Title: Brechner report
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 Material Information
Title: Brechner report
Series Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: December 2001
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00024
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 REC HN-ER


Report
Volume 25, Number 12 E A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of I,,- n..i.. 1, U College ofJournalism and Communications 0 University ofFlorida
December 2001

PatriotActbroadenspowers ofintelligence agencies


WASHINGTON- A new law gives November 2001)
intelligence agencies broader The law allows the FBI to request a
surveillance powers, including a new warrant from a secret federal court to
authority to monitor Internet activities monitor the Internet, including
and greater access to credit, PR I A r collecting the e-mail of
medical and student records. anyone else who uses the
The Uniting and same public Internet
Strengthening America by Providing the connection as a suspect. Internet Service
Appropriate Tools Required to Intercept Providers (ISPs) also may voluntarily
and Obstruct Terrorism ACT (USA give law enforcement access to their
Patriot Act) was signed into law in late networks. Currently, ISPs cannot
October. The new law authorizes the FBI provide network access without
to investigate anyone linked to customer permission or a warrant.
terrorism or anyone who "harbors" or Under the law, federal agencies can
assists a suspect. (Brechner Report, collect credit, medical and student

Bush blocks access to Reagan records
WASHINGTON- President Bush extensions to review the materials.
signed an executive order blocking the President Bush's order gives both the
release of approximately 68,000 sitting president and the former
documents from the Reagan president the right to withhold records.
administration. A E' The House Subcommittee
The records fall underASS on Governmental Efficiency,
the Presidential Records Financial Management and
Act of 1978, which made RECORDS Intergovernmental Relations
presidential records, held a hearing on the Bush
starting with Reagan's, property of the order in early November. Edward
government rather than the president. Whelan, an acting assistant attorney
The act requires public release of the general, told the committee that Bush's
records after 12 years. order only clarifies the wording of
An executive order, signed by earlier presidential orders regarding the
Reagan, requires the National Archive to release of records. However, Scott
inform the sitting president when a Nelson of the Public Citizen Litigation
records disclosure is pending. Group said Bush's order created new
The Reagan papers' release, guidelines that are counter to some of
scheduled for Jan. 1, 2001, was delayed the goals of the Presidential Records
three times by Bush, who asked for Act. (9/7/01 11/6/01)
DefenseDepartmentrestricts access to photos


WASHINGTON- The U.S.
Department of Defense blocked media
access to high-resolution photographs
of Afghanistan from space by signing an
exclusive contract with a private
company that sells high-resolution
satellite images.
Space Imaging's photographs can


show objects as small as one meter, and
media outlets could purchase photos
from Afghanistan for $500 a piece.
The Defense Department signed an
exclusive contract with the company,
which prohibits them from selling or
releasing Afghanistan photographs to
anyone else. (10/19/01)


records using a secret court warrant
despite any state privacy law to the
contrary. The FBI can share grand jury
information with the CIA, something
that was previously restricted.
Records of bank deposits of more
than $10,000 and records from any
deposits that bank tellers think are
"suspicious" will be turned over to
intelligence agencies. Customers will
not have to be informed if their records
are turned over to the government. A
sunset provision in the law authorizes
some of the new powers only until
Dec. 31, 2005. (10/25/01 10/27/01)

Specialsessions
consider accesslimits
TALLAHASSEE While no public
records exemptions were enacted during
the Florida Legislature's Special
Session "B" in October, the Senate
passed new rules closing some meetings
(see story page 3), and both the House
and Senate approved several bills that
would have limited public access.
None of the Sunshine Law bills were
approved by both chambers. However,
the Legislature is expected to consider
public records bills again during the
Legislature's Special Session "C," which
was ongoing as this edition of the
Brechner Report went to press.
The House and Senate considered
several public access bills during
Session "B," including bills that sealed
hospitals' terrorism-response plans and
the location of pharmaceutical
stockpiles. Other bills would have
exempted the security systems of public
agencies and private businesses and
would have sealed the numbers and
billing records of law enforcement cell
phones and pagers. One bill would have
sealed for seven days public records
considered critical to a terrorism
investigation. (10/29/01 11/1/01)







ACCESS RECORDS CONTINUED

Ashcroftto supportFOIdenials


WASHINGTON A memorandum
from U.S. Attorney General John
Ashcroft says the Department of Justice
will support federal agencies' denials of
Freedom of Information requests.
FOI denials that do not have a "sound
legal basis" or those that might lead to a
court decision that would impair the
government's future efforts to deny
records are the only denials the
department will not support, according
to the memorandum.
The memorandum supersedes a
policy established in 1993 by then-


Attorney General Janet Reno that
directed federal agencies with the
discretion to release records to use a
"foreseeable harm" test and to favor
openness when considering requests.
Ashcroft wrote that the Department
of Justice was "committed to full
compliance with the Freedom of
Information Act." He also wrote that the
department was committed to other
values such as national security, law
enforcement effectiveness, the
protection of business information and
privacy. (10/18/01 10/24/01)


AGO. x emptionsexistfor security material
TALLAHASSEE State law provides currently exempts from disclosing
exemptions from the Public Records security plans and security needs
Law for materials related to security and assessments, including security
for materials that are part of an active information that a private entity provides
investigation, according to an opinion to a government agency.
issued by Attorney General Bob State law also exempts subpoenas
Butterworth. issued by a criminal justice agency to a
Butterworth was responding to non-criminal justice agency when that
questions from Florida Sen. Rod Smith, subpoena is part of an active criminal or
D-Gainesville. Smith was concerned that intelligence investigation, Butterworth
the Public Records Law might need to wrote. Additionally, the Florida
be amended in light of the September 11 Department of Law Enforcement is not
terrorist attacks and asked Butterworth required to fill public records requests
about existing exemptions for security that would divulge the existence of an
and investigative materials, active investigation, according to the
According to the opinion, state law opinion. (10/24/01; AGO 2001-75)

Judge orders ecordsr eleasedin murder case


TAMPA A circuit court judge
refused a defense attorney's request to
seal public records in the case of a man
accused of killing a TV news director.
Melvin Givens is charged with murder
in the death of Danielle Cipriani, a
former news director at WFLA -
Channel 8.


DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
i,., i,,. ,'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.


Hillsborough Public Defender Julie
Holt asked Judge Daniel Perry, 13th
Judicial Circuit, to seal the records,
saying that releasing the records would
harm her client's chances for a fair trial.
Perry refused the request and ordered
the records released.
(10/6/01 10/9/01)


Employeesorderedto

withholdinformation
WASHINGTON- The U.S.
Department of Defense ordered
employees to withhold information,
including unclassified information,
about the department's operations from
the public.
In a memorandum from Paul
Wolfowitz, deputy secretary of defense,
employees were encouraged to
"exercise great caution" in discussing
their Defense Department jobs, no
matter what their duties. They were
ordered not to conduct any work-related
conversations in common areas, public
places, during commutes or over
unsecured channels.
Employees also were cautioned about
discussing even unclassified material
because it can "often be compiled to
reveal sensitive conclusions," according
to the memorandum. (10/24/01)
Mother sues to access
son's FCATbooklet
LARGO A mother has filed a
lawsuit against the Florida Department
of Education to access the test booklet
and answer sheet from her son's Florida
Comprehensive Assessment Test.
The Education Department denied
Betty J. Shields' records request, saying
the exam was confidential under Florida
law. (Brechner Report, November
2001) Shields' son took the test last
year but did not score high enough to
meet the state's graduation standard. In
her lawsuit, Shields is not arguing that
the FCAT booklet and answer sheet are
public records. She is arguing that the
booklet and answer sheet are part of her
son's student record. (11/7/01)


Newspaper files suitto getdefendants'records


TALLAHASSEE The Sarasota
Herald-Tribune filed a lawsuit against
the Department of Children and Families
to access records regarding the Mentally
Retarded Defendant Program.
The newspaper is requesting records
on the Mentally Retarded Defendant
Program, which attempts to train
defendants to communicate with their
attorneys, assist in their own defense
and understand the court proceedings. If
the defendants are not found competent
to stand trial within two years, the
charges are dismissed, but a defendant


can be held longer on a judge's order.
The newspaper first filed a public
records request on May 2. DCF officials
have partially filled some requests and
denied others. "What we are trying to do
is to determine how a program that deals
with some of the state's most vulnerable
individuals is being administered," said
Janet Weaver, the Herald-Tribune's
executive editor.
The newspaper reported that internal
memos indicate that the DCF's attorneys
disagree about whether the requested
material is public record. (10/9/01)


3 The Brechner Report U December 2001







ACCESS MEETINGS CONTINUED


New rules allow secretmeetings


TALLAHASSEE The Florida Senate
approved changes to its rules that allow
committees to meet in secret to discuss
security and terrorism issues.
A committee-approved plan would
have kept some votes secret, but a last
minute compromise makes public
"records, research, information and
remarks" after 30 days. Votes, bills and


amendments will also be open.
The Senate president, however, can
keep the information sealed past 30
days.
"Hopefully, we never have to invoke
it, but should it be a necessity I think
we'd be glad to have that ability," said
Senate President John McKay, R-
Bradenton. (10/26/01 10/27/01)


Press denied access to federalhearing


ORLANDO A U.S. magistrate
denied a newspaper request to allow
public access to a federal court hearing
regarding an unidentified man.
Judge David A. Baker, a federal
magistrate, refused an Orlando Sentinel
request to open the session, refused to
release the name or details about the
man, and refused to comment on the


nature of the hearing.
Prosecutors and public defenders
also refused to release details or
comment on whether the hearing was
related to the September 11 terrorist
attacks, saying only that it was a
sensitive issue. During the 40-minute
hearing, the entire courthouse floor was
cleared of outsiders. (9/20/01)


Codeboardmembers

acquittedofcharges
MIAMI Former state Rep. Eladio
Armesto-Garcia and City Commission
candidate Angel Gonzalez were
acquitted of charges that they violated
Florida's Open Meetings Law while
serving on the Miami Code Enforcement
Board.
The two men were accused of talking
about two codes enforcement cases
outside a public meeting. (Brechner
Report, July 2001)
Miami-Dade County Judge Henry
Leyte-Vidal, 11th Judicial Circuit,
listened to two days of testimony and
reviewed tapes and transcripts. He
concluded that prosecutors did not prove
Armesto-Garcia and Gonzalez
communicated in private.
(10/2/01 10/4/01)


U.S.SupremeCourtrefusesto hearNationalGeographicappeal


WASHINGTON The U.S. Supreme Greenberg. Greenberg argued that the
Court refused to review an 11th Circuit magazine needed his permission to use
U.S. Court of Appeals CO PY RIG H T the photographs in a new
decision in favor of a I medium and should have
freelance photographer paid him an additional
who sued National Geographic. fee for the work appearing on the CD-
The appeals court ruled that the ROM. (Brechner Report, October
National Geographic magazine violated 2001)
Jerry Greenberg's copyrights when it Magazine attorneys appealed, hoping
published back issues of the magazine that the Supreme Court would overturn
on CD-ROM. The republished issues the National Geographic decision in
contained freelance photos by light of the Supreme Court's recent

ACCESS RECORDS CONTINUED

Media outlets want access to sealed material


TAMPA A newspaper and two
television stations have asked a federal
judge to unseal documents in the case
against Steve and Marlene Aisenberg.
The Aisenbergs were charged in 1999
with lying about the 1997 disappearance
of their daughter Sabrina, who remains
missing. The charges were dropped, and
federal prosecutors agreed to pay the


couple's legal fees.
However, prosecutors still are filing
documents under seal. The Tampa
Tribune and two television stations are
seeking access to the sealed files
because of a "compelling public interest
in the complete record of this aborted
prosecution," according to the motion
filed with the court. (9/22/01)


Judge r eviewingrecor ds in Tamp amur der case
TAMPA A circuit court judge Officer Lois Marrero. The St.
issued a temporary ban on the release of Petersburg Times and The Tampa
public records in the case of a woman Tribune requested documents in the
accused in the killing of a police case. If defense attorneys object to the
officer. Judge Cynthia Holloway, 13th release of any of the documents, the
Judicial Circuit, ruled that restricting judge will review the records in private
public records in the case would ensure and decide what to release to the public.
that Paula Gutierrez received a fair trial. Some records were released in early
Gutierrez is charged in the death of November. (9/11/01 11/7/01)


decision in another copyright case, New
York Times v. Tasini. While Tasini also
was decided in favor of freelancers,
attorneys for National Geographic
were hoping that language in the Tasini
decision defining copyright law as
"medium neutral" would help them win
an appeal based on an argument that the
CD-ROM is more like a microfilmed
copy of the magazine rather than a new
work. However, the Supreme Court
refused to hear the appeal. (10/10/01)


The Brechner Report U December 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
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 jont 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





























Courthas chanceto clarify accessto judicialrecords


Consider the following hypothetical: A male trial
court judge sends a series of e-mails to female judges
containing inappropriate and sexually suggestive
remarks. The chief judge of the circuit learns of the
conduct, conducts his own investigation, and obtains
copies of the sexually suggestive e-mails. He goes even
further, interviewing and receiving affidavits from other
The courthouse
fRl I D 1r D r- personnel who


Jim McGuire


.J0l n. I ag% claim to have been
By Jim McGuire subjected to sexual
harassment by the trial
judge. Are the documents that the chief judge has gathered in
his role as chief administrative officer of the court open to
public review under the Florida Constitution and the Rules of
Judicial Administration?
That was the very real question facing the 2nd District Court
of Appeal in Media General Convergence, Inc. v. Chief Judge
of the Thirteenth Judicial Circuit, Case No. 2D0-1346. In a
split decision, the Court reached the surprising and
disappointing conclusion that the documents were not open to
public scrutiny because they were not "judicial records" and,
even if they were "judicial records," they were confidential
under personnel procedures employed by the State Courts
System.
Despite this conclusion, the appeals court conceded that it
found itself in "uncharted waters" and that it had "navigated a
course based on assumptions." In light of this uncertainty, the
appeals court took the wise step of certifying to the Florida
Supreme Court a question of great public importance
concerning when such sensitive records are subject to public
disclosure.
The uncertainty expressed by the majority in the Media
General decision underscores the difficulties faced by parties
seeking access to records from the judicial branch. As opposed
to the legislative and executive branches, which are subject to
the Public Records Law, the judicial branch and its records fall
within the ambit of the Florida Rules of Judicial Administration.
But those rules are not especially clear, do not contain detailed
rules of procedure, and have not been well-developed by years
of case law. The Media General case starkly illustrated these


deficiencies. Indeed, one of the most remarkable
features of the Media General decision is that it was
built on an untenable foundation of "assumptions."
Despite the fact that the case was before the 2nd
District Court of Appeal for more than a year, the
petitioners The Tampa Tribune and WFLA-TV/News
Channel 8 were not allowed to take the deposition of
the chief judge whose records they sought. The
Tribune and WFLA also requested that the court


appoint a special master to review the records in
camera. That request was never ruled upon, and the court
announced its decision without ever even seeing the disputed
records.
Of equally great concern, the 2nd District Court failed to
hold oral argument and, as noted above, took more than a year
to render its decision. This enormous delay violates the letter
and the spirit of the Rules of Judicial Administration, which
require that petitions for access to judicial records be reviewed
on an expedited basis.
As this matter proceeds to the Florida Supreme Court, then,
it presents a perfect forum in which the Supreme Court can and
should spell out the procedures for seeking access to judicial
records, particularly when the parties are litigating before the
district courts of appeal, courts that are not well-equipped to
oversee litigation of original proceedings. Specifically, the
Court should seize this opportunity to establish that when a
party brings an original proceeding in the district court of
appeal, the records sought must be made available to the court
of appeal for in camera review. In addition, a special master
should be appointed and the parties should be authorized to
conduct limited discovery. Finally, the Court should remind the
lower courts that expedited review of access claims is not just
an aspirational goal but a legal necessity. These procedures
would go far to ensure that Florida's courts conduct their
business as they are constitutionally required to do not in the
dark, but in the bright sunshine.

Jim McGuire is a media lawyer in the Tampa office of
Holland & Knight LLP. He is counsel to Media General in
Media General Convergence, Inc. v. Chief Judge of the
Thirteenth Judicial Circuit.




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