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Wednesday, February 13, 2008

No Rights for Mr. Kiester?

By Ed Foster

"I do hope that Mr. Kiester has the financial wherewithal (or can raise it) to take this very important matter up the ladder. A county judge should not have the final say on the interpretation of a state law that has such far-reaching implications.

Backed by Mr. Arceri and Mr. Lazarus, Mr. Sciarrino accused Mr. Kiester of deleting e-mails from his personal computer. He did not bring the same charges against Mr. Tucker and Ms. DiSciullo who have publically admitted to committing the same "crime." It is clear that Mr. Sciarrino brought the charge against Mr. Kiester for political reasons and has admitted as much.
But that is beside the point.

My purpose in this posting is not to attack Messrs. Sciarrino, Arceri and Lazarus or to defend Mr. Kiester but to point out that, if this county judge's decision is allowed to stand, the people of Florida will have no way to communicate in private with their representatives. I cannot believe
that this was the intention of the state legislature in passing this law. The law forbids destruction of "public records" such as those on the city's server. It is only the Attorney General's "opinion" that the ban extends to a councilor's private computer.

If a private e-mail automatically becomes public simply because the person to whom it is sent is a councilor, does it not follow that a telephone conversation to that person must be recorded and made public too? Both are electronic means of communication. For that matter, mustn't each councilor carry a voice recorder and make a permanent record of every conversation he or she has on the street because it might have to do with "public business"? No one knows how a conversation will progress until it is over so all must be preserved for Big Brother.

This is the real problem I have with the county judge's decision. If allowed to stand, every citizen loses the right to privacy that is guaranteed by our constitution. I submit that no county judge has the authority to abrogate that right.

Perhaps this is a matter for the ACLU. Is the right to privacy not a "civil liberty" guaranteed to every American? Is privacy of communication not a right that distinguishes our society from that of totalitarian states like Germany under Hitler, the Soviet Union under Stalin, and Cuba under Castro?

Messrs. Arceri, Sciarrino and Lazarus raised an issue for local political ends. In doing so, they opened Pandora's Box and obtained a decision from a politically appointed county judge that has national implications. This is the first time that the Florida Attorney General's "opinion" has been tested in court. It is imperative that higher judicial authorities review this decision and let Americans know whether they do or do not have the right to privacy in communicating with their representatives.



    Mr. Foster's comment misses the point. He wants Mr. Keister (at his own expense) to fight this case all the way to the supreme court. Dumb idea. The surest way to get this decision overturned is to let Tucker and DiSciullo enter the fray with their money and their county connections. You will see how quickly the matter will be settled. Why are the good guys always on the defense. Someone with half the cojones of Sal Sciarino should report Tucker and DiSciullo to the authorities. I invite Mr. Foster to rethink his position. He should stop apologizing for Mr. Keister and with his pen and fancy words start a campaign to bring to account Tucker and DiSciullo.

    By Anonymous Humphrey Sarlo, at Thursday, February 14, 2008 8:55:00 AM  

  • Mr. Sarlo,

    I am not trying to defend Mr. Kiester or to suggest that he should use his own money to defend himself. The above posting was something I wrote in response to an Eagle editorial and distributed to my personal mailing list created when I was chairman of CARES. Dr. Sanchez is on that list and posted my purple prose on his blog. That's fine with me.

    My point in writing the piece was to suggest that everyone's right to privacy when communicating with his/her representative is endangered by the verdict this judge handed down and that this verdict must be appealed to protect everyone's civil liberty. I do not suggest that Mr. Kiester take this on himself ... or even that the citizens of Marco Island take it on themselves ... but it may be something the ACLU would be willing to handle because it does affect the rights guaranteed all of us by the Constitution of the United States.

    Now, if you'd prefer to handle this on a local level and wish to accuse Tucker and DiSciullo of the same violation, be my guest. You will be attacked as waging a vindictive ex post facto assault on other councilors but I've been accused of worse than that.

    Frankly, I don't think you'd get to first base with such an attack but what's sauce for the goose is sauce for the gander. My concern is that such an attack trivializes the importance of this judge's thoughtless verdict. I doubt that there's a councilor anywhere who has not been guilty of deleting e-mails from his/her personal computer. We don't need to fine each of them 500 bucks; we need a clear judgment that what is sent to a representative's personal comptuer by a constituent remains the sole property of that constituent and is not a "public record" unless said constituent gives his/her permission to have it so.

    U.S. copyright law makes it clear that the author retains full rights to everything he/she creates until he/she grants that right to another. (I've won that case several times against publishers.) I submit the same applies to communications between a constituent and his/her representative. The communciations ... in this case an e-mail ... belongs to the constituent unless and until he/she releases that right to the public. The same does not apply to inter-councilor communications because of a separate law ... the so-called Sunshine Law.

    So, go after Tucker and DiSciullo if you wish; I'm confident e-mails I sent to Minozzi, Kelber, Arceri, et. al. will not be found on their computers either. We don't need a witch hunt; we need a rendering of Florida's Public Records law that protects our right to privacy.

    Ed Foster

    By Anonymous Anonymous, at Thursday, February 14, 2008 12:30:00 PM  

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