Volume 28, Number 2 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
PALM BEACH- A Palm Beach Circuit
Court judge ruled that prosecutors can
review radio commentator Rush
Limbaugh's medical records to determine
whether he illegally obtained
prescriptions from a series of doctors to
support his addiction to painkillers.
fought to keep
arguing that releasing the documents
would violate Limbaugh's right to
privacy. Judge Jeffrey A. Winikoff
disagreed, ruling that the state's interest
in determining whether Limbaughbroke
the law surpassed his privacy concerns.
Prosecutors, however, may not make the
records public. Roy Black, Limbaugh's
attorney, filed a notice of appeal after the
ruling and, in a separate motion, asked
the court to stay its order until the
appeals court had reviewed the case.
The ruling was just the latest outcome
of the criminal investigation of Limbaugh,
who spent five weeks in a drug
rehabilitation facility last year for an
addiction to prescription painkillers.
Florida officials began investigating
Limbaugh after learning that he had
received thousands of painkillers
prescribed by several doctors. Officials
seized Limbaugh's medical charts and
files, but this information had been under
seal. Prosecutors argued that they
needed to review the documents to
gauge what Limbaugh's doctors knew
about his prescriptions for painkillers.
Palm Beach County State Attorney
Barry Krischer stated that the office had
"scrupulously protected Mr. Limbaugh's
rights," and added that Winikoff found
that the state had "acted in good faith."
U.S. Supreme Court to hear Cheney case
WASHINGTON-TheU.S. Supreme officials, not corporate representatives.
Court has agreed to hear Vice President Over a year ago, U.S. District Court
Dick Cheney' s arguments for keeping his Judge Emmet Sullivan ordered the White
energy task force papers a secret. House to produce documents about the
The Court said Cheney's Justice energy task force. The alternative action
Department lawyers could present a was to provide a detailed list of the
detailed explanation of why documents it was
he should not have to A C C E SS withholding, and why.
comply with a federal A The Bush administration
judge's order to produce RECORD S appealed the order, although
details of White House RD the case was not completed
contracts with the energy
In2001,the environmentalist Sierra
Club and Judicial Watch government
watchdog group sued to find out the
names and positions of members of the
vice president's energy task force that
Cheney developed a 2001 energy task
force that included a policy paper calling
for more oil and gas drilling, as well as a
revived nuclear power program.
The two plaintiff groups allege that
Cheney drafted these energy policies by
consulting industry executives like Enron
Corporation's Ken Lay, and made them
members of his task force while leaving
While Cheney acknowledged meeting
with Lay, his lawyers said that the task
force was comprised of government
in the lower court, and the
U.S. Court of Appeals refused to step in.
It said that Cheney did not have legal
standing to refuse the judge's order.
The Energy Department, the
Environmental Protection Agency and
other agencies have turned over
documents in the case, but none have
come from the White House.
Justice Department lawyers claim that
Cheney is immune to the court order on
grounds. They also argued that judicial
power cannot extend to ordering the
executive branch to disclose details
about the way the president gets advice,
like on energy policy.
The Supreme Court will hear
arguments on the case in the spring, with
a decision due by the end of June.
City Commission opposes Patriot Act
SARASOTA The Sarasota City
Commission voted 3-2 to pass a
resolution formally opposing portions of
the counterterrorism USA Patriot Act.
Sarasota became the third community
in Florida to oppose the Patriot Act,
along with Alachua and Broward
counties and more than 180 other
communities around the country.
The resolution opposes the act's
provision that allows the FBI to access
records from library and bookstore
customers, as well as individual medical,
financial and education files.
The measure asks Florida legislators
to "work to repeal certain provisions of
the USA Patriot Act and to oppose the
adoption of any new laws which may
limit or violate fundamental rights and
Commissioners Mary Anne Servian,
Fredd Atkins and Danny Bilyeu voted in
favor of the resolution. Mayor Lou Ann
Palmer and Vice Mayor Richard Martin
voted against it.
"I just feel this is something that does
not belong at this table," Martin said.
ACCESS RECORDS CONTINUED
Panel votes to
PALM BEACH A county panel in
recommended that the county continue
charging more for certain public property
information than the law currently allows.
The decision was made despite the
Florida attorney general's opinion that
Palm Beach County is violating the state
Public Records Law.
The Geographic Information Systems
Policy Committee decided that the
county should continue to charge people
for more than copying costs if they want
to use copyright-specific technical
informationfor commercial purposes.
Attorney General Charlie Crist wrote in
an opinion that such a policy "would
conflict with Florida's Public Records
Law." Crist said the law only allows the
county to charge for the cost of copying
The panel voted to recommend that
the County Commission reduce the fees,
but to a price that is still more than
Linda Culbertson, chief deputy clerk in
charge of legal records for Clerk of the
Circuit Court Dorothy Wilken, was the
only member of the 12-person committee
to oppose the extra fees.
"We are simply the custodians and we
have the responsibility to provide
access," Culbertson said.
She said her vote was "consistent
with the way we do business and our
interpretation of the public records laws."
The County Commission has yet to
make a final decision on the issue.
Copies of case opinions, Florida
Attorney General opinions, or
.i, ,'a. '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.
County Attorney's office grants clerk
access to exempt county documents
COLLIER COUNTY-The County
Attorney's office reversed a decision
that denied the Collier County Clerk of
Courts access to certain documents
related to the widening of Immokalee
Elected Clerk of Courts Dwight Brock
made a public records request in
November 2003 to obtain research, legal
strategy and other documentation that
supported the county's claim that it had
a right to approve millions of dollars in
change orders for the project. The
county refused to hand over the
documents, claiming they were exempt.
Officials with the County Attorney's
office originally concluded that the
documents were exempt from release
under the Public Records Law because
they dealt with privileged
The decision was reversed after Brock,
who is responsible for paying the bills of
county government and making sure that
all expenditures are legal, said the public
records were needed to perform an audit.
Florida Statute 119.07(6) says the
designated auditor of a governmental
body cannot be denied access to public
records of that government body while
conducting an audit.
Assistant County Attorney Michael
Pettit said that the county wasn't aware
until then that Brock was requesting the
documents to do an audit. He also
agreed that $1,300 for staff time and
copying fees incurred while complying
with Brock's records request will be
The county is widening a 8.1-mile
segment of Immokalee Road that was
initially bid to be increased from two to
four lanes. After the original bid, county
officials decided to widen the road to six
lanes and approved change orders of
more than $3.8 million.
Brock believes that the additional
lanes and costs mean the project will
have to be bid on again. Officials with
the County Attorney's office disagree,
and the issue is expected to end up in
GAINESVILLE- Two womenfiled a
complaint against the University of
Florida (UF), to compel university
officials to release documents concerning
UF's hazardous waste policies.
Gay Webster and Catherine Good
Duncan claim that a university-run
landfill caused their potentially fatal
They also allege that they have
continually asked for specific documents
and received no response from the
"Previous responses to our public
records requests have been under-
inclusive and the university has provided
nothing for over a month in response to
our most recent public records request,"
said Jim Alves, attorney for Webster and
University officials say that the
request for the information requires the
production of tens of thousands of
"The university was not able to
respond to your request earlier given the
massive amount of documents you have
requested," UF associate general counsel
David Klan wrote to Alves.
Klan also added that the original
documents were available for inspection
at "any mutually convenient time."
Last year, the two women told state
environment officials that they planned
to sue UF unless appropriate
enforcement action was taken.
One month later, UF and the Florida
Department ofEnvironmental Protection
finalized a consent order that required the
university to submit a site assessment
plan that determined the degree and
extent of any contamination.
In the mid-1970s, the two women lived
near the former landfill that is now
partially covered by the Southwest 34th
Street commuter parking lot.
Webster has a rare recurring tumor
and Duncan has been diagnosed with
breast, thyroid and cervical cancers.
They continue to investigate the
extent of contamination they may have
been exposed to while living near the
2 The Brechner Report February 2004
Women file complaint to force release
of University of Florida documents
Federal appeals court protects privacy
and information of
WASHINGTON A federal appeals
court ruled that the recording industry
cannot force Internet companies to
disclose the names of people who are
trading music online by using legal
The ruling overturned a U. S. District
Court decision that allowed the music
industry to force disclosure of
individuals by submitting subpoenas to a
court clerk without winning a judge's
Verizon Communications had brought
suit against the Recording Industry
Association of America to protect the
identities of its Internet customers.
"It's [the ruling] a huge victory for all
Internet file sharers
Internet users," said Sarah Deutsch, vice
president and associate general counsel
for Verizon Communications. "The court
today has knocked down a very
dangerous procedure that threatens
Americans' traditional legal guarantees
and violates their constitutional rights."
The ruling is a major setback to record
companies in their efforts to eliminate the
online sharing of copyrighted songs.
Cary Sherman, president of the
recording association, said the case "is
inconsistent with both the views of
Congress and the findings of the district
court," and that his organization will
continue to sue those who violate
The Ledger files lawsuit alleging violation
LAKELAND The Ledger filed a
lawsuit against the Florida Department of
Citrus, claiming the department violated
the state's Sunshine Law.
The newspaper claimed
that a reporter was barred
from attending a meeting
where the preliminary
findings of a study
evaluation on the department's orange
juice advertising were under review.
The lawsuit addresses the issue of
whether the meeting of a peer committee
of economists, most connected with the
state's citrus industry, was subject to the
The committee was formed by the
Advertising Review Committee, created
Officers sue station,
TAMPA Three Tampa police
officers filed lawsuits claiming that the
WFTS-TV series "Bad Cop, Big
Promotions" held them in false light and
invaded their privacy.
They are suing both
the station and reporter PRIV A
Mike Mason over the
May 2003 series, which
suggested that many officers were
promoted out of friendships, not
The report mentioned that police
officers Mary O'Connor, Paul Lusczynski
and Keith O'Connor had past
disciplinary actions taken against them.
And, that despite their respective
incidents, each of the three officers had
by the Citrus Commission, to supervise
the advertising study.
The Ledger filed a lawsuit last year
against the Citrus Department after its
reporter was barred from a
E SS meetinginJanuary 2003.
Judge Harvey Kornstein,
INGS who heard and ruled on the
case, ordered the committee
to meet again with a court reporter
present to transcribe the proceedings.
Hank Campbell, the commission' s
attorney, defended the recent meeting,
arguing that the peer committee is not a
public body subject to the Sunshine Law
because it has no decision-making
power. He added that the committee is a
fact-findingbody only. (10/1/03)
reporter over series
In their lawsuit, the officers state that
they are not corrupt and do not lack
In addition, the lawsuit
refers to a follow-up story that
CY implied the three officers
weren't recently promoted
because of the "Bad Cops, Big
The officers claim they have not been
promoted because of their failure to
complete minimum stay in their recent
Channel 28 News DirectorBill Berra
said the station stands by its reporting
and the lawsuit allegations are
Proposed bill would
ban eight offensive
words from airwaves
WASHINGTON-Rep. DougOse (R-
Calif.) introduced the Clean Airwaves Act in
reaction to U2 lead singer Bono's use of
profanity during the 2003 Golden Globe
The Parents Television Council filed a
complaint with the Federal Communications
Commission(FCC) afterBono made the
vulgar comment while receiving a Golden
The FCC ruled that the word he used, in
the context that it was used, was not
It claimed it would not take action just
because certain words, "even expletives or
other four-letter words," were used.
"C'mon, give me a break," Ose replied to
the decision. "I don't think there's a parent
in the country who wants to hear this stuff
come out of their TV."
The bill would bar eight offensive words
from the airwaves and amend the U.S. Code
relating to indecency. If passed, it would
force the FCC to examine the words and
phrases by themselves, regardless of the
Currently, FCC rules prohibit indecent
broadcasts at times when children are likely
to be watching or listening.
Ose's bill would ban the use of the words
"with each other or with other words or
phrases, and other grammatical forms of
such words and phrases."
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The Brechner Report February 2004 3
Audit exposes how policy discourages FOIA disclosures
This is the first in a series of articles concerning the
results of the federal Freedom of Information Act audits
conducted by the National Security Archive.
What have they got to hide?
Although the events of Sept. 11 are blamed for the
culture of secrecy, many new restrictions on the flow of
The informationinthe Meredith
Back Page last two years have
nothing to do with such
By Meredith Fuchs concerns.
Attorney General John Ashcroft's 2001 guidance concerning the
administration of the Freedom of Information Act (FOIA) by
federal agencies. The Attorney General's memorandum reversed
a policy of maximum disclosure that had been put in place by his
predecessor, Attorney General Janet Reno.
Under the Reno guidance, agencies were required to release
information that fell within their discretion to withhold, unless
they could identify a foreseeable harm that would be caused by
In contrast, the Ashcroft guidance highlights the importance
of Exemption (b)(5) of the FOIA, which permits information to be
withheld to protect the deliberative process privilege, and
counsels that any discretionary decision to release information
under FOIA should fully consider the institutional, commercial
and personal privacy interests that could be implicated by
disclosure of the information.
In Phase One of a multiphase audit conducted in 2003, the
National Security Archive sought to test whether the Attorney
General's guidance had changed the way the federal bureaucracy
handles FOIA requests.
Specifically, the Archive asked 35 federal departments and
agencies that handle over 97% of the FOIA requests filed each
year about the implementation of Attorney General Ashcroft's
Although told in advance by senior FOIA officials that the
Ashcroft guidance had "a soft landing," the Archive found that
39% of agencies incorporated the more restrictive policy into
their FOIA programs.
Specifically, the Archive found that 5 of 33 responding federal
agencies (15 %) indicated significant changes in
regulations, guidance and training materials and another
8 federal agencies (24 %) also disseminated the
guidance and incorporated it into FOIA regulations or
These findings were confirmed several months later
when the General Accounting Office (GAO) released the
results of its survey concerning the impact of the
Fuchs Ashcroft guidance on federal agencies.
GAO reported in "Agency Views on Changes
Resulting from New AdministrationPolicy" (September2003) that
one-third of the FOIA officers surveyed reported a decreased
likelihood of their making discretionary disclosures. Seventy-five
percent of these cited the Ashcroft guidance as the reason for
changing their practices and withholding more records from the
What is the result of the Ashcroft guidance? More secrecy in
government. And the blame for the increased secrecy cannot all
be attributed to terrorism concerns.
The change in FOIA practice can also be seen in the increased
use of specific exemptions. In 2003, the Reporters Committee for
Freedom of the Press found dramatic increases in use of FOIA's
personal privacy exemption (b)(6). The same increases were not
found with respect to FOIA's national security exemption (b)(1).
It is not hard to find vocal proponents of secrecy to protect
commercial interests, privacy and the government's privilege to
make decisions behind closed doors. It is much harder to
overcome public complacence at government efforts to control
information during a time of national insecurity.
On close examination, however, the link between many
secrecy initiatives and national security can rarely be found.
We must look hard and ask questions when we see the door
to the government slamming shut and find ways to demonstrate
to the public that an open government protects our safety and
Meredith Fuchs is the General Counsel of the National
Security Archive, a non profit research institute in
international u(i ii r, and a public interest law firm defending
and expanding public access to government information
;i/,. ,,gi the FOIA. A full copy of Phase One of the FOIA audit
can be found on its Web site at www.nsarchive.org.