Volume 30, Number 8 0 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
Pinellas County must pay
fees in public record dispute
PINELLAS COUNTY The county
will pay the St. Petersburg Times' legal
expenses related to a successful public
A circuit judge ruled that Pinellas
County violated the Public Records Law
when it refused to release a settlement
agreement between the county and a
Since the county lost the lawsuit, it
must pay the newspaper's $19,806 legal
The ex-employee, Rick Dodge,
was fired in 2002. He alleged that the
county fired him for drawing attention
to fraud in the welfare-to-work program.
The county said he was let go due to job
County Commission Chairman Ken
Welch said the county fought the release
of the settlement because at the time of
the request, key parts of the agreement
were being finalized.
Times executive editor and vice
president Neil Brown said the newspaper
has a responsibility to pursue such cases.
"The newspaper has a special role
on behalf of the public to ensure that
the government does not do its work in
secret," Brown said.
WASHINGTON The federal
government and five news organizations
will pay $1.6 million to a former nuclear
weapons scientist once suspected of being
Wen Ho Lee settled his privacy
lawsuit, in which he accused the Energy
and Justice Departments of violating his
privacy rights by leaking information to
The settlement will also end contempt
of court proceedings against five
reporters who refused to disclose their
sources for stories about Lee's espionage
The Associated Press, The New York
Times, the Los Angeles Times, The
Washington Post and ABC have agreed to
pay Lee $750,000.
"We were reluctant to contribute
anything to this settlement, but we sought
relief in the courts and found none," the
companies said in a statement.
"Given the rulings of the federal courts
in Washington and the absence of a federal
shield law, we decided this was the best
course to protect our sources and to protect
ourjournalists," the companies said.
Prior to the settlement, the U.S.
Supreme Court was considering whether
to take the case of the reporters who
resisted subpoenas to reveal their sources.
Lee was fired from the Los Alamos
National Laboratory in New Mexico and
was later held in solitary confinement for
He was never charged with espionage.
He later pleaded guilty to mishandling
"We are hopeful that the agreements...
will send the strong message that
government officials and journalists must
and should act responsibly in discharging
their duties and be sensitive to the privacy
interests afforded to every citizen of this
country," Lee said.
TALLAHASSEE Gov. Jeb Bush
vetoed two public records bills passed by
the Florida Legislature during the 2006
The first bill (HB 1097) would have
required government agencies to reply
"promptly" to public records requests. In
his veto message, Bush wrote that existing
law already outlines a standard for when
an agency must respond to requests "at
any reasonable time, under reasonable
The bill had the potential to require
agencies to reply without delay, regardless
of the situation, according to the governor.
This could require the hiring of additional
staff, and the Legislature did not provide
any additional funding, he wrote.
Bush also objected to part of the bill
requiring agency heads to appoint records
custodians and provide notice of the
ACCESS extent the public
are misled to
believe that only designated persons can
receive record requests, the bill does not
accord with the sprit of public record
law," Bush wrote.
The second bill (CS/SB 1438) would
have allowed the Legislature to access
records with confidential and exempt
status. Bush wrote in his veto message
that by allowing the Legislature access to
such records maintained by the executive
branch, the separation of powers would be
The bill also would have codified
existing case law on custodial
requirements for confidential and exempt
Ex-weapons scientist settles
privacy suit for $1.6 million
ACCESS RECORDS CONTINUED
Judge upholds $18 million verdict against paper
PENSACOLA Ajudge dismissed
a claim for punitive damages but upheld
an $18.28 million jury verdict against the
Pensacola News-Journal in a false light
In December 2003, a jury ruled for
businessman Joe Anderson Jr., who
alleged the newspaper's use of the term
"shot and killed" in a story falsely implied
that he murdered his wife.
WASHINGTON The U.S.
Supreme Court ruled that public
employees are not protected by the First
Amendment for statements made in
connection with their work.
In a 5-4 vote, the justices ruled
against Richard Ceballos, a prosecutor
with the Los Angeles District Attorney's
Office. Ceballos alleged that he was
demoted for telling his supervisors that
a sheriff's deputy lied to get a search
warrant. The ruling does not affect state
and federal labor laws or whistle-blower
protection statutes, the court said.
"We reject, however, the notion
that the First Amendment shields from
discipline the expressions employees
make pursuant to their professional
duties," wrote Justice Anthony M.
In his dissent, Justice David H.
Two sentences later, the article noted
authorities ruled her death was a hunting
The article was part of a series on
Anderson and his paving company
published in 1998 and 1999.
The jury could not agree on punitive
damages, so Circuit Judge Michael Jones
ordered a second trial on that issue.
Jones dismissed that part of the suit
Lobbyist law survives injunction
TALLAHASSEE -A new state
law that requires lobbyists to disclose
who pays them and how much survived
an effort to block it. The law also bans
gift-giving to lawmakers. The Florida
Association of Professional Lobbyists,
along with two individual lobbyists,
sought a temporary injunction against the
law and summary judgment.
The law was filed as a Senate bill, and
the lobbyists argue that because it was
not read three times by the House, it was
invalid. The state constitution allows an
exception to the reading requirement if a
two-thirds vote is reached.
"Because the rule was waived it was
not necessary to read the bill on three
separate days," wrote U.S. District Judge
The case can now proceed to trial
unless Mickle's rulings are appealed.
The Miami Herald reviewed the
records disclosed as a result of the new
law and found that lobbyists earned
at least $17.4 million in the first three
months of 2006.
Major contributors were Florida
Power & Light, Calder Race Course, the
American Tort Reform Association and
the Florida Medical Association.
Souter advocated a case-by-case
approach to free speech claims related
to public employment. "[P]rivate and
public interests in addressing official
wrongdoing and threats to health and
safety can outweigh the government's
stake in the efficient implementation
of policy," Souter wrote, "and when
they do public employees who speak
on these matters in the course of their
duties should be eligible to claim First
Souter was joined in his dissent by
Justices John Paul Stevens and Ruth
Bader Ginsburg. Justice Stephen G.
Breyer offered his own dissenting
opinion. The Ceballos case was first
argued in October, when Justice Sandra
Day O'Connor was still on the Court.
O'Connor retired Jan. 31. The case was
reargued in March.
in April, after Anderson and his lawyers
allegedly violated an order to keep
the newspaper's pretrial polling data
This is the first false light case tried
in Florida, according to The Associated
Press. The News-Journal and its parent
company, Gannett Co. Inc. plan to appeal
the decision, according to defense attorney
violated by VA
TAMPA A police officer at a
Veterans Administration hospital
claims his First Amendment rights
were violated after he was told he
would be fired for giving sensitive
information to the St. Petersburg
Times, according to a story by the
A congressional committee is
reviewing the case of Robert J.
McCarthy, who was a police officer
in Philadelphia for 30 years, had been
working at the James A. Haley VA
Medical Center for about a year when
the VA inspector general launched an
investigation of poor patient care and
mismanagement at the center.
The investigation, which began in
February, was based on an anonymous
letter to the Times.
A month later, allegations of
criminal activity in the hospital police
force arose from anonymous e-mails to
McCarthy contacted the newspaper
almost three weeks after the stories
about the hospital were published.
McCarthy said that he had been
reassigned to a file clerk position
because he was suspected of being the
source of the Times stories. He denied
he was the author of the e-mails.
The hospital accused McCarthy of
releasing information regarding the
VA without authority, using obscene
language and sending a sarcastic e-
mail to the police chief.
2 The Brechner Report August 2006
High court: No protection
for whistleblowers on the job
CITRUS COUNTY -A circuit judge
ruled in favor of the state Department of
Transportation, finding the agency made
a good faith effort to remedy Sunshine
The violations stem from meetings
held two years ago by the Environmental
Resource and Regulatory Agency Group
(ERRAG), an advisory group involved in
the DOT's Suncoast Parkway II study.
Citrus County residents Teddi Bierly
and Robert Roscow were excluded from
the meetings and filed suit against the
The original judge in the case, Judge
Janet Ferris, found that the ERRAG
meetings should have been held in the
Sunshine. As part of court-ordered
mediation, she ordered the DOT to
remedy the violations with "curative
meetings," according to The Citrus
But Bierly and Roscow challenged
those meetings, saying not all original
ERRAG members attended and that the
presentations were inadequate. They
requested the work of the ERRAG be
thrown out for violating mediation.
Circuit Judge Terry Lewis replaced
Ferris, and although Lewis admitted
that Bierly and Roscow had legitimate
concerns, the judge ruled that the DOT
still made a good faith effort to remedy
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ety of Newspaper Editors and the Joseph L Brechner
OCALA The board of directors
of an Ocala hospital are subject to the
Sunshine Law, the State Attorney's
Office has determined. It also concluded
that the incident prompting the inquiry
was not a violation of the Sunshine
In February, Munroe Regional
Medical Center's board of directors
voted unanimously and without any
discussion to demote President and
Chief Executive Officer Paul Clark to
the position of chief operating officer.
Two weeks earlier, a majority of board
members said they opposed having a
The State Attorney's Office then
began an investigation as to how the
board reached a unanimous decision
considering its previous opposition.
Munroe Regional Health Systems
Inc. operates the hospital under a lease
BROWARD COUNTY The
Broward County clerk began filing
motions asking judges in more than 100
cases kept from the public docket if the
files should remain confidential.
The move comes after an investigation
by The Miami Herald revealed that more
than 100 lawsuits since 2001 are kept on
a secret docket in Broward Circuit Court.
In May, Clerk Howard Forman
formulated a new policy that required
judges who order cases sealed to be more clarification.
subject to law
from the Marion County Hospital District.
Assistant State Attorney Mark Simpson
first concluded that the hospital is subject
to the state's open government laws, in
addition to the Sunshine requirements
stipulated in the hospital's lease.
Simpson then spoke with Clark and
another Munroe executive, Vice President
Earline Piscitelli, during his investigation.
Clark said he spoke individually with
board members and told them of his
proposal to step down.
Piscitelli explained that a press release
distributed immediately following the
meeting was one of two press releases
written, one with the board's decision and
one with another outcome.
Based on the statements of Clark and
Piscitelli, Simpson found there was no
evidence of a Sunshine violation. He did
not speak with any of the board members,
according to the Ocala Star-Banner.
Charges posthumously dropped
ESCAMBIA COUNTY A circuit
judge dropped criminal charges against
an Escambia County commissioner who
died in 2004.
Willie Junior disappeared a day before
he was to be sentenced on corruption
charges. He died of an apparent suicide.
The main reason for the request to
drop charges was to allow Junior's widow
to receive her husband's retirement
benefits from the county and state,
according to Junior's attorney, Michael
Junior and three other county
commissioners were indicted in May
2002. Junior faced charges ranging from
racketeering and bribery to violating the
Sunshine Law. He pleaded no contest
to several charges and was likely to be
sentenced to 18 months in prison.
Assistant State Attorney John Simon
objected to the decision, arguing that Junior
had already entered a plea and was awaiting
Junior served as a state witness in the
case of fellow Commissioner W.D. Childers.
Junior, 62, was a commissioner for 18
specific about the types of information they
want kept from the public. The policy did
not apply to cases already sealed.
In the midst of his new policy, Forman
denied a request by The Herald for a list
of all civil cases not available for public
inspection. The newspaper then successfully
sued Forman for the case numbers and party
names for the secret files.
But the cases remained off the public
docket, prompting Forman's requests for
The Brechner Report U August 2006
Paper sues for secret docket details
Reporting team holds disaster agency accountable
We never imagined one map on FEMA's Web site
in the midst of the unforgettable 2004 hurricane season
would lead to the longest-running investigation the
South Florida Sun-Sentinel had ever done and a federal
Freedom of Information Act lawsuit that will change the
way reporters cover disasters nationwide.
Database specialist John Maines discovered the map
preparing for a hurricane enterprise story meeting in
September 2004. He noticed something odd: a large Sall
cluster of FEMA claims from Miami-Dade, one of the
few counties in Florida not hit by the four hurricanes that
Before our first story ran, showing FEMA had already
approved more than $21 million to Miami-Dade residents, our
The investigative team filed a FOIA
request for the claims.
Ba k Pa e We wanted to know: Who
were all these people getting
By Sally Kestin disaster assistance and for what?
As the investigation progressed, we filed more than 20 other
FOIA requests to help understand how FEMA approved claims
and what about its system allowed widespread fraud and waste.
From the start, FEMA refused to provide names and addresses
of aid recipients, citing the Privacy Act. The government
also declined to provide the names of its privately contracted
inspectors, calling it "an unwarranted invasion of their privacy."
FEMA withheld then-FEMA Director Michael Brown's
e-mails on grounds that their release would "discourage open,
frank discussions on matters of policy" and refused to turn over
quality control reports of inspectors' work.
In March 2005, the Sun-Sentinel filed suit for access to the
information in the U.S. District Court for the Southern District of
While we waited, the team found ways around the obstacles.
We hit the streets and located aid recipients who called FEMA
assistance "free money" and told of neighbors hosing down
furniture to make it look like storm damage.
The team found FEMA inspectors and discovered some
had criminal records for theft, robbery and embezzlement. We
obtained FEMA claims data by ZIP code and identified the same
patterns of waste and fraud found in Miami in disasters
across the country.
The 15-month investigation was a finalist for the
2006 Pulitzer Prize for investigative reporting and
won top awards from the Scripps Howard Foundation,
Associated Press Managing Editors and Investigative
Reporters and Editors Inc.
In an April 2006 ruling in our lawsuit, U.S. District
Kestin Judge Kenneth A. Marra concluded that FEMA must
release the names of its inspectors, the quality control
reports, the addresses but not names of aid recipients,
and all but two of Brown's e-mails.
FEMA has appealed the judge's decision on recipients'
addresses but has agreed to produce the remainder of the
Documents released so far have already resulted in a story
detailing how FEMA officials scrambled to justify their decisions
after our Miami story broke. Those e-mails never would have
been public if not for our suit.
If the decision in our case is upheld, reporters nationwide will
have access to more detailed data about FEMA claims in past and
Addresses will help pinpoint where the money is going and
allow reporters to compare that to actual damage. Is FEMA
sending money to vacant lots? Are tenants of apartment buildings
collecting aid when the property managers report no damage?
As we saw with the 2004 Florida storms and with Hurricane
Katrina, where federal auditors recently estimated as much as
$1.4 billion in FEMA aid to individuals was bogus, no agency
warrants more of our scrutiny.
Our lawsuit and others like it will help reporters keep better
watch over FEMA's spending of tax dollars.
Sally Kestin is an :i.. ai l,,,, ,.' reporter at the South Florida
Sun-Sentinel. She previously covered social services, education and
local governmentfor The Tampa Tribune and the Sarasota Herald-
Tribune. After the 2004 Florida hurricanes, she led a team of
reporters who uncovered $530 million in fraud and waste in FEMA
disaster aid nationwide. She has won state and national awards and
was a finalist for the 2006 Pulitzer Prize for :, i i, i,\: .. ,. ti. ., i,, i