Volume 25, Number 9 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of I,, .'. r,. 1 College ofJournalism and Communications U University ofFlorida
TALLAHASSEE Computer experts
hired by the media found that files had
been erased from four computer drives
released by Secretary of State Katherine
Harris but said there was no evidence of
wholesale, intentional deletions.
Harris turned over four computer
hard drives, first to her own expert and
then to the media, which wanted to
examine the drives to see if records
from the 2000 election had been erased.
Harris first refused media requests
to access the computers, but then
ACCES S relented. The
RECOR S also sparked a
_RECO_ RD S disagreement
Harris and Attorney General Bob
Butterworth about what is public record
under the state's Sunshine Law.
The computer drives became an issue
after The New York Times wrote an
article that suggested Republican
political consultants, who used the
computers to write public statements,
helped shape how ballots were counted.
Harris hired expert William G.
Morgan of Bradenton to check the hard
drives. Ontrack Data International Inc.
examined the computers on behalf of 13
media organizations. Neither expert
found evidence of wholesale file
erasure. Harris said that all the public
records have been preserved and
released. But Harris' lawyer said that
personal e-mails stored on the state
computers were not released.
Butterworth, however, advised Harris
that the material on the computers was
considered public record. "It remains the
position of this office that material on
state-owned computers is public record
unless it falls under specific legislative
exemption," Butterworth wrote in a
letter to Harris. (7/17/01 8/8/01)
Paper to appeal autopsy ruling
DAYTONA BEACH A student-run
newspaper plans to appeal a judge's
ruling that bars release of NASCAR
driver Dale Earnhardt's autopsy
Judge Joseph Will, 7th Judicial
Circuit, denied requests from The
Independent Florida Alligator and a
DeLand-based Web site to access the
autopsy photos. He also ruled that a new
state law that restricts access to all
Judge jails journalist
HOUSTON The 5th U.S. Circuit
Court of Appeals upheld the jailing of a
journalist on a contempt citation, saying
that the qualified privilege does not
protect journalists from grand jury
subpoenas unless the
journalists can show
At the Justice
U.S. District Judge Melinda Harmon
found Vanessa Leggett, a crime writer
and a lecturer at the University of
Houston, in contempt for refusing to
turn over taped interviews and
Leggett was ordered jailed without
bond. If Leggett does not turn over the
autopsy photos is constitutional.
(Brechner Report, July 2001)
The newspaper asked for a new trial,
saying that 77 pieces of evidence were
wrongly excluded from the first hearing.
The request for a new trial was denied,
and Tom Julin, the newspaper's attorney,
said the Alligator plans to appeal the
decision to the 5th Circuit Court of
Appeal. Julin said the appeal should be
ready in October. (7/24/01 8/1/01)
material to the Justice Department, she
could face up to 18 months in jail.
According to the Associated Press,
the 5th Circuit upheld the decision,
saying "this court takes a narrow view of
TER'S privilege in criminal
cases, particularly in
The Justice Department last had a
journalist jailed in 1991. U.S. Rep.
Sheila Jackson Lee, D-Houston, said she
wants Attorney General John Ashcroft
to look into the case because she feels
the department has not followed its
internal procedures for having
journalists jailed. (7/25/01 8/18/01)
Courtrulesfor freelancersin copyrightcase
WASHINGTON The U.S. Supreme electronic database was a new work,
Court ruled that newspaper and magazine which would mean the freelancers
publishers violated the copyrights of controlled the rights, or was a
freelance writers when they made their reproduction of a collected work, which
works available through would mean the
electronic databases C O Y RI G HT publishers controlled the
without the freelancers' rights. The Court, in a 7-2
permission. decision, sided with the freelancers,
The case involved work freelance saying stories published in databases
writers did for the print editions of were "disconnected from their original
newspapers and magazines that was then context" and therefore were not
reproduced in an electronic format in reproductions of a collected work. The
databases such as LEXIS-NEXIS. The case was sent back to the U.S. District
question for the Court was whether the Court in Manhattan. (6/25/01 7/16/01)
ACCESS RECORDS CONTINUED
Opinion:Autopsyphotos can beusedduringtraining
TAMPA Medical examiners can
show autopsy photographs as part of
training for public agencies but not for
private agencies, according to an opinion
by Attorney General Bob Butterworth.
Butterworth responded to six
questions from Hillsborough County
Attorney Emeline C. Acton about the
state's new law exempting autopsy
photographs and recordings from the
Public Records Law. Medical examiners
face a third-degree felony charge if they
violate the law.
Butterworth wrote that medical
examiners do not need a judge's order to
show autopsy photographs to
governmental agencies as part of a
training program. The same records
could not be shown to a private entity,
such as a private university, without a
court order, according to the opinion.
While autopsy photographs can be
shown during criminal and
administrative proceedings, anyone
wanting to submit autopsy photos as part
of a civil trial would have to first get a
court order, Butterworth wrote. Anyone
seeking a court-ordered release must
also "make a reasonable effort" to find
the next of kin, he said.
Crime scene photographs are not
considered autopsy photographs or
recordings and are not subject to the
exemption, according to the opinion.
When using autopsy photographs in
an official capacity, Butterworth wrote
that medical examiners must take steps
to protect the identity of the deceased,
including keeping the names
confidential and placing a black strip
over the eyes of the deceased.
(7/11/01 7/14/01; AGO 2001-47)
Paper copies records for Palm Beach
WEST PALM BEACH Instead of
requesting a record from the Palm
Beach County Elections Office, The
Miami Herald gave the office a copy of
an election record.
Palm Beach officials wrote over
computer files that capture images of
every punch-card ballot during an
election. The files serve as a backup on
Although election rules do not
require officials to save the file, many
counties kept copies of the file because
of media requests. After the 2000
presidential election, many media
members requested the files as a way to
study ballot trends without looking at the
more than 400,000 punch-card ballots.
When the ( I,.. ,., Tribune
requested a copy of the files recently,
the elections office discovered the files
had been overwritten during the county's
municipal elections in March. The
Herald, however, still had a copy it had
requested before March and gave a copy
to the elections office. Theresa LePore,
the county's supervisor of elections,
said she copied the files for the Tribune
and is keeping another copy in case of
more requests. (8/1/01 8/7/01)
Judge seals discovery materialin murder trial
ST. AUGUSTINE A circuit court
judge has sealed pre-trial discovery
materials in the case of a Ponte Vedra
Beach woman charged with killing her
Judge Robert Mathis, 7th Judicial
Circuit, ruled that he would examine the
materials offered during the discovery
phase of the murder trial before
Copies of case opinions, Florida
Attorney General opinions, or
i,., iht,. 'i 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, P.O. Box 118400,
University of Florida, Gainesville,
FL 32611-8400, (352) 392-2273.
deciding whether or not to release the
Attorneys representing Leslie
Ormandy Demeniuk asked the judge to
bar the public release of documents such
as police reports and interviews because
they felt publicity from the release of
the evidence could damage Demeniuk's
right to a fair trial. (7/6/01 7/11/01)
AGO: Some foster hom e a
TALLAHASSEE According to an
opinion from Attorney General Bob
Butterworth, some state records of child
abuse, neglect and abandonment in
foster homes are public while
information that identifies a victim
The Florida Department of Children
and Families requested the opinion to
settle issues regarding its incident
reports, which summarize, among other
things, investigations of abuse claims in
foster homes. Investigation records of
child abuse, neglect or abandonment are
closed under state law.
Butterworth said that the incident
reports are open to public scrutiny
because they are used for quality
assurance purposes and for licensing
foster homes and are "separate and
distinct" from investigative records.
Information, however, that reveals
the identity of the victim should be
redacted from released reports,
according to the opinion.
(7/23/01 7/25/01; AGO 2001-54)
2 The Brechner Report September 2001
POLK COUNTY People
requesting copies of public
records in Polk County will now
have to pay for them before the
records are released.
The county developed the
policy after a union requested and
then failed to pay for or pick up
more than $4,000 worth of copies.
Copying charges will be
collected before records are
released. If the estimated copying
costs are more than $100, then the
requester will be required to pay
before the copies are made.
The county will give requesters
a form, which contains the
estimated cost of the copies and
the date the copies will be
prepared. People requesting
records will also be permitted to
examine the records before copies
are made. (7/3/01)
Ybor City face-scanningsystem drawsprivacy protests
TAMPA Tampa will keep a face- software for free on a one-year trial ACLU said in a joint statement.
scanning surveillance system in place in basis. Mayor Dick Greco, who is the only
Ybor City despite protests and The camera system has drawn one with the power to cancel the
opposition from the American Civil protesters, who marched in Ybor City contract with the system's supplier,
Liberties Union, U.S. House Majority wearing masks. Armey called for supports the system. In a mostly
Leader Dick Armey, R-Texas, and other congressional hearing on the system. symbolic vote in early August, the
privacy advocates. "These surveillance systems are Tampa City Council decided 4-3 to keep
The system allows police to take ineffective and will lead the police to the cameras.
images from crowds in Tampa's Ybor stop people who have done nothing "There is not reasonable expectation
City section and compare those images wrong. We believe the privacy risk of privacy on a public street," said
to a computer database of criminals and outweighs any benefits that these Councilman Charlie Miranda.
missing people. The city is getting the devices may offer," Armey and the (6/30/01 8/3/01)
TALLAHASSEE- Florida Treasurer financial information.
and Insurance Commissioner Tom The emergency rule is valid through
Gallagher issued an emergency rule in the end of September.
July to protect information about a The agency is working on a rule that
citizen's income, credit history and will be enacted permanently as
mental health status. authorized by legislation passed during
The rule prevents insurance the 2001 session.
companies from releasing personal "My goal is to ensure that the final
health data without first seeking a rule implemented is simple, unobtrusive
consumer's permission. Insurers are and fairly protects the privacy of health
also required to inform consumers and financial information," Gallagher
before using or sharing their personal said in a statement. (7/2/01 7/19/01)
ACCESS RECORDS CONTINUED
Pawnbroker database to remain exempt
TALLAHASSEE Records of
pawnbroker transactions that are
included in a statewide database remain
confidential and exempt from the state's
Public Records Law, according to an
opinion from the attorney general.
James T. "Tim" Moore,
commissioner of the Florida
Department of Law Enforcement,
requested the opinion from Attorney
General Bob Butterworth because the
state is about to bring online a
centralized database of local pawnbroker
transactions. Funded during the 2000
legislative session, the database allows
investigators to find stolen property
pawned elsewhere in Florida.
Pawnbroker records collected by
local law enforcement are exempt from
Public Records Law. Butterworth said
the records will remain exempt when
they are entered into a new statewide
database for law enforcement officials.
AGO: Ballots shouldbe sorted by machine
TALLAHASSEE An opinion from
Attorney General Bob Butterworth said
election officials must use optical
scanning equipment to separate ballots
as part of a public records request even
if the ballots have already been separated
Thomas V. Dannheisser, the Santa
Rosa county attorney, requested the
opinion after the county's supervisor of
elections was asked to separate the
overvotes and the undervotes from the
2000 presidential ballots.
The ballots were separated by hand,
but the New York Times Co. then asked
for the ballots to be separated by the
optical scanning machines because the
hand count produced 17 percent fewer
overvotes and 22 percent fewer
undervotes than on election day.
Butterworth said that election
officials should honor requests for a
machine count as long as the requestor
pays the sorting costs. Unlike punch
cards ballots that might lose chads,
optical scanner ballots are unlikely to be
changed by the sorting process, he said.
(5/22/01, AGO 2001-37)
Driver's family sues
Website over photos
BUNNELL The family of NASCAR
driver Rodney Orr is suing a DeLand-
based Web site for posting autopsy
photos of Orr.
Websitecity.com posted 38 autopsy
photos of Orr either naked or in
bloodied racing gear and 48 autopsy
photographs of driver Neil Bonnett. The
two men were killed in 1994 during
practice sessions for the Daytona 500.
The family filed a lawsuit in Flagler
County to get the site to remove the
photos. The Orr family also may ask for
punitive damages. The Web site also is
trying to access Dale Earnhardt's
autopsy photos. Orr family members
testified for the Earnhardts, saying the
Web site's display of the photos caused
them anguish. (5/25/01 5/26/01)
The Brechner Report September 2001 3
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
Meghan Morris, 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 Holland &
Knight and Colleen Ahern for their contributions to this
For a host of good reasons, American journalists
have always resisted suggestions of a licensing system.
Licensing journalists smacks suspiciously of
bureaucracy, red tape and governmental intrusion and
works against the essential independence of the press.
However, a lack of a licensing system means that
defining who is and who is not a journalist is sometimes
The a tricky
B k P proposition. But S.
ac defining who is a Bro
By S. Camille Broadway central in deciding who
qualifies for First Amendment and state-mandated protections
for the press. In the case of Vanessa Leggett, a Texas journalist
jailed for contempt for refusing to turn over notes and
interviews, it was argued that she was not eligible for the
qualified journalistic privilege of protecting her sources
because she was a freelance writer and not a member of the
institutional press (See story, page 1).
According to the Associated Press, the 5th U.S. Circuit
Court of Appeals noted in an opinion upholding Leggett's
jailing that she was "a virtually unpublished freelance writer,
operating without an employer or contract for publication." In
the end, however, the appeals court's decision did not hinge on
whether Leggett was a journalist but on whether journalists have
any qualified privilege against answering grand jury subpoenas.
The 5th Circuit ruled that journalists do not.
While the appeals court failed to rule definitively on whether
it considered Leggett and others like her to be journalists, the
case still reminds us how difficult defining "card-carrying"
journalist can be. The increased development of the Internet as a
news outlet will only continue to blur the distinctions.
Traditional news media have staked a claim in cyberspace
with ever increasing numbers of Web sites, but they are far
from the only online news sources. Web sites like Salon.com,
TheStreet.com, stateline.org, and CNET.com report news,
provide information and offer commentary but exist only in the
bits and bytes of cyberspace. They act like media organizations.
They look like media organizations. But the people who work
for them may not have the same protections as other media
organizations because Web sites often do not fall into the
traditional definitions for media.
Florida's shield law defines a professional journalist
as someone who is regularly engaged in collecting or
reporting news while working as a "salaried employee
of, or independent contractor for, a newspaper, news
journal, news agency, press association, wire service,
radio or television station, network, or news magazine."
The statute specifically excludes book authors from the
definition of professional journalist and makes no
mention of the Internet as a medium.
A new state law that governs access to accident
reports takes an even more narrow view of who is a
journalist. The journalists who can access accident reports
within 60 days of filing are defined as being from radio and
television stations licensed by the Federal Communications
Commission, newspapers qualified to publish legal notices, and
free newspapers with a general circulation that publish once a
week or more often. Wire services, news magazines, news
journals, networks and, of course, Web sites are not mentioned.
First Amendment scholar Clay Calvert has examined a series
of appellate court decisions that attempted to define
"journalist" for the purpose of qualified privilege. He notes that
some federal courts seem to be moving away from defining
journalists based on the organizations for which they work or
the medium in which their information is published. Instead, the
courts are ruling that non-traditional journalists seeking
protections must prove that they were, from the beginning of
the investigative process, actively seeking information for the
purpose of producing some type of news.
Indeed, the 5th Circuit said that if it had taken up the issue of
whether Leggett was a journalist, it would have examined
whether she intended to release information to the public at the
time she collected the materials and conducted the interviews.
In considering future protections for journalists, Florida also
may need to focus on safeguarding newsgathering as a function
rather than on the press as a medium or an institution. As the
ranks of journalists grow, it becomes important to broaden our
descriptions and to argue for protections for those that do not
seem to fit existing definitions.
S. Camille Broadway is a former newspaper reporter
and editor, and is currently a graduate student at the
University of Florida and editor of The Brechner Report.