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:
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:
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."
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.
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:
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:
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:
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.
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.