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Title: Brechner report
Series Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: December 2004
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Volume ID: VID00060
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Full Text

Volume 28, Number 12 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
December 2004


Appeals court rules

records were

properly seized
WEST PALM BEACH A state
appeals court ruled that prosecutors did
not violate radio show host Rush
Limbaugh's privacy when they seized his
medical records during an investigation
on his
PRIVACY alleged
drug use.
In November 2003, investigators
searched the offices of Limbaugh's
doctors looking for information on
whether the radio commentator illegally
"doctor shopped," or obtained painkillers
from multiple doctors.
In a 2-1 written opinion, the three-
judge panel of the 4t District Court of
Appeal rejected Limbaugh's argument
that his privacy rights trumped the
investigator's power to seize his records.
The court also said prosecutors did
not have to notify him of the warrants or
give him an opportunity to challenge
them.
"The state's authority to seize such
records by a validly issued search
warrant is not affected by any right of
privacy in such records," the panel ruled.
Limbaugh, who admitted he became
addicted to painkillers, has not been
charged with a crime. His lawyer, Roy
Black, has appealed and the case is now
going before the state Supreme Court.
"We strongly disagree with the
decision of the court majority because it
does not recognize a patient's right to
medical privacy that Congress, the
Florida Legislature and the citizens of
Florida have granted to patients such as
Mr. Limbaugh," Black said.

SPECIAL REPORT

I 'tv ',in .fi I .int i 0 t. in l i .' r i .
in'i lu. .J in rhi -I p !l b,-41-,


Ex-commissioner's appeal denied,

conviction for law violation stands
TALLAHASSEE-Athree-judge The violation was discovered during a
panel of the lst District Court of Appeal criminal investigation by the State
upheld the conviction and Attorney's Office into
jail sentence for former State A C C E SS corruption allegations on the
Senate President W.D. Escambia Board of County
Childers, who violated MEETINGS Commissioners. Currently,
Florida's Open Meetings Childers is also appealing
Law by secretly meeting with other felony bribery charges related to that
officials. investigation.
Childers, also aformerEscambia The state Sunshine Law requires that
County commissioner, was convicted by meetings between two or more elected
a jury in 2002 after he discussed public officials be held in public with proper
business in secret with fellow notice given and minutes taken.
commissioner, Terry Smith. Judge T. According to the Pensacola News-
Patterson Maney sentenced Childers to Journal, if a further appeal is not sought,
the maximum penalty forthe conviction: Childers will be back in court about the
60 days injail, a $500 fine and $3,600 in remaining days of his jail sentence.
court costs. According to the St. Childers is the first public official to
Petersburg Times, he has already served serve jail time for violating the open
38 days of his jail sentence, meetings section of the Sunshine Law.

Federal judge rules Patriot Act

provision is a Constitutional violation


NEW YORK A federaljudge inNew
York struck down an important provision
of the USA Patriot Act,
ruling that it violated the A C C
Constitution by allowing
the FBI to demand RECO
informationfrom Internet
service providers without judicial
oversight or public review.
U.S. District Judge VictorMarrero
ruled in favor of the American Civil
Liberties Union (ACLU), whichfiled a
lawsuit on behalf of an unidentified
Internet service provider. The ruling was
the first to uphold a challenge to the
surveillance section of the Patriot Act,
which was adopted in October 2001 to
expand the surveillance power of federal
law enforcement.
The Internet provider, whose name is
being kept secret by the court, received a
national security letter from the FBI,
demanding it produce customer


information, according to USA Today.
National security letters do not require
court approval and prohibit
'ESS companies from revealing that
SS such demands were ever


D S made.
"In general, as our
Sunshine Laws and judicial doctrine
attest, democracy abhors undue
secrecy," Marrero wrote. "Hence, an
unlimited government warrant to
conceal... has no place in our open
society."
He ordered the Justice Department to
stop issuing the letters, but then delayed
the injunction by 90 days to give the
government a chance to appeal or fix the
law.
"This is a wholesale refutation of the
administration's use of excessive secrecy
and unbridled power under the Patriot
Act," ACLU lawyer Ann Beeson said.
"It's avery major ruling, in our opinion."


THE



BRECHNER


REPORT


I_


R







ACCESS RECORDS CONTINUED


Group sues for

access to rejected

applications
WEST PALM BEACH A nonprofit
organization filed a lawsuit against the
Palm Beach County elections supervisor,
claiming she violated the Public Records
Law when she refused to provide copies
of rejected voter registration
applications.
America's FamiliesUnited, an
organization that supports voter
registration throughout the United
States, claims the state law allows public
access to rejected registration
applications.
Elections Supervisor Theresa LePore
says the law allows public examination,
but not copying, of the applications.
Information including applicants'
telephone numbers, drivers license
numbers or partial Social Security
numbers is on the voter registration
applications.
In July, the nonprofit group filed a
public records request with the election
supervisor's office seeking registration
applications that were denied "for any
and all reasons" in addition to pending
applications.
"I have to follow the law and the law
is very specific," LePore said, defending
her refusal of the release.
Attorney Judith Browne, in a follow-
up request from the Advancement
Project, acknowledged that state law
limits public access to voter registration
lists.
But, she argued, that law does not
apply to rejected applications.


DECISIONS

ON FILE

Copies of case opinions, Florida
Attorney General opinions, or
!,., ,il,. ,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.


Melbourne Airport Authority approves

move, requests records stay private


MELBOURNE- The Melbourne
Airport Authority approved a move to
ask federal officials to restrict the
public's access to security-related
records.
Group members were divided over
whether or not the request would
obstruct the public's right to records.
Despite the concern, the request passed
in a 4-3 vote.
Prior to the decision, Jim Johnson,
Melbourne International Airport
executive director, proposed to the
federal Transportation Security
Administration (TSA) that documents
detailing the airport's master plan and
emergency response plan be withheld
from the public.
He also asked the agency to create a
clearinghouse in which requesters of
certain information would be identified if
they didn't provide a reason for needing
the documents.
The Melbourne City Council
responded to Johnson's proposal,
strongly urging him to withdraw the
request. He said he would, only if the
Melbourne Airport Authority directed
him to do so.


Johnson said the request stemmed
from concerns that information in the
documents, such as the location of the
airport's electrical vault, could fall into
the wrong hands.
"I think those are the things we don't
want to get into the terrorists' hands," he
said.
Critics of the decision say that citizens
need access to airport information.
"This takes the public out of a very
important part of the public discussion,"
Melbourne Village Mayor Rob Downey
said. "I think it's a misuse of the
Homeland Security Act."
Downey also referred to a state law
passed after the Sept. 11, 2001 terrorist
attacks that gives airports the right to
restrict some information.
This law, he said, "would prevent
people from getting things that could be
dangerous."
Johnson argued the law is too vague,
but pointed out that the TSA could,
altogether, reject his request.
"These are things I think about all the
time," he said. "I don't know for sure if
we'll hear back from TSA on these
requests."


FCC stops giving public access to


outage reports, cites
WASHINGTON Citing concerns
about national security, the Federal
Communications Commission (FCC)
decided to stop giving the public
access to information about past
telephone network outages.
The decision upset several consumer
advocates and state regulators, who
say the information is critical to
evaluate phone service reliability
around the country.
According to the Sarasota-Herald
Tribune, such records typically include
information about the cause of an
outage, how long it lasted and how
many customers it affected. State
regulators, consumer groups and
consultants use the reports to
determine which companies are most
reliable. Large companies also use the
information to decide where to build
their own networks.
Such information "is essential to


security concerns
your ability to understand what is
going on," said Brian Moir, a lawyer
who represents large business
customers.
In addition, those opposing the
FCC's decision said the commission's
concern over national security is
overstated.
"If you look at 99 percent of
incidents that trigger reports, they are
not what I call Osama [bin Laden]
issues," Moir said.
But an FCC official who was
involved in the decision said a report of
a downed line that results in a major
outage could help terrorists pinpoint
weaknesses in a large network.
"What the national security guys are
telling us is that it is a mistake going
forward to make outage reports]
available publicly," said Fred Thomas,
chief of staff with the FCC's Office of
Engineering and Technology.


2 The Brechner Report U December 2004









THE BRECHNER CENTER


ANNUAL FREEDOM OF INFORMATION REPORT


Published by The Brechner Center for Freedom ofl I,.....i. U,..,, College ofJournalism and Communications U University ofFlorida
2004


Florida Legislature approves 14 new

access exemptions during session
The Florida Legislature passed 14 new children( 2004-348).
public records exemptions during the The eleven other public records
2004 legislative session. This number exemptions that passed during the
represents considerably more exemptions legislative session include:
than have been passed An exemption for
in the past few years. building plans and
During the session, LEGISLATURE blueprints held by a public
the Legislature passed agency relating to specific
a bill prohibiting the government and facilities ( 2004-317).
private persons, with limited exceptions, An exemption for personal
from compiling or keeping any record of information of certain hospital employees
privately-ownedfirearms. Furthermore, ( 21' '4-4 ,4).
the bill required the destruction of any An exemption for information that
such list or registry by July 12 ( 2004- would identify or help locate a child who
155). participates in government-sponsored
Another bill passed by the Legislature recreationprograms ( 2004-635).
revised an exemption for personal An exemption for information
information contained in a motor vehicle contained in patient safety data or other
record. This revision exempts personal records maintained by the Florida Patient
information from such records unless the Safety Corp. ( 2004-702).
subject elects to make his or her record An exemption from public records
subject to the public disclosure ( 2004- and public meetings requirements for the
1737). Florida Institute for Human and Machine
In addition, the Legislature passed a Cognition, Inc. ( 2004-951).
bill that exempts personal identifying An exemption for manuscripts or
information contained in records of U.S. other archival materials held by an official
Attorneys and Judges. archive of municipality or county
Home addresses, telephone numbers, ( 1 2'1"4-1 .'' ,).
Social Security numbers and An exemption for written valuations
photographs of current or former of state-owned land determined to be
attorneys and judges, their spouses and surplusland( 2004-1833).
their children are all exempt under this An exemption for specified records
bill. It also creates an exemption for their of military installations and missions
spouses' places of employment and the subject to the U.S. Department of
names and locations of the schools and Defense Base Realignment and Closure
day care facilities attended by their 2005 process ( 2004-2496).
An exemption for personal
SPECIAL UPDATE identifying information of a child held by
a children's service council or juvenile
__ K i' k r. i n ri. ,rn I I,-n welfareboard(2004-2704).
i.Id I r. rh, 1M l':h .InrLLi 'i h An exemption for certain records
k . i trh i obtained by the Department of Revenue
i i.o-r Lt- in I uoii r,. i. rJ under insurance claim data exchange
i- n .r i ,t r!l, 14 ,I: system( 2004-2826).
S,_,,. : .:'..n ,n An exemptionforuser
i ,,n ,,1. .. Jri i. r ir identifications and passwords held by
SI.t1..h ,11 .theDepartmentof State ( 2004-3006).


Audit: Agencies

refuse to comply

with requests
A statewide investigation revealed
that a large percentage of Florida
agencies refuse to comply with records
requests according to the Open Records
Law.
In January, reporters and other media
employees from
about 30 Florida
newspapers posed ACCESS
as citizens at 234
local agencies in 62 RECORDS
Florida counties.
They asked for
records such as 911 call logs from
sheriff's offices, city managerjob
reviews, county administrator e-mails and
school superintendent cell phone bills.
The goal of the investigation was to
see how regular citizens are treated when
asking for public records.
The study revealed that 43 percent of
the agencies audited made unlawful
demands or refused to comply with
records requests. Many officials
demanded to know who the volunteers
represented and what they planned to do
with the information, which are clear
violations of the law.
"The results were disappointing for a
state that prides itself on being a leader
in open government," State Attorney
General Charlie Crist said. "My hope is
that once the results of the audit become
known, this will become an educational
opportunity."
The Florida Public Records Law
guarantees citizens access to public
records. The public can inspect any
document generated by the government
unless it carries a specific exemption.
The audit was organized by the
Florida First Amendment Foundation, the
Sarasota Herald-Tribune and the Florida
Press Association. The Herald-Tribune
analyzed the results of the audit.


Annual FOI Report U 2004 B







Suspected felons

list released,

errors found
In July, a state court judge ruled that
the Florida board of elections must
release a list of nearly 50,000 suspected
felons to Cable News Network (CNN).
CNN had sued
A CCESS Florida's Division
of Elections for
R ECORDS access to the list,
ECORDS which contained
the names of
people who were possibly ineligible to
vote in the presidential election because
they were felons, had multiple
registrations or died since the last
election. The state responded to the
lawsuit, claiming the list was preliminary
and should not be released publicly.
The list is a public record, but
according to state law, only certain
people and groups such as political
parties or candidates can get copies.
CNN, in addition to members of the
general public, was invited to view the
records at the division's headquarters,
only under the condition that there was
no photocopying or note-taking.
"The right to inspect without the right
to copy is an empty right indeed," Leon
County Circuit Judge Nikki Clark said.
"Whether the public chooses to inspect
or copy [the list] is not the choice of the
governmental agency which has custody
of the record. It is the choice of the
person who has requested access."
A few days after the ruling, Secretary
of State Glenda Hood said she was
scrapping the controversial list. An error
in the list failed to identify thousands of
Hispanics who were registered to vote
but possibly had criminal histories, she
said.
In the 2000 election, Florida state
officials purged voter rolls of more than
173,000 names identified as felons or
otherwise ineligible to vote. According
to CNN.com, many civil rights activists
and county election supervisors have
charged that those lists contained
numerous errors and that these errors
prevented thousands of voters from
casting ballots in the election. Nearly all
of the people wrongfully purged from the
voter list were Democrats and more than
half were African-Americans, saidBBC
reporter Greg Palast. President Bush
edged opponent Al Gore in Florida by a
margin of 537 votes to win the state and
the national election.

2 B Annual FOIReport U 2004


State Attorney General addresses


Open Meetings Law issues
The state's Open Meetings Law and equipment acqu
applies to a nonprofit corporation funds from Escambi
established by the Legislature to lease departments aren't
and manage the correction work merely because they
programs of the funding
Department of Corrections, purpose
according to Florida A TTORNEY through
Attorney General Charlie with tl
Crist. PrisonRehabilitative G ENERAL a servi
Industries and Diversified V
Enterprises (PRIDE) must f( nTT t'n To Associ


give reasonable notice,
open its meetings to the
public and record minutes (AG
This was just one of many
opinions Crist issued during 2
opinions pertaining to the sta
Meetings Law included:
Volunteerfire department
meetings (AGO 04-32)- The
Meetings Law applies to the I
directors of volunteer fire dep
because they hold "official cc
governance meetings" and "p
firefighting services to and us


l .#I ii'


SILIN 3 (AGO


ired with public
a County." The
subject to the law
Receive county
g, but because their
;e is accomplished
h an arrangement
he county to provide
ce to county citizens.
olunteerFiremen's
nation, Inc. meetings
04-32)-The


Firemen's Association is an
O 04-44). organization that solely provides an
access opportunity to discuss common
004. Other concerns, and therefore, its forum would
te's Open not, by itself, be subject to the Open
Meetings Law.
it board Risk management committee
Open meetings (AGO 04-35) A meeting by a
board of city's risk management committee is
artments exempt from the Open Meetings Law only
,rporate when such a meeting is held to review
provide certain proposed claim settlements under
e facilities the city's risk management program.


Other notable access
Copies of voted ballots (AGO 04-11)
- Designated persons are not required to
provide photocopies of the actual
optically scanned ballots cast in a
municipal election to comply with a
public records request.
Audio recording of staff meetings
(AGO 04-15) Audio tape recordings of
Expressway Authority staff meetings
made by a secretary to prepare minutes,
when requested by the executive
director, are public records subject to the
Public Records Law. Even when the
meetings are not subject to the
Government in the Sunshine Law and
there is no legal requirement that minutes
be kept, any records made at the request
of the executive director is considered an
independent record of the proceedings,
thereby subject to the law.
Anonymous letters (AGO 04-22)-
The state law requires officials to
disclose anonymous letters alleging
employee misconduct, even if the author
is unknown and village leaders say the
accusations are false and malicious.
Disclosure of name and address of
security system owner (AGO 04-28)-
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


-related opinions
of all police runs to alarms are private
information. Releasing such information
would reveal the existence of security
systems, which would violate the state
law.
*Forwarding mailto private
residences of the mayor (AGO 04-43)-
Mail addressed to the mayor or a city
council member at City Hall should not
be forwarded, unopened, to the private
residences of the official. Rather, the
original copy of the mail, which
constitutes a public record, should be
maintained at city offices for public
inspection and copying.
Records obtained bythe police (AGO
04-51) -Besides obscene material, any
materials seized by a police department
that are part of a criminal investigation
are public records.
Sheriff's offices and the motor
vehicle records exemption (AGO 04-54)-
In the 2004 session, the state Legislature
passed a bill that exempts disclosure of
personal information contained in motor
vehicle records. This exemption applies
only to personal information contained
in motor vehicle records of the
Department of Highway and Safety and
Motor Vehicles. It does not authorize a
sheriff's office to exempt such
information from its records.


I | I I







2004 lawsuits focus
During 2004, there were several
important cases relating to Florida's
Sunshine Law. Below are summaries of
the year's most notable lawsuits.
In April, the 4t 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 panel decided the Palm
Beach County's Department of
Community Services' grievance
committee "exercised decision-making
authority," which makes them subject to
the Sunshine Law. Since the ruling, two
additional formerPalmBeach County
employees have filed a lawsuit seeking to
overturn the firings of nearly 300 county
workers in the past four years.
In April, North Bay Village Mayor
Alan Dome and City Commissioner
Armand Abecassis resigned after being
arrested on second-degree misdemeanor
charges of violating the Open Meetings


on Florida's Open
Law. The two men were accused of
meeting privately to discuss firing City
Manager James Vardalis because of his
cooperation with an investigation of
formerpolice Chief Irving Heller. Both
wrote one-line letters to Gov. Jeb Bush
announcing their

A CCESS departures and city
commissioners


CASES


appointed
replacements for
both Abecassis and


Dome in late April.
In June, the State Attorney's Office
cleared Lee County School Board
members of any Sunshine Law violations.
Board members were accused of
conspiring to oust former Superintendent
John Sanders and replace him with
current Superintendent James Browder.
The allegations were made by a former
board employee, but the State Attorney's
Office review found only
"uncorroborated and contradicted


Meetings Law
hearsay" in witness depositions, said
Dean R. Plattner, assistant state attorney
for special prosecutions. Plattner said
there was no evidence to support a more
formal investigation.
In August, Sugarmill Woods
residents Teddi Bierly and Robert
Roscow won a lawsuit against the state
for holding secret meetings about
Suncoast Parkway 2. The lawsuit charged
the Florida Turnpike Enterprise with
violating the Sunshine Law by allowing
an advisory committee to meet behind
closed doors. Opponents of the parkway
said the Environmental Resource and
Regulatory Agency Group (ERRAG) had
influence over the proposed route of the
toll roads, which should make the
meetings public, Bierly said. Circuit Court
Judge Janet Ferris made it clear that the
ERRAGarm of Turnpike Enterprise is
covered under the Sunshine Law. The
state was ordered to pay the legal
expenses of Bierly and Roscow.


Series on super-sealing wins 2004 Brechner Award


A groundbreaking series by the
Daily Business Review won the 2004
JosephL. Brechner Center for Freedom
ofInformationAward.
The articles, written by federal court
reporter Dan Christensen, exposed how
federal judges were suppressing civil
and criminal cases by wiping them off
the public record.
At the core of Christensen's
reporting were two cases in the U.S.
District Court in South Florida one, a
terrorism-related investigation and
habeas corpus petition, the other a
narcotics case.
Typically, even sealed cases appear
on the public docket, but in these
instances, judges tried to conceal their
existence from the public.
The practice, referred to as super-
sealing, hides cases completely by
veiling even the case numbers that
would normally allow them to be tracked
on the court's docket.
"Christensen and the Review
attacked one of the most serious yet
under-reported problems affecting First
Amendment rights since 9/11: Secrecy
in the courts, in which the judiciary and
the executive are complicit," said
Richard J. Peltz, a Brechner Award
judge and associate professor at
University of Arkansas' WilliamH.
Bowen School of Law.


Christensen discovered the practice of
super-sealing when he happened upon
the case ofMohamed Kamel Bellahouel, a
young Arab man detained by authorities
followingthe Sept. 11,2001, terrorist
attacks.
Bellahouel was a waiter at a South
Florida restaurant frequented by several
Sept. 11 hijackers. He was imprisoned for
five months on an immigration charge
until authorities decided he was not a
threat and released him. Bellahouel's
habeas complaint, filed while he was in
custody and sealed by a judge,
continued on in secrecy.
Christensen reported on similar
practices in federal cases relating to
Fabio Ochoa's narcotics trial inMiami,
where one defendant was prosecuted,
convicted and imprisoned in complete
secrecy.
Christensen's reporting fueled an
intense, nationwide public discussion of
the previously-unknown brand of
secrecy.
The Review's coverage led to the
formation of a public-interest coalition of
23 media, legal and labor organizations
that sought to intervene in Bellahouel's
case in order to protect public access to
court proceedings.
Similarly, coverage of issues in
Ochoa's drug case prompted several
groups to file separate friend-of-the-court


briefs opposing the use of secret
dockets.
"The articles sparked editorials in
newspapers around the country, a legal
challenge by lawyers representing the
press and public and debate over a
practice that threatens to undermine
government accountability, the
separation of powers and public
confidence in an independent judiciary
- all of which are essential to our
democratic tradition," said Seth
Rosenfeld, a Brechner Award judge and
San Francisco Chronicle reporter.
"Christensen's vigilant coverage of the
court beat unearthed a major national
story that he and his paper then
pursued with enterprise."
"This series of stories is a bone-
chilling reminder of what can happen
when we sacrifice civil liberties for the
perception of security," said Anthony
L. Fargo, Brechner Award judge and
assistant professor at Indiana
University's School of Journalism.
"This story needed to be told."
The annual award was established
by the late Joseph L. Brechner, an
Orlando broadcaster.
Previous winners include: The San
Francisco Chronicle, The Washington
Post, the St. Petersburg Times, The
Dallas Morning News and the South
Florida Sun-Sentinel.


Annual FOI Report 2004 3B







Order causes clerks to take online records off Web sites


The Florida Supreme Court issued an
order in February, calling for a
moratorium to online access of court
records.
The order attempted to clarify a
November 2003 order for clerks who
"overreacted" by shutting down their
Web sites and for other clerks who did
not restrict access enough, said First
Amendment Foundation attorney Jon
Kaney.
The order made it clear that clerks who
were providing Internet access to court
case documents must stop the practice
due to privacy concerns. Clerks may


only provide documents through a
terminal in the clerk's office or in
response to an e-mail request for a
document. In response, Sarasota County
Clerkof Court
A cc ESS Karen Rushing
and Manatee
RECORDS County Clerkof
-RECORDS CourtR.B.
"Chips" Shore
terminated Internet access to public
records through their sites.
"It looks like the Web's got to come
down," Rushing said.
Both counties had been in the


forefront of making court records
available online for the public.
According to clerks, having records
online eliminated the long lines of people
seeking records. Professionals such as
attorneys, journalists, apartment
managers and employers used the Web
sites daily.
"I've just always felt they're the
public's records and the public should
have access to them," Shore said.
The order is in effect until a committee
develops new rules for access to online
court records, which is not set to happen
before July 2005.


Federal courts review Freedom of Information cases


This year, the U.S. Supreme Court
and U.S. District Courts reviewed
several cases dealing with access
issues. Below are the most important
cases the courts reviewed or ruled on
during2004.
In January, the Court declined to
hear an appeal by groups seeking
access to the government's records on
hundreds of foreigners detained after
Sept. 11, 2001. The decision allowed
the government to continue
withholding the names of detainees and
information about their arrests.
The Center for National Security
Studies, the American Civil Liberties
Union and several media organizations
had petitioned for the release of the
information, claiming the Bush
administration was violating the
Freedom of Information Act (FOIA) and
their freedom of the press rights.
Government officials argued that
they needed to withhold the information
so that terrorist organizations wouldn't
discover their strategies and tactics in
the war against terrorism.
In 2003, a three-judge panel of the
U.S. Court of Appeals for the District of
Columbia Circuit agreed that the
administration's claim to protect the
information from terrorists was
"reasonable."
In February, the Court declined to
hear the case of Mohamed Kamel
Bellahouel, an Algerian native whose
legal status was kept secret because of
the government's war on terrorism.
Bellahouel waited tables at a
restaurant in Delray Beach at the same
time that several terrorists were training
in South Florida for the Sept. 11, 2001,
attacks. Federal agents detained him in
October 2001 on an immigration hold,


believing he may have served two
hijackers food and possibly attended a
movie with one of them. FBI agents
investigated him and found no reason to

A cCESS Bellahouel was
released on an
CASES oimmigrationbond, but
CASE his entire case was
kept off of public
records. His case number did not even
officially exist.
His case was accidentally discovered
by a reporter for the Daily Business
Review and has been closely watched by
civil libertarians since.
In March, the Court rejected
attorney Allan Favish's attempt to show
postmortem photos of Clinton
administrationlawyer Vince Foster,
claiming privacy concerns supersede
public disclosure when it comes to death
pictures. Favish sought the photos,
claiming they might prove Foster was
murdered as part of a White House
cover-up.
The Court's decision weakened the
FOIA, 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. They said that 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.
Both Foster's family and the Bush
administration battled to keep the
pictures private.
In April, U.S. District Judge Paul L.
Friedman ordered the Bush
administration to release thousands of


pages of records on Vice President Dick
Cheney's energy task force
deliberations. Friedman ruled that
records kept at the Energy and Interior
departments must be disclosed to the
public under the Freedom of
Information Act.
The suit stemmed from the creation
of the National Energy Policy
Development Group by President
George W. Bushin 2001.
The energy task force, chaired by
Cheney, was considered exempt from
the open meetings and open records
requirements set forth by the Federal
Advisory Committee Act if it consisted
entirely of government officials.
The lawsuit argued that Cheney and
his team met behind closed doors with
non-government officials such as
lobbyists from the oil, coal, gas and
nuclear industries
In June, the Court ruled that the
U.S. Court of Appeals in Washington,
D.C. must reexamine a case involving
two lawsuits filed by public interest
groups Judicial Watch and Sierra Club
for access to Cheney's energy task
force records.
In July 2003, the appeals court ruled
it would not hear the case unless
Cheney and the other government
defendants either asserted executive
privilege or complied with the trial
court's discovery orders.
In a 7-2 decision, the Supreme Court
justices said that the court of appeals
should rule on the case before further
proceedings in the trial court, primarily
because the case involves important
questions of separation of powers and
because of the burden that would be
placed on the executive branch to
comply with the discovery order.


Annual FOI Report U 2004







PRIVACY


Government order

over millions of pa
WASHINGTON- The federal
government ordered airlines to turn over
millions of passenger records so it can
test a computer program that screens for
terrorists.
The program, Secure Flight, is the
government's latest computer-assisted
passenger screening system. It would
fulfill one of the recommendations given
by the National Commission on Terrorist
Attacks Upon the United States also
known as the 9-11 commission to
conduct better checks of airline
passengers. Airlines and privacy
advocates recently fought off a similar
system, known as CAPPS II, claiming it
would violate passengers' privacy.
Secure Flight would require airlines to
provide passenger information such as
names, flight information, addresses,
telephone numbers and even meal orders,
which could indicate a person's
ethnicity, according to USA Today.
Federal agents would match this
information against the FBI's terrorist
watch lists.


s airlines to turn

ssenger records
A major difference between Secure
Flight and CAPPS II is that the new
program will not scan passenger records
for violent criminals and people with
outstanding warrants, the Transportation
Security Administration (TSA) said.
But some privacy advocates said the
new plans for Secure Flight have not
eased their concerns.
"[Homeland Security] Secretary [Tom]
Ridge said that a stake had been driven
into the heart of CAPPS II, but it now
appears that the vampire is crawling out
of the coffin," said Barry Steinhardt, a
privacy expert with the American Civil
Liberties Union.
TSA issued public notices on Sept. 21,
beginning its process to collect all
domestic passenger information for June
2004 from the nation's 77 airlines, by mid-
November.
According to The Washington Post,
TSA said it will use the information to
test the system for 30 days and then
develop a more specific plan to advance
the program.


Two reporters refuse to disclose

confidential sources, held in contempt
WASHINGTON-U.S. District Judge again, for notes about his other
Thomas Hogan ordered Time magazine confidential sources.
reporter Matthew Cooper and The New About one week earlier, Hogan also
York Times reporter Judith Millerj ailed held Miller in contempt for refusing to
for refusing to RT' reveal her
disclose information REPORTERS anonymous
about their sources. Miller
confidential news PRIVILEGE researched, but


sources.
Both reporters were asked to testify
during the government's investigation
into the leak of undercover CIA
operative Valerie Plame's identity, but
refused to break their confidentiality
agreements with sources. Hogan
stayed their sentences of imprisonment
and fines of $1,000 a day, pending their
appeals.
This is the second time Hogan has
held Cooper in contempt in the
investigation.
In August, Cooper was held in
contempt but later testified after Lewis
"Scooter" Libby, Vice President Dick
Cheney's chief of staff and Cooper's
confidential source, gave him
permission to do so.
On Sept. 14, he was subpoenaed


never wrote, a story
on the Plame situation.
"I'm very disappointed that I've
been found in contempt of court for an
article I never wrote and The Times
never published," Miller said. "I find it
truly frightening that journalists can be
put in jail for doing their jobs.
"I must protect my sources, and I
will."
Citing a 1972U.S. Supreme Court
decision in Branzburg v. Hayes, Hogan
said that reporters do not have an
absolute First Amendment privilege not
to testify about confidential sources.
He added that special prosecutor
Patrick J. Fitzgerald had exhausted other
sources before subpoenaing Miller.
"Miss Miller has no right to decline
to answer these questions," he said.


INDECENCY

FCC issues CBS

record $550,000

indecency fine
WASHINGTON- The Federal
Communications Commission (FCC) fined
CBS $550,000 forviolating federal
indecency standards during the Super
Bowl halftime show.
The five-membercommissionfound
that Janet Jackson's partial nudity during
her performance with singer Justin
Timberlake, during a sporting event, was
a violation of broadcast indecency
standards.
According to FCC Commissioner
Michael Copps, the $550,000 penalty is
the largest fine ever for television
indecency. The fine represents the
maximum allowed under current law,
$27,500, for each of the 20 CBS stations
operated by the network's owner,
Viacom. The commission decided not to
fine CBS's more than 200 affiliate stations
because they were apparently not
involved in the selection, planning and
approval of the program.
CBS said it was disappointed with the
FCC's decision.
"While we regret that the incident
occurred and have apologized to our
viewers, we continue to believe that
nothing in the Super Bowl broadcast
violated indecency laws," the network
said in a statement. "Furthermore, our
investigation proved that no one in our
company had any advance knowledge
about the incident."
-- TIIF --
BRECHNER
REPORT
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The Brechner Report h December 2004 3





























New coalition helps focus fight for open government
Not quite a year ago, I became coordinator for a Environmental Planning Act. It set new confidentiality
coalition of national journalism organizations troubled provisions for information in any way related to airport
by increasing government secrecy and hoping their and seaport security.
voices might be more effective if raised collectively. In August, DHS utilized a little-noticed and never-
The Brechner Center is among our 30 members. debated provision in the 2003 Homeland Security Act to
The open government activities of the member require each of its 180,000 employees to sign an
organizations fell in four areas self education, public agreement not to disclose any information hidden
education, government relations, and litigation and behind a series of secrecy-marking acronyms such as
all agreed, whatever their individual accomplishments, Pete Weitzel SBU Sensitive But Unclassified. One small problem:
The that collective By the department's own definition, SBU includes
B k P g improvement is needed in at least information that any citizen can get by submitting a Freedom of
a k a e the first three. Information request. Yet the employee can be disciplined, or
The self-education involves fined, or jailed for talking about it with an unauthorized person.
By Pete Weitzel both training and culture change. In its closing days before Thanksgiving, Congress came
Reporters and editors are not always as familiar with laws and breathtakingly close to approving a major overhaul of the
regulations providing or restricting access as they should be. nation's intelligence operations, the first since 1947. It's fair to
Many are not schooled in the most effective ways to deal with say that few, if any, members of Congress would have had time
access issues in their reporting and in their story-telling, to read, let along digest, the 500-page bill. To make matters still
Newsrooms are not always as aggressive in pressing for access. worse, the small negotiating team working out House and Senate
It's worth reminding readers in the Sunshine State that media differences stripped out many of the original legislation's
aggressiveness helped pull back Florida's government curtains, oversight provisions, safeguards strongly recommended by the
Public education is equally important, because citizen support 9/11Commission.
for open government is something of a paradox. Voters have Separately, more than a dozen journalism organizations had
given ringing endorsements to measures which protect joined in a letter to conferees urging still stronger oversight to
transparency and accountability. Yet political leaders still prevent unintended and undiscussed consequences, including
unblinkingly support specific and immediate demands for new secrecy measures. The journalist organizations felt the
confidentiality when packaged as matters of personal privacy or authority being given the new Director of National Intelligence to
security. The withholding of once-public information is "protect" information was so broad it invited abuse
particularly pronounced at the federal level, where access is more The bill fell apart not because of open government or
a commodity than a right, and "national security" has become a oversight concerns but because of in-fighting among turf-
pretext for all manner of closure. conscious elements of the intelligence community. It was
The third area where more effort and attention is needed is another demonstration of how the legislative and rule-making
government relations in the ability to influence transparency in processes move forward in Washington while providing no more
the government, in the laws and regulations that are written and, than lip service to open government.
ultimately, inpractice. Many of the coalition's member organizations have stepped
Washington secrecy has become more pronounced since last up their freedom of information programs in the past year, but
March. In the spring, the Department of Homeland Security much more progress is needed before we're likely to see a change
decided security against theoretical terrorist activities is more in Washington.


important than citizen's safety from potential environmental
hazards. It published a set of regulations preempting public
hearing and involvement requirements of the National


Pete Weitzel is coordinator for the Coalition of Journalists
for Open Government andformer editor of The Miami Herald.




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