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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: October 2003
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Bibliographic ID: UF00090012
Volume ID: VID00046
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 2/, nvumoer I u m A moninmy report oj mass meaia law in lorida
Published by The Brechner Center for Freedom of In,, .. ,. College ofJournalism and Communications U University ofFlorida
October 2003

Lawsuit seeks to State Supreme Court rules personal


open meetings
CITRUS COUNTY-Two Citrus
County property owners have filed a
lawsuit against Florida's Department of
Transportation secretary in an attempt to
open public meetings between several
government agencies discussing options
for a proposed Citrus extension of the
Suncoast Parkway.
The Florida Turnpike Authority
established a group, named the
Environmental Resource and Regulatory
Agency Group, which is composed of
representatives of 10 governmental
agencies to meet regularly and discuss
issues concerning the parkway.
The lawsuit filed
ACCES by Robert R.
SCE S Roscow and
MEETINGS TeddiBierly
claims that the
group operates
as a "board of commission" under state
transportation Secretary Jose Abreu. As
a result, they believe the group's
meetings should be open to the public.
Bierly said citizens are unable to make
informed decisions about where the
parkway should go if they are precluded
from attending the group's meetings.
"The Turnpike Authority has taken our
agencies that protect our wildlife and our
lands and they're meeting secretly with
them," Bierly said.
The suit is seeking a permanent
injunction that would require future
meetings to be held in compliance with
Florida's OpenMeetings Law. (9/3/03)

SPECIAL REPORT

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employee e-mails are not public


TALLAHASSEE-The Florida
Supreme Court has upheld a lower
court's decision that personal e-mails
contained in city computers fall outside
the definition of public records because
they are not connected to official city
business.
The Times Publishing Company sued
the City of Clearwater after
requesting all e-mails either A (
sent or received by two city 1V
employees over the city's REC(
computer network between
Oct. 1, 1999 and Oct. 6, 2000.
The city allowed the employees to
determine which e-mails were "public"
and which were "private." The city then
released the "public" ones. Times
Publishing Company sought a temporary
injunction and an order to make every e-
mail available.
A trial court denied the company
injunctive relief. The 2nd District Court of
Appeals upheld the trial court's decision,
stating that "personal" or "private" e-
mails are not considered public records.


The state attorney general joined the
suit, stating that the matter was of
statewide importance, and the case was
put before the state Supreme Court.
The Supreme Court agreed with the
District Court, rejecting the Times'
argument that placement of e-mails on
the city's computer network makes them
public record, regardless of
ESS their content or intended
S purpose. The Court also
RDS rejected the Attorney
General's argument that the
headers created by e-mails
when they are sent are similar to phone
records or mail logs, both of which are
subject to public record laws.
"... [W]e conclude that 'personal' e-
mails are not 'made or received pursuant
to law or ordinance or in connection with
the transaction of official business' and,
therefore, do not fall within the definition
of public records in section 119.011(1) by
virtue of their placement on a
government-owned computer system,"
the court held. (9/11/03)


Attorney attempts to seal court records


NAPLES An attorney defending a
North Naples man charged with fatally
stabbing his wife has filed a motion to
seal court records pertaining to defense
costs to avoid disclosing trial strategies
to the prosecution.
The defendant, David
Vahlkamp, has been declared A C
financially indigent for the REC
costs of his defense, which
means any defense costs, other than
attorney's fees, must be paid for by
Collier County taxpayers.
Defense attorney Steve Grogoza
argues that disclosure of the records
would give away defense strategies to


the prosecution, such as the use of any
experts or testing.
If Grogoza's request is granted, the
public could not view the records.
Grogoza also said he recognized that the
information is considered
a public record because
C E SS taxpayer money is used to
ORDS pay the costs, but he said
-t if nl ho nArt l Thor


the trial is concluded.
Assistant State Attorney Christine
Greider, who is prosecuting the case,
said she will object to the proposal and
has legal grounds to counter Grogoza's
request. (8/15/03)


._







ACCESS MEETINGS CONTINUED


Taxpayer sues

fire district
NAPLES A North Naples
taxpayer is suing the North Naples
Fire District and Fire Chief James
Tobin, alleging Tobin violated the
Sunshine Law when he met behind
closed doors to discuss his
severance package for $300,000.
The five-memberfire
commission sent Commissioner Ed
Maguire, Tobin and attorneys for
both sides to the closed meeting
held Aug. 29. At the meeting,
Tobin agreed to leave his $94,000-
a-yearjob in exchange for a
$300,000 severance package.
Janet Vasey filed suit, claiming
the meeting should have been open
to the public. A judge placed an
injunction on Tobin's first $150,000
installment, preventing the fire
department from distributing
money.
"The commission filed a
resolution to send in a negotiation
team that's an official act," said
Vasey's attorney, Fred Hardt.
"You can't have a negotiation in
private. It has to be a duly noticed
meeting and it has to be open to
the public. A record has to be
made like any other public
meeting."
Attorney Ray Bass,
representing Tobin, maintains that
because only one fire commissioner
attended the closed-door meeting
with Tobin and lawyers for both
sides, there was no violation of the
Sunshine Law. (8/16/03)


DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
!,., i'l,. ,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: Extraordinary circumstances

for absent members to participate


TALLAHASSEE-Florida Attorney
General Charlie Crist has issued an
advisory legal opinion(AGO 2003-41) on
the topic of participation of a board
member at a meeting by means of
telephone when a quorum of board
members are physically present without
violating the Sunshine Law.
Chair of the Tampa Human Rights
Board, Sidney R. Payne, presented the
question of whether a board member who
could not physically attend a meeting
due to a scheduling conflict could
participate over the telephone.
The opinion stated that in the past,
the Attorney General's Office has
assisted local governmental boards or
commissions with participation of non-
present members through the use of
telecommunications media in compliance
with the Sunshine Law. In 1992, the
office concluded that a commissioner


who could not attend a meeting due to
medical treatment could participate with
the use of an interactive video and
telephone system that allowed her to see
other members of the commission and the
audience and them to see her.
Similaropinions in 1998 and 2002 said
that members unable to attend could
participate through electronic media
technology as long as a quorum of
members were physically present at the
meeting site, and when the absence is
due to extraordinary circumstances such
as illness.
The attorney general concluded that it
was up to the Human Rights Board to
determine whether the scheduling
conflict in question constitutes an
extraordinary circumstance, and therefore
if the member should be able to
participate in the meeting via telephone.
(9/3/03)


SEWALL'S POINT A three-judge
appellate panel has ruled that the phrase
"Hillbilly Hellhole" is protected under the
First Amendment, throwing out ajury
verdict and a $50,000judgment for
defamation and invasion of privacy.
Blaine and Sally Rhodes sued the
town of S\ all1 s Point after a photo of
their home with the caption "Our View of
the Hillbilly Hellhole" was displayed in
Town Hall for one day in December 1998.
The couple charged the town with
defamation and invasion of privacy.

NEWS NOTES


Brechner Report
GAINESVILLE- Current and past
issues of the monthly Brechner Report
publication are available at the Brechner
Center for Freedom of Information's new
Web site, located at www.brechner.org.
The Brechner Report is also available
for electronic delivery for readers wishing
to receive the report in an e-mail each
month. To receive an electronic copy of
the report, please send an e-mail request
to brechnerreport@jou.ufl.edu, or call the


Ajury awarded the couple a $50,000
judgment last year. The 4t District Court
of Appeal threw out the judgment, noting
that the Rhodes' testimony in court
agreed that the photo "was an accurate
depiction of their back yard."
The caption was "pure opinion" and
is, therefore, protected by the First
Amendment.
"The caption is nothing more
than...commentary on the facts
presented in the photograph," the judges
ruled. (8/28/03)


available online
centerat352-392-2273.
The updated Web site includes a
citizen's guide for accessing government
records, as well as numerous access and
freedom of information resources. The site
also contains a link to the Marion Brechner
Citizen Access Project, which provides
government access information and
statistics for all 50 states.
The Brechner Center thanks Nicholas
Ward for his work developing the new site.


2 The Brechner Report U October 2003


FIRST AMENDMENT


Court throws out defamation judgement







ACCESS RECORDS CONTINUED FIRST

Paper sues mayor for irmiedine access ENDE


A ./ A


BELLEAIRBEACH-Aweekly
newspaper has filed a lawsuit against
BelleairBeachMayorMike Kelly,
alleging he prevented distribution of the
paper as well as restricting a reporter's
access to public documents.
The lawsuit states that Kelly allegedly
ordered a city hall employee to throw
away copies of the weekly Clearwater
Gazette & Beach Views newspaper
because he "disagreed with or objected
to articles) regarding his city."
Kelly denies that he ordered the
removal of the papers. An attorney for
the newspaper, Bob Walker, said the
editor of the Gazette has two eye
witnesses, including an elected official,
who overheard the mayor's order.
The Gazette also asserts that the city


has made it difficult to retrieve public
records. According to a memo Kelly
wrote to staff members, he reminded them
of the city policy that all media inquires
be directed to his office. The Gazette
points out, however, that it is the city
clerk's responsibility to respond to
records requests without needing the
mayor's cooperation or knowledge. The
lawsuit claims that Kelly's intervention in
a public records request delayed the
action by 10 days.
Other ways in which the Gazette
claims the city has made public record
retrieval difficult includes a $5
administrative fee that was charged to a
reporter and then later refunded, and a
"public records request" form for citizens
and reporters to fill out. (8/31/03)


New legislation counters Patriot Act
WASHINGTON A senate bill has establishments from telling patrons if
been introduced to take aim at a section their records have been reviewed by law
of the U.S. Patriot Act which gives the enforcement officials.
government access to personal data. The new bill would require the
The bill, the "Library and Personal government to show "specific and
Records Privacy Act," was -- -articulable facts" that an
introduced by Sen. Russell PR IV A CY individual be suspected of
Feingold (D-WI) in an being "an agent of a foreign


attempt to require the government to
show some suspicion of an individual
before obtaining their personal, library
and bookstore records.
Section 215 of the current Patriot Act
grants law enforcement agencies the
ability to obtain a court order to access
any records or "tangible thing" from
libraries, booksellers, doctors, financial
institutions and Internet service
providers without needing an ordinary
criminal subpoena or search warrant, and
without probable cause.
The provision also prevents


power."
"So, under my bill, the FBI can still
obtain documents that it legitimately
needs, but my bill would also protect the
privacy of law-abiding Americans,"
Feingold said.
"What we choose to read or view on
the Internet should not be the
government's concern," said Timothy H.
Edgar, an ACLU Legislative Counsel.
"Libraries under the Patriot Act cease to
be a forum for open discussion and a
fountain of unfettered information."
(7/31/03-8/14/03)


LEGISLATIVE REVIEW


TALLAHASSEE The following are
new exemptions to the state Public
Records/Open Meetings laws enacted
during the 2003 legislative sessions.
Copies of the legislation are available
at the Florida's Legislature's home page,
Online Sunshine, at
http://www.leg.state.fl.us. Chief
sponsors of the bills are in parentheses
next to the bill numbers.

HB 1785 (State Administration
Committee)


Exemption/ParaTransit Services -
Creates a public record exemption for all
personal identifying information
contained in records relating to an
individual's health held by local
governments for the purpose of
determining eligibility forparatransit
services under Title II of the Americans
with Disabilities Act. Allows for
disclosure with the express written
consent of the individual, in a medical
emergency, or by order of a court upon a
showing of good cause.


News racks removed
THE ACREAGE- News racks of local
papers were removed from their locations
in the Indian Trail Improvement District
after the president of the board of
supervisors of the district ordered the
action.
President Christopher Karch said the
action was prompted in part by what he
views as inaccurate and unfair coverage
of Indian Trail board meetings by two
local newspapers, The Town-Crier and
the Observer. A news rack for The Palm
Beach Post was also removed.
"It's just an unsightly mess," Karch
said. "And it's not the main factor, but
the local newspapers weren't getting any
of our stories correct. Let's just say they
have been very biased."
Tony Masilotti, Palm Beach County
Commissioner for District 6, is upset
about the issue and plans to go to the
American Civil Liberties Unionto ask
them to protect the rights of citizens to
have newspapers in that area.
"I think it's criminal what he (Karch)
has done," Masilotti said. "He should be
ashamed of himself."
"Local governments have discovered
that even 'shoppers' and publications
not traditionally thought of as
newspapers are protected by the First
Amendment," said Bob Markey, a former
Town-Crier editor and publisher.
Karch said he did not believe he
violated any First Amendment rights.
(8/8/03-8/15/03)

THE
BRECHNER
REPORT





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The Brechner Report U October 2003 3







LEGISLATIVE REVIEW CONTINUED


SB 2526 (Campbell, D-Tamarac)
Exemption/Putative Father Registry -
Creates a public record exemption for all
information (the name, address, date of
birth, and physical description of the
putative father; the name, address, date
of birth, and physical description of the
mother, if known; and the date, place,
and location of conception of the child;
and the name, date, and place of birth of
the child or estimated date of birth of the
expected child, if known) contained in the
putative father registry maintained by the
Office of Vital Statistics. Allows access
to the exempt information by certain
specified entities.

HB 1061 (Bowen, R-Winter Haven)
Exemption/Food Safety Investigation
Records Creates a public record
exemptionfor information deemed
confidential under federal law when
provided to the Department of
Agriculture and Consumer Services for
purposes of food safety investigations,
federal-state contracts and partnership
activities, and regulatory reviews. Such
information may only be disclosed if a
federal agency has found that the
information is no longer entitled to
protection or unless ordered by a court.

HB 453 (Adams, R-Oviedo)
Exemption/Victims of Sexual Offenses
- Creates a public record exemption for
any photograph, videotape, digital image,
electronic image, recorded image, or other
visual image of any part of the body of a
victim of a sexual offense that is criminal
intelligence or investigative information.
Such information is confidential and
exempt regardless of whether or not the
victim is identified.

SB 42-A (Miller, D-Tampa)
Exemption/Credit Scoring
Information- Creates a public record
exemption for credit scoring
methodologies and related data and
information that is a trade secret and filed
with the Office of Insurance Regulation.




The following exemptions were
reviewed and reenacted during the 2003
legislative session under the Open
Government Sunset Review Act.

SB 192 (Lynn, R-Ormond Beach)


Confidentiality of Library Records -
Law exempts informationby parents or
guardians of library patrons under the
age of 16 for the sole purpose of
collecting fines or recovering overdue
library materials.
HB 207 (Mealor, R-Lake Mary)
Pharmacies/Patient Records -
Requires the Board of Pharmacy to adopt
rules establishing guidelines for
pharmacies to dispose of patient records
in order to preserve confidentiality.
HB 847 (Goodlette, R-Naples)
Citizen's Right to Honest Government
Act- Provides criminal penalties for
official misconduct, misuse of official
position, disclosure or use of confidential
criminal justice information and
tampering with the bid process.
HB 1019 (State Administration
Committee)
OGSR/Video-Taped Statements of
Minors Law exempts identifying
information contained in a videotaped
statement of a minor who is the victim of
certain, specified sexual crime.
HB 1021 (State Administration
Committee)
OGSR/Housing Assistance Records -
Law exempts certain information
provided to housing assistance
programs.
HB 1023 (State Administration
Committee)
OGSR/County Employees-Law
exempts only the employees' personal
identifying information contained in
county employee assistance program
records.
HB 1025 (State Administration
Committee)
OGSR/Municipal Employees- Law
exempts all records and communications
concerning a municipal employee's
participation in an employee substance
abuse program.
HB 1027 (State Administration
Committee)
OGSR/Trade Secrets- Law exempts
trade secrets held by the Department of
Community Affairs in implementing the
federal Clean Air Act.
HB 1031 (State Administration
Committee)
OGSR/FloridaKidcare Program- Law
exempts information in an application for
determination of eligibility for the Florida
Kidcare program.
HB 1033 (State Administration
Committee)
OGSR/AHCA Provider& Subscriber


Assistance Program Law exempts
subscriber identifying information
contained in records prepared or
reviewed by a provider and subscriber
assistance panel of the Agency for
Health Care Administration.
HB 1035 (State Administration
Committee)
OGSR/Workers' Compensation
Records Law exempts investigatory
records and any other records necessary
to complete an investigation relating to
workers compensation employer
compliance held by the Department of
Financial Services, and creates an
exception to the exemption for any law
enforcement agency or administrative
agency.
HB 1037 (State Administration
Committee)
OGSR/Rabies Vaccination Certificates
- Law exempts information identifying
the owner of the animal vaccinated in a
rabies vaccination certificate provided to
animal control authorities. Deletes the
requirement that requests for such
information be made in writing, as well as
the provision relating to copies of rabies
vaccination certificate databases.
HB 1039 (State Administration
Committee)
OGSR/FloridaLand Sales
Investigations Law exempts
investigative information, including any
consumer complaint, held by the Florida
Land Sales Division until 10 day after a
notice to show cause has been filed, or
until the investigation is complete or
ceases to be active.
HB 1041 (State Administration
Committee)
OGSR/Florida Joint Underwriting
Association Law removes the
exemption for matters reasonably
encompassed in privileged attorney
client communications for the Florida
Automobile Joint Underwriting
Association (FAJUA).
SB 1072 (Crist, R-Tampa)
Criminal Use/Personal Information-
Amends s. 817.568, F.S., revising the
elements of the offense involving the
criminal use of personal identifying
information to provide various levels of
offenses with mandatory minimum
sentences. Includes bank account and
credit card numbers within the definition
of "personal identifying information."
SB 1182 (Dockery, R-Lakeland)
Security System Plans Amends
public records exemption clarifying that


4 The Brechner Report U October 2003







LEGISLATIVE REVIEW CONTINUED


security system plans of a public or
private entity are confidential and
exempt.
SB 1374 (Peaden, R-Crestview)
Florida Administrative Weekly -
Requires the Department of
Environmental Protection to publish its
notices required to be published in the
Florida Administrative Weekly (FAW) on
its Internet web site instead of the
current paper form.
SB 1434 (Garcia, R-Hialeah)
Public Libraries -Law allows access
to library registration and circulation
records for parents or guardians of
library patrons under the age of 16 for the
sole purpose of collecting fines or
recovering overdue library materials.
HB 1579 (Roberson, D-N. Miami)
Autopsy Records Law allows the
deceased's surviving relative access to
autopsy records with authority to obtain
the exempt autopsy record to designate,
in writing, an agent to obtain autopsy
records from the medical examiner.
HB 1591 (State Administration
Committee)
OGSR/State Employees-Law exempts
only personal identifying information in
records relating to participation in an
employee substance abuse program.
HB 1593 (State Administration
Committee)
OGSR/Foster Care Licensees- Law
expands the exemption for information
regarding licensed foster care parents to
include medical records of a licensed
foster parent and such parents spouse,
minor children, and other adult
household members.
HB1717 (State Administration
Committee)
OGSR/Identity ofExecutioner-
Repeals the exemption for information
that would identify the person
administering the lethal injection. Also
clarifies that information identifying an
executioner, or any person prescribing,
preparing, compounding, dispensing, or
administering a lethal injection is exempt.
HB 1763 (State Administration
Committee)
OGSR/Domestic Violence Victims -
Law exempts the addresses, telephone
numbers, and social security numbers of
participants in the Address
Confidentiality Program for Victims of
Domestic Violence, allowing release
under certain circumstances.
SB 10-A (Crist, R-Tampa)


Criminal History Records- Law
increases the fee for a copy of a criminal
history record from $15 per copy to $24
per copy, with the exception of
background checks for the DCF, DEA,
and DJJ, which are $8. Fees also increase
in varying amounts for different
government agencies.
SB 32-A (Alexander, R-Winter Haven)
Commercial Solicitation-Law amends
exemptionprohibiting commercial
solicitation of crime victims, to stipulate
that a person who possess exempt or
confidential information contained in a
police report may not use the information
for purposes of commercial solicitation
during the time the information is exempt.



The following bills were introduced
but were not passed during the
legislative sessions. Summaries of the
bills are available from Online Sunshine
at http://www.leg.state.fl.us.

HB 11 and SB 1972 -Exemption/
Paternity Registry
HB 69 and SB 1388 Pawnbroker
Records/Firearm Purchases
SB 76 Exemption/Pharmacist
Adverse Incident Reports
SB 122 and HB 1147 Child Abuse
Records
HB 123 and SB 1666 -Exemption/Cell
Phone and Pager Numbers & Billing
Records
SB 142 Expunction of Criminal
History Records
SB 238 Exemption/Ethics
Commission
SB 274 and HB 1029 OGSR/Hospital
Adverse Incidents Reports
SB 282 and HB 1715 OGSR/Injured
or IllEmployees
SB 304 and HB 451 Exemption/
Public Utility Records
HB 387 and SB 2216 Exemption/
Moffitt Cancer Center & Alzheimer' s
Institute
HB 491 and SB 1770 Exemption/
Human & Machine Cognition Institute
SB 532 and HB 587 Campaign
Finance Disclosure Reports
SB 566 Exemption/Patient Records
HB 559, SB 1768 and HB 1913 -
PublicationInformation
HB 763 and SB 1624 Confidentiality
ofHealthInformation
HB 891 and SB 1212 Bankruptcy/
Personal Information


HB 997 and SB 1784 Exemption/
Prescription Drug Records
SB 1074 Sexual Predators/Public
Notice
SB 1082 Expunged or Sealed Public
Records
SB 1088 Exemption/Florida
Commercial Space Finance Corporation
HJR 1135 and SJR 2250 JNC
Records & Meetings
SB 1202 and HB 1819 Commercial
Solicitation
SB 1362 and HB 1461 Exemption/
Building Plans & Blueprints
HB 1391 and SB 1740 Dependent
Children
HB 1503 and SB 2656 Aquifer
Storage Information
SB 1570 Exemption/Mediation
Records
SB 1580 Identity Theft
HB 1637 and SB 2440 Exemption/
Financial Services Department.
HB 1653 and SB 2168 Social
Security Numbers
SB 1764 Exemption/Potable Water
HB 1765 Public Necessity
Statements
HB 1787 and SB 2396 Exemption/
Alternative Investment Program Records
HB 1807 and SB 2684 Ch. 119
Reorganization
HB 1895 -Exemption/Credit Scoring
Methodology
HB 1905 Exemption/Health Care
Professional Liability Institute Facility
HB 1923 Child Abuse Records
SB 1942 Exemption/Physician
Adverse Incidents
SB 2416 Exemption/Motor Vehicle
Records
SB 2522 Criminal Justice
Information
SB 2716 Exemption/Ill or Injured
Workers
SB 2818 Exemption/Inspectors
General
HB 27-A Commercial Solicitation
HB 29-A -Exemption/Alzheimer's
Institute
HB 33-A Criminal History Records
HB 111-A- Exemption/Credit Scoring
Information
HB 115-A Exemption/Moffitt Cancer
Center and Alzheimer's Institute
HB 135-A- Exemption/Credit Scoring
Information
SB 2-B Medical Malpractice
SB 4-B Patient Records
SB 6-B Adverse Incident
Information


The Brechner Report U October 2003 5




























2003 Legislative Session Wraps-Up, Finally
It's a bit odd, working on a legislative wrap-up in Certainly, though, what's most interesting about the
early fall, rather than the beginning of June, just after 2003 session is what didn't pass. Proposed exemptions
the end of the 2003 regular session. But given the for law enforcement cellular telephone records, for all
Governor's pledge to haul our legislators back to personal information in public utility records, and
Tallahassee as often as needed in order to push physician adverse incident reports all failed, as did an
through his medical malpractice reform legislation, it unwarranted expansion of record and meetings
seemed a bit premature to sum up this year's open exemption for one of House Speaker Johnny Byrd's pet
The government project, the Alzheimer's Center and Research Institute at
B k rP legislation before the University of South Florida. Also, for the first time
ackg now. As it Barbara Petersen in many years, a bill that would have reenacted an
B happened, the legislature exemption for the identity of injured or ill employees in worker
By Barbara A. Petersen passed a med mal package compensation records under the OGSR Act failed to pass. This
(not the Governor's package, it should be mentioned) without means that the exemption, ,scci ion 4 4-1i 185(11), Florida Statutes,
any of the proposed new exemptions attached to the package will automatically "sunset" be repealed on October 2, 2003.
during the regular session. So, in addition to the 15 exemptions So why, after seeing a record number of new exemptions
reenacted under the Open Government Sunset Review (OGSR) proposed, did so few pass? The answer is simple: Amendment 4.
Act of 1995, we've ended the year with only four new This was a constitutional amendment put before voters in the
exemptions, three of which are very narrow and limited in scope. general election last November, which requires a two-thirds vote
There are new public record exemptions for federal records in both the House and the Senate for any exemption to Florida's
provided to the state for assistance during a joint food safety or Public Records Law or Sunshine Law. Although there is some
food illness investigation (CS/HB 1061); for all personal debate between access advocates and the Florida Legislature
identifying information contained in records relating to an about the scope of the amendment's application (we say it
individual's health held by local governments for the purpose of applies to all exemption legislation, including OGSR bills and the
determining eligibility for paratransit services under Title II of the Legislature says it applies only to new exemptions), there is no
Americans with disabilities Act (HB 1785); and for all information doubt that the amendment had a dramatic effect on how the
in the newly-created putative father registry (CS/SB 2526). Legislature responded to open government bills, and fewer new
Of the four exemption bills passed by the 2003 legislature, of exemptions were created as a result.
greatest concern is CS/HB 453, creating a public record Not that we can afford to be less vigilant. An e-mail from the
exemption for any photograph, videotape, digital image, Council for Education & Policy Research & Improvement
electronic image, recorded image, or other visual image of any recently was sent to school boards and local government
part of the body of a victim of a sexual offense contained in officials around the state, asking whether, in their experience, the
criminal intelligence or investigative records. The legislation, Sunshine Law interferes with the operation and effectiveness of
sponsored by Sen. Skip Campbell (D-Tamarac) and Rep. Sandy government business. Of course it does. Government without
Adams (R-Oviedo), stipulates that the exemption applies even if public participation may be more efficient, but an efficient


the victim is not identified in the now-exempt photograph or
image. Although perhaps well-intentioned, because the
legislation makes such information confidential and exempt and
does not allow for any exceptions to the confidentiality, the
exemption could seriously impede inter-state criminal
investigations. Under the new law, Florida criminal justice
agencies cannot share a rape victim's photograph with law
enforcement in another state, surely an unintended consequence.


government is not necessarily a good government, and we've
yet to see any evidence, anecdotal or otherwise, showing that
Florida government is any less efficient than government in other
states.
Barbara A. Petersen is the president of the First
Amendment Foundation, a non-profit ,,I,,i:, i,,
established to protect and advance First Amendment, public
records, and open i,.. i,,' rights ofFloridians.




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