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: April 2002
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Bibliographic ID: UF00090012
Volume ID: VID00028
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



BRECHNER


REPORT

Volume 26, Number 4 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofl rI, .n..ri.. U College ofJournalism and Communications U University of Florida
April 2002


Judge sets deadline for release of task force records


WASHINGTON Seven federal
agencies involved with Vice President
Dick Cheney's energy policy task force
have been given deadlines
ranging from March 25 to A
May 15 to hand over all A
documents related to the RECO
meetings. U.S. District
Judge Paul L. Friedman dismissed the
U.S. Department of Energy's argument
that the plaintiff be asked to refile its
request, since the government did not
Computer
records destroyed
by virus
DUNEDIN A computer virus
destroyed more than 8,000 city e-mail
messages considered public records
under Florida law. The computer worm,
named Goner, disrupted computers in
Europe and across the United States.
The city installed a new e-mail system
11 months before the attack, but it was
not equipped with the anti-virus software
that might have prevented the attack.
City Manager John Lawrence said
that most of the city's e-mails were not
affected, since most members of the
city government used a free, private e-
mail service, Hotmail, that was in use
before the city installed its own e-mail
system.
State law requires agencies to back
up computer records regularly, in order
to protect them in case of technical
problems or human error. Lynn Rawls of
the Bureau of Archives and Records said
that if records intentionally had been
kept in a manner that did not meet state
requirements, it would be a
misdemeanor offense. However, she
said it was not clear how a mechanical
failure that destroyed records should be
treated. (1/28/02)


R


have enough time to process the
information before the lawsuit was filed.
Judicial Watch, a legal watchdog group,
made an FOI request for the
E S records in April 2001.
In a related lawsuit, U.S.
D S District Judge Gladys
SKessler strongly rebuked the
Department of Energy for failing to
comply with a freedom of information
request from the Natural Resources
Defense Council, which also has been


seeking records from the energy policy
task force since April 2001. Kessler
said the department offered no "legal or
practical excuse" for its lack of
compliance. Apparently, the department
cited the existence of 11 additional
requests for similar information as a
justification for its failure to respond to
the NRDC request. The judge gave the
Energy Department until March 25 to
respond to the NRDC request. (3/3/02 -
3/7/02)


Hybrid hospital must operate in sunshine


DELAND A circuit court judge has
decided that tax-supported Florida-
Deland Hospital's attempts to bar the
public from its business meetings
violate Florida's Constitution. Circuit
Judge Joseph Will found a 1998 law that
exempted private corporations charged
with running public hospitals from
Florida's sunshine laws unconstitutional,
and also found the hospital's
efforts to close records A
between 1994 and the
passage of the law in 1998 MEE
unconstitutional.
Memorial Health Systems directors
lobbied heavily for the passage of the
1998 law, saying that it was unfair for
them to have to operate in the sunshine
in the competitive health-care
environment. The hospital must now
figure out how to retroactively comply
with Florida's open meetings and open
records statutes.
The hospital is overseen by the public
West Volusia Hospital Authority, but
was managed by a private corporation,
Memorial Health Systems, between
1994 and 2000. It is now managed by a
different private corporation, Florida
Hospital. About 20 other state hospitals
operate under this hybrid system, so the
ruling may have implications across


Florida.
Officials for the new manager,
Florida Hospital, which is owned by the
Adventist Church, note that it will be
difficult to recreate some records, since
another company managed the hospital
for six of the years in question. "We're
at a disadvantage to produce those
records and revisit the actions taken at
those meetings," said
E SS Becky Niemann, a
spokesperson for Florida
INGS Hosptial. The Florida
Hospital takeover of
Florida-Deland is one of the events that
took place out of the sunshine that will
now be subject to public scrutiny.
Attorneys for the Daytona Beach
News-Journal, which brought the suit
against the hospital, said they were not
interested in reversing any decisions
made by the hospital boards during the
six years in question, but were
interested in understanding the process
through which the decisions were made.
However, Pat Gleason, an attorney with
the Florida Attorney General's office
said that when a court finds the law has
been violated, the board's actions might
be declared void. Officials from the
hospital have said they will not appeal
the ruling. (1/18/01-1/23/02)


r







ACCESS RECORDS CONTINUED

October Ascroft memo supports FOI denials


WASHINGTON- In the wake of the
Sept. 11 attacks, Attorney General John
Ashcroft told federal agencies that they
could expect strong support when
denying FOI requests. This has prompted
Sen. Patrick Leahy (D-Vt.) to ask the
General Accounting Office to
investigate how FOI requests are being
handled by agencies since of the Sept.
11 terrorist attacks. Leahy says that
Ashcroft's memo suggests federal


employees comply with FOI requests
only after "full and deliberate
consideration of the institutional,
commercial and personal privacy
interests" have been evaluated.
For its part, the House Government
Reform committee, underscoring its
commitment to FOI, has reissued its
publication, A Citizen's Guide on Using
the Freedom of Information Act and
the Privacy Act of 1974 to Request


Computer records come with $12


MIAMI Miami-Dade County wants
$12.1 million to comply with a The
Miami Herald request for e-mail
records. Reporter Joe Mozingo
requested the e-mail records of all
county employees who had sent
messages to sshiver@shiver.com,
County Manager Steve Shiver's personal
address. County communication director
Juan Mendieta said that sorting through


the e-mails would take about 186,420
hours or approximately 90 years, based
on one employee working 52, 40-hour
weeks per year. The IT department
charges $65 per hour to work on FOI
requests, which comes to $12,117,300.
Given the degree of automation in e-
mail systems, not everyone believes
Mendieta's estimate is correct. Sam
Terilli, former general counsel for The


Government Records, to affirm: "The
history of the act reflects that it is a
disclosure law. It presumes that
requested records will be disclosed, and
the agency must make its case for
withholding in terms of the act's
exemptions to the ruleof disclosure."
Rep. Henry Waxman (D-Calif.)
submitted the changes; they were
approved by Rep. Dan Burton (R-Ind.).
(3/7/02)

million price tag
Herald and now an attorney with Ford &
Harrison, believes the government is
stonewalling. "The county can quickly
determine if any employees or elected
officials are sending e-mails to a
personal e-mail account...If the
county's IT department needs help on
the matter, I'll send them my 17-year-
old son, who could do it for a lot less."
(1/25/02)


COURTS

Georgia judge narrows gag order in crematorium case


WALKER COUNTY, GA. A
Georgia judge has limited the original
gag order issued in the case of the
Walker County crematorium that
allegedly failed to properly dispose of
more than 300 bodies.
The original gag order prohibited
almost every person involved with the
case from speaking about it, including
witnesses. However, the modified gag
order only prohibits the defense,
prosecution, court staff, sheriff's
department, Georgia Bureau of


DECISIONS

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


Investigation and the county coroner
from discussing the case.
A number of groups have opposed the
gag orders. Georgia State Rep. Brian
Joyce, who represents the affected area
of Lookout Mountain, wrote a letter
opposing the gag order. "It would be
detrimental to the community to foster
an atmosphere of rumor and gossip,
which surely a gag order will do," noted
Joyce.
Superior Court Judge William Ralph
Hill modified the order to ensure that


family members received adequate
information about the deceased, and that
the public was advised about health,
environment and safety risks. The judge
defended retaining significant
restrictions on speech in the case,
however, in order to guarantee the
defendant, Ray Brent Marsh, a fair trial.
Ken Poston, an attorney for Marsh,
suggested excessive media interest in
the case was contributing to a "carnival
atmosphere" that was "poisoning the
pool of jurors" for the case. (2/11/02)


No gag in Florida cemetery case


FORT LAUDERDALE- A state
appeals court chose not to review
Broward County Circuit Judge Leonard
Fleet's order to open depositions in a
cemetery mismanagement case.
Attorneys for Menorah Gardens &
Funeral Chapels and its parent company,
Service Corp. International, the world's
largest cemetery company, argued that
releasing the evidence might subject
survivors to "emotional harm." They
were also concerned that the release of
information might influence potential


jurors. However, the judge found that the
public had a significant interest in the
case, and that information regarding the
investigation should be released.
Former cemetery workers have
accused Menorah Gardens of improper
burials, including the desecration and
mismarking of graves.
In the wake of the allegations against
SCI, state lawmakers and members of
Congress are calling for increased
oversight of the cemetery system.
(2/9/02-3/15/02)


2 The Brechner Report April 2002







SU UNIVERSITY OF
KrFLORIDA
BrechnerCenterforFreedomoflnformation 3208 Weimer Hall
College of Journalism and Communication PO Box 118400
Gainesville, FL 32611-8400
(352)392-2273
Fax: (352) 392-9173




Dear Reader,

Protecting access to public records and meetings has never been more important. It's also never been
more difficult as the Florida Legislature is considering a record number of exemptions which will drasti-
cally impact on our ability to hold our public officials accountable.

To help inform the public about the importance of public access laws, the Brechner Center for Freedom of
Information and the College of Journalism and Communications at the University of Florida worked with
advertising and public relations students this past semester to create a public service campaign: Keep
Florida in the Sunshine. Our goal is to help focus public interest and concern on protecting the public's
right to government information. The Florida Society of Newspaper Editors, the Florida Press Associa-
tion, and the First Amendment Foundation have all endorsed this effort.

The first part of the campaign is a series of five public service ads. These ads are free and available in
pdf format at the Brechner Center web page http://brechner.org. We're asking the state's media to help in
the campaign. A number of publishers and editors from around the state have started running these ads in
their newspapers. Many newspapers will continue to run the ads throughout the legislative session.

We're at a critical juncture in defending our right to access governmental information. As Thomas
Jefferson said: "A nation that expects to be ignorant and free expects what cannot and should not be."
Join us in protecting our freedoms by helping Keep Florida in the Sunshine.

Sincerely,


Sandra J. Chance

Sandra F. Chance, Esq.
Director, Brechner Center for Freedom of Information
Associate Professor of Journalism


The Brechner Report April 2002







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FIRST AMENDMENT


Abortion rights group sues over license tag fees


MIAMI- Saying it violates the First
Amendment guarantee of separation of
church and state, pro-choice groups are
suing to stop the distribution of fees
from Florida license plates that bear the
"Choose Life" slogan. State law requires
that funds raised through the sale of the
tags go to non-governmental, non-profit
agencies that help pregnant women and
are committed to adoption on a county-

NEWS NOTES

"Sunshine Under

Attack"

Conference
More than 200 journalists, freedom of
information advocates and media lawyers
are expected to attend the "Sunshine
Under Attack" conference, May 3-4, in
Orlando, Fla. The conference will focus
on access to information after Sept. 11 in
Florida, across the country and around
the world. Workshops on libel, privacy
and secret trials will also be held. The
conference is cohosted by the Florida
BarMedia & Communications Law
Committee, the National Freedom of
Information Coalition, the Brechner
Center for Freedom of Information and
the Florida First Amendment Foundation.
For conference information, visit
http://www.nfoic.org.
2001 Joseph L. Brechner Center
for Freedom of Information Award. A
five-month series of articles and
editorials chronicling the battle between
a juvenile court judge, and the Arkansas
Democrat Gazette was the recipient of a
$3,000 cash award from the Brechner
Center. The newspaper was held in
contempt for violating a gag order, but
the Arkansas Supreme Court ruled in
favor of the newspaper, calling the gag
order a "gross abuse of discretion." For
more information on the campaign, visit
the Brechner Center Web site at http://
Brechner.org.
2002 Government-in-the-Sunshine
Manual available. The 2002 Government-
in-the-Sunshine Manual is now available.
The manual is produced every year by
the Florida Attorney General's office to
help citizens understand the state's open
meetings and open records statutes. To
order,call850-222-3518or800-337-3518.


by-county basis.
The pro-choice groups are asking
distribution of the funds be stopped,
because only anti-abortion groups are
eligible to receive the money. Attorneys
for the state have argued that the groups
have no right to sue, since no pro-
choice, adoption counseling service has
been denied access to the funds.
Florida has distributed more than


$500,000 from the distribution of the
"Choose Life" tags. Catholic Charities,
which runs a number of adoption
services across the state, has received
money from a number of counties.
Brigitte Amiri, an attorney for the New
York-based Center for Reproductive
Law and Policy, says the distribution
"demonstrates that the counties prefer
one religion over all others." (2/2/02)


California "Son-of-Sam" statute struck down


SACRAMENTO, CA.- The California
Supreme Court struck down a law that
prevented convicted criminals from
profiting from their crimes by
participating in the creation of books,
movies or other expressive materials
detailing their crimes. Barry Keenan,
who was convicted of kidnapping Frank
Sinatra Jr., challenged the law charging
that it violated his First Amendment
rights. Columbia Pictures bought the
rights to a Los Angeles Times story that
detailed the kidnapping, and Keenan

Web site offers

copyright advice
SAN FRANCISCO In order to help
Web site operators understand their
First Amendment rights in cyberspace,
the Electronic Frontier Foundation,
along with the Harvard, Stanford,
Berkley and University of San Francisco
law schools, has created the Chilling
Effects Clearinghouse, available at
www.chillingeffects.org. According to
the group's homepage, "Anecdotal
evidence suggests that some individuals
and corporations are using intellectual
property and other laws to silence online
users." The organization hopes that
providing information to online Web
site operators will empower them to
fight such actions.
The Chilling Effects Clearinghouse
gathers "cease and desist" notices from
corporations that are attempting to
assert copyrights and intellectual
property rights online. Clinical law
students will then examine the notices,
and help determine whether or not the
online activities constitute fair use.
Later, the group will analyze the notices
received, and issue a report about which
kinds of online activities are most likely
to draw corporate action. (2/25/02)


would have received some money from
the deal, but Sinatra sued.
The California statute was modeled
after New York's "Son-of-Sam" law,
which was passed in order to keep David
Berkowitz from profiting from the story
of his serial killing spree. The U.S.
Supreme Court struck down that law in
1991, calling it overly broad. In a
unanimous decision, the state Supreme
Court said its law was also overly broad,
since it sought to "confiscate all income
from a wide range of protected
expressive works...because those works
include...accounts of the prior felonies."
The Court suggested that the law as
written might have been applied to works
such as The Autobiography of Malcolm
X or John Dean's Blind Ambition, both
of which described past crimes in some
detail. (2/22/02; 3/11/02)


THE
BRECHNER
REPORT



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The Brechner Report April 2002 5





























Florida FOI survey finds knowledge of rights low


At one time, we could say Florida led the nation in
securing the people's freedom of information. But state
legislators appear increasingly contemptuous of these
rights, packing exemption after exemption onto the
Sunshine Laws. Last year, FOI advocates went from
concerned to alarmed when the Legislature exempted
nursing homes' I -

and when the war
c Pon terrorism intensified
By Linda Perry attacks on our right to
know. Two of those
advocates, Terry Hynes, dean of the College of Journalism and
Communications, and Sandra Chance, director of the Brechner
Center for Freedom of Information, agreed on the need for a
public information campaign in support of freedom of
information. The first step was to determine residents' baseline
of knowledge and support.
In a statewide public opinion poll, we found the baseline of
knowledge alarmingly low. While half of the knowledge
questions were about recent and pending exemptions, half were
about how the law basically works. A majority knew records are
presumptively open unless specifically exempted by statute. But
less than half knew requesters do not have to state a purpose for
seeing a record, and less than a third knew requesters do not
have to show identification, be a Florida resident or put a
request in writing.
Support for freedom of information was mixed, but
registered voters were more likely to be supportive than non-
voters. The strongest support was for access to information cut
off by the Legislature last year. Respondents were nearly
unanimous (98 percent) that they should be able to inspect
records revealing nursing homes' quality of patient care. And
while that indicates the Legislature was out of sync with public
opinion when it closed those records, less than half the
respondents knew the Legislature had done so.
Mixed support was most apparent in questions about access
to medical examiners' records. Nearly 70 percent agreed that if
someone they knew died, they should be able to see the autopsy
photos that might explain what happened. But when that right of
access runs counter to the right of privacy, nearly 65% would


tip the scales in favor of privacy. Related is the finding
that 86 percent believe the right of privacy is essential to
democracy.
Opinion was divided on the need to restrict access to
public meetings because of the threat of terrorism.
About 40 percent disagreed it is necessary to curtail
access to meetings in Florida to curb terrorism; 38
Perry percent agreed. Public opinion was still fluid, with more
than a fifth unsure where they stood on this issue.
Support was not as strong for rights of access to public
records as for public meetings. Nearly 56% agreed it is
necessary to curtail access "to some Florida public records
because of the threat of terrorism." But public opinion is fluid
on this issue as well, with more than a fifth unsure about it.
Respondents were concerned about new anti-terrorism laws
in Florida, but again public opinion was fluid. Nearly a third
were more concerned that the state would not "pass good anti-
terrorism laws because of freedom of information and First
Amendment concerns," while a third were more concerned
anti-terrorism laws would restrict these freedoms too much.
Although 78 percent believe freedom of the press is
essential to democracy, it ranked fifth among the six rights
queried, ahead only of the right to bear arms (60.7 percent).
While 83 percent of white respondents found a free press
essential to democracy, only 52 percent of black respondents
did. It's not that black respondents necessarily disagree that a
free press is essential, it's that 38 percent just aren't sure.
Support for a free press and freedom of information starts
with knowledge. The press can help educate readers, viewers
and listeners about these rights as well as the issues and
legislative actions that threaten them. But we must reach out to
future voters as well with lessons on the essential role of a
free press and freedom of information to democracy.

Linda Perry is an assistant professor in the College of
Journalism and Communications at the University of
Florida. Perry and Professor Mary Ann Ferguson directed
the FOI survey, which was funded by the College of
Journalism and Communications at the University of
Florida, with assistance from the Brechner Center. The full
report is at http://wwwj'.,, i ,..i Wj,. /t i i 0/. , /.' 1/




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