Lawyer: Flagler sheriff should release personal phone records

Lawyer: Flagler sheriff should release personal phone records

PALM COAST — Flagler County Sheriff Don Fleming has refused a request from The News-Journal to turn over his personal phone records from the day when he received a call concerning a School Board member’s wife striking a pedestrian who subsequently died of her injuries.

Fleming said Tuesday in a brief telephone interview that his personal landline does not track incoming calls. Fleming also said he pays for his personal cellphone and claimed it’s exempt from public records.

But the key is not the phone on which the sheriff received the call but rather the nature of the call, said Jon Kaney, general counsel for the First Amendment Foundation. In this case, it is related to official business and is public, Kaney said.

“It doesn’t matter what phone it is,” Kaney said. “It matters whether it relates to his official duties or not.”

Fleming has turned over records of calls he received on his county-issued cellphone. But Fleming has said that he received a call from Flagler County School Board member John Fischer on his home phone about 5:30 a.m. Nov. 11.

The call from Fischer, whom Fleming has described as a friend, came nearly 12 hours after the accident. Fleming said Fischer told him that his wife, Jamesine “Jamie” Fischer, had been in an accident and thought she had hit an animal.

But Jamesine Fischer’s Chrysler PT Cruiser had actually hit Francoise Pecqueur, 76, as she walked her dog along Columbia Lane near Colechester Lane in Palm Coast about 6 p.m. Nov. 10, according to the Florida Highway Patrol. No charges have been filed and the investigation is continuing.

Witnesses said they saw Jamesine Fischer standing near Pecqueur, who was sprawled in a swale. But Fischer said that Pecqueur had fallen, according to witnesses. Jamesine Fischer also said she did not call 9-1-1; another driver who happened upon the scene did that. A Flagler Sheriff’s Office spokeswoman has said a deputy was not sent because the dispatcher believed it was a medical call.

Fleming hung up Tuesday when a reporter tried to ask him about Kaney’s legal opinion.

“I’m not making any further comment on this,” Fleming said. “It’s an ongoing investigation with the Florida Highway Patrol.”

But Fleming cannot argue that it was a personal phone call, Kaney said.

“That’s not possible to sustain because he (John Fischer) called the sheriff and the sheriff acted as a law enforcement officer when he told him to call 9-1-1, so it’s an official call,” Kaney said.

Florida First Amendment Foundation President Barbara Petersen said the issue of accessing records on a personal cell phone would have to be argued before a court.

“But that’s an uphill argument when we are talking about personal phones and there is no reimbursement from government,” Petersen said Tuesday in a phone interview.

Last year, The Miami Herald reached a settlement in a lawsuit with Miami Mayor Tomas Regalado over calls on his personal cellphone, according to the newspaper. Regalado agreed to provide the newspaper records with his personal phone calls blacked out, according to a Miami Herald article on Feb. 11, 2011. The Herald could challenge any of the blacked out records by asking a judge to review them. Regalado gets a $300 monthly stipend toward the cost of the phone, which he uses for city matters, the Herald wrote.

The 5:30 a.m. call from John Fischer was one of several phone calls between the two on Nov. 11. According to county cellphone records initially provided by Fleming, the sheriff called John Fischer from his cellphone at 4:56 p.m. for five minutes; at 6:48 p.m. for six minutes; and at 7:05 p.m. for two minutes. Fleming described those calls in a Feb. 1 letter to The News-Journal’s editor: “I reached out to Mr. Fischer Friday evening in a brief conversation to see if he had followed up on reporting the accident, ” Fleming wrote.

“John Fischer called me around 5:30 a.m. on Nov. 11 to tell me his wife had been involved in an accident in Palm Coast where she thought she had hit an animal. At that time, I told him to hang up and call the Emergency Operations Center dispatching center to report it,” Fleming wrote.

On Jan. 6, Jamesine Fischer’s insurance company State Farm agreed to pay $1.25 million to settle a wrongful death lawsuit brought against her by Pecqueur’s daughter, Catherine Vyvyan. State Farm, settled the case for the policy limits, said attorney Allan Ziffra, who represents Vyvyan.