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: November 2002
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Bibliographic ID: UF00090012
Volume ID: VID00035
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 11 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom oflI,, .... a,. College ofJournalism and Communications U University ofFlorida
November 2002


Agency allowed

to release names

TALLAHASSEE A Leon County
judge issued an order that allowed the
state Department of Children and Families
to release information about children
missing from DCF custody.
Gov. Jeb Bush and DCF officials
petitioned the court to allow them to
release what are usually confidential
records, saying they hoped the release
would help a statewide taskforce in
tracking down children missing from state
custody.
Judge Nikki Ann Clark agreed to let
the agency release the names, dates of
birth, dates of


disappearance,
and dates last
seen for


ACCESS
RECORDS


missing
children, as well as agency records that
document DCF's efforts to find the
children.
Clark authorized the information
release for 393 children missing as of
September 13. The DCF will have to
return to court to petition for the release
of any additional names, the judge ruled.
The judge also barred the DCF from
releasing other information from the
children's files, including names of
parents or guardians. During a hearing,
she pressed the DCF about how it
planned to protect the privacy of children
in its care.
"In no event shall a missing child's
entire abuse or neglect report be
disclosed to the public," according to the
order.
The Florida Department of Law
Enforcement said it had found 139 of the
393 missing children.
Since the ruling in mid-September, the
DCF has posted the names and dates of
birth for approximately 50 children.
(8/19/02-10/12/02)


Judge keeps Bush hearings open


ORLANDO An Orange County
circuit judge denied a motion to close
public access to Noelle Bush's drug
court proceedings, saying the public's
right to access outweighed a defendant's
right to privacy.
Attorneys for Noelle Bush, daughter
of Gov. Jeb Bush, had asked the court to
close all proceedings involving
her drug case because of A C (
extensive publicity and media O
attention. COU
They argued that Noelle
Bush had an expectation of privacy when
discussing her drug treatment and that
drug courts were not like criminal courts
because they focus on rehabilitation of
the drug offender rather than
punishment.
Judge Reginald Whitehead, 9th
Judicial Circuit, ruled against the Bush
motion, saying that drug court hearings
"were first and foremost a criminal court
proceeding."
Access to the drug courts provides
the public an opportunity to oversee the
effectiveness of the program, according
to the ruling.
"Open access is necessary in order to
demonstrate that the program is worthy


of public support," Whitehead wrote. "It
is vital that the community realize that
drug court works so that its graduates
can become productive members of
society, that jobs will be available to them
and that other community support will be
forthcoming."
In a later hearing, Whitehead
sentenced Noelle Bush to
C E SS 10 days injail for violating
the terms of her drug
RTS treatment program.
In another hearing
related to the case, Judge Belvin Perry Jr.,
9th Judicial Circuit, released the transcript
from a closed hearing regarding an
allegation that drug center employees
found crack cocaine hidden in Bush's
shoe.
During the hearing, Perry ruled that
the center employees could not be made
to cooperate with police, saying the
confidentiality rights of drug patients
were more important than law
enforcement officials' right to investigate
the patients.
Although he closed the hearing, Perry
released transcripts of the hearing with
Noelle Bush's name redacted.
(10/3/02-10/18/02)


Commissioner pleads no contest


PENSACOLA- Suspended Escambia
County Commissioner W. D. Childers
entered a "no contest" plea to one count
of violating the state's Open Meetings
Law.
Childers, who was convicted this
summer on one count of violating the
Government-in-the-Sunshine Law and
acquitted of two others, faced a retrial on
a fourth count after a jury deadlocked on
the charge.
Okaloosa County Judge T. Patterson
Maney refused to overturn Childers'
conviction on the first count. (Brechner


Report, October 2002) He also refused to
move the retrial on the fourth count to
another county, saying that Childers' first
Sunshine trial proved he could get a fair
hearing in Escambia County.
Childers pleaded "no contest" on the
fourth count, avoiding a retrial. Open
Meetings convictions carry at maximum
penalty of $500 and 60 days injail.
Childers has not been sentenced for the
Sunshine violations. Gov. Jeb Bush
suspended Childers and two of his fellow
commissioners for Open Meetings
violations. (9/15/02 10/9/02)







ACCESS RECORDS CONTINUED


Judicial Watch

files suit to see

primary ballots
MIAMI Judicial Watch, a
conservative political watchdog
group, has filed a lawsuit
requesting all the records related
to ballots and voting problems in
Broward and Miami-Dade counties
during the September primary.
Judicial Watch, the NAACP,
the ACLU and other groups, filed
public records requests with
elections supervisors after the
primary, and Judicial Watch asked
for a response within a week.
When Judicial Watch hadn't heard
from officials within a week, they
filed the lawsuits.
Judicial Watch said they
wanted to determine the nature
and extent of voting problems in
the two counties. The group also
wants all communications from
Miami-Dade MayorAlexPenelas
about the election.
Judicial Watch is considering a
civil rights lawsuit against the
counties and/or the state.
"We now have a pattern of
violations of the civil rights of
Florida's citizens," Larry Klayman,
chairman of Judicial Watch, told
the South Florida Sun-Sentinel.
"We want the courts involved so
this won't happen again in the
November election."
The other groups who filed
public records requests did not
jointhe lawsuit. (9/14/02- 9/18/02)


AGO: Expungedrecords mustbe destroyed


TALLAHASSEE- If judge orders a
person's records expunged, the police
department must physically destroy the
records, according to an Advisory Legal
Opinion from Attorney General Bob
Butterworth.
Chief Jim Farley asked Butterworthto
describe what information collected by a
police department may be expunged and
whether a law enforcement agency can
keep expunged records in a sealed file. In
August, the Crystal River Police
Department released arrest paperwork on
school board candidate Don Bates to the
St. Petersburg Times.
A judge had ordered Bates' records
expunged. However, the police
department still had a copy of the arrest
record and released it to the newspaper.


Farley said the police department has
kept a copy of expunged records in a
sealed cabinet, and asked Butterworth if
expunged records could be kept in such a
sealed file.
Law enforcement agencies must
physically destroy all criminal history
information once an order to expunge
records has been issued, according to
the opinion. Criminal history material
includes "identifying descriptions and
notations of arrests, detentions,
indictments, informations, or other formal
criminal charges and the disposition of
those charges."
Criminal intelligence information and
criminal investigative information do not
have to be expunged, Butterworth wrote.
(AGO 2002-68; 10/3/02)


Panel allows immigration hearings to be closed
PHILADELPHIA-The 3rdU.S. "We are keenly aware of the dangers
Circuit Court of Appeals overruled a trial presented by deference to the executive
court and said that the Department of branch when constitutional liberties are
Justice can close automatically at stake, especially in times of national
immigrationproceedings in"special crisis," according to the panel's opinion.
interest" cases where the defendant is "On balance, however, we are unable to
suspected of links to TT conclude that openness
terrorism. The 3rd Circuit C O U R T S plays a positive role in
ruling conflicted with a special-interest deportation
recent 6th Circuit decision, which said hearings at a time when our nation is
that the immigration hearings should not faced with threats of such profound and
be automatically closed. (Brechner unknown dimension."
Report, October 2002) Judge Anthony J. Scirica dissented,
Citing security threats, the three-judge saying that claims of threat to national
panel voted 2-1 to overturn a ruling by a security should be considered on a case-
district court judge that required the by-case basis.
government to prove a need for closure In an earlier case, the 6th Circuit found
on a case-by-case basis. The Justice that the Justice Department policy of
Department argued that these "special closing "special interest" proceedings
interest" cases should be automatically without first holding a hearing to
closed because they represented a threat determine if closure was necessary was
to national security. unconstitutional. (10/9/02)


AGO: Don't permanently remove numbers


TALLAHASSEE- Anewlaw
requiring court clerks to redact social
security numbers and certain financial
records on request does not mean court
clerks should permanently remove the
numbers from original court records,
according to Attorney General Bob
Butterworth.
Rep. Frederick C. Brummeraskedfor
an Advisory Legal Opinion on whether
the new law meant clerks should make
permanent changes to judicial records.
The law requires that clerks redact
social security numbers, bank account


and debit, charge or credit card numbers
from public records if the holder of those
numbers makes a written request.
But those records are not meant to be
permanently removed from the court file,
Butterworth wrote. "The courts of this
state and this office have used the term
'redact' to refer to the deletion of
confidential or exempt material from
public records," he wrote. "In reviewing
such opinions, however, there is no
evidence that permanent destruction of
the original record was contemplated."
(AG02002-69)


2 The Brechner Report U November 2002


DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
!,., 'la,. ,'i reported in any issue as
"on file" may be obtained upon
requestfrom the Brechner Center for
Freedom of Information, College of
Journalism and Communications,
3208 Weimer Hall, P.O. Box 118400,
University ofFlorida, Gainesville, FL
32611-8400, (352) 392-2273.







ACCESS MEETINGS CONTINUED


PRIVACY


Panel: Meetings should have been open Mothers challenge


ATLANTA-The 1 IthU.S. Circuit
Court of Appeals ruled that Miccosukee
Indian Tribe was illegally banned from
advisory meetings on Everglades
restoration.
The three-judge appeals panel
reversed a lower court decision and said
that the Southern Everglades Restoration
Alliance, which advises the government
on the restoration, should provide notice
of meetings and hold them in public
under the Federal Advisory Committee
Act (FACA).
The alliance, which disbanded shortly
after the lawsuit was filed, included
members from the U.S. Army Corps of


Engineers, the U.S. Fish and Wildlife
Service, the National Park Service, state
agency representatives and consultants.
The tribe continued with its lawsuit,
saying the federal agencies were still
following the committee's advice.
The appeals panel said the alliance fell
under the FACA's requirements and that
FACA required the meetings to be open.
It sent the case back to federal district
court in Miami to determine if and how
the Miccosukee were injured, and it
ordered the lower court to deliver a new
ruling based on the appellate court's
findings that the FACA was not
followed. (9/18/02)


Judge closes hearing, issues gag order


BARTOW A circuitjudge imposed a
gag order on participants in a parental
rights case and closed hearings about
the case to the public.
The state Department of Children and
Families is seeking to terminate the
parental rights of Jeanna Swallows.
Swallows left her 2-year-old son, Alfredo
Montes, in the care of baby sitters who
are accused of killing the boy and
dumping his body along Interstate 275.
The state wants to sever Swallows
parental rights to her 4-year-old
daughter, Rheyna.
The Guardian Ad Litem Program asked
that all proceedings involving Reyna be
closed to the public. Cookie Rousos,
director of the guardian program for the
10th Judicial Circuit, said that closing the
hearings would prevent Rheyna from


suffering "further exploitation." The
Ledger of Lakeland opposed the closure
request, but Judge Donald Jacobsen
closed the hearing based on a state
statute that says parental rights
termination cases are confidential.
However, Jacobsen refused to impose
sanctions on DCF for releasing Alfredo's
family history. The records contained
information about Rheyna, Swallows and
otherfamily members. Family attorneys
asked for sanctions against the DCF and
wanted Jacobsen to order the media to
return the records. Florida law allows the
DCF to release abuse reports in cases
where children die as a result of abuse.
Jacobsen said the law does not specify
whether the DCF must remove
information dealing with other people not
involved in the abuse. (7/26/02 8/2/02)


ACCESS RECORDS CONTINUED

Opinion: Petition cards should be open
TALLAHASSEE-Petition cards voter registration materials are exempt
submitted by political candidates during from inspection. However, Butterworth
qualifying are public records and said the petition cards were not a
available for inspection even when they substitute for registration records so
are used by voters as change of address were not exempt from public inspection.
notifications, according to an opinion Richard S. Taylor Jr., a city attorney
from Attorney Bob Butterworth. for Longwood, asked if petition cards
Butterworth issued two Advisory become exempt when voters use them to
Legal Opinions in response to questions change their addresses. Petition cards do
from the supervisor of elections in Duval not become registration records when
County and the Longwood city attorney. they are used to make address changes
John Stafford, Duval's supervisor of because checking the address-change
elections, asked if the petition cards were box does not change the primary purpose
open to inspection once they were of the petition card, Butterworth wrote.
verified by the elections office. Generally, (AGO 2002-63; AGO2002-67)


adoption ad law

TALLAHASSEE- Six mothers filed a
lawsuit challenging a state law that
requires them to publish newspaper ads
that detail portions of their sexual history
before they can give a baby up for
adoption. The women say the law
violates their privacy rights.
The ad is required in cases where the
mother wants to place her child up for
adoption but cannot find the father or
doesn't know the father.
The ads must run four consecutive
weeks in the county where conception is
believed to have taken place. The mother
must list her name, height, weight, hair
color and other features as well as those
of the child.
The mother must name any men she
believes could be the father or describe
their appearances. Two of the six women
who filed a lawsuit in Palm Beach County
were victims of rape. Another was a 12-
year-old girl who had sex with multiple
classmates. A fourth was a mother with a
history of drug abuse who will have to
name all the drug abusers with whom she
had sex.
In July, a Palm Beach County judge
struck down the notification requirement
in cases of forced sexual battery.
(8/15/02-8/19/02)



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BRECHNER
REPORT


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The Brechner Report U November 2002 3





























Florida's law helps ensure open election process


After September's primary, Florida's election
process was the focus of national headlines.
"It's d6j vu all over again," a friendjoked in an
e-mail, referring to the uproar over Florida's role
inthe 2000 presidential election drama. Various
groups are again asking to see the ballots, just
like they did after the 2000 general election. By
requesting to see the 2000 ballots, news
organizations and private groups studied Sandra Chance
The whether
the votes in one of the
tightest elections in
By Sandra Chance & presidential history had
indeed been counted
Colleen Connolly-Ahern correctly.
In the process, the state and its chads took a lot of hits -and
not just from late night comedians. A number of governmental
officials spoke out against the recount, many of them predicting
dire consequences for the presidency in the wake of the ballot
review.
In spite of the predictions of doom by these opponents of
freedom of information, the ballot reviews were completed. And,
democracy as we know it came to no harm. Florida's citizens were
in the enviable position of being able to hold their public officials
accountable for their actions during the 2000 election and beyond
it, thanks in large part to the state's expansive FOI laws.
However, researchers in the Brechner Center wondered how
many other citizens in the U.S. would have the same opportunity.
So the Center studied the public records status of ballots in the
other 49 states. The Center e-mailed the Secretary of State's
offices in the other 49 states and asked three questions: Are
presidential election ballots considered public records in your
state? What about absentee ballots? Could ballots in your state
be accessed by the press, as Florida's were after the Bush/Gore
election?
The results of our survey were shocking. Only Florida and
Texas specify that voted ballots are public records. However,
Texas' statute denies access to those public records for 22-
months, largely nullifying the benefit of making them public
records in the first place. Officials in 13 other states said they
considered both executed ballots and executed absentee ballots


public records, although ballots are not
specifically covered by the law.
Officials in four states indicated that the
status of ballots is unclear under state law. In
Pennsylvania, general election ballots are
specifically exempted from the public records
law, while absentee ballots are not. Officials
from 31 states indicated that neither executed
Colleen general election ballots nor executed absentee
Connolly-Ahern ballots are public records. While confirming
Florida's unique treatment of ballots as public records, the
Center's study yielded another important finding. Despite all the
national media attention on accessing Florida's ballots, many
state election officials initially couldn't give a simple "yes" or
"no" answer to the question of whether or not ballots in their
states would be considered public records.
It's not that these officials were unhelpful quite the
opposite. Many made inquiries with their own state attorneys to
determine the status of the ballots. However, the fact remains
that officials responsible for ballots across the country were
unaware of how their own access laws might impact the status of
those ballots in the case of a recount scenario.
In the movement to reform the election process, most
legislation has focused on technological advances, mandating
funds to upgrade older voting apparatus. The greater issue,
transparency in government, has been largely ignored. The point
of voting reform should not be to avoid recounts in the future.
Rather, it should be to secure for all citizens the right to hold
their public officials accountable for their actions during
elections by ensuring that all voting materials become public
records. Election officials in the 32 states that deny access to
ballots risk losing their credibility in a close election. Without
public inspection of ballots, questions of fairness and legality
could lead to mistrust and divisiveness. If that happens, the
doomsday prophesies about threats to "democratic stability"
may be fulfilled.
Sandra Chance is the director of the Brechner Center for
Freedom ofInformation. Colleen Connolly-Ahern, a Ph.D.
student in the College of Journalism and Communications, was
the Marion Brechner Graduate Research Assistant who helped
with this study.




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