Legal Update: August 2011

Blind Copy E-mails: New case highlights worrisome trend

Are public official blind copy e-mails and distribution lists off-limits to the public under the Sunshine Law? A new case highlights a worrisome trend.

A newspaper recently asked about whether their county commissioner could keep secret blind-copied e-mail addresses of e-mail recipients. In that case, after a county commissioner was criticized by some of her e-mail recipients about the disclosure of their e-mail addresses in "reply all" messages, the commissioner formed a blind list to prevent disclosure of the addresses. The question was then raised by the newspaper: does the public or a reporter have the right to obtain the blind e-mail addresses (and the bc e-mails themselves) under Florida's sunshine law?

In general, "private" e-mails stored in an official's computer are not automatically public records just because they are stored there. On the other hand, official business e-mails are public records and must be treated like any other type of official communication. However, what if, as in the scenario above, the official business e-mail is copied or forwarded to a list of blind addresses? Is the public entitled to the blind "copy" e-mail and also to the list of undisclosed addresses?

At least one Attorney General opinion has held that the blind e-mail copy and the blind address list should remain a public record even though the recipient's e-mail address is undisclosed on the e-mail. Otherwise, the argument goes, the official sending the record determines its public nature as opposed to the legislature. AG Opinion 2007-14. However, a recent court decision raises questions about this interpretation by the AG. In that case, Bennett v. Town of Miami Lakes, the judge said the mayor did not have to disclose the e-mail distribution list used and said the e-mail addresses in the distribution list were not a public record. This e-mail list was a routing list used by the mayor to send updates from his city e-mail address about town activities, such as a fundraiser for Haiti. See The Miami Herald, posted May 25, 2010, "Miami Lakes Mayor's List Can Remain Private." http://www.n2ps.com/ebulletin/wp-content/uploads/2011/06/MiamiLakesEmail.pdf

On June 15, the 3rd District Court of Appeal affirmed the trial court leaving its order intact. Read the affirmance. http://www.n2ps.com/ebulletin/wp-content/uploads/2011/06/3D10-1920.pdf

The court holding and the affirmance raise concerns about open records in Florida. One concern is that unscrupulous elected officials might send out seemingly private e-mails outlining their positions or requesting funds and using the blind copy function to copy the real intended recipient. As Jim Rhea, Director of the Florida First Amendment Foundation, observes, theoretically, a sender could send an e-mail to himself or herself only but actually transmit the information secretly to blind copied recipients. Although this sounds a bit conspiratorial, if one considers Florida's history of political graft, this activity is certainly not out of the realm of possibility. The opinion is also worrisome in that the reasoning could be used to limit access to "meta data" in public records - information that shows when a document was modified, what those modifications were, etc. That information is not seen with the naked eye either but resides in computer coding.

Deanna Shullman, a First Amendment lawyer at Thomas, LoCicero firm in South Florida, also disagrees with the decision. "E-mails are really messing up records law on these sorts of issues," Shullman says, "If you can't redact the address line off of a paper letter, you should not be able to redact the recipients' list on an e-mail." She sees the decision as reflecting a trend away from looking at the purpose of the document as a whole to looking at each little part and determining whether that specific part of a document was made or received in connection with the transaction of official business. Shullman says these decisions are disturbing:

"Historically, whether an item is a ‘public record' has been determined by whether the record itself was made or received for official purposes. If so, then only statutory exemptions could allow redaction of individual parts of the record. If you translate these e-mail decisions over to paper files, you could argue that any text in a letter that is not directly related to official business can be redacted such as ‘hope you and the kids are doing well' or ‘will you be at Thursday's golf game?' In the wake of the e-mail-related decisions over the last few years, I am seeing more and more records custodians begin to chip away at open records law word by word and sentence by sentence. This is a very detrimental to the public's constitutional right of access."

Hopefully, other circuit courts will have an opportunity to weigh in on this issue and another appellate court will provide a different interpretation - one that captures electronic records and recognizes the expansive reach courts have traditionally read into the sunshine law. Instead of limiting information, the law should require (in the absence of a specific exemption) release of all information within a public record regardless of format.

Post Script: Currently, the 4th District Court of Appeal has a case pending before it, Butler v. City of Hallandale Beach, which includes an issue related to e-mail addresses and the First Amendment Foundation has filed an amicus brief on the issue. (http://www.n2ps.com/ebulletin/wp-content/uploads/2011/06/4D10-197AB.pdf)

That case was recently set for oral argument. We will keep our eyes peeled on that decision.

Freelance Reporters

Q. Several of my reporters work on a freelance basis and are classified as independent contractors (IC) as opposed to employees for purposes of employer liability and regulatory reporting and compliance. I want to provide them with some form of press identification but do not want to do anything to jeopardize their independent contractor status. Also, do you have a form contract to cover this relationship?

A. There is no problem with providing a freelance reporter an identity card or even a letter indicating he or she is a reporter freelancing for your newspaper. The general rule is that there can be some affiliation between the newspaper and the freelance contractor reporter without derailing the IC status as long as the newspaper doesn't try to exercise control over the freelancer's day-to-day activities such as news gathering, story writing, completion, delivery, etc.

Here are a few suggestions.

The editor could write a letter on the newspaper's letterhead vouching for the reporter but clearly indicating the independent contractor status and that he or she is, e.g., "a journalist working on a story for the [name of newspaper] concerning the [area to be covered]." The reporter could than fold up the letter and place it in a clear sleeve with the letterhead showing and display as appropriate.

Or, the newspaper could create a press badge that does not in any way lead anyone to believe the reporter is employed with the paper. The badge would identify the reporter as an "independent contractor."

The reporter could have a business card, too, with his or her own web address and other contact info.

Regarding the question about a form contract, this is by far the most important item courts will focus on in determining the legal relationship between the parties. The court will look at the contract to see if there is too much "right of control" over the reporter's work details for the relationship to be one of independent contractor. Find a form agreement that outlines the IC relationship at: http://www.n2ps.com/ebulletin/wp-content/uploads/2011/07/Freelancer_Author.pdf


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