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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: February 2002
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Bibliographic ID: UF00090012
Volume ID: VID00026
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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Volume 26, Number 2 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom oflr I,,.i1 .. a, U College ofJournalism and Communications U University of Florida
February 2002

Corporations, not journalists, make most requests


WASHINGTON Contrary to one of
the most popular misconceptions about
who uses FOI laws, a new study showed
corporations made 40 percent of all
freedom of information
requests at four federal A C
agencies during the first six A-
months of 2001, while RECO
journalists made only 5


I


percent of the requests, according to a
survey by the Heritage Foundation's
Center for Media and Public Policy.
The center requested the FOIA logs
of the General Services Administration,
the Environmental Protection Agency,
the Health Care Financing
Administration, the U.S. Department of
Some Reagan era
records to be released
WASHINGTON The National
Archives and Records Administration
has scheduled the release of about 8,000
documents from the administration of
President Ronald Reagan. The papers are
part of 68,000 documents that were
scheduled for release almost one year
ago under the Presidential Records Act
of 1978. That release was blocked by an
executive order by President George W.
Bush that redrafted procedures for
releasing records of former presidents.
(Brechner Report, December 2001)
Historians and freedom of
information advocates filed a federal
lawsuit to gain access all the Reagan
documents. The lawsuit claims that the
executive order, which gives both the
sitting president and former president
the right to withhold records, violates
the law. The Presidential Records Act
made presidential records the property
of the government, subject to release 12
years after the end of the president's
term of office. This release will not
affect the lawsuit, according to the
plaintiffs. (1/3/02)


Education and the U.S. Department of
Transportation. By late November, the
Health Care Financing Administration
had not responded to the request.
Corporations accounted
E SS for the largest segment of
FOIA requests sent to the
UD S four other agencies during
the first six months of 2001,
approximately 910 of the 2,285
requests. After corporations, lawyers
made up the biggest group with 567
requests. Individuals who did not
identify their employer made 373
requests, or approximately 16 percent of
the total, followed by individuals
representing non-profit organizations


with 181, or 8 percent of the requests.
Media members made the least amount
of FOIA requests at 119.
Only the GSA and the EPA responded
to the center's request within 20
working days, a requirement of the
FOIA. The Education Department did not
even log the June 15 request until Aug. 7
and produced the requested documents
on Oct. 10 only after a series of phone
calls. The Transportation Department's
log arrived on Nov. 1 with much of the
information redacted. The HCFA had not
produced any documents. (11/30/01;
Study available at http://
www.heritage.org/mediacenter/studies/
113001.html)


Writer released after 168 days in custody
HOUSTON Writer Vanessa Leggett subpoenaed her expired.
was released from jail on Jan. 5, after Her release may only be temporary.
168 days in custody for contempt of The U.S. attorney's office noted in a
court. (Brechner court filing, "The United
Report, January 2002) REPO RTER'S States intends to renew
Leggett, who is its request of Leggett to
working on a book PRIVILEGE provide the previously
about a 1997 murder, requested material and
has refused to turn over notes sought by will pursue available proceedings to
prosecutors in the case. The 5t U.S. require Leggett's cooperation." On Jan.
Circuit Court of Appeals upheld the 2, Leggett's lawyer, Mike DeGuerin,
contempt ruling, but Leggett was asked the U.S. Supreme Court to review
released automatically when the term of her case on both First and Fifth
the federal grand jury that had Amendment grounds. (1/2/02 1/5/02)

FDLE commissioner admits 'mistake'
ORLANDO FDLE Commissioner during the closed portion of the session
Tim Moore admitted it was a mistake to had safety concerns. Reporters
close a portion of a Nov. 29 A C C E SS protested and were allowed
meeting of the state's Jto re-enter the meeting after
Domestic Security Advisory Moore consulted with
Council in Orlando. When MEETINGS lawyers. When the reporters
he closed the meeting, returned, the experts were
Moore said that sensitive intelligence almost finished with their presentation.
matters would be discussed, making the In a letter responding to an Orlando
meeting exempt from Florida's Open Sentinel complaint, Moore stated, "We
Meetings Law. He later said that the made a mistake plain and simple."
Israeli anti-terrorism experts who spoke (12/19/01)


THE



BRECHNER


REPORT






ACCESS RECORDS CONTINUED


School board questions importance of open records


request for information, but Malcolm
and other members used the occasion to
voice their opinion that preliminary
internal communications should not
necessarily be considered public
information. Robert Wiggins, a board
member and county government
employee, stated that in his opinion any
document could be withheld from public
view if it has "draft" stamped on it.


Aisenberg tapes will be released
TAMPA Federal prosecutors have well as Aisenberg defense attorney
withdrawn their objection to the release Barry Cohen, had argued that the tapes
of 35 tapes made from court-approved be made public. Assistant U.S. Attorney
bugs in the home of Steven and Marlene Ernest Peluso originally argued their
Aisenberg during an investigation into release could compromise the
the disappearance of their daughter. continuing investigation. Aisenberg
The Aisenbergs were indicted in attorneys plan to file a motion to ensure
1999 for lying about the disappearance that the prosecutors release the tapes in
of their infant daughter Sabrina from their entirety, and not simply the
their Valrico home in 1997. The case, excerpts they planned to play in court.
based on court-approved bugs in the The Aisenbergs are currently seeking
couple's kitchen and bedroom, was reimbursement for their legal fees under
dropped in February 2000 when a the Hyde Amendment, which allows
magistrate ruled the tapes inaudible, those who have been victimized by "bad-
The Tampa Tribune, WFLA-TV faith" prosecutions to recover legal
Channel 8 and WTSP-TV Channel 10, as fees. (11/23/01 1/5/02)

Marion County libraries offer restricted access
OCALA The Marion County Public library materials unless their parents
Library system will now offer two designate restricted access on the
borrowing options for children: full minor's library card. The new policy
access and restricted applies only to
access. Parents of FIRST materials that are
children under the age A- ND M-T N T1 checked out of the
of 17 can opt to limit A I NN I library. Minors still


their children's access
to only those titles with call letters "E"
and "J," which are generally available in
the children's section of the library.
Children will have full access to

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.


BROOKSVILLE Several members
of the Hernando County School Board
used a December meeting to express
their reservations about the broad reach
of Florida's Sunshine Laws. Board
member Jim Malcolm stated that he
would "delay giving out copies of that
stuff if it's detrimental to the
organization."
The board has not denied any specific


have unfettered were used to televise the proceedings to a
access to materials while in the library, nearby overflow room, and the judge noted
The new regulations come after that new technology made cameras less
months of debate over access to some intrusive. Moussaoui faces the death
sex education titles that a number of penalty if convicted on six counts of
parents deemed inappropriate. (11/2/01) conspiracy. (1/9/01)
Harry Pottersurvives parental challenge
NEW PORT RICHEY A Mitchell reading the book aloud to her class, said the
High School teacher can continue to book clashed with his son's Christian
read Harry Potter and the Prisoner of beliefs. The boy was allowed to leave the
Azkaban to her class for now. class during the reading sessions. Niland
Responding to a parent's charge that now plans to appeal the principal's decision
the book taught the religion of to the school board.
witchcraft, principal Tina Tiede asked a Meanwhile, in Pinellas County, School
panel of six parents to read the book, and Superintendent Howard Hinesley upheld a
make recommendations. Her decision committee's decision to ban The
was that the book was "pure fantasy" and Chocolate War, the story of a high school
"not religious." student ostracized by his classmates, from
William Niland, the parent of an the middle school curriculum.
eleventh grader whose teacher was (11/28/01 12/01/01)


2 The Brechner Report February 2002


Malcolm later clarified that he was in
no way advocating that the
superintendent break the law, but
reaffirmed that he would risk legal
action to keep certain documents
private.
In 1992, all five Hernando School
Board's members, none of whom still
serve, were indicted for open meetings
violations. (12/17/01 12/18/01)

COURTS

Accused accomplice
wants trial televised
WASHINGTON Lawyers for the first
person indicted in the September 11
hijackings are asking for the trial to air on
television. Television networks have joined
lawyers for Zacarias Moussaoui, the
accused accomplice of the September 11
hijackers, in seeking to overturn a ban on
cameras in federal courts.
"The entire nation has a direct interest in
these proceedings, if not the entire world,"
argued Lee Levine, an attorney
representing the television networks.
Justice Department Attorney Elizabeth
Collery told U.S. District Judge Leonie
Brinkema that televising the trial might
affect testimony. In 1996, the Judicial
Conference of the United States stated that
each court of appeals may decide to allow
broadcasts in its geographic area, while
urging courts to continue the ban.
During the hearing, two small cameras







ACCESS MEETINGS CONTINUED


Fire commissioners cleared of violation


SPRING HILL The state attorney's
office cleared fire commissioners Bob
Kanner, Gene Panozzo and Jeff
Hollander of charges that they violated
Florida's open meetings law on several
occasions. The charges were filed by
former fire chief Mike Morgan.
According to Morgan, the inspectors
often met in private. Morgan also said
that they had discussed his retirement
plans in private.
The commissioners say that they
often dine together, but do not discuss
district business at those dinners.


Hollander recently received an e-mail
from Morgan asking him to help him put
together a retirement package. Morgan
requested that the message not be made
public, but Hollander put a copy of it in
the district's public records file.
Morgan told the St. Petersburg
Times about the alleged violations, some
as far back as 1995, the day after the
Spring Hill Fire and Rescue District
Commission voted 4-0 to force Morgan
to accept early retirement, and to deny
him $17,000 in accrued sick leave.
(11/20/01 12/15/01)


Code enforcement board member cleared


NORTH PORT North Port City
Attorney Rob Robinson found it was
"impossible to determine" if an alleged
non-public meeting about an upcoming
meeting of the North Port Code
Enforcement Board violated the state's
Sunshine Laws and "will therefore take
no further action."
Board member Paul Gantz
complained to Robinson that fellow
board member Fred O'Dell asked for his
support for a no-confidence vote against
board attorney William Salomone


before a Sept. 24 meeting. Gantz says
that he did not know what a no-
confidence vote was, and that O'Dell
explained it to him.
Following the alleged discussion,
O'Dell made the no-confidence motion,
which passed. Gantz voted against it.
Salomone resigned within the week.
According to a letter from North Port
City Attorney Rob Robinson, "It is
impossible to determine whether a
violation of the Sunshine Law in fact
occurred." (12/7/01)


NEWS GATHERING

Judge denies Flynt request for front-line access


WASHINGTON U.S. District Court
Judge Paul Friedman supported the
Pentagon's decision not to allow
reporters access to front-line troops in
Afghanistan. Larry Flynt, the publisher
of Hustler, initiated the lawsuit seeking
an official ruling that journalists have a
First Amendment right to cover war
coverage on the front lines.
The government argued that reporters
do not have a right of access to combat
situations. However, the judge did not


close the door on that possibility in his
ruling. "The court is persuaded that in an
appropriate case there could be a
substantial likelihood of demonstrating
that under the First Amendment the
press is guaranteed a right to gather and
report news involving United States
military operations on foreign soil
subject to reasonable regulations."
Friedman noted that in this case, the
press has been granted access to cover
the war. (11/20/01 1/9/02)


FIRST AMENDMENT CONTINUED

Zephyr hills backs off anti-gossip provisions


ZEPHYRHILLS City officials have
backed off an anti-gossip clause in the
employee manual. City Manager Steve
Spina drafted a new rule to protect city
employees from workplace gossip.
The original draft of the clause read:
"Employees shall not criticize the city
or its policies, programs, actions or
officers or perform any acts or make


any written or oral statements which
tend to bring them into disrepute or
ridicule. ... Employees shall not gossip
about any other member or employee...."
After citizens and employees expressed
First Amendment concerns the manual
now requires employees to "...treat co-
workers, the public and others with respect
and courtesy." (9/14/01 9/23/01)


ACCESS
RECORDS
CONTINUED
Prosecutors won't
charge school official
PALM BEACH COUNTY The state
attorney's office will not file criminal
charges against a Palm Beach County
School District administrator who was
accused of releasing confidential
documents. Ed Oppel, chief of facilities,
gave a preliminary audit report to a vendor
whose business was the subject of the
audit. Audits do not fall under the Public
Records Law until they are complete.
Oppel told investigators that he thought
the audit was complete and the document
was a public record. An investigator in the
State Attorney's Office said that Florida's
criminal laws only punish those who
withhold public records, not those who give
out exempt documents. (10/2/01)
County to request
Sunshine opinion
BARTOW The Polk County
Commission is asking the Florida Attorney
General's office for an official opinion of
whether the governing board of the Central
Florida Development Council falls under
the state's Sunshine Law.
The development council consults with
the county's tourism and development
staff. Theron Stangry, the incoming
president of the CFDC, said he would
welcome clarification of the Sunshine
issues. (9/6/01)

-I HE-
BRECHNER
REPORT


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The Brechner Report February 2002 3




























A black hole at the White House


Add a new category to the Guinness Book of World
Records: Longest Delayed Presidential Veto, 23 years, set
by George W. Bush.
Strictly speaking of course, Bush's executive order
adding roadblocks to key provisions of the 1978
Presidential Records Act doesn't count as a veto. Still,
what else should we call an edict that essentially cancels
an act of
The Congress more
than two decades Ian A
Back Page tional."
after the fact? (Besides
WWZf "unconstitutional.")
By Ian Marquand Let me say at the
outset that I may never take the opportunity to delve deep into
the papers of Ronald Reagan, George H.W. Bush, Bill Clinton or
any other president, including the current occupant of the White
House. However, as a journalist, an admirer of historians and an
American who believes in the power of information to reveal
truth, I want to be assured that the records of our former chief
executives are open to examination and analysis, even if it
happens years after they have left the White House.
In 1978, Congress passed the Presidential Records Act, which
required that most presidential (and vice-presidential) papers be
subject to the federal Freedom of Information Act five years after
the president had left office. Presidents may withhold certain
records for an additional eight years plenty of time, thought
Congress, for issues of immediate concern to be no past
importance. According to the Act, once the 12-year period ends,
the withheld documents fall under FOIA and are subject to public
requests.
The records of President Ronald Reagan and Vice President
George H.W. Bush were the first to be subject to the PRA. This
past January, the 12-year privilege period ended for their papers,
triggering their availability under FOIA.
Or so we thought. Two months after taking office, new
President Bush asked that the Archivist of the United States
delay the release of some 68,000 Reagan-Bush papers. The new
Bush team wanted to think about legal issues surrounding the
material, as well as what processes should be employed for its
release. After requesting two more delays during the summer
months, the other shoe finally dropped on Nov. 1, when Bush
issued an executive order granting former presidents a virtual
veto over the release of their papers.
Now, either a sitting or former president can block release.
Reagan's 1989 order directed the archivist of the United States to


CIL


notify the sitting president when 12-year privilege
expired. The new Bush order goes further. Now, the
archivist must notify the former President (or his estate)
as well as the sitting president when a request is made
for those records. If the former president blocks access,
the sitting president cannot unilaterally grant it.
Conversely, if the former president grants permission for
the release, the sitting president can overrule him. In
other words, both presidents have to agree on which
rquand records can be released.
It also delays release far beyond FOIA provisions. Once a
former president is informed of a request, he has 90 days to grant
or deny access to the records sought. (If Congress asks, the time
is reduced to 21 days.) During that time, there will be no access
to the records. The former president also can ask for an extension
of the 90-day period. Again, there will be no access during that
period.
The bottom line is that the order allows sitting and former
Presidents to supercede FOIA without the consent of Congress.
On that basis alone, the order should not stand.
Adding to the intrigue is the unavoidable family connection.
It also isn't hard to imagine members of the current president's
team who served in the Reagan-Bush years asking for
consideration. Fortunately, reaction to the executive order has
attracted a lot of attention. On Nov. 6, Rep. Stephen Horn's
House Subcommittee on Government Efficiency, Financial
Management and Intergovernmental Relations held a hearing on
the issue.
Editorials have decried the order. The Los Angeles Times
said it would "nudge the nation's highest office back toward
democracy's dark ages, when history could effectively be kept
from the public." A coalition has filed suit to have the executive
order overturned. Whether or not you revere the memory of the
Reagan years and legacy, the idea that a president could undo a
long-standing public law with the stroke of a pen should arouse
the constitutional defender in all of us.
So, the Reagan documents remain unavailable. Only the most
optimistic of us believe they'll be open for inspection anytime
soon. If the good guys win, however, and Americans end up
learning things the Bushes wish we didn't, George the son still
has an ace up his sleeve.
Dad could always get a pardon.

lan Marquand is the Freedom of Information Chair for the
Society ofProfessional Journalists.




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