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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: March 2002
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Bibliographic ID: UF00090012
Volume ID: VID00027
Source Institution: University of Florida
Holding Location: University of Florida
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THE



BRECHNER


REPORT

Volume 26, Number 3 m A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom oflI,, 1'....ri.., College ofJournalism and Communications U University ofFlorida
March 2002


Identity theft report urges access curbs


TALLAHASSEE A statewide grandjury
convened to investigate identity theft
crimes in Florida has issued a controversial
report that is highly critical of the state's
public records law. The report
suggests, among other things, A
tighter restrictions on personal
information available from the
government. R
"We do not suggest that
government should withhold information
that its citizens need to ensure that
government carries out its role in a fair and
efficient manner. However, there is a vast
difference between information
documenting what the government is doing
on one hand, and private and personal
information that government has collected
from its citizens for a specific and limited
purpose on the other," the report states.
According to the Office of Statewide
Prosecution, identity theft inI ol\ c's the use
of personal information by criminals to
assume the identity of law-abiding citizens
and use of it for a variety of fraudulent


purposes, including the securing of
driver licenses, credit cards, bank
accounts, automobile loans and
insurance and government benefits." The
report states that both
j-i government and businesses
E SS take in more information
than is absolutely necessary,
R)IDS which can lead to the
information falling into the
wrong hands. The crimes totaled $2.5
billion nationwide in 2001.
Tom Sadaka, a special counsel for the
Office of Statewide Prosecution,
believes that the Legislature will
probably act on most of the grand jury's
recommendations. "From history, the
statewide grand jury reports generally
get acted on."
The grand jury resulted in charges
against 33 individuals, for crimes
including criminal use of personal
identifying information, racketeering,
organized fraud, grand theft and money
laundering. (1/18/02 1/22/02)


Media mounts challenge to Earnhardt law


FORT LAUDERDALE Saying that the
Earnhardt law, which restricts access to
autopsy photos, is interfering with the
ability of medical examiners and law
enforcement officers to do their jobs, seven
Florida newspapers and one television
station have filed a challenge in Broward
County.
The challenge includes a statement from
Stephen J. Nelson, chairman of the Florida
Medical Examiners Commission, affirming
the law has "an extremely detrimental
effect" on Florida medical examiners
because it means they can no longer give
lectures at national conferences. According
to Nelson, the law will inhibit the
professional advancement of Florida's
medical examiners, and could ultimately
impede the advancement of medical


scientific theory.
The challenge also points out that
autopsy photos have at various times
been important tools in criminal
investigations. In the Frank Valdes
murder case, for example, autopsy
photos showing boot marks on Valdes'
body indicated a different cause of death
than the one suggested by the guards'
accounts. The guards were recently
acquitted of causing Valdes' death.
The seven newspapers bringing the
challenge are the Orlando Sentinel, the
South Florida Sun-Sentinel, The
Gainesville Sun, The Ledger of
Lakeland, the Sarasota Herald-
Tribune, the Ocala Star-Banner of
Ocala and The Tampa Tribune, along
with WFLA-TV. (1/10/02)


Judge bars cameras

from Moussaoui trial
WASHINGTON A federal judge
barred television broadcast of the trial
of Zacarias Moussaoui, the only person
charged to date in the September 11
terrorist attacks.
Court TV sought a ruling that the ban
on cameras in federal courts was
unconstitutional. A number of news
organizations, including the Reporters
Committee
for COURTS
Freedom U_
of the
Press, the Radio-Television News
Directors Association, CNN, NBC, CBS
and ABC, filed amici curiae in support of
Court TV.
Federal District Judge Leonie
Brinkema said that the ban was not
unconstitutional. In addition, the
decision underscored the security
concerns involved in the upcoming trial.
According to Brinkema, "any
societal benefits from photographing
and broadcasting these proceedings are
heavily outweighed by the significant
dangers worldwide broadcasting of this
trial would pose to the orderly and
secure administration of justice."
Rather than appeal the decision,
Court TV Chairman and CEO Henry
Schlieff said he would actively support
legislation currently before the U.S.
Senate that would give individual federal
trial and appeals court judges the right to
allow photography, electronic recording,
broadcasting and televising of court
proceedings if they choose. The bill
includes a provision that would allow the
law to lapse three years after it is
initiated.
Even if the bill is ultimately signed
into law before the trial begins, however,
Brinkema has already signaled her
intention to bar cameras from the court
in this case. (1/18/02 1/24/02)






ACCESS RECORDS CONTINUED

Editors hire lobbyist to make case for public records


TALLAHASSEE After years of
watching the legislature nibble away at
the state's vaunted Sunshine Law, the
Florida Society of Newspaper Editors
has taken the unusual step of hiring a
lobbyist to beat the drum for openness
in government.
FSNE hired Curt Kiser, a lobbyist and
lawyer for Holland and Knight, to
represent the cause of access during the

JQC fights judge's
attempt to make
complaints public
TAMPA The Florida Judicial
Qualifications Commission is trying to
keep the details of an official complaint
secret, even though the judge charged in
the complaint has waived any right to
confidentiality, and asked that the
records be released to the press.
Hillsborough County Circuit Judge
Gregory Holder was charged with giving
a false or misleading answer on his
application to become a federal judge.
Holder answered "no" to a question that
asked if he had been disciplined or cited
for an ethics breach, or been the subject
of a complaint. Holder said he did not
realize that there had been official
complaints lodged against him.
Although Holder asked the JQC to
release all information about the
complaints and the subsequent charges,
the JQC has instead hired Barry
Richard, who represented President
George W. Bush during the Florida
election cases, to fight the release.
Holder has also filed a motion to keep
the JQC from hearing his case, since
high ranking members will be witnesses
against him. (2/5/02)

DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
!s.it. 'ii 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.


upcoming legislative session. Kiser is a
former member of the Florida state
House of Representatives and the state
Senate. He will reportedly be paid
$35,000 for the session.
Kiser indicated that his most
important assignment will be to push the
so-called n" .ipalpci amendment" to the
Earnhardt bill, which would give
members of the media the right to view


autopsy photographs without reproducing
them. Media organizations often use
independent analysis of autopsy photos to
verify cause of death in controversial
cases.
Neil Brown, managing editor of the St.
Petersburg Times and a board member of
FSNE, said the organization "wants to
make sure the case for public access and
open government is made." (1/15/02)


Pentagon orders press to withhold photos
WASHINGTON Claiming they not the photos violated the Geneva
might violate prisoner rights under the Convention. However, the Red Cross
terms of the Geneva Convention, the denies that they contacted the Pentagon
Pentagon ordered about the photos.
photojournalists not to The Bush
send images of al-Qaeda FIRST administration had
and Taliban prisoners AN END ENT originally said that the
being loaded onto Geneva Convention did
planes for the trip to Guantanamo Bay, not apply to either the Taliban or al-Qaeda
Cuba from Kandahar, Afghanistan. The detainees. Later, White House spokesman
Pentagon had originally given Ari Fleisher said that the Geneva
permission for journalists and camera Convention would be applied to Taliban
crews to cover the departure of the C-17 detainees, since Afghanistan is a party to
cargo plane. However, after the plane the Geneva Convention, but not to the "al-
left, officials told journalists that they Quaeda international terrorists." The Bush
could not send the images. administration has denied all detainees
The pictures showed prisoners, prisoner-of-war status, which means they
chained and masked, being led onto the can be tried for crimes outside of the
plane. Pentagon officials said that the conflict in Afghanistan, including the Sept.
Red Cross had questioned whether or 11 attacks. (1/15/02; 2/8/02)
Airport to install face-scanning software
ST. PETERSBURG St. Petersburg/ scan the faces of incoming international
Clearwater International Airport will be passengers, but that would require the
among the first in the country permission of the United States
to install software designed to PRIVACY Customs Service.
match faces with a database of Installing the system in the
known terrorists and other wanted airport required less than $100,000 of a
criminals. $3.5 million federal grant that was
Departing passengers will be asked to earmarked to overhaul the county jail's
look into a camera at security booking database, obtained prior to Sept.
checkpoints. If the system returns a 11. A similar system installed in Ybor City
match, sheriff's deputies will question has thus far yielded no arrests, and was
the passenger. Ultimately, Sheriff reportedly inoperative for four months
Everett Rice plans to use the system to beginning Aug. 11. (1/23/02)

Improperly stated position is not defamation
OCALA An article in the Ocala growth.The ruling says that such an
Star-Banner that incorrectly summarized inaccuracy does not rise to the level of
mayoral candidate Marguerite Jill defamation, since the position, as it was
Cantine's position on growth stated, would not be ridiculous. The
along State Road 200 does not LIBEL order to dismiss points out that
constitute libel, according to a cases are routinely dismissed as a
Marion County judge. Cantine's matter of law "where statements have
complaint alleged libel due to an Oct. falsely attributed political positions or
1999 article that misreported the affiliations of the plaintiff." (30 Media Law
number of the road on which she favored Reporter 1127, Jan. 2, 2002)


2 The Brechner Report U March 2002







ACCESS MEETINGS

Newspapers challenge trustees'telephone meetings


ORLANDO Florida Board of
Education Chairman Phil Handy has
been speaking privately with the chairs
of the boards of trustees of the state's
public universities via conference calls.
The private meetings have raised
questions about possible Sunshine Law
violations, leading four Florida
newspapers, The Gainesville Sun, the
Orlando Sentinel, the South Florida


Sun-Sentinel and The Tampa Tribune,
to send a letter asking that the meetings
be opened. Handy told reporters that he
had not read the letter.
A Board of Education spokesperson
said that because the chairs were all
appointed to different boards, the
meetings do not constitute a board or
commission meeting, and the Sunshine
laws do not apply. University presidents


Citizens groups win Commissioner sues over


right to input on

development issues
CHARLOTTE COUNTY- Local
environmental groups and government
watchdog associations have won the
right to have a say in future real estate
development plans in Charlotte County.
The 2nd District Court of Appeals ruled
that the county's Development Review
Committee, which has the power to
approve real estate developments such
as apartment complexes and marinas, is
a public body, subject to Florida's
Sunshine Law.
A local environmental group,
EverGreen, filed suit to stop the
development of an apartment complex
that included the cutting of more than
two dozen old-growth trees. A lower
court ruled that the trees could be cut
down under county law, and agreed that
the DRC was not subject to the Sunshine
Law. Charlotte County had referred to
the DRC meetings as "staff meetings,"
The public was allowed to attend, but not
make comments. But in overturning a
lower court decision, the three-judge
panel said that the lower court had
mistakenly ruled that the DRC members
were nothing more than "glorified plans
examiners."
The ruling also said that the lower
court decision was wrong in assuming
that the public had enough opportunity
for input when the county did its long
range developmental planning.
Officials in Charlotte County said
that the development review process has
already been under review for some
time, in an attempt to incorporate more
citizen input into final decisions. The
ruling may force changes in the way
other counties within the state
incorporate public input into the land
development process. (1/20/02)


CHIEFLAND City Commissioner
Sunshine Baynard has filed a civil suit
against the Chiefland City Commission,
saying that an "emergency meeting"
violated Florida's Sunshine Law.
At a regularly scheduled commission
meeting on Jan. 14, Commissioner John
Hart suggested that rather than fill the
Chiefland Police Department's chief of
police vacancy, the city should
downgrade the position, or eliminate it
entirely and hire Sheriff Johnny Smith to

Butterworth issues

opinion on school

advisory committees
TALLAHASSEE In a letter to
Collier County School Board Attorney
John Clapper III, Florida Attorney
General Robert Butterworth said
members of school advisory councils
are subject to criminal penalties for
knowing violations of the Sunshine Law.
Clapper had requested the opinion on
behalf of the board.
The school advisory councils are
established pursuant to Florida statute,
which states that the councils' duties
include preparing and evaluating
schools' improvement plans. The boards
have the power to make
recommendations to a public agency, but
those recommendations are not binding.
However, because the councils receive
state funding, and have been found to
constitute a "board or commission"
under the provisions of the Sunshine
Law.
Accordingly, Butterworth noted that
any school advisory board members
"who knowingly attend a meeting of the
council not held in accordance with [the
Sunshine Law]" would be subject to
criminal penalties. (AGO 2001-84, 12/
13/01)


have met in the past, but their meetings are
normally open to the public.
Handy told reporters that the informal
meetings were to discuss policy options,
and he acknowledged that the chairs
conferred on upcoming legislative issues,
including the state budget and proposed
tuition increases. However, he said that
policy making is left to the individual
boards of trustees. (1/10/02 2/6/02)

open meetings violation
handle local law enforcement. At that
meeting, the commission decided to
continue the search for a chief of police,
but also to give further consideration to
Hart's alternative proposals.
Mayor Betty Walker called the Jan. 17
meeting on Jan. 16, with minimal public
notice, after speaking privately with Smith.
The Chiefland Citizen, a local newspaper,
received notification of the 10 a.m.
meeting by fax at 5:33 p.m., the evening
before the meeting.
Baynard, who was unable to attend that
meeting due to a scheduling conflict,
claims in her suit that the mayor had the
city manager call her to find out her
opinion on the matter, and that the decision
to halt the search for a police chief was
actually made in advance of the emergency
meeting "by virtue of liaison
communication" between members of the
city commission. (1/24/02)



BRECHNER
REPORT

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The Brechner Report U March 2002 3































When judges act as editors, public loses out


Trial judges, we're too frequently reminded, make lousy
newspaper editors. Three recent decisions merit and
perhaps even require special attention. In South Lake
Tahoe, Calif., a trial judge, hearing a murder case, initially
barred the Tahoe Daily Tribune and other newspapers from
publishing color photographs of the defendants. The unusual
ruling followed a defense request that the defendants be
The allowed to appear
in court in street Doug
Bac Pa clothes, rather than
their orange jail jumpsuits.
By Douglas Lee The jumpsuits, defense
counsel argued, could lead
potential jurors to presume the defendants are guilty.
At the first hearing on the issue, Judge Jerald Lasarow denied the
motion but threw the defense a bone the newspapers, he said, could
not run color photos of the defendants or any photo of a defendant
showing "jail-type insignia." These restrictions, the judge believed,
would preserve an untainted jury pool.
After considering the issue again, Lasarow changed his mind and said
the defendants could appear in street clothes. Then he threw the media
a bone the newspapers, he said, would be allowed to publish color
photos of the defendants, as long as the defendants wore street clothes.
At best, Lasarow's rulings are uninformed. At worst, they're
ludicrous. If potential jurors presume the defendants guilty, it will not
be because of what the defendants are wearing. Rather, it will be
because they have been arrested, charged with the crime and are in
custody, facts the newspapers are free to report.
Moreover, the rulings are wholly ineffective. Banning color photos
and 'jail-type insignia" never would have fooled anyone. Even the
densest potential juror would not have confused a black-and-white
photo of a jail jumpsuit with the latest in courtroom fashion. Lasarow's
second ruling is no better, as it apparently bars the newspapers from
publishing photos taken earlier in the case and unnecessarily infringes
on the newspapers' right to choose how they will cover the
proceedings.
While it's difficult to imagine a ruling more flagrantly
unconstitutional than Lasarow's, the decision of Tennessee Circuit
Judge Allen Wallace comes close. In this case, a criminal child abuse
prosecution of Tennessee state Sen. Doug Jackson, Wallace sealed the
plea bargain. After the secrecy of the deal predictably resulted in a
firestorm of criticism, both Jackson and the prosecutor asked Wallace
to release the terms of the agreement. Amazingly, Wallace refused.
"I feel like we're here this morning for the benefit of the news media
and not for the benefit of this child," Wallace said in denying the joint


request to unseal the plea bargain, "and that kind of bothers
me.
It should bother the public, however, that Wallace, while
perhaps well-intentioned, failed to recognize the vitally
important surrogate role the news media play for the public,
especially when covering the criminal justice system. The
public, more than the news media, benefits when plea bargains
involving elected officials are open to scrutiny. And in this
las Lee case, in which prosecutors reportedly agreed to dismiss the
charges that Jackson abused his 16-year-old daughter if
Jackson and his family sought counseling, the public is entitled to ask
whether justice was done.
An uninformed public was also the goal in Camden, N.J., when
Superior Court Judge Linda Baxter charged four Philadelphia Inquirer
reporters with contempt for publishing the name of the jury
forewoman in the trial of Rabbi Fred Neulander, who was accused of
arranging for his wife's murder in 1994. Baxter initially barred the
media from identifying or contacting jurors during the trial and then
renewed the order after the jurors' inability to reach a verdict resulted
in a mistrial.
The Inquirer challenged the order after the trial, but the state
appellate court affirmed Baxter's ruling, saying that history showed a
"strong likelihood that continued publicity predictably will impair the
defendant's right to a fair trial." Baxter's order, however, doesn't limit
publicity before the next trial. Instead, it prohibits coverage of jurors,
coverage unpopular with some jurors and almost all judges.
When did jurors earn the right to be unaccountable for their
decisions? Does anyone really believe that jurors in a capital murder
case will be influenced by whether reporters will be allowed to contact
them? And, if so, how can we possibly place the life of an individual in
the hands of persons so worried about their own personal
inconvenience?
The Inquirer's publication of the forewoman's name was intentional
and included in an article with four bylines, which suggests the paper is
prepared to fight for its right to publish the name which was
revealed in open court and public records as long and as hard as
necessary. Let's hope the Inquirer ultimately is successful and that
some court somewhere finally rejects the notion that a juror's desire for
privacy trumps the public's right to know.
And, while we're at it, let's also hope that in the future, judges are
content to leave editing to editors.
Douglas Lee is a partner in the Dixon, Ill., law firm ofEhrmann
Gehlbach Badger & Lee and a legal correspondent for the First
Amendment Center. This article originally appeared at
www.freedomforum.org.




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