Waverly Media audio recordings in care of Volusia County Council-hired investigator Jon Kaney 'no longer exist'

Jon Kaney / Headline Surfer®By HENRY FREDERICK
Headline Surfer
DAYTONA BEACH, Fla. -- The audio recordings created by court reporters to supplement written transcripts in the Waverly Media sworn interviews of two dozen witnesses and under the custody and care of County Council-hired investigator Jonathan Kaney, Jr. have been discarded.

This, despite the fact, that under Florida Public Records Law, these audio recordings, once created are public records and must be retained by the government responsible for them. Headline Surfer® learned of this unprecedented development in a public records request for 25 audio-recorded interviews in an email reply from County Attorney Daniel Eckert.

"I rather would furnish the recordings if they existed than discuss the law on this question," Eckert told Headline Surfer in an email this morning.

An email sent to Kaney at his law office has gone unanswered. He has not returned earlier calls and messages related to Waverly Media, since an initial interview early on in his investigation and he spoke only in general terms.

The internet newspaper initially inquired of the audio recordings a week ago on Dec. 16 in an email addressed to county spokesman Dave Byron and county records clerk Bernice Wendland. Here is what Headline Surfer® wrote: 

"I am requesting the "audio recordings" of the former Waverly investigator Jonathan Kaney, Jr., that were used as back-ups by his legal ten in drawing up the written transcripts. I know they exist and I believe I am entitled to them unless you can cite a specific exemption in writing from the Florida Public Records statutes. I believe that could easily be loaded onto a DVD, which I could pick up from Bernice Wendland. These should already be in the hands of the county anyway since they are part of the public record. Please advise when I may be able to come to county administration and pick up the audio recordings."

Wendland acknowledged receipt of the email the following day. Headline Surfer® then forwarded the public records request and acknowledgment to Eckert that same morning. Then Eckert wrote back at 11 a.m. with the following:

"You have requested audio recordings made by Jon Kaney in the course of the investigation recently conducted by him. I do not believe that any such recordings exist other than those which may have been made by court reporters when transcribing sworn statements. The transcripts of all those sworn statements have been posted on the county website. Other interviews conducted by Mr. Kaney were not recorded, though some notes were made by him. Those notes likewise have been posted on the county website. Though confident in my representation to you, I still will double check the facts. If I find that somehow I am mistaken, I will arrange for such records to be furnished to you. But again, my understanding is that the records you request do not exist. 
Headline Surfer again wrote to Eckert on Dec. 21, stating in part that it wanted to "respectfully reinforce (its) public (records) request for the tape recordings of the sworn testimony (of the Waverly witnesses." The online news outlet cited a portion of the public records law and an attorney general's opinion reinforcing that audio recordings created must be preserved:
"I am relying on Chapter 119.011(1) of Florida Public Records Law, and specifically, 119.011(1) which clearly rates as a right:"all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency"[1] (e.s.)
"Agency" is defined in section 119.011(2), Florida Statutes, to mean "any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law . . . and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency."

And this was the attorney general opinion related to retainment of audio recordings that the internet newspaper brought to Eckert's attention, which was located just below chapter 119 of the public records statute:

Furthermore: "In Attorney General Opinion 86-93, this office was asked whether sound tape recordings of a school board meeting were public records when a written version of the proceedings was made available to the public. In that case, the secretary for the school board used a tape recorder to assist in the production of typed minutes of the board's meetings. The opinion recognized that while there is no statutory requirement that sound recordings be made of the meeting, it was concluded that once made, such recordings were subject to the requirements of Chapter 119, Florida Statutes.[2]"

Headline Surfer let Eckert it was particularly troubled that by his statement "may have been retained," meaning they could have very well been discarded and told the county attorney if that were the case it should even give him "reason to pause."

County attorney reminded of the Watergate scandal and the Nixon tapes

The internet newspaper reminded Eckert of the significance of Watergate and the importance of audio recordings.

"If the Nixon tapes had to be turned over in Watergate, I see no difference in not providing me with the audio recordings of Waverly Media as conducted by Mr. Kaney," Headline Surfer® asserted. "If the court reporter has not retained these audio recordings when the county has hired one of Florida's pre-eminent first amendment attorneys in Jon Kaney, than this entire process becomes that much more obscene... The attorney general opinion cited above is clear: While there is no statutory requirement that sound recordings be made of the meeting, it was concluded that once made, such recordings were subject to the requirements of Chapter 119, Florida Statutes.[2]"

But early this morning, Eckert said there would be no copies of audio recordings turned over to Headline Surfer® as requested because they no longer existed. Here is what he wrote:

"I first advise that I have learned further detail. The Ormond Beach court reporter who did most of the work did not retain recordings after preparing transcripts. The Vero Beach court reporter who did one transcript never made any recording. I rather would furnish the recordings if they existed than discuss the law on this question. I am familiar with the authority you cite."

Despite the internet newspaper's citing of the public records law and attorney general opinion, Eckert claimed because the Waverly investigation was farmed out to Kaney, an investigator outside of government, the mandate for retainment of the audio recordings does not apply. Here is what he wrote:

"But here is the counter. The county contracted for reporting service from a private party. The product furnished is the transcript. The transcript is the public record. The recording, if one is made, is a precursor of the record. There was no legal obligation for the private contractor reporter to have furnished a transcript without compensation or court rule which required the reporter to have retained the recording. There is no decisional law on this point, but the case in favor of the recordings as public records, if they existed, is far from clear. They do not exist and I cannot furnish them to you."

Headline Surfer® responded later in the morning, telling the county attorney it wasn't buying his argument, especially considering that the county took the extraordinary step of naming Kaney a "solicitor general" or arm of the government, allowing him to hold on to the public records until his investigation was completed.

Here is the list of Waverly Media witnesses subpoenaed and subsequently interviewed by Kaney:

• Interview with Kathleen Blackman;
• Interview with Lois Bollenback;
• Interview with Manuel Bornia;
• Interview with James Brown;
• Interview with Frank Bruno;
• Interview with Fred Costello;
• Interview with Joyce Cusack;
• Interview with Doug Daniels;
• Interview with Jason Davis;
• Interview with Timothy Davis;
• Interview with Deborah Denys;
• Interview with James Dinneen;
• Interview with Daniel Eckert;
• Interview with Kenneth Fischer;
• Interview with Michael Hullett;
• Interview with Andy Kelly;
• Interview with Michel Kiepert;
• Interview with Charles Lydecker;
• Interview with Ann McFall;
• Interview with Patricia Northey;
• Interview with Pat Patterson;
• Interview with Carl Persis;
• Interview with Josh Wagner;
• Interview with P.J. Warner;
• Interview with Kimberly Was.


• Sept. 26, 2013:
County Council's Pat Northey asks County Attorney Dan Eckert status of the contract on the bus benches. Says she is frustrated with the situation, which had been going on for more than a year. Community Services Department Director Dave Byron said it would be discussed at the next meeting. The Council would be updated on the current bus bench contract and options would be presented to the Council to give the staff direction.

Oct. 10, 2013:

County Coucil discusses program options for bus benches in unincorporated area. County Manager Jim Dinneen said to be discussed were a short-term, interim plan for the bus benches and the county’s long-term options.

Dave Byron, community services department director, said the staff was seeking the Council’s direction for bus benches for Votran passengers in the County’s unincorporated areas. On a long-term basis, the county would have to make bus pads comply with ADA requirements. Dinneen explained this would be more difficult for the county than for the cities because of the bus stop and bench locations.

Byron said there had been many suggestions and recommendations made for the interim time period. One such recommendation was to give notice to Waverly Media to remove its benches within two months. Votran would provide bus benches that could be used until permanent benches were purchased. The interim bus benches would then be used for other purposes, such as at county parks and trails.

Dinneen said the County did not have a contract with Waverly Media and needed to end its relationship with the company. Council and staff discussion ensued regarding the RFP process, ADA requirements and the removal of the bus benches.

Council member Joyce Cusack asked for clarification of the RFP process for benches that was stopped in 2009. Byron explained the County had been considering buying new bus benches when the State began analyzing the required standards for ADA compliant bus pads. The county stopped the process until the state decided on the requirements. This had taken a long time. Votran had hired a consultant to determine ADA compliance with the new State standards.

Lengthy Council and staff discussion ensued. Council Member Doug Daniels spoke at length about the Daytona Beach News-Journal article on the State Attorney’s Office investigation of Waverly Media’s campaign contributions to local political candidates using the company’s ads on bus benches.

Eleven of the 13 people mentioned in the article were former or current County Council Members. Council Member Daniels made a motion to CONDUCT an investigation under the powers granted by the Volusia County Charter and approach attorney John Tanner to serve as special counsel. Council Member Northey SECONDED the motion. After further Council discussion, Daniels amended his motion to remove Tanner and obtain other special counsel. More Council and staff discussion ensued regarding the County’s charter, investigation policies and Waverly Media’s campaign contributions.

County Attorney Eckert read aloud verbatim Volusia County Charter Section 309 entitled “Investigations.”

This was followed by lengthy Council and staff discussion regarding the investigation process and the News-Journal’s article. Patterson supported ending the contract with Waverly Media and said he liked the idea of placing benches in County parks and along County trails.

Patterson then made a motion to end the contract with Waverly Media. Northey seconded it.

Wagner said he planned to submit a public records request to Votran regarding the cost of the benches, staff time and maintenance.

Patterson then amended his motion to end the contract with Waverly Media, giving the company 60 days to remove its property. Northey seconded the motion.

Council and staff continued to discuss the RFP, allowing Waverly Media 60 days to remove its property, the legal requirements for bus benches at bus stops and replacement benches.

Public Participation

Joel Davis with 20/20 Media wanted to offer a temporary solution for providing bus benches during the RFP process. There was more Council and staff discussion on the RFP process and standards. Council Member Wagner made a motion to BEGIN the process of writing the RFP to be brought back to the Council for specific details. Patrick Mency with the Mency Group gave information about his company and its services. Council discussion ensued with Mr. Mency regarding the advertising his company provided. Council Member Daniels repeated his motion to invoke the powers under the County’s Charter to hire special counsel to CONDUCT an investigation on the Waverly Media bus bench advertising. Council Member Northey SECONDED the motion, which carried 5-2, with Council Member Wagner and Chair Davis opposed. Council Member Patterson repeated his motion to END the contract with Waverly Media and provide the company with a 60 day notice for removal of its property, Council Member Northey SECONDED the motion, which carried 6-1, with Council Member Wagner opposed. Council Member Wagner repeated his motion to BEGIN the process of writing an RFP to bring back to the Council for a discussion of the specifics. Council Member Cusack SECONDED the motion, which carried 7-0.

Henry Frederick Picture

Short Bio

Henry Frederick is publisher of Headline Surfer®, the award-winning 24/7 internet news outlet covering the Daytona Beach-Sanford-Orlando metro area via HeadlineSurfer.com since 2008. A longtime cops & courts reporter focused on breaking news & investigative reporting, Frederick is among the Sunshine State's most prolific daily news reporters, having amassed close to a hundred award-winning byline stories nearly evenly split in print and digital platforms. Frederick earned his Master of Arts in New Media Journalism with academic honors from Full Sail University in Winter Park in February 2019. He was a metro reporter with the Daytona Beach News-Journal for nearly a decade and then served as a city editor for the Taunton Daily Gazette in Taunton, Mass, while maintaining a residence in Central Florida. Prior to moving to Florida, Frederick was a metro reporter for the Rockland Journal-News in West Nyack, NY, for seven years. Headline Surfer was named the Sunshine State's top internet news site by the Florida Press Club in 2018.