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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: May 2001
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Bibliographic ID: UF00090012
Volume ID: VID00017
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


B RECHNER



REPORT

Volume 25, Number 5 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom oflIr,- n...i.. 1, College ofJournalism and Communications U University ofFlorida
May 2001


Nw law closes autopsy photos


TALLAHASSEE -A bill that closed
autopsy photos to public scrutiny
powered through the
Florida Legislature and A
was signed into law by A
Gov. Jeb Bush. At least RECO]
two newspapers have since
filed suit to get the court
system to put the brakes on.
The House bill passed the Senate at
10 a.m. on March 29, and it was signed
into law less than six hours later.
The new statute bars anyone other
than public officials and relatives from
seeing, copying or distributing autopsy
photographs. A judge can unseal the
photographs if a plaintiff shows "good
cause." The law was designed to apply
AGO: County clerkcan't
attendclosedmeetings
TALLAHASSEE The county clerk
of the court is not allowed to attend a
closed attorney-client meeting of a
county commission under Florida's
Sunshine Laws, the attorney general said
in an opinion.
Nassau County Attorney Michael S.
Mullin had requested an opinion from
Attorney General Bob Butterworth after
an appeals court in a Vero Beach case
ruled a city clerk could not attend
closed meetings.
J.M. "Chip" Oxley, clerk of the
circuit court in Nassau County, attended
18 closed meetings of the Nassau
County Commission between April
1996 and December 2000.
Butterworth's opinion said Florida
statutes specify who can attend a closed
attorney-client meeting, and the law
does not list clerks of the court among
those who may attend.
Mullin said Oxley would not be
allowed to attend closed commission
meetings in the future.
(2/28/01 3/7/01; AGO 2001-10)


R
R]


retroactively.
Anyone who violates the law can be
charged with a felony, which
SS has a potential penalty of five
years in prison and a $5,000
DS fine. The penalty is the
strongest in the state for any
records violation.
The South Florida Sun-Sentinel and
the Orlando Sentinel filed a lawsuit the
next day, asking the court to declare the
law unconstitutional and allow the
papers to inspect various autopsy photos
they requested in several counties in
anticipation of the law's passage.
(3/30/01 3/31/01)
(Editor's Note: See related Back
Page opinion piece)


Newspaper sues
for Earnhardtpictures
DAYTONA BEACH As part of a
settlement with racing legend Dale
Earnhardt's widow, a head-trauma expert
looked at Earnhardt's autopsy photos on
behalf of the Orlando Sentinel.
However, the Independent Florida
Alligator, a student-run newspaper, was
allowed to challenge the settlement that
sealed the photos.
Judge Joseph Will, 7th Judicial
Circuit, in allowing the lawsuit to
proceed, said that others are not bound,
by the agreement signed by the Sentinel
and the Eamhardt family. The Alligator
is also challenging the new state law
passed to bar access to autopsy photos.
(4/6/01)


Courtupholdsclosedparentalrightshearings
TALLAHASSEE In a 5-2 decision, Children & Families moved to sever
the Florida Supreme Court upheld a their legal rights to their 13-year-old
statute that requires hearings to daughter, Jennifer.
terminate parental rights be closed. A jury found Kathy Bush guilty of
The statute requiring the AC C ESS deliberately making
closed hearing doesn't JA Jennifer ill to get attention
violate the public's right of for herself. The abuse is the
access to court proceedings, ME E IN GS result of a psychological
the Court ruled. "There is no disorder known as
constitutional requirement that juvenile Munchausen syndrome by proxy. She
proceedings be presumptively open to was also convicted of fraud and was
the public," Justice Peggy Quince wrote sentenced to five years in prison.
for the majority. The Bushes said that closing the
Kathy and Craig Bush challenged the hearing violated Kathy Bush's right to an
statute after Kathy was convicted of open trial. Their attorney said the couple
child abuse, and the Department of plans to appeal the decision. (2/23/01)
Sunshine lawcomplaintdelays airportcontract
MIAMI Concerns that a bidding bidders sued, saying the County
process didn't follow the state's Commission may have violated the Open
Sunshine Law prompted a Miami-Dade Meetings Law in awarding the contract.
judge to issue an injunction that bars The commission is accused of meeting
Dade County from executing a contract, in private to discuss the bid proposals.
The contract with Secure Wrap would Judge Philip Bloom, 11th Judicial
have hired a permanent contractor to Circuit, granted the injunction but
wrap luggage at the Miami International required the plaintiffs to post a $50,000
Airport. However, the two losing bond. (3/23/01)







ACCESS RECORDS CONTINUED


Billwouldmakeleakingnamesacrime INTERNET


TALLAHASSEE A proposed House
bill would not only keep university and
college presidential searches secret
until the end, it also would make it a
crime to reveal a candidate's name.
The bill (HB1535), sponsored by
Evelyn Lynn, R-Ormond Beach, would
keep applicants for presidential
positions, as well as education
commissioner, secret until the
committee selects a finalist. It would
make it a first-degree misdemeanor to
disclose a candidate's name.


While the secrecy was recommended
by the task force looking into higher
education reforms, the criminal
penalties were added by Republican
lawmakers sponsoring the bill.
(Brechner Report, February 2001)
The measure may find less support in
the Senate. Senate Education Chairman
Ken Pruitt told The Tampa Tribune that
he doesn't like the idea of search
secrecy and wouldn't support an
exemption effort in the Senate.
(3/23/01 3/29/01)


Judge refusesgagorder in Gifford libel case


WEST PALM BEACH A judge
refused a gag order request in a libel
lawsuit filed by Frank and Kathie Lee
Gifford against a Florida-based tabloid.
The Giffords are suing the Boca
Raton-based American Media
Operations, owner of The National
Examiner, on behalf of their son Cody.
The family is suing over an article from
Feb. 8, 2000, titled "Kathie Lee's
Turning Poor Cody into a Monster."
The Giffords' lawyer asked Judge
Timothy McCarthy, 15th Judicial
Circuit, to bar either side in the case
from speaking publicly about the case.

ADVERTISING

Camp aign ad source

ofallegedviolations
FT. MYERS A campaign ad run in
The News-Press of Fort Myers has
landed former Lee County Sheriff John
McDougall in trouble with the Florida
Elections Commission.
He is accused of 69 violations of the
state's elections law. The ad in question
ran in September during his
unsuccessful re-election bid and didn't
carry the required disclaimer of "paid
political advertising."
It ran 23 times and violated three
sections of Florida Statutes each time it
ran.
McDougall faces fines up to
$13,800. He says the newspaper should
share the blame for the mistake because
newspaper employees failed to add the
disclaimer to the ad.
But News-Press officials say the
McDougall campaign approved the final
proof of the ad. (3/9/01)


McCarthy denied the request at a hearing
in March.
At an earlier hearing, McCarthy
granted a request by both sides for a
blanket seal in the case, then changed his
ruling when he realized that the lawyers
must give public notice when they want
to seal records.
The lawyers must now publish a legal
notice and have a hearing in front of
McCarthy every time they want to seal
part of the court record.
The judge also ordered the two sides
to enter mediation before mid-
September. (1/19/01 3/17/01)


Courtwon'tallow

AOLlawsuit
TALLAHASSEE The Florida
Supreme Court ruled in March that a
Florida mother cannot sue America
Online for allowing one of their
subscribers to sell a video of her son
being sexually assaulted.
In 1994, schoolteacher Richard Lee
Russell made a video of himself and two
other boys having sex with the woman's
11-year-old son. Russell then marketed
the video to pedophiles through an AOL
chat room. The mother sued AOL for $8
million for allowing Russell to use the
chat room to sell the video.
A trial court dismissed the lawsuit,
and the 4th District Court of Appeal
upheld the dismissal. The state Supreme
Court also upheld the dismissal in a
close 4-3 decision. According to the
majority opinion, the federal
Communications Decency Act protects
Internet service providers like America
Online from lawsuits concerning
material generated by Internet users.
(3/8/01 3/9/01)


ConcernsoverpublicrecordshaltBush e-mails


WASHINGTON Friends of
President George W. Bush won't be
getting any more mail from
G94B@aol.com after the president
discovered in January that his e-mails
could be considered public record.
Bush often sent e-mail from the now-
defunct AOL address during the
campaign. However, the president's
lawyers advised him that his e-mail from
the White House could become the
Library computer taken
to fill records request
WHITE SPRINGS A councilwoman's
computer was taken from the White
Springs Library after a resident made a
public records request and alleged that the
councilwoman was violating the Sunshine
Law. Resident Joe Griffin filed a request
in January to see city records supposedly
contained on Tracy Woodard's staff
computer at the library.
Suwannee River Regional Library
Director Danny Hale said he removed the
computer because it was easier than
reviewing files at the library. (2/6/01)


subject of public records requests.
His farewell message, obtained under
a public records request, went out to 42
people including his mother, Barbara
Bush; Condoleezza Rice, the national
security adviser; Andrew Card, the
White House chief of staff; and golfer
Ben Crenshaw. He told his friends he
would miss their "ideas and
encouragement" and said he would talk
to them by phone. (3/19/01 3/21/01)

DECISIONS

ON FILE
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
Freedom of Information, College of
Journalism and Communications,
3208 Weimer Hall, University of
Florida, Gainesville, FL 32611-8400,
(352) 392-2273.


. The Brechner Report May 2001







ACCESS MEETINGS CONTINUED

Universitypresidents'groupexamined


GAINESVILLE State attorneys are
investigating whether 10 Florida
university presidents violated the Open
Meetings Law in a series of private
meetings.
The presidents formed the State
University Presidents Association in
November and have met at least four
times in secret. (Brechner Report, April
2001)


The same presidents also make up a
group called the Council of Presidents,
which advises the state's Board of
Regents. The council conducts its
business publicly.
Even though the Board of Regents is
likely being abolished, eliminating the
presidents' advisory role, critics say that
the group should still be operating under
the Sunshine Law. (3/18/01)


ContractspromptOpen Meetingsprobe


TALLAHASSEE State investigators
are looking into whether former Florida
Agriculture Commissioner Bob
Crawford violated the Sunshine Law in
awarding contracts for the state fair to
Ed Gregory, a friend who received a
presidential pardon.
Gregory was awarded a contract to be
the sole midway operator for the Florida
State Fair in Tampa. He made political


donations to Crawford's campaigns as
well as to Sen. Hillary Clinton's
campaign. In March 2000, Gregory and
his wife, Vonna Jo, were given pardons
by Clinton for bank fraud convictions.
State investigators are probing
whether Crawford, now the director of
the state's Department of Citrus,
arranged the contracts in private rather
than in public meetings. (3/8/01)


Former councilman

sues over censur e
CRYSTAL RIVER A former
councilman is claiming his First
Amendment rights were violated when
the city council censured him in July and
also charges that three council members
violated the Sunshine Law.
Alex Ilnyckyj was found guilty of
disorderly conduct for two incidents at
council meetings, was censured by the
council and fined a month's pay -
approximately $436. Ilnyckyj is suing
for $650 in Citrus County Small Claims
Court.
He alleges as part of the case that
three council members violated the
state's Open Meetings Law when they
discussed the financial health of the city
in private meetings.
The city considered settling the case
but decided to fight it instead. (2/28/01)


Former reporter wins defamation lawsuitagainstloridaTo day


TITUSVILLE Former Florida no criminal charges were ever filed
Today reporter Kathy Reakes won against the two reporters.
$400,500 in a lawsuit against the Reakes later sued for defamation,
newspaper and its r AT claiming that Managing
corporate owner, DEFAMATION Editor Melinda Meers
Gannett Co. Inc. told another editor that
Reakes and former reporter John Reakes had committed a criminal act.
McAleenan were fired by the newspaper The lawsuit also claimed Phil Currie,
in 1996 after they went inside the vacant senior vice president of news at Gannett
apartment of a jailed murder suspect. A Co. Inc., defamed Reakes during a
grand jury investigated the incident, but speech to other editors four months

NEWS NOTES


JeffreyToobin to speakatJune23rdconference


The Florida Bar's 27th Annual
Media-Law Conference in June will
feature legal analyst, journalist, lawyer
and author Jeffrey Toobin as the
keynote speaker.
A staff writer at The New Yorker,
Toobin has written a best-selling book
about the O.J. Simpson trial. His new
book, Too Close to Call: The 36-Day
Battle to Decide the 2000 Election,
will be published by Random House in
the fall of 2001.
Toobin also has been a legal analyst
for ABC News since October 1996. He
was previously an assistant U.S. states
attorney in Brooklyn, N.Y.
Scheduled for 9 a.m. to 5 p.m. on
June 23, the conference will also


feature workshops on election day news
coverage, the impact of the Internet on
coverage of the election case, cameras
in the courtroom, privacy and
defamation on the Internet, copyright
and trademark issues, news and video
vetting, and the public records issues
raised by the recent ballot count.
The conference will be held at the
Orlando World Center Marriott. The
media law luncheon, featuring Toobin,
requires a $32 ticket.
Registration material and additional
details about the conference are
available by contacting Toyca Williams
of The Florida Bar at (850) 561-5766
or by e-mailing her at
twilliam@flabar.org.


after the firing.
Reakes testified during the trial
that the two statements made it
impossible for her to find newspaper
work. The jury found for Reakes and
ordered Meers and Florida Today to
pay her $400,000 and ordered Currie
to pay her $500.
A newspaper attorney said the
company plans to appeal the verdict.
(3/7/01 3/16/01)

THE
BRECHNER
REPORT
Brechner Center for Freedom of Information
3208 Weimer Hall, P 0 Box 118400
College of Journalism and Communications
University of Florida, Ganesville, FL 32611-8400
http //www jou ufl edu/brechner/
e-mail brechnerreport@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 Rahdert,
Anderson & Steele, P A, Robert Rivas and Colleen
Ahern for their contributions to this issue


The Brechner Report May 2001 3





























EarnhardtActshouldbe ruledunconstitutional


The "Earnhardt Act" creating a public records
exemption for autopsy photographs is unconstitutional
and should be struck down. An act creating such an
exemption "shall state with specificity the public
necessity justifying the exemption and shall be no
The broader than
necessary to
Back Page accomplish
-f flp ctqtpri


By Jon Kaney


Jon Kaney


purpose of the act."
Article I, 24(c), Fla. Const. This act is, at once, unjustified,
overbroad and underinclusive.
The act declares that autopsy photographs "are highly
sensitive depictions ... of the deceased which, if heard, viewed,
copied or publicized could result in ... emotional injury to the
immediate family of the deceased as well as injury to the
memory of the deceased." It then provides that "a photograph or
video or audio recording of an autopsy in the custody of the
medical examiner is confidential and exempt" from the Public
Records Law. The act allows free access to the surviving spouse,
or other family members where no spouse survives, and allows a
governmental agency to obtain access "in furtherance of its
official duties." Anyone else may gain access by suing in circuit
court and showing good cause. It applies retroactively to all
existing photographs. A violation of the act is a felony. (See
Laws of Florida (2001), Chapter 2001-1.)
To sustain an exemption, the Legislature must identify a
public necessity that justifies the exemption. This is a balancing
standard. The public necessity must be sufficiently compelling
to override the foundational value of public access to
governmental records. Here, the stated necessity is not that
weighty. The act says the necessity for the exemption is the
state's interest in protecting the family from discomfort
resulting from any exposure to the images of the deceased
without regard to whether the exposure is outrageous or
reasonable. It pays no attention to the severity of the resulting
distress, treating even the slightest emotional distress resulting
from the most reasonable and sensitive portrayal as sufficient to
override the public right of access. This is unjustifiable. While
we must be sensitive to the emotions of the grieving, such
extreme solicitude for that interest is unbalanced.
The act belies its inadequate justification by creating an open-


ended exemption. It authorizes the courts to grant
access based on a showing of "good cause." When the
Legislature recognized that good cause routinely
would exist for access to these records, it conceded
that there is no public necessity to deny all access to
the records under all circumstances.
In deferring to the courts to curtail the overbreadth
of the exemption, the Legislature breached its duty to
narrowly tailor the exemption. In Halifax Hosp. Med.


Center v. News-Journal Corp. 724 So. 2d 567, 570 (Fla.
1999), the Supreme Court refused to save an overbroad
exemption with a narrowing construction, holding "the task of
enacting a more limited statutory exemption
appropriately belongs to the [L]egislature." Here, the
Legislature has painted the exemption with the broadest
possible brush while implicitly conceding the exemption is
radically overbroad. There is no conceptual difference between
the overbroad exemption in Halifax and the overbroad
exemption here, and there is no obvious reason why the Court
should look more favorably on this particular form of
overbreadth.
Even though the act is overbroad, it is also irrationally
underinclusive. Because it applies only to autopsy photographs
of the medical examiner, it excludes many other photographs
of a deceased, such as photographs taken at the scene of death,
photographs taken during the autopsy by police investigators,
and similar materials. Since the act is so specifically aimed at
the particular controversy arising out of the tragic death of
racecar driver Dale Earnhardt, it irrationally ignores other
circumstances. Such underinclusiveness exposes the lack of
necessity for the act and undermines the arguments for the bill
under the Constitution.
The true purpose of this act is to protect families against
outrageous public display of the mordant images. It is
unfortunate that the Legislature refused to tailor the exemption
narrowly to that purpose.

Jon Kaney is a media attorney and partner in Cobb Cole
& Bell in Daytona Beach. He is counsel to the First
Amendment Foundation and the Florida Society of
Newspaper Editors as amici curiae in one of the suits
challenging the constitutionality of the Earnhardt Act.


"" "'"""




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