnel time, they can charge no more than the hourly rate including benefits of the lowest paid person capable of performing the task, even if that person didn’t actually do the work. And she further agrees you can ask them to explain the breakdown. Another important question: how many records are responsive to your request.
As Barbara observes, “it’s hard to fight this stuff unfortunately, and the AG’s mediation program can’t help either.”
Q. Can you tell us what information we should include on our contracts for ads placed in our newspaper. What makes it a sound legal document? Our form is a one-pager requiring various information from the advertiser.
A. There is no “standard” advertising contract or placement form; it will be binding as long as it is signed, dated, and reflects in general the obligations of the parties. In other words, if the contract is breached, and you either have to demand payment or go to small claims court, the clearer the language regarding their obligations the better off you will be legally.
That said, the form looks good to me–it describes the placement details requested by the customer, design services rates, and the customer signs and dates the form. Some larger newspapers or ad placement agencies have a broader agreement that the insert order or individual ad contract incorporates. I can send you a form if you need it for large orders or if you run into issues where you and/or the customer have had differing interpretations. But for smaller ad placements, this should be adequate.
Q. Follow up– When you say “contracts breached,” are you talking about non-payment? Do you have any recommendations on a cost-effective way of enforcing contracts? I recently had two contracts broken and need to know if there is a way to get a resolution without spending a lot of money.
A. Yes, we are talking about non-payment. If that occurs, you probably need a demand letter that spells out to the customer what services/ads have been provided/run and what invoices are owed and that you will seek redress if not paid. I can help with a letter if you like. If that doesn’t work, you can always file a statement of claim in small claims court and ask for relief from the county judge. It is not difficult—you could easily do it yourself. One problem, however–if the person is insolvent, it may not be worth the time. Here is a link re: filing a statement of claim– https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Small-Claims