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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 2005
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Bibliographic ID: UF00090012
Volume ID: VID00072
Source Institution: University of Florida
Holding Location: University of Florida
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Volume 29, Number 12 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Information U College of Journalism and Communications U University of Florida
December 2005


Judge dismisses suit against UF
GAINESVILLE A University of Grapski said he will continue his legal
Florida instructor has re-filed his lawsuit battle until the University of Florida and
against UF President Bernie Machen Machen "are in full compliance with the
even after Circuit Court Judge Robert Florida law."
Roundtree Jr. dismissed the action without "I received zero documents from the
predjudice. president and an incomplete
The suit began after A C C E SS response from the vice presi-
Charles Grapski filed a public A dent's office," he said. "What
records request seeking all RECORDS the university is not admitting
documents and e-mails related is that Dr. Machen does not
to Florida Blue Key, Homecoming and like the public records law."
Gator Growl. Grapski did admit that he had received
Florida Blue Key receives money from some documents from a separate request.
the student government to help sponsor UF spokesman Steve Orlando said
Gator Growl, which is a pep rally during university officials would not comment on
Homecoming. ongoing litigation.

Court demands public dockets
ATLANTA Maintaining a secret trial court has since unsealed the records
court docket without a written justifica- in the drug-trafficking case.
tion for sealing cases is unconstitutional, As a result of the ruling, district
according to a recent ruling by the 11th courts in Alabama, Florida and Georgia
U.S. Circuit Court of Appeals. will be required to make written find-
The court's decision in United States ings, which will be publicly available,
v. Ochoa-Vasquez reaffirms before they can seal access
the public's right of access A C C E SS to court records.
to court proceedings. In its decision, the court
The case arose after the COURTS noted that docket sheets are
U.S. District Court for the an essential part of a crimi-
Southern District of Florida sealed court nal proceeding because they provide a
dockets so that certain cases did not method for the public to locate court
appear on the public docket. The federal cases and records.


Exclusion of

citizen breaks

Sunshine Law
NAPLES Deputy County Man-
ager Leo Ochs determined that the
Collier County Productivity Commit-
tee violated the state's Sunshine Law
when it asked an attendee to leave the
room during a portion of the public
meeting.
During the June session, committee
chairman
ACCESS Joseph
Swaja asked
MEETINGS Brad Boaz
of Barron
Collier Partnership to wait outside
during discussion about a vacancy for
which Boaz was a candidate.
At the close of discussion, the
committee recommended Lawrence
Baytos, another candidate, for the
position.
Members of the Chamber of
Commerce complained after the
committee's meeting that Boaz should
not have been excluded during the
discussion session.
As a result of the violation, Ochs
recommended that the County Attor-
ney's Office provide a refresher course
on the Sunshine Law to the members.


Time, coach settle libel suit for undisclosed sum


EL PASO, Texas Time Inc., has April 2003. Time Inc., did not release the
settled a defamation lawsuit with former terms of the settlement.
Alabama football Although the coach admitted he was
coach Mike Price D E AT7TIO N T heavily intoxicat-
that arose because of L IVI I N ed that evening,
a Sports Illustrated he denied allega-
article about Price's night of drinking at a tions that anything sexual occurred.
topless bar in the Florida Panhandle. Rick McCabe, a spokesman for Time
Price sued the magazine for $20 mil- Inc., said the settlement also resolves
lion after the article discussed his actions Price's claims against reporter Don Yae-
when he visited a Pensacola night spot in ger, who is still on the SI staff.


The lawsuit made its way to the llth
U.S. Circuit Court of Appeals before being
settled, as the weekly sports magazine
fought for its right to protect confidential
sources that were a part of the report.
Although the llth Circuit did not allow
SI to rely on Alabama's state shield law, it
did find some protection based on the First
Amendment.
Price was fired by Alabama a few days
before the article was published.


THE



BRECHNER

REPORT






FREEDOM OF INFORMATION


Scalia bars journalists from insurance group talk


Supreme Court.
Scalia is well-known for his animosity
toward cameras and past encounters with
reporters.
He frequently bars cameras from his
speeches, including an October 2003
event in Ohio where he was honored for
his support of free speech.
The trade association for life insurers
had made arrangements for reporters to


Justices reject camera limitations
TALLAHASSEE The Florida Su- ited the use of court security cameras to
preme Court rejected several proposals security purposes only.
to limit cameras in the courtroom. The justices' unsigned opinion
The first proposed rule provides no explanation for
change would have limited A C C E SS their rejection of the privacy
audiovisual coverage of the COURT S proposal. However, in turn-
courts to protect privacy. UR ing down the proposal relat-
The judges also declined ing to jurors, the justices
to bar television recording or still pho- cited prior Supreme Court and appellate
tography of jurors. This proposal would rulings as support for their decision.
have allowed the judge to make such a Judges do have the right to place
determination without holding a hearing restrictions on cameras in order to
in which the media could object. maintain courtroom order and ensure a
The final proposition would have lim- fair trial.

ACCESS RECORDS CONTINUED

County defends lawsuit over $5


SEBRING Highlands County has
spent more than $18,000 defending
a public records lawsuit by one of its
residents.
The lawsuit was filed by Preston
Colby after the county claimed he owed
about $5 for a request.
Highlands County sought to obtain
the money from Colby even after a judge
recently ruled that Colby could not be
charged for the benefits paid to an em-
ployee who was researching his request.
Colby had requested to see copies of
the notes and minutes of the county's


hurricane executive group, a decision-
making committee that was involved in
storm preparations during 2004.
He paid the county $65 in advance to
cover the estimated costs of locating the
documents. That cost covered four hours
of staff time that was billed at $16.28 per
hour.
The research actually took two hours,
and the county subsequently refunded
Colby more than $30.
The county commission has not yet
decided whether it will appeal Circuit
Judge David Langford's ruling.


WASHINGTON Journalists were
turned away from a mid-October speech
by U.S. Supreme Court Justice Antonin
Scalia.
A Court spokeswoman said report-
ers should have been able to attend
Scalia's speech to insurance executives,
where the Justice discussed his experi-
ence with reporters who tried to uncover
gossip during oral arguments before the


Federal judge reviews FEMA reports from hurricanes
FORT MYERS A federal judge has nal and Florida Today seeking access to argued that many of the records were cre-
agreed to review communications be- the agency's records of its 2004 hurricane ated after Bush announced the government
tween President Bush and former FEMA response in Florida. aid program, which takes them out of the
Director Michael Brown to determine Attorneys for the federal agency decision-making process and makes them
whether to open certain FEMA records, argued that such correspondence should part of the public record.
Judge John Steele agreed to review remain confidential because it summa- Another judge reviewed similar records
briefs, talking points and correspondence rizes the issues and offers advice to the in a hurricane relief-related lawsuit filed by
from Brown in response to a lawsuit by executive branch, the South Florida Sun-Sentinel on the east
The News-Press, Pensacola News Jour- However, lawyers for the newspapers coast of Florida.

2 The Brechner Report U December 2005


attend Scalia's speech.
"It was a misunderstanding," said Court
spokeswoman Kathy Arberg. "The Justice
did not intend for the event to be closed to
print reporters."
Last year, Scalia apologized after a
deputy federal marshal demanded that two
reporters erase tape recordings of remarks
the Justice had made at a speaking event in
Mississippi.

COURTS

Court listens to

whistleblower

case arguments
WASHINGTON- The U.S. Supreme
Court recently heard arguments in a case
where attorneys have argued that the First
Amendment should protect a whistleblow-
er'sjob.
The case involves Richard Ceballos, a
California whistleblower, who was demoted
after he pointed out that co-workers used
false statements to obtain search warrants.
Ceballos' attorney argued that his report-
ing of the fraudulent search warrants was
a matter of public concern and should be
constitutionally protected.
At issue in the case is whether the
Supreme Court should rely on a 1968 test
set out by the 9th Circuit in Pickering v.
Board ofEducation. Under that standard,
an employee's speech is protected so long
as it touches on a matter of public concern
because it outweighs the employer's interest
in a disruption-free workplace.
Attorneys on the other side have argued
that routine speech in the course of an
employee's duties should not be judged by
the Pickering test.
The Court is expected to issue a decision
in the spring.







ACCESS MEETINGS CONTINUED


Prosecutor investigates closed council meeting


BARTOW The State Attorney's Of-
fice is investigating a possible Sunshine
Law violation by the Polk County Op-
portunity Council after it closed a portion
of a public meeting.
The board recessed during its meeting,
saying it wanted to meet privately with
legal counsel. When it returned an hour
later, the meeting attendees had departed.
At that time, the board voted unani-

Governor closes

coffee klatch
TALLAHASSEE Gov. Jeb Bush
barred reporters from attending an early
morning gathering where he discussed
his plans to overhaul the public school
system.
The purpose of the meeting was to re-
cruit support from Republican legislators
to ensure that Bush's education policies
continue after his term expires, he said.
Bush said the meeting was exempt
from the state's Open Meetings Law
because no policy was discussed.
Aides have said this was just the first
of many such sessions to discuss the
legacy that the governor wishes to leave
behind.
The Florida Constitution says that all
pre-arranged gatherings of three or more
legislators must be open if the purpose
is to agree upon formal legislative action
that will be taken in the future.

THE-
BRECHNER
REPORT
Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gamesville, FL 32611-8400
http //www brechner org
e-mail brechnerreport@jou ufl edu
Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Amy Kristin Sanders, Editor
Alana Kolifrath, Production Coordinator
Anaklara Hering, Production Assistant
Christina Locke, Production Assistant
The BrechnerReport is published 12 times a
year under the auspices of the University of Florida
Foundation The Brechner Report is ajoint effort
of The Brechner Center for Freedom of Information,
the University of Florida College of Journalism and
Communications, the Florida Press Association, the
Florida Association of Broadcasters, the Florida Soci-
ety of Newspaper Editors and the Joseph L Brechner
Endowment


mously to issue a letter of admonishment
to Executive Director Carolyn Speed.
The Sunshine Law does allow public
meetings to be closed for discussion with
legal counsel if the discussion is related
to a pending lawsuit or union negotia-
tions.
To close a meeting under a Sunshine
Law exemption, the board is required to
cite the reason for the closure and have


TAMPA Cell phone conversa-
tions between two Pinellas County
School Board members have raised
concerns that the telephone calls are
leaving citizens in the dark.
Board members Mary Russell
and Janet Clark have spoken to each
other numerous times on cellular
telephones provided to them by the
school district.
Under Florida's Sunshine Law,
members of a public board are not
allowed to privately speak to other
members of the board about matters
on which the group is likely to take
action.
A total of 70 calls were made on


JACKSONVILLE A woman who
discussed a legal dispute on the Internet
created enough of a public controversy
to be considered a limited-purpose pub-
lic figure, according to a recent ruling
by Circuit Judge Karen Cole.
Eliza Thomas sued two Florida
television stations operated by First
Coast News for defamation after they
broadcast reports regarding the injuries
of her husband.
Thomas' husband, Scott Thomas,
was injured in 2004 and placed on life
support.
Afterward, a custody dispute over
Scott arose between his wife and his
mother after it was discovered that


a court reporter transcribe the closed
proceedings.
Warren Dawson, one of the attorneys
with whom the group met, said the Polk
County Opportunity Council would cite
a statutory exemption and divulge the
nature of the closed meeting sometime in
the future.
No transcript or tape of the meeting
exists, he said.


Russell and Clark's phones between
August 2004 and June 2005, accord-
ing to school district's records.
While some of the conversations
were quite brief, more than 40 of
them ranged from 2 minutes to 50
minutes in length.
The Sunshine Law does allow
members to speak privately about
matters other than board business, so
cell phone calls are not automatically
a violation of the state's law.
Both board members deny violat-
ing the Sunshine Law.
"One or two times I can think of,
I started to say something and said 'I
can't talk about that,'" Clark said.


his wife had discussed the possibility of
removing his feeding tube.
In her decision, Judge Cole recognized
the increasing role of the Internet in public
discussion, noting that numerous articles
about Scott Thomas appeared "in the elec-
tronic media."
Under Florida law, Eliza Thomas be-
came a limited-purpose public figure when
she played a significant role in the public
controversy that arose over her husband.
Because Thomas was considered a
limited-purpose public figure, she had a
higher burden of proof in showing she was
defamed.
She did not meet that burden, and Judge
Cole dismissed the case.


The Brechner Report U December 2005 3


Cell phone calls between board

members raise Sunshine issue


DEFAMATION CONTINUED

Decision increases protection for

news media facing libel lawsuits































Florida decision provides greater shield protection


Subpoenas to reporters are back in the news. New York
Times reporter Judith Miller spent time in jail for failing
to testify before a grand jury about her confidential source
for a story about a CIA operative. The federal appellate
court's decision in the Miller case is so intricate that it not
only consumes 40 pages in the Federal Reporter; it also
contains four separate opinions when there were only three
judges on the panel. This and other cases have led to a
resurgence in the debate about whether a federal shield
law should be enacted. Michae
Most subpoena cases are not this involved, nor do they
deal with such weighty subjects. Yet, even the more mundane can
show the challenges that continue to exist. Here is a recent 'war
story.'
In September 2002, a reporter for the Tallahassee Democrat
wrote a very short article about the revelry before a homecoming
football game. Among others, the reporter interviewed three guys
The who had been partying since the
B k Pday before. Later, one of these
B ack P e fellows becomes a plaintiff in a
By Michael J. Glazer personal injury case in federal
court because of injuries suffered
while he was a passenger on a bus two years earlier in late 2000.
Fast forward to 2005, and the reporter gets subpoenaed by the
defense to bring his notes and testify about the article. Seems the
plaintiff alleged that he has lost the capacity to enjoy life and the
defense believes this article is evidence to the contrary. We file a
motion to quash based on both federal and Florida case law and the
Florida shield law. We don't take this lightly, but this doesn't look
like the hardest case in the world. The testimony regarding this one
brief encounter seems marginally relevant at best on the broader
question of the damages this person suffered. The plaintiff isn't
even asked about the pre-game party in the only deposition excerpt
presented to the Court as evidence by the defense. Also, the two
other students identified in the story haven't been deposed.
The defendants don't roll over, but vigorously contest our mo-
tion. The federal magistrate issues an order denying the motion to
quash. Relying on Miami Herald Publishing Company v. Morejon
and CBS, Inc. v. Jackson, the magistrate finds that the privilege does
not apply because the reporter was just being called to testify as an
eyewitness to what he saw during the interview. In the alternative,
he rules that the defense has presented adequate evidence to over-


come the privilege. We couldn't believe it.
In federal court, the next step from an order of this
kind is to file objections with the federal district judge
handling the case. We file a detailed objection explain-
ing more of the history and rationale of this privilege and
arguing that it is a slippery slope indeed if a reporter can
be deposed about what s/he sees in the normal course of
gathering and reporting the news under the guise that this
is just an eyewitness observation. This time, the defense
laze presents another deposition excerpt from the plaintiff in
which he is actually asked briefly about the party and
the story. However, the others identified in the article still have not
been deposed.
This story has a happy ending. Judge Stephan Mickle entered
an order quashing the subpoena. Significantly, the Court held that,
based on the language of the Florida shield law and the Court's in-
terpretation of the Morejon decision, the privilege applies unless the
eyewitness observation is of a crime. As to the whether the defense
proved that the privilege was overcome, the Court held that while
the information was relevant, there was no compelling need for the
evidence and there were other sources available. As of this writing,
an appeal is still possible. However, it is nice to have a decision
that limits the Morejon case to observations of a crime.
Most stories aren't as sensitive as one involving confidential
sources 'outing' CIA agents or other issues of national security.
Even one dealing with drunken college kids at a football party can
lead to an unexpected subpoena. There are clearly many out there
(some of whom are probably judges) that don't understand why a
reporter should be treated differently from anyone else in terms of
providing evidence about what they see and hear, even if obtained
as part of the newsgathering process.
The debate about a possible federal shield law continues. Both
the American Bar Association and the Media and Communications
Law Committee of The Florida Bar, among others, have spoken in
support. However, some knowledgeable and well-respected media
lawyers question whether the current proposals are the way to go.
This is just one recent story. Many of you have others. It shows
that we must still all be vigilant about subpoenas. It's a subject that
is not going away.
Michael J. Glazer is an attorney atAusley & McMullen in Tallahas-
see. He practices in the areas of communication and administrative law.




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