Title: Brechner report
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 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: July 2004
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00055
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 28, Number 7 E A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom off i,,. ..., ,1 College ofJournalism and Communications U University ofFlorida


Supreme Court

denies access to

death photographs
WASHINGTON-The Supreme Court
rejected a lawyer's request for
postmortem photos of Clinton
administrationlawyer Vince Foster,
claiming privacy concerns supersede
public disclosure when it comes to death
pictures.
Attorney Allan Favish sought the
photos, claiming they might prove Foster
was murdered as part of a White House
cover-up.
PRThe Court's
PRIVACYThdecision
weakened the
Freedom of Information Act, which
allows reporters and others to obtain
some unclassified federal records.
Justices ruled for the first time that a
part of the law that allows the
government to withhold records applies
to survivors. When requested
information contains visuals or details
that could cause pain to someone's
survivors, there must be proof of
government wrongdoing to justify the
invasion of privacy, the Court said.
Family members have a "personal
stake in honoring and mourning their
dead" without intrusion, Justice
Anthony M. Kennedy wrote for the
majority.
Both Foster's family and the Bush
administration battled to keep the
pictures private. They were supported
by Teresa Earnhardt, widow ofNASCAR
driver Dale Earnhardt, who has fought
access to his autopsy photos.
Foster's family said they hoped "other
grieving families willbenefit fromthe
Court's decision."
Five government investigations had
concluded that a depressed Foster shot
himself in the head at a Virginia park in
1993.
(3/31/04)


July 2004

Commission fails to notify public of

meeting, violates state Sunshine Law
BRADENTON- Manatee County Port the meeting. In addition, meeting notices
Authority officials acknowledged that weren't posted on the doors of the
they failed to adequately notify the commission chambers or the Manatee
public of a Manatee County Government
County Commission A f Administration Center.
meeting, in violation of theA C C E SS As a result, actions during
state's open meetings law. MEETINGS the committee meeting couldbe
Florida's Sunshine Law legally challenged and will have
requires that public boards provide to be taken up again during the
reasonable notice of meetings. Advisory commission's next meeting.
opinions from the Attorney General's "We just fell down and didn't give
Office have stated that reasonable notice enough notice in advance," McDonald
for special meetings should be at least 24 said. "The best way to correct it is to go
hours in advance, back, place it on the [commission]
David McDonald, Port Manatee's agenda and make sure it's properly
executive director, said officials posted a notified.
notice of the meeting on the port's Web "We will be reviewing our procedures
site the night before, but did not inform to make sure it doesn't happen again."
the media or release an agenda prior to (5/06/04)


Court rules county
WEST PALM BEACH- The 4th
District Court of Appeal ruled that a Palm
Beach County grievance panel violated
the state Sunshine Law when it decided
to fire a senior secretary behind closed
doors.
The appellate decision reversed a
ruling in the Palm Beach County Circuit
Court and, according to The Palm Beach
Post, could change the county's firing
procedures by requiring that all
disciplinary committee hearings be open
to the public.
The ruling stemmed from the firing of
Lee Ellen Dascott, a former secretary in
the county's Department of Community
Services. According to court filings,
Dascott was suspended by a county
grievance committee in 1998 for allegedly
using "conduct unbecoming of a public
employee." She was left out of the
committee's deliberations, the county's
first violation, according to her lawsuit.
In 2002, Dascott was given notice that
the county was going to fire her for
insubordination and for allegedly tape-


panel violated law
recording a meeting with her supervisor.
After a review panel questioned her on
the allegations, Dascott was again asked
to leave while the group deliberated.
Ultimately, her department head, Ed Rich,
fired her.
Dascott asked a circuit judge to
reinstate her and stop the county panels
from having termination deliberations in
private. The county argued that the
group discussing her termination didn't
qualify as a committee defined in the
Sunshine Law because its opinion was
only advisory. The circuit court agreed
with the county.
But, the appellate panel decided the
groups "exercised decision-making
authority," which made them subject to
the Sunshine Law. As a result, Dascott
will get her job back and will be entitled
to back pay, her attorney Frederick Ford
said.
"Any employee who has been fired by
the Palm Beach County in the last four
years has the right to file an action," he
added. (4/23/04)






ACCESS RECORDS


Two activists sue

News-Journal

Corp., claim libel
DAYTONA BEACH Two men sued
the Daytona Beach News Journal's
parent company, accusing it of libel for
publishing stories two years ago about
alleged violations of Florida's open
government laws.
The newspaper published stories on
Feb. 1 and Mar. 31, 2002 about its lawsuit
BI EL that accused
LIBOrmondBeach
Commissioners Jeff
Boyle, Joyce High and Jim Privett of
orchestrating the firing and rehiring of
City Manager Isaac Turner in January
2002. The lawsuit claimed the politicians
conducted this city business privately, in
violation of the Sunshine Law.
The stories also identified three
political activists who served as liaisons
between the commissioners. Two of
those activists, Randy Brewer and Dean
Gast, are now suing.
In his suit, Brewer called the
statements "fictional and untrue" and
published with "actual malice and with
wrongful and willful intent to injure" him.
Gast said, in his suit, the stories exposed
him to "public wrath, hatred, contempt
and ridicule."
Both men are demanding ajury trial
and damages in excess of $15,000.
Attorney Jake Kaney, who is
representing the News-Journal Corp.,
said newspapers have the right to
republishh" or"fairly summarize" official
court records.
"Neither suit has merit and both
should be dismissed," he said.
( 114 114)

DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
!,.i, 'hi,,,. ,i reported in any issue as
"on file" may be obtained upon
requestfrom the Brechner Center for
Freedom of Information, College of
Journalism and Communications,
3208 Weimer Hall, P.O. Box 118400,
University ofFlorida, Gainesville, FL
32611-8400, (352) 392-2273.


AGO: Anonymous
NORTH PALM BEACH- Attorney
General Charlie Crist said state law
requires village of NorthPalm Beach
officials to disclose anonymous letters
alleging employee misconduct, even if
the author is unknown and village
leaders say the accusations are false and
malicious.
Crist issued the opinion in response to
an inquiry from the village attorney
asking if "anonymous letters containing
allegations of misconduct of village
employees constitute public records that
must be maintained by the village."
According to Village Clerk Kathleen
Kelly, the letter that instigated the
inquiry was placed into the village's


letters are public
public records file as soon as she
received Crist's opinion. The two-page,
typed letter claimed to be from "a large
group of public service employees" who
alleged morale "is so bad everyone wants
to quit."
The authors made vague
discrimination allegations and also
accused Village Manager Dennis
Redmond of ignoring their concerns.
Redmond called the claims
"unsubstantiated, proven to be untrue
and egregious."
He said he wanted an expert opinion
before placing the letter in the clerk's file
of public letters because it personally
criticizedvillage employees. (5/06/04)


Judge says company contract is private
BREVARD COUNTY Ajudge ruled Maxwell argued it is public.
that Brevard County Commissioner "The question I'm going to pursue i
Nancy Higgs doesn't have to disclose 'Why is she hiding the contract?' he
her company's contract with lobbyist said. "I just think there's too much
Guy Spearman. closeness between her private business
According to Florida Today, Chuck interests and her public role as an elect
Maxwell, publisher of a Web site called official."
brevardwhistleblower.com, tried to force According to Maxwell, the dispute
Higgs to disclose the terms of The Paxen came about when he asked Higgs to
Group's contract with Spearman, who disclose the contract under the Florida
was hired as the county's lobbyist. The Public Records Law, but she failed to
company, owned by Higgs and her respond. Higgs said she wasn't invoh
husband, Patrick, provides training with Spearman's contract with Paxen.


programs funded by state and local
government agencies in Florida and other
states.
Maxwell wanted access to the contract
to see how much Paxen was paying
Spearman, in addition to other details.
Brevard Judge George Turner said the
contract is a private document, but


s:


s
ted





ed


She claimed Patrick, the company's chief
executive officer, handled it.
According to Higgs, at her request,
county commissioners filed a lawsuit that
asked the judge to declare the contract a
private document. Maxwell filed a
counter-complaint asking the judge to
make the contract public. (5/05/04)


Flagler County Commission sues sheriff
BUNNELL- The Flagler County The calendar included the agency's
Commission sued Sheriff JimManfre for annual report of finances, which the
access to public records on the costs of Sheriff's Office claimed was a way to get
calendars and holiday greeting cards he residents to keep the report. Officials in
sent to residents, the Sheriff's Office claim the calendar is a
The suit alleges that Manfre didn't political issue, not a violation of the law.
provide access to these records, in "There is no legitimate Sunshine Law
violation of Florida's Sunshine and [or] Public Records Law issue here,"
Public Records laws. County attorneys Sheriff s Office attorney Sid Nowell said.
believe that some of the disputed records "We have attempted and complied with
are on computers at the Sheriff's Office. every request they made."
According to the Daytona Beach The county legal staff argued that the
News-Journal, the commission requested issue is about the county's right to go to
access to the records after residents the Sheriff's Office and inspect the
complained about the calendar, asking documents themselves, not about
about the costs involved and whether it providing the commission with
was an election-year tactic by the sheriff, documents. (5/06/04)


2 The Brechner Report July 2004







ACCESS MEETINGS CONTINUED


Resident sues county, claims violation
DELAND A resident sued Volusia they "effectively decided the issue and
County claiming the county council voted in secret," in their private meetings
illegally appropriated public funds for an with Lively Arts Centerboard members,
arts center in Daytona Beach. prior to voting in the October meeting.
Computer consultant Tanner Andrews Andrews also alleged the private
filed a suit against the county, saying sessions "were not advertised to the
that private meetings in September 2003 public, nor was the public permitted to
between Lively Arts Center, Inc. attend and be heard."
members and individual council members The Sunshine Law says the public
violated the state's open meetings law. must be notified of any meeting between
The council voted in October 2003 to two or more members of the same board


give Lively Arts Center, a nonprofit
group, $600,000 a year for four years
under the county's ECHO program. The
$2.4 million would help the group
construct a $29-millionperforming and
visual arts center near the Halifax River.
The ECHO program, which is a
taxpayer-supported fund, provides
money for environmental, cultural,
historical and outdoor projects.
Andrews' suit claims council members
violated Florida's Sunshine Law when


orcommission.
The suit seeks a court decree
declaring the October vote on the
appropriation for the Lively Arts Center
void, and an injunction against
"perfunctory readoption of its decision
to fund" the project.
According to Julie Rand, director of
the Lively Arts Center, the suit will not
delay construction of the arts center,
which is expected to be completed in
winter 2005. (4/11/04)


Committee meetings opened to public
BROOKSVILLE-School district attendance zone review
superintendent Wendy Tellone decided committees.
to open the meetings of all committees "We don't need to be fighting,"
that have memberships beyond district Tellone said. "It's not appropriate to
employees, keep [deliberations] in the shade."
Her decision came after disputes with The new procedure means that
the St. Petersburg Times over whether residents can attend many meetings from
two separate committees should conduct which they were excluded in the past.
business privately or publicly. According to Tellone, school-based
Specifically, the newspaper challenged administrators will be responsible for
district plans to allow an advisory panel advising the public about the meetings in
to privately discuss the appropriateness advance. The district is currently
of Judy Blume's novel Deenie in working on an advertising system to
elementary libraries. The Times also notify citizens of meetings.
opposed the closed meetings of the (4/08/04)
New city resolution opposes Patriot Act
TAMPA The Tampa City Council the government to obtain virtually any
voted 4-3 for a resolution asking record, even those of people who are not
Congress to amend the USA Patriot Act. suspected or accused of any crime."
The decision followed President Council members Linda Saul-Sena,
Bush's request that Mary Alvarez, GwenMiller
Congress reauthorize the D T A and Kevin White agreed that
act, which was passed after RIVAL the Patriot Act erodes basic
the Sept.11,2001 terrorist Americanfreedoms.
attacks. The council joined about 289 "We will not suffer or let our civil
othercommunities, including Broward liberties suffer and we will not let [the
and Alachua county, in symbolically national government] infringe upon our
protesting the Patriot Act, asking privacy any further than it is," White
Congress to repeal parts of it and ensure said. "...I think we need to go step by
that future laws protect basic civil rights. step as far as encroaching on people's
"[The] Patriot [Act] greatly expands civil liberties and their rights."
the government's ability to invade our Council members ShawnHarrison,
privacy," Tampa citizen and retired army Rose Ferlita and John Dingfelder voted
colonel Mike Pheneger said. "It allows against the resolution. (4/16/04)


The Brechner Report July 2004 3


COURTS

Judge refuses to

impose gag order,
seal trial records
LEE COUNTY- A U. S. magistrate
judge denied Lee County School Board's
request to seal records and impose a gag
order in a pending civil suit.
Magistrate Judge Sheri Polster
Chappell signed an order denying the
school board's requests in its motion for
a protective order.
Robert Shearman, the attorney
defending the school district in a
wrongful termination case filed by former
safety director Ernest Scott, filed the
motion for the protective order.
He claimed the order was justified
because attorney inquiries in the civil
suit had gone beyond the scope of the
complaint and had "initiated scandals
and embarrassed, humiliated and held
members of the Lee County School Board
open to public scorn."
Among several requests, the order
asked the court to issue a gag order and
requested that certain materials be
sealed.
Chappell rejected each of the requests,
saying that the school board had failed
to show "good cause" in why the
discovery should be limited.
Because the citizens of Lee County
have a "substantial interest in the actions
taken by the school board, the public's
interest outweighs the private interest of
individual members of the school board,"
Chappell said.
(4/07/04)
-- -TiI--
BRECHNER
REPORT



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Civics 101: A Lesson In Basic American Principles


When I travel around the country on Reporters
Committee business, I often am astonished at how often
I'm asked to speak about what can only be described as
"Civics 101."
I've come to the conclusion it's time for a civics
lesson for all of us politicians and pundits, journalists
and citizens. All of us, apparently, have forgotten the
principles upon which this country was founded. How
else can one explain the
The secret federal court

Back Page e l case ofMohamedKamel
SBellahouel?


Lucy Da
Lucy Da


By Lucy Dalglish Bellahouel is an Algerian-
born waiter who was arrested in
2001 after he apparently waited on two of the Sept. 11 hijackers at
a Delray Beach, Fla., restaurant. He was jailed in a federal
detention center and brought an action for a writ of habeas
corpus, which is essentially a petition asking the court to order
the government to justify his detention or let him go. After five
months, Bellahouel was released, but he continued his action by
asking the court to order the records of his detention to be
publicly released. Every document in his U.S. District Court in
Miami and U.S. Court of Appeals case is sealed. We almost
didn't even know there was a file because there was no public
docket of the case.
Unfortunately, the Bellahouel case is not an aberration. Lately,
federal judges seem to have deliberately ignored established law
that bans secret imprisonment. It's time they reacquaint
themselves with the law.
Founding Father Alexander Hamilton wrote in 1788 in The
Federalist No. 84 that a government policy that allows
"confinement of the person, by secretly hurrying him to jail,
where his sufferings are unknown or forgotten" is a "dangerous
engine of arbitrary government." Hamilton didn't pull that notion
from thin air; he was quoting from the 18' Century commentaries
of English lawyer Sir William Blackstone, who called the habeas
corpus act "the bulwark of the British Constitution."
Building on that notion, in 1980, the U.S. Supreme Court found
in Richmond Newspapers v. Virginia that the public has a
presumptive right of access to criminal trials. In 1984, it further
developed the law by declaring that a judge may close access to
criminal proceedings only after making specific on-the-record


findings that "closure is essential to preserve higher
values (than the public's right of access) and is narrowly
tailored to serve that interest."
So how did we get to a point in this country where
more than a thousand men were secretly arrested, jailed
and deported on immigration violations? How can Arab
and Muslim men be secretly arrested, indicted, convicted
and imprisoned in secret?
How can the U.S. Supreme Court be deciding a case
iglish that does not publicly identify who the petitioner is or
what courts the case came from, and in which not one word of
the Solicitor General's response to the petition is publicly
available?
Some of the problem comes from the way the government has
handled terrorism cases. The Richmond Newspapers line of
cases dealt with criminal trials. While some courts have extended
protections for the public's right to know civil and administrative
proceedings, the Supreme Court has not yet addressed the
breadth of the constitutional right of access to all types of court
proceedings.
The Justice Department has taken full advantage of the
system by handling more than 750 of the detainee cases as
immigration cases, administrative proceedings conducted entirely
by the executive branch and, according to the Justice
Department, not subject to constitutional protections afforded by
the courts.
But we also know that some felony terrorism and drug
prosecutions, particularly in Florida and Washington, D.C., have
been conducted entirely in secret. None of the closures has
followed the procedures required by the Supreme Court.
The public cannot object to secret justice if they don't know
about it. Reporters must scour federal court dockets and look for
suspicious entries. They should contact local criminal defense
attorneys and ask whether entire cases are being conducted in
secret. And they should contact immigration organizations to ask
whether any local immigrants have disappeared.
We don't live in a dictatorship where people mysteriously
disappear from the streets. This is our country. And we should
start acting like we own it.

Lucy Dalglish is the Executive Director of the Reporters
Committee for Freedom of the Press in Arlington, Va.




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