Freedom of information report

Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00048
 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 2003
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00048
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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Full Text

Sunshine survey

shows no problems
TALLAHASSEE-The Councilfor
Education Policy, Research and
Improvement conducted a survey to
assess the effects of the Sunshine Law
on how education officials run their
institutions. The survey was e-mailed to
school board members, superintendents,
and college trustee chairs and presidents
throughout the state.
The survey asked educators if the
state's Sunshine Law had a positive,
negative or neutral effect on their work.
Those who cited a negative effect were
asked to make suggestions to change the
Executive Director of the council Bill
Proctor said the group wanted to see if
there was an exemption that would
significantly increase schools'
"If there was a slight change you
could make and say that would improve
the way we do business, maybe it would
be worth exploring," Proctor said.
The survey had a low-response rate -
50 of the state's 67 school districts did
not respond and only six members of
university boards responded showing
the Sunshine Law does not seem to be
inhibiting education officials from
conducting business, Proctor said.
Proctor said that based on the results
of the survey, the council likely will not
recommend an exemption because
educators did not cite a common area or
request that strained their staff. (10/8/03)

1Ih I' l i. _l l .n J
!'i,_,_i. ,n -, t n t' i ir!, ,n l ., !-', r
.. in lu d ,.I t rh .- ... |". Il i-4 1"l

Judges rule FCAT exams are not public

TALLAHASSEE-The 1 tDistrict millions of dollars.
Court of Appeal ruled that copies of the The three-judge panel ruled
Florida Comprehensive Assessment Test unanimously on the matter, after hearing
are not public records and arguments from a parent's
parents do not have a right A C C E SS attorney that it would be
to review them. U U meaningless to release test
The appeal court decision RECORDS scores but not the test
overturns a lower court sheets that produced the

decision that would have allowed parents
to see both the FCAT booklets and the
answer sheets.
The state appealed the lower court
decision, arguing that if the tests were
made public, they would have to be
changed every year, costing the state

Judge Paul Hawkes wrote in the
decision that the plain language of the
statute makes it clear that a student's
public records refer to standardized test
scores, not the exams themselves.

Former employee sues county over

access to pre-termination meeting
PALM BEACH COUNTY-A former District Court of Appeal, backed by an
Palm Beach County employee is amicus curiae brief from the First
appealing a circuit judge's decision that a Amendment Foundation.
pre-termination conference panel that "We weren't privy to the discussion,
upheld the employee's firing is not to their assessment of the evidence and
subject to the Open Meetings Law. the law, which hampers us in any attempt
FormerDepartment of Community to appeal in the administrative
Services senior secretary Lee Ellen procedure," said Ford. "For all we know,
Dascott exercised her right they could have come up
to appeal to a pre- AC C E S with some other reason that's
termination panel after she A l 3 unstated in the record for
was fired. The panel upheld MEETINGS why they did it."
her firing, which was based Assistant County
on Dascott's act of bringing Attorney Paul F. King argued
a tape recorder to a meeting with her that meetings of personnel committees
supervisor. are executive matters not covered by the
Dascott's attorney, Frederick W. Ford, Sunshine Law. King said if Dascott wins

argues that the closed panel meeting
violated the Open Meetings Law and that
the termination must be rescinded,
according to the brief.
Palm Beach Circuit Judge Arthur
Wroble rejected Dascott's lawsuit in
March, ruling that pre-termination
hearings are not open to the public. Ford
is appealing the decision in the 4th

her appeal, the county administrator
would be unable to talk to anyone on his
staff about personnel matters outside of
an advertised public meeting. Also,
county employees fired since 1999
involving pre-termination conferences
could sue the county due to the four-
year statute of limitations for Sunshine
Act lawsuits. (10/9/03)




Volume 27, Number 12 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,, .. .i. ,..,, College ofJournalism and Communications U University ofFlorida
December 2003


Judge bars private Council members not indicted on

panel meeting charges of Sunshine Law violation

BROOKSVILLE- A circuitjudge
issued a temporary injunction at the
request of the St. Petersburg Times,
barring a Hemando County school
district committee from meeting to review
a novel in private.
The Times challenged the district's
assertion that the committee is not
subject to the Open Meeting Law,
contending the panel's review should be
open to the public because the group's
recommendation would affect public
policy to be settled by the School Board.
The matter arose after the mother of a
fourth-graderat Spring Hill Elementary
School, Jerri Trammel, complained about
passages inappropriate for children that
talk frankly about masturbation in the
Judy Blume novel Deenie. A review
committee at the school made no
decision and passed the matter to the
district level.
"I think that should be a public
meeting," Trammel said. "That's
something I think parents should at least
get to listen to, if not have a voice."
After Circuit Judge Jack Springstead
issued the temporary injunction, two
School Board members said school
officials are planning to let the public
attend the meeting.
"We'd rather have it a public meeting
due to the nature" of the subject matter,
said board member Robert Wiggins.
The Hemando County district last
reviewed a book challenged during the
2000-01 school year after a parent
demanded the removal of Freaky Friday.
The School Board made the decision not
to removethebook. (10/14/03-10/28/03)


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

CAPE CORAL -Two Cape Coral
council members will notbe indicted on
allegations of violating the state's Open
Meetings Law after a Lee County grand
jury released a sealed report, according
to the state attorney's office.
Mayor Arnold Kempe and
CouncilmemberDick Stevens were
accused of violating the Open Meetings
Law after they were caught on videotape
talking during a break following a vote on
removing a proposed skate park from the
city's strategic plan. Normally, the
recording equipment is turned off during
breaks, but the camera and audio came
back on as the two spoke.
The state attorney's office began an
investigation of the matter after
Councilmember A. J. Boyd asked for the
tape to be reviewed. The office later

brought the issue before the grand jury
after questioning Kempe, Stevens and a
number of city staffers.
Kempe and Stevens argued that the
conversation did not violate the Open
Meetings Law because the vote for the
skate park had already taken place and
because there was no prohibited
discussion of any kind.
According to state law, the grand jury
findings will remain sealed for at least 15
days, allowing Kempe and Stevens time
to review the documents.
"In this instance, the grand jury has
not come back with an indictment or a
true bill," said Attorney Michael Hornug.
According to Florida Statute 905.28,
grand jury reports "not accompanied by
a true bill or indictment" are confidential
until future order of the court. (10/10/03)

Company sues appraiser for photos

based real estate information provider
is suing a Collier County property
appraiser, claiming the appraiser
violated the state Public Records Law.
MicroDecisions Inc. is suing
Property Appraiser Abe Skinner over
the property appraiser's Internet
Geographic Information System, or
GIS. Attorneys for Skinner assert that
disks containing the GIS pictures
requested by
MicroDecisions are A
copyrighted items, and, A
therefore, the company RECO
would be required to
purchase a $2,000
commercial license from the property
appraiser that gives them permission
to use the GIS maps.
Attorneys for MicroDecisions
argue that anything produced by the
appraiser's office is a public record
and no limits can be imposed on
records created by using public tax
Earlierthis year, Collier County
Judge Ted Brousseau issued a
summary judgment on the issue in
favor of Skinner. MicroDecisions is


appealing the judgment to the 2nd
District Court of Appeal in Tampa.
Attorneys for the company
acknowledge they have been given
the GIS disks, but the appeal insists
the disks cannot be used for
commercial purposes unless the
company pays for the license.
Earlier in the year, Palm Beach
officials asked Attorney General
Charlie Crist if the county could
legally obtain copyright
ESS protection and require
license agreements for
SDS GIS maps. Crist
responded saying any
restriction on the maps
would violate the Florida Public
Records Law.
"It is clear that maps and related
data produced by Palm Beach County
for purposes of county business are
public records," Crist said in an
official opinion (AGO 2003-42). "Iam
not aware of, nor have you brought to
my attention, any statute that would
generally allow counties or county
agencies to secure copyrights for or
license material produced by the
county for official purposes."

2 The Brechner Report U December 2003



Published by The Brechner Center for Freedom oflii-,,d ...i.. -, College ofJournalism and Communications U University ofFlorida

Legislature approves five new

public access law exemptions

The Florida Legislature passed five
new public records exemptions during the
regular 2003 legislative session and in a
special May session.
During the main legislative session,
the Legislature passed a public records
exemptionforall informationcontained in
the putative father registry maintained by
the Office of Vital Statistics. It provides
that these databases are confidential and
exemptfrompublic disclosure.
The Legislature also passed an
exemption that makes any visual images
of a sexual offense victim confidential.
Beginning June 17 of this year, such
information is confidential and exempt
regardless of whether or not the victim is
The three other public records
exemptions that passed during the regular

legislative session included:
An 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 for
paratransit services under Title II of the
Americans with Disabilities Act.
An exemption for 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.
An exemption for credit scoring
methodologies and related data and
information that is a trade secret and filed
with the Office of Insurance

Florida voters approved an amendment
to the state constitution that requires a
two-thirds vote in the legislature in order
to pass a new Public Records or Open
Meetings exemption.
the 2002
legislative LEGISLATURE
Florida lawmakers passed the bill that
placed the constitutional amendment on
the ballot for Florida voters.
Approximately 76 percent of Florida voters
approved the amendment.
Previously, an exemption only had to
win a simple majority of the votes.
Although a higher number of votes

now is needed to pass an exemption, it
may make little practical difference in the
number of new exemptions.
Attorney General Charlie Crist clarified
his position on the two-thirds vote
requirement and its application to
reenactment of exemptions under
Florida's Open Government Sunset
Review Act (OGSR).
According to Pat Gleason, General
Counsel for the Attorney General's
Office, General Crist clearly and
unequivocally stated that he believes that
the two-thirds vote requirement applies to
all proposed open government
exemptions, including reenactment of
current exemptions under the OGSR Act.

U.S. Supreme

Court rejects

The U.S. Supreme Court rejected an
appeal from The Independent Florida
Alligator for access to autopsy photos of
race car driver Dale Earnhardt, ending the
newspaper's two-year legal battle.
The Alligator requested access to the
photos as questions were raised about the
cause of Earnhardt's death and whether
better safety
equipment would A CES S
have saved his life.
The Earnhardt CASES
Family Protection Act,
which passed in 2001,
exempts public release of autopsy photos
without a court order and prevented the
newspaper from obtaining Earnhardt's
records. Before the law, autopsy
photographs were public information in
The first lawsuit brought by the
Alligator challenged the law and its
constitutionality. It resulted in 7' Judicial
Circuit Judge Joseph G. Will ruling the law
was "valid and constitutional" and the
retroactive provision was constitutional.
The Alligator then appealed the ruling
to a three-judge panel of the 5" District
Court of Appeal, and the lower court
ruling was upheld. The newspaper then
petitioned the Florida Supreme Court,
which declined to review the case, without
Its final petition was to the U.S.
Supreme Court to overturn the lower
court's decision.
The Orlando Sentinel and The South
Florida Sun-Sentinel also challenged the
law, with a lawsuit pending in Broward
County filed in the 4t District Court of
Annual FOI Report U 2003 1 B

Voters approve two-thirds vote

amendment to state constitution

State Attorney General tackles public record issues

Autopsy photographs or videotapes
may be shown for training purposes to
non-public agencies or associations when
a court has made the finding of good
cause, according to Florida Attorney
General Charlie Crist. However, the family
of the deceased must be notified and
have the opportunity to attend and be
heard at any hearing on the matter.
Access to sensitive information was
the subject of several official access
opinions issued by Crist during 2002 and
2003. These access opinions included:
Criminal history records (AGO
02-68) Law enforcement agencies that
have been ordered to expunge criminal
history records should physically destroy
or obliterate information consisting of
identifiable descriptions and notations of
formal criminal charges. However, criminal
intelligence information and criminal
investigative information do not fall
within the scope of section 943.0585,
Florida Statutes, in which a judge orders a
criminal history record sealed.
Closed meeting records (AGO 03-
09) There are no specific restrictions on
the dissemination of information
discussed at closed labor negotiation
meetings, other than work product
developed in preparation for and during
negotiations. There are, however, other
Florida laws prohibiting the disclosure of
such information, under certain
Domestic Violence records (AGO
02-50) Law enforcement agencies must
remove information revealing the home or
employment address, telephone number
or personal assets of a person who has
been the victim of domestic violence.
Court records (AGO 02-69)- Clerk
of the courts are not authorized to
permanently remove social security, bank
account, debit, charge or credit card
numbers from original court documents,
following a written request.
Social Security Number records
(AGO 03-23) The "legitimate business
purpose" exception does not authorize
towns to release the social security
numbers of its water and sewer system
customers to a private company that
intends to enter the social security
numbers into a computer database.

Other notable access-related opinions

Board voting requirements (AGO
02-40) Advisory board members who are
appointed by a Board of County
Commissioners and responsible for making
recommendations on county issues are

subject to
for state,
county and
minutes (AGO




02-51) Cities cannot adopt a rule of
procedure that approves minutes of prior
meetings without requiring that these
minutes be read or signed at a subsequent
meeting. Rather, a vote on the
concurrence and revisions of the members
should be taken at an open meeting with
the minutes and any changes or revisions
also discussed during an open meeting at
the time the board adopts the minutes
Not-for-profit corporation records
(AGO 02-53) -Not-for-profit corporations
are subject to the requirements of Florida's
Government in the Sunshine and Public
Records Laws when they lease property
from a county to establish and operate a
Petition card records (AGO 02-
67) The use of a petition card to
indicate an elector's change of address
does not make the petition card a voter
registration record subject to restrictions
on inspection and copying, under the
FloridaElection Code.
County records (AGO 02-73) -
Confidential and exempt information must
be deleted from county equal opportunity
records prior to its release.
Competitive bidding (AGO 02-74) -
A governmental entity may disclose and
distribute documents in order to comply
with requirements for competitive
negotiation or bidding. However, the
entities or persons receiving the
information shall maintain the exempt
status of the information.
Board meeting quorum (AGO 02-
82) Physically-disabled members of city

committees may participate and vote on
board matters by electronic means if they
are unable to attend a public meeting, so
long as a quorum of the members of the
board is physically present at the meeting
Re-adoptions of exemptions (AGO
03-18) The two-thirds majority vote
applies to any attempt by the Legislature
to restrict the public's access to executive
branch governmental records and
meetings, whether through the initial
creation of an exemption or the readoption
of such an exemption.
Voting Systems records (AGO 03-
26) Custodian of records of the
Department of State are required to make
maintenance manuals supplied to the
Bureau of Voting Systems Certification
available for examination and inspection.
State law must yield to the federal law on
the subject of reproducing, copying and
distributing copies of these manuals. The
Department of State should advise
individuals of the limitations of the federal
copyright law and the consequences of
violating its provisions; such notice may
take the form of a posted notice. It is
advisable for the custodian to refrain from
copying such records himself or herself.
Hospital meetings (AGO 03-33) -
The trial court's holding in Florida Health
Sciences Centers, Inc. v. Tribune
Company is not controlling law in the 19th
Judicial Circuit.
School Board records (AGO 02-37)
- District School Boards are not authorized
to use a private company to produce and
copy public records. The district may
contract with private companies to provide
information also obtainable through the
district. But, it may not give up its duty to
produce such records and, thus, require
those seeking public records to do so only
through the company at whatever fee it
Community College councils (AGO
03-28) Communities college councils are
subject to the Government in the Sunshine
Law, and must allow open meetings to the
public at all times.

2 B Annual FOIReport U 2003

Escambia County Commissioner spends time in jail

FormerEscambia County
Commissioner W.D. Childers was found
guilty on one count of violating the
state's Open Meetings Law and
sentenced to 60 days injail. Childers is
the first elected official to be jailed for
violating the open meetings provision of
the law.
On a second count, Judge T. Patterson
Maney also ordered Childers to pay a
$500 fine along with $376 for court costs
and $3,227.85 for the cost of the state's
investigation and prosecution.
Childers stands accused of discussing
public business with fellow
commissioners in private on four separate
occasions, and conferring with fellow
commissioners about redistricting.
FormerEscambia CommissionerMike
Bass was also sentenced for two

sunshine offenses, but avoided jail time
and ordered to pay $4,143.69 in total costs.
After serving all but
A CESS two weeks ofhis 60-day
t C E S sentence, Childers was
CAS S released on an appeals
CLAS LES bond. Maney granted
Childers the $10,000
appeal bond a day after Circuit Judge Jere
Tolton granted another $10,000 appeal
bond for a separate and unrelated bribery
conviction that sentenced Childers to a
three-and-a-half year prison term.

Other Officials Charged:
U Welaka Mayor Gordon Sands
pleaded no contest and paid a $500 fine
after being charged with violating the
Sunshine Law last year. The charge
stemmed from a discussion that Sands

reportedly had with another town council
member about nominations at a public
meeting. The county judge withheld
adjudication, meaning that Sands will not
have a criminal record.
Kissimmee city commissioners
Wendell McKinnon and Bob Makinson
were charged with violating Florida's
Open Meetings Law. Both pleaded guilty
to civil violations and faced a $50 fine and
court costs. The charges stemmed from a
private meeting between the two men to
discuss plans for a future meeting.
InDeland, OakHill City
Commissioner Bob Jackson pleaded no
contest to charges that he violated the
Open Meetings Law when meeting with
former CommissionerRonMercerto
discuss several issues scheduled to come
before the commission.

Employees can protect personal phone calls and e-mails

In two separate rulings, state courts
answered the question of whether
government e-mails and phone calls
deemed private or personal are exempt from
the state's Open Records Law.
In September of this year, the Florida
Supreme Court upheld a lower court
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 sent or received by two city
employees over the city's computer

network during certain dates. The city
allowed employees to determine which e-
mails were "public" and which were
"private," releasing 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 Supreme Court agreed with the
District Court.
In a separate case, the Florida

Supreme Court refused to hear a case
challenging a decision that ruled
government employees can determine
which telephone records are private.
The lower court decision came after
three Florida newspapers attempted to
obtain cellular phone records for five staff
members in the office of former House
Speaker Tom Feeney. Feeney's office
responded to the records request by
providing phone logs in which all five
employees blacked out phone calls they
considered to be private. The court ruled
that personal calls fall outside the current
definition of public records.

Florida Senate committee holds closed-door meeting

For the first time in 30 years, a Senate closed the meeting with unanimous
committee met in a closed-door session support from members, invoking its post
authorized under a new Sunshine Law Sept. 11 rule for such a meeting.
exemption. The committee is responsible Discussed at the meeting was the "threat
for funding the state's counterterrorism net" program, which is an intelligence
effort and met in a closed system that takes tips and
meeting to review plans to A C CES S leads to see if there is
expand Florida's homeland reasonable suspicion to
security technology. M EETINGS include that information in
The Home Defense, Public the intelligence base. The
Security and Ports Committee Florida

Department ofLaw Enforcement
requested$1.6 million
to expand the program.
"The meeting was closed so that
information that was provided in the
meeting could not become available to
those who could harm us by having
some of that information," said Sen.
PaulaDockery, R-Lakeland, the
committee chair. "...security and safety
are paramount."

Annual FOI Report U 2003 3

Series on access to FBI records wins 2003 Brechner Award

A freedom of information series by the
San Francisco Chronicle has been named
the 2003 winner of the JosephL. Brechner
Center for Freedom of Information Award.
The eight-page piece, titled "The
Campus Files: Reagan, Hoover and the UC
Red Scare," is the work of journalist Seth
Rosenfeld who challenged the FBI after it
refused his freedom of information
requests. After a 15-year struggle and $1

A C CESS expenses, the
bureau was
RECORDS ordered by a
RECORDS federa
appeals court
to turn over more than 200,000 document
pages to Rosenfeld.
The series reveals how the FBI
engaged in unlawful intelligence activities
at the University of California at Berkeley
and tried to cover them up for 17 years.
His research uncovered how the FBI
conspired with the head of the CIA and a
member of the University's Board of
Regents to harass liberal faculty, students

and fellow regents; campaigned to destroy
the career ofUC President Clark Kerr;
forged a close relationship with Ronald
Reagan, who turns out to be an even more
active FBI informer than previously
disclosed; and sought to unlawfully
withhold public records by making
unfounded claims of national security.
"His series documents how government
corruption, when unchecked, can wreak
havoc on citizens," said Sandra F. Chance,
executive director of the Brechner Center.
"It demonstrates that freedom of
information is fundamental to government
accountability and an informed citizenry,
particularly in times of crisis."
In reviewing some of the FBI
documents, the 9' Circuit Court of Appeals
found "these documents all support a
conclusion that these reports were
compiled with no national nexus to a
plausible law enforcement purpose that
any purpose for compiling these
documents was pretextual."
"The later documents all strongly
support the suspicion that the FBI was

investigating Kerr to have him removed
from the UC administration, because the
FBI officials disagreed with his politics or
his handling of administrative matters," the
court said.
Rosenfeld's series, which he spent 22
years working on, is being recognized
nationally as an important case study for
the protection of freedom of information
The New York Times said: "The
documents should be required reading for
the Bush administration and Congress as
they consider how to reconfigure domestic
intelligence. These accounts of the FBI's
malfeasance are a powerful reminder of
how easily intelligence organizations
deployed to protect freedom can become
its worst enemy."
The annual award was established by
the late Joseph L. Brechner, an Orlando
broadcaster. Previous winners include:
The Washington Post, the St. Petersburg
Times, The Dallas Morning News, the
South Florida Sun-Sentinel and the
Houston Chronicle.

Brechner Citizen Access Project rates state access laws

The Marion Brechner Citizen Access
Project produced a number of research
reports rating the open meetings and
public records laws of the 50 United
States and the District of Columbia during
"The goal of the Citizen Access Project
is to allow citizens and public officials to
better understand public access to local
government information in all 50 states,"
according to CAP DirectorBill
Chamberlin. The project, in the College of
Journalism and Communications at the
University of Florida, focuses on open-
government legislation across the United
In its study on security and safety, the
researchers discovered that following
Sept. 11, 2001, state lawmakers across the
nation blocked access to government
records dealing with everything from
security response plans to criminal
According to their report, states limited
access to government-held information
about building plans, evacuation

procedures, medical supplies and other
issues related to security.
"A lot of us worry about how much
information is now being kept from state
citizens," Chamberlin said. "It's one thing
to keep sensitive information out of the
hands of terrorists, but quite another to
use terrorism as an excuse to shield
government officials frombeing
accountable for their actions."
The researchers also discovered that
several state governments have
inadequate rules on official e-mail that may
limit public access to those records.
According to their study, 45 out of 51 laws
in states and the District of Columbia do
not specifically mentione-mail intheir
public records laws.
"This large number of laws that do not
directly deal with e-mail often hurt the
public's right to know in an era when
technology makes discussions between
public officials easier in cyberspace than at
the town hall," according to Chamberlin.
In its most recent study, the CAP
studied the availability of several

categories of education records in the 50
states, including personnel records, public
records, as well as documents held by
school boards, school administrative
offices and school libraries.
Chamberlin said he plans to release a
ranking of states that provide the most
and the least access to educational
records soon.
The Citizen Access Project will
eventually rate all the provisions of laws
governing access to information in each of
the 50 states through the use of a board of
access experts. They are rating each law
on a seven-point scale, from those with
complete openness to those that are
totally closed.
The project is funded by Marion
Brechner, an Orlando broadcast executive.
The Knight Foundation also provided
important early funding, Chamberlin said.
Details about the various research
findings, as well as links to other valuable
and informative resources are available on
the CAP Web site, at:

4 B Annual FOIReport U 2003


Group sues county
attorney has filed a complaint on behalf
of an activist group alleging Franklin
County commissioners have violated the
state's Open Meetings Law when they
unanimously enacted a new redistricting
Concerned Citizens of Franklin
County, Inc., a not-for-profit group of
civic activists, is attempting to block
judicial approval of the new redistricting
plan by arguing the plan should be
nullified because commissioners failed to
provide advance public notice that

for Sunshine claim

redistricting would be taken up at a
meeting. The complaint also argues that
commissioners communicated about the
plan before the meeting.
Attorney Robert Rivas wrote in his
motion that the "[commissioners] did not
have a lawful prerogative to formulate a
redistricting plan during the closed
meeting in order to present said plan for
perfunctory ratification at a subsequent
public meeting."
Rivas is seeking nullification of the
plan as well as attorney's costs and fees.

Florida "gag law" statute questioned

KEY WEST A federal magistrate
determined that a state statute that
resulted in the arrest of a Key West
journalist who published columns
criticizing local police in2001 was
Magistrate John J. O'Sullivan wrote
that the First Amendment
rights of journalist Dennis
Reeves Cooper were FI
violated by the city of Key AI
West when Cooper was


arrested. According to state
statute 112.533, itisa criminal
misdemeanor for anyone involved in an
active internal police probe, including the
person who filed the complaint, to
publicize information about the
Cooper filed a complaint in May 2001


with the Florida Department of Law
Enforcement about the police
department's handling of an
investigation about a traffic officer, who
Cooper claimed had falsified information.
Cooper wrote about the complaint in his
column and was arrested.
Criminal charges against
T Cooper were dropped, but
the American Civil Liberties
MEST Union filed a civil lawsuit to
compensate Cooper and ask
that the statute to be struck down.
A federal judge declared the statute
unconstitutional in 1990, writing that it
"chills free speech and chills the
expression of truthful information," but
the Florida Legislature changed the
language slightly, creating the new
statute. (11/14/03)

Newsletter publisher wins judgment

Palm Beach-based stock market
newsletterpublisherwona $20-million
judgment after suing financial giant Legg
Mason for copyright infringement.
Lowry's Reports Inc., which publishes
the Technical Market Advisory, sued
Legg Mason after the company ignored a
cease-and-desist order to stop
distributing copies of their newsletter to
brokers throughout the country. The
newsletter is sold as an e-mail
subscription for an annual fee of $700.
According to Thomas Kirby, the
attorney representing Lowry's, Legg
Mason officials claimed they were not

responsible for the electronic distribution
of the newsletter to its 1,000 employees,
saying they had no policy requiring the
distribution among employees.
"Rather than acknowledge corporate
responsibility, Legg Mason persisted in
representing it as a simple mistake by
lower-level employees," Kirby said.
Harry Baisden, publications director
for the Newsletter & Electronic
Publishers Association in Arlington, Va.,
said Lowry's is unique because a jury
decided the case. Similar cases are
usually settled out of court or decided by
a judge, Baisden said. Legg Mason is
considering an appeal. (10/23/03)

Citrus department

appeals advertising

tax decision

VERO BEACH- The Florida
Department of Citrus is challenging a
lower court decision that ruled
government-mandated citrus 'box' tax
paid by growers violates their First
FIRST rights.
1 Citrus
AMEN ENT growers filed
the original
lawsuit last year, claiming the mandated
tax violates their free speech rights
because the tax money pays for generic
advertising on oranges and grapefruits
they didn't necessarily produce.
Riverfront Groves President Dan
Richey, a member of the Florida Citrus
Commission, maintains that generic citrus
advertising funded by the tax is
"In light of the fact we have a record
crop and a no-carb diet craze that
prohibits orange juice, we've got to keep
advertising," Richey said. "You don't
cut advertising when you have a record
crop and declining movement."
Richey said he believes the judge
missed a few arguments on behalf of the
Department of Citrus and anticipates a
ruling that will uphold the tax.
The appeal was filed in the 2nd District
Court of Appeal inLakeland. (11/7/03)

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The Brechner Report U December 2003 3

Winning series uncovers FBI secrets using the FOIA

I was a journalism student at the University of
California at Berkeley in 1981 when I sent off a
Freedom of Information Act request for FBI records
concerning the university. I knew that in the fifties and
sixties UC had been involved in some of the nation's
biggest protests over academic freedom, free speech
Te and the Vietnam
She War. I was

Back Page

curious about
what the FBI had

By Seth Rosenfeld been up to behind the
But I had no idea that I was embarking on what would
become a two decade fight to get the FBI files; that I would bring
three lawsuits under the FOIA that would reach the U.S. Supreme
Court; and that ultimately the FBI which had denied snooping
on campus would release more than 200,000 pages showing J.
Edgar Hoover's bureau had conspired with the head of the CIA
to harrass students and faculty, contributed to the 1966 defeat of
Democratic Governor Edmund Brown, provided secret political
support to his successor, Governor Ronald Reagan, and waged a
covert campaign to get UC President Clark Kerr fired.
I figured I would get the files within a year or so; after all,
the FOIA is the main federal law requiring timely public access to
executive branch records. Months passed with no reply from the
FBI. Finally the bureau sent me a letter saying processing the
papers would cost about $35,000, and it would gladly start as
soon as I put 25 percent down. I asked the FBI to waive fees,
which agencies must do if releasing the documents would benefit
the public. But in the bureau's editorial opinion, there was no
public interest. I was stonewalled. But in 1984, a pro-bono lawyer
took my case and I sued for a fee waiver. A federal judge ordered
the bureau to waive all fees.
The FBI finally released a small batch of files, but they were
so heavily censored I had to wonder if the bureau was the
nation's largest consumer of Magic Markers. The FBI claimed the
deleted information had to be withheld to protect national
security, law enforcement operations and the privacy of people
named in the papers.
Based on my own research, I believed those claims were
greatly exaggerated. I sued again to challenge the deletions. In
1988, a federal magistrate ordered most of the information

released, but the FBI appealed. In 1991, a federaljudge
affirmed the ruling, saying the records should be
disclosed because they go to "the very essence of what
the government was up to during a turbulent, historic
period." I filed a third lawsuit challenging the FBI's
delays in releasing the records.
But the FBI still refused to release the files, and
appealed to the U.S. Court of Appeals. In 1995, that
court concluded the documents must be released
nfeld because they concerned not legitimate law enforcement,
but unlawful campus spying. The court said the records showed,
among other things, that "the FBI waged a concerted effort in the
late 1950s and 1960s to have Kerr fired ... because officials
disagreed with his politics or his handling of administrative
By now, five federal judges had ordered the bureau to fork
over the files. But in 1996, the FBI asked the U.S. Supreme Court
to review the case. Before the high court decided whether to hear
the matter, the FBI agreed to settle by releasing more than
200,000 pages and paying my lawyer's fees of more than
$680,000. All told, the court record shows the FBI spent more
than 15 years and $1 million in trying to suppress public records
documenting its abuse of power.
Dr. Kerr, who passed away this month at 92, was one of the
nation's most respected educators. He was fired in 1967, but
there was never any evidence of misconduct by him. He was
shocked when I showed him memos detailing the FBI's campaign
against him.
Senator Dianne Feinstein opened a formal inquiry into the
FBI's actions, telling FBI Director Robert Mueller that as "\
have seen from this Chronicle article, FOIA is often the only way
the American people can be assured of government
Once again America finds itself in a turbulent, historic time.
Once again the FBI and other intelligence agencies have been
granted great secrecy and power. The Bush Administration has
weakened the FOIA. I hope it won't take another two decades to
find out what the government is up to behind the scenes.
Seth Rosenfeld is an ,,i ,iglrlc ,. reporter for the San
Francisco Chronicle and received the 18th annual Brechner
Center FOI award for his work. To see the complete story and
the FBI documents, visit www.sfgate.com/campus.

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