Title: Brechner report
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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: July 2001
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Bibliographic ID: UF00090012
Volume ID: VID00019
Source Institution: University of Florida
Holding Location: University of Florida
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THE


BRECHNER


REPORT



Volume 25, Number 7 E A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of l,,i .n..ri..0 College ofJournalism and Communications U University of Florida
July 2001


Court:Fxemption notretroactive
TALLAHASSEE-The Florida wrote that in order for a statute to be
Supreme Court ruled that a Public retroactively applied, the Court must
Records Law exemption governing determine that there is "clear evidence"
some hospital records cannot be applied that the legislature intended to apply the
retroactively, statute retroactively and that
The 1998 statute exempts A CS the retroactive application
the records of public of the statute is
hospitals that are leased to REC O RD S constitutional.
private companies. The The Court ruled that there
Daytona Beach News-Journal sued for was no clear legislative intent to apply
the pre-1998 records of Memorial the records exemption retroactively and
Hospital-West Volusia Inc., which were that the pre-1998 records should be
leased to a private company in 1994. released. The Court did not rule if the
(Brechner Report, February 2001) retroactive application was
The hospital fought the request, constitutional. The hospital was also
saying the law applied retroactively, ordered to pay the newspaper's legal
In the per curiam decision, the Court fees, estimated at $100,000. (4/28/01)

Appeals courtdenies access to e-m ails


TAMPA Florida's 2nd District
Court of Appeal denied a request by The
Tampa Tribune for copies of e-mails
held by the chief judge of the 13th
Judicial Circuit.
The Tribune wanted copies of Chief
Judge F. Dennis Alvarez's e-mails after
the judge investigated harassment claims
against Circuit Judge Edward H. Ward.
Ward resigned after the Judicial
Qualifications Commission charged him
with misconduct for sending sexually
explicit e-mails to a female judge and to
judicial assistants.
The commission released many of


Ward's e-mails, but The Tribune wanted
copies of Alvarez's e-mails about the
investigation as well as any e-mails
concerning "fraternization, romantic
relationships or sexual contact" between
any judge and any courthouse employee.
The appeals panel voted 2-1 to deny
the request, saying that the e-mail
records were not collected as part of
Alvarez's official duties as chief judge
and therefore not official judicial
records. Gregg Thomas, an attorney
representing The Tribune, said the
newspaper will appeal the issue to the
Florida Supreme Court. (5/26/01)


Contractvoidedover open meetings violations
MARATHON A judge ruled that a by the Technical Evaluation Panel voided
panel that helped select a the contract between Monroe County's
company to build sewers in A C CS Florida Keys Aqueduct
Key Largo violated the Authority and Ogden Water
state's Open Meetings Law MEETI N GS Systems, now Covante
by failing to advertise v Energy. (Brechner Report,
several teleconferences and June 2001)
by discussing the $60 million project Both Monroe County and Covante are
outside a public meeting. appealing the ruling. Taylor has not yet
Chief Judge Sandra Taylor, 16th determined who will pay the legal fees
Judicial Circuit, ruled that the violations for the lawsuit. (4/20/01 5/29/01)


Earnhardtphotos

to remain sealed
DAYTONA BEACH A circuit court
judge ruled that Florida's new law
regarding autopsy photographs is
constitutional and denied a Web site and
a student-run newspaper access to Dale
Earnhardt's autopsy pictures.
Judge Joseph G. Will, 7th Judicial
Circuit, ruled that the law, which prevents
autopsy photos from being released by
medical examiners without a court order,
was "valid and constitutional." He also
ruled that a provision that makes the law
retroactive was constitutional.
A second ruling by Will denied a
request by The Independent Florida
Alligator and the DeLand-based
Websitecity.com for a court order to
have Earnhardt's photos released. The
Alligator's attorney argued that access to
the photos would help ensure that the
medical examiner and police were doing
their jobs. Will said the newspaper and
Web site failed "overwhelmingly" to
demonstrate any reason why they should
be given access to the autopsy photos.
Newspaper and Web site attorneys
said they will ask for a new trial and will
appeal the ruling if the motion for a new
trial is denied.
An Orlando Sentinel spokesperson
said the Volusia ruling would not affect a
lawsuit filed in Broward County by the
Sentinel and Fort Lauderdale's South
Florida Sun-Sentinel, which also
challenges the law. Six other news
organizations have asked to join the
Sentinel lawsuit. (4/20/01 6/14/01)


SPECIAL REPORT
A review of open government
issues considered and passed by
the Florida Legislature during the
2001 session, p. 5-8.







ACCESS RECORDS CONTINUED

Auditorsrecommendopeningsomehospitalrecords


TALLAHASSEE- State auditors
examining the reporting of medical
mistakes in Florida recommended that
state lawmakers repeal in part the Public
Records Law exemption for hospital
adverse incident reports.
Auditors in the Office of Program
Policy Analysis and Government
Accountability found that one in seven
hospitals did not report medical
mistakes, and they recommended that


records of delinquent hospitals be made
public. Hospitals that submit adverse
incident reports in a timely manner
should still be protected from public
scrutiny, the auditors said.
The report was released just as the
state Legislature ended its 2001 session
during which it tried and failed to pass
an exemption for doctors' reports of
adverse incidents in their offices. The
Legislature argued that physicians would


be more likely to report mistakes if the
records weren't public.
Currently, information on Florida
doctors, including professional
background and medical mistakes, is
available on the Department of Health's
Web site http://www.doh.state.fl.us/.
However, auditors argued that
delinquent hospitals would be more
likely to report mistakes under the threat
of them being made public. (5/17/01)


Lawsuitover lottery 900-n umber settled Privatecompany


TALLAHASSEE Ajudge has
approved a settlement in a class action
lawsuit that claimed a 900-number
lottery phone line violated the state's
Public Records Law.
Clearwater resident Ralph DeLuise
filed the initial lawsuit that argued it was
illegal for the state to make a profit
providing a public record. (Brechner
Report, October 1999)
The phone line charged callers 77
cents a minute to hear winning lottery
numbers. The Department of Lottery got
47 cents from every call and received an
estimated $8 million from the phone
line between 1995 and 2000.
State law requires public agencies to


charge only the actual cost of producing
and duplicating public records.
The settlement gives DeLuise
$5,000, and another man involved in the
case will get $1,000. The law firms
involved in the case will split $900,000.
Callers who can prove they used the
900-number by producing old phone
bills will get access to a toll-free 800-
number line to find out winning
numbers. Callers have until June 27 to
make a claim by filling out a form
available at http://www.900lottery.com.
The settlement will be funded by new
revenue generated by the 900-number,
which became a private service on
March 15. (5/14/01 5/19/01)


Judge rejects requestto release e-mails


CLEARWATER A judge refused a
St. Petersburg Times request to see the
personal e-mail messages of two
Clearwater employees.
The paper had requested e-mail
correspondence of an assistant city
manager and a planning official. The city
released e-mail related to city business
but refused to release e-mail that the
employees said was personal. (Brechner
Report, March 2001)


The Times sued to get access to all
the e-mail.
Judge Anthony Rondolino, 6th
Judicial Circuit, ruled that as "personal
communication" the remaining
messages did not fall within the
definition of public records even if the
e-mails were stored on city computers.
The newspaper is considering
whether to appeal the decision.
(5/26/01)


Grandjurypresentmentopenedtopublic


NEW PORT RICHEY A Pasco-
Pinellas judge granted a St. Petersburg
Times' request to make public a grand
jury presentment, which details alleged
city council interference in Port
Richey's building department.
Judge William Webb, 6th Judicial
Circuit, rejected a motion by Bob
Leggiere, a former councilman and
acting mayor, to keep the report
permanently sealed.
Leggiere's attorney had argued that
the document was written by an illegally
2 The Brechner Report July 2001


selected and biased grand jury.
The grand jury wrote that Leggiere
improperly pressured building officials
to issue permits for buildings that
reportedly violated federal flood-zone
regulations.
Webb ruled that the grand jury's
conclusions were based on facts that
were cited in the report and said the
report, which was released May 25,
allows members of the public to
examine the conduct of a city official.
(4/18/01 5/26/01)


mustopen records
MIAMI The private company that
manages Miami International Airport's
construction program must comply
with the state's Public Records Law, a
judge ruled.
The Miami Herald sued in 2000 to
get financial records, including records
of how much the company pays in
lobbyist fees, from Dade Aviation
Consultants. (Brechner Report, March
2000)
Judge Alan L. Postman, 11th
Judicial Circuit, ruled that the records
of Dade Aviation Consultants, which
was formed by eight private companies,
are public because the company is
performing a government function for
the county.
"I thought it was something the
public was entitled to," the judge said in
an interview with The Herald. "Let the
people know."
Postman, however, said that the
company acted in good faith and ruled
that it does not have to pay The
Herald's legal fees. (5/4/01)


DECISIONS

ON FILE
Copies of case opinions, attorney
general opinions, or !,.i ,',a.,,
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.






RECORDS CONTINUED


Judgewon'trelease

fulltranscripts
TAMPA The chief judge of the
Pinellas-Pasco Circuit Court denied a
motion to release complete transcripts
of a grand jury inquiry into problems at
the Hillsborough County Courthouse.
Although Chief Judge Susan
Schaeffer, 6th Judicial Circuit, ruled in
January that the grand jury report on the
investigation should be made public, she
refused a request in May to release the
full transcripts of the grand jury probe.
(Brechner Report, February 2001)
The report has yet to be released
because one of the judges mentioned in
the report has appealed, asking that the
report remain sealed.
(2/17/01 5/26/01)


Courtrulesoninterceptedphonecall
WASHINGTON- The U.S. phone conversation was intercepted
Supreme Court ruled that the First and recorded by an unknown person.
Amendment protects the media from A copy of the intercepted
liability when they publish illegally conversation was passed on to the
intercepted information, news media, which broadcast the
However, the Court kept FIR ST conversation.
the 6-3 ruling narrow, FIR T The union officials
saying that the press is AMEN M T ud the news media
not liable when the under state and federal


subject matter is of
public concern and when the media
did not participate in the illegal
interception.
In Bartnicki v. Vopper, two
teachers' union officials in
Pennsylvania were discussing heated
contract negotiations when their cell


wiretap laws.
The Court's opinion said that the
free speech and free press clauses of
the First Amendment in this case
protect the media because of the
value of the public debate and
because the media were not involved
in intercepting the call. (5/22/01)


EPAwithdrawsproposalto allow more access to data
WASHINGTON The Environmental consequences of chemical plant would have eased the restrictions on
Protection Agency has rescinded a accidents in their immediate area and viewing data on plants outside the
Clinton administration proposal that detail risk management plans. The immediate area and given greater
would have made information about the documents cannot be copied or removed access to qualified researchers.
worst-case scenarios at chemical plants from the reading rooms. The EPA said national security
more readily available to the public. For anyone who wishes to look up concerns prompted them to rescind
Currently, the public can visit federal data for plants outside an immediate the proposal. The agency argues that
document reading rooms and view the area, current rules limit members of the wider access to the information could
documents that summarize the potential public to 10 per month. The Clinton plan aid terrorists. (3/27/01)

Recordsdestroyeddespitejudge'sorder NEWSGATHERING


WASHINGTON Files created by
former Environmental Protection
Agency officials were destroyed,
although a federal judge had ordered the
files preserved as part of a Freedom of
Information Act lawsuit.
Files on the computers of EPA
Administrator Carol Browner and three
of her aides were erased just before the
Clinton administration left office on


Jan. 20. U.S. District Judge Royce
Lamberth ordered the files preserved on
Jan. 19 as part of a lawsuit filed by the
Landmark Legal Foundation.
The group was seeking documents
under FOIA that dealt with EPA
regulatory actions.
Landmark asked the judge to
sanction the EPA for violating the order.
(4/27/01)


Photographsofmayor'swife released


MIAMI A state appeals court ruled
that photographs of Maria Ledon
Carollo, wife of Miami Mayor Joe
Carollo, be released to the public, even
before they are entered into evidence at
the mayor's battery trial on July 16.
Joe Carollo was charged with simple
battery after he allegedly threw a
cardboard tea canister at his wife's head,
causing a lump. WPLG-TV in Miami
filed a lawsuit demanding the release of
photos taken of Mrs. Carollo the night
of the incident.


The mayor's attorney argued that the
photos would not be public record until
they were submitted into evidence
during the mayor's misdemeanor trial.
The TV station's attorney argued the
photos became public record when the
mayor's lawyer filed a motion to see the
evidence in the case.
Judge Bernard S. Shapiro, 11th
Judicial Circuit, ordered the release of
the photographs. The 3rd Circuit Court
of Appeal upheld the release.
(3/6/01 5/3/01)


TVstation agrees

to restrainingorder
MIAMI A judge issued a restraining
order against a television station barring
the station's reporters from interviewing
a lobbyist.
Eric "Rick" Sisser filed an invasion
of privacy lawsuit against WPLG-
Channel 10, claiming that a WPLG
reporter tried to interview him in the
hospital against his will. Jilda Unruh was
attempting to ask Sisser about a land
deal with the Miami-Dade School Board
while Sisser waited in the hospital for a
heart catheterization procedure.
Judge Norman S. Gerstein, 11th
Judicial Circuit, issued the restraining
order against WPLG and Unruh. The 30-
day order prevented the station from
trying to interview Sisser until after
June 9. WPLG agreed to the restraining
order, but station officials called the
lawsuit "frivolous." (5/15/01 5/16/01)
The Brechner Report July 2001 3


ACCESS






ACCESS MEETINGS CONTINUED

Judge rules officials compliedwith Open Meetings Iaw
FERNANDINA BEACH-Nassau Circuit Court J.M. "Chip" Oxley Jr. to special meetings.
County officials did not violate the attend closed meetings between April Taylor ruled against Hoshall after
state's Open Meetings and Public 1996 and December 2000. (Brechner a weeklong civil trial, saying he found
Records laws in deciding to build a new Report, May 2001) no evidence county officials met in
courthouse in Yulee, a judge ruled. Clark V. Hoshall Jr. filed a lawsuit secret or failed to give adequate
However, Judge L. Haldane Taylor, over the courthouse move in 1998, notice of meetings.
4th Judicial Circuit, did say that claiming commissioners met in secret, Taylor has not decided whether
commissioners violated the Open failed to keep minutes of meetings and the county will have to pay Hoshall's
Meetings Law by allowing Clerk of the did not give adequate notice of some legal fees. (5/8/01 5/12/01)

Changes to lease Hospital agrees to pay partoflegalfees

allow m o e sy VERO BEACH- The Indian River prosecutors, the criminal charges wer
allow m ore r y County Hospital District board of dropped, and the pair agreed to a civil


VERO BEACH Because of changes
to its lease, Indian River Memorial
Hospital Inc. now can keep more
information out of the public eye.
The public hospital, which is leased
to a private, nonprofit company, was
required by its lease to abide by the
Public Records and Open Meetings laws
as they were written in 1984, when the
lease was signed.
Since 1984, the Legislature has
passed several Public Records Law
exemptions including one in 1998 that
allows publicly owned hospitals run by
private companies to keep some records
and meetings secret.
The Indian River Memorial Hospital
District board of trustees changed the
lease in April to require the hospital to
follow the Open Meetings and Public
Records laws "as each is amended from
time to time."
The change allows the hospital to
conduct more business in secret, and the
board of directors held its first closed-
door meeting on May 2.
(4/19/01 5/2/01)

Mother sues DCF

overmeeting
WEST PALM BEACH The
Department of Children and Families is
being sued for allegedly violating the
Sunshine Law when they met privately to
decide to sever a mother's rights to her
children.
Anne Banks sued the agency, saying
the officials met secretly on Jan. 20,
2000, and decided to recommend at an
upcoming hearing that Banks lose her
rights to her four children.
Banks' lawyers want a circuit court
judge to issue an injunction to stop the
proceedings. (3/6/01)


trustees agreed to pay almost $23,000
to two former board members to help
cover part of the cost of their Sunshine
Law cases.
Richard Aldrich and Allen Seed were
indicted for violating the Open Meetings
Law by discussing board business
outside a public meeting. In a deal with


charge and a fine of $500 each.
(Brechner Report, October 2000)
The two men asked the board to cover
the full $45,460 in legal fees, but the
board initially refused. A new board of
trustees reversed the decision and
agreed to pay $22,669 to the two men.
(4/22/01)


Former legislator faces Sunshine Law trial


MIAMI Former state Rep. Eladio
Armesto-Garcia is awaiting trial on
charges he violated the Open Meetings
Law. As a member of the Miami Code
Enforcement Board, Armesto-Garcia
allegedly discussed two cases outside of
a public meeting.
A zoning consultant secretly
recorded conversations between

COURTS


Armesto-Garcia and Angel Gonzalez, the
chairman of the codes board, in which
the two men discussed lowering fines
against the zoning consultant's clients.
Gonzalez is also facing charges.
John Countryman, a Broward County
assistant state attorney, said the trial is
pending while the state reviews about
eight taped discussions. (2/11/01)


Judgewon'tforcemediato hidenames,faces


WEST PALM BEACH A judge
denied a motion that would have
required the news media to blur the
faces and erase the names of students
testifying in the murder trial of
Nathaniel Brazill.
The Palm Beach County School
Board had requested that the media be
made to hide the identities of students
testifying at the trial, arguing that


students were anxious and afraid of the
trial.
Judge Richard Wennet, 15th Judicial
Circuit, said the school board lacked the
standing to make the request on behalf
of the students. He also said the media
have a right to report what is said at trial.
Brazill, 14, was sentenced to life in
prison for the shooting death of a
teacher. (5/25/01 5/30/01)


FIRST AMENDMENT CONTINUED

Charities challenge disclosure ordinancein suit


CLEARWATER A Pinellas County
ordinance that requires fundraising
groups to register in the county and
submit reports on how much money they
raise and how they spend that money is
being challenged in federal court.
A group of nonprofit organizations
filed suit in U.S. District Court in Tampa


in May, claiming the ordinance violates
their First Amendment free speech
rights and interferes with interstate
commerce. Additionally, the lawsuit
challenges whether the county can
demand information from charities that
receive donations from Pinellas County
residents via the Internet. (5/17/01)


4 The Brechner Report July 2001


e







LEGISLATIVE

legislature e passes
TALLAHASSEE -The Florida
Legislature considered 134 bills during
the 2001 session that dealt with open
government issues. The Legislature
passed 15 new exemptions to the Open
Meetings and Public Records laws, re-
enacted 10 exemptions it reviewed
under the Open Government Sunset
Review Act, and passed several other
bills dealing with open government that
did not create new exemptions. Copies
of the legislation are available at the
Legislature's Web site, Online Sunshine,
at http://www.leg.state.fl.us.
The following new exemptions to the
Public Records Law were passed. Chief
sponsors of the bills are in parenthesis.
If Gov. Jeb Bush signed the legislation
into law by press time, a 2001 chapter
number is provided.

CS/CS/HB 721 Individual
agricultural records (Stansel, D-Live
Oak) Creates a public records
exemption for information provided to
the Department of Agriculture and
Consumer Services as part of pollution
reduction efforts. Exempt information
includes records specifying the
processes or methods of production, the
costs and profits of production and any
other financial information not subject
to disclosure. The Department of
Environmental Protection or a water
management district can still access the
exempt records. (Chapter No. 2001-74)

SB 772 Non-Title IV-D child support
enforcement services (Sanderson, R-
Fort Lauderdale) Creates a records
exemption for the names and other
identifying information of people who
apply for or receive child support
services from non-Title IV-D county
child support enforcement agencies. A
court can authorize access. (Chapter No.
2001-131)

CS/SB 840 Public records/health/
financial records (Saunders, R-Cape
Coral) Creates a records exemption
for financial information provided to the
Department of Health. The records
could be released with written consent,
in a medical emergency or under a court
order. (Chapter No. 2001-108)

CS/SB 892 Deferred presentment
(Garcia, R-Hialeah) This public
records exemption is linked to a larger


REVIEW

15 new exemptions duringsession


bill that regulates deferred presentment
providers, who are people that exchange
cash for post-dated checks or hold
checks for a certain number of days.
Creates an exemption for identifying
information contained in a state-
mandated deferred provider database.

CS/SB 904 Medicaid pharmaceutical
rebates (Garcia, R-Hialeah) Creates a
records exemption for information
collected by the Agency for Health Care
Administration during negotiations with
pharmaceutical companies. Exempt
information includes trade secrets,
rebate amounts, percent of rebates,
pricing and supplemental rebates.
Creates an exemption for meetings of
the Medicaid Pharmaceutical and
Therapeutics Committee when exempt
information is discussed.

HB 1083 Autopsy photographs
(Johnson, R-Winter Garden and Miller,
R-Milton) Creates a public records
exemption for autopsy photographs,
video tapes or audio tapes kept by a
medical examiner. The family and
government agencies are allowed access
to the records, but the identity of the
deceased, when possible, is exempt. A
judge can allow access to the records if
a requester shows "good cause." The bill
requires the family to be notified when a
request is filed. The provisions apply
retroactively. (Chapter No. 2001-1)

SB 1200 Nursing homes/internal
risk-management records (Brown-
Waite, R-Brooksville) Creates public
records exemptions for (1) the meeting
records of nursing home risk-
management and quality assurance
committees, (2) incident reports filed
with facility risk managers and
administrators, (3) notifications of
adverse incidents, and (4) adverse
incident reports. The Agency for Health
Care Administration can release the
records to law enforcement agencies or
regulatory boards. Creates an exemption
for the meetings of nursing home risk-
management and quality-assurance
committees. (Chapter No. 2001-44)

CS/HB 1385 Temporary assistance
programs (Joyner, D-Tampa) Creates
a meetings exemption for portions of
meetings held by regional and state
agencies where the identities of people


who are participating in a temporary cash
assistance program are revealed. Also
creates a records exemption for the
identifying information. (Chapter No.
2001-160)

CS/HB 1541 Economic development
agencies (House Economic
Development and International Trade
Committee) Amends an exemption to
allow private businesses planning to
locate, relocate or expand their
activities to request a third year of
confidentiality from an economic
development agency. Expands the
definition of economic development
agency to include the Florida
Commercial Space Finance Corporation
and local government employees
involved in business recruitment and
expansion activities. The bill also
creates an exemption for trade secret
information contained in the records of
an economic development agency. A
trade secret is exempt for 10 years.
(Chapter No. 2001-161)

CS/SB 1562 Tobacco industry
records (Burt, R-Ormond Beach) -
Creates a public records exemption for
proprietary, confidential business
information collected by Florida
officials as part of the negotiations for
settlement payments with the tobacco
companies. (Chapter No. 2001-136)

HB 1565 Archaeological sites (Hogan,
R-Jacksonville) Creates a records
exemption for Division of Historical
Resources information identifying the
location of archaeological sites if the
agency finds that revealing the
information would place the site at risk
of harm, theft or destruction. (Chapter
No. 2001-162)

CS/SB 1726 Elderly Affairs/personal
information (Saunders, R-Cape Coral)
- Creates a records exemption for
personally identifying information
contained in records received by
programs administered or funded by the
Department of Elderly Affairs. Allows
access with the written consent of the
individual or his/her representative.
(Chapter No. 2001-194)

SB 1766 Code enforcement officers
and local government human
resource managers (Crist, R-Tampa) -


The Brechner Report July 2001 5







LEGISLATIVE


REVIEW


CONTINUED


Creates a records exemption for the
home addresses, telephone numbers,
social security numbers and photographs
of current or former human resource,
labor relations or employee relations
managers or directors and their spouses
and children. The exemption also applies
to those human resource managers of
any local government or water
management district. Expands the
current exemption for home addresses
of code enforcement officers to include
their spouses and children.

CS/HB 1805 Accident reports (House
Insurance Committee) Creates records
exemption for the names, addresses,
telephone numbers or other identifying
information for people involved in auto
accidents and contained in accident
reports. The records are exempt for 60
days. The bill allows access during the
60-day period by specified people
including those involved in the accident,
insurance companies and newspaper and
broadcast journalists. Any government
employee who knowingly discloses the
exempt record to an unauthorized person
can be charged with a third-degree
felony. Any unauthorized person who
knowingly accesses such information
also can be charged with a third-degree
felony. (Chapter No. 2001-163)

CS/SB 1836 Department of Revenue/
communication services tax
information (Carlton, R-Osprey) -
Creates a records exemption for tax and
audit files provided to the Department of
Revenue relating to communication
services taxes and the Communication
Services Tax Simplification Law.
Information can be shared with local
governments but remains exempt when
transferred to local government.
(Chapter No. 2001-140)

The following bills related to open
government were passed during the 2001
session, but they did not create
additional exemptions to the Open
Meetings or Public Records laws.

CS/CS/SB 306 Crime victims
notification (Clary, R-Destin) Part of
this bill requires the Department of
Corrections to notify the state attorney
and the victim or victim's representative
when an inmate has been approved for
work release. It also says the victim or
the victim's representative can review
the presentencing investigation report.


Bill requires that victims or witnesses be
informed about the address
confidentiality program and that victims
in sexual offenses cases must be
informed of the right to have the
courtroom cleared of certain people
when they testify about the offense.

HB 947 Medical malpractice/release
of records (Seiler, D-Fort Lauderdale)
- Amends state statutes to allow for the
release of medical records during a
malpractice investigation to the family
of the deceased or the family's attorney.
The bill says that a health care provider
who complies with the disclosure
requirements will not be liable for any
civil damages attributable to the
disclosure. (Chapter No. 2001-155)

CS/CS/SB 1092 Illegal use of public
records (Campbell, D-Tamarac) -
Amends current law to make it a third-
degree felony to use information
concerning crime or accident victims
gathered from police reports for
commercial solicitation purposes.

HB 1811 Information technology/
chief privacy officer (House
Information Technology Committee) -
Authorizes the State Technology Office
to designate a State Chief Privacy
Officer to be responsible for the
continual review of policies, laws, rules
and practices of state agencies that may
affect the privacy of state residents.

HB 1845 Criminal use of personal
information (House Information
Technology Committee) Amends
current statute to make it a second-
degree felony to willfully use personal
identification information to commit a
fraud, if the damages exceed $75,000. If
public records are used to facilitate or
further the crime, the crime is
reclassified to the next higher degree.

CS/SB 2220 Data processing
software/electronic records (Posey,
R-Rockledge) Re-enacts a statute that
allows a government agency to copyright
data processing software it develops.
The bill retains provisions to protect
public access to electronic records.


The following exemptions to the state
Public Records/Open Meetings laws
were reviewed and re-enacted during the
2001 legislative session under the Open


Government Sunset Review Act.

HB 385 Sealed bids (Brummer, R-
Apopka) Re-enacts an exemption
(Florida Statutes, Section
119.07(3)(aa)) for documents used
directly or solely by a municipally
owned utility to prepare and submit bids.
(Chapter No. 2001-87)

HB 387 Sports industry donors
(Brummer, R-Apopka) Re-enacts an
exemption (Florida Statutes, Section
288.12295) for the identities of donors
to the Florida Sports Foundation, an
organization that promotes the sports
industry and amateur athletics. The
donors must request anonymity.
(Chapter No. 2001-150)

HB 393 Florida tourism industry
research (Brummer, R-Apopka) Re-
enacts an exemption (Florida Statutes,
Section 288.1226(8)) for the identity of
people who respond to marketing and
advertising research projects conducted
by the Florida Tourism Industry
Marketing Corp. and for trade secrets
obtained in connection to the research.
(Chapter No. 2001-69)

HB 395 Airport security (Brummer,
R-Apopka) Re-enacts an exemption
(Florida Statutes, Section 331.22) for
security plans, photographs, maps,
blueprints, drawings, and other materials
that show airport-operating facilities.
(Chapter No. 2001-59)

HB 397 Payment of tolls (Brummer,
R-Apopka) Re-enacts an exemption
(Florida Statutes, Section 338.155(6))
for personal information, including bank
account numbers, checks, and debit card,
charge card and credit card numbers,
gathered by government agencies in
collecting tolls or fees. (Chapter No.
2001-70)

HB 399 Emergency 911 records
(Brummer, R-Apopka) Re-enacts an
exemption (Florida Statutes, Section
365.171(15)) for the name, address and
other identifying information of people
requesting emergency service or
reporting an emergency while the
information is in the custody of the
agency providing emergency services.
(Chapter No. 2001-71)

HB 401 Antitrust no-action letters
(Brummer, R-Apopka) Re-enacts an


6 The Brechner Report July 2001







LEGISLATIVE
exemption (Florida Statutes, Section
408.185) for information submitted to
the Attorney General by health care
organizations as part of an antitrust
review, including preferred provider and
health maintenance organization
contracts, trade secrets, a health care
provider's marketing plan and
proprietary business information.
(Chapter No. 2001-72)

HB 403 Pawnbroker transactions
(Brummer, R-Apopka) Re-enacts an
exemption (Florida Statutes, Section
539.003) for pawnbroker transaction
records given to law enforcement
officials, including the name, address
and thumbprint of the seller, a
description of the goods, and the amount
paid. (Chapter No. 2001-151)

HB 405 Insurance records (Brummer,
R-Apopka) Re-enacts and changes an
exemption (Florida Statutes, Section
626.921(8)) for records submitted to
the Department of Insurance such as
names and addresses, coverage types,
amounts and costs, effective dates, and
deductibles. The bill deleted an
exemption for trade secrets and in its
place created an exemption for
"information specific to a particular
policy or policyholder." Extends the
exemption to insurance records
submitted to the state's Surplus Lines
Service Office. (Chapter No. 2001-181)

HB 407 University health service
support organizations (Brummer, R-
Apopka) Re-enacts and narrows an
exemption (Florida Statutes, Section
240.2996(2)(3)(4)) for certain records
and meetings of university health
support organizations. The records
exemptions include (1) managed care
contracts, (2) trade secrets, (3) records
of peer review panels that evaluate
health care services and professional
credentials, and (4) meeting minutes that
contain exempt information. Re-enacts
an exemption for meetings during which
confidential and exempt information is
discussed. Narrows the exemption for
marketing plans by saying the exemption
applies only if a competitor can use the
information to "frustrate, circumvent or
exploit" the plan. (Chapter No. 2001-
35)

The following bills were introduced,
but were not passed during the
legislative session. Summaries of these


REVIEW


CONTINUED


bills are available from the Florida
Legislature's home page, Online
Sunshine, at http://www.leg.state.leg.us.
Summaries and final dispositions are also
available from the First Amendment
Foundation's Web site at http://
floridafaf.org/.

* HB 3 and CS/SB 714 Citizens'
Right to Honest Government Act.
* HB 64 and SB 356 Public libraries/
obscenity.
* SB 92 Legislature/open meetings.
* SB 242 Recording devices in
nursing homes.
* SB 270 DNA testing and analysis.
* CS/HB 275 Campaign treasurers'
reports.
* HB 383 and SB 632 Bank account
numbers and payment information.
* HB 389 and SB 484 Economic
development agencies.
* HB 391and SB 486 Qualified
defense contractor tax refund program.
* HB 477 and 1314 Abandoned
newborns.
* SB 514 Use of public record
information.
* HB 643 and SB 696 Criminal use of
personal information.
* SB 692 and HB 1067 Physician
reports of adverse incidents.
* HB 731 and SB 768 Home address/
human resource managers.
* CS/HB 813 and CS/SB 1096 -
Pharmaceutical adverse incidents.
* CS/SB 894 and HB 1535 -
Educational professionals.
* SB 896 Public records exemption.
* SB 898 Public records exemption.
* SB 900 Public records exemption.
* SB 902 Public records exemption.
* CS/SB 906 and CS/HB 1561 -
Learning gateway.
* HB 985 and CS/SB 2146 Medical
records/solicitation.
* HB 995 and SB 1688 Police report
access.
* SB 996 Identity theft.
* SB 998 Privacy and public records.
* HB 1035 and CS/SB 1628 Uniform
correction or clarification of defamation
act.
* CS/HB 1103 and CS/SB 1458 -
Insurer receivership.
* HB 1147 and CS/SB 1734 -
Department of Insurance/personal
information.
* SB 1186 Law enforcement
employees.
* SB 1238 and HB 1951 Paratransit
services.


* CS/SB 1280 and HB 1585 Abandoned
property.
* CS/HB 1405 Release of student
records.
* HB 1421 Qualified tax refund
programs.
* CS/HB 1437 and CS/SB 1762 -
Communication systems.
* HB 1517 and CS/SB 2082 HMO/risk-
based capital reports.
* HB 1537 and SB 1678 Agency
contracting/state employees.
* SB 1552 Form DD-214.
* SB 1560 and CS/HB 1763 -
Department of Environmental Protection/
Internet notices.
* HB 1695 Student assessments
records.
* CS/HB 1699 and CS/SB 2218 -
Windstorm underwriting records.
* HB 1771 Juvenile records.
* SB 1838 Financial statements/bidders.
* CS/SB 1848 Nursing home claimants.
* HB 1871 Physician adverse incident
reports.
* SB 1898 Government collection of
personal information.
* SB 1930 Central voter file.
* SB 1944 Chief privacy and public
access officer.
* SB 1958 Investigations/compensation
claims.
* SB 2006 Juvenile justice records.
* CS/SB 2028 Production of records.
* SB 2128 Lists of state employees.
* SB 2170 Department of Insurance
records.
* SB 2228 Long-term care.


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 brechnerreport@jou ufl edu
Sandra F. Chance, J.D., Director/Executive Editor
S. Camille Broadway, Editor
Jackie Thomas, Production Coordinator
Stephen Harmon, 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 Colleen Ahern
for her contributions to this issue


The Brechner Report July 2001





























Sunshine laws dimmedduringrecentsession


In 1992, the voters of the state of Florida
overwhelmingly approved a constitutional right of
access to government meetings and records. More than
82 percent of the state's voters approved this
constitutional provision, guaranteeing the public's right
to access public records and attend public meetings.
The The
Back Pae constitutional
Back Page amendment Sandrc
By Sandra Chance also ensured
that this right would be
protected from the whims of a legislature easily influenced by
special-interest lobbyists seeking new exemptions to the state's


open government laws.
You'd never know how strongly Floridians believe in open
government based on the actions of the Florida Legislature.
This year, 134 bills affecting access to public records and
open meetings were filed. That's a 50 percent increase over the
number of access bills filed during the 2000 legislative session.
The Legislature passed 15 new exemptions limiting access,
many without any debate. Most of these were quickly signed by
the Governor. A number of them are unconstitutional. According
to the state's Constitution, the legislature must state with
specificity the public necessity justifying the exemption, and the
exemption cannot be any broader than necessary. The legislature
seems to view this requirement as an inconvenience. The
resulting legislation severely restricts the public's right to know
about important governmental activities.
The worst new law exempts all reports of "adverse incidents"
in the state's nursing homes from public inspection. These
reports would include errors, neglect or malicious acts that
result in significant harm to nursing-home residents.
This bill is the most glaring example of the Legislature's
inability to adequately evaluate this public necessity requirement
for new exemptions. What public interest is served by keeping
mistakes secret? If you have a loved one in a nursing home, what
information could be more important?
A number of the new laws help the government and private
businesses keep secrets, under the guise of protecting personal
privacy. There is an important distinction between protecting
individual privacy, and the government setting up a culture of
secrecy. Many people in this country are confused. As a result,


new exemptions are passing in record time, with little
debate. The "Eamhardt Family Protection Act" is an
example of how concern over privacy and the Internet
can influence lawmakers and alter access to public
information. Autopsy photographs have been public
records in Florida for many years. There's no history of
media exploitation. This was a legitimate news story.
Eamhardt was one of a handful of NASCAR drivers
'hance killed during a race in recent years. How did the
legislature miss the importance of accurate information
regarding Eamhardt's death? Wouldn't it be helpful to know if
we could do something to prevent more deaths?
The legislators also created a new position in state
government, the Chief Privacy Officer. This person will be
responsible for protecting the privacy of state residents. Last
year, the state's Task Force on Privacy and Technology
recommended the establishment of a Chief Privacy and Public
Access Officer to balance privacy with public access.
But when it came before the legislature this year, the balance
between the right of access and the right of privacy was gone. Is
there going to be a Chief Public Access Officer? Probably not.
Florida's constitutional right of privacy was passed in 1980.
Legislators who drafted the amendment understood the
importance of access to information.
The amendment says: "The right to be let alone and free from
governmental intrusion into his private life ... shall not be
construed to limit the public's right of access to public records
and meetings as provided by law." The rights must be balanced.
We all want to be protected from businesses abusing our
personal information.We're worried about the bank selling our
financial information without our permission. We're worried
about our insurance companies releasing our medical data
without proper authorization. And with good reason. We are
also worried about what our government is doing.
While the public doesn't have a war chest to fight every
battle over access like the business interests in this state,
citizens have something more important a vote. Legislators
would be wise to remember that Floridians strongly support
open government and the concept of freedom of information.

Sandra Chance is the director of the Brechner Center for
Freedom of Information at the University of Florida.


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