Title: Brechner report
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 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: December 2002
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00036
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 12 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,,r .-..i... 0. College ofJournalism and Communications U University ofFlorida
December 2002

HomelandSecurity Citizens approve two-thirds vote


ActweaKens
federalFOIA
WASHINGTON- The Homeland
Security Act, which passed Congress
shortly after the midterm elections,
weakens the federal Freedom of
Information Act and criminalizes agency
leaks of business-provided information.
The Homeland Security Act
authorizes the government to gather
information from businesses about any
weaknesses in the country's "critical
ACCASS infrastructure"
AC C S and makes that
RECORDS information
automatically
exempt from the federal Freedom of
Information Act. Government employees
who leak this business-provided
information could face up to a year in
prison and/or up to a $5,000 fine.
Additionally, the businesses are
protected from civil liability if the
information reveals wrongdoing and are
immune from antitrust lawsuits for
sharing the information with the
government and each other. Sen. Patrick
Leahy (D.-Vt.) called the act the "most
severe weakening of the Freedom of
Information Act in its 36-year history."
"This would hurt and not help our
national security, and along the way it
would frustrate enforcement of the laws
that protect the public's health and
safety," Leahy said. (11/19/02).


Florida's voters approved an Although a higher number of votes now
amendment to the state constitution that is needed to pass an exemption, it may
will require a two-thirds vote in the make little practical difference in the
legislature in order to pass a new Public number of new exemptions. (Brechner
Records or Open Meetings exemption. Report, Annual FOIReport, July 2002)
The state legislature placed the While applauding the new
proposed amendment on AC C E SS C amendment, Brechner Center
the ballot following the 2002 I k.A..d 3 for Freedom of Information
session. Approximately 76 RECORDS & Director Sandra Chance
percent of Florida voters strongly encouraged the
approved the amendment. MEETINGS media and the public to
"We were able to give continue actively supporting
the voters an opportunity to vote to open government by closely monitoring
continue Florida's tradition of open legislative proposals. "In the last four
government," state Rep. John Carassas legislative sessions, exemptions passed
told the St. Petersburg Times. Carassas with such overwhelming support that
was instrumental in the bill's creation, only one would have failed to have
Previously, an exemption only had to sufficient votes under a two-thirds rule,"
win a simple majority of the votes. Chance said. (11/6/02)


Two Kissimmee commissioners charged
KISSIMMEE-Two city met in private and discussed actions they
commissioners inKissimmee were would later take in public meetings. One
charged with violating the state's Open of the items they allegedly discussed was
Meetings Law. giving money to Kissimmee's sister city
Wendell McKinnon, recently re- inPeru.
elected to the city If convicted, the two face
commission, and Bob A C C E SS up to 60 days injail and a fine
Makinson, who stepped of up to $500. The civil charge
downfrom the commission MEETINGS carriesamaximumfine of$500,
due to term limits, were and the two commissioners
charged with a misdemeanor Open could be assessed attorneys' fees if they
Meetings violation. The State are found to have violated the law. "All
Attorney's Office also filed civil charges I'm guilty of is trying to help somebody,"
against the two men. McKinnon told The Orlando Sentinel.
McKinnon and Makinson reportedly (10/24/02-11/10/02)


State attorney charges Welaka mayor with Sunshine violation


WELAKA The State Attorney's
Office has charged Mayor Gordon Sands
with violating the state Open Meetings
Law.
Sands is accused of meeting with a
town council member in March 2000 in
private to discuss upcoming votes they
would take at a public meeting.
Reportedly Sands met with former


council member Shirley Gillins to discuss
nominating another council member as
council president.
Sands also is accused of having town
clerk Rena Peterson contact Gillins and
instruct Gillins to make the council
president nomination.
The State Attorney's Office filed civil,
not criminal, charges against Sands.


Prosecutors also filed a civil charge
against Steve Richardson, a former
custodian of records, for reportedly
refusing to let two people inspect a
public record.
Civil charges are punishable by a fine
of up to $500 and if the mayor is found to
have violated the law, a judge also can
assess attorneys' fees. (10/9/02)







ACCESS RECORDS CONTINUED


AGO: Plans can be

released for bidding
TALLAHASSEE- While Floridalaw
now exempts building plans from public
release, the government can disclose and
distribute building plans as part of the
competitive bid process, according to a
recent Attorney General Advisory Legal
Opinion.
Betsy S. Burden of the Northern Palm
Beach County Improvement District
requested the opinion from then-
Attorney General Bob Butterworth.
The 2002 legislature amended the
Public Records Law to exempt from
disclosure all "building plans, blueprints,
schematic drawings, and diagrams..." for
state-owned or operated buildings. The
statute allows agencies to release
building information to people performing
work on a building.
"The exemption does not prohibit the
disclosure of this information; rather, the
information is exempt from and not
subject to the mandatory inspection
requirements" of the Florida Public
Records Law, Butterworth wrote.
Government agencies can release the
information to prospective bidders, but
the prospective bidders in turn should
keep the information exempt from public
inspection, he wrote.
(AGO 2002-74-11/4/02)


Democrats sue to get Bush records
TALLAHASSEE-The Florida constitutional amendment and records of
Democratic Party sued Gov. Jeb Bush to business dealings.
get public records that the Democrats Bush spokeswoman Elizabeth Hirst
say Bush is refusing to release, said the governor's office had already
Bob Poe filed the lawsuit in Leon complied with several records requests
County Circuit Court. He reportedly made and would fill all of the remaining records
numerous public records requests requests. "With the volume of public
including requests for appointment records requests received and the
schedules, travel records and briefing complexity of some of these requests, the
materials. Poe also requested fiscal data, gathering of information is a process that
spending records, contract information takes time," Hirst told the Tallahassee
and revenue projections. Democrat. Within a few days of the
Other records requested included lawsuit's filing, Bush's office began
communication with school releasing some of the requested records.
superintendents on the class size (10/12/02-10/17/02)

Paper files public records lawsuit against police


PENSACOLA- The St. Petersburg
Times is suing the Pensacola Police
Department to get information about
weapons and training.
The Times requested public records
from the department about how many
military-issue weapons it owns, who
carries the weapons and what training
police officers have received on the
weapons.
The paper is looking specifically at
information on grenade launchers,
automatic machine guns and rifles. The
department's SWAT team carries some of
the weapons in question.


"The material we're seeking is clearly
public record," said Rob Hooker, deputy
managing editor of the Times.
The Pensacola Police Department has
refused the request, citing exemptions on
security information passed following the
Sept. 11,2001, terrorist attacks. City
Attorney Rusty Wells argues that police
surveillance techniques, procedures and
security plans would be compromised if the
records were released.
"The statutes are indeed to protect this
kind of inventory and information from
public record," Wells told the Pensacola
NewsJournal. (10/9/02-10/10/02)


FDLE charges former state employee in public records scheme


TALLAHASSEE- The Florida
Department of Law Enforcement has
charged two men in connection with a
scheme involving improper payment for
public records.
Former state Department of Insurance
(DOI) employee Jamie Glenn Payne has
been charged with three counts of


unlawful compensation or reward for
official behavior, and grand theft. His
father-in-law, Theodore Charles Hale,
was charged with grand theft and
criminal conspiracy.
While working for the DOI, Payne
improperly processed public records
requests, having the requester pay his



Resident ordered to pay mayor's attorney fees


WELAKA The First District Court of
Appeals affirmed an administrative
judge's ruling that a Welaka resident
must pay $9,000 in attorney fees to
Mayor Gordon Sands.
Caron Speas filed an ethics complaint
against Sands after a March 1999
election.
Speas said that the mayor ordered a
town clerk to delay the release of public
records and overcharged her for the
records.
The state Commission on Ethics ruled
in December 1999 that the complaint was


without merit.
It also ruled that Speas filed the
complaint to hurt Sands reputation and
knew some of the information in the
complaint was false.
Sands filed a counter complaint,
saying Speas damaged his reputation,
and asked for reimbursement of his
attorney's fees.
An administrative judge ruled for
Sands and determined the cost of the
fees. The First District Court of Appeals
filed a per curiam decision, affirming the
administrativejudge' s ruling. (10/16/02)


father-in-law for the records, according to
the FDLE. The payment Hale and Payne
received for the public records is estimated
to exceed $20,000. If convicted, Hale could
face a maximum of 20 years in prison and up
to $15,000 in fines. Payne, if convicted,
could face a maximum of 25 years in prison
andup to $20,000 infines. (10/24/02)


DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
!,.i, ,il,. ,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 of Florida, Gainesville, FL
32611-8400, (352) 392-2273.


2 The Brechner Report U December 2002







ACCESS MEETINGS CONTINUED


Gulf Breeze facing six lawsuits over sale Judge decides arts


GULF BREEZE- Six lawsuits were
filed against a water authority formed by
the cities of Gulf Breeze and Milton.
The Florida Water System Authority,
created by the cities in September, was
formed in order to purchase Florida
Water System, a private company that
controls water systems in 152
communities.
The lawsuits seek to stop the sale and
allege in part that the authority's
decision to buy the private company is


void because it violated the state's Open
Meetings Law, which require the
meetings be public and advanced notice
be given. "The 'public hearing' failed to
comply with basic procedural due
process in that the affected 'public' was
not given any reasonable notice,
contrary to the Sunshine Law and the
hearing was too distant from affected
person, and, thus, the hearing was not
'public,' according to one of the
lawsuits. (10/23/02-11/22/02)


Investigation clears Crystal River officials


CRYSTAL RIVER- An investigation
into the actions of some of the members
of the Crystal River City Council revealed
insufficient evidence to prove the state
Sunshine Law was violated, according to
the State Attorney's Office.
Council member SusanKirk
questioned eight instances involving
fellow council members Kitty Ebert, John
Kendall and Bonnie Taylor and Mayor
Ron Kitchen. She wrote a letter to then-
City Attorney Clark Stillwell, who did not
want to bring the charges to the State


Attorney's Office. Kirk then filed a
complaint directly with the State
Attorney's Office.
Assistant State Attorney Mark
Simpson investigated each of the eight
claims. In a memo to the city, Simpson
said there was conflicting testimony or a
lack of corroboration in each of the eight
incidents.
He also wrote that some of the
incidents, even if corroborated, would
not have been violations of the state
Sunshine Law. (9/14/02-10/22/02)


Businessman sues four Cocoa Beach leaders


COCOA BEACH- Businessman
Charles Hebert filed a lawsuit against the
mayor and three city commissioners,
claiming they violated the state's Open
Meetings Law.
"In the last three or four years, I have
come to believe that some of our
commissioners were at times working
outside of the Sunshine Law when
making decisions that affect the city,"
Hebert said. "And I believe that some of
them are taking directions from non-
elected officials.
Mayor Janice Scott said there was no

ACCESS RECORDS


conspiracy and no Open Meetings
violations. In addition to Scott,
commissioners Eric Fricker, PatDavis
and Tony Sasso were named in the
lawsuit. The lawsuit, filed inBrevard
County Circuit Court, said the officials
violated the law when they met with City
Attorney Skip Fowler and
representatives from Cape Canaveral
Hospital. According to the lawsuit, the
meeting was not publicly advertised, no
minutes were kept and the primary public
entrance to the meeting room was
locked. (9/26/02-10/5/02)

CONTINUED


City attorney agrees to pay newspaper's fees


PINELLAS PARK The city attorney
has agreed to pay the St. Petersburg
Times $1,500 inlegalfees stemmingfrom
a public records dispute.
The Times sued the city last summer
after officials failed to release personnel
files and other documents. A judge
ordered the city to release the records or
release a statement explaining why the
city believed the records shouldn't be


released.
City attorney Ed Foreman responded
by saying the city had not refused to
release the records and that he was in the
process of reviewing the documents to
determine if any of the information was
exempt. Pinellas Park turned over the
requested documents. Foreman has
agreed to pay $1,500 in court costs and
lawyers' fees forthe delay. (9/28/02)


council is private
ORLANDO The United Arts of
Central Florida is a private entity and not
subject to Florida's Public Records and
Open Meetings laws, a judge ruled.
The arts group had operated as a
private foundation but was challenged
by one of its former committee members,
Bruce McMenemy. (Brechner Report,
August 2002) The executive committee
chose to go to court to get a declaration
of whether it is a public entity.
McMenemy argued that United Arts
receives a third of its budget from state
and local governments, which it then
hands out in the form of grants. By
acting as a distributor of public arts
money, United Arts was playing the role
of a public agency and should follow the
state's open government laws, he
argued. McMenemy also filed a lawsuit
to force United Arts into operating in the
Sunshine and to recover his court costs.
However, following a hearing on the
request and the countersuit, Judge
Joseph P. Baker of the Orange County
Circuit ruled that United Arts is a private
entity and does not have to operate in
the Sunshine. "I don't see it," Baker said.
"There is room for a great deal of debate
on this. But I don't think it is an agency."
(9/21/02)


SII IE
BRECHNER
REPORT


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The Brechner Report U December 2002 3





























Winning series helps open records on bad doctors


Editor's Note: This is an edited excerpt of the
acceptance speech of Geoffrey Gevalt, the managing
editor of The Burlington Free Press and the editor of the
paper's award-winning Code of Silence series.
The Burlington Free Press was thrilled to win this
year's Joseph L. Brechner award. It was an unexpected
surprise, an affirmation of our long-standing commitment
to investigative work, to pushing as hard as we can to
get at the truth. I want to acknowledge several people Geoffre
The who deserve credit for
this award. First and foremost is
Uk kK Bthe principle writer of the series
on Lois Tarczewski: Stephen
By Geoffrey Gevalt Kiernan.
I can tell you that Stephen is a junkyard dog. And that is a
high compliment. For those of you who have never encountered
canines guarding a second-hand automotive parts
establishment, I can tell you this: They are generally wiry and
underfed; slightly mean but susceptible to kindness and
absolutely unwavering in their hell-bent desire to sink their teeth
into your thigh. Stephen qualifies admirably. And if I walk with a
slight limp it is because I remain his editor.
I also want to thank two newsroom leaders: Former Free Press
Editor Mickey Hirten and current editor Mike Townsend. Also,
publisher Jim Carey and Metro Editor Ed Shamy. I have one final
acknowledgment: Lois Tarczewski. It was the story of her death
that brought to life a terrible problem in Vermont that the state
was not adequately disciplining bad doctors and that medical
consumers had no way of knowing whether their doctors were
any good.
This story came about because Stephen read a brief in a
competitor's newspaper. That short story outlined how a doctor
who had several charges against him was allowed to stay in
practice. Stephen wanted to examine the record of the Vermont
Board of Medical Practice and determine its record of
enforcement. What he found was that it was very difficult to find
out any information about doctors and enforcement. He also
found out that not many doctors had been disciplined.
We decided early on to try to find one patient involving one
doctor to try to show readers the scope of the problem.
The difficulties in finding that one patient were enormous. We
only had general information on several disciplined doctors and


Iy


vague, one-sentence descriptions of the bad outcomes
that had landed them in trouble in the first place. We
had no names, no specifics; hospital records were
confidential; medical practice board records were
confidential; and no one in the medical community
wanted to talk about these doctors or cases.
As we found out soon enough, even outside legal
cases were often confidential because court records -
Gevalt or settlement agreements were sealed.
Through great shoe-leather reporting, Stephen found
the name of Lois Tarczewski and several others.
What then followed was an exhaustive search for documents,
for information about the Medical Board, for knowledge about
the system of regulation in Vermont and about the law. After
nine months of work, the series was published.
Lois' story was this: She had slipped and injured herself at
work. She went to the local surgeon who sent her down to
Dartmouth-Hitchcock Medical Center for further tests. At
Dartmouth, a highly competent surgeon saw her and
recommended he operate on a portion of her spine.
Her hometown surgeon wanted to be the one to operate. He
spoke with Lois, reassured her, convinced her to choose him
instead. She relented. It was easier. It was closer to home. She
didn't want to hurt his feelings.
Something went very wrong during the surgery. She was, for
a time, a quadriplegic. She never regained full use of all her limbs.
She lived for 10 years in incredible pain. And then she died. Had
she known from the beginning that her doctor was inexperienced
and had experienced bad outcomes before, her husband said, she
would have gone elsewhere.
Stephen wrote several early drafts. We combed over every
sentence, every fact. We had it reviewed by lawyers numerous
times. In the end it was solid, and it stood the test of criticism.
Stephen followed by writing about another doctor who also
had numerous patients with bad outcomes.
The State Legislature responded quickly. Efforts to reform the
Medical Practice Board and to open up the public information
gathered steam. Eventually the legislation sailed through the
Legislature and was signed by the governor, a medical doctor.
Ultimately, our work had an impact on the state, on doctors
and on medical consumers. It established that more information
is better than less.




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