Judge In Broward County Documents Case Decides The First Amendment Doesn't Cover These Public Records

from the 'freedom-of-the-press-is-nice-and-all,-but-shut-the-hell-up' dept

So much for my powers of prediction. After a Florida newspaper was hit with a request for contempt charges for publishing parts of a document a local school board tried (but failed) to redact, I suggested the court would side with the paper and say a few strong words about proper redaction techniques and the First Amendment. I could not be more wrong.

Broward Circuit Judge Elizabeth Scherer said the newspaper flouted her order that portions of a school district report about Cruz should remain shielded from the public. In the future, she declared, she will consider listing exactly what the newspaper can and cannot print.

So much for the vaunted First Amendment. While judges are welcome to deliver instructions about what can or cannot be printed (provided they don't mind violating the First Amendment 90% of the time), there's no reason to hand out these instructions to document recipients in public records lawsuits like this one. That's why redaction exists: so public entities can fulfill their public records obligations while withholding information that qualifies for exemptions or to comply with privacy laws. If the respondent screws up the redaction, there's no legal obligation for new agencies or any other records requester to pretend what wasn't supposed to be accessible isn't accessible. The burden is on the government to perform its job correctly.

No laws were violated by the Sun Sentinel's discussion of parts of the document that were supposed to be withheld. It acquired the document lawfully -- in fact, as a result of this court's order -- and discovered the redaction technique used didn't actually redact anything. Parts of what was withheld by the school shows the Broward County School Board mishandled some of its interactions with the Parkland shooter. This obviously was of great interest to the public, so there's no question that part weighs heavily in the favor of the paper's First Amendment rights.

What's worse is the judge stated in court the Sun Sentinel did something devious to expose the supposedly-redacted information, when it was actually the Broward County School Board that failed to do its job properly.

“You all manipulated that document so that it could be unredacted,” Scherer said. “That is no different than had they given it to you in an old-fashioned format, with black lines, and you found some type of a light that could view redacted portions and had printed that. It’s no different.”

Um… OK. What the hell does this even mean? Would she be coming down on a public records recipient who was handed the wrong documents or entire pages that were supposed to be withheld? Would she have harsh words for a recipient who received someone else's requested documents thanks to a bureaucratic screw-up and published those? Here's how Judge Scherer thinks the First Amendment should be applied to public records:

“From now on if I have to specifically write word for word exactly what you are and are not permitted to print – and I have to take the papers myself and redact them with a Sharpie … then I’ll do that,” she said.

Whew. Sounds like prior restraint. The only entity that should be restrained is the government in public records lawsuits, and only what's absolutely necessary to be withheld should be withheld. It's not up to the judge to hand out a line-by-line order on publication to recipients. The restraint should target the government and no one else. If the government screws up, that's on it, not those who've lawfully acquired the documents.

Given this terrible take on the First Amendment, I can offer a much better prediction this time around: the Sun Sentinel's anti-SLAPP motion against the Broward County School most likely will not be entertained by this court. Whatever was said here is the judiciary standard in Judge Scherer's court. And it sets an extremely low bar for government agencies who think others should be yelled at for the government's failures.

Filed Under: broward county, broward county school board, elizabeth scherer, first amendment, florida, free speech, prior restraint
Companies: sun sentinel

Broward County School Board Gets Hit With Anti-SLAPP Suit After Trying To Punish Paper For Exposing Its Redaction Failure

from the could-be-a-costly-unforced-error dept

Last week, the Broward County School Board went after a Florida newspaper, claiming it should be held in contempt of court for publishing information the school district didn't properly redact. The Sun Sentinel obtained a copy of the Parkland school shooter's educational records as the result of a public records suit. Certain information was redacted -- or at least was supposed to be -- to comply with state and federal privacy laws.

What was delivered to the Sun Sentinel by the district had black redaction bars covering two-thirds of the document. Unfortunately, the redactions were merely cosmetic. Anyone with a copy of the PDF could select the "redacted" text in the PDF and paste it into a text editor to see what was supposed to have been withheld. The school board screwed up, making it possibly liable for privacy law violations, but it went to court claiming it was all the Sun Sentinel's fault anyone's privacy got violated.

The Sun Sentinel has now responded -- both with an editorial middle finger and a filing in court. (h/t Brittany Wallman) If everything goes the Sun Sentinel's way, not only will it not face contempt charges (there's been no ruling on the motion, so it appears the judge doesn't believe closing barn doors post-livestock exodus qualifies as an emergency), but might collect some cash from the school district for trying to silence the paper.

From the motion [PDF]:

In a rush to deflect from its own negligence in publicly disclosing the CEN (Collaborative Educational Network) report at issue in a wholly unsecured format, the School Board now seeks to have this Court find the Sun Sentinel in contempt for exercising their First Amendment rights to truthfully report on a matter of the highest public concern: the exact nature of the special educational services the School District provided (or notably failed to provide) to Marjory Stoneman Douglas High School (“MSD”) shooter Nikolas Cruz—who now stands charged with multiple counts of capital murder. On their face, neither the civil court’s operative July 26, 2018 order (the “Civil Order”)—requiring the School District to disclose a redacted version of the CEN report—nor the criminal court’s August 3, 2018 order (the “Criminal Order”) in any way limited the Sun Sentinel’s ability to publish the report’s contents. Indeed, to have done so would have constituted an unconstitutional prior restraint.

By posting an improperly redacted version of the CEN report to its website for public download, the School District itself may have failed to comply with the court’s orders. In any event, there is no dispute that the Sun Sentinel lawfully obtained the report from the School District’s website and the information sought to be shielded by the redactions. Under such circumstances the law is clear: a First Amendment right to publish firmly attaches and no contempt proceeding may lie.

The motion points out the court never restricted what the paper could publish. Any court-ordered redactions were the responsibility of the school district, which was being sued for refusing to release the report at all. The in camera review conducted determined what could and couldn't be redacted by the school board. It had nothing to do with the Sun Sentinel, which was only the recipient of a document ordered to be produced. The paper acquired the document lawfully -- as did anyone else who downloaded the version with the faulty redaction. It was under no legal obligation to withhold information the school board meant to withhold, but didn't.

Even though the school district claims it handled everything correctly in regards to the Parkland school shooter, the Sun Sentinel points out in its editorial there are a handful of details that show school administrators mishandled situations involving a volatile student.

School officials didn’t properly advise Cruz of his legal options when he was faced with removal from Marjory Stoneman Douglas High School his junior year, leading him to give up special education services.

When Cruz failed to file the required written rejection of special education services, school officials nudged him, writing it up for him to sign.

The district “did not follow through” on Cruz’s subsequent request to return to the therapeutic environment of Cross Creek School for special education students.

The contempt motion looks like nothing more than a punitive move by the school board to punish a news outlet for exposing its mistakes to the world. If this anti-SLAPP motion secures a ruling in favor of the paper, the board's attempt to punish the news outlet for publishing lawfully-obtained documents will put taxpayers on the hook for the paper's legal fees.

Filed Under: anti-slapp, broward county, broward county school board, florida, free speech, public records, redactions, transparency
Companies: broward county school, sun sentinel

School Board Demands Journalists Be Punished For Reporting On The School Board's Redaction Failure

from the not-the-way-that-works-(also-not-the-way-redaction-works) dept

A redaction failure by a public entity has led to a request for contempt charges to be brought against a Florida newspaper and two of its reporters. The Sun Sentinel obtained a copy of the Broward County School Board's report on the Parkland shooter after a successful public records request lawsuit. The report was heavily redacted… or at least, it was supposed to be. But the school board screwed this task up.

After a judge's order, the school district publicly released the report Friday with nearly two-thirds of its content blacked out to protect 19-year-old Nikolas Cruz's privacy rights. But the district used a method that failed: Anyone could copy and paste the blacked-out report into a Word document to make all the text visible.

Sun Sentinel reporters Brittany Wallman and Paula McMahon, acting on a Facebook tip from a reader at 7:30 p.m., discovered on deadline the concealed text could be viewed. The reporters quickly rewrote the story reflecting the entire report, providing the first detailed account about the school shooter's years in the school system, what the district knew about him and what mistakes were made.

The report [PDF] has been uploaded by the Sun Sentinel with the redaction performed correctly. But the faulty version was used to craft a long article about the shooter using details the court had determined could be withheld.

A petition [PDF] has been filed by the school board in an effort to shove this genie back into the bottle. The motion alleges the Sun Sentinel agreed to the redactions, which were put in place to conform with federal and state privacy laws covering education and medical records. Some of what was redacted detailed errors made by the school system when handling the shooter's discipline and educational options.

What the school board is seeking is both impossible and preposterous. The report has already been read in full and an article produced showing what was redacted. Copies of the report containing the faulty redaction are likely still in circulation. The contempt order might cause the Sun Sentinel some pain, but the damage has already been done.

That's the impossible side. The preposterous side is this: the Sun Sentinel published information it obtained lawfully. The report was delivered by the school board in accordance with the court's order. If the school board screwed up the redaction (and it did!), it has no right to complain people accessed the content it meant to keep hidden. Even if the Sun Sentinel agreed to the redactions, that doesn't mean it's supposed to just sit there and pretend it can't see the text the school board failed to fully redact.

Whatever damage has been done was inflicted by the school board for failing to properly redact the report it was ordered to hand over to the Sun Sentinel as the result of public records request lawsuit. The recipient has no obligation to only report on unredacted portions of the report if it has access to the entirety of the document due to human error. The judge may not be happy the Sun Sentinel did this, but I can't see how the court's going to find this is the reporters' fault, rather than the school board's.

Filed Under: broward county, free speech, journalism, redactions, school board
Companies: sun sentinel