Volume 25, Number 4 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofi,,1. l..., College ofJournalism and Communications U University of Florida
Bill would close autopsy photos
ORLANDO The Orlando courts could grant public could
Sentinel's efforts to examine the access autopsy photos, videos and
autopsy photos of NASCAR driver audio recordings if the records'
Dale Earnhardt havesparked a requester showed "good cause."
legislative effort to exempt autopsy The House State Administration
photographs from the Committee approved an
state's Public Records A C C E SS amended version of the
Law. A C E bill by a 3-2 vote. The
Senate Majority REC ORDS amendment is similar to
Leader Jim King, R- the Senate committee
Jacksonville, introduced legislation version and additionally would allow
that would create a Public Records a local agency to request the photos,
Law exemption for autopsy photos and would allow a medical examiner
and make it a third-degree felony to to use the photos in training
publish an autopsy photo. materials, to get another medical
Another version of the Senate bill, opinion, and to conduct medical or
which passed unanimously out of the scientific research.
Criminal Justice Committee, would Some access advocates have
make the exemption retroactive. It proposed an alternative, which would
also would allow for the spouse, preserve the public's right to inspect
parent or child of the deceased, as the autopsy photos but place a blanket
well as state and federal agencies, to ban on copying them without a
view or copy autopsy photos. The judge's approval. (2/22/01 3/10/01)
Some media settle, but paper challenges seal
The Orlando Sentinel and five
other media outlets reached an
agreement with Teresa Earnhardt, the
widow of NASCAR driver Dale
Eamhardt, for an independent medical
expert to examine her husband's
autopsy photos. But the Independent
Florida Alligator in Gainesville is
continuing to fight against an effort
to seal the photos.
Under Florida's Public Records
Law, autopsy photos are public
record. Mrs. Earnhardt went to court
on Feb. 22 to have the photos sealed.
Judge Joseph G. Will, 7th Judicial
Circuit, granted a temporary
injunction. The media and the family
were ordered into mediation.
The Sentinel said it wants access
to the photos to help settle questions
about the cause of Earnhardt's death.
Under the agreement, an
"automotive biomechanics" expert
will view the photos and a videotape
of the autopsy, and issue a report.
The photos then would be sealed. The
agreement also involves The Miami
Herald, The Tampa Tribune, Los
Angeles Times, ( In,, gr Tribune and
WFLA-TV in Tampa.
Campus Communications Inc., the
Alligator's publisher, said it would
continue to fight for access to the
photos. A hearing is set for April 6.
"There is something more at stake
here," Alligator attorney Thomas
Julin told the paper. "The rights of the
people are going to be inhibited by
decisions like these." (2/22/01 3/
meeting in secret
TALLAHASSEE A Feb. 20 meeting
with Gov. Jeb Bush was public, but
secret meetings together are more the
norm for a new group established by
Florida's 10 university presidents.
With the state's Board of Regents
about to be demolished, the university
formed the ACCESS
The presidents say the group is informal,
and they have met three times in private
since forming in November.
As the Council of Presidents, the
same group met publicly for years and
advised the Board of Regents. A
spokesman for the university system
said the meetings are not covered by the
Sunshine Law because the presidents
were acting as staff members, not acting
on behalf of, or advising, the regents.
Civil action filed against
GOLDEN BEACH The Miami-Dade
State Attorney's Office has filed a civil
action against Golden Beach town
councilman Adalberto Paruas for
violating Florida's Open Meetings Law.
Paruas had resident Oded Meltzer
ejected from a meeting where a town
committee reviewed applications for the
town manager and clerk positions.
Ed Kreiling, the town's attorney, later
issued an opinion that the town violated
the Sunshine Law.
Paruas said he didn't realize the
meeting was public. He could face up to
$500 in fines. The town voted in
December to pay Paruas' legal fees,
expected to be about $7,000. (Brechner
Report, March 2001) (1/28/01)
ACCESS RECORDS CONTINUED
Judge orders votes sorted by hand
JACKSONVILLE Duval County newspaper a maximum of $10,000 in
Supervisor of Elections John Stafford staff fees.
was ordered to separate by hand the Stafford originally estimated that it
almost 5,000 undervote ballots from the would cost $75,600 to hand sort the
291,000 cast in the 2000 election, ballots.
The Miami Herald filed a public The review of the Duval ballots began
records lawsuit in order to see the on March 5.
undervotes, ballots that had no clean Haddock also rejected an effort by
punches for president. The New York Times and The
Elections officials had resisted Washington Post to have Stafford
conducting a machine sort because they separate out the 22,000 overvotes,
were concerned a machine recount of the which had more than one clear punch for
punch card ballots might dislodge more president.
chads and alter the ballots. The Times and the Post asked to join
Judge Lawrence Page Haddock, 4th the Herald lawsuit, but the judge ruled
Judicial Circuit, ruled on Feb. 27 that the the papers should file their own records
county had three weeks to separate the request rather than delay the Herald's
ballots by hand and could charge the count. (2/2/01- 3/7/01)
Federal judges to consider electronic records
WASHINGTON A federal judiciary PACER site for each court. The new
committee is considering making system would also allow a user to
records, now available for inspection in search all courts from a single site.
paper form, part of a Web-based The Judicial Conference, which
electronic database. makes policy for the federal judiciary,
The proposal would make the files received approximately 240 responses
available through the Public Access to to its request for public comment.
Court Electronic Records (PACER) Additional comments were gathered at a
system. A Judicial Conference public hearing on March 16 from both
committee is studying the security and privacy advocates and access advocates.
privacy implications of making the The Court Administration and Case
records more widely available. Management Committee may make
Many federal courts already use suggestions to the Judicial Conference
PACER, but a user has to log onto a by September. (2/6/01 3/1/01)
Lawsuit claims agency violated Sunshine Law
FORT WALTON BEACH Four violations at the Garcon Point Bridge.
plaintiffs filed a lawsuit against the Charles Grande, Edward McKay,
Florida Department of Environmental Roger Sharp and L. Kevin Stinnette sued
Protection that claims the agency to get a copy of the file. The suit claims
violated the Public Records Law. the DEP failed to provide the documents
The documents being sought involve a and didn't specify in writing its reason
criminal probe into environmental for not releasing the records. (2/23/01)
Copies of case opinions, Florida
Attorney General opinions, or legis-
lation reported in any issue as "on
file may be obtained upon request
from the Brechner Center for Free-
dom of Information, College of Jour-
nalism and Communications, 3208
Weimer Hall, University ofFlorida,
Gainesville, FL 32611-8400,
The Brechner Report April 2001
Tampa General ordered
TAMPA Tampa General Hospital
will have to make its records and
meetings public after a state appeals
court affirmed a lower court ruling.
A three-judge panel of the 2nd District
Court of Appeal upheld a decision by
Judge Edward Ward, 13th Judicial
Circuit, that the private, non-profit
hospital must operate in the open.
The Hillsborough County Hospital
Authority handed over operating control
of Tampa General to Florida Health
Sciences Center in 1997. The Tampa
Tribune and the St. Petersburg Times
Release of ballots
delayed by lawsuit
HOLMES COUNTY A
contested sheriff's race in Holmes
County delayed the release of
ballots to the media.
County Court Judge Robert
Brown, 14th Judicial Circuit, ruled
in January that the ballots could
not be unsealed for the media
while a lawsuit regarding the
sheriff's race was still pending.
The New York Times appealed the
decision. A circuit court judge
reversed and allowed the
newspapers access to the ballots.
A review of the ballots began on
March 12. (1/19/01 -3/7/01)
limits on access
TAMPA A Florida commission
charged with reducing medical errors
has suggested the state establish two
new centers to track the mistakes and
educate the public but wouldn't give the
public access to information about
which health care providers are making
The Commission on Excellence in
Health Care recommended several ways
to improve the way medical mistakes are
reported to the state.
However, the names of hospitals and
doctors that commit mistakes would not
be public record under the committee's
Currently, consumers can get
specific information about mistakes that
happen in doctor's offices but not in
hospitals. (1/24/01 2/3/01)
to release its records
sued in 1999 to get access to records
that have been unavailable since the
private company took over.
The hospital, which still operates on
public land with a public lease, has been
ordered to release the records and pay
the newspapers' $300,000 legal fees.
Tampa General in late February
asked the appeals court to rehear the
case. Gregg Thomas, an attorney with
Holland & Knight, the law firm
representing the Tribune, said it could
take the court several months to rule on
the rehearing. (2/3/01 2/23/01)
ACCESS MEETINGS CONTINUED
Charges against board dismissed as part of agreement
TAVARES The State Attorney's five attended a two-hour seminar on the and Smith have expressed no problems
Office has agreed to dismiss Sunshine Sunshine Law. with accepting the plea agreement.
Law civil charges against a school board Conner refused to sign the plea The charges stemmed from an
member who refused to enter a plea agreement and insisted that the charges executive session that the board closed
agreement. against him needed to be dropped to discuss collective bargaining. During
The State Attorney's Office offered because he had already voluntarily the closed session, the board also
to dismiss charges against Jimmy attended a Sunshine Law workshop. State discussed issues that should have been
Conner, Phyllis Patten, Kyleen Fischer, Attorney Brad King agreed to dismiss discussed in an open session.
Mary Fletcher and Gerald Smith if the the charges. Patten, Fischer, Fletcher (1/11/01 -1/26/01)
City officials no longer face charges Online Sunshine
ST. AUGUSTINE The city's former
mayor and its current mayor no longer
face charges of violating the Sunshine
Law after the Daytona Beach State
Attorney's Office found the accusations
were "totally without merit."
Leslie Garcia filed the original
complaint, claiming that then-Mayor
Len Weeks and then-City Commissioner
Mark Alexander discussed city business
outside a city commission meeting.
BARTOW Polk County prosecutors
have dropped a criminal obscenity case
in an Internet pornography case against a
Tammy and Herbert Robinson agreed
to avoid "sexually connected"
businesses in the 10th Judicial Circuit,
which includes Polk, Hardee and
Highlands counties, for the next four
years and pay the sheriffs office
The couple also agreed to drop a
federal civil rights lawsuit they had filed
against the Polk County Sheriff s
Commission won't pur
OCALA Marion County
commissioners decided against
removing a controversial book from the
public library following an opinion from
the county attorney that taking it off the
shelves would be unconstitutional.
"It's Perfectly Normal," a sex
education book for children, prompted
complaints from parents.
In response, the commissioners
started to change their policy so the
commission would have the final say in
cases where residents challenge library
Garcia claimed the two officials had
discussed a draft of a street performers
ordinance at a Historic St. Augustine
Area Council meeting held at Weeks'
restaurant. Both men denied the
After conducting 20 interviews,
investigators didn't find any witnesses to
the alleged discussion, and organization
records showed the men were never at
the same council meeting. (1/27/01)
The suit claimed that their March
1999 arrest was unconstitutional.
Herbert Robinson took nude
photographs of his wife and posted the
photos on her Web site.
The site still operates, but the couple
now lives in the Tampa Bay area.
The Robinsons' case was believed to
be the first in the nation where
prosecutors applied a community's
decency standards to an Internet case,
according to the Associated Press.
Most of the Internet prosecutions to
date have involved child pornography.
sue book policy
The commission dropped its
initiative after County Attorney
Gordon Johnston wrote that removing
books based on content would be
As part of the ongoing debate over
"It's Perfectly Normal," another
resident filed a complaint with the
library against the Bible, saying it is
filled with graphic descriptions of
rape, murder, incest, cannibalism and
sodomy. (1/17/01 2/2/01)
collects user data
TALLAHASSEE The Florida
Legislature's home page, Online
Sunshine, is keeping up with its users
through technology that the U.S.
government has almost completely
banned from its Web sites.
"Cookies" pieces of information
that are stored
on the user's PRIVACY
keep up with the
use of a Web site are not allowed on
U.S. government sites unless a
"compelling need" exists for the cookie
technology. Neither the governor's
myflorida.com nor many other state
sites use the technology.
The cookies from Online Sunshine
are programmed to stay on a computer
until 2037. A spokeswoman for the
House Speaker Tom Feeney said the
state collects only aggregate data and
doesn't profile individuals. (2/11/01)
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
Sandra F. Chance, J.D., Director/Executive Editor
S. Camille Broadway, Editor
Jackie Thomas, Production Coordinator
Meghan McShane, Production Assistant
The BrechnerReport is published 12 times a year
under the auspices of the University of Florida
Foundation. The BrechnerReport is ajoint 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 Gregg D.
Thomas, Robert Rivas and Colleen Ahem for their
contributions to this issue.
The Brechner Report April 2001 3
Prosecutors drop Web pornography case
Online vote swapping deserves protection
The boondoggles of the 2000 presidential election Secretaries of State of Oregon and California set aside
were not limited to dimpled chads, standards of these fundamental notions, and set an example for
review, or Supreme Court justices making a mockery Harris by interfering in the closest presidential race in
of federalism to further a political agenda or their recent history and quite possibly changing the result in
own retirement plans. Nor was Florida Secretary of the process.
State Katherine Harris the only one in her position to Freedom of assembly and freedom of speech are
The dramatically necessary elements in a self-governing society. The
k P influence the argument could be made that the Framers intended to
B ack Pe election's Marc J.Randazza extend freedom of expression and association only to
By Marc J Randazza outcome. The forgotten technologies existing in the 1700s, but even strict textualists
issue of the 2000 urge that courts must apply constitutional values to new
election, and the issue that stands to impact presidential politics circumstances, especially when those circumstances arise due
in 2004, took place in cyberspace. The battle over online vote to changes in technology. Cyberspace is entitled to no less
swapping has just begun. protection than other traditional public forums and media.
As the 2000 campaign reached its climax, some renegade The one goal that these Secretaries of State considered
supporters of Green Party candidate Ralph Nader countered illegitimate was the common goal of simultaneously electing
critics' charges that they were "handing the election to Bush" by Al Gore as president and helping the Green Party achieve 5
creating Web sites encouraging vote swapping. In short, a Nader percent of the popular vote. As such, this was not a content-
supporter in a hotly contested state would agree to vote for Al neutral regulation, but one that specifically targeted the
Gore if a Gore supporter in an uncontested state would vote for political goals of the so-called "Nader traders." Inasmuch as
Ralph Nader. The object help deliver 5 percent of the popular they restricted websites that urged people to vote in a
vote to the Green Party so that the Greens would receive particular manner in a publicly held election, the actions of the
federal matching funds for the 2004 presidential election, while Secretaries of State are presumably unconstitutional.
simultaneously working to prevent a George W. Bush The vote-swap phenomenon was the result of thousands of
presidency. people nationwide coming together in the new town square to
With the election less than a week away, and the poll margins associate for the furtherance of a common political goal. Had
closer than any election in recent history, the Secretaries of this happened in a traditional meeting room, few would
State of Oregon and California acted to snuff out the online question its legality. However, the Secretaries of State of
vote-swapping movement by writing letters that threatened California and Oregon acted out of unfamiliarity with the new
vote-swap site operators with fines and/or imprisonment, technology. In doing so, California and Oregon imperiled the
Although nobody was certain whether vote swapping was most fundamental of constitutional rights.
constitutionally prohibitable, the chilling effect brought about Although the Constitution demands that any government
by the letters may have tipped the scales in the 2000 campaign. actor wishing to restrict the fundamental rights to free speech
Freedom of speech is "protected against censorship or and assembly bear a heavy burden, the Secretaries of State
punishment, unless shown likely to produce a clear and present barely lifted a constitutional feather. Vote swapping is legal,
danger of a serious substantive evil that rises far above public constitutionally protected, and should be recognized as such.
inconvenience, annoyance, or unrest ( erminiello v. ( 1tui ,g, ).
Freedom of association is equally protected as "a fundamental
element of personal liberty" (Roberts v. United States
In the waning days of the 2000 presidential election, the
Marc J. Randazza is a graduate of Georgetown
University Law Center and is a graduate student in the
University of Florida's College ofJournalism and