Volume 28, Number 10 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of I,,r ..... a,. College ofJournalism and Communications U University ofFlorida
Court judge rules
are open to public
CITRUS COUNTY Ajudge ruled in
favor of two Citrus County property
owners, stating that Environmental
Resource and Regulatory Agency Group
(ERRAG) meetings are subject to
ACCESS Meetings Law.
MEETINGS County Circuit
Janet E. Ferris ordered the Florida
Department of Transportation to open its
meetings to the public, while the court
retained jurisdiction to decide how to
redress any decisions made at five
agency group meetings that already took
The plaintiffs, Bobby Roscow and
Teddi Bierly, have asked that actions
from those meetings be ruled void.
The dispute stemmed from meetings
between the Suncoast Parkway Advisory
Group (SPAG), which is comprised of
state and county officials, and ERRAG.
The two groups met to discuss a project
that would extend the Suncoast Parkway
through Citrus County.
SPAG's meetings are open to the
public, but ERRAG bars the public from
meetings under the premise that the
group doesn't make decisions.
According to the St. Petersburg
Times, Roscow argued that decisions
were made during the meetings between
the two groups and that notes the state
gave the public from the meetings were
Judge Ferris said the agency group is
bound to discuss private property
acquisition, land issues and property
values during its meetings while
selecting a possible route for the
parkway extension. Therefore, its
meetings must be open to the public.
Colorado Supreme Court upholds
prior-restraint order, Breyer disagrees
DENVER- The Colorado Supreme the alleged victim's sex life to be admitted
Court upheld a prior-restraint order in the in Bryant's trial may change the lower
Kobe Bryant trial, ruling that media court's decision to bar media from
organizations can't publish a publishing the transcript.
transcription of a closed- "Their release, I believe, is
door hearing. Later, A C E S imminent," Breyer said of the
following an opinion from aA C C E SS transcripts.
U.S. Supreme Court Justice, RECORDS Ruckriegle redacted 68
the trial's district judge lines out of nearly 200 pages
released an edited version of the of the transcript that detailed testimony
transcription, dealing with Colorado's rape-shield law.
In June, a court clerk mistakenly e- A majority of the transcript's information
mailed the transcript to seven media was released on Aug. 2; some of it had
organizations, whichwere immediately been released on July 29.
told by District Judge Terry Ruckriegle "It is with great reluctance that this
that they would be in contempt of court if
they published the information. The
Colorado Supreme Court upheld
court releases these transcripts,"
Ruckriegle wrote. "The effect of this
release is to present narrowly-limited,
Ruckriegle's prior-restraint order, which one-sided evidence and argument to the
the media groups later appealed to U.S. public prior to the selection of a jury and
Supreme Court Justice Stephen Breyer. without reference to the totality of the
The media's friend-of-the-court brief was evidence."
addressed to Breyer because he handles Bryant pleaded not guilty to felony
emergency appeals from the federal sexual assault and in September,
circuit that includes Colorado. prosecutors dropped all charges against
Breyer issued an opinion saying a him. The accused victim is continuing
recent ruling allowing information about her civil suit, seeking financial damages.
Judge denies access to Smith records
SARASOTA A judge denied The
Bradenton Herald's request to release
sealed records in the case of Joseph P.
Smith, who is accused of kidnapping and
killing 11-year-old CarlieBrucia.
The newspaper wanted access to
records that supposedly detailed a jail
conversation in which Smith told his
brother, John, where to find Carlie's
body. In June, the records were
accidentally released to the Sarasota
Herald-Tribune. The Herald claimed the
documents should be released because
they no longer affect Smith's right to a
Smith's attorney, Adam Tebrugge,
argued against the release, stating the
documents contain defendant statements
and should never have been released.
Circuit Judge Andrew Owens agreed,
saying he would not release the records
because they were part of more than
2,500 pages of evidence which he
ordered to be sealed earlier this year.
"It's more important to uphold the
integrity of my prior order," he said.
Carlie disappeared Feb. 1. Her
abduction was caught on tape by a
surveillance video, which spawned a
massive search leading to Smith's arrest.
According to the Herald-Tribune,
sheriff's deputies found Carlie's body
after ajail conversation between Smith
and his brother.
ACCESS RECORDS CONTINUED
Judge refuses to
County circuit judge refused to seal the
deposition of a doctor who was sued for
allegedly sharing his patients' personal
In 2002, patients sued Dr. Ken Burke
and accused him of participating in a
marketing effort that included mailing a
monthly supply of Prozac Weekly, an
antidepressant made by Eli Lilly & Co., to
patients without their prior knowledge.
Nearly 300 patients have joined the
lawsuit against Burke, Eli Lilly and
Walgreens Co., where the mailings
Burke's lawyer recently asked judge
to seal the transcripts of a deposition and
sworn statements from other doctors in
"The press does not have a First
Amendment right to pretrial discovery,"
attorney Michael Petruccelli said, adding
that sealing the information would help
ensure that Burke received a fair trial,
"free from media publicity."
Judge Robert Andrews discounted
Petruccelli's argument because the
attorney "offered no evidence" to show
how previous news accounts had harmed
Burke, "even if we assume a substantial
amount of negative publicity."
"The judge's order upholds the long-
standing constitutional right for citizens
to know what is going on in their court
system," said attorney Gary Farmer, who
represents numerous clients who have
claimed invasion of privacy.
Copies of case opinions, Florida
Attorney General opinions, or
!,., ,i,,. J ,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 ofFlorida, Gainesville, FL
32611-8400, (352) 392-2273.
AGO: Security business cannot obtain
certain home security information
Charlie Crist issued an advisory legal
opinion in response to a city attorney's
request, saying certain home security
PalmBay City ManagerLee Feldman
said a Melbourne resident with a security
business requested access to the names
and addresses of applicants for alarm
permits, all people and businesses cited
for violation of the city's alarm ordinance
and the addresses of all police runs to
alarms. However, a state law passed by
the Florida Legislature following the 2001
terrorist attacks, protects security system
"Our code as well as our reading of
the statute was that this information was
confidential," Feldman said. [The man
seeking the records] insisted that it
wasn't. I can certainly see, from his
perspective, it may not be as clear as we
Palm Bay City Attorney Nicholas
Tsamoutales asked for Crist's opinion in
Crist wrote that releasing the
requested information would reveal the
existence of security systems, which
would violate the state law.
"The disclosure of the names and
addresses contained in the specified
records would necessarily reveal the
existence of security systems," he wrote.
"It is my opinion, therefore, that [state
statutes] preclude public disclosure...."
JoAnn Carrin, a spokeswoman for
Crist, said the opinion is not law but
serves to clarify the current statute.
"You can still get information about
the numbers of violations or the numbers
of security calls," she said.
Airlines release passenger information
WASHINGTON- Six airlines, four four private companies, HNC Software,
more than originally disclosed, gave Infoglide, Ascent Technology and
private passenger information to Lockheed Martin, to compete for a
government contractors contract to develop prototypes
who were testing R IV A Y of software for CAPPS II.
prototypes of an airport P V The agency also contacted
screening system, the Airline Automation, a
Bush administration said. company that manages passenger
Rear Adm. David M. Stone, the acting information for some domestic carriers, to
administrator for the Transportation obtain personal information to use in
Security Administration, told the Senate testing the prototypes. Later, the
Committee of Governmental Affairs that contractors contacted the company
passengers' names and other directly and obtained passenger
information, including credit card information, circumventing the airlines. It
information, e-mail addresses and was unclear if the airlines knew that the
telephone numbers, were given to contractors had gained access to their
companies with whom the agency had passengers' information. Regardless,
agreements to develop the prototype of many privacy advocates argue that the
the Computer Assisted Passenger information was obtained secretly.
Profiling SystemlI (CAPPS II). "The government has to be able to
Previously, only JetBlue and American test ways to improve the system," said
Airlines were identified as having Ari Schwartz, an associate director at the
supplied information for the new Center for Democracy and Technology,
passenger-screening system, but Stone an advocacy group for privacy. "The
said Delta, Continental Airlines, America question is, 'Why do it in secrecy?' "
West Airline and Frontier Airlines also According to Adm. Stone's testimony,
supplied passengers' information. Continental denied the agency's request
"I think it is important that the public for passenger information, yet
knows that some identifying data is contractors were still able to obtain the
going to be disclosed to a government informationfrom Airline Automation. In
agency, even if it is for legitimate addition, although Delta supplied
purposes," Sen. Susan Collins, the information to the agency, airline officials
committee's chairwoman, said. later said that the data was artificially
Adm. Stone said the agency asked created.
2 The Brechner Report U October 2004
ACCESS RECORDS CONTINUED
Department releases records detailing
child abuse, child neglect case
BROOKSVILLE-The Department of
Children& Families (DCF) released
records of a Royal Highlands couple
accused of starving a 10-year-old girl
placed in their care.
On June 22, Media General, the parent
company of The Tampa Tribune and
WFLA-TV News Channel 8, petitioned
the court to open the records.
In the petition, Media General said it
realized cases involving child abuse or
child neglect are confidential. But,
Rachel Fugate, the company's lawyer,
said that in cases with "tragic"
circumstances, the public's right to
evaluate the state's failures supersedes
In July, according to The Tribune,
DCF agreed to release the records,
acknowledging the need to balance
confidentiality laws with the public's
right to know.
Circuit Judge Richard Tombrink
reviewed the records and instructed
state attorneys on what material should
or should not be deleted from
The documents detailed DCF's
decision to place the girl and her half
brother with Lori Allain and her husband,
Arthur "Tommy" Allain. The Allains
were accused of starving the girl, who
weighed 29 pounds when she was pulled
from their home, and have been charged
with aggravated child abuse and child
neglect. According to The Tribune, the
couple denied the abuse charges.
According to Don Thomas, the
District 13 district administratorforDCF,
caseworkers were negligent in placing
the child in a home that "would not meet
the standards, and would never meet the
standards of a foster home."
Thomas said an independent task
force appointed by DCF secretary, Jerry
Regier, has made 39 recommendations to
the department for changes. The district
office has made 15 changes and is
looking at how the department can make
other changes based on the
"The work on this case doesn't meet
the high standards we set [for foster care
placement]," Thomas said.
The St Petersburg
Times sues for
access to records
TAMPA The St. Petersburg Times
filed a lawsuit asking the court to force
two foster care agencies to release
records in connection with the July 4
drowning of a toddler and the drowning
of the child's older sister in the same
pool, 25 months earlier.
The newspaper wants access to
records held by the Florida Department
of Children& Families (DCF) and its
Hillsborough County foster care
contractor, Hillsborough Kids Inc.
The records contain information on
the June 2002 drowning of 2-year-old
Selia McLendon, a foster child living with
Beverly Goodson, and her younger
sister, Voncille Cannon.
The Times is seeking records
pertaining to Goodson's foster care
licensing, conditions in her home, the
home study conducted prior to Goodson
becoming caregiver to Voncille and
improvements made to Goodson's
swimming pool following Selia's death.
Both DCF and Hillsborough Kids have
rejected the newspaper's requests for
The Times' suit argues that the public
has a right to know if Selia's death was
properly investigated and whether all
necessary steps were made to childproof
the pool to protect Voncille's life.
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The Brechner Report U October 2004 3
Former city manager files lawsuit against
city of Ocoee, mayor, commissioners
OCOEE -Former city manager James talked frequently in the weeks leading
Gleason filed a lawsuit against the city up to their decision. He said the
of Ocoee, Mayor and commissioner number of calls and their timing suggest
Scott Vandergrift and commissioners that the commissioners conspired
Danny Howell and Scott against him, thereby
Anderson, alleging they A C C E SS breaking the Sunshine Law
violated several state laws, by discussing public
including the Florida M/EETINGS business in private.
Sunshine Law, when they "I find it difficult to
voted to terminate his employment, believe all those calls are just 'Hi, how
According to Gleason's lawsuit, prior you doing?' Gleason said.
to his termination, he threatened to Vandergrift denied accusations that
disclose "the fact that a majority of he and the other commissioners
commissioners committed aviolationof discussed Gleason's job during the
Florida's Sunshine Law by discussing phone calls.
and reaching an agreement upon a In addition to the lawsuit, Gleason
course and scheme to effectuate filed a complaint with the State
Gleason's terminationfrom employment Attorney's Office, which is currently
because Gleason refused to violate the reviewing the case. He is also accusing
law and ethics in dealing with the the city and commissioners of violating
demands of the commissioners in his freedom of speech and the Florida
majority." Despite his threats, he was Public Sector Whistle-BlowerProtection
terminated on March 4. Act. He is asking that he be reinstated
According to The Orlando Sentinel, to his former position, in addition to
Gleason claimed cell phone bills indicate receiving compensatory damages and
that Vandergrift, Howell and Anderson attorney's fees.
Court rules Constitution protects right to copy and inspect records
Public records litigation is often fast and furious. inspection, it was not made available for "inspection and
Expedited consideration pursuant to Section 119.11 in copying." The division argued that the "inspect or
the 2004 Florida Statutes means that the hearings, copy" language in the Florida Constitution must be read
decisions and appeals occur rapidly. That is exactly in the disjunctive and that, because Section 98.0979
what happened in a public records lawsuit filed on allows citizens to inspect the suspected felons list, the
behalf of Cable News NetworkLP, LLLP (CNN) against t statute did not create an exemption to Article I, Section
the Florida Division of Elections. 24 of the Florida Constitution and, thus, did not have to
he Thirty-three days comply with its requirements.
after the public records The court flatly rejected the division's argument,
B ack suit was filed, Florida ruling instead that the right to inspect included the right
Circuit Court Judge to copy. Judge Clark declared, "[t]he right to inspect
By Gregg Thomas Nikki Ann Clark declared without the right to copy is an empty right indeed." In so
unconstitutional a public finding, the court stressed that it is the right of the public citizen
records exemption that was cited in denying CNN's request for a and not that of the government to decide whether they want
copy of the state's list of 47,763 suspected felons, to inspect or to copy a record.
The suspected felons list was to be used to purge felons from The decision was significant.
the voting rolls who had not regained the right to vote. A similar The immediate impact of the ruling was astonishing. The day
list had come under fire after the 2000 presidential election, which after the list was released, news organizations began reporting on
was decided by only 537 votes in Florida. After that election, its inaccuracies. The Sarasota Herald-Tribune reported that
several civil rights organizations filed a class-action suit against Hispanics had not been purged from the list. The substantial
the state of Florida for allegedly wrongfully disenfranchising inaccuracies, especially the exclusion of Hispanics, caused the
thousands of voters by, among other things, relying on an division to toss out the flawed list.
inaccurate felons list. Additionally, Article I, Section 24 of the Florida Constitution
The Division of Elections had offered CNN and other news contains strict rules that the Legislature must follow in creating
media the opportunity to inspect the current list of suspected exemptions to Florida's Open Meetings and Open Records laws.
felons, but had prohibited them from taking notes or making These rules have rarely been interpreted by Florida's courts.
copies, based on a public records exemption, Section 98.0979, The long-term impact of Judge Clark's interpretation of these
which was enacted after the 2000 presidential election. rules is that the citizens of Florida will have greater access to the
CNN sued for access and declaratory relief on May 28, interactions of their government to make sure that the
asserting the "enormous public interest [in] independently government, particularly with regard to the right to vote, is
scrutinizing the potential disenfranchisement of such a large pool conducting itself appropriately.
of citizens in what portends to be another closely contested The ruling ensures that government agencies cannot skirt the
presidential race." After an expedited hearing before Judge Clark constitutional right of access to public records by granting a
on June 9, the parties cross-moved for summary judgment. limited right to inspect records while prohibiting the copying of
A threshold issue in the case was whether Section 98.0979, such records. Public records can now be copied, not just
which made the suspected felons list available for inspection but
not copying, constituted a public records disclosure exemption
governed by the strict dictates of Article I, Section 24 of the
Although the division had made the list available for
Gregg Thomas is a partner at Holland & Knight LLP in
Tampa, Fla., where he is in charge ofthe firm's media law