Volume 27, Number 1 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
One suit against
one goes forward
WASHINGTON- One federaljudge
has rejected an attempt by the legislative
branch's General Accounting Office
(GAO) to access records on Vice
President Dick Cheney's energy task
force, but another federal judge has ruled
that Cheney must turn over the records
to the Sierra Club and Judicial Watch.
The GAO, the investigative arm of
Congress, has repeatedly requested
records on the
ACCESS participants in
and the topics
RECORDS of the energy
force without success. David Walker, the
GAO's comptroller general, filed a lawsuit
against the White House to get the
records a first in GAO history.
Judge John D. Bates, citing separation
of powers issues, dismissed the lawsuit.
"No court has ever before granted what
the comptroller general seeks," Bates
wrote. The comptroller general "does not
have the personal, concrete and
particularized injury required" necessary
to make the case.
The Sierra Club and Judicial Watch, a
public interest organization, also filed
lawsuits seeking similar information on
the people who participated in the energy
U. S. District Judge Emmet G. Sullivan
ruled that Cheney must turn over the
records or issue a clearer explanation of
why they should be withheld from the
The administration appealed the
decision, and a federal appeals court
delayed a deadline set by Sullivan for
release of the documents. The appeals
court will set a date to hear arguments in
the case. (10/20/02 12/10/02)
Judge lifts restraining order
TAMPA A county judge has lifted harassed him by asking "unwarranted
a temporary restraining order that kept a questions." Ross claimed he cannot sleep
televisionreporterfrom comingwithin or work and is afraid to go outside.
300 feet of a man with multiple drunk- Judge Eric Myers granted the
driving arrests, temporary injunction and refused to
Steve Andrews, an investigative rescind it until after a more formal
reporter with WFLA in Tampa, featured hearing. Attorneys for Andrews asked
Tampa resident Minh Ben Ross in series the 2nd District Court of Appeal to strike
of stories about DUI arrests, down the restraining order, but the court
Andrews and a cameraman followed would not overturn the restraining order.
Ross out of court, asking him questions. Myers heard arguments on Dec. 19
The cameraman then videotaped Ross and then lifted the temporary restraining
driving despite a suspended driver's order and dismissed the case, saying that
Ross requested a restraining order,
saying that Andrews stalked and
Ross had not proven that violence or
stalking was involved.
Oak Hill commissioners charged
OAK HILL The State Attorney's charged with talking privately about a
Office has charged two city state grant application, the appointment
commissioners with violating the state's of city officials, and licensing of a
Open Meeting Law by restaurant. These matters were
talking about city matters in A C C E SS later brought before the City
private. T Commission.
State Attorney John MEETINGS "It is a surprise to me,"
Tanner filed civil Sunshine Jackson told the Daytona
violation charges against Robert L. Beach News Journal. "I didn't
Jackson, the 74-year-oldformermayor, maliciously do anything wrong. However,
and Ronald Mercer, 64. if I did something out of stupidity, I'll
The charges carry a potential $500 take the blame."
fine. Mercer lost his commission seat
Prosecutors said the two men admitted during the September elections and
to discussing city business in private on refused to comment on the charges.
several occasions. The two men are (11/14/02-11/15/02)
Bunnell businessman files lawsuit
Richard filed a lawsuit against the City of
Bunnell, claiming the city violated the
state's Public Records Law.
In August, Richard requested an
audiotape from a meeting of city police
officials and any written records from the
meeting. Richard says the records were
not released and city officials did not cite
any exemption explaining why the
records could not be released so he filed
Sid Nowell, an attorney representing
the city, told the News Tribune of
Bunnell that the city had "no objection"
to the records request and would be
happy to turn over the tape to Richard.
"It sort of slipped through the cracks,
that's what happened," Nowell said.
ACCESS RECORDS CONTINUED
Panel rules material released in error
MIAMI The 3rd District Court of
Appeal has reversed a ruling that allowed
photographs and statements in a battery
case to be released.
Then-Miami Mayor Joe Carollo was
charged with battery after he allegedly
threw a box of tea at his then-wife Mari
Carollo. WPLG-TV Channel 10 requested
a copy of photographs taken of the
alleged injuries and a statement made by
Mari Carollo. (Brechner Report, July
The Miami Police Department
originally denied the request, saying the
materials were exempt from disclosure
because they were part of an ongoing
criminal investigation. The TV station
sued for access to the records, saying
that a discovery motion filed by the
mayor to see the statement and the
photographs made the items public court
The mayor withdrew his discovery
motion, but Circuit Court Judge Bernard
S. Shapiro ordered the release of the
photographs and statement.
The appeals panel, in a 2-1 decision
issued more than a year after the
requested materials were released to the
press, ruled that Shapiro had erred
because the discovery motion was
withdrawn and the materials were never
given to the mayor's attorney. Because
they were never given Carollo, the
materials should have remained exempt
from public disclosure, according to the
The charges were later dismissed, but
Carollo lost his bid for re-election.
Judicial Watch files two records lawsuits
MIAMI The watchdog group
Judicial Watch filed lawsuits against
Gov. Jeb Bush and other state officials in
an attempt to get records about the
state's dealings with Cuba and records
related to the Florida Department of
Judicial Watch filed requests for state
records concerning Cuba, Cuban-
Americans, Cuban-American and
Hispanic voting patterns, Cuba-U.S.
trade policy, Fidel Castro and Elian
Gonzalez. The organizationalso
requested copies of the communications
exchanged between Gov. Bush and the
When it did not get the requested
records, Judicial Watch filed a lawsuit,
seeking a court order to have state
officials turn over the documents.
Spokeswoman Jill Bratina told the
Associated Press that the state made
several attempts to contact Judicial
Watch to get the organization to narrow
its requests. "Their request is so
sweeping and broad that it would be
impossible to respond in any systematic
way," she said. "You're talking about
something that goes back to 1998 and
covers six areas of extreme interest in this
state and would have quite a bit of e-mail
exchange and documentation. It would be
impossible within a two-week period to
The group filed a second lawsuit
against Bush, then-Attorney General Bob
Butterworth, and the DCF, saying the
DCF failed to fulfill a records request
made in August for the number of
children under state care who are
considered missing. The request also
asked for documents related to the
resignation of DCF director Kathleen
Kearney and to the death and
disappearance of two children under
state supervision. (10/17/02).
Newspaper sues not-for-profit hospital board
BAKER COUNTY- The Baker
County Press filed a lawsuit to get
records from the Baker County Medical
Service Inc., a not-for-profit organization
that manages a hospital and a nursing
The newspaper filed a lawsuit once
before to access records, but a judge
denied the paper access. However, since
the 1994 lawsuit was decided, several
similar lawsuits filed by newspapers
against not-for-profit boards have been
successfully appealed and other not-for-
profit hospital boards have been ordered
to operate in the Sunshine.
In light of these other court cases, The
Press has filed another lawsuit against
Baker County Medical Services.
"We have been consistent in our
position that the public has a right to
know what is going on with any entity
that leases land and other assets from a
public hospital authority," said Publisher
records are private
TAMPA A state appellate court has
upheld a lower court ruling that lease
agreements and other documents in the
possession of private developers do not
have be released.
The Weekly Planet sued to access
leases and other documents being held
by Concorde Companies and Tampa
Westshore Associates in relationship to
the development of the International
Plaza shopping center.
International Plaza is being developed
on land owned by the Hillsborough
County Aviation Authority. The
authority leased the raw land to
Concorde who in turn leased the
property to Tampa Westshore for
development of the shopping center.
While the lease between Concorde
and the aviation authority was a public
record, the paper wanted to see the lease
agreement between Concorde and Tampa
Westshore and other leases that were
part of the development.
The companies refused, saying the
leases were private business matters. A
trial court judge agreed, and the 2nd
District Court of Appeal upheld the
decision to keep the secondary leases
private. The appeals panel ruled that the
aviation authority did not delegate any
governmental duties or a government
project when it leased the land to
"In the final analysis, the fact that
this private enterprise is situated on land
leased from a governmental authority
does not transform Concorde's
agreement with other private entities into
public record documents," according to
the decision. (11/2/02- 11/3/02)
Copies of case opinions, Florida
Attorney General opinions, or
!,.s, 'i,,,. '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.
2 The Brechner Report January 2003
ACCESS MEETINGS CONTINUED
Appeals court says board cannot prevent taping of meetings
CLEARWATER-The Pinellas did not want the meetings filmed because judge, James Case, ruled that SunCam
County School Board cannot bar a they felt the taping would interfere with had a right under the state's Open
private company from filming public the bid review process, but allowed Meetings Law to tape the meetings and
meetings, a state appeals court panel SunCam to tape after the company sued that the school board should pay the
ruled, for access to the meeting. company's legal fees. The appeals panel
SunCam, a private company, tapes SunCam sued to get the school board upheld Case's ruling, saying the board
school board meetings when the board to pay the company's legal fees. A judge violated the Sunshine Law in denying the
discusses bids for building projects, and denied the request and said the company taping request. The appellate court sent
then sells the tapes to potential bidders, had no right to film the meeting. SunCam the case back to the trial court to award
Pinellas County SchoolBoard officials brought the case to trial, and a second attorney fees and court costs. (11/16/02)
AGO: Disabled may take part electronically Hospital requests
members of a city board can participate
and vote electronically during meetings
as long as a quorum of other members is
physically present at the board meetings,
according an opinion from interim
Attorney General Richard E. Doran.
Miami Beach City Attorney Murray
Dubbin requested the official Advisory
Legal Opinion asking if disabled members
of the city's Barrier-free Environment
Committee, a board designed to tackle
issues related to accessibility and the
disabled, could participate in meetings
without being physically present.
"This office has been reluctant to
extend the participation in public
meetings of public officials by electronic
means to situations other than those
involving a serious medical condition
and the presence otherwise of a quorum
at the public meeting place," Doran
wrote. However, he said that physically
disabled members of the Miami Beach
committee could participate and vote via
electronic means as long as a quorum is
physically present at the designated
meetingplace. (AGO 2002-82; 12/11/02)
Suit claims fire district violated Sunshine Law
NORTH NAPLES- A community
member has amended her lawsuit against
North Naples Fire District to claim that
officials violated the Sunshine Law when
they negotiated a settlement with former
Fire Chief James Tobin.
Tobinwas set to receive a $300,000
settlement, but resident Janet Vasey filed
a lawsuit against the district to stop
payment of the settlement. She amended
her complaint to say that the payout
should be voided because officials
violated the Open Meetings Law in
negotiating the amount of the settlement
with Tobin. The lawsuit claims that Ed
Maguire, chair of the fire commission,
held a closed-door meeting with Tobin,
his attorney and the fire district's
attorney and settled on the price of the
ACCESS RECORDS CONTINUED
Judge refuses to close juvenile's hearing
FORT MEYERS A Collier County expose very sensitive psychological
judge refused to close the hearing for a
17-year-old who is serving time in a
juvenile detention facility forkilling a
3-year-old she was baby-sitting.
The attorney and family of Sarah
Sciandra requested the news media be
barred from a hearing on whether
Sciandra should be released. Sciandra
was convicted of the 1998 beating death.
Her attorney argued that media
coverage of the hearing could adversely
affect Sciandra's mental health.
"Allowing media access to the hearing
would serve no purpose other than to
treatment notes to the general public,
which would cause harm to the child,"
attorney David M. Goldberg argued.
Judge Lawrence Martin refused the
request and kept the hearing open to the
public and the press. "The print and
electronic media shall have the same
access to the courtroom as previously
existed in this case and as is usual in
other cases," Martin said.
Following the hearing, Martin refused
to release Sciandra and returned her to
the maximum security juvenile facility.
ruling on openness
Hospital Inc., which operates Florida
Hospital DeLand, asked a circuit court
judge to determine whether it must
continue to operate under the state's
Public Records and Open Meetings laws.
Memorial, whichformerly leased the
hospital, bought the hospital outright.
A court ordered Memorial to operate
in the Sunshine while it was leasing the
hospital because the company was acting
on behalf of the West Volusia Hospital
Authority, a governmental agency that
used to run the hospital.
The company claims it should be
exempt from state Open Meetings and
Public Records laws once it purchased
the hospital outright. (9/18/02)
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The Brechner Report January 2003 3
Survey: Fear influencing views of First Amendment
Fear can short-circuit freedom.
From Abraham Lincoln's suspension of civil liberties
during the Civil War to the internment of Japanese-
Americans in World War II to the McCarthyism of the
1950s, our nation sometimes has lost sight of its
commitment to freedom. Fear does that.
Little wonder, then, that security concerns and civil
liberties have been both discussed and debated since
the terrorist attacks of Sept. 11. We've all had to ask Ken P
The ourselves some tough questions.
1 .1) Is our society too free for its own
B ack Ia e good? Can we be free and safe?
Are we willing to trade some
By Ken Paulson personal freedoms for greater
personal security? At the First Amendment Center, we conduct
an annual survey of Americans' attitudes toward the First
Amendment. This year, we collaborated withAmerican
Journalism Review to take a closer look at how the nation sees
the First Amendment after Sept. 11.
During the five years in which we've conducted the survey
with the Center for Survey Research & Analysis at the University
of Connecticut, we've seen willingness by many to exchange a
little liberty for less interpersonal conflict. There's been growing
support to limit expression when it upsets or insults others. In
the wake of Sept. 11, Americans are afraid of more than just being
offended. The results of the 2002 survey suggest that many
Americans view these fundamental freedoms as possible
obstacles to the war on terrorism.
That's not to suggest a monolithic response to these core
First Amendment values Americans are of multiple minds
about it. While a majority indicate that they respect the First
Amendment, a significant percentage seem inclined to rewrite it.
Among the key findings:
For the first time in our polling, almost half of those
surveyed said that the First Amendment goes too far in the rights
it guarantees. About 49% said the First Amendment gives us too
much freedom, up from 3 9% last year and 22% in 2000.
The least popular First Amendment right is freedom of the
press. More than 40% said newspapers should not be allowed to
freely criticize the military about its strategy and performance.
About half of those surveyed said government should be
able to monitor religious groups in the interest of national
security, even if that means infringing upon religious
Clearly, the terrorist attacks have taken a toll.
Principles that sound good in the abstract are a little less
appealing when your greatest fear is getting on a plane.
It's not entirely surprising that many Americans have
had second thoughts about the First Amendment. After
ulson all, the First Amendment was designed to protect
minority viewpoints and faiths. That canbe difficult to remember
when there's an overwhelming public call for unity.
Still, there are signs that Americans do appreciate the fruits of
First Amendment freedoms, particularly access to information. At
a time of great national unease, we all want to know more about
the challenges we face. About 40% of those surveyed said they
have too little access to information about the war on terrorism,
compared to 16% who said there's too much. Forty-eight percent
of those surveyed said there's too little access to government
records, compared to 8% who said there's too much.
While many Americans said that we have too much freedom
and that the nation's news media have too many privileges, they
understand and appreciate the value of news and information.
The goal for all who support First Amendment freedoms should
be to demonstrate how the free flow of ideas enriches our lives
and in fact bolsters our collective security. Information gives us
the power to make reasoned decisions at a difficult time.
When President Bush addressed the nation last Sept. 20, he
cautioned us that "freedom and fear are at war." "The terrorists
hate our freedoms: our freedom of religion, our freedom of
speech, our freedom to vote and assemble and disagree with each
other," the president said. In other words, the terrorists view our
personal liberties with contempt and see them as a weakness.
The challenge for all Americans today more than ever is
to truly embrace the freedoms of the First Amendment and show
just how strong we really are.
Ken Paulson is executive director of the First Amendment
Center with offices in Arlington, Va., and Nashville, Tenn. For a
complete copy of the annual survey go to
http://www.freedomfor;,,i ,, i, -.ilh,.'
document. asp?documentlD 16840.