Volume 30, Number 2 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
10 Polk board members face Sunshine violations
BARTOW Ten members of the Following the closed meeting, the board
Polk County Opportunity Council Board returned to the public meeting, where they
of Directors have been charged with voted to reprimand Speed for accepting a
violating the Sunshine Law. controversial training trip to
Each member could pay up to A C C E SS Las Vegas. Speed was later
a $500 fine if convicted of the A C E S forced to resign.
civil infraction. MEETINGS The PCOC board members
The charges stem from a said they were exempt from
closed September meeting during which Florida's Sunshine Law since they were
the board discussed former executive discussing business with lawyers. Even
director Carolyn Speed. with an exemption, officials are required
Commission rejects comment ban
FLAGLER BEACH The Flagler
Beach City Commission rejected a ban
on public comment during commission
Commissioner Bob Mish offered the
plan to eliminate public comment during
the general business portion of meetings,
when commissioners hear reports, spend
money and make policy.
Mish cited lengthy meetings as the
reason behind his plan.
Mish's fellow commissioners will
continue with their current policy of
allowing the commission chairman to
decide when the public may speak dur-
ing the general business portion of the
Many Flagler Beach residents who
protested the ban attended the November
meeting, though none were allowed to
address the commission on the issue.
Mish also proposed a five-minute time
limit on the amount of time commission-
ers can speak during public hearings.
The commissioners also rejected that
University of Miami newspaper
defends use of Facebook photos
MIAMI The University of Miami
student newspaper is under fire after it
published comments and photos posted on
the popular student Web site Facebook.
The material, posted online by UM
students and subsequently published in
The Miami Hurricane, implied that three
students NTTE'WVT C A'
jumped iN IM V W OVJ-
Osceola. Swimming is prohibited in the
lake, located in the center of the campus.
Lawyers for the college-oriented Web
site contacted the paper, stating the photo-
graphs were used without permission.
Hurricane staff and faculty associated
with the paper defended the article, citing
the news value of the Web site material.
Facebook spokesman Chris Hughes
told The Miami Herald that the incident
THERIN first time
T UIN G the Web
site led to a
campus newspaper investigation.
Facebook is one of the 10 most visited
sites on the Internet, according to Hughes.
by law to record closed meetings. There is
no tape of the Sept. 15 meeting.
The members charged were Patricia
Hunter, Collins Smith, Morris Chestang,
Booker Young, Beverly Howell, Jessie
Kirby, Annie Bryant Phyall, Ben Graham,
Dennis Goosby and Ozell Wilson.
"I really can't say anything," Wilson
said. "But we all have to face the music.
We have to do what we have to do. We
have to do whatever the law requires."
INDIAN RIVER COUNTY The
State Attorney's Office has determined
that a school board member did not violate
the Sunshine Law at a September meeting.
Indian River County School Board
Vice Chairman Craig McGarvey had been
the target of a complaint that alleged he
had a conversation with a fellow board
member outside of a public meeting.
Government critic Brian Heady filed
Assistant State Attorney Christopher
Taylor found that the alleged conversation
between McGarvey and board member
Ann Reuter did not take place.
In a memorandum to State Attorney
Bruce Colton, Taylor wrote that Reuter
responded "I am allowed to have my own
opinions" to statements made by McGar-
vey about the school district's budget and
plans to build a high school.
Taylor determined that Reuter's
response did not transform the comments
into a "discussion, deliberation or formal
action," according to a story by the Vero
Beach Press Journal.
McGarvey has maintained that the
statements were made during the school
Lawmaker urges probe into denial of voucher record
TALLAHASSEE -Rep. Shelley
Vana (D-Lantana) plans to pursue an
investigation into a denial by Gov. Jeb
Bush's press office that a proposal to
restructure a school voucher program
The Palm Beach Post requested the
document on three occasions in early
November and was told by Bush spokes-
be charged for
FERNANDINA BEACH City
Clerk Cassandra Mitchell will not
face criminal charges for inadver-
tently releasing employee Social
The Fernandina Beach Commis-
sion requested the investigation after
it suspended Mitchell for 30 days.
Every city employee's Social
Security number was included in an
e-mail sent to a private citizen seek-
ing employee salary data.
A clerk's office employee dis-
covered the release of the exempt
information and reported it to the city
human resources department.
Assistant State Attorney Gran-
ville "Doc" Burgess declined to file
criminal charges, but said he would
withhold a decision on filing a civil
infraction pending further investiga-
Burgess referred the matter to the
Fernandina Beach Commission.
In a memorandum, Burgess wrote
that Mitchell's actions following the
e-mail were "inexcusable."
He cited the number of violations,
Mitchell's denials when confronted
and her failure to take action when
the mistake was discovered.
Burgess described most criminal
public records violations as involv-
ing knowing and willful acts, and
Mitchell's was not.
Burgess also said the Attorney
General's Office has "never known
of an employee to be prosecuted
for mistakenly transmitting exempt
woman Alia Faraj that she checked with
the alleged recipient of the proposal and
that it did not exist.
When The Post directly contacted the
recipient, Deputy Chief of Staff Patricia
Levesque, she acknowledged she had the
Faraj attributed the denial to miscom-
Attorney General Charlie Crist rejected
Rep.Vana's request to investigate the matter,
citing a lack of authority to investigate or
prosecute alleged violations of Florida's
public records laws.
Rep. Vana told The Post that she would
continue to pursue an investigation into the
public records practices of the governor's
Crist backs off on photo fight
SARASOTA Attorney General sealed the photos during the trial, citing
Charlie Crist has ended his fight to keep privacy concerns.
autopsy photos of Carlie Brucia sealed. The Second District Court of Appeals
Crist withdrew his petition for a full U.S. overturned Owens' decision, stating that the
Supreme Court review of a state appel- Florida law barring the disclosure of autopsy
late court's decision to allow the media photos does not apply to exhibits formally
to view the photos. introduced in a criminal trial.
The photos were presented as evi- Crist then unsuccessfully requested that
dence in the trial of Joseph P. Smith, the Florida Supreme Court step in. U.S. Su-
the 39-year-old man convicted of the preme Court Justice Anthony Kennedy also
abduction, rape and murder of Brucia, declined to take up the matter. Crist's last
11. Circuit Judge Andrew D. Owens Jr. option was to petition the full Court.
Letter-writing teacher sues two
newspapers, demanding source
ORLANDO Two newspapers face Among other things, the letter stated that
legal action from an elementary school Hispanics and other Caribbean natives were
teacher who wants to know how the harmful to schools and that the United States
papers obtained a should not accept im-
letter she wrote to REPORTERS migrats
a congressman. The Orange County
Teacher Jan PRIVILEGE School Board sus-
Hall, 59, filed a
petition claiming a possible violation of
her privacy. Hall resigned after a letter
she wrote disparaging Hispanics was
published in the Orlando Sentinel and the
Spanish-language El Nuevo Dia.
pended Hall without
pay in August after the letter was published.
She resigned later that month.
Hall also plans to seek damages from the
school board in connection with her suspen-
sion, according to court records.
New settlement in defamation case
BIRMINGHAM, Ala. Former
Alabama football coach Mike Price and CORRECTION
Time Inc. reached a second settlement in
the coach's defamation lawsuit. The December 2005 issue of The
The suit stemmed from a Sports Brechner Report stated that Time Inc.
Illustrated article about Price's night of would pay former Alabama football
drinking at a topless bar in the Florida coach Mike Price $20 million to settle
Panhandle. a defamation lawsuit. This part of the
According to reports, the original report is retracted. While Price asked
settlement's confidentiality provisions for $20 million damages in his com-
were violated by Price and his lawyer. plaint, the terms of the settlement were
Details of the new agreement weren't not disclosed by Time or Price.
2 The Brechner Report February 2006
FREEDOM OF INFORMATION
Bush Executive Order could speed FOIA requests
WASHINGTON President Bush
signed an Executive Order Dec. 14 with
the intent of streamlining Freedom of
Information Act (FOIA) requests.
The order requires federal agencies to
designate chief FOIA officers and estab-
lish service centers within each agency. A
public liaison at each service center will
field concerns from requesters.
The order calls for a "citizen-centered
DELTONA The Deltona City
Commission has decided to replace the
traditional prayer before its meetings
with a moment of silence, acting on the
city attorney's advice.
"We should try to follow the law
and the constitutional mandates as
much as we can," advised City Attor-
ney Roland Blossom.
Blossom said that he had received
no complaints about the practice, but
urged the commission to omit the invo-
cation as "the right way to go."
Commissioner William Harvey
supported the move, fearing that an
invocation would be interpreted as a
Brechner Center for Freedom of Information
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Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Christina Locke, Editor
Alana Kolifrath, Production Coordinator
Kimberly Lopez, Production Assistant
The Brechner Report is published 12 times a
year under the auspices of the University of Florida
Foundation The Brechner Report is a joint 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
and results-oriented approach" to han-
dling FOIA requests. Titled "Improving
Agency Disclosure of Information," the
order cites improved performance, stron-
ger compliance and the potential to avoid
litigation as reasons for the measure.
Agencies have six months to report
their current FOIA operations to the At-
torney General and the Office of Manage-
ment and Budget (OMB). These reports
FORT LAUDERDALE The South
Florida Sun-Sentinel has taken the
Federal Emergency Management Agency
(FEMA) to court over disaster funds
Lawyers for both sides argued before
U.S. District Judge Kenneth Marra at a
Dec. 7 hearing.
The newspaper's attorneys argued that
public interest outweighed individual
The Sun-Sentinel investigation of the
disaster funds has lasted more than a
year, and has revealed that FEMA paid
millions to residents unaffected by the
will be made available online when possible.
The chief FOIA officer at each agency
will also be required to develop a plan to
reduce the backlog of requests and increase
awareness of FOIA processing.
The order does not appear to change the
2001 John Ashcroft memorandum outlining
the administration's stance that all FOIA
exemptions with a legal basis would be
Parts of leak
WASHINGTON The special counsel
in the investigation of the leak of a CIA
operative's name has indicated in a court
filing that portions of the decision ordering
Matthew Cooper of Time Magazine and for-
mer New York Times reporter Judith Miller
to testify before a grand jury are no longer
Patrick Fitzgerald's motion comes in
response to a motion by the publisher of
The Wall Street Journal, Dow Jones Inc., to
unseal eight pages of the 2004 decision.
Fitzgerald limited the release of the
material to that relating to the indictment of
I. Lewis "Scooter" Libby. Libby, chief of
staff for Vice President Dick Cheney, was
indicted in October on counts of perjury
and obstruction of justice that arose out of
a probe into the leak that uncovered CIA
operative Valerie Plame.
FEMA has resisted the Sun-Sentinel's
requests for names and addresses of
disaster aid recipients and other FEMA
The agency argued that details about
disaster victims cannot be released
without their permission, and that other
reports and administrative e-mails
requested should be kept confidential
because they reflect policy-making deci-
At the end of the two-hour hearing,
Judge Marra promised a prompt deci-
The Brechner Report U February 2006
Deltona drops prayer from
city commission meetings
prayer of a particular faith.
Harvey said the moment of silence
would be better for the purposes of
"We're a nation of all kinds of
people," Harvey said. "Diversity is
good, and if we say diversity is good,
then we have to leave it open."
Public bodies such as the U.S. Con-
gress and the Florida Legislature begin
their meetings with a prayer.
In 1983, the U.S. Supreme Court
ruled that opening governmental meet-
ings with prayer does not violate the
First Amendment's ban on the estab-
lishment of religion.
Lawyers argue privacy, public
interest in FEMA records case
Investigation reveals hundreds of secret pardons
Big stories are born of small ones.
In the daily deluge of information with which news-
paper editors deal, there are these little bumps that push
up through the canvas of our attention. Scraping away
the top of the bump we often find gems of journalism
- corruption, greed, compassion and awe that make
really good newspaper stories.
That's what happened at the Argus Leader in late
January, 2003. Our veteran political reporter, David
Kranz, heard that Native American activist Russell
Means was pardoned by South Dakota Gov. Bill Jank- Patri
low during his last days in office before heading off to
Congress. Kranz confirmed the story with Means and Janklow.
We put a story in the paper.
Pretty simple stuff. But in the course of reporting the story,
Kranz asked the obvious question. "Who else did you pardon,
The governor?" The reply was a
B k little shocking. "Lots," he said,
B ack P a e though he wouldn't say who.
By Patrick La y Further inquiry revealed the
By Patrick Lalley pardons were on file with the
secretary of state's office. However, the secretary of state told us,
they were sealed. He wouldn't even tell us how many there were.
That seemed an odd thing.
So we wrote another story and called the lawyers.
In the meantime, we started looking around, trying to find out
who received these pardons. We found some.
There was the former secretary of transportation, the promi-
nent real estate developer, the Bureau of Indian Affairs school
workers, and others. All were interesting in their own right but
we knew there were a lot more. In fact, sources in state govern-
ment told us they thought there were about 60 that we should
Seventeen months and several legal steps later we wrote a
really big story. This one said the South Dakota Supreme Court
found Janklow didn't properly follow the law passed quietly
in 1983 that let him seal the pardons. In short, he didn't tell the
Board of Pardons and Paroles that he pardoned people.
We were quite pleased we'd won our legal battle. But the
court didn't give us the names right away. The justices said it
would take about two weeks to get all the records in
order. So we had some time to get ready. We decided
pretty early on that we'd publish the list. But we had
San obligation to let those people respond before we put
their names in the paper.
S We prepared for 60 names. In our relatively small
newsroom we've got about 60 total employees and a
little over 20 reporters that meant each person would
get two or three people to track down. It all seemed
pretty manageable really.
Lalley Then on release day, we got a shock. There were
218 secret pardons; all but four of them were issued by
Janklow. We'd committed to at least trying to contact
everybody on the list. If you publish one, you have to publish
them all. The list included the former governor's son-in-law, the
lawyer who ran his pardon program, that lawyer's girlfriend and
his father, etc. It was clear we had to publish all the names.
Each of our 20 or so reporters suddenly had nine or ten names
to track down. We used everything at our disposal including
Lexis, Google, our own archives and tips from the general public.
We didn't get everybody but we got a lot. Let's just say it was
quite a day.
The Janklow pardons story had many of the classic elements
of satisfying journalism corruption, secrecy, violation of public
trust. It let us fulfill our responsibility to the citizens of South
Dakota in a way that brought pride to our newsroom. It's the kind
of story that keeps you coming back for more.
But for me the lasting impression is less about the philosophi-
cal underpinnings of the First Amendment. If you're injournal-
ism for the right reasons, you've already got an understanding
of the constitutional mandate. Ultimately, the pardons story was
a lesson in how you get there. It's paying attention, asking the
right questions and maintaining tenacity in the face of nearly
It's remembering that big stories are born of small ones.
Patrick Lalley is the assistant managing ,i. .., i.-, i,, Argus Leader
(Sioux Falls, S.D.). The Argus Leader received the 2005 Joseph L. Brech-
ner Freedom oflu r-'i, ...i. -i .vardfor its series on secret pardons issued
by former Gov. Bill Janklow.