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: June 2002
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Bibliographic ID: UF00090012
Volume ID: VID00030
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 6 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofl rI, .n..i. .., U College ofJournalism and Communications U University of Florida
June 2002


Four county
commissioners
indicted on open
meetings violations
PENSACOLA Four of the five
Escambia County commissioners were
arrested on charges of bribery,
racketeering, theft, and violating the
state's Sunshine Law. Gov. Jeb Bush
suspended Mike Bass, former state
senator W.D. Childers, Willie J. Junior
and Terry
ACCESS Smith, and
must now
MEETINGS appoint four
interim
commissioners to serve for those
arrested.
The commissioners were indicted
along with local real estate agent Joe
Elliot in conjunction with an ongoing
grand jury investigation into
questionable land purchases. Elliot
reportedly made a gross profit of
$700,000 by selling two properties to
the county. Elliot's wife, Georgeann,
was also indicted.
All four commissioners were
charged with multiple misdemeanor
counts of violations of the state's Open
Meetings Law. Each misdemeanor count
is punishable by a maximum of 60 days
in jail and/or a $500 fine.
According to witness statements, the
four commisisoners talked about public
business in telephone conversations and
in front of employees. In taped
statements, witnesses said that the
commissioners discussed public
business over a lunch of country-fried
venison in W.D. Childers' district
office.
The cases have been assigned to
Okaloosa County Judge T. Patterson
Maney in order to avoid any conflict of
interest on the part of Escambia County
judges. Jury selection is set to begin
June 24. (5/1/02-5/3/02)


Attorney's fees more difficult to collect
WASHINGTON- The D.C. Circuit were originally requested, but before a
Court of Appeals decided that agencies judge had ruled on the request.
that comply with a freedom of Some FOI advocates worry that this
information request before a ruling removes the only
court order compels the A C practical sanction available
release of the records are A C C E SS to requesters under the FOI
not liable for the FOI Act. While the law does
requester's attorney's fees, RE]CORDS provide for the discipline of
even if the requester has federal employees who are


already filed suit to get access to the
records. The ruling is based on a case
filed by the Oil, Chemical and Atomic
Workers International Union against the
United States Enrichment Corp., a
government corporation that produces
enriched uranium, in an attempt to get
records related to the government's
attempts to privatize the company. The
agency finally provided the records
sought by the union two years after they


"arbitrary and capricious" in processing
FOI requests; in reality, that provision is
rarely invoked. Robert Becker, the
Sunshine Project Chair for the Society
of Professional Journalists in D.C., said,
"The net effect is that agencies send the
message that it's going to cost you big
bucks to get this info, and we're going to
prevent you from recouping those costs.
That's a pretty powerful disincentive to
litigating FOI cases." (5/15/02)


Marion Brechner honored for FOI work


Mrs. Marion Brechner was honored by the National Freedom of I,,r r.1.o. r.., Coalition at its
annual convention in Orlando, Fla., May 3. Mrs. Brechner was recognizedfor her
outstanding commitment and unwavering dedication to freedom of ;r,,'.. ri.., and the work
of the Brechner Center for Freedom of I -r,, ..a... -. The Center was named for Marion's late
husband, Joseph L. Brechner. The Brechners' generous gifts fund the endowment for the
Brechner Center, the Marion Brechner Citizen Access Project and five graduate student
fellowships in the College of Journalism and Communications at the University of Florida.
Above, Tom 0 'Hara, NFOIC president and managing editor of Cleveland's Plain Dealer,
thanked Marion on behalf of the national access community.







ACCESS RECORDS CONTINUED


Employees decide

if e-mail is private
CLEARWATER- Florida's 2nd
District Court of Appeal upheld the trial
court's ruling that two Clearwater city
employees could decide whether or not
e-mails sent between them were public
records. A reporter from the St.
Petersburg Times requested the e-
mails, which were retrieved by the
workers on city computers. According
to city policy, the two were allowed to
sort through and determine which were
public records. Those messages deemed
public records by the employees were
given to the Times on CD-ROM.
The Times sued for access to the
rest of the e-mails. However, Judge
Chris Alterbernd said, "private or
personal e-mail simply falls outside
the current definition of public
records," because it is "not made or
received pursuant to law or
ordinance." He rejected the idea that
when e-mail is stored on a municipal
computer it becomes a public record.
Judge Alterbernd found no problem
with the city allowing the employees
to act as official records custodians.
Custodians are required by law to
determine which records are public.
"Nothing in this provision limits who
the elected officer may designate ... to
review requested records." Finally, the
opinion noted, "We make no
assumptions about the specific
government employees who were the
target of the Times' investigation.
However, a government employee
who spends most of the day working
on private matters and personal
correspondence or viewing websites
for personal entertainment can
currently respond to a public records
request by declaring that the records
of it are not public." (5/10/02)

DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
legislation reported in any issue as "on
file" may be obtained upon request from
the Brechner Center for Freedom of
I,, r.-. i .. -, College of Journalism and
Communications, 3208 Weimer Hall,
University of Florida, Gainesville, FL
32611-8400,


Federal courts try online record access


WASHINGTON Eleven federal
courts are participating in a pilot
program that will provide public access
to criminal case files via the Internet.
Some of the courts participating in the
pilot program had begun providing such
online access, but the practice was
suspended by the Judicial Conference of
the United States, the policy-making arm
of the federal court system, in the wake
of the Sept. 11 terrorist attacks.
The courts participating in the pilot
program include the 8th U.S. Circuit


Court of Appeals and 10 district courts:
the Southern District of California,
District of Columbia, Southern District
of Florida, Southern District of Georgia,
District of Idaho, Northern District of
Illinois, District of Massachusetts,
Northern District of Oklahoma, District
of Utah and Southern District of West
Virginia. The records will be available
through the courts' Public Access to
Court Electronic Records system, or
PACER, at a cost of 7 cents per page.
(5/8/02-5/13/02)


FOI request for animal records denied


WASHINGTON Saying that animals
kept by the National Zoo have a
"physician-patient" relationship that
protects their privacy, Lucy Spelman,
director of the National Zoo, denied a
freedom of information request from
The Washington Post, which sought
information on the death of a giraffe.
In an e-mail to Washington Post
reporter D'Vera Cohn, Spelman wrote,
"Certainly the privacy rules that apply to
human medical records, and the
physician-patient relationship, do not


apply in precisely the same way to
animal medicine at a public institution
like the National Zoo. But we believe
they do in principle." Spelman also cited
the public's inability to understand the
autopsy data and the possible disruption
of scientific research in her FOI denial.
The National Zoo, which is a part of
the Smithsonian Institution, claims it is
not an executive branch, and therefore
not subject to the FOI Act. Nevertheless,
it asks for interested parties to file FOI
requests for information. (5/6/02)


Sunshine battle continues in Chiefland


CHIEFLAND The Chiefland City
Commission voted to use taxpayer funds
to finance the personal defenses of four
city commissioners and the city
manager named in a Sunshine lawsuit, as
well as their defense in a separate recall
lawsuit. The suit names the
commissioners Kelby Andrews, John
Hart, Betty Walker and L.R. Hunter as
well as City Manager Earl Cannon as
individuals, as well as in their official
capacities.
Commissioner Sunshine Bayard
claims the other four commissioners


violated the Sunshine Law during the
debate over dissolving the Chiefland
Police Department. After the suit was
filed, the other commissioners voted to
begin impeachment proceedings against
Bayard.
The commission voted to authorize
Cannon to secure joint legal
representation for the five. However,
this raised additional open meetings
questions. City Attorney Lindsey Lander
is reviewing whether or not the five can
legally meet with their lawyer in private.
(4/18/02-4/25/02)


Harris e-mails sought for fundraising
SARASOTA The 750,000 e-mails running for the same seat, obtained the
received by Katherine Harris in the days list, since he thought some of those that
following the 2000 presidential election e-mailed Harris might be interested in
have become an important source for supporting her competition.
fundraising information in the District Chester Flake, a Republican
13 congressional race. The state charges challenger, originally said that Harris
$170 for copying the e-mails, which are was exploiting her role in the 2000
public records. Harris' campaign election by using the e-mails. Since that
requested a copy of the list, and offered time, he has also requested the public
correspondents a place on her e-mail records, but has not said how he plans to
list. Later, Brad Weigle, a Democrat use them. (5/4/02)


2 The Brechner Report U June 2002











place there and extends the burden over
the course of days, weeks or months."
The discussions in question extended
over a period of 22 days. Butterworth
said Internet meetings might pass
Sunshine Law muster, however, in cases
where discussion occurred at a
particular time, and the public was
permitted direct participation in the
discussion.
The Peace River Basin Board is a


Mayor cleared in Sunshine case
KEY WEST -Monroe County Mayor the Sunshine Law."
Sonny McCoy will not face charges in The state attorney general's office
connection with an allegation that he upheld the decision of the Monroe
violated Florida's Sunshine Law when he County state attorney's office. However,
had a private discussion with County Attorney General Counsel Patricia


Commissioner Murray Nelson during a
Tourist Development Council meeting.
Ann Henson, a reporter for the Upper
Keys Reporter, reported the incident to
the Monroe County state attorney's
office in November.
Henson reportedly warned McCoy to
be careful about what he was discussing
with Nelson, since the matter was likely
to come up for a vote. McCoy later
admitted that he replied, "To hell with


Gleason sent a seven-page letter to
Monroe County State Attorney Mark
Kohl, offering guidance on conduct for
commissioners. Gleason said, "It is
recommended that board members
conduct all discussions, regardless of
how brief or insubstantial, that concern
matters on which foreseeable action
could be taken by the board, in a public
meeting of that board held in compliance
with the Sunshine Law." (4/17/02)


WASHINGTON- The U.S. Supreme
Court chose not to strike down the Child
Online Protection Act, sending it back
to the 3rd U.S. Circuit Court of Appeals
in Philadelphia for further review. The
mixed decision, written by Justice
Clarence Thomas, held that COPA's use
of a "community standard" to identify
material harmful to minors did not in
itself render the law substantially
overbroad. The decision continues the
injunction on the law that has kept the
government from enforcing the law
since 1999.
COPA's use of a community standard
to determine what is harmful to minors
drew fire from civil liberties groups,
which contend that the law will
ultimately have the effect of granting a
"heckler's veto" to the most
conservative communities in the U.S. In
the sole dissenting opinion, Justice John
Paul Stevens said, "Community
standards become a sword, rather than a


shield. If a prurient appeal is offensive
in a Puritan village, it may be a crime to
post it on the World Wide Web."
Thomas defended the idea of an
Internet community standard. "The
publisher's burden [to abide by a
community standard] does not change
simply because it decides to distribute
its material to every community in the
nation." Justices Sandra Day O'Connor
and Stephen Breyer both supported
some kind of national community
standard.
The plurality decision illustrates the
Court's divide on the issue of free
speech rights and pornography. Justices
William Rehnquist and Antonin Scalia
concurred completely with Thomas'
decision. Justices Anthony Kennedy,
Ruth Bader Ginsburg and David Souter
said in a separate opinion that while
COPA is likely unconstitutional, the
lower court needs to provide a
"comprehensive analysis." (5/13/02)


ACCESS MEETINGS CONTINUED


Bulletin board discussions violate


The Brechner Report U June 2002 3


BROOKSVILLE Attorney General
Bob Butterworth says that online
discussions by the Peace River Basin
Board violate Florida's Sunshine Law.
In a letter to Sonny Vergara, executive
director of the board, Butterworth said,
"The use of the bulletin board for
discussions of the basin board places a
burden on the public to constantly
monitor the site in order to participate
meaningfully in the discussion taking


Sunshine Law
subdivision of the Southwest Florida
Water Management District and
considers water issues affecting Polk,
Hardee, Highlands, DeSoto and
Charlotte counties. The board provided
public access computer terminals for
citizens wishing to participate in the
bulletin board discussions to allow
public participation in the decision-
making process without taking up time at
monthly board meetings. (4/24/02)

LIBEL

Miami radio battle
MIAMI WPOW-FM (Power 96)
has filed a $10-million defamation
suit against upstart competitor
WPYM-FM (Party 93). The suit
claims that the new station is trying
to "steal listeners and advertisers" by
airing "fraudulent" advertisements
that exaggerate the number of
commercials Power 96 plays.
Party 93 launched its new name
and format in January 2002. Mike
Disney, general manager of Party 93,
admits that from the beginning its
commercials have targeted market-
leader Power 96 because "they were
the station playing the most
commercials." Disney says that Party
93 has been accurately counting the
number of spots on Power 96.
(4/17/02-4/19/02)


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BRECHNER
REPORT



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FIRST AMENDMENT

Supreme Court sends COPA back to lower court





























Journalists must strive to preserve the light


The Arkansas Democrat-Gazette received the 2001
Brechner Award for its handling for its efforts to fight a
gag order efforts that ended in a court room victory. I
think it is important to reflect on what we learned from
fighting that case through the Arkansas court system,
and what may
The lie ahead for
press freedom
Back Page generally. Griffin
By Griffin Smith First, an obvious
but easily overlooked
point: the outcome of the case depended on the actions of
judges. We're glad we prevailed. But we would be wise not to
congratulate ourselves too much on a victory. The Arkansas
Supreme Court decision was very narrow, on very specific
factual grounds. But it was still judges, not simply the law, that
rescued us. If four judges had found against us, what recourse
would we have had. A writ of certiorari to the U.S. Supreme
Court? Would they even take a case involving a $100 fine?
Maybe. Maybe not. But even there, it would still be up to
judges.
I never cease to be astonished by journalists who say of
some governmental outrage, "They can't do that it's against
the First Amendment." As journalists we must understand that
the First Amendment, by itself, won't save us. In practice what
matters is what judges do with it. And over time, judges' actions
don't exist in a vacuum. They are shaped by public sentiment. In
the end it's public sentiment, not just or even chiefly law, that is
the foundation on which our liberties rest.
I stress this point because journalists are all too prone to
seem arrogant and dogmatic about our special rights. We think
we're safer than we are.
We seem to be entering an era when privacy claims are
overtaking libel actions as the greatest menace to press
freedom a historic shift. Public sentiment is changing and
judges have begun to reflect that. We have noticed that since
Sept. 11 the cherished old verities about civil liberties are no
longer perceived quite as securely in the public square.
Judge Richard Posner, a respected jurist on the U.S. Court of
Appeals for the 7th Circuit said this about the legal landscape
after Sept. 11: Civil liberties "should be curtailed, to the extent


that the benefits in greater security outweigh the costs
in reduced liberties." He added that Congress and the
courts should "weigh the costs as carefully as the
benefits."
We make a great mistake if we just deplore such
statements and go on thinking we're safe in our 110-
story constitutional tower repeating our mantra of "the
public's right to know."
Smith As public sentiments change, our old explanations
aren't guaranteed to work anymore. We cannot just
lecture the public into submission. It is public sentiment that
will ultimately protect us, not the other way around. We have to
work within it to secure what is important.
The recurring imagery of press freedom is light. Journalists,
according to William Woo, the former editor of the St. Louis
Post-Dispatch, have a "sense of themselves as keepers of a
noble flame." The development of print journalism in 18th
century England, said Mitchell Stephens in History of the
News, "was like turning on a light: dragon sightings got farther
from London as the light grew." And there was that climatic
passage in Tom Stoppard's great play s.rIt and Day. It's set in
fictionalized post-colonial Africa but it's really about
journalism. A brash young reporter is senselessly killed in the
bush. The woman who loved him angrily confronts the man who
was with him at the front, an older journalist who managed to
get away. Why is journalism worth dying for, she demands to
know, bitterly reciting the kind of absurd excesses that flourish
in the tabloid press. The old newsman listens, and then he says:
I've been around a lot of places. People do awful things to
each other. But it's worse in places where everybody is
kept in the dark. It really is. Information is light.
Information, in itself, about anything, is light. That's all
you can say really.
As our world becomes a darker place and public sentiments
change around us in ways we cannot even foresee, our
responsibility is to notice, to listen, and to do as best we can
those things that preserve the light.
Grittin Smith is the executive editor of the Arkansas
Democrat-Gazette




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