From the Legal Hotline (877-NEWS-LAW)

Compensation records, FDLE inquiries, criminal information and more in today’s Legal Hotline Recap

Q. This is the first election cycle we will go through and we’re wondering about any FPA guidance. Our focus is on candidates’ advertisements.  Our concern is our responsibility to ensure compliance with state or local election laws.  If a candidate provides an ad, do we have an obligation to evaluate it for compliance with the election laws regarding advertisements?  Ensuring it contains certain language? Comments about non-partisan elections?

We would appreciate being advised of any guidance, opinions the Association has issued regarding handling election matters – particularly candidate advertisements.

A. Here is a white paper on the subject, which is also posted to our website for members. As for your compliance question, the paper is not responsible for complying with the ad disclaimer laws but should be aware of them as your client may not always be up to speed.

Q. We received an ad for a “creative money-making plan” that offers commissions up to “$10,000 monthly or more.” To “start” the program, the ad requests a certain amount in cash and Forever stamps and in return they receive “premium buyer leads” on “peel and stick labels.” I couldn’t really find much about them online. We value your input as to the suitability of running this ad in our college market

A. It’s not clear to me what they are selling for the cash and stamps they ask for. I would request more information on the service or product before running it. If it is a scam, the newspaper will usually not be in the liability chain, unless there was some intentional malfeasance on the paper’s behalf. Still, I would vet ads like these as best you can to avoid negative results to your readers who might respond.

Q. I am a reporter with The Chronicle of Higher Education. I’m working to obtain compensation records from Florida Atlantic University, and I was hoping you could help me break down a wall I am running into there.

I had requested records from FAU which capture the employer contributions made by the institution to plans associated with the employees who have served as its president since 2012. FAU denied my request, citing this statute:

“All records identifying individual participants in any deferred compensation plan under the Government Employees’ Deferred Compensation Plan Act and their personal account activities shall be confidential and exempt. Section 112.215(7), F.S.”

FAU contends that the annual value of the contributions it makes towards a specific employee’s deferred compensation plans [457(f), for example], or their retirement accounts [403(b), state pension, 401(k))] are exempt from disclosure.

I understand the need to exempt from disclosure any plan information pertaining to something like asset allocation. But does the sentence above really cover the transfer of government monies from the state coffers to an employee? FAU is the first university to try and deploy this exemption. Florida State U., the U. of South Florida, the U. of Central Florida, the U. of Florida, and the U. of West Florida have all been able to disclose the values of these two forms of compensation, or have been able to provide records which capture those values.

Is there any case law or other statutes I could deploy to obtain this information? Any guidance you could give would be highly appreciated.

A. Barbara Petersen has a lot of experience in this area so we reached out to her. She responded in detail as follows:

“If I understand your email, you want the TOTAL contributions made by FAU for those who served as president of the university, is that right? Under Florida’s public records law, exemptions are to be strictly construed and narrowly applied.  Section 112.215(7) protects personal identifying information and personal account activities, so it would not protect the total contributions made by FAU to those who served as president.  I looked at FAU’s website and it appears there have been two presidents since 2012 – Mary Jane Saunders (2010-2013) and John Kelly (2014 to present).  To provide the total contributions, then, would not identify either Saunders or Kelly, right?  Let me know if my understanding of what you’ve requested is correct and we can help you draft a response to FAU.

There’s a provision in Florida’s public records law, s. 119.07(1)(f), F.S., that requires FAU to explain, in writing and “with particularity” the basis for its conclusion that the cited exemption applies to the records you’ve requested.  I’d start there.  You know the participant’s name.  You’re not asking for his personal account activities, right?  You’re wanting to know only how much FAU is contributing to his retirement.

Have you requested a copy of his employment contract?  That may give you some clue.  I checked on the university salary website – it gives only the total compensation.

Feel free to include me as a cc: on your response to FAU.  It sometimes helps.

Let us know how FAU responds.  If need be, we can put you in touch with Pat Gleason; she runs the open government mediation program and given that the other universities have provided you this information, she may be able to help. Good luck!”

Q. Thank you in advance for your help. Our paper imposes a 2.5% finance charge or subscription accounts that are more than 30-days due. Is this against the law?

A. I did some quick research and could not find anything that would prevent such a late fee but I am certainly not an expert in the area. You might reach out to the company’s attorney for a second opinion—he/she might have further information.

Q. This question relates to the newspaper notice procedures for disposal of surplus lands in Florida.

My understanding from our local city attorney is that Florida law (section 166.77) at one time required municipalities selling real property to provide newspaper notice once a week for at least two weeks. However, the law was repealed at some point, such that now the notice provisions only apply to the disposition of county property, not municipal property. As a result, according to the attorney, absent an ordinance prescribing the procedures to be used in disposing of surplus municipal real property, the manner of disposing of such property (including how noticed) is left to the discretion of the municipality’s governing body. See AGO 96-16 and the older, AGO 82-76),

Is this accurate? Frankly, I have always thought the law viewed county and city governments similarly and was operating under the guidelines set forth in FS 336.09 and FS 336.10:  “Right-of-Way” and/or “alley vacate requests” are required to have a scheduled public hearing, and require two legal notice advertisements in the newspaper.

A. After reviewing the various laws involved,  it appears that the Municipal Home Rule Powers Act, Ch. 166, F.S., allows municipalities broad home rule powers on how to go about advertising and disposing of  surplus land. Although this language does not cover the “Right-of-Way and/or alley vacates” requirements, the language (FS 366.09 and FS 336.10) relates to county roads and commissioners, not municipalities. Because such broad discretion is accorded municipalities and public notice under Chapter 166, the city attorney appears to be correct in saying the city is not bound by the same requirements and city leaders can use their discretion for what is in the “best interest” of the community.

Q.Are there any rules dictating how long an agency can keep a report, in this case an FDLE inquiry forwarded to the State Attorney, under “review” without any action being taken?  What would be needed to successfully argue that no “review” is being taken and a report is merely sitting on a desk?

A.“Criminal investigative information” is considered active (and, therefore, exempt from disclosure) “as long as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.” Section 119.011(3)(d)2., F.S.  An investigation will be deemed to be “active,” even though there is no immediate anticipation of an arrest, so long as the investigation is proceeding in good faith, and the state attorney or grand jury will reach a determination in the foreseeable future.

On the other hand, if there is no good faith anticipation that the subject would be arrested or prosecuted in the near future, the exemption does not apply. I would also note that otherwise disclosable public records are not removed from public scrutiny merely because the records have been transferred to the state attorney’s office.

[The rules for the “active criminal intelligence information” exemption are similar.]

You might start by asking them to cite the specific exemption they are relying on to make sure it is that exemption. If it is, the above rules would apply, and I can give you the supporting law, cases, and AG opinions. I would note this can be a difficult area and shaking loose the report where it is claimed to be investigative/intelligence-exempt can sometimes be a challenge.

Q. Can you look over this demand letter sent to our newspaper from a nearby property owner claiming one of our reporter’s story critical of their use of the property defamed them. The property owner’s attorney demands we “cease and desist” publishing articles about his client, and that if we don’t, they will sue. The attorney attached a 6-page list of notices and warnings about preservation of documents in the event of litigation that appears to be taken from a form.

A. We ran this by our defamation expert at Thomas LoCicero, Jim McGuire. Jim offers the following very cogent advice:

“The letter mentions a possible defamation claim, but it does not cite Section 770.01 and    does not identify any false or defamatory material.  Rather than seeking a retraction or             correction, the letter asks that the paper cease and desist from publishing any additional articles about the property owner, the property, or the promenade.  So, there is no demand at this time for any sort of correction, just a request to stop reporting on    this matter.

Without knowing anything about the previous stories, whether the paper continues to report on this matter this strikes me as a question of editorial judgment.  Is this situation that continues to develop?  Are readers showing interest in this reporting?  If so, the paper presumably will provide additional reporting.  The paper will certainly want to be careful about the accuracy of its reporting, but I assume it is always careful about accuracy.

I think there are 2 matters to address.  First, does the paper want to respond to the cease-and-desist letter?  I’m not sure that it serves much purpose to engage in a letter writing campaign.  At the same time, a brief letter stating that the paper received the letter and takes the letter seriously, but will continue to report in an accurate way on matters of public interest if and when they occur, etc., might be useful.  (If the paper wants to respond, a lawyer should look at it first.)

Second, the attorney has put the paper on notice of a potential lawsuit and demanded that records be retained, so the paper should be proactive about retaining all reporter notes, files, etc. that have any relationship to this story.  If the paper gets sued, it will not want to face a situation where relevant materials have been destroyed or lost, particularly after having received notice.”

If you run into any other issues, or would like me to look at any response you might consider, just let me know.