Title: Brechner report
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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: April 2005
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Bibliographic ID: UF00090012
Volume ID: VID00064
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 29, Number 4 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,, ~... 1.. .,U College ofJournalism and Communications U University ofFlorida
April 2005

Nation follows Florida's lead with Sunshine Week


WASHINGTON What began four
years ago as Sunshine Sunday in Florida
has grown into a nationwide initiative for
open government and freedom of
information. The first national Sunshine
Week was celebrated March 13-19 with
participation in every state.
Following Florida's lead, the American
Society of Newspaper Editors
encouraged media outlets across the
country to emphasize the role of access
to public records and open government


TAMPA U.S. District Judge James
Moody refused to make public nearly
one million documents in the
possession of pharmaceutical
manufacturerHoffman-La Roche Inc.
The records, which contain
information about the drug Accutane,
have been sought in connection with
dozens of lawsuits against the acne
drug's
makers.
COURTS mak
result of the
order, Hoffman-LaRoche will not be
required to redact documents and
submit them to attorneys handling the

Judge denies access
TAMPA A Pinellas circuit judge
refused to order St. Anthony's Hospital
to turn over records on a doctor who is
the subject of a malpractice suit.
Anita Richardson, who is suing Dr.
Dwarka G. Nath over a colonoscopy,
argued that Amendment 7 gave her the
right to access the records.
Amendment 7 gives patients the right
to review, upon request, the records of
health care providers' adverse incidents,
including those leading to injury or


meetings in a democracy and about
continuing challenges to state and federal
freedom of information laws.
Andy Alexander, Chairman of the
ASNE Freedom of InformationCommittee,
said support far exceeded expectations.
He made a conservative estimate that
more than 1600 newspapers published
something in support of Sunshine Week.
Radio and television broadcasters aired
commentary and public service
announcements.


numerous civil suits filed against the drug
manufacturer.
Attorneys representing deceased
Accutane users have asked the court to
rescind a confidentiality order because of
public safety concerns regarding the
drug's connection to numerous
incidences of suicide, birth defects and
other severe side effects.
Hoffman-La Roche contends it is
trying to protect the chemical
composition of Accutane. Its attorneys
have argued that the Food and Drug
Administration already has access to
internal documents that are needed to
evaluate the drug's safety.

to hospital records
death.
Judge James R. Case refused to release
the records, stating that state lawmakers
would have to set guidelines for the
amendment's use before it can be applied
in court cases.
This is the first ruling to address the
recently enacted constitutional
amendment, passed by voters in
November 2004. The provision is currently
the subject of numerous legal challenges
across the state.


The national campaign was modeled
after Florida's event, initiated in 2002 by
Florida's Society of Newspaper Editors.
Two advertising professors in the
College of Journalism and Communications
at the University of Florida designed three
public service advertisements as a part of
the public awareness campaign.
More information on the national
Sunshine Week is available at
www.sunshinesunday.com.
-Anaklara Hering

Attorneys request

Deltona records

not be public
DAYTONA BEACH Attorneys in the
Deltona mass murder case have asked
Circuit Judge J. David Walsh to withhold
records from the public.
Defense Attorney Jeffrey Dees, who
represents accused Deltona murder suspect
Michael Salas, asked that witness
statements, photographs and other
investigatory documents remain closed.
State Attorney John Tanner sought to
prevent the public from viewing crime-
scene and autopsy photos.
Salas, and four others, face six counts of
first-degree murder and eight other felonies
stemming from an August 2004
disagreement over a video-game system.
Dees said that release of the records
would prevent the defendants from
receiving a fair trial and could violate due
process by making it nearly impossible to
select an impartial jury.
Tanner said the victims' families would
suffer great anguish over the release of the
gruesome photos, which he called the worst
he has ever seen. Tanner said he expected
the media to oppose his petition for closure.
The motion comes shortly after the
expiration of a gag order restricting the
release of evidence in the case.


Accutane files remain under seal

in medical malpractice lawsuit






ACCESS RECORDS


Activists pay to gain access to 2004 voting records


PALM BEACH A voting-rights
activist paid $4,500 as a down payment to
access internal logs from voting and
tabulating machines used in the 2004
presidential election.
Bev Harris, the founder of Black Box
Voting, traveled to Florida to initiate the
group's attempt to document voter fraud
inPalm Beach County.

Hospitals must

release records

of infection
ORLANDO Members of the public
can now access records that show how
well Florida hospitals carry out infection
prevention.
The patient safety information is being
released following the passage of a 2004
law.
For the first time, information detailing
whether Florida hospitals comply with
measures designed to prevent surgical
infections will be posted online.
State officials were scheduled to begin
placing the information online in March,
allowing the public to see what
percentage of surgical patients receive
the required amount of antibiotics within
60 minutes of their operations.
However, they have said that more
time will be required before the records
are accessible.
The state plans to release additional
informationin 2006, including how many
people are infected at individual hospitals
across the state.


DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
!,.A, hilr. ,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.


The group filed suit in November
accusing former Elections Supervisor
Theresa LePore of wrongly denying the
group's public records request for the
information.
Since being served with notice of the
legal action, the elections office
determined that it would cost the agency
more than $4,000 for copying and staff


TALLAHASSEE-The tDistrict
Court of Appeals ruled that the Social
Security numbers of Florida's public
school teachers must be released in
some circumstances.
The ruling is a partial victory for the
Sarasota Herald-Tribune, which last
year sought to access the numbers
stored in the state Department of
Education's computer database.
The newspaper did not intend to
publicly release the information after it
was obtained.
Instead it wanted to use the Social
Security numbers to verify teacher
performance on state-required
competency tests as part of its
investigation into teaching quality.


TALLAHASSEE- ChoicePoint, Inc.,
has admitted that it purchased the
records of more than 10,000 Floridians
from public databases, and state and
local government agencies.
Some of the data from the Florida
records is likely included in the sensitive
personal information on more than
145,000 people nationwide that
ChoicePoint has admitted to selling.
The company has faced more than 11
lawsuits related to improper disclosure of
information.
The most recent allegations include
accusations that the company illegally
sold or posted motor vehicle information,


time to locate the records that Black Box
Voting sought.
The group has not dropped the suit, but
Harris said that newly elected Elections
Supervisor Arthur Anderson has been
more cooperative.
The organization's efforts to obtain
access will be part of a documentary,
preliminarily titled Votergate.


The appeals court ruled that the
newspaper was entitled to access the
information only forthis limited
purpose.
However, the court's decision is
quite narrow and is based on the fact
that the Social Security numbers will
not be publicly released by the
newspaper.
In the same decision, the court
refused access to a list of Social
Security numbers held at the University
of South Florida.
It said that a federal law allows the
numbers to be used only for the
enforcement of child support payments,
and, therefore, they cannot be released
publicly.


erroneous insurance information and
incorrect criminal history information.
Several Florida agencies, including
Business and Professional Regulation,
Health, and Highway Safety and Motor
Vehicles, regularly provide or sell
informationto ChoicePoint.
Last year, ChoicePoint paid the Florida
Department of Motor Vehicles more than
$13.7 millionfor driver records. However,
department officials maintain that these
records were not among those ChoicePoint
sold to fraudulent businesses.
The Atlanta-based company is the
largest data warehousing business in the
country.


2 The Brechner Report April 2005


Newspaper claims partial victory

after court agrees to release records


PRIVACY

Date company admits to buying

records from state, local agencies






CENSORSHIP


Broadcaster seeks relief in prior restraint lawsuit


TALLAHASSEE -First Coast News
has asked the Florida Supreme Court to
compel a lower court to hear its petition
in a high-profile murder case.
The broadcast news organization, a
Gannett duopoly of ABC and NBC
affiliates, had requested that the 5t
District Court of Appeal hear a motion to
quash a prior restraint that had been
issued by a state trial court.


In July, First Coast reported the
contents of a grand jury transcript in the
case of murder suspect Justin Barber.
The transcript was released by members
of the state attorney's office.
Two days later, Jacksonville Circuit
Judge Robert Mathis issued an order
prohibiting the release of information
from the document.
First Coast then asked the appeals


court to set aside the lower court order,
arguing that the U.S. Supreme Court has
declared prior restraints to be presumptively
unconstitutional.
More than six months have passed,
prompting First Coast to ask the state
Supreme Court to issue a writ of mandamus
ordering the appeals court to rule on the
news organization's motion to set aside the
prior restraint order.


ACCESS RECORDS CONTINUED


Judge to hear suit

in 2004 election

records dispute
MANATEE COUNTY- Circuit
Judge Marc Gilner will now hear a case
involving the November 2004 election
for sheriff and court clerk.
The case, filed by losing candidates
Kevin Murphy and Dan O'Connell,
concerns a 2004 public records request.
Murphy and O'Connell sued
Manatee County Circuit Court Clerk R.
B. Shore, claiming that his office
conducted a secret probe into actions
takenby the Manatee Sheriff's Office.
Murphy and O'Connell requested
the complete documentation of the
investigation but were denied access.

- Tn --
BRECHNER
REPORT

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FEMAwithholds
MIAMI Federal officials have
refused to release the names of the
Miami-Dade County residents who have
received nearly $31 million in emergency
hurricane assistance funds.
The Federal Emergency Management
Agency claims that federal privacy law
prohibits the release of the information,
which has been collected from the
victims of Hurricane Frances.
Four Florida newspapers have sued
FEMA and the Department of Homeland


DAYTONA BEACH-Florida Hospital
Deland may not close its meetings and
records, according to a decision by
Circuit Judge John W. Watson III.
The decision said the Public Records
Law applied to the hospital when it cared
for indigent people in the West Volusia
Hospital Authority taxing district.
Memorial Hospital-West Volusia, a
not-for-profit organization, claimed that it
should be exempt from the Government in

BROADCAST


hurricane records
Security to gain access to the information
under the federal Freedom of Information
Act. Three Gannett newspapers and the
South Florida Sun-Sentinel are the parties.
FEMA officials are defending their
decision despite an investigation by the
U.S. Senate Committee onHomeland
Security and Governmental Affairs. The
Inspector General's Office, which oversees
FEMA, also is examining individual
allegations of fraud in the Miami-Dade
grants.


the Sunshine laws because it bought and
operated the hospital as a private entity.
The court ruled against the hospital
because it carries out a government function
by expending more than $10-million annually
in public tax money.
Because it receives public reimbursement
for its services and acts pursuant to
government authority, the hospital's
meetings and records will be required to be
open in the future, according to the court.


Owners appeal federal court ruling


WASHINGTON- The Tribune
Company, alongwithFox, CBS, andNBC,
will appeal a federal appeals court ruling
that limits their ability to acquire
newspapers and broadcast outlets.
The lower court ruling overturned the
Federal Communications Commission's
attempts to loosen restrictions on media
ownership by allowing newspapers to


own local television stations and increasing
the number of media entities that one
corporation could own.
The media companies' appeal claims that
the ruling abridged their First Amendment
and due process rights.
The Tribune Company owns The
Orlando Sentinel, South Florida Sun-
Sentinel and WBZL-TV in Florida.


The Brechner Report April 2005 3


Law requires hospital's meetings,

records be accessible to public































Don't let Tallahassee pull the shades


The lights are back on in the Florida Capitol, so brace
yourself for news of a brownout at your place.
It happens every year when legislators return to
Tallahassee: Inevitably, some of them file bills intended t
dim the light and make it more difficult for their
constituents to see what they're doing.
Just as regularly, the press makes a concerted effort to
ensure that the public understands what will fade from
view if those bills pass and why that might put people Manninm
at a disadvantage.
The Florida Society of Newspaper Editors began
coordinating that effort three years ago, dubbing it Sunshine
Sunday. This year, the American Society of Newspaper Editors
took the effort nationwide and extended it to an entire Sunshine
Week.
Whether nationally or here in Florida, some elected officials find
it more convenient to do their business without you looking over
their shoulder, particularly if their business is something you
wouldn't approve. So, to make pulling down the shade seem like a
good thing, they'll often say that it's either to protect your privacy
or to protect you from terrorism -
ThB e P a e both pretty good ideas, if that's
Back Pag e what they really would do.
Those measures often do offer
By Manning Pynn protection unfortunately, just
not for you. Here are some
examples, culled from the hopper of the Florida Legislature:
Sen. Mike Haridopolos and Rep. Charlie Dean want to require
any police agency that arrests someone mistakenly to apply to
have that record expunged.
That doesn't seem like such a bad idea. What's the problem?
Barbara Petersen, president of the First Amendment Foundation,
pointed out that it "would preclude any opportunity for public
oversight of law-enforcement officers."
She noted that, under this bill, if a public official interceded to
have a relative's drunk-driving arrests thrown out or a rogue police
officer repeatedly stopped people without filing charges, there
would be no way to find out that was happening.
Sen. Nancy Argenziano wants to use state money to start
something called the Florida Vaccine Research Institute to avoid a


repeat of last year's flu-vaccine shortage. It would create
jobs, too.
Good idea?
Maybe, but Petersen noted that Argenziano also wants
to make the institute's records confidential. No word on
where taxpayers go to get inoculated against
mismanagement.
Sen. Burt Saunders has a bill that purports to
Pynn "implement" the constitutional amendment Floridians
approved in November that requires hospitals and doctors
to provide records of medical mistakes to patients who
request them.
Petersen said its real effect would be to prevent anyone who is
not a patient from seeing a doctor's ad\ cis incident" records -
hardly a benefit for anyone looking for a reliable physician.
There are other bills that offer cause for concern but also some
that would shed needed light on government:
Rep. Susan Bucher wants to give patients more knowledge
about and control over their medical records that private
companies might transmit overseas. That should please anyone
concerned about the recent loss by ChoicePoint of the personal
and financial records of 145,000 Americans.
Sen. Tony Hill and Rep. Audrey Gibson want to require that
electronic voting systems be capable of producing paper records.
Any voter who wonders if his or her vote was counted should find
that appealing.
Sen. Skip Campbell and Rep. Jack Seiler want to require the
state to produce a monthly report of how taxpayer money is being
spent with private companies. In an age of increasing government
"outsourcing," taxpayers ought to know if they're getting their
money's worth.
Those illuminating measures, however, won't protect Floridians
from the darkness that others would impose.
Anyone fearful of identity theft or terrorism and ready just to
let government operate without scrutiny should consider a
question posed by the Society of Professional Journalists:
Do you feel safer in the dark?


Manning Pynn is the Public Editor for The Orlando Sentinel.
His editorial originally appeared as a part of the newspaper's
coverage of Sunshine Week and is reprinted with permission.


g




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