Volume 27, Number 2 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
Court rules city
CHIEFLAND A circuit courtjudge
has ruled that the Jan. 17, 2002 meeting
of the Chiefland City Commission
violated the Florida Constitution and
the Florida Sunshine Law.
Circuit Judge Robert P. Cates issued
the ruling on Nov. 26, saying the
meeting was illegal and all official acts
taken at the meeting are null and void.
At its Jan. 14 regular meeting, the
commission voted to suspend its police
chief search process to conduct
negotiations for a sheriff's department
city police ACCESS
functions. A CCESS
vote at the MEETINGS
illegal Jan. 17 meeting changed the
decision to continue the search while
investigating other options.
Commissioner Sunshine Baynard
filed suit claiming the vote should be
void because proper notice had not
been given for the meeting. The city
argued they provided 16 or 17 hours
notice on the evening of Jan. 16 for the
10 a.m. meeting, but Baynard said actual
time of notice was only a few hours
because notices had been posted after
business hours in only a few locations.
University of Florida Law Professor
Joe Little represented Baynard in the
case and believes the order will become
an important part of Florida case law.
"I think it's important because of the
determination that the amount of notice
time was unreasonable," Little said.
"This case helps establish a baseline."
committee has dropped a proposed
change to Florida court rules that would
have given judges greater discretion in
limiting the use of still and video cameras
in the courtrooms.
The change was proposed
in October by the Florida Bar A CC
Rules of Judicial A C
Administration Committee, COUR
but was abandoned late
November after much criticism from open
government advocacy groups.
The proposed plan would have
amended a court rule concerning media
coverage of trials and would have
allowed judges to prohibit members of
the media from photographing or taping
jurors without first holding a hearing as a
means of protecting jurors.
criticism, 20t Judi
executed search w
The new order;
public to request e
fmittee was supposed to have
recommendation to the
reme Court by the end of last
the issue was dropped.
is were mixed among local
"It's a balancing act
'E SS between the public's right
to know and the privacy of
TS jurors," said Circuit Judge
Shawn Briese. "What goes
on in a courtroom is open to the public.
It's part of the way our republic
Under current Florida law, courts allow
cameras in the courtroom so long as their
presence does not deprive criminal
defendants of a fair trial or otherwise
adversely affect judicial proceedings.
reverses warrant order
)A In response to The new order, issued Dec. 17, states
cial Circuit Chief Judge that anyone wanting to see an executed
1 has rescinded an search warrant should apply for access
er that made access to with the Clerk of the Courts.
warrants more difficult. "The Clerk of the Courts shall
allows members of the thereupon disclose these records unless
executed search the State Attorney's Office or the law
warrants that are kept on enforcement agency involved
file with the Clerk of the A C C E SS in the search warrant
Circuit Court. contends that it is part of an
Blackwell issued his RECORD S ongoing criminal
original order in May when investigation," Blackwell's
confusion arose about the procedure for order states.
filing a search warrant once it is "I welcome the judge's reconsidering
executed. In clarifying the procedure, his initial order and putting the search
Blackwell went further in ordering that warrants where they're most easily
members of the public must receive a accessible by the public that is, with
signed court order before gaining access the Clerk of Courts," Naples Daily News
to the records. editorPhilLewis said. (12/28/02)
ACCESS MEETINGS CONTINUED
commissioners agreed to appeal a
ruling by a 5th Circuit Court judge,
who found the Development Review
Committee had violated state open
meeting laws by closing its meetings to
Committee members also agreed to
postpone DRC meetings until the 5th
Circuit Court of Appeal makes a
The decision the commissioners are
appealing involves the Coalition for
Anti-Urban Sprawl and the
Environment, Wal-Mart Corp. and the
On Nov. 22, Judge John Booth ruled
that a permit issued to Wal-Mart
through the DRC to build at a new
location was valid, despite having been
considered during meetings that were
illegal. Judge Booth further ordered
the DRC to hold future meetings in the
The county asked for a stay of
Booth's order, which would allow the
DRC to continue holding closed
meetings. The DRC will not meet while
the stay is pending, officials said.
LEE COUNTY The Lee County
School Board voted unanimously to
create an appointed Procedural and
Financial Audit Committee to examine the
school district's financial decision-
making procedures in an effort to boost
community taxpayer confidence. But it
Renewed challenge to Earnhardt law
WEST PALM BEACH Two Tribune wish to use such photos for teaching
Co. newspapers have filed an appeal purposes.
challenging the constitutionality of a The law follows the death of NASCAR
Florida law restricting the access of racer Dale Earnhardt and was championed
autopsy photographs. by his wife, Teresa. The law makes it a
The two newspapers, the Orlando felony for unauthorized people to view or
Sentinel and the South Florida Sun- copy autopsy photos and carries a fine of
Sentinel, filed a brief in the 4t District $5,000.
Court of Appeal challenging the Family The appeal is one of two pending court
Protection Act which a circuit judge challenges to the law. The
upheld last July. A C C E SS student-run Independent Florida
The law protects families I -iJ i Alligator that covers the
from seeing relative's RECORDS University of Florida appealed to
autopsy photos published or the Florida Supreme Court in July
placed on the Internet. But newspapers of last year.
argue the law is too broad and would The Court has not decided whether it will
restrict the use by medical examiners who hearthe appeal. (12/13/02)
Parent denied child's library record
PORT ORANGE When James Paris librarians that revealing registration
wanted to know which overdue books his information or circulation records to anyone
10-year-old son checked out from the other than a patron, even parents, is illegal.
library before paying the late fines, he "We know that explanation won't satisfy
discovered the FBI had a better chance all parents," Knievel said. "But because of
of finding out. Florida state constitutional protections of
In 1978, the Legislature exempted privacy of individuals, it's about the best we
public library records from Florida can do."
Sunshine Law requirements. The State Sen. EvelynLynn, R-Ormond
exemption did not make a distinction Beach, will push for an amendment to the
between adults' and children' records privacy law next Legislative session, which
and unintentionally prevented parents will allow parents to view library records of
from viewing their child's library records, children younger than 16 when inquiring
Volusia County Library Director Mike about fines and overdue materials. (12/18/02
Knievel said state lawyers have advised -12/21/02)
will not be open
won't operate under Florida's Sunshine
Laws that mandate open, noticed public
The committee avoids falling under
state open meeting laws because it will
not make recommendations to the board.
Instead, committee members will act only
Sheriff plans to appeal gag order ruling
BARTOW-Polk County Sheriff judge, saying the Sheriff's Office had not
Lawrence W. Crow Jr. will appeal a ruling proven the need for a gag order.
that allowed a newspaper to print the (Brechner Report, October 2002) The
name of an undercover newspaper then printed the
officer. TP T deputy's name.
The Sheriff's Office PRIO R Now, Crow wants to appeal
asked a judge to prevent RESTRAINTthe ruling even though the
The Ledger of Lakeland deputy's name has already
from printing the name of an undercover been printed several times. The Sheriff s
deputy who shot and killed a suspect Office thinks a similar situation could
during a drug raid. arise again and wants to stop future
Judge Ron Herring denied the request publication of undercover officers'
for a permanent injunction and lifted a names, Col. Gary Hester told The Ledger.
temporary injunction granted by another (10/25/2002)
as fact finders and report information,
according to one board member.
The board unanimously voted to have
the committee operate outside the Florida
Sunshine Law. They hope to appoint the
committee members at the Jan. 14 meeting.
Copies of case opinions, Florida
Attorney General opinions, or
!,.g, la,. ai 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 February 2003
ACCESS RECORDS CONTINUED
Airport committee must disclose interests
LEE COUNTY -Lee County associations and land holdings.
commissioners unanimously decided that Commissioners told The News-Press
the seven members of the Southwest they were unaware they had not required
Florida International Airport Special disclosures from the two committees.
Management Committee must now "I think this is something that should
disclose business ties and primary and be done in the entire county," Airport
secondary sources of income. Special Management Committee member
The nine-member Tourist Hugh Thimlar said. "If some people have
Development Council that recommends to do it everyone should have to do it. I
where and how to spend millions of have no problem with it."
tourist-tax dollars may also be required to The required disclosures provide the
make disclosures, public with information regarding
The decision to require disclosures conflicts of interest among the political
came after The News-Press of Ft. Myers appointees on the committee who
revealed that the two advisory boards influence how to spend public funds.
have not made the disclosures that 31 The disclosures must be filed with the
other county committees must make Lee County Elections Office and are due
regarding sources of income, business each July. (12/15/02 12/18/02)
State Attorney clears Public Records violation
PUNTA GORDA- Following an
investigation, the State's Attorney Office
has decided not to file charges against
City Manager Willard Beck.
City Clerk Sue Selner alleged that Beck
had violated the state's Public Records
Law. A local reporter began requesting
all records from the city manager's office
on a weekly basis. In order to comply
with the expected requests, Selner started
compiling records and paperwork in
advance for the reporter.
Selner realized during this process
that Beck had not disclosed all of his e-
However, prosecutors determined no
violation had occurred because "the
Judge denies motion
TALLAHAS SEE A circuit judge
denied a defense motion for a gag order
in the case of Coy Evans, who is accused
of shooting a Tallahassee Police
sergeant. Judge Thomas Bateman, 2nd
Judicial Circuit, acknowledged extensive
print and broadcast coverage of the case,
but said the coverage was based, in part,
on information in the public
records and extrajudicial C O
statements by law c L
"Time and events will tend to
dissipate any adverse impact of
information that may have been
improperly disclosed already," according
to the judge's order.
In refusing to issue the gag order, the
judge reminded the attorneys, law
enforcement and others assisting and
media was asking in advance for records
that were not in existence and as such are
not covered by the Public Records Law,"
according to a State Attorney's Office
The State Attorney's Office also
determined Beck did not violate the
Public Records Law when he asked Police
Chief Dan Libby to place a document in
his car. The document was an
unflattering caricature of the police chief
that had been placed in the department's
suggestion box. Libby put the caricature
in Beck's car at Beck's request.
Prosecutors determined the caricature
was not a public record and decided not
file any charges. (9/26/02)
for "gag" order
investigating the case of Florida Bar Rule
4-3.6. The rule, in essence, says lawyers
should not make extrajudicial statements
which would impact on the defendant's
right to a fair trial, nor counsel or assist
others in making such statements.
In addition, the judge established
"lesser restrictions," which he deemed
appropriate under the
JR S circumstances presented in
this case. Those
temporary closure of any material filed in
the court file for 60 days following receipt
of the materials by defense counsel,
during which time the parties can request
an in camera inspection and ask the court
to prohibit disclosure of specific material
until trial or the case is resolved.
PANAMA CITY- State Attorney Jim
Appleman dismissed a criminal charge
against Kevin Wood after he was
arrested on Nov. 27 for recording a
conversation between his teenage
S- -A the Panama
A v City police.
said Wood, 45, had the right to record
the conversation because it took place in
a public place. Wood brought his tape
recorder to a McDonald's restaurant
where Panama City police were
questioning his daughter about a hit-
Lt. Randy Squire said officers asked
Wood to turn off the tape recorder.
When he refused, they arrested him and
charged him with illegal interception of
"I told them, 'You guys are making a
mistake here. You should go read this
stuff before you do this,'" Wood said.
Appleman signed a "no information"
document Dec. 4, which officially
dropped the charge against Wood.
This is the third time Wood has been
arrested for recording conversations and
he plans to file a lawsuit.
The Brechner Report February 2003
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Temporary restraining order chills TV reports
A Floridajudge issued a temporary injunction
preventing a reporter from contacting the subject of a
news story. The temporary injunction was based upon
allegations that the reporter asked the subject
"unwarranted questions," improperly broadcast
information concerning the subject of the story, and
videotaped the subject during his daily functions
without his knowledge.
The controversy stemmed from a story by Steve Gregg L
The Andrews, an
B kP ge investigative reporter for WFLA-
ack age TV Channel 8, concerning a
Tampa judge's handling of DUI
By Gregg D. Thomas cases. Minh B. Ross was one of
the DUI defendants mentioned in the story.
In the course of investigating the circuit judge's handling of
DUI cases, Andrews asked Ross and his attorney questions on a
public street outside of the courthouse in Tampa. WFLA also
obtained videotape of Ross driving to work while his license was
suspended. On December 4, 2002, WFLA broadcast a news
report concerning Ross's DUI case.
On December 5, Ross filed a petition for injunction against
repeat violence and asked a circuit court to enjoin Andrews from
(among other things) having any contact with him. In the
petition, Ross alleged that Andrews "or other persons associated
with him filmed me, without my knowledge, during day to day
functions." He also accused Andrews of "improperly displaying
information about me" during a Icu scast" and of asking
That same day, the court granted the petition and entered a
temporary injunction without a hearing or notice to Andrews.
The court set the matter for a full evidentiary hearing on
December 19, 2002. Andrews immediately filed an emergency
motion to dissolve the temporary injunction.
On December 12, 2002, the court held a hearing on Andrews'
motion. The court denied Andrews' request to dissolve the
injunction and declined to stay the injunction pending the full
evidentiary hearing on December 19. The court also refused to
view a videotape of the actual encounter between Andrews and
Ross until the December 19 hearing.
At the December 19 hearing Ross called one witness
Andrews. He presented no other evidence to support
his request for an injunction. Andrews testified that he
briefly questioned Ross as he entered the courthouse
S for a court appearance. After Ross's court appearance,
Andrews asked Ross's attorney questions. Andrews
also testified that he did not videotape Ross, but a
WFLA photographer did videotape Ross in a public
Thomas parking lot driving to work.
After hearing Andrews' testimony and the
argument of counsel, the court dismissed Ross's petition from
the bench and dissolved the temporary injunction. The court
stated that the evidence demonstrated Andrews was engaged in
routine, legitimate newsgathering. Such constitutionally
protected activity cannot form the basis of a temporary
injunction for repeat violence.
Although the circuit court ultimately lifted the temporary
injunction against Andrews, the injunction was in place for
fifteen days. Moreover, when provided the opportunity to
dissolve the temporary injunction on December 12, the court left
the injunction in place for an additional week. The result is that
Andrews' legitimate newsgathering activity was restrained for
The possibility that a reporter could ever be enjoined simply
for doing his or herjob certainly chills such constitutionally
protected activity. Therefore, Andrews has decided to maintain
his appeal of the circuit court's entry of the temporary injunction,
which he filed immediately after the circuit court initially refused
to dissolve the injunction.
One of the primary issues in the appeal is whether the
temporary injunction, which on its face implicated
constitutionally protected newsgathering activity, should have
been entered prior to providing Andrews notice and the
opportunity to rebut the allegations.
Andrews' appeal is currently pending in the Second District
Court of Appeal. Ross's answer brief was due on January 16,
Gregg D. Thomas is the head of the media law
department at Holland & Knight LLP. Mr. Thomas, James B.
Lake and Rachel E. Fugate ofHolland & Knight LLP are
counsel for Steve Andrews.