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 Material Information
Title: Brechner report
Series Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: February 2001
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00014
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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THE



BRECHNER



REPORT

Volume 25, Number 2 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of I,, ..n.i .. College ofJournalism and Communications U University of Florida
February 2001


Mediagroups access ballots
MIAMI Florida's broad access overvotes, ballots thrown out b
laws have made it possible for at least more than one name was market
two media groups and a political The Miami Herald and other
watchdog group to begin counting to court in early December to g
ballots in all 67 counties access to the Miami
in December and Af undervotes, which w
January, but not without A being held by the Le
a hefty price tag. RE C OR D S County Circuit Coui
One media group, led Because election
by The Miami Herald, is officials must handle


evaluating approximately 60,000
undervotes throughout the state.
Undervotes are ballots that voting
machines were unable to count.
Judicial Watch, a watchdog group, is
also counting undervotes.
Another media group, which
includes The New York Times, The
Washington Post, CNN and the
Associated Press, is counting both
the undervotes and 120,000


because
d.
s went
ain
-Dade
ere
non
rt.
s
Sthe


ballots, counties are charging the
organizations differing amounts to
access and inspect the materials.
Broward is charging $300 per hour,
which covers the pay of two sheriff's
deputies, an attorney and five election
staff members. Palm Beach County
said it would charge groups $1,157 per
hour. The New York Times estimates
its consortium's efforts will cost more
than $500,000. (12/05/00 1/16/01)


Judge says r ecor ds law was violated


TALLAHASSEE -A Martin
County elections supervisor who
allowed Republican party members to
take absentee ballot applications
from her office violated both
election and public records laws, a
circuit judge in Leon County ruled.
Elections Supervisor Peggy
Robbins let Republican Party
officials take the forms from her
office and fill in missing information.
Democrat Ron Taylor of Stuart sued,
asking the court to invalidate the


absentee vote.
Judge Terry Lewis, 2nd Judicial
Circuit, wrote that giving Republicans
the ballots "was contrary" to Section
101.162, Florida Statutes, and the
Public Records Act. However, Lewis
wrote that he found no "intentional
misconduct" by Robbins.
Lewis didn't throw out the county's
9,800 absentee ballots or punish
Robbins. State Attorney Bruce Colton
said no complaints have been filed
against Robbins. (12/1/00 12/9/00)


TaskForcewants

secrecy in hiring
MIAMI Members of a state
education task force think university
presidents should be chosen in secret.
The Education Governance
Reorganization Task Force is charged
with making recommendations on an
overhaul of
the state's
educational ACCESS
system and
will go MEETINGS
before the
Legislature in March with proposals.
Members argued in December that
the state's Sunshine Laws, which make
the application and hiring process open
to the public, make it difficult to find
university presidents. Candidates are
unwilling to apply if they know their
names will be made public, task force
members said.
The process only should be opened
once a candidate has been chosen by a
university board and forwarded to a
state board, they said. (12/7/00)


Electron ic Delivery
An electronic copy of
TheBrechnerReportisnow
available via e-mail. To subscribe,
send an e-mail request to:
brechnerreport@ou.ufl.edu.


Subpoenaeddocumentsnotexemptfr om disclosure e,judgerules
TALLAHASSEE-Documents Attorney General Robert Butterworth records.
collected by the Attorney General as part from disclosing documents collected He wrote that no specific exemption
of an investigative subpoena are not from the company as part of an exists for such documents and that the
exempt from the Public Records Law, a investigative subpoena. documents could not be considered
circuit court judge in Leon County ruled. Lewis, 2nd Judicial Circuit, denied the judicial or court records. (Decisions on
Homeside Lending Inc. filed a motion motion and authorized Butterworth to file, Homeside Lending Inc. v. Robert
asking Judge Terry P. Lewis to prevent allow inspection and copying of the A. Butterworth )






ACCESS RECORDS CONTINUED


Videos ruledobscene
butarepublicrecord
ORLANDO Police hidden camera
tapes of dancers at men's clubs are
obscene but can be released under the
state's Public Records Law, a circuit
court judge in Orange County ruled.
The 45 hours of tapes, taken at two
Rachel's men's clubs, are part of an
investigation into allegations that the
clubs were fronts for illegal activities.
The videotapes show, among other
things, dancers having sex with each
other in the back of a limousine.
In his ruling, Lawrence Kirkwood, 9th
Judicial Circuit, wrote that although
some material on the tapes was
"offensive, distasteful, disgusting, and
demeaning," no exemption to the Public
Records Law existed for obscene
materials. (10/26/00; State v. Bee Line
Entertainment Partners Ltd., 28 Media
Law Reporter 2595, Dec. 12, 2000)


TampaTribune notheldin contempt


TAMPA A Pasco-Pinellas Circuit
Court judge refused to hold The Tampa
Tribune in contempt of court for
publishing a grand jury report critical of
two Hillsborough County judges.
Chief Judge Susan Schaeffer, 6th
Judicial Circuit, ordered a grand jury
presentment regarding the judges sealed
and warned officials not to leak the
contents to the media.


After the newspaper printed several
stories based on a leaked copy of the
report, an attorney representing one of
the judges filed a motion to hold the
newspaper in contempt of court.
Schaeffer denied the motion, ruling
that The Tampa Tribune had a right to
print the grand jury report after it was
leaked to the paper. (12/13/00 -
12/20/00)


Judge rejectsmotion to sealdocuments
TALLAHASSEE- Parties in civil Rick Case Cars Inc. v. Page Brothers
lawsuits cannot file sealed documents Associates Inc., that would have made
during the discovery phase of a trial discovery materials confidential without
without first following court procedures providing an opportunity for a public
to seal the records, a judge for the hearing.
Division of Administrative Hearings Rivas wrote that she cannot give
ruled, litigants "advance permission" to seal
Administrative Law Judge Florence court documents. (Decisions on file,
Snyder Rivas denied a motion in a civil American Honda Motor Co. v. Page
case, American Honda Motor Co. and Brothers Associates Inc., 12/13/00)


Judgereleasesrecordsinpoliceprobe


JACKSONVILLE A clerk writing
"sealed document" on a docket sheet
does not provide the press and public
with enough notice to challenge the
record's closure, a federal judge ruled.
The Florida Times-Union
challenged the closure of records in the
case of three drug defendants who were
cooperating with a probe of the
Jacksonville police.
U.S. District Judge Henry Lee


Adams Jr. of the Middle District of
Florida unsealed several documents,
rejecting the government's argument
that writing "sealed document" on a
docket sheet provides enough notice that
the documents were being sealed.
Adams did order some of the materials
to be redacted to protect the continuing
investigation and grand jury secrecy.
(6/2-4 mi, U.S. v. Robinson, 28 Media
Law Reporter 2534, Nov. 28, 2000)


Docum ents releasedin trialofaccused spies


MIAMI More than 1,400 pages of
records confiscated by the FBI were
released to two Miami news
organizations covering the trial of an
alleged Cuban spy ring.
The Miami Herald and NBC 6 in
Miami requested material from nearly
1,000 computer disks seized from the
accused spies.


U.S. District Judge Joan Lenard ruled
that the news organizations could have
access to the material that was
introduced into evidence, including a
three-volume notebook of decrypted
computer disk material in Spanish.
Material not yet entered into
evidence was not turned over to the
press. (12/15/00 12/27/00)


Open investigation prevents recordsrelease


BARTOW Records related to the
shooting of a Frostproof police officer
are exempt from the Public Records
Law because the investigation remains
active, a circuit court judge ruled.
The Ledger of Lakeland filed a
lawsuit seeking records about 1981
killing of Officer David McCall. The
newspaper wrote a story in March 1999
that claimed informants identified a


suspect in the case in 1988 and that the
suspect had died in 1991.
Judge J. Dale Durrance, 10th Judicial
Circuit, ruled against the newspaper,
saying the investigation remains open.
The Polk County Sheriff's Office, the
Frostproof Police Department and the
Florida Department of Law Enforcement
have countersued to get materials the
newspaper used in its article. (11/16/00)


Newrulestoprotect
medicalrecords release
WASHINGTON Doctors, hospitals
and insurance companies face greater
restrictions on sharing and releasing
patients' medical information as a result
of rules issued in December by the
Clinton administration.
The rules,
which take PRIVACY
effect in two
years, cover
paper and electronic records, and oral
communications. Health care providers
will have to get patient authorization to
disclose any health information.Patients
also will have the right to look at, copy
and ask for corrections to their medical
records. (12/20/00 12/21/00)


DECISIONS

ON FILE
Copies of case opinions, attorney
general opinions, or !,.1,,is.,,
reported in any issue as "on file" may
be obtained upon request from the
Brechner Center for Freedom of
Information, College of Journalism
and Communications, 3208 Weimer
Hall, University of Florida,
Gainesville, FL 32611-8400, (352)
392-2273.


3 The Brechner Report 0 February 2001







ACCESS MEETINGS CONTINUED

Commissioners confessviolations ofSunshine Law


CHIEFLAND Levy County
commissioners admitted to and
apologized for violating the state's Open
Meetings Law twice in November.
During the first incident, two
commissioners-elect talked with
Commissioner Lilly Rooks on Nov. 7


about a proposed board action.
The second violation happened at a
citizen's meeting on Nov. 21. The
citizens were discussing road paving with
Commissioner Don Foley and
Commissioner-elect Tony Parker was
present. The board members said they


Councildecidesnotto filemalpractice suit


VERO BEACH The Vero Beach City
Council decided not to pursue a legal-
malpractice lawsuit against a Miami law
firm involving its million dollar battle
with community activist Frank Zorc.
Former City Attorney Robert Sechen
was working for Kubicki Draper of
Miami and acting as a special counsel for
Vero Beach in 1995 when he and then-
City Attorney Larry Braisted advised the
council to hold four secret meetings. The

INTERNET


meetings were in violation of the
Sunshine Law, courts later ruled.
Zorc sued the city twice for violating
access laws, and Vero Beach settled the
cases for $575,000 in 1999. (Brechner
Report, July 1999) The city also paid
$456,000 in legal fees to four law firms,
including Kubicki Draper.
In a 5-0 vote, the council decided
against a malpractice suit to recover part
of the fees. (11/22/00)


Judge refuses to order release ofgolf scores


JACKSONVILLE The parent
company of The Florida Times-Union
was unsuccessful in an attempt to get a
preliminary injunction against the PGA
Tour in a dispute over the broadcast of
real-time golf scores.
The PGA Tour uses a $26 million
system to collect and provide real-time
golf scores to the media at tournaments
and on its Web site pgatour.com. Morris
Communications Corp. wants access to
the scores as they are called into the
tour's media center so it can post the
scores on its Web sites and sell the
scores to other news organizations.
Morris Communications has filed an
antitrust lawsuit against the tour over the

NEWS NOTES


scores. The company claims tour rules
prevent the company from collecting its
own real-time scores. Lawyers for Morris
Communications argue that the scores of
sporting events are public information and
access should not be delayed or limited.
Judge Harvey E. Schlesinger, of the
U.S. District Court for the Middle
District of Florida, denied a motion for an
injunction, ruling the company hadn't met
the burden of proof for an injunction.
Schlesinger also wrote that it seemed
that Morris Communications wanted to
capitalize on the PGA Tour's system for
collecting the scores, not just the scores
themselves. (10/24/00 11/01/00; 28
Media Law Reporter 2544, Dec. 5, 2000)


New editor takes over Brechner Report
GAINESVILLE- S. Camille assistant city editor, copy editor
Broadway, a graduate student and assistant news editor.
specializing in journalism and Broadway received a
media law at the University of bachelor's degree in English
Florida's College of literature from the University of
Journalism and Tennessee, Knoxville.
Communications, is the new During her first year of
editor of The Brechner Report. graduate school, Broadway
Broadway spent six and a Camille served as the Ward Neff Intern
half years at newspapers in East Broadway for the Society of Professional
Tennessee and North Georgia before Journalists.
entering the graduate program.During her Broadway succeeds Jane Inouye as
career, she worked as a reporter, editor.


were unaware that the Sunshine Law
applies to commissioners-elect and that
they didn't intended to violate its
provisions. State Attorney Bill Cervone
said his office was not investigating the
reported violations because no
complaints had been filed. (12/7/00)

Courthearshospital

access arguments
TALLAHASSEE The Florida
Supreme Court heard oral arguments in a
case that will determine if an exemption
to the state's open meetings and open
records laws can be applied
retroactively.
In 1998, the legislature passed a law
that says that private companies that
lease public hospitals are not subject to
the Sunshine Law.
Memorial Hospital-West Volusia
was leased to a private company in 1994
and said its records and meetings were
never open and should remain closed.
Jon Kaney, an attorney from the
News-Journal Corp., argued that the law
cannot be applied retroactively to pre-
1998 records.
The law also faces a constitutional
challenge in a case in Volusia County
Circuit Court. (12/1/00; a transcript and
audio recording of the oral argument is
available at http://wfsu.org/gavel2gavel)



THE BRECHNER

REPORT
Brechner Center for Freedom of Information
3208 Weimer Hall, P 0 Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www jou ufl edu/brechner/
e-mail jthomas@jou ufl edu
Sandra F. Chance, J.D., Director/Executive Editor
S. Camille Broadway, Editor
Jackie Thomas, Production Coordinator
Meghan McShane, Production Assistant
The Brechner Report is published 12 times a year
under the auspices of the University of Florida
Foundation The Brechner Report is a joint effort of
The Brechner Center for Freedom of Information, the
University of Florida College of Journalism and
Communications, the Florida Press Association, the
Florida Association of Broadcasters, the Florida Society
of Newspaper Editors and the Joseph L Brechner
Endowment The Brechner Report thanks Robert Rivas,
Pat Gleason, Collen Ahern and Jane Inouye for their
contributions to this issue


The Brechner Report U February 2001 3





























Recommendationwouldlimitrecords access
In the final days of the 1998 legislative session, Rep. recommendation that would limit access t
Tom Feeney introduced an amendment to a bill, records and advised against supporting a
authorizing the state to sell its database of driver recommendation with such little factual b
license photographs to a small company in New testimonial support. Recommendation 5,
England. This database is exempt from public minor modification, was ultimately approve
disclosure under Florida's liberal Public Records Law. majority of the Task Force, over strenuous
Th a ohbjetions


The Vm;33aaaar
Th P of the Feeney
Back Page amendment Barbar
raised all sorts
By Barbara A. Petersen of tr lig sss
of troubling issues -
issues that would have been identified and resolved had the
amendment gone through the regular legislative process. In
response to intense media scrutiny and overwhelming public
outrage, Gov. Jeb Bush rescinded the contract, and Feeney
ultimately introduced legislation creating the Task Force on
Privacy and Technology.
The Task Force's mission was supported by the Governor's
Executive Order Number 00-235, which required study and
recommendations on: (1) defining legal parameters for new
identity protection and privacy policies; (2) strengthening
identity protection policies; and (3) revising and/or
strengthening policies relating to the collection, sharing, sale,
and release of sensitive personal information by government
agencies. At the first meeting, the Bush-appointed Task Force
took testimony from prosecutors, victims of identity theft,
representatives of data collection companies and software-
maker Microsoft. Department of Highway Safety and Motor
Vehicles staff provided information to the Task Force on the
department's collection and sale of driver history information.
At what was supposed to be its final meeting, the Task Force
received a copy of draft recommendations. There was strong
and virtually unanimous support for all recommendations
regarding the problem of identity theft. (Recommendations are
available online at www.MyFlorida.com.)
In direct contrast, there was considerable debate, often
heated, on the draft recommendations regarding data protection
and public access, particularly Recommendation 5, which
focuses on public record information "made available to
secondary users for unrelated commercial purposes."
Some members of the Task Force were surprised to see a


Of great concern is the effect the recol
a Petersen could have on Florida's long, rich tradition


o public

asis or
with some
ed by a
s

mmendation
n of public


access. Under Recommendation 5, a government
custodian would be required to determine both the identity of a
public records requester and the purpose of the request an
inquiry in direct contradiction to 100 years of public policy.
Putting aside the practical issues of how an agency would track
secondary use and enforce provisions prohibiting it, a
government agent would have alarmingly wide latitude to
proscribe use of information obtained from public records for
"unrelated commercial purposes." Such a scheme raises
serious constitutional concerns under both Article I, section
23, of the Florida Constitution, which grants us the right to be
free from governmental intrusion into our private lives, and
Article I, section 24, the guarantee of access to public records.
For the past few months, Florida has received national and
international recognition for the unparalleled access to the
records and meetings of its government provided by our
sunshine laws. It is sadly ironic that the Task Force has
endorsed a course of action that would not only subvert that
right of access but would overturn 100 years of public policy.
Better, less problematic ways exist to balance the interests
of public access and data protection, and the Task Force and its
staff did an admirable job of identifying and articulating some
of the various alternatives. Focusing on the illicit use of
information obtained from public records is an appropriate
response to the problems reviewed, as is an analysis of
government's collection and use of information obtained from
its citizens. A recommendation that would restrict secondary
use of public record information subverts Florida's rich
tradition of public access is not only unwarranted, it is unwise.
Barbara A. Petersen, a member of the Task Force on
Privacy and Technology, is executive director of the First
Amendment Foundation.




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