Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00044
 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 2003
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00044
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 27, Number 8 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,, .. .i. ,1..,, College ofJournalism and Communications U University ofFlorida
August 2003

W. D. Childers

released from

jail on appeal

Escambia County Commissioner
W.D. Childers was released from
jail on an appeals bond after
serving all but two weeks of his 60-
day sentence for violating the
state's Sunshine Law.
Okaloosa County Judge T.
Patterson Maney granted Childers
ACCESSE $10,000
after Circuit Judge Jere Tolton
granted another $10,000 appeal
bond for a separate and unrelated
bribery conviction that sentenced
Childers to a 3 1/2 year prison term.
"The court cannot reasonably
find that this defendant is likely to
flee," Maney ruled.
Both judges initially denied
bond for Childers because each
thought the appeal would fail. The
lst District Court of Appeal in
Tallahassee ordered the judges to
reconsider their initial denials,
ruling that those were improper
grounds for denying bail.
Childers is the first Florida
official to bejailed for violating the
open meetings portion of the
Sunshine Law. State Attorney
Curtis Golden estimates the appeal
process will take six to eight
months. (6/18/03-6/21/03)

Court refuses to hear Earnhardt appeal

Supreme Court has declined to review
one of the two cases challenging the
constitutionality of the Dale Earnhardt
autopsy law.
In a 4-3 decision, the Court denied the
request of the Independent Florida
Alligator to have the law that seals
autopsy records from the
public overturned. The law A
was passed in 2001 following
the death of NASCAR driver REC(
Dale Earnhardt.
"This is a dark day for
Florida residents," said attorney Tom
Julin of Miami, who represents the
Alligator. "It means that they cannot
rely on the Florida Supreme Court to
uphold their right of access to public
Justices did not give an explanation in
the spilt ruling that allows the 5' District


Court of Appeals' decision to stand.
The appellate court ruled in March 2001
that the viewing of any autopsy photos
violates the privacy rights of families.
"The Florida Constitution gives every
citizen the right to inspect and copy
public records so that all may have the
opportunity to see and know how the
government functions,"
LEg' District Judge Thomas D.
i30 Sawaya wrote in the
RDS appellate court's decision.
"It is also a declared
constitutional principle that
every individual has a right of privacy."
Another case challenging the autopsy
law is pending in Broward County filed
by The South Florida Sun Sentinel and
the Orlando Sentinel in the 4t District
Court of Appeals.
Julin has not ruled out a challenge to
theU.S. Supreme Court. (7/2/03)

Judge allows cameras in courtroom

duringJungleLand Zoo trial
KISSIMMEE Osceola County Judge publicized. Activists have vandalized
Jon Morgan has decided to allow the park and threatened employees,
cameras in the courtroom of the Gerjel said, and such harassment might
JungleLand Zoo case after the owner of happen again if there is heavy media
the zoo requested that the coverage.
trial be closed to television T JackKirschenbaum,
and still cameras. JCO U RT S attorney for WKMG-
Owner of the now Channel 6, which covered

defunct zoo, Eugene
Calabrese, was issued a citation in
November of last year for failing to
maintain a 5-foot fence around the zoo
inhabited by lions, tigers, bears and other
exotic animals. If found guilty, Calabrese
could face a 60-day jail sentence.
Calabrese sought to exclude cameras
from the trial to maintain privacy.
Calabrese's attorney Greg Gerjel argued
that animal-rights fanatics were likely to
target his clients if their pictures were

allegations of animal
mistreatment at the zoo, said the media
are the eyes of the public and have a
right to photograph the trial. He further
argued that anybody could walk into the
"This is the public domain,"
Kirschenbaum said.
The judge also refused to dismiss the
charges, but agreed that the state would
have to re-file its vague charges for the
case to continue. (6/5/03-6/7/03)





Former police

officer sues city

over records
Port Richey police officer has sued the
city alleging he was denied access to
public records within a reasonable
amount of time.
Arnold R. Uttley resigned in 1997
after he was arrested and pled no
contest to DUI. According to the
lawsuit, he sent four written requests to
the city between September and
December 2002 for records including his
pay history during this three-year tenure
at the police department, the rate for
overtime pay, and internal affairs
investigation reports and discipline
records for all city police officers from
June 2002 to present.
The city did not produce any of the
requested records until March of this
year. Other records have yet to be
turned over, Uttley alleges.
"Our position is his responses were
not produced in a reasonable amount of
time," Uttley's attorney Patrice Pucci
Uttley is not seeking monetary
damages. He is asking for a judgment
ordering that the officials responsible be
suspended, removed, impeached or
referred to the State Attorney's Office
for prosecution.
This is Uttley's second lawsuit
against the city. He previously sued
after another officer was hired after
being arrested on suspicion of drunken
driving while Uttley was not allowed to
return after his conviction.


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

AGO:Disclosure of autopsy

photos to non-public agencies

TALLAHASSEE-Florida Attorney
General Charlie Crist has released a legal
opinion (AGO 2003-25) stating that
medical examiners must go to court
before using autopsy photos for training
in a private setting.
The opinion comes in response to a
question posed by Dr. Stephen Nelson,
chief medical examiner inPolk, Hardee
and Highlands counties. Nelson wanted
to use autopsy photos for training during
a sexual abuse conference involving
medical professionals among the private
sector, and asked Crist about who is
permitted to use the photos.
In2001, the Attorney General's Office
issued a legal opinion stating medical
examiners may use autopsy photos in the
context of training and education
purposes for public agencies, making it
impermissible to provide them to private
entities. Crist further clarified that
autopsy photos may be shown to non-
public agencies if a court makes an
appropriate finding of good cause and if
the family of the deceased is allowed to

attend any hearing on the matter.
Because of the ruling, Nelson will
need to seek a judge's approval to use
the photos at the conference involving
private medical professionals.
The law is overbroad and should be
stricken, said Jon Kaney, general counsel
for the First Amendment Foundation.
"There is no public necessity for
sending the requesters off to court,"
Kaney said.
The law allows autopsy photos to be
used at public colleges, but not at
private schools such as the University of
Nelson believes the law creates a
double standard and an uneven playing
"... [T]here is a double standard that
says we can do it for public folks but not
private folks," Nelson said.
The law that prevents public access to
autopsy photos was passed in 2001 after
racecar driver Dale Earnhardt was killed
at the Daytona 500.

Levine is seeking a class-action lawsuit
against two of the nation's largest
information brokers, alleging that the
companies have violated federal privacy
laws by obtaining Florida Department of
Highway Safety and Motor Vehicle
The two companies involved in the
suit are Georgia-based ChoicePoint Inc.
and Massachusetts-based Reed Elsevier
Inc., the parent company of LexisNexis.
The lawsuit contends the records
obtained by the companies include such
information as people's names,
addresses, birth dates, and other
information detailed on motor-vehicle
titles, in violation of the federal Driver
Privacy Protection Act.
The act was passed in 1994 after a man
killed actress Rebecca Schaeffer by
getting her address from California motor
vehicle records. In 1999, an amendment
to the law mandated that a driver must
"opt in" or consent in order for their

information to be released to the public.
Levine's lawsuit, however, argues that in
Florida, a driver must "opt out" by telling
the state they do not want their
information released.
The Driver Privacy Protection Act
precludes Levine from directly suing the
state, which is why his attorneys are
going after the two information brokers in
an attempt to stop businesses from
buying motor vehicle records.
"If this litigation is successful it will
take the market away," said Attorney
James Green, one of the two lawyers who
filed the suit. "These data miners will
know that the cost of obtaining
information illegally is much higher than
what the market will bear."
The lawsuits are seeking $2,500 for
every time since June 1, 2000, when the
"opt in" amendment should have taken
effect, that the state has released an
individual's personal information without

2 The Brechner Report August 2003

Rabbi sues over state selling

detailed motor-vehicle information



Supreme Court rules in favor of filters Handbook available

WASHINGTON- The U.S. Supreme
Court has ruled in a 6-3 decision that
public libraries must install Internet
pornography filters on computers to
receive federal technology grants,
rejecting arguments that the requirement
violates First Amendment rights.
"Because public libraries have
traditionally excluded pornographic
material from their other collections,
Congress could reasonably impose a
parallel limit on its Internet assistance
programs," Chief Justice William
Rehnquist wrote in his majority opinion.
Rehnquist also noted that when an
adult patron encounters a blocked site, a
librarian should be able to override the
filters to allow the patron to access the
The American Civil Liberties Union
and others have sued the federal
government over the law, arguing the
filters canblock legitimate information
sites, amounting to government

Judge orders name
issued an injunction preventing a
Chicago man from disclosing stories and
information, regardless of its truth, about
his relationship with a former Vermont
beauty queen.
Former Miss Vermont Katy Johnson
filed a lawsuit in circuit court in Palm
Beach County against Tucker Max
arguing that he was using her name and
photograph on his Web site to promote
his "career as an authority on 'picking
up' women."
The temporary order prevents Max
from "disclosing any stories, facts or
information, notwithstanding its truth,
about any intimate or sexual act"
involving Johnson, including any photos

Carassas, R-Belleair, is this year's
recipient of the First Amendment
Foundation's Pete Weitzel Friend of the
First Amendment Award.
The foundation cited Carassas'
"unwavering support of the public's
right of access" and his support for the
two-thirds vote requirement change in
the state Constitution for future public
records exemptions.

Justice John Paul Stevens, who
dissented, said the act "impermissibly
conditions the receipt of government
funding on the restriction of significant
First Amendment rights."
Stevens also said the act can provide
parents with a "false sense of security
without really resolving the problem"
because, he argues, some objectionable
material may still get through.
Lawmakers have attempted to impose
limits on Internet pornography two
previous times. Each time the high court
objected on grounds that the limits
restricted free speech. This time,
however, libraries can refuse to comply if
they surrender federal aid and can
disable filters at the request of patrons.
The federal government has provided
nearly $1-billion in aid to libraries, with
grant money making up as much as 90
percent of the library's technology
budget. (6/24/03)

taken off Web site
or references to Johnson on his Web
Max's attorney, John C. Carey, called
the order "inconsistent with the freedom
of speech guaranteed by the
Constitution." Carey also said in an e-
mail to The Associated Press that
"Tucker Max has the right to tell his
autobiographical account of their
relationship," and that they would ask for
the order to be dismissed.
John Seigenthaler, the founder of the
First Amendment Center at Vanderbilt
University, said that federal courts have
found that the same First Amendment
protections that protect newspapers and
television should be extended to the
Internet. (6/3/03)

Carassas was elected to the House in
2000 from House District 54. He received
the award at a June 27 meeting of the
Florida Press Association and Florida
Society of Newspaper Editors.
The award is named after a former
senior editor at the Miami Herald and
founder of the First Amendment
Foundation, and it is given annually to a
legislator who makes a significant
contribution to open government.

TALLAHASSEE- The revised
second edition of The Florida Public
Records Handbook published by the
First Amendment Foundation is now
available. The handbook is the only one
of its kind in the nation with profiles on
more than 150 of Florida's most useful
state and local public records.
The handbook details the different
documents available at state agencies,
the courthouse, city hall and online,
along with many agency phone numbers,
addresses and Web links. It also
includes a public records law question
and answer section by Barbara A.
Petersen, president of the foundation,
and a public records law summary from
Pat Gleason of the Florida Attorney
General's Office. Author and
Jacksonvillejournalist Joe Adams will
also provide periodic update information
through his Web site at
The handbook began publication in
2000 and serves as a companion to The
Government-in-the-Sunshine manual
produced annually by the Florida
Attorney General's Office, also published
by the foundation.
Copies are available from the
foundation pre-paid for $24.95 or can be
purchased in combination with the
sunshine manual for $34.95. Order forms
are on the foundation's Web site at
www.floridafaf.org. Formore
information, contact the foundation at
(XS i)sx22-3518or(800)337-3518.

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The Brechner Report August 2003 3


Carassas wins FirstAmendment award

Legislature in Review: We laughed, we cried

What an embarrassment of riches.
We could write a comedy out of the antics
surrounding the 2003 legislative session all four
of them but so much of the material lends itself
more to tragedy.
The Florida Constitution invites lawmakers to
town for 60
The days each

aacK rage

year so they
can pass a

Lucy M

By Lucy Morgan budget, accept and
approve bills written by
sugar and telephone lobbyists and consume as much free
food and booze as possible.
Their only real task is to adopt a budget. This year it
took two attempts, but we managed to get a budget of sorts
approved in late May. It's only $53.5-billion and everybody
is already talking about things that need to be added.
A reader suggests lawmakers should have to pay their
own expenses for special sessions when they fail to
complete their work on time. Not a bad idea.
Gov. Jeb Bush likes to point out how much better off we
are than some other states. That's true, but when you are
in pain, it helps little to be reminded that others are
suffering, too.
All 50 states have budget problems of varying
seriousness, but generally speaking, the bigger the state, the
bigger the problems. California, for example, faces a deficit
that totals more than $30-billion. Florida is one of the few
states that actually had more money to spend this year than
last year.
But we also had some big expenses. Voters have
approved a series of Constitutional amendments requiring
lawmakers to build a high speed rail system, reduce the
number of children in classrooms, stop smoking in every
workplace and pay more to operate the courts.
As best I can tell the pregnant pigs are not demanding
money. Voters approved an amendment establishing
requirements for the size of cages they live in. Keep a
pregnant pig in a too small cage and you can be arrested.
Are the pig police next?

We've been reading a lot lately about reporters
at other newspapers who have confessed to
making things up. Fortunately, we have enough real
lunacy in Florida to keep us going for years without
having to dream it up.
Where else would the House Speaker open each
day with "It's a great day in the state of Florida,"
and close each session with a rock song descriptive
of the day.
organ Where else would the Senate president offer
advice for staying sober from the podium so his members
would not over indulge during a break. He used the word
"vitamins," as he cautioned against overindulgence, but we
all knew what he meant.
Since approving a budget in late May, lawmakers have
been back twice in futile attempts to reach agreement on a
bill that would solve Florida's medical malpractice
problems. As yet, they cannot even agree that there is a
problem but the governor says he'll keep bringing them
back over and over again until they reach agreement.
The Senate is about ready to strangle the governor
because he has taken aim at their campaign money. In a
widely publicized meeting, Bush urged doctors and
hospitals to get businesses to stop contributing money to the
GOP senators who oppose the governor.
Senate President Jim King suggested the governor's
request has taken the war to DEFCON2, a description
used to describe the situation when someone has pointed
nuclear weapons at the United States.
The governor added a little salt in the Senate wounds he
created when he took off a day after threatening Senate
campaign war chests to help the California Republican
Party raise money for the 2004 campaigns. It was in this
atmosphere that House Speaker Johnnie Byrd announced
he is considering a run for the U.S. Senate.
As anyone can see, we don't have to make things up.
The supply of weirdness is never ending in Florida politics.

Lucy Morgan is the Tallahassee bureau chieffor the St.
Petersburg Times and writes a regular column on Florida
politics, people and issues that appears on Saturdays.

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