Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00032
 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: August 2002
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00032
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 8 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,,i.-C..i... 0. College ofJournalism and Communications U University ofFlorida
August 2002

Judge upholds Earnhardt Act in Broward challenge

BROWARD COUNTY-Despite of "John D
sharp questioning of government County anc
attorneys at a hearing in March, Judge Moe du
Larry Moe, 17th Judicial Circuit, in July asked the s
ruled for the state of Florida
and upheld the public
records' exemptionfor A C C E SS
autopsy photographs. RECORDS
The Orlando Sentinel and

the South Florida Sun-
Sentinel challenged the Earnhardt Act in
a lawsuit separate from The Independent
Florida Alligator's lawsuit. The two
papers requested access to photographs

Alligator loses
Earnhardt appeal
DAYTONA BEACH -A three-judge
panel of the 5th District Court of Appeal
upheld a lower court ruling and declared
the public records exemption for autopsy
photographs constitutional.
The Earnhardt Act, named after late
race car driver Dale Earnhardt, exempts
from public release autopsy photographs
without a court order. The law applies
retroactively to all autopsy photos. The
Independent Florida Alligator, a
student-run newspaper, sued to get
access to Earnhardt's autopsy
photographs, but Judge Joseph G. Will,
7th Judicial Circuit, ruled against it.
The appeals court upheld Will's ruling
and said the Earnhardt Act scl nis an
identifiable public purpose, is no broader
than necessary to meet that public
purpose, and was enacted in accordance
with the constitutional and legislative
requirements." The appeals panel also
ruled that the retroactive provision of the
law was constitutional.
Tom Julin, an attorney for the
Alligator, said he plans to appeal the
ruling to the state Supreme Court.
(7/13/02; Campus Communication Inc.
v. Teresa Earnhardt et al., case no.

oe" corpses in Broward
I were denied access.
ring a March hearing had
tate solicitor general: "What
can you do to convince me
to save this legislation?"
Moe had also commented at
one point during the hearing:
"I'm not sure the

Constitution protects hurt
feelings." (BrechnerReport, July 2002)
However, Moe upheld the act and
based much of his ruling on the opinion
of Judge Joseph G. Will, 7th Judicial

Circuit, who denied the Alligator access
to racer Dale Earnhardt's autopsy
"The right to privacy, the right to
freedom of press and speech, the right of
the people to have access to public
records and the right to be left alone are
important rights to all who live in this
country," Moe wrote. "They are not
absolute rights, however, and they
frequently clash, as they did in this case.
The legislature has indeed applied a
proper balancing of these rights in
enacting this legislation." (7/4/02)

Commissioners found guilty of

Sunshine I_
County Commissioner W.D. (
found guilty of one count of
the state Open Meetings law.
Childers, 68, is former
state senator. He was
accused of breaking the
state's Sunshine Law by
discussing public business
with fellow commissioners in
four separate occasions. The
him guilty of breaking the law
discussing redistricting with f
commissioner Terry Smith on
phone call with Supervisor of
Bonnie Jones.
He was declared not guilty
other Open Meetings counts,
charge that he discussed a co
landfill contract over a meal a
Whataburger restaurant. The
unable to reach a verdict on a
Childers, Smith and commit
Mike Bass and Willie Junior \
indicted for misdemeanor vio
the Open Meetings law, which
as part of a larger investigation
several land deals. Childers, I



scambia Junior were indicted on additional felony
Childers was charges, including money laundering and
violating bribery, in connection with the land
deals. As part of a plea bargain with
prosecutors, Junior agreed to
A C S plead guilty to racketeering,

A C CS extortion and bribery charges
MEETINGS and testify for the state. Bass
is scheduled to go to trial at
private on the end of September. Smith faces trial in
jury found mid-July. Childers' retrial on the fourth
by Sunshine Law charge is scheduled for
yellow late August.
a speaker In sentencing Childers, County Judge
Elections T. Patterson Maney, 1 st Judicial Circuit,
could impose a maximum $500 fine and
Son two order Childers to spend up to 60 days in
including a jail. Childers also could lose his state
)unty pension and his seat on the Escambia
t a County Commission.
jury was County CommissionerTerry Smith
fourth was also found guilty on two counts of
violating the Sunshine Law, including his
issioners Whataburger meeting with Childers.
vere Assistant State Attorney Bobby Elmore
lations of said the difference between Childers'
h surfaced acquittal and Smith's conviction in the
n into Whataburger case was that Smith did all
3ass and the talking. (6/19/02-7/21/02)


Aisenberg family
TAMPA Lawyers for Steve and
Marlene Aisenberg filed a public records
lawsuit against the Hillsborough County
state attorney. The Aisenbergs' 5-month-
old daughter, Sabrina, disappeared in
1997 and has not been found. While the
Aisenbergs have never been charged
with Sabrina's disappearance, the two
were charged in federal court with

E-mail question

may head to

Supreme Court
LAKELAND The 2nd District Court
of Appeal modified its order in the Times
Publishing Co. v. City of Clearwater
case to certify a question to the state
Supreme Court. In May, the appeals
court ruled two Clearwater employees
could decide whether or not e-mails sent
between them were public records. The
St. Petersburg Times had requested the
e-mails, which were stored on city
computers. (Brechner Report, June 2002)
The appeals court rejected the idea
that e-mail stored on a city computer
automatically becomes a public record.
In July, the court modified its ruling to
certify to the state Supreme Court as a
matter of great public importance the
question of whether e-mails received by
government employees at government-
owned computers are automatically
public records.
Alison Steele, an attorney
representing the St. Petersburg Times,
said the case revealed a "big hole" in the
state's public records act. (7/4/02; Times
Publishing Co. v. City of Clearwater,
case no. 2D01-3055)


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

conspiracy and making false claims.
Those charges were dismissed last year
and a federal judge in the case criticized
the handling of the case by the
Hillsborough County Sheriff's Office.
The Aisenbergs are preparing to file a
lawsuit against the Sheriff's Office and
have requested records from the
investigation into the disappearance.

LAND O'LAKES -Two LandO'Lakes
High School freshman were suspended
when they admitted they were the
creators of an Internet site that listed
students and teachers they hated. The
list included more than 60 students and
five or six teachers, according to the
school's principal, Max Ramos.
The principal suspended the two girls
until the administration could determine
whether or not the site posed a danger to
students and faculty.
The girls later removed their Web site,
and issued an online apology. "We want
to apologize for frightening anyone with
The List or The Website," they said.
"This was not our intention. We're sorry

Commentator wins
for talk show host Dick Farrel, rejecting
claims that he defamed retired teacher
Larry Ferrara.
Ferrara sued the WPBR-AM 1340 talk
show host for allegedly calling him a
homosexual and a pedophile during
Farrel's weekday morning show. Farrel,
who said he never used Ferrara's full
name on the radio, denied that he said
anything to damage Ferrara's reputation.

Last year, State Attorney Mark Ober
refused the records request, saying that
the case was an ongoing investigation
and not subject to the state's open
records law. Ober wrote a letter later that
said that another state attorney, who
investigated the Hillsborough detectives
involved in Aisenberg case, has the
records. (6/06/02)

Arts organization requests ruling

ORLANDO- The executive committee
of United Arts of Central Florida decided
to ask a judge to decide whether or not
the art group is a public agency and
subject to the state's Sunshine Laws.
The group authorized a $10,000
expenditure to file an action for
declaratory judgment. Until now, United
Arts has operated as a private, nonprofit
However, Bruce McMenemy, who
serves on United Arts' standards and

allocations committee and whose wife
may bring a wrongful-dismissal suit
against the group, threatened to take
United Arts to court based on the
state's Open Meeting and Public Records
laws. The group hopes to find a way to
keep operating as a private entity in order
to protect the anonymity of its donors.
Until the court case is resolved, the
organization will hold its meetings in
public but continue to withhold many of
its records. (7/9/02)

to the parents of the students on the list
if they thought they're [sic] children were
going to be harmed."
"The List was made to vent our anger.
We are constantly picked on at school
and this was a way to express how we
feel about it," the students explained.
American Civil Liberties Union
attorney Bruce Howie said without a
threat to do harm, the students' rights to
free speech should protect the Web site.
However, he also noted that schools are
governed by posted rules of conduct.
Pasco County rules specifically prohibit
"harassment of school staff or students,
including actions, verbal comments or
writtenmaterials." (5/9/02- 5/10/02)

defamation suit
Circuit Judge Thomas Barkdull ruled
that Ferrara, once a candidate for the
school board, was a limited public figure,
forcing Ferrara to prove that Farrel's
allegedly defamatory remarks were made
with either a reckless disregard of the
truth or with knowing falsity.
The jury took 25-minutes to decide the
case and rule for Farrel, who represented
himself throughout the second half of the
trial. (5/24/02- 5/31/02)

2 The Brechner Report August 2002

files suit to obtain records


Students suspended for "hate list"


Orlando toughens open meetings requirements

ORLANDO- Orlando Mayor Glenda
Hood has released tough new guidelines
for city government officials who wish to
discuss government business. The new
guidelines end the practice of meeting at
restaurants and private clubs to discuss
public business.
Hood issued the guidelines after an
Orlando Sentinel investigation found
that the mayor and city council members

Citizen sues Port
PORT RICHEY- A citizenwho
accused Mayor Eloise Taylor of Port
Richey of stifling public participation at
council meetings has filed a lawsuit
claiming Sunshine Law violations.
In his lawsuit filed in Pasco-Pinellas
Circuit Court, John Ward King asked a
judge to stop Taylor from cutting off
public comment at meetings and asked
the judge to void a decision the city
council made regarding an investigation

Flagler commis
BUNNELL- Two Flagler County
commissioners, Jim Darby and Pat
McGuire, were charged with violating the
state's Open Meeting Law. It is the first
time that a Flagler County official has
been charged with a Sunshine Law
The pair was charged with a civil
infraction for discussing their votes on a
noise ordinance during a lunch break.
(Brechner Report, July 2002). The
prosecutors recommended the highest

government Web site is facing two
lawsuits from private computer
businesses. GroupThink, a Tallahassee
company, filed an intellectual property
lawsuit in Leon County Circuit Court that
accused government officials of stealing
the company's idea for a user-friendly
online state budget. The state began
releasing its budget in electronic form in
January 2000 onwww.flgov.com.
Anna Mattson and Sherri Taylor of
GroupThink said their concept,
keystrokes, and program features for a
phonebook-sized state budget on the
Internet were stolen during meetings

had met 208 times since 1996 at private or
semi-private locations. The investigation
also found that notice for these meetings
oftenwas minimal, and written summaries
of the meetings required by the Open
Meetings Law were not filed in a quarter
of the cases.
The new rules require that members of
the City Council and advisory boards
meet only in public buildings. Public

Richey mayor
into the building department.
When the council tackled the building
department probe which was not on the
agenda they debated the issue and
voted to hire an outside investigator
without taking public comments and then
moved to the next agenda item.
King prepared the lawsuit himself,
calling the failure to allow public
comment "illegalbehavior." (6/30/02 -

sioners fined
possible civilfine, $500. A criminal
charge could have resulted in a sentence
of up to 60 days injail. State Attorney
John Tanner said, "The evidence reveals
a clear violation of the law. But the
violation was spontaneous and careless,
rather than planned or contrived. The
commissioners did not receive any
money or other benefit."
Both Darby and McGuire chose not to
contest the charges, and each paid a fine
of $500. (6/7/02-6/15/02)

they had with government officials
beginning in 1998.
Brent Gregory, a Winter Springs
computer consultant, filed a lawsuit
asking for the shutdown of the state's
MyFlorida.com site and repayment of
lost income. Gregory accused the state of
stealing information, page design and the
overall concept for MyFlorida.com from
his privately held StateofFlorida.com
Web site, which he began developing in
1998. Gregory also claims that
MyFlorida.com prevented visitors from
returning to his Web site by using
software programming called
"mousetrapping." (6/3/02- 7/15/02)

notice of meetings must be posted at City
Hall and on the city Web site at least 48
hours in advance of meetings. In
addition, council members must now file
complete summaries of discussions
within 5 days of meeting.
"I think it's important that there is
never any doubt in the public's mind that
we are operating in the sunshine," Hood
said. (6/4/02)

Citizens group
challenges closed
DRC meetings
of a Wal-Mart Supercenter filed a lawsuit
to stop construction on the store,
claiming the Development Review
Committee violated the Open Meetings
Law. The Coalition for Anti-Urban Sprawl
and the Environment (CAUSE) opposes
the building in Spring Hill onU.S. 19. The
lawsuit, filed in Hernando County Circuit
Court, claims that the permit issued to
Wal-Mart was discussed by the review
committee during a closed meeting in
violation of the state's Sunshine Laws.
Kent Weissinger, assistant county
attorney for Hernando County, said the
committee meetings are not open because
the committee only gathers information
for the county staff and does not make
any decisions. (7/6/02)

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The Brechner Report August 2002 3


Businesses sue state over Web site

Too many secrets
The late U.S. Supreme Court Justice Potter Stewart
once wrote, "when everything is classified, then nothing
is classified."
His statement has been interpreted to mean that
secrecy has its place, but when taken to excess, it
trivializes what truly needs to remain secret. Most
importantly, as the 1997 Congressional Report of the
Commission on Protecting and Reducing Government
The Secrecy declared,

Bac Page secrecy has
significant consequences
By Mark S. Zaid for the national interest
when, as a result,
policymakers are not fully informed, government is not held
accountable for its actions, and the public cannot engage in
informed debate."
President Bush has done more than simply declare a war
against terror. He has launched a systematic attack against
government openness. In fairness, it should be noted that
historically, Republican administrations have generally been
more conservative toward openness than their Democratic
counterparts. Still, this administration has taken so many steps
against openness in such a short period of time that, at this pace,
it's likely to break records for closed-government initiatives. The
Bush administration appears inclined to reverse many of the
trends initiated by the Clinton administration.
Consider just a few of its recent steps:
The White House refused to disclose records relating to
Vice President Cheney's energy task force, including
discussions involving meetings with Enron officials. Public
interest organizations as well as Congress were denied
access. Two federal courts have ordered records to be
released, and the General Accounting Office, Congress'
investigative arm, has taken the unprecedented step of
suing the White House.
President Bush invoked executive privilege in December
2001 to protect the confidentiality of prosecution
documents concerning the FBI's handling of mob
informants in Boston in the 1960s.
President Bush issued an executive order in November
2001 limiting the disclosure of past presidential records just
as information concerning President Reagan and Vice
President George H.W. Bush was to be made public.
The president awarded the Secretary of the Department of
Health and Human Services classification authority for the
first time in the agency's history. Prior efforts sought to
reduce the number of officials with classification authority.

Attorney General John Ashcroft issued an
agencywide memorandum on Oct. 12, 2001,
essentially advising federal agencies to lean toward
withholding information whenever possible, reversing
Attorney General Janet Reno's openness policy
issued in 1993.
Many have questioned the extent to which the tragic
events of Sept. 11 have driven the Bush
administration's disclosure policies. Actually, the
5. Zaid genesis for these policies can be found long before
Sept. 11. Last April, President Bush told the American
Society of Newspaper Editors that things were going to be
different during his watch.
Of course, no thoughtful advocate for open government
would challenge, for example, a president's need to hold private,
national security conversations in the Oval Office. However, the
tone the president has set for himself and his cabinet officers has
been one of ever-expanding concentric circles of secrecy.
Sept. 11 did have a justifiable impact on some disclosure-
policy decisions. Certain potentially sensitive documents,
particularly dealing with infrastructure vulnerability
assessments, have been removed, at least temporarily, from
government Web sites. Some steps, regrettably, appear as no
more than efforts to keep the public in the dark concerning
certain governmental decisions.
Moreover, further assaults on government openness are
forthcoming. For example, President Bush will soon announce a
proposal for a new executive order governing classification. The
existing Executive Order 12,958 was issued in April 1995 by
President Clinton and resulted in the declassification of more
than 800 million pages of documents.
Two specific provisions that are in danger of repeal are the
prohibition against reclassifying previously declassified
information and the automatic declassification of records 25
years or older.
It will take time to assess fully the damage the Bush
administration has caused in the realm of open government.
Although we live in perilous times, we must remain vigilant that
national defense is not achieved at a price that sacrifices
citizens' rights to live in an open society.
Mark S. Zaid is the executive director of The James Madison
Project, www.jamesmadisonproject.org, a Washington, D.C.,
noiprotit organization that seeks to reduce secrecy in government and
promote government accountability. Reprinted with permissionfrom
the March 27, 2002 edition of The National Law Journal. 2002 NLP
IP Company. All rights reserved. Further duplication without
permission is prohibited.


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